United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Tampa, FL, Employer
)
___________________________________________ )
A.V., Appellant

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

Docket No. 14-748
Issued: October 3, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 18, 2014 appellant, through her attorney, filed a timely appeal from the
January 10, 2014 Office of Workers’ Compensation Programs’ (OWCP) decision which affirmed
a prior decision, which found that she failed to establish that she sustained an injury as alleged.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the issues in this
case.
ISSUE
The issue is whether appellant has met her burden of proof in establishing that she
sustained an injury in the performance of duty on November 30, 2012.
FACTUAL HISTORY
On December 3, 2012 appellant, then a 41-year-old mail processing clerk, filed a
traumatic injury claim alleging that on November 30, 2012, she developed severe pain and
burning in her neck, radiating down her shoulders, arms and hands as well as severe pain in her
back and legs while at work. She stated that she was feeding and sweeping a machine, bending,

stooping, twisting and reaching above the shoulder and repetitively lifting mail trays weighing 20
to 40 pounds. Appellant stopped work on November 30, 2012. The employing establishment
noted that she had a history of work-related injuries and it was her first day back from a prior
work injury.
In a duty status report and an attending physician’s report dated December 4, 2012,
Dr. Samy F. Bishai, Board-certified in emergency medicine, noted that on November 20, 2012,
appellant was working and lifting over 160 trays of mail into a processing machine and felt
numbness in her feet, back, neck and shoulders. He advised that she also hit her elbows on a
desk and she stumbled and fell to the floor. Dr. Bishai provided findings and diagnosed a
herniated nucleus pulposus, internal derangement of the left shoulder and cervical disc. He
checked the box “yes” in response to whether he believed the condition was caused or
aggravated by the employment activity and advised that appellant was disabled from
December 4, 2012 to January 18, 2013. OWCP also received a December 3, 2012 disability
certificate from a nurse and discharge instructions.
In a December 6, 2012 statement, Denise Santos, a coworker, noted that on
December 1, 2012 she was walking past machine number 18 and saw appellant with a red face
and neck. She indicated that appellant asked her for her help as she was going to pass out.
Ms. Santos noted that she tried to keep appellant from falling but about halfway down, she fell
and hit “pretty hard.” She indicated that appellant’s eyes rolled back and she looked dazed for a
few minutes and started to cry. Ms. Santos noted calling 911 and waiting until the ambulance
arrived.
In a letter dated December 13, 2012, Larry E. Osalkowski, a health and human resource
management specialist, controverted the claim. He noted that this was appellant’s third claim
since June 11, 2011 and asserted that she did not want to work.1 Mr. Osalkowski noted that on
July 11, 2012, she underwent a functional capacity evaluation that demonstrated sub-maximum
effort. He advised that on November 30, 2012 appellant returned to her date-of-injury job and
that, at 4:35 p.m., she was at a supervisor desk filling out a leave form to go home, when she
allegedly fainted.
On December 14, 2012 OWCP informed appellant of the type of evidence needed to
support her claim and requested that she submit such evidence within 30 days.
In a December 4, 2012 narrative report, Dr. Bishai noted that appellant suffered injuries
to her neck, back and left shoulder while working for the employing establishment. He advised
that she was previously off work due to accepted injuries that included left rotator cuff syndrome
and lumbosacral neuritis. Dr. Bishai stated that appellant’s supervisor ordered appellant to return
to full duty on November 26, 2012 but she did not receive those orders until November 29, 2012.
Appellant arrived at work at 10:00 p.m. on November 29, 2012 and was assigned to work on the
delivery bar code sorter machine which processed the letters into carrier sequence. She started
setting up the work by printing labels on the trays and moved the general purpose mail container
(GPMC) which weighed about 242 pounds about 10 feet. Additionally, appellant was engaged
in sweeping mail from 10:00 p.m. to 11:45 p.m., which involved grabbing handfuls of mail from
1

Appellant’s other claims are not presently before the Board.

2

the machine onto the rack and bending, stooping, twisting and reaching above her head.
Dr. Bishai also advised that from 11:45 p.m. until 12:00 a.m., she was on a break and that
afterwards, she returned to work on the same machine until 3:00 a.m., stopping for a half hour
lunch. From 3:00 a.m. until 4:30 a.m., appellant started feeding the machine, which included
lifting over 160 trays of mail weighing from 20 to 40 pounds each. Dr. Bishai advised that at
4:30 a.m. she informed her supervisor that she was having severe pain and burning in her neck
radiating down both shoulders and into her arms and hands, as well as down her legs. Appellant
indicated that her supervisor asked her to complete a leave slip and that afterwards, she fell to the
floor, tripping over a chair. She was taken to the emergency room, given a shot and sent home.
Dr. Bishai noted findings that included tenderness over the dorsolumbar spine in the midline and
moderate paraspinal muscle spasm affecting the paraspinal muscles of the dorsolumbar region.
Appellant had normal range of motion and positive sciatic nerve stretching.
Dr. Bishai diagnosed chronic lumbosacral strain; herniated disc as L5-S1; radiculopathy
right and left legs, more severe on the left; bulging discs at L3-4 and L4-5; herniated lumbar disc
at L5-Sl; radiculopathy right and left legs, more severe on the left; bulging discs at L3-4 and
L4-5; lumbar degenerative disc disease; cervical disc syndrome with radiculopathy and left
shoulder internal derangement. He opined that appellant had additional injuries to her back with
radiculopathy being worse than before. Dr. Bishai advised that she had new injuries to her neck,
arms and left shoulder. He noted that appellant should not have returned to work and that her
return was due to poor judgment by a second opinion physician, Dr. Jonathan Black, a Boardcertified orthopedic surgeon.2 Dr. Bishai recommended physical therapy and medication. In a
January 3, 2013 report, he noted appellant’s history and treatment. Dr. Bishai repeated his prior
diagnoses as well as sprain and contusion of the right elbow.
On January 9, 2013 OWCP received an undated statement from appellant, who noted
being assigned to a machine that required that she print labels, put the labels on trays and move
10 GPMCs weighing 242 pounds each. Appellant indicated that she had to sweep mail from the
machine to mail racks, sweep stackers and lift trays of mail weighing 20 to 40 pounds each. She
stated that she performed her duties repeatedly, took a lunch break from 2:00 a.m. to 2:30 a.m.
and then returned to the same machine. At around 4:30 a.m., appellant was in severe pain and
had burning in her neck, down her shoulders, arms, hands and back. She indicated that she later
bumped her right elbow on a desk and passed out, falling to the floor. OWCP received other
reports, including several diagnostic reports, a December 4, 2012 nurses note and an unsigned
duty status report dated January 3, 2013.
In a January 5, 2013 statement, Mr. Osalkowski reiterated his assertions that appellant’s
claim should not be accepted.
By decision dated January 18, 2013, OWCP denied the claim. It found that the injury or
events did not occur as alleged and that appellant did not submit sufficient medical evidence.
Appellant requested a telephonic hearing, which was held on May 16, 2013. During the
hearing, counsel noted that she had a prior accepted work injury under a separate claim and was
2

The employing establishment indicates that Dr. Black was a second opinion physician utilized by OWCP in a
prior claim.

3

sent to Dr. Black. He argued that appellant was improperly returned to full-duty work based
upon Dr. Black’s opinion, even though her attending physician stated that she could not work.
Counsel argued that there was a medical conflict in the other claim.
Following the hearing, counsel, on June 11, 2013, restated his argument that appellant
was forced back to work against the wishes of her physician on November 30, 2012 and
sustained additional injuries while working on that date.
Mr. Osalkowsi provided a
June 18, 2013 statement noting his arguments regarding why the claim should be denied.
Additional evidence was also received that included another statement from appellant describing
her activities on the date of injury and a December 4, 2012 ultrasound of the cervical soft tissue
which revealed thickening of the paravertebral muscles at C6-7.
In an August 12, 2013 decision, an OWCP hearing representative affirmed OWCP’s
January 18, 2013 decision. He found that the medical evidence was insufficient to establish that
the diagnosed medical conditions were causally related to the claimed work activities during the
six hours that appellant worked on November 30, 2012.
On October 16, 2013 appellant requested reconsideration and reiterated that she was
injured at work.
Appellant also submitted additional evidence. In reports dated August 21, 2013,
Dr. Bishai noted reviewing her history and provided findings on examination. He diagnosed
chronic lumbosacral strain; herniated lumbar disc at L5-S1; radiculopathy right and left legs,
more severe on the left; bulging discs at L3-4 and L4-5; lumbar degenerative disc disease;
cervical disc syndrome with radiculopathy; internal derangement of the left shoulder; acromial
impingement of the left shoulder; right elbow sprain; and right elbow contusion. Dr. Bishai
opined that appellant was totally disabled due to her painful conditions. He indicated that she
had severe and permanent aggravation of her preexisting conditions that she had while working
for the employing establishment. Dr. Bishai stated that appellant was forced to return to work
against his recommendations and had an aggravation on November 30, 2012. He repeated his
previous description of her activities and opined that the injuries she suffered on that date were
“simply an aggravation of preexisting conditions” that she suffered from previously. Dr. Bishai
stated:
“[Appellant] also suffered additional symptoms on that day as she suffered from
pain in her neck with radiation down the arms and she suffered aggravation of her
shoulder injuries as well as additional injuries to the shoulders and she also
suffered aggravation of the preexisting conditions in her back leading to severe
back pain with radiculopathy in both legs, more severe on the left side. The
causal relationship between the patient’s current symptoms and the symptoms that
she developed on the date of the injury of November 30, 2012 and its relationship
to her work activities while she was working for the employing establishment on
that date of November 30, 2012 are clear and easy to explain. The patient was
using a lot of repetitive movements of bending, twisting, pushing, pulling,
reaching above the shoulder and extending her body.”

4

Dr. Bishai opined that it was a “a well-known fact that patients who suffer from disc disease or
injuries as this patient had suffered from due to previous work injuries that she suffered are prone
to develop aggravation of these conditions because of these repetitive movements of bending,
twisting, pulling, pushing, reaching above the shoulder and extending her body.” He explained
that appellant worked for six hours doing many movements including reaching above the
shoulder, twisting her body and lifting a stacker paddle above her shoulder. Dr. Bishai noted that
she had to get up on her toes to place the mail and then place the mail on trays, while twisting,
turning and using both hands to get mail. He stated that the trays weighed approximately 20
pounds and appellant pushed a cart that weighed 1,000 pounds. Dr. Bishai opined that all of
these movements that she did while using her arms above her shoulder level “have contributed
and caused an aggravation of the preexisting problems with her shoulders including the torn
rotator cuff muscles that were diagnosed as well as an aggravation of the shoulder impingement
syndrome conditions that have been diagnosed in this case.” He noted that appellant’s back and
neck conditions were explained because lifting caused her to expend a lot of energy and caused
injury to the discs that usually suffered an aggravation of “these preexisting problems with the
discs in terms of the rupture of the annulus fibrosis part of the discs and the bulging or herniation
of the discs due to the nucleus pulposus bulging through the tears in the annulus fibrosis.”
Dr. Bishai stated that this was a pathophysiological process that led to her severe symptoms in
her neck and back as the disc herniation and bulges in both the cervical and lumbosacral spine
led to radiculopathy in the arms and legs. He advised that causal relationship existed between
appellant’s symptoms following the November 30, 2012 injury and her activities at work that
night. Dr. Bishai opined that he had provided a rationalized opinion explaining that, after
working six hours, she had an aggravation of her preexisting neck, back and shoulder conditions.
He asserted that his opinion showed the activities that appellant did at work were related to her
pain symptoms. Dr. Bishai opined that it was well known that when a patient had serious
problems such as herniated discs and radiculopathy, in the arms and legs, as well as shoulder
injuries due to rotator cuff syndrome and shoulder impingement, they could easily be aggravated
by the type of work activities that she performed on November 30, 2012. He stated that within a
reasonable degree of medical certainty, the diagnosed conditions were directly related to
appellant’s work activities on November 20, 2012 and these activities aggravated her preexisting
conditions that she suffered previously at work. Dr. Bishai indicated that her problems were all
work related.
OWCP received additional records that include treatment notes dated November 22, 2013
from Dr. Gregory F. Saric, Board-certified in family medicine and a January 8, 2014 report from
Dr. Robert H. Reppy, an osteopath specializing in preventative medicine. Dr. Reppy examined
appellant and repeated the diagnoses provided by Dr. Bishai.
By decision dated January 10, 2014, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time

5

limitation period of FECA3 and that an injury was sustained in the performance of duty.4 These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.5
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred. The second
component is whether the employment incident caused a personal injury and generally this can
be established only by medical evidence.6 The employee must also submit sufficient evidence,
generally only in the form of medical evidence, to establish that the employment incident caused
a personal injury.7 The medical evidence required to establish causal relationship is usually
rationalized medical evidence. Rationalized medical opinion evidence is medical evidence
which includes a physician’s rationalized opinion on the issue of whether there is a causal
relationship between the claimant’s diagnosed condition and the implicated employment factors.
The opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.8
ANALYSIS
Appellant alleged that on November 30, 2012, she was feeding and sweeping a machine,
bending, stooping, twisting and reaching above the shoulder; and repetitively lifting mail trays
weighing 20 to 40 pounds in the performance of duty. The Board finds that the evidence
supports that she performed such job duties on November 30, 2012. Although OWCP found that
the medical evidence was insufficient to establish the claim, the Board finds that the case
requires further development regarding whether appellant sustained a new traumatic injury in the
performance of duty.
Appellant submitted medical reports from Dr. Bishai which support that her work
activities on November 30, 2012 aggravated her preexisting conditions and caused total
disability. In his August 21, 2013 report, Dr. Bishai reviewed her history, noted findings and
diagnoses and concluded that she had severe and permanent aggravation of her preexisting
conditions due to her work at the employing establishment. He described appellant’s work
activities and opined that her injuries were “simply an aggravation of preexisting conditions” that
3

Joe D. Cameron, 41 ECAB 153 (1989).

4

James E. Chadden Sr., 40 ECAB 312 (1988).

5

Delores C. Ellyett, 41 ECAB 992 (1990).

6

See John J. Carlone, 41 ECAB 354, 357 (1989).

7

Id. For a definition of the term “traumatic injury,” see 20 C.F.R. § 10.5(ee).

8

D.E., 58 ECAB 448 (2007).

6

she had previously in addition to new symptoms she sustained. Dr. Bishai supported causal
relationship noting that she used a lot of repetitive movements and asserted that it was “well
known” that patients with disc disease or injuries such as those sustained by her were prone to
aggravate those conditions because of these repetitive movements of bending, twisting, pulling,
pushing, reaching above the shoulder and extending her body. He opined that all of these
movements as well as lifting above the shoulder aggravated appellant’s diagnosed conditions.
The Board finds that this report, while not completely rationalized, is consistent in indicating that
appellant sustained an employment-related cervical condition.
Proceedings under FECA are not adversarial in nature nor is OWCP a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, it shares
responsibility in the development of the evidence to see that justice is done.9 While Dr. Bishai’s
reports are not sufficiently rationalized to discharge appellant’s burden of proving that her
claimed conditions were caused or aggravated by factors of her employment on
November 30, 2012, these reports are uncontroverted and raise an inference of causal
relationship sufficient to require further development of the case record by OWCP.10
On remand, OWCP should refer appellant, the case record and a statement of accepted
facts to the appropriate specialist for an evaluation and a rationalized medical opinion regarding
the cause of her condition.11 After such further development of the case record as OWCP deems
necessary, a de novo decision shall be issued.
On appeal, counsel made several arguments in support of appellant’s claim. In light of
the Board’s disposition to remand her claim, it is premature to address these arguments.
CONCLUSION
The Board finds that this case is not in posture for decision. .

9

William J. Cantrell, 34 ECAB 1223 (1983).

10

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

11

In view of assertions in the record by appellant and the employing establishment, that her symptoms have a
connection with prior injury claims, OWCP may wish to consider whether these claims should be doubled.

7

ORDER
IT IS HEREBY ORDERED THAT the January 10, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further action consistent with
this decision.
Issued: October 3, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.E., Appellant
and
U.S. POSTAL SERVICE, INTERNATIONAL
SERVICE CENTER, JOHN F. KENNEDY
AIRPORT, Jamaica, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Stephen Larkin, for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0614
Issued: November 1, 2019

Case Submitted on the Record

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

JURISDICTION
On January 27, 2019 appellant, through her representative, filed a timely appeal from an
August 2, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.3

1

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

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to schedule award benefits, effective February 6, 2018, due to her
refusal of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
FACTUAL HISTORY
On May 14, 2013 appellant, then a 44-year-old mail processing clerk, filed a traumatic
injury claim (Form CA-1) alleging that on May 6, 2013 she injured the right side of her neck and
her lower back when trying to catch a falling tray while in the performance of duty. She stopped
work on May 6, 2013. OWCP accepted the claim for neck and lumbar strains, and herniated discs
at L2-3, L4-5, and L5-S1. It paid appellant wage-loss compensation on the periodic rolls as of
June 29, 2014.
In an April 13, 2017 treatment note, Dr. Kanwarpaul Grewal, an osteopathic physician
specializing in orthopedic surgery, noted that appellant had persistent lumbar symptoms and
radiculopathy. As he indicated that she believed that she could perform light-duty work he released
her to return to work on a part-time basis.
On August 24, 2017 the employing establishment requested that Dr. Grewal provide
restrictions for appellant’s return to part-time work.
In a September 15, 2017 report, Dr. Grewal indicated that appellant could sit for four hours
per day, stand for two hours a day, walk for one hour a day, bend up to 30 degrees, squat, kneel,
and twist for four hours a day, climb zero hours a day, and lift up to 10 pounds. He limited her to
a four-hour workday.
On October 11, 2017 the employing establishment offered appellant a modified mail
processing clerk position and noted that it was based upon the restrictions provided by Dr. Grewal.
The modified job entailed four hours of work per day and included sorting and separating letters
and flats, sitting, simple grasping, and lifting individual letters and flats weighing one to three
ounces, for up to four hours per day.
In a letter dated October 26, 2017, the employing establishment notified OWCP that
appellant had neither accepted nor rejected the modified job offer. It indicated that the offer
complied with the restrictions provided by her treating physician.
In a November 21, 2017 memorandum of telephone call (Form CA-110), the employment
establishment confirmed that the job offer remained available.
On November 22, 2017 OWCP notified appellant that the modified mail processing clerk
position was suitable. It noted that the position was in compliance with the restrictions provided
by her treating physician and that the position remained available. OWCP advised appellant that
5 U.S.C. § 8106(c)(2) provided that an employee who refused an offer of suitable work without
cause was not entitled to compensation for either disability or a schedule award. It afforded her
30 days to accept the position or provide a written explanation for her refusal.

2

OWCP subsequently received additional evidence including physical therapy notes from
August 3 to January 9, 2017.
In a December 14, 2017 disability slip, Dr. Grewal related that appellant was partially
disabled. In a December 14, 2017 narrative report, he explained that she had persistent back pain,
which had been worsening and that she required a repeat magnetic resonance imaging (MRI) scan
for evaluation. Dr. Grewal related that the employing establishment had a part-time position for
appellant, and she was awaiting approval of a straight-back chair. He related that she was willing
to start work as soon as the straight-back chair was made available to her.
In a December 20, 2017 statement, appellant indicated that she spoke with the employing
establishment regarding her concerns about the job offer. She noted that her manager, K.H.,
indicated that she would make changes and send a new job offer; however, she had not yet received
a new offer.
In a letter dated January 8, 2018, the employing establishment confirmed that the modified
mail processing clerk position, offered on October 11, 2017 remained available and that appellant
had not returned to work.
A Form CA-110 memorandum of telephone call noted that OWCP had called the
employing establishment to determine whether another job offer would be made to appellant. The
employing establishment responded that no other offer would be made to her.
By letter dated January 12, 2018, OWCP notified appellant that the modified mail
processing clerk position was suitable and remained available. It afforded her 15 days to accept
the position and report to work or her wage-loss compensation and entitlement to a schedule award
would be terminated. OWCP explained that the reasons appellant provided for refusing to accept
the offered position were invalid.
In a January 26, 2018 Form CA-110 memorandum of telephone call, appellant explained
that she “wanted to make it clear that she never refused an offer.” OWCP explained that the job
was found suitable based upon the restrictions of her treating physician. Appellant indicated that
she wanted to be certain that she would have the “special chair that her supervisor agreed to.”
OWCP explained that she needed to follow up with her employing establishment.
In a letter dated January 30, 2018, the employing establishment noted that appellant had
not returned to work and that the job offer remained available.
By decision dated February 6, 2018, OWCP terminated appellant’s wage-loss
compensation and entitlement to a schedule award, effective February 6, 2018, because she refused
an offer of suitable work, pursuant to 5 U.S.C. § 8106(c)(2). It determined that the weight of
medical evidence with respect to her ability to work rested with the established work restrictions
provided by her treating physician, Dr. Grewal.
On February 26, 2018 appellant requested an oral hearing before an OWCP hearing
representative.
The hearing was held on June 26, 2018. Appellant testified that when the job offer was
presented it stated nothing about a straight-back chair, but that she had her physician clarify that
3

the straight-back chair was necessary. She further noted that she had also requested that the
employing establishment amend the job offer to show that the chair would be provided; however,
the employing establishment never amended the offer. Appellant explained that was the reason
she did not return to work.
OWCP subsequently received progress reports from Dr. Grewal. In a report dated July 19,
2018, Dr. Grewal noted that appellant was concerned about documentation of her need for a
straight-back chair. He reviewed his past notes. Dr. Grewal explained that appellant was not able
to tolerate sitting without back support. He also noted that her need for a straight-back chair was
clearly mentioned in his December 14, 2017 note. Dr. Grewal explained that “most [employing
establishment’s] with patients with back injury (work related or not) usually offer that
accommodation without significant push back to retain employee. Offering chair with straight
back is easiest accommodation.” He noted that the employing establishment had a part-time
position for appellant, that she was willing to work, and that she was just waiting for the chair to
be made available.
By decision dated August 2, 2018, OWCP’s hearing representative affirmed OWCP’s
February 6, 2018 decision.
LEGAL PRECEDENT
Section 8106(c)(2) of FECA provides that a partially disabled employee who refuses to
seek suitable work or refuses or neglects to work after suitable work is offered to, procured by, or
secured for him or her, is not entitled to compensation.4 Once OWCP accepts a claim, it has the
burden of proof to justify termination or modification of compensation benefits under section
8106(c) for refusing to accept or neglecting to perform suitable work.5 The Board has recognized
that section 8106(c) serves as a penalty provision as it may bar an employee’s entitlement to future
compensation and, for this reason, will be narrowly construed.6
To justify termination, OWCP must show that the work offered was suitable and that the
employee was informed of the consequences of her or his refusal to accept such employment.7
According to its procedures, a job offer must be in writing and contain a description of the duties
to be performed and the specific physical requirements of the position.8 20 C.F.R. § 10.516
provides that an employee who refuses or neglects to work after suitable work has been offered or
secured for the employee has the burden of proof to establish that such refusal or failure to work

4

Supra note 2.

5

See B.R., Docket No. 19-0614 (issued August 13, 2019); M.W., Docket No. 17-1205 (issued April 26, 2018);
Howard Y. Miyashiro, 51 ECAB 253 (1999).
6

P.C., Docket No. 18-0956 (issued February 8, 2019); H. Adrian Osborne, 48 ECAB 556 (1997).

7

M.W., supra note 5; T.S., 59 ECAB 490 (2008); Ronald M. Jones, 52 ECAB 190 (2000).

8

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.4(a)
(June 2013).

4

was reasonable or justified, and shall be provided with the opportunity to make such showing
before a determination is made with respect to termination of entitlement to compensation.9
ANALYSIS
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and entitlement to schedule award benefits, effective February 6, 2018, due to
her refusal of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
OWCP accepted appellant’s claim for lumbar and neck strains, and herniated discs at L2-3,
L4-5, and L5-S1. On September 15, 2017 Dr. Grewal, appellant’s treating physician, related
appellant’s medical restrictions and indicated that she could return to work for four hours a day.
On October 11, 2017 the employing establishment offered her a modified mail processing clerk
position based upon the work restrictions provided by Dr. Grewal.
On November 22, 2017 OWCP notified appellant that the modified processing clerk
position was suitable work and advised her that she had 30 days to accept the position or provide
a written explanation for her refusal. In response, it received a December 14, 2017 report from
Dr. Grewal wherein he indicated that her symptoms were worsening. Dr. Grewal noted that
appellant was waiting for a straight-back chair to be authorized by the employing establishment
and that she would return to work as soon as the chair was available. In his supplemental report
dated July 19, 2018, he explained that she was not able to tolerate sitting without back support,
and therefore needed a straight-back chair. The Board has held that, when additional medical
evidence is submitted after the job offer is made, OWCP must consider the evidence in determining
medical suitability.10 The Board has also held that for OWCP to meet its burden of proof in a
suitable work termination, the medical evidence should be clear and unequivocal that the claimant
could perform the offered position.11 The evidence of record indicates that the employing
establishment failed to clarify whether a straight-back chair would be provided for appellant as
requested by Dr. Grewal.
As a penalty provision, section 8106(c)(2) of FECA must be narrowly construed.12 Based
on the evidence of record, the Board finds that OWCP improperly determined that the modified
mail processing clerk position offered to appellant on October 11, 2017 constituted suitable work.
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and entitlement to schedule award benefits, effective February 6, 2018, due to
her refusal of suitable work pursuant to 5 U.S.C. § 8106(c)(2).

9

See P.C., supra note 6; Camillo R. DeArcangelis, 42 ECAB 941 (1991).

10

See E.G., Docket No. 18-0710 (issued February 12, 2019).

11

Docket No. 18-1232 (issued April 8, 2019).

12

G.M., Docket No. 18-1236 (issued June 18, 2019).

5

ORDER
IT IS HEREBY ORDERED THAT the August 2, 2018 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: November 1, 2019
Washington, DC

Patricia H. Fitzgerald, Deputy 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
TENNESSEE VALLY AUTHORITY,
Chattanooga, TN, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 06-2171
Issued: February 8, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 21, 2006 appellant filed a timely appeal from a merit decision of the
Office of Workers’ Compensation Programs dated June 22, 2006 denying his claim for a
schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant has a ratable hearing loss entitling him to a schedule
award.
FACTUAL HISTORY
On January 5, 2006 appellant, then a 52-year-old electrician, filed an occupational
disease claim alleging that he sustained bilateral hearing loss due to factors of his employment.
He alleged that he was constantly working around power equipment including generators and
turbines inside the hydroplant which created loud noise all day. Accompanying the claim was
appellant’s personnel and medical records. The medical records included audiometric records

dated February 4, 1999, February 9, 2000, February 2, 2001, May 8 and October 27, 2003 as
well as audiogram records. There is no indication that this audiometric testing was performed by
an audiologist or that the audiograms were verified by an otolaryngologist.
In a letter dated February 21, 2006, the Office informed appellant that the information
was not sufficient to support his claim. The Office requested additional factual and medical
evidence necessary to adjudicate his claim. In response, appellant submitted a description of his
noise exposure during the course of both his federal employment and military service.
By letter dated March 30, 2006, the Office informed appellant that he was being referred
for a second opinion. A statement of accepted facts was enclosed with the letter.
By letter dated April 4, 2006, the Office referred appellant to Dr. Frank Little, Jr., a
Board-certified otolaryngologist, for an evaluation to determine whether he had an employmentrelated hearing loss. Dr. Little obtained an audiogram on April 19, 2006. The audiogram
reflected testing at frequency levels including those of 500, 1,000, 2,000 and 3,000 cycles per
second (cps) and revealed decibel losses on the left of 20, 10, 10 and 15 respectively and on the
right of 15, 10, 15 and 10.1 Dr. Little diagnosed very mild high frequency sensory loss.
On May 2, 2006 the Office’s medical adviser reviewed Dr. Little’s report and
audiometric test results. The medical adviser concluded that appellant had a bilateral sensory
hearing loss but that it was not ratable.
In a letter dated May 4, 2006, the Office advised appellant that his claim had been
accepted for bilateral hearing loss.
By decision dated June 22, 2006, the Office denied his claim for a schedule award
because his hearing loss was not ratable.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 provides
for compensation to employees sustaining permanent loss, or loss of use, of specified members
of the body. The Act, however, does not specify the manner in which the percentage loss of a
member shall be determined. The method used in making such determination is a matter which
rests in the sound discretion of the Office. For consistent results and to ensure equal justice, the
Board has authorized the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The American Medical Association, Guides to the Evaluation of
Permanent Impairment, (5th ed. 2001) (A.M.A., Guides), has been adopted by the Office for
evaluating schedule losses and the Board has concurred in such adoption.3

1

Dr. Little did include the results for bone conduction testing on both ears but the results did not reveal a
significant air-bone gap.
2

5 U.S.C. §§ 8101-8193.

3

See 20 C.F.R. § 10.404; Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

2

The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.4 Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at
each frequency are added up and averaged.5 The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss.6 The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied
by five, then added to the greater loss and the total is divided by six to arrive at the amount of the
binaural hearing loss.7 The Board has concurred in the Office’s adoption of this standard for
evaluating hearing losses.8
In order to establish a work-related loss of hearing, the Office requires that the employee
undergo both audiometric and otologic examination; that the audiometric testing precede the
otologic examination; that the audiometric testing be performed by an appropriately certified
audiologist; that the otologic examination be performed by an otolaryngologist certified or
eligible for certification by the American Academy of Otolaryngologist and that the audiometric
and otologic examination be performed by different individuals as a method of evaluating the
reliability of the findings. Office procedures require that all audiological equipment authorized
for testing meet the calibration protocol contained in the accreditation manual of the American
Speech and Hearing Association and that audiometric test results include both bone conduction
and pure tone air conduction thresholds, speech reception thresholds and monaural
discrimination scores. The otolaryngologist’s report must include: date and hour of
examination; date and hour of employee’s last exposure to loud noise; a rationalized medical
opinion regarding the relation of the hearing loss to the employment-related noise exposure and a
statement of the reliability of the tests.9
ANALYSIS
Office procedures advise that a certification must accompany each audiological battery
indicating that the instrument calibration and the environment in which the tests were conducted
met the specified accreditation standards.10 In the present case, the audiograms submitted by
appellant from the employing establishment were not properly certified and reviewed by a
physician. The Office therefore requested further audiometric and otologic evaluation. The
Office properly referred appellant to Dr. Little for further testing.

4

A.M.A., Guides 250.

5

Id.

6

Id.

7

Id.

8

Reynaldo R. Lichtenberger, 52 ECAB 462 (2001).

9

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter
3.600.8(a) (September 1994); see also Luis M. Villanueva, 54 ECAB 666 (2003).
10

Vernon Brown, 54 ECAB 376 (2003).

3

An Office medical adviser reviewed the otologic and audiologic testing performed by
Dr. Little and correctly applied the Office’s standardized procedures to the April 19, 2006
audiogram. Testing for the right ear at frequency levels of 500, 1,000, 2,000 and 3,000 cps
revealed decibel losses of 15, 10, 15 and 10 respectively. These decibel losses were totaled at 50
and divided by 4 to obtain the average hearing loss per cycle of 12.5. The average of 12.5 was
then reduced by the 25 decibel fence (the first 25 decibels are discounted as discussed above) to
equal 0 decibels for the right ear. The 0 was multiplied by the 1.5 resulting in a 0 percent loss
for the right ear. Testing for the left ear at frequency levels of 500, 1,000, 2,000 and 3,000 cps
revealed decibel losses of 20, 10, 10 and 15 respectively. These decibel losses were totaled at 55
and divided by 4 to obtain the average hearing loss per cycle of 13.75. The average of 13.75 was
then reduced by the 25 decibel fence to equal 0 decibels for the left ear. The 0 was multiplied by
1.5 resulting in a 0 percent loss for the left ear. The Office medical adviser properly found that
appellant did not have a ratable hearing loss in either ear under the A.M.A., Guides.
The Board finds that the Office medical adviser applied the proper standards to the
April 19, 2006 audiogram. The result is a nonratable hearing loss bilaterally.11 The Office
medical adviser properly relied on the April 19, 2006 audiogram as it was part of Dr. Little’s
evaluation and met all the Office standards.12
The Office accepted that appellant has an employment-related hearing loss. He would be
entitled to medical benefits related to his hearing loss, including hearing aids, if medically
necessary. However, Dr. Little and the Office medical adviser have concluded that appellant
does not require hearing aids.
CONCLUSION
The Board finds that appellant has not established a ratable loss of hearing such that he is
entitled to a schedule award.

11

To determine the binaural hearing loss, the lesser loss is multiplied by five and added to the greater loss and
divided by six. Appellant has a zero percent binaural hearing loss.
12

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirement for Medical Reports, Chapter
3.600.8(a)(2) (September 1994).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 22, 2006 is affirmed.
Issued: February 8, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


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

)
)
)
)
)
)
)
)

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

Docket No. 07-2282
Issued: June 3, 2008

Case Submitted on the Record

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

JURISDICTION
On September 5, 2007 appellant filed a timely appeal from the merit decisions of the
Office of Workers’ Compensation Programs dated October 27, 2006 and March 22, 2007
denying his request for a schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the
Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant has established entitlement to a schedule award.
FACTUAL HISTORY
This is the second time this case has been before this Board. On February 26, 1997
appellant, then a 39-year-old mail handler, filed an occupational disease claim alleging that he
had pain and numbness in both his wrists due to unnatural grip in steering of the tow motor and
repeated handling 12-pound hooks in the course of his federal employment. The Office accepted
appellant’s claim for right wrist fracture and bilateral de Quervain’s disease. Appropriate
treatment and compensation benefits were authorized.

On February 1, 2002 appellant filed a claim for a schedule award. After development of
the medical evidence, the Office, in a decision dated December 16, 2002, denied appellant’s
claim for a schedule award and this decision was affirmed by the hearing representative in a
decision dated September 28, 2005. In a decision dated July 21, 2006, this Board vacated the
September 28, 2005 decision. The Board found that there was an unresolved conflict in the
medical evidence between Dr. David Weiss, appellant’s treating osteopath, and the Office
referral physician, Dr. Steven Valentino, an osteopathic orthopedic surgeon, regarding
appellant’s impairment. Specifically, the Board noted that Dr. Weiss found that appellant had a
work-related impairment to his right upper extremity of 43 percent and 28 percent to his left
upper extremity, whereas Dr. Valentino determined that appellant had a 0 percent impairment.
To resolve this conflict of medical opinion, the Board remanded the case to the Office for
referral of appellant to an appropriate impartial medical specialist. The complete facts of this
case are set forth in the Board’s July 21, 2006 decision and are hereby incorporated by
reference.1
By letter dated August 25, 2006, the Office referred appellant to Dr. Barry Silver, a
Board-certified orthopedic surgeon, for an impartial medical examination. In an opinion dated
September 15, 2006, Dr. Silver noted:
“To summarize, I believe [appellant] presently does not have carpal tunnel,
cubital tunnel syndrome or de Quervain’s, but clearly has a cyst with some
persistent pain in his right navicular, but is presently healed at this point.
“I have carefully reviewed all previous doctors’ disability awards and I am quite
familiar with the steps that are suggested in the [American Medical Association],
Guides to the Evaluation of Permanent Impairment]. Chapter 16 clearly gives a
summary of steps to evaluate impairment of the upper extremity and I would like
to state that starting with page 511 in that is clear that [appellant] has had
complete recovery of any sensory loss and therefore should not be awarded any
sensory deficit at the present time. As far as motor power evaluation, which is
part of the evaluation, [appellant] has no motor loss at the present time. He also
has no abnormal motion. [Appellant] has no amputations. At the present time,
evaluating grip and pinch strength as is suggested on page 508 16.8b, [he] clearly
has at the present time normal grip and normal pinch strength and therefore
should not be awarded anything in terms of impairment of the extremity due to
that. Since he has pretty much resolved his carpal tunnel syndrome clinically, and
since he has resolved his cubital syndrome clinically he, based on assessment of
deficits due to entrapment of compression neuropathy, would fit as per page 495
number 3, which is normal sensibility and normal opposition strength and
therefore should be awarded no impairment based on that either.”
He noted that he was more in agreement with Dr. Valentino than Dr. Weiss. Dr. Silver noted
that, although appellant did not need surgery at the present time, he did still have a cyst in his
navicular and recommended repeat x-rays and magnetic resonance imaging scan. He stated,
1

Docket No. 06-645 (issued July 21, 2006).

2

“[A]lthough [appellant] has in my opinion a zero percent impairment rating, he certainly does at
the present time deserve to see a hand specialist regarding this.” Dr. Silver further noted that
appellant did not have a grip strength problem at the present time.
By letter dated September 22, 2006, the Office asked the Office medical adviser to
review and comment on Dr. Silver’s report. On October 10, 2006 the Office medical adviser
responded that, based on Dr. Silver’s “well-rationalized” report, there is no residual impairment
in either of appellant’s upper extremities. He further noted that there was no measurable
percentage of impairment for cyst in the navicular. Finally, the Office medical adviser noted that
Dr. Silver found appellant’s grip strength to be normal.
By decision dated October 27, 2006, the Office found that appellant had not established
entitlement to a schedule award. The Office noted that the weight of the medical evidence was
represented by the opinion of the impartial medical examiner and was supported by the Office
medical adviser.
By letter dated November 2, 2006, appellant, through his attorney, requested a hearing.
At the hearing held on February 6, 2007, appellant’s attorney argued that Dr. Silver did not
provide objective measurements or list specific tests to support his conclusions. Furthermore,
appellant’s attorney contended that Dr. Silver indicated that appellant still had a cyst in his
navicular that was asymptomatic, but that appellant should still see a hand specialist. He argued
that Dr. Silver’s report was not well reasoned and that appellant should be sent to a different
impartial medical examiner.
In a decision dated March 22, 2007, the hearing representative affirmed the Office’s
October 27, 2006 decision.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 provides
for compensation to employees sustaining permanent loss, or loss of use, of specified members
of the body. The Act, however, does not specify the manner in which the percentage loss of a
member shall be determined. The method used in making such determination is a matter which
rests in the sound discretion of the Office. For consistent results and to ensure equal justice, the
Board has authorized the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The A.M.A., Guides (5th ed. 2001) has been adopted by the Office
for evaluating schedule losses and the Board has concurred in such adoption.3
In situations where there are opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving

2

5 U.S.C. §§ 8101-8193.

3

See 20 C.F.R. § 10.404; Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

3

the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual background, must be given special weight.4
ANALYSIS
In the instant case, this Board previously found that a conflict existed between the
opinion of appellant’s treating osteopath, Dr. Weiss, and the second opinion physician,
Dr. Valentino, with regard to impairment to both of appellant’s upper extremities. Pursuant to
the Board’s remand instructions, the Office referred appellant to Dr. Silver to resolve the
conflict. Dr. Silver reviewed appellant’s medical records and conducted a physical examination.
He then applied the A.M.A., Guides and determined that appellant had no impairment.
Specifically, Dr. Silver noted, citing page 511 of the A.M.A., Guides, that appellant had no
sensory loss, no motor loss, no abnormal motion and no amputations. Referring to the grip and
pinch strength tests on page 508 of the A.M.A., Guides, he noted that appellant had normal grip
and pinch strength and that he would therefore not be entitled to any impairment due to that
criteria. Although appellant’s attorney challenges Dr. Silver’s report on the basis that he did not
provide specific measurements, his report is entitled to the special weight accorded an impartial
medical specialist as he found that appellant had no sensory or motor loss and accordingly
specific measurements were not required. Appellant’s attorney correctly notes that Dr. Silver
improperly referenced page 495 of the A.M.A., Guides as this page refers to recovery after
carpal tunnel surgery and would not be appropriate to this case. However, as Dr. Silver properly
found no impairment as appellant had no sensory, motor or motion loss, the fact that he also
indicated that appellant had no impairment under this section is harmless error. Although
Dr. Silver did note that appellant had a cyst in his navicular, he indicated that this caused no
impairment. After reviewing Dr. Silver’s “well-rationalized” report, the Office medical adviser
agreed that there was no residual impairment in either of appellant’s upper extremities. He also
noted that there was no measurable percent of impairment for cyst in the navicular.
The Board finds that Dr. Silver’s conclusion that appellant did not have an impairment in
his upper extremities is well rationalized and based on a proper interpretation of the A.M.A.,
Guides. He cites appropriate pages of the A.M.A., Guides for support and explains his findings.
Furthermore, the Office medical adviser agreed that appellant had no impairment. As appellant
was referred to Dr. Silver for resolution of the conflict in the medical evidence, his wellrationalized opinion must be given special weight.5 Accordingly, the Office properly found that
appellant had no impairment to his upper extremities.
CONCLUSION
The Board finds that the Office properly determined that appellant has not established
entitlement to a schedule award.

4

Manuel Gill, 52 ECAB 282 (2001).

5

Solomen Polen, 51 ECAB 341, 343 (2000).

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 22, 2007 and October 27, 2006 are affirmed.
Issued: June 3, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
NORTHERN CALIFORNIA HEALTH CARE
SYSTEM, Martinez, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 19-1609
Issued: February 12, 2020

Case Submitted on the Record

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

JURISDICTION
On July 23, 2019 appellant filed a timely appeal from a June 24, 2019 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish an occupational
disease in the performance of duty, as alleged.
FACTUAL HISTORY
On March 29, 2019 appellant, then a 41-year-old medical support assistant, filed an
occupational disease claim (Form CA-2) alleging that she developed arthritis in the back, knees,
1

5 U.S.C. § 8101 et seq.

and hips while in the performance of duty. She claimed that her primary duties were sedentary
and that her condition was caused by her workstation which was not “ergonomically stable.”
Appellant indicated that she first became aware of the condition on April 16, 2018 and first
attributed the condition to factors of her federal employment on October 1, 2018. She related that
she came to the realization that her conditions were work related because she was sitting in a chair
in her workstation answering the telephone and, as she leaned forward, she felt pain over her lower
back, which worsened over time. Appellant stopped work on March 22, 2019.
In support of her claim, appellant submitted a series of x-ray reports. In a November 26,
2018 report, Dr. Vincent Wong, a specialist in family medicine, found that appellant’s left knee xray revealed mild degenerative changes. In a March 7, 2019 report, he noted that x-ray of
appellant’s lumbar spine revealed moderately advanced multilevel degenerative changes. In a
March 18, 2019 report, Dr. Samuel Choi, a Board-certified radiologist, related that x-rays of
appellant’s bilateral hips revealed mild-to-moderate degenerative changes.
In a March 27, 2019 note, appellant’s supervisor indicated that appellant had declined
ergonomic evaluations on multiple occasions and had declined both a standing desk and a new
chair. Appellant’s leave issues were also summarized.
In an April 25, 2019 report, Dr. Patricia Wiggins, a Board-certified specialist in
occupational medicine, noted that appellant’s lumbar pain began on April 16, 2018 and that it
worsened when bending, sitting, and standing. She also related that appellant had bilateral hip
pain, which worsened with sitting and walking. Regarding appellant’s medical history,
Dr. Wiggins related that appellant was a chronic pain patient with end-stage osteoarthritis in the
hip, and spine, with milder osteoarthritis in the knees, who had been vocationally retrained after
being out of the workforce for more than two years. She related appellant’s diagnoses of
osteochondrosis of the lumbar spine and bilateral post-traumatic osteoarthritis of the hips.
Dr. Wiggins opined that appellant’s spine and hip conditions, more likely than not, were “not
caused or aggravated by factors of employment.”
In a development letter dated April 9, 2019, reissued on May 15, 2019, OWCP informed
appellant that the evidence of record was insufficient to establish her claim. It advised her of the
type of factual and medical evidence needed and provided a questionnaire for her completion.
OWCP afforded appellant 30 days to submit additional evidence. Appellant did not respond.
By decision dated June 24, 2019, OWCP denied appellant’s claim finding that the factual
evidence of record was insufficient to establish an occupational disease claim. Specifically, it
explained that appellant failed to respond to OWCP’s request for a detailed statement regarding
the work activities that contributed to her claimed condition. OWCP also noted that appellant
failed to submit sufficient medical evidence to establish a diagnosed medical condition causally
related to the employment injury. It concluded, therefore, that the requirements had not been met
to establish an injury as defined by FECA.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 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 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the identified employment factors.6
Appellant’s burden of proof includes the submission of a detailed description of the
employment factors which he or she believes caused or adversely affected a condition for which
compensation is claimed.7
Rationalized medical opinion evidence is required to establish causal relationship.8 The
opinion of the physician must be based on a complete factual and medical background of the
employee, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
established employment factors.9

2

Id.

3
S.D., Docket No. 19-1240 (issued December 11, 2019); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

A.S., Docket No. 19-0704 (issued September 11, 2019); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

20 C.F.R. § 10.115; M.C., Docket No. 18-1278 (issued March 7, 2019); L.M., Docket No. 13-1402 (issued
February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
6

See D.S., Docket No. 19-0925 (issued September 25, 2019); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

7

A.M., Docket No. 19-1269 (issued December 4, 2019). S.J., Docket No. 17-1798 (issued February 23, 2018).

8

S.D., supra note 3; P.S., Docket No. 19-0549 (issued July 26, 2019).

9

Id.; see also A.S., Docket No. 18-1488 (issued March 11, 2019).

3

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an occupational
disease in the performance of duty, as alleged.
Appellant alleged that she had arthritis in the back, knees, and hips and that she believed
these conditions were causally related to her federal employment because she developed pain when
leaning forward to answer her telephone, and because she did not have an ergonomic workstation.
However, she did not submit a detailed statement describing the employment-related activities that
she believed contributed to her condition. Appellant did not indicate how long she had worked in
her present position, why she considered her workstation not to be “ergonomically stable,” how
frequently she needed to lean forward to answer the telephone, or why she had to lean to reach her
telephone. As such, appellant’s description of the implicated employment factors was vague and
failed to provide specific detail to determine the manner in which she sustained her alleged
condition.10
By development letters dated April 9 and May 15, 2019, OWCP informed appellant that
the evidence submitted was insufficient to establish that she suffered from an occupational disease
as alleged. It asked her to complete an attached questionnaire describing what employment factors
she believed caused or contributed to her condition and requested medical evidence establishing
that her medical condition was causally related to employment factors. Appellant did not respond
to OWCP’s development letters. She bears the burden of submitting a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of a
disease or condition.11
Accordingly, as appellant has not described the employment factors alleged to have caused
her injury, the Board finds that she has not met her burden of proof to establish an injury in the
performance of duty, as alleged. As such, the medical evidence need not be addressed.12
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an occupational
disease in the performance of duty, as alleged.

10

See A.M., supra note 7; C.L., Docket No. 19-0042 (issued April 17, 2019).

11

D.C., Docket No. 18-0314 (issued September 24, 2019); S.C., Docket No. 18-1242 (issued March 13, 2019);
Woodhams, supra note 6.
12

A.M., supra note 7; see E.V., Docket No. 19-0447 (issued June 25, 2019).

4

ORDER
IT IS HEREBY ORDERED THAT the June 24, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 12, 2020
Washington, DC

Patricia H. Fitzgerald, Deputy 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Colorado Springs, CO, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-783
Issued: June 20, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 12, 2013 appellant filed a timely appeal from a January 29, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP) which denied additional
schedule award. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than three percent impairment of the left upper
extremity for which she received a schedule award.
FACTUAL HISTORY
On September 4, 2007 appellant, then a 56-year-old rural carrier, filed an occupational
disease claim alleging that she sustained inflamed left wrist tendons and arm as a result of
repetitive motion in the performance of duty. She did not stop work. OWCP accepted
1

5 U.S.C. § 8101 et seq.

appellant’s claim for tenosynovitis of the left hand and wrist. On October 2, 2008 appellant
underwent left extensor tendon transfer and left de Quervain’s release. She stopped work and
received disability compensation. On December 13, 2008 appellant returned to light duty for
four hours per day.
OWCP accepted that on October 1, 2009 appellant sustained a recurrence of disability
due to the National Reassessment Process. She was placed on the periodic rolls. On May 31,
2011 appellant was referred to vocational rehabilitation.
In a June 19, 2012 report, Dr. William V. Watson, a Board-certified orthopedic surgeon
and second opinion examiner, provided an accurate history of injury and reviewed appellant’s
records. He noted that she underwent a left extensor tendon transfer and left de Quervain’s
tendinitis release. Upon examination, Dr. Watson observed normal range of motion of the thumb
with the exception that she had approximately -25 degrees flexion contracture of the left thumb
at the metacarpophalangeal joint and slightly diminished interphalangeal flexion. He also noted
tenderness at the base of the thumb and over the previously released tendons on the radial aspect.
Range of motion of the wrists further revealed some limitation of wrist extension to
approximately 25 degrees, but other wrist range of motion was within normal limits. Dr. Watson
opined that appellant’s accepted conditions of tenosynovitis of the left hand and wrist were still
active and that her current symptoms were related to her accepted injury.
On July 9, 2012 appellant filed a schedule award claim. In a May 31, 2012 impairment
evaluation form, Dr. Jack L. Rook, Board-certified in physical medicine and rehabilitation, noted
diagnoses of thumb extensor tendon rupture and wrist de Quervain. He submitted a QuickDASH
score of 65 and a range of motion report. For her thumb extensor condition, Dr. Rook
determined that appellant had class 1 diagnoses according to Table 15-2. He utilized grade
modifiers 3 based on Functional History (GMFH), 1 based on Physical Examination (GMPE),
and 3 based on Clinical Studies (GMCS). For her wrist condition, Dr. Rook determined that she
had class 1 diagnosis and grade modifiers 3 based on GMFH, 1 based on GMPE and 1 based on
GMCS. He concluded that appellant had four percent upper extremity impairment for her left
thumb and three percent upper extremity impairment for her left wrist for a total of seven percent
combined upper extremity impairment.
On January 10, 2013 OWCP referred appellant’s schedule award claim to the district
medical adviser. In a January 15, 2013 report, Dr. Morley Slutsky, Board-certified in
occupational medicine and district medical adviser, noted her accepted condition of tenosynovitis
of the left hand and wrist and reviewed her history, including the statement of accepted facts. He
provided an accurate history of injury and noted that appellant underwent left extensor indicis
and left de Quervain’s release. Dr. Slutsky reported a date of maximum medical improvement of
June 19, 2012, the date of Dr. Watson’s second opinion examination and stated that he used
Dr. Watson’s findings for final rating calculations.
Utilizing the sixth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (6th ed. 2009) (hereinafter, A.M.A., Guides), Dr. Slutsky opined that
appellant had one percent impairment due to left wrist tenosynovitis and two percent impairment
due to left thumb extensor tendon rupture, which resulted in a total left upper extremity
impairment of three percent. For her left wrist tenosynovitis, he determined that appellant had a

2

class 1 diagnosis according to Table 15-3.2 Dr. Slutsky reported a grade modifier 1 based on
functional history3 because appellant did not document having to perform functional
modifications in order to achieve self-care activities and a grade modifier 1 for physical
examination due to tenderness over the area where the tendon resides.4 He applied the net
adjustment of zero and found that appellant had one percent upper extremity impairment for left
wrist tenosynovitis. For her left thumb extensor, Dr. Slutsky determined that appellant had a
class 1 diagnosis according to Table 15-2.5 He reported a grade modifier 1 based on functional
history due to her ability to perform self-care activities without modifications6 and a grade
modifier 1 for physical examination due to tenderness.7 Dr. Slutsky applied the net adjustment
formula of zero and found that appellant had six percent left digit impairment. He converted her
digit impairment using Table 15-128 and determined that appellant had two percent left upper
extremity impairment. Thus, Dr. Slutsky concluded that appellant had a combined total of three
percent impairment for the left upper extremity.
On January 29, 2013 OWCP granted a schedule award for three percent impairment of
the left upper extremity impairment based on Dr. Slutsky’s report. The award ran for a period
June 19 to August 23, 2012 for 7.32 weeks.
LEGAL PRECEDENT
The schedule award provision of FECA9 and its implementing regulations10 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides
has been adopted by OWCP as the appropriate standard for evaluating schedule losses.11

2

A.M.A., Guides 395-97.

3

Id. at 406.

4

Id. at 408.

5

Id. at 391-94.

6

Id. at 406.

7

Id. at 408.

8

Id. at 421.

9

5 U.S.C. § 8107.

10

20 C.F.R. § 10.404.

11

R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB 143 (2000); see also 20 C.F.R. § 10.404.

3

Effective May 1, 2009, OWCP adopted the sixth edition of the A.M.A., Guides as the
appropriate edition for all awards issued after that date.12
In determining impairment for the upper extremities under the sixth edition of the
A.M.A., Guides, an evaluator identifies the impairment class for the diagnosed condition (CDX),
which is then adjusted by grade modifiers based on GMFH, GMPE and GMCS.13 The net
adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).14
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the percentage of
impairment using the A.M.A., Guides.15
ANALYSIS
Appellant’s claim was accepted for tenosynovitis of the left hand and wrist. On July 9,
2012 she filed a claim for a schedule award. The Board finds that medical evidence of record
establishes no more than three percent impairment for appellant’s left upper extremity.
In support of her claim, appellant submitted a May 31, 2012 impairment evaluation form
from Dr. Rook, who found that appellant had seven percent impairment for the left upper
extremity. He utilized Table 15-2 to determine that appellant had four percent upper extremity
impairment for left thumb condition and three percent upper extremity impairment for her left
wrist condition for a total of seven percent impairment of the left upper extremity. The Board
notes that Dr. Rook provided a conclusion regarding impairment, but he did not provide any
explanation for how he reached his conclusion. Dr. Rook did not provide any findings on
examination or medical rationale for how he determined appellant’s diagnosis-based impairment
or grade modifiers. He merely circled numbers on an impairment evaluation form. The Board
also notes that Dr. Rook also did not indicate which edition of the A.M.A., Guides he used for
his impairment calculations. A medical opinion is of limited probative value if it contains a
conclusion unsupported by medical rationale.16 Accordingly, the Board finds that Dr. Rook’s
impairment rating is of diminished probative value.
In a January 15, 2013 medical adviser report, Dr. Slutsky determined that appellant had
three percent impairment for the left upper extremity. He explained that the sixth edition of the
A.M.A., Guides utilized a diagnosis-based impairment method and that range of motion
impairment was only used as a physical adjustment factor or if no other approach is available.
Utilizing Table 15-3 and Table 15-2, Dr. Slutsky determined that appellant had one percent
12

Federal (FECA) Procedure Manual, Part 3 -- Claims, Schedule Awards, Chapter 3.700, Exhibit 1
(January 9, 2010).
13

A.M.A., Guides 383-419.

14

Id. at 411.

15

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

16

T.M., Docket No. 08-975 (February 6, 2009); S.E., Docket No. 08-2214 (issued May 6, 2009).

4

impairment for left wrist tenosynovitis and two percent impairment for left thumb condition for a
total of three percent impairment for the upper extremity.
The Board finds that the medical adviser properly applied the sixth edition of the A.M.A.,
Guides to rate impairment to appellant’s left wrist condition. Dr. Slutsky reviewed the medical
evidence and determined that appellant had no more than three percent impairment for the left
upper extremity under the sixth edition of the A.M.A., Guides. His rating is in accordance with
the protocols pertaining to upper extremity impairment determinations and represents the weight
of medical opinion. Appellant did not submit other medical evidence, which conformed to the
A.M.A., Guides, that establishes that he is entitled to greater impairment than that which was
granted by OWCP.
On appeal, counsel contends that the schedule award did not include all of the disability,
pain, weakness, scars, and thumb impairment and noted that Dr. Rook provided a greater
impairment rating. As previously noted, however, Dr. Rook did not provide any explanation for
his impairment rating, and thus, his report is of limited probative value.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she has
more than a three percent impairment of her left upper extremity for which she received a
schedule award.17

17

The Board notes that appellant submitted additional evidence following the January 29, 2013 decision. Since
the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the
Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57
ECAB 126 (2005). Appellant may submit that evidence to OWCP along with a request for reconsideration.

5

ORDER
IT IS HEREBY ORDERED THAT the January 29, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 20, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6