United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hendersonville, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Freddie E. Watkins, for the appellant
Office of Solicitor, for the Director

Docket No. 10-870
Issued: December 21, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 17, 2010 appellant filed a timely appeal from a November 23, 2009 merit
decision 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 this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she is entitled to a
schedule award for the right upper extremity greater than the 27 percent awarded.
On appeal appellant’s representative asserts that the opinion of the referee physician is
insufficient to carry the weight of the medical evidence since the Office did not provide a correct
statement of accepted facts as it did not include that appellant was on total disability in 2004 and
did not return to limited duty until 2005; that he was not informed of the correct edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter
A.M.A., Guides),1 to be used in calculating a schedule award; and that he did not include the
1

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

scapula or preexisting osteoarthritis of the hand in his calculation. Appellant further asserted
that, in calculating the schedule award, the Office erred by not including preexisting conditions
or a strength calculation under Table 16-35 of the A.M.A., Guides; and that her claim should be
expanded.
FACTUAL HISTORY
On September 17, 2002 appellant, then a 55-year-old rural carrier, filed an occupational
disease claim, alleging that her postal duties caused calcific tendinitis. She had stopped work on
September 13, 2002. On October 30, 2002 Dr. R.C. Estes, a Board-certified orthopedic surgeon,
performed diagnostic arthroscopy with limited debridement with anterior subacromial
decompression, and distal clavical resection and excision of a calcific deposit with rotator cuff
repair. The Office accepted that appellant sustained employment-related tendinitis of the right
shoulder on November 7, 2002,2 and Dr. Ethan R. Wiesler, Board-certified in orthopedic
surgery, performed a second arthroscopic procedure with right subacromial bursectomy and
distal clavicle resection on October 28, 2003. Appellant received appropriate compensation and
returned to part-time modified duty on November 17, 2003 and to full-time modified duty on
December 15, 2003.
By decision dated May 24, 2005, the Office found that appellant’s actual earnings as a
modified rural carrier fairly and reasonably represented her wage-earning capacity and reduced
her compensation accordingly. On April 11, 2007 appellant filed a recurrence claim, alleging
that on April 2, 2007 she stopped work due to shoulder pain and scapular dyskinesis. In a
June 19, 2007 decision, the Office denied her recurrence claim.3
On December 26, 2007 appellant filed a schedule award claim, and submitted a
December 10, 2007 report in which Dr. Erik C. Johnson, a Board-certified orthopedist, noted
right shoulder physical examination findings of forward flexion to 40, abduction of 60, external
rotation of 60, and internal rotation of 20. She had positive impingements signs and diffuse
tenderness through the shoulder region with a 50 percent strength deficit in forward flexion and
abduction. Dr. Johnson diagnosed status post multiple right shoulder surgeries with adhesive
capsulitis and secondary periscapular winging and advised that appellant had reached maximum
medical improvement and that she could perform no work duties with the right upper extremity.
He stated that, under the fifth edition of the A.M.A., Guides, appellant had 10 percent
impairment for a distal clavicle resection, a total 20 percent impairment for diminished flexion,
abduction and internal rotation, and 18 percent strength deficit impairment, for a total 48 percent
impairment of the right upper extremity.
In a January 4, 2008 report, an Office medical adviser reviewed the medical evidence
including Dr. Johnson’s report. He advised that maximum medical improvement was reached on
December 10, 2007 and found that appellant was entitled to a 27 percent impairment rating based
2

The record also indicates that the accepted condition is disorder of bursae and tendons in the shoulder region,
right.
3

Appellant did not appeal either the May 24, 2005 loss of wage-earning capacity decision or the June 19, 2007
decision denying her recurrence claim.

2

on loss of motion and resection arthroplasty with distal clavicle excision. The Office medical
adviser noted that the A.M.A., Guides precluded a rating for decreased strength in the presence
of decreased motion, painful conditions or deformities.
By decision dated February 20, 2008, appellant was granted a schedule award for 27
percent loss of use of the right arm, for a total of 82.24 weeks, to run from December 10, 2007 to
July 21, 2009.4 She retired on disability effective May 28, 2008. On July 2, 2008 appellant
requested reconsideration arguing that an incorrect schedule award pay rate was used and that a
conflict in medical evidence had been created between the opinions of Dr. Johnson and the
Office medical adviser. In an August 11, 2008 report, Dr. Jonathan D. Sherman, a Boardcertified neurosurgeon, noted appellant’s complaint of right shoulder pain radiating to her midbiceps and winging of the right scapula. He provided neurological examination findings, noting
a normal sensory examination and advised that he could not determine strength in appellant’s
right upper extremity due to significant pain. Dr. Sherman stated that he had nothing to offer
appellant from a neurosurgical standpoint to treat her pain and recommended that she follow-up
with her primary care provider. Appellant also submitted copies of the Office’s procedure
manual, Board decisions, and unsigned and unidentified medical reports.
The Office determined that a conflict in medical evidence had been created between the
opinion of Dr. Johnson and the Office medical adviser, and on September 12, 2008 referred
appellant, along with a statement of accepted facts, a set of questions, and the medical record, to
Dr. George C. Green, a Board-certified orthopedic surgeon, for an impartial evaluation. The
Office asked that he provide an impairment rating in accordance with the fifth edition of the
A.M.A., Guides.
In an October 6, 2008 report, Dr. Green noted the history of injury, appellant’s complaint
of right shoulder limited motion and pain, and his review of the medical record. He provided
physical examination findings including asymmetry in the right shoulder when compared to the
left and mild winging of the right scapula with 10/10 tenderness to palpation of the anterior
shoulder and parascapular region. Dr. Green provided right shoulder range of motion findings of
50/60 forward elevation, 40/40 extension, 60/65 abduction, 10/10 adduction, 85/85 external
rotation and 10/10 internal rotation. Sensory examination of the right upper extremity
demonstrated a slight decrease in sensation to light touch over the lateral brachial arm and volar
aspect of the ring and middle fingers with a negative Tinel’s sign over the carpal tunnel and no
evidence of muscle atrophy in the hand. Dr. Green advised that rotator cuff muscle strength was
difficult to complete due to appellant’s subjective complaints of pain. He advised that, in
accordance with the fifth edition of the A.M.A., Guides, under Figure 16-40, flexion of 50
degrees yielded 9 percent impairment, and extension of 40 degrees yielded 1 percent impairment
rating; that, under Figure 16-43, abduction of 40 degrees yielded 6 percent impairment, and
adduction of 10 degrees yielded 1 percent impairment; and that, under Figure 16-46, external
rotation of 85 degrees yielded no impairment, and internal rotation of 65 degrees yielded
2 percent impairment, for a total 19 percent impairment of the right upper extremity based on
loss of range of motion. Dr. Green also determined that, because appellant had undergone a
4

An initial schedule award dated February 20, 2008 stated that appellant was granted a schedule award for “27
percent for loss of right arm.” A corrected version, also dated February 20, 2008, stated that the award was “27
percent for loss in right arm.”

3

resection arthroplasty of the distal clavicle, under Table 16-27, she was entitled to 10 percent
impairment. He then utilized the Combined Values Chart and found that the 19 percent
impairment for loss of range of motion, when combined (using the Combined Values Chart) with
then 10 percent impairment for resection arthroplasty, resulted in a total 27 percent right upper
extremity impairment. Dr. Green further noted that an additional impairment rating was not
granted for loss of strength because, as described in the A.M.A., Guides, impairment ratings
should be based, for the most part, on anatomic impairment, because strength testing is
influenced by subjective factors, and that decreased strength could not be rated in the presence of
decreased motion, painful conditions, deformity or absence of parts that prevent effective
application of maximal force in the region being evaluated.
By report dated October 23, 2008, an Office medical adviser reviewed Dr. Green’s report
and advised that he had correctly applied the A.M.A., Guides, finding that appellant had a 27
percent impairment of the right upper extremity. In an October 29, 2008 decision, the Office
denied modification of the February 20, 2008 decision, finding that the proper pay rate had been
used for schedule award compensation purposes and that Dr. Green’s report constituted the
weight of the medical evidence.
On September 25, 2009 appellant requested reconsideration, arguing that the schedule
award pay rate was incorrect, that the statement of accepted facts was incorrect because it did not
state that she was on total disability beginning in January 2004 and did not return to full duty
until 2005, that the claimed recurrence of disability in 2007 was improperly denied, that
Dr. Green was not informed that the fifth edition of the A.M.A., Guides should be used, and that
his report was insufficient to carry the weight of the medical evidence because he did not give an
impairment rating for carpal tunnel syndrome, scapular winging and osteoarthritis of the hands.
She submitted treatment notes from Dr. Paul Walker, Board-certified in family medicine, dated
from January 25, 1996 to May 29, 2007. On January 25, 1996 Dr. Walker advised that appellant
had osteoarthritis of the hands, and in 2000 diagnosed myofascial pain and generalized
fibromyalgia. He also diagnosed sinusitis, bronchitis, restless leg syndrome, chronic pain
syndrome, urinary tract infections, gastroesophageal reflux disease, and right shoulder bursitis
and tendinitis. In a November 18, 2008 report, Dr. Johnson diagnosed right shoulder adhesive
capsulitis with secondary scapular winging. He advised that appellant’s physical examination
was unchanged, that work-related injuries had not resolved and were permanent and irreversible,
and that she was disabled from all work using her right upper extremity. An October 3, 2007
magnetic resonance imaging (MRI) scan of the cervical spine demonstrated degenerative disc
disease at C3-4 and C4-5, diffuse bulging at C5-6 and mild bulging at C6-7. Appellant also
submitted notes from an occupational therapist dated February 27 to March 13, 2003, unsigned
and unidentified progress notes, a right lower extremity ultrasound report dated December 7,
2005 and duplicates of evidence previously of record.5
5

The duplicate evidence consisted of a January 27, 2003 report from Dr. Kenneth Shauger, a Board-certified
neurologist, reports dated February 17 to March 13, 2003 from Dr. Margaret O. Burke, a Board-certified physiatrist,
a February 3, 2003 electrodiagnostic study of the right upper extremity that demonstrated no evidence of a brachial
plexus lesion and mild carpal tunnel syndrome, a March 4, 2003 right brachial plexus MRI scan that was normal,
and an April 5, 2007 MRI scan of the right shoulder that was interpreted as compatible with tendinosis with respect
to the rotator cuff tendon with no evidence of tear and findings compatible with postsurgical changes and/or trauma
involving the region of the acromioclavicular joint.

4

By decision dated November 23, 2009, the Office denied modification of the prior
decisions. It noted that appellant submitted no new argument with regard to the pay rate issue,
and did not submit new medical evidence addressing a permanent impairment. The Office
concluded that Dr. Green properly reviewed the evidence and determined appellant’s impairment
in accordance with the A.M.A., Guides.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act,6 and its
implementing federal regulations,7 set forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss, or loss of use, of scheduled members or
functions of the body. However, the Act does not specify the manner in which the percentage of
loss shall be determined. For consistent results and to ensure equal justice under the law for all
claimants, the Office has adopted the A.M.A., Guides as the uniform standard applicable to all
claimants.8 For decisions after February 1, 2001, the fifth edition of the A.M.A., Guides is used
to calculate schedule awards.9 For decisions issued after May 1, 2009, the sixth edition will be
used.10
The Act identifies members such as the arm, leg, hand, foot, thumb and finger; functions
such as loss of hearing and loss of vision and organs to include the eye. Section 8107(c)(22) of
the Act provides for the payment of compensation for permanent loss of any other important
external or internal organ of the body as determined by the Secretary of Labor who has made
such a determination and pursuant to the authority granted in section 8107(c)(22), added the
breast, kidney, larynx, lung, penis, testicle, tongue, ovary, uterus/cervix and vulva/vagina to the
schedule.11
It is the claimant’s burden to establish that he or she sustained a permanent impairment of
a scheduled member or function as a result of an employment injury.12 Before the A.M.A.,
Guides, can be utilized, a description of impairment must be obtained from the claimant’s
physician. In obtaining medical evidence required for a schedule award, the evaluation made by
the attending physician must include a description of the impairment including, where
applicable, the loss in degrees of active and passive motion of the affected member or function,
the amount of any atrophy or deformity, decreases in strength or disturbance of sensation or
other pertinent descriptions of the impairment. This description must be in sufficient detail so
that the claims examiner and others reviewing the file will be able to clearly visualize the
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

10

FECA Bulletin No. 09-03 (issued March 15, 2009).

11

5 U.S.C. § 8107; J.W., 59 ECAB 308 (2008).

12

Tammy L. Meehan, 53 ECAB 229 (2001).

5

impairment with its resulting restrictions and limitations.13 Office procedures provide that, after
obtaining all necessary medical evidence, the file should be routed to the Office medical adviser
for an opinion concerning the nature and percentage of impairment.14
Section 8123(a) of the Act provides that, 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.15 When the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.16
ANALYSIS
At the time the Office issued the February 20, 2008 schedule award, the fifth edition of
the A.M.A., Guides was in effect.17 The Board finds that appellant did not meet her burden of
proof to establish that she is entitled to a schedule award for the right upper extremity greater
than the 27 percent awarded.
Regarding her argument on appeal that Dr. Green, the referee physician, was not
provided a correct statement of accepted facts because it did not advise him that appellant was on
total disability in 2004 and did not return to limited duty until 2005, a search of the record does
not show that appellant filed a claim for disability compensation during that period.18 Appellant
also asserted that the Office failed to inform Dr. Green that the fifth edition of the A.M.A.,
Guides was to be used in rating her impairment. The record, however, indicates that Dr. Green
was provided a set of questions that clearly informed him the fifth edition was to be used.
Appellant argues that Dr. Green did not consider preexisting arthritis of the hands. It is
appellant’s burden, however, to establish that he or she sustained a permanent impairment to a
scheduled member.19 It is well established that preexisting impairments to a scheduled member
are to be included when determining entitlement to a schedule award,20 and in this case,
Dr. Walker mentioned that appellant had osteoarthritis of the hands in a brief treatment note in
1996. This report was submitted after Dr. Green’s examination, and neither Dr. Walker nor
13

Patricia J. Penney-Guzman, 55 ECAB 757 (2004).

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002); see J.P., 60 ECAB ___ (Docket No. 08-832, issued November 13, 2008).
15

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

16

Manuel Gill, 52 ECAB 282 (2001).

17

Supra note 9.

18

The record indicates that, after a claim for compensation for the period November 17 through 28, 2003,
appellant did not file a claim for compensation until April 11, 2007 when she filed a recurrence claim, that was
denied by decision dated June 19, 2007.
19

A.L., 60 ECAB ___ (Docket No. 08-1730, issued March 16, 2009).

20

Carol A. Smart, 57 ECAB 340 (2006).

6

Dr. Johnson provided an impairment rating for the hands, that is listed as a separate scheduled
member.21 There is therefore no probative evidence to establish entitlement to an additional
schedule award for a preexisting impairment of the hands. Regarding the scapular winging
diagnosis, there is no specific section of the A.M.A., Guides describing a scapular impairment on
its own. As discussed below, Dr. Green carefully examined appellant’s entire right upper
extremity and provided a proper analysis in accordance with Chapter 16 of the A.M.A., Guides
in reaching his conclusion that appellant had 27 percent right upper extremity impairment. The
Board thus concludes that these arguments on appeal are without merit.
In his comprehensive October 6, 2008 report, Dr. Green noted his review of the record
and provided physical examination findings. He advised that, in accordance with the fifth
edition of the A.M.A., Guides, under Figure 16-40, flexion of 50 degrees yielded 9 percent
impairment, and extension of 40 degrees yielded 1 percent impairment rating;22 that, under
Figure 16-43, abduction of 40 degrees yielded 6 percent impairment, and adduction of 10
degrees yielded 1 percent impairment;23 and that, under Figure 16-46, external rotation of 85
degrees yielded no impairment, and internal rotation of 65 degrees yielded 2 percent
impairment,24 for a total 19 percent impairment of the right upper extremity based on loss of
range of motion. Dr. Green also determined that, because appellant had undergone a resection
arthroplasty of the distal clavicle, under Table 16-27, she was entitled to 10 percent
impairment.25 He then utilized the Combined Values Chart and found that the 19 percent
impairment for loss of range of motion, when combined with then 10 percent impairment for
resection arthroplasty, resulted in a total 27 percent right upper extremity impairment.26
Dr. Johnson also properly found that an additional impairment rating was not granted for
loss of strength because, as described in the A.M.A., Guides, impairment ratings should be
based, for the most part, on anatomic impairment, because strength testing is influenced by
subjective factors, and that decreased strength could not be rated in the presence of decreased
motion, painful conditions, deformity or absence of parts that prevent effective application of
maximal force in the region being evaluated. While he assigned as 18 percent impairment for
strength deficit, the A.M.A., Guides does not encourage the use of strength as an impairment
rating because strength measurements are functional tests influenced by subjective factors that
are difficult to control and the A.M.A., Guides for the most part is based on anatomic
impairment. Thus, the A.M.A., Guides does not assign a large role to such measurements. Only
in rare cases should strength be used, and only when it represents an impairing factor that has not
been otherwise considered adequately.27 Dr. Johnson provided no explanation as to why he
21

5 U.S.C. § 8107(c)(1), (3).

22

A.M.A., Guides supra note 1 at 476.

23

Id. at 477.

24

Id. at 479.

25

Id. at 506.

26

Id. at 604.

27

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

7

assigned 18 percent impairment for strength deficit. Thus, without any explanation or rationale,
his impairment rating based on abnormal strength is of diminished probative value and is
insufficient to establish an increased schedule award.28
With her September 25, 2009 reconsideration request, appellant submitted additional
medical evidence. None of the reports, however, included an impairment evaluation and were
thus insufficient to establish a new conflict in medical evidence. The Board therefore concludes
that the Office properly found that the weight of the medical evidence rested with the opinion of
Dr. Green, the referee physician, who correctly determined, in accordance with the fifth edition
of the A.M.A., Guides, that appellant had 27 percent right upper extremity impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she is
entitled to a schedule award for her right upper extremity greater than the 27 percent awarded.
ORDER
IT IS HEREBY ORDERED THAT the November 23, 2009 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: December 21, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

28

James R. Taylor, 56 ECAB 537 (2005).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
PHILADELPHIA VETERANS
ADMINISTRATION MEDICAL CENTER,
Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

Appearances:
Richard A. Daniels, for the appellant
Office of Solicitor, for the Director

Docket No. 12-1776
Issued: August 5, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 16, 2012 appellant, through her representative, filed a timely appeal of the
February 23, 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 established that she sustained employment-related back
and left leg and ankle injuries on May 18, 2011, as alleged.
On appeal, appellant’s representative contends that the May 18, 2011 incident occurred as
alleged. He states that OWCP’s denial of appellant’s claim was based on an unreliable statement
of Shirley Sherman, a food service supervisor, regarding the claimed incident. The
1

5 U.S.C. § 8101 et seq.

representative further contends that the testimony of Phillip Jett, an employee, is consistent with
appellant’s description of the May 18, 2011 incident. He argues that a photograph taken by
appellant, but not contained in the case record establishes that a leg on a chair from which she
fell was bent. The representative notes that, while an investigative memorandum indicates that
photographs of the chair were taken, these pictures are not part of the record. He asserts that the
testimony of a nurse practitioner and the fact that appellant sought medical treatment
immediately following the May 18, 2011 incident establishes that she sustained a work-related
left ankle injury. The representative states that appellant did not receive a copy of all of the
evidence upon which OWCP relied in making its determination. Lastly, he asserts that the
December 27, 2011 medical report of Dr. Mathew J. Abraham, a Board-certified physiatrist,
establishes that appellant sustained an injury causally related to the May 18, 2011 incident.
FACTUAL HISTORY
On May 18, 2011 appellant, then a 56-year-old transportation clerk, filed a traumatic
injury claim alleging that on that date she hurt her lower back, buttocks and left ankle when she
fell while trying to sit in a chair in the food service area at work.
By letter dated June 6, 2011, OWCP advised appellant that the evidence submitted was
insufficient to establish her claim. It requested that she submit factual and medical evidence,
including a rationalized medical opinion from an attending physician describing a history of
injury and providing dates of examination and treatment, findings, test results, a diagnosis
together with an explanation as to how the reported work incident caused or aggravated her
medical condition.
In a June 8, 2011 progress note, Dr. Natacha S. Falcon, a Board-certified physiatrist,
noted appellant’s complaint of back pain and provided a history of her medical, family and social
background. She listed findings on physical examination and diagnostic testing. Dr. Falcon
diagnosed L4-5 disc protrusion with left greater than right foraminal stenosis, L5-S1 disc
protrusion with B foraminal stenosis and S1 compression and a positive slump sit on the right.
In a July 8, 2011 decision, OWCP denied appellant’s claim, finding that the evidence
established that the May 18, 2011 incident occurred as alleged, but that the medical evidence did
not establish a condition causally related to the accepted employment incident.
By letter dated July 21, 2011, appellant requested an oral hearing before an OWCP
hearing representative.
Unsigned x-ray reports dated May 18, 2011 contained the typed name of Dr. Scott R.
Akers, a Board-certified radiologist, and stated that there was no evidence of a fracture or
dislocation of the left ankle or coccyx.
An employee injury report dated May 18, 2011 from the employing establishment health
unit provided a history that appellant sat down in a broken chair which collapsed. She bruised
her left side and twisted her ankle. Following an examination, appellant was diagnosed as
having an exacerbation of underlying sciatica, herniated disc strain/sprain of the lumbosacral

2

spine and strain/sprain of the left deltoid ligament. Discharge instructions dated May 18, 2011
from the health unit stated that appellant should leave work due to severe illness or injury.
In a May 25, 2011 report, Dr. Falcon obtained a history that the onset of pain in
appellant’s right buttock with radiation into the right and left posterior thighs and posterior leg
and left foot occurred suddenly after a fall from a chair at work on May 18, 2011. She also
obtained a history of her medical treatment, family and social background. Dr. Falcon listed
findings on physical and psychological examination. She diagnosed right lumbar radicular pain
and positive slump sit on the right pending imaging. In progress notes dated June 8 and 24 and
August 8, 2011, Dr. Falcon reiterated these diagnoses. In a June 8, 2011 report, she advised that
appellant could not work while undergoing medical treatments. On June 9, 2011 Dr. Falcon
reported that appellant should return to her office in three weeks for follow-up and reevaluation.
In a June 24, 2011 report, she advised that appellant could not return to work until reevaluation
in four weeks. In progress notes dated July 12 and 15, 2011, Dr. Falcon indicated that appellant
received a transforaminal epidural steroid injection at right L5-S1 to treat her back condition. In
an August 8, 2011 report, she requested that appellant be excused for treatment of her lower
lumbar pain.
In a June 8, 2011 report, Dr. Nancy M. Major, a Board-certified radiologist, reported that
a magnetic resonance imaging (MRI) scan of the lumbar spine showed questionable disc
protrusion from L5-S1 to the left S1 neural foramen at the lateral recess. She noted, however,
that the evaluation was limited due to motion artifact and advised correlation with a physical
examination. The MRI scan also showed multilevel degenerative change of the lumbar spine at
L4-5 and L5-S1. There was moderate narrowing of the neural foramina bilaterally at L5-S1.
In a July 12, 2011 report, Dr. Christopher Plastaras, a Board-certified physiatrist, advised
that appellant had degeneration of the lumbar or lumbosacral intervertebral disc. Also, on
July 12, 2011 he stated that she received a transforaminal epidural steroid injection at right L5S1 to treat her back condition.
In a July 26, 2011 report, Dr. Mia Everett, a Board-certified psychiatrist, obtained a
history that in May 2011 appellant fell while on duty at work. She listed findings on
psychological examination. Dr. Everett diagnosed a single moderate episode of major depressive
disorder on Axis I, personality disorders and mental retardation on Axis II, sciatica, lumbosacral
disc protrusion and stenosis on Axis III, psychosocial and environmental stressors which
included occupation, chronic pain and bereavement on Axis IV and a global assessment
functioning score of 65 on Axis V.
Also, on July 26, 2011 Dr. Mahendra Takashi Bhati, a Board-certified psychiatrist,
reviewed and agreed with Dr. Everett’s findings. Appellant had moderate major depressive
disorder in the context of pain and disability. She also had chronic sciatica pain with a history of
orthopedic injuries.
In progress notes dated September 6, 2011, Dr. Seth A. Schran, a Board-certified
physiatrist, obtained a history that appellant had experienced low back pain since her May 18,
2011 work injury. He listed findings on physical examination and reviewed diagnostic test
results. Dr. Schran diagnosed L4-5 disc protrusion with left greater than right foraminal stenosis,

3

L5-S1 disc protrusion with B foraminal stenosis and S1 compression and positive slump sit on
the right.
In a December 27, 2011 report, Dr. Abraham stated that he first saw appellant on May 25,
2011 following an incident which occurred at the employing establishment. She had pain in her
back which radiated into the right leg down to the foot. Dr. Abraham stated that a lumbar MRI
scan showed a disc bulge at L4-L5 and L5-S1 with bilateral foraminal stenosis at L5-S1. Prior to
this injury, appellant had pain in her back that radiated into the left leg which was treated with
injections and therapy. This injury had resolved at the time of the May 2011 incident. Based on
his evaluation of appellant, Dr. Abraham advised that her right-sided back and leg symptoms
were a result of her May 18, 2011 fall. Also, she sustained a recurrence of her left-sided
symptoms since the May 18, 2011 fall. Dr. Abraham opined that these symptoms were
aggravated by the fall. On December 28, 2011 he reported physical examination findings and
reviewed diagnostic test results. Dr. Abraham diagnosed L4-5 disc protrusion with left greater
than right foraminal stenosis, L5-S1 disc protrusion with B foraminal stenosis and S1
compression and positive slump sit on the right.
An August 15, 2011 police report prepared by Eric Fellows, an employing establishment
investigative officer, included interviews from employees and appellant regarding the May 18,
2011 incident. Tierney E. Stanley stated that appellant was facing administrative removal action.
Pending an investigation of the charges against her, she was scheduled to report to a detail
assignment in the food and nutrition section on May 18, 2011 and she allegedly fell out of a chair
prior to the start of work.
Ms. Sherman, a food service supervisor, related that prior to the start of work on May 18,
2011 appellant was asked to sit in a conference room to wait for an assignment. She was
informed by appellant at 7:15 a.m. that her legs went out from under her when she stood up.
Appellant caught herself and sat back down in a chair. At 8:00 a.m. Nadine Richardson, a work
leader, informed Ms. Sherman that appellant had fallen somewhere in the kitchen. Ms. Sherman
asked appellant about this incident and she responded that she had fallen and was picked up by
an employee. Appellant did not know what time she fell. Ms. Sherman asked everyone in the
kitchen if they saw her fall and no one witnessed the incident. Appellant complained that
everything hurt and Ms. Sherman instructed her to write down a description of the incident.
Ms. Sherman notified her own supervisor, Troy Thompson, about the incident.
Officer Fellows reported that following the May 18, 2011 incident appellant was treated
at employee health and was released to go home. Based on his investigation, he determined that
the evidence did not rise to the level to effectively prosecute her for fraud beyond a reasonable
doubt. However, it was at least likely that appellant’s official statement was not credible.
In a follow-up report dated May 26, 2011, Officer Fellows interviewed Ms. Sherman
again on May 23, 2011. She did not witness the May 18, 2011 incident. Ms. Sherman stated that
it was not probable for someone to fall unnoticed in the kitchen between 7:00 a.m. and 8:00 a.m.
because there were too many people in there at that time of the morning. She incorrectly stated
during her prior interview that Ms. Richardson came to her at 8:00 a.m.

4

On May 26, 2011 Mr. Thompson, a food service supervisor, stated that he did not
observe appellant fall out of a chair on May 18, 2011. He checked the chair she was sitting in
and it appeared to be in good working order.
On May 27, 2011 Ms. Richardson, a co-employee, stated that around 10:00 a.m. on
May 18, 2011 she saw appellant sitting in a chair in the conference room. Appellant told her that
she had fallen and a man helped her get up. She was trying to get herself together. Appellant
refused medical treatment, stating that she had a sciatic nerve and her leg would give out. She
also had tape on her toes. Ms. Richardson notified her supervisor about the incident. She did not
see appellant fall.
On June 17, 2011 Mr. Jett, a co-employee, stated that on May 18, 2011 he saw appellant
sitting in the break room. While in an office next to the break room, he heard a slight noise that
sounded like the back of a chair had hit the wall. Mr. Jett returned to the break room where he
saw appellant in a crouched position attempting to get back into her chair. He did not see her on
the floor. Appellant refused Mr. Jett’s help and asked him not to touch her. She placed herself
into the chair.
During a June 23, 2011 interview, appellant stated that she had a prior sciatic nerve
condition. She was preparing to sit in a chair when she experienced a sharp pain in her left
buttocks that shot down to her left foot. Appellant tried to brace herself by holding onto the arms
of two chairs, but fell to the floor. She hurt her right side and left ankle. No one saw appellant
fall. An unknown man walked past her after the fall and helped her get back into a chair. After
the fall appellant saw that the chair leg was bent. She took a picture of the chair with her cell
phone. Appellant was treated at the employing establishment’s health unit.
During an interview on May 24, 2011, Sarah Foster-Chang, an employing establishment
nurse practitioner, stated that appellant was treated on May 18, 2011. She obtained a history that
when appellant sat in a chair, the chair collapsed and she landed on the floor on her coccyx and
twisted her ankle. Nurse Foster-Chang advised that appellant could have hurt her ankle as it was
swollen slightly in an area explained by her description of it buckling underneath her. Her prior
medical condition could have been worsened by this injury but, Nurse Foster-Chang could not
determine the extent of her injuries because she would not submit to a full examination due to
being sensitive to touch.
Officer Fellows stated that photographs of the area where appellant fell and chairs were
taken. He determined that no employee saw her fall or on the floor after the fall. An
examination of the chairs involved in the incident showed them in good working order. There
were no safety issues in the area of the alleged fall. Officer Fellows reiterated his prior
conclusion that there was no evidence of fraud and that appellant’s official statement was likely
not credible.
In a February 23, 2012 decision, an OWCP hearing representative affirmed the denial of
appellant’s claim as modified to reflect that the claim was denied on the grounds there was no
evidence to establish that the May 18, 2011 incident occurred as alleged.

5

LEGAL PRECEDENT
An employee seeking benefits under FECA2 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 filed within applicable time limitation;
that an injury was sustained while in the performance of duty as alleged; and that any disability
and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.5
An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.6
Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s statement,
however, must be consistent with the surrounding facts and circumstances and his or her
subsequent course of action. An employee has not met his or her burden in establishing the
occurrence of an injury when there are such inconsistencies in the evidence as to cast serious
doubt upon the validity of the claim. Circumstances such as late notification of injury, lack of
confirmation of injury, continuing to work without apparent difficulty following the alleged
injury and failure to obtain medical treatment may, if otherwise unexplained, cast doubt on an
employee’s statement in determining whether a prima facie case has been established.7
ANALYSIS
The Board finds that appellant established that she fell onto the floor as she attempted to
sit on a chair on May 18, 2011 at work. As noted, an employee’s statement alleging that an
incident occurred at a given time and in a given manner is of great probative value and will stand
unless refuted by strong or persuasive evidence.8 Appellant’s account of the May 18, 2011
2

Id.

3

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

4

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999); Elaine Pendleton, supra
note 3.
5

T.H., 59 ECAB 388 (2008).

6

R.T., Docket No. 08-408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005).

7

Betty J. Smith, 54 ECAB 174 (2002).

8

See cases cited, supra note 6.

6

incident was consistent throughout the case record. Her narrative paralleled the medical histories
obtained by the employing establishment’s health unit, Nurse Foster-Chang and Drs. Falcon and
Everett.9 Furthermore, appellant filed her traumatic injury claim promptly on May 18, 2011 and
received subsequent contemporaneous medical attention. Although Ms. Sherman contended that
appellant did not sustain the May 18, 2011 fall as neither herself nor any employees, which
included Mr. Thompson, Ms. Richardson and Mr. Jett, witnessed the incident, she acknowledged
that appellant reported the incident to her on the date of injury and that she then reported the
incident to her own supervisor, Mr. Thompson. Mr. Stanley contended that the May 18, 2011
fall incident did not occur as appellant was facing administrative removal action pending an
investigation. This contention is not substantiated by the case record. In view of the totality of
the evidence, the Board finds that an employment incident occurred on May 18, 2011, as alleged.
Thus, appellant has met the first component of fact of injury.
Regarding the second component of fact of injury, as OWCP had not evaluated the
medical evidence due to not finding a compensable factor, the Board will remand the case to
OWCP for review of the medical records and a determination as to whether the established
employment incident resulted in a compensable injury. Following this and any further
development deemed necessary, it shall issue a de novo decision on the merits of the claim.
CONCLUSION
The Board finds that appellant has established that the May 18, 2011 incident occurred at
the time, place and in the manner alleged. The case is remanded to OWCP for proper review of
the medical evidence of record to determine whether appellant sustained an employment-related
injury and her entitlement to any compensation benefits.

9

See Caroline Thomas, 51 ECAB 451 (2000) (a consistent history of the injury as reported on medical reports, to
the claimant’s supervisor and on the notice of injury can be evidence of the occurrence of the incident).

7

ORDER
IT IS HEREBY ORDERED THAT the February 23, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further consideration
consistent with this decision.
Issued: August 5, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Atlanta, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-270
Issued: August 15, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On November 16, 2010 appellant filed a timely appeal from an August 5, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act (FECA)1 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 an employment-related permanent impairment
entitling him to a schedule award pursuant to 5 U.S.C. § 8107.
FACTUAL HISTORY
On June 7, 2002 appellant, then a 52-year-old tractor trailer operator, filed a traumatic
injury (Form CA-1) alleging that he sustained injuries in a motor vehicle accident on
June 4, 2002. He indicated that he was rear-ended while in the performance of duty. OWCP
1

5 U.S.C. § 8101 et seq.

accepted the claim for cervical and lumbar strains, left knee contusion and herniated L4-5 and
L5-S1 discs. Appellant stopped working and received compensation for wage loss.2
In a report dated April 11, 2003, Dr. Courtney Shelton, an internist, opined that appellant
had 25 percent whole person impairment under the fifth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides). By report
dated September 7, 2007, Dr. Harvey Leslie, a pain management specialist, provided an
“addendum” to the April 11, 2003 report, and also opined that appellant had 25 percent whole
person permanent impairment.
OWCP referred the evidence to its medical adviser for review. In a report dated
November 26, 2007, the medical adviser noted that OWCP does not recognize whole person
impairments. The medical adviser stated that the evidence did not describe motor or sensory loss
and opined that appellant had no permanent impairment.
By decision dated December 3, 2007, OWCP found appellant was not entitled to a
schedule award based on the medical evidence of record. On June 13, 2008 appellant submitted
a Form CA-7 (claim for compensation) indicating that he was claiming a schedule award.3 In a
report dated July 3, 2008, OWCP’s medical adviser stated that an impairment report must
describe a sensory or motor deficit using the appropriate tables in the A.M.A., Guides.
In a report dated October 6, 2008, Dr. Mark Freeman, an osteopath, provided a history
and results on examination. He diagnosed protruding disc of the lumbar spine and positive
electromyogram (EMG) to L5-S1. Dr. Freeman opined that under the A.M.A., Guides appellant
had 28 percent permanent impairment to the “Lower Extremity” based on sensory and motor
loss. In a report dated December 15, 2008, he provided results on examination and stated that
the protruding disc was directly caused by the motor vehicle accident at work.
OWCP’s medical adviser, in a report dated January 14, 2009, stated that the
December 15, 2008 report findings, such as decreased sensation along L5 and C5-6, were not in
agreement with prior medical evidence in the record. The medical adviser recommended a
second opinion evaluation.
OWCP referred appellant for a second opinion examination by Dr. Joseph Tatum, an
orthopedic surgeon. By report dated March 13, 2009, Dr. Tatum provided a history and results
on examination. He diagnosed multiple psychosomatic symptoms and stated that the work injury
had resolved. Dr. Tatum did not discuss a permanent impairment.
In a report dated March 16, 2009, OWCP’s medical adviser stated that there were no
objective findings of a spinal nerve root injury and no impairment under the A.M.A., Guides. By

2

The record contains a January 4, 2006 letter indicating that appellant had elected retirement benefits instead of
FECA benefits.
3

Appellant had previously submitted a Form CA-7 with regard to a schedule award on November 8, 2007.

2

decision dated April 24, 2009, OWCP found the medical evidence did not establish a permanent
impairment to a scheduled member of the body.4
In a report dated May 4, 2009, Dr. Freeman indicated that an EMG and magnetic
resonance imaging (MRI) scan were positive for an L5-S1 radiculopathy. By report dated
June 9, 2009, he opined that a lumbar MRI scan showed nerve root impingement and this was
the cause of the lower extremity impairment. In a decision dated October 15, 2009, OWCP
again found appellant was not entitled to a schedule award.
The record contains a November 16, 2009 “impairment rating” performed by an
occupational therapist. The report includes examination results and identifies tables from the
sixth edition of the A.M.A., Guides. The impairment ratings were 13 percent to the upper
extremity based on motor deficit, 11 percent to the lower extremity based on sciatic nerve motor
deficit, and 1 percent for left knee range of motion.
On December 21, 2009 OWCP advised that appellant’s claim had also been accepted for
aggravation of degenerative cervical intervertebral disc. By report dated February 2, 2010,
Dr. Freeman discussed appellant’s permanent impairment, stating that the specific impairment
rating tables were discussed in the November 16, 2009 report. He stated that he agreed with the
impairment rating calculations and stated that the 13 percent impairment to the upper extremity
was due to the newly accepted cervical degenerative disc disease. Dr. Freeman stated that the
impairments had been documented by MRI scan results.
In a report dated February 11, 2010, OWCP’s medical adviser opined that appellant did
not have a permanent impairment under the A.M.A., Guides. The medical adviser stated that the
ratings provided by Dr. Freeman were based on appellant’s complaints that lacked reliability and
physical examination findings. According to the medical adviser an unreliable functional history
could not be used for ratings purposes under the A.M.A., Guides.
On May 11, 2010 appellant requested reconsideration of his claim. OWCP again referred
the case to its OWCP medical adviser. In a report dated July 14, 2010, the medical adviser stated
that the November 16, 2009 and February 2, 2010 reports had been carefully reviewed. The
medical adviser stated that there was no documentation of a radiculopathy and radiculopathy
impairment is not based on imaging studies. According to the medical adviser, appellant did
have 10 percent based on loss of range of motion under Table 16-23.
In a decision dated August 5, 2010, OWCP reviewed the case on its merits and denied
modification. It found the medical evidence did not establish a permanent impairment. With
respect to the left knee, OWCP stated “there is no objective finding to support residuals from
your right knee contusion” on June 4, 2002.
LEGAL PRECEDENT
Section 8107 of FECA provides that, if there is permanent disability involving the loss or
loss of use of a member or function of the body, the claimant is entitled to a schedule award for
4

The list of accepted conditions included chronic pain syndrome.

3

the permanent impairment of the scheduled member or function.5 Neither FECA nor the
regulations specify the manner in which the percentage of impairment for a schedule award shall
be determined. For consistent results and to ensure equal justice for all claimants OWCP has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.6 OWCP’s
procedures provide that, effective May 1, 2009, all schedule awards are to be calculated under
the sixth edition of the A.M.A., Guides.7
ANALYSIS
The medical evidence in this case contains opinions from attending physician
Dr. Freeman and OWCP’s medical adviser regarding a permanent impairment. With respect to
the left knee, both Dr. Freeman and the medical adviser found a permanent impairment.
Dr. Freeman reviewed and adopted the calculations in the November 16, 2009 report, which
identified Table 16-3 and found one percent leg impairment. The medical adviser identified
Table 16-23 and found 10 percent impairment based on loss of range of motion. In the August 5,
2010 decision, OWCP appears to find any left knee impairment was not employment related, but
it incorrectly stated that the accepted condition was a right knee contusion. The accepted
condition was a left knee contusion, and moreover the issue of causal relationship is a medical
issue. Neither Dr. Freeman nor OWCP’s medical adviser offered an opinion on causal
relationship between the left knee impairment and the employment injuries.
In addition to the disagreement regarding the left knee impairment, Dr. Freeman and the
medical adviser disagreed with respect to an impairment resulting from cervical and lumbar
conditions. He found impairments to the upper and lower extremities based on nerve root
impairments, while the medical adviser found that the evidence did not establish peripheral nerve
impairments resulting in a permanent impairment.
FECA provides that, if there is a 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 the examination.8 In this case, there is a disagreement between
OWCP’s medical adviser and an attending physician regarding the nature and extent of an
employment-related permanent impairment under the sixth edition of the A.M.A., Guides. The
case will be remanded for referral to a physician properly selected as an impartial medical
examination to provide a rationalized medical opinion on the issue presented.9 After such further
development as OWCP deems necessary, it should issue an appropriate decision.
5

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
6

A. George Lampo, 45 ECAB 441 (1994).

7

FECA Bulletin No. 09-03 (issued March 15, 2009); Federal (FECA) Procedure Manual, Part 3 -- Medical,
Schedule Awards, Chapter 3.700 (January 2010).
8

5 U.S.C. § 8123(a).

9

The Board notes that when a case is referred to a referee physician, it is the referee physician, not OWCP’s
medical adviser, who must resolve the conflict. See Thomas J. Fragale, 55 ECAB 619 (2004).

4

CONCLUSION
The Board finds there is a conflict in the medical evidence and pursuant to 5 U.S.C.
§ 8123(a) the case will be remanded for resolution of the conflict.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 5, 2010 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: August 15, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.P., Appellant
and
DEPARTMENT OF THE TREASURY, U.S.
MINT, Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1869
Issued: September 25, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 21, 2016 appellant, through counsel, filed a timely appeal from an
April 27, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.3

1

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

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence to OWCP after the April 27, 2016 decision was
issued. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, the Board lacks jurisdiction to review this additional evidence. 20 C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether appellant met her burden of proof to establish total disability
beginning February 22, 2015, causally related to her accepted lumbar condition.
FACTUAL HISTORY
On November 20, 2014 appellant, then a 54-year-old tools and parts attendant, filed an
occupational disease claim (Form CA-2) alleging lumbar and left lower extremity conditions due
to performing her employment duties. She identified July 21, 2014 as the date she first realized
her claimed conditions were employment related.
Appellant stopped work on
November 18, 2014. On February 20, 2015 OWCP accepted appellant’s claim for left L5-S1
radiculopathy.
In March and April 2015, appellant filed several claims for compensation (Form CA-7)
for temporary total disability beginning February 22, 2015.4 She submitted reports dated
February 26, 2015, including an attending physician’s report (Form CA-20) and a duty status
report (Form CA-17), from Dr. Gabriel Rosales, a Board-certified general surgeon. Dr. Rosales
diagnosed lumbar strain with radiculopathy and advised that appellant was unable to work.
In a March 30, 2015 letter, OWCP requested additional medical evidence establishing
appellant’s disability for work during the period claimed and afforded her 30 days to respond to
its inquiries.
Subsequently, appellant submitted physical therapy reports dated March 11 through
April 1, 2015.
In an April 14, 2015 report, Dr. Zach Broyer, a Board-certified physiatrist, noted that
appellant had been in physical therapy since November 2014 and had been out of work since
November 18, 2014 as ordered by her primary care physician. In another April 14, 2015 report,
he checked a box indicating that she was temporarily totally disabled from employment
activities. On April 22, 2015 Dr. Broyer opined that appellant was unable to work due to
exacerbation of a herniated nucleus pulposus (HNP) and associated radiculopathy at L5-S1.
OWCP referred appellant for a second opinion evaluation with Dr. Willie Thompson, a
Board-certified orthopedic surgeon. In his May 15, 2015 report, Dr. Thompson found that her
accepted condition had resolved and he released her to full-duty work without restrictions. He
explained that appellant’s diagnosis was that of a soft-tissue-type sprain to the lower back, but
nothing more serious. Dr. Thompson further noted that her physical examination was
completely within normal limits.
Effective May 15, 2015, Dr. Broyer released appellant to resume work with a 20-pound
lifting limitation.
4

Although both appellant and the employing establishment acknowledged that she stopped work on
November 18, 2014, appellant did not claim wage-loss compensation dating back to her November 18, 2014 work
stoppage.

2

On June 2, 2015 appellant returned to work in a limited-duty capacity with a 20-pound
lifting restriction.
By decision dated June 9, 2015, OWCP denied appellant’s claim for temporary total
disability beginning February 22, 2015 as the medical evidence submitted was insufficient to
support disability due to the employment injury.
On July 7, 2015 counsel requested a hearing before a representative of OWCP’s Branch
of Hearings and Review. Appellant submitted additional medical evidence, including an
April 28, 2015 report from Dr. Delana Wardlaw, a Board-certified family practitioner, who noted
that appellant had been under her care since September 5, 2014 for lumbar radiculopathy.
Dr. Wardlaw reported that appellant was treated with medication and physical therapy and her
symptoms improved temporarily, but that she could not participate in her daily activities.
Appellant’s last visit was March 27, 2015 at which time she was referred to orthopedic surgery
for ongoing care.
Effective September 4, 2015, the employing establishment was unable to accommodate
appellant’s work restrictions. Accordingly, OWCP accepted the claim for recurrence of
disability, and later placed her on the periodic compensation rolls.
The hearing regarding the June 9, 2015 decision was held before an OWCP hearing
representative on September 16, 2015.
Appellant provided testimony and the hearing
representative held the case record open for 30 days to allow for the submission of additional
evidence.
After the hearing, appellant submitted reports dated October 9, 2015 from Dr. Broyer
reiterating his opinion that she was capable of working with restrictions. His diagnoses included
lumbosacral intervertebral disc disorder with radiculopathy, and lumbosacral intervertebral disc
degeneration and displacement. Dr. Broyer also noted: “L4-5 and L5-S1 disc degeneration with
disc fusion and bilateral S1 radiculopathy, improving.”
By decision dated November 4, 2015, OWCP’s hearing representative affirmed the
June 9, 2015 decision.
On February 2, 2016 counsel requested reconsideration and appellant submitted progress
reports dated October 27 and December 8, 2015 from Dr. Broyer. Appellant also submitted a
March 1, 2016 report from a physician assistant.
By decision dated April 27, 2016, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
Section 8102(a) of FECA5 sets forth the basis upon which an employee is eligible for
compensation benefits. That section provides: “The United States shall pay compensation as
specified by this subchapter for the disability or death of an employee resulting from personal
5

5 U.S.C. § 8102(a).

3

injury sustained while in the performance of his duty....” In general the term “disability” under
FECA means “incapacity, because of an employment injury, to earn the wages the employee was
receiving at the time of injury.”6 This meaning, for brevity, is expressed as disability for work.7
For each period of disability claimed, an employee has the burden of proving that he or she was
disabled for work as a result of the accepted employment injury.8 Whether a particular injury
caused an employee to be disabled for employment and the duration of that disability are medical
issues, which must be proved by the preponderance of the reliable probative and substantial
medical evidence.9
Disability is not synonymous with physical impairment, which may or may not result in
an incapacity to earn wages. An employee who has a physical impairment causally related to his
or her federal employment, but who nonetheless has the capacity to earn the wages he or she was
receiving at the time of injury, has no disability as that term is used under FECA, and is not
entitled to compensation for loss of wage-earning capacity. The Board will not require OWCP to
pay compensation for disability in the absence of any medical evidence directly addressing the
particular period of disability for which compensation is claimed. To do so would essentially
allow employees to self-certify their disability and entitlement to compensation.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish total disability
beginning February 22, 2015 causally related to her accepted lumbar condition. While OWCP
accepted that appellant sustained a left L5-S1 radiculopathy, she bears the burden of proof to
establish through medical evidence that she was disabled during the claimed time period and that
her disability was causally related to the accepted injury.11 The Board finds that she submitted
no rationalized medical evidence explaining how her accepted left L5-S1 radiculopathy disabled
her from all work on or after February 22, 2015.
In his reports, Dr. Broyer opined that appellant was temporarily totally disabled from
employment activities and was “unable to work due to exacerbation of HNP and radiculopathy at
L5-S1.” Although Dr. Broyer opined that appellant was totally disabled for work, his opinion is
conclusory in nature, and fails to explain in detail how the accepted medical condition was
responsible for appellant’s disability and why she could not perform her federal employment.12
Consequently, the Board finds that Dr. Broyer’s reports are insufficient to establish appellant’s
claim for wage-loss compensation for temporary total disability beginning February 22, 2015.
6

20 C.F.R. § 10.5(f); see also William H. Kong, 53 ECAB 394 (2002).

7

See Roberta L. Kaaumoana, 54 ECAB 150 (2002).

8

See William A. Archer, 55 ECAB 674 (2004).

9

See Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

10

Id.

11

See supra notes 7 and 8. See also V.P., Docket No. 09-337 (issued August 4, 2009).

12

See J.J., Docket No. 15-1329 (issued December 18, 2015).

4

In reports dated February 26, 2015, Dr. Rosales advised that appellant was unable to
work due to her lumbar radiculopathy. The Board finds that, although Dr. Rosales provided an
opinion of appellant’s disability, he failed to provide a probative medical opinion explaining how
appellant’s accepted condition caused her to be disabled for employment on the dates at issue.13
Thus, the report of Dr. Rosales is insufficient for appellant to meet her burden of proof to
establish that she was totally disabled for work due to the employment injuries for the period
claimed.
Appellant also submitted an April 28, 2015 report from Dr. Wardlaw indicating that she
could not participate in her daily activities. The Board finds that this medical report also failed
to provide a probative medical opinion on whether appellant was disabled on the dates at issue
due to her accepted conditions. Therefore, the report of Dr. Wardlaw is insufficient to establish
appellant’s claim.14
Appellant also submitted evidence from physician assistants and physical therapists.
These documents do not constitute competent medical evidence because neither a physician
assistant nor a physical therapist is considered a “physician” as defined under FECA.15 As such,
the reports from the physician assistants and physical therapist are insufficient to meet
appellant’s burden of proof.
The Board finds that appellant has not submitted sufficiently rationalized medical opinion
evidence to establish total disability beginning February 22, 2015 causally related to the
employment injuries. Thus, appellant has not met her burden of proof to establish that she is
entitled to compensation for total disability for the claimed period.
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 total disability
beginning February 22, 2015 causally related to her accepted lumbar condition.

13

See J.G., Docket No. 12-1348 (issued February 25, 2013).

14

Id.

15

5 U.S.C. § 8101(2); Sean O’Connell, 56 ECAB 195 (2004) (physician assistants); Jennifer L. Sharp, 48 ECAB
209 (1996) (physical therapists). See also Gloria J. McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2
ECAB 208, 211 (1949) (a medical issue such as causal relationship can only be resolved through the submission of
probative medical evidence from a physician).

5

ORDER
IT IS HEREBY ORDERED THAT the April 27, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 25, 2017
Washington, DC

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

Colleen Duffy Kiko, 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
__________________________________________
M.C., Appellant
and
U.S. POSTAL SERVICE, MANAGER SIOUX
FALLS PROCESSING & DISTRIBUTION
CENTER, Sioux Falls, SD, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 16-1452
Issued: May 10, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 6, 2016 appellant filed a timely appeal from a June 6, 2016 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish a bilateral shoulder
condition causally related to the February 10, 2016 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of OWCP’s June 6, 2016 decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. Thus, the Board may not consider the new evidence. See 20 C.F.R. § 501.2(c)(1).

On appeal appellant contends that the evidence submitted is sufficient to establish a
work-related injury.
FACTUAL HISTORY
On April 19, 2016 appellant, then a 55-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on February 10, 2016 he sustained a bilateral shoulder injury
while lifting a package at work. In an accompanying narrative statement dated March 31, 2016,
he described the February 10, 2016 incident. Appellant related that he felt a sharp pain in both
shoulders when he lifted a package into a container. He thought it was arthritis due to his
advanced age. Appellant noted that he had lifted heavy packages every day while working at the
employing establishment for 28 years. At home, he continued to experience problems with his
shoulders. Appellant sought medical evaluation by a physician who diagnosed shoulder
tendinitis and opined that the condition was work related. He received physical therapy which he
stated was not helpful.
In a February 11, 2016 medical report from Sanford Clinic Family Medicine, Rebecca
Moan, a certified nurse practitioner, noted that appellant had shoulder pain. She diagnosed
bilateral shoulder pain of unspecified chronicity and shoulder tendinitis.
In an April 5, 2016 letter, Dr. Paul W. DeJong, a Board-certified family practitioner,
certified that appellant was seen in his clinic, Sanford Clinic Family Medicine, for the first time
on February 11, 2016 regarding shoulder pain.
The employing establishment controverted appellant’s claim in an April 21, 2016 letter.
It contended that the statements of appellant and his physician failed to identify a specific date of
injury. The employing establishment stated that appellant should have reported an occupational
disease injury.
In a March 31, 2016 statement, a coworker noted that appellant told him that he was off
work for three days due to bursitis. He related that appellant never mentioned that his injury was
work related. The coworker also related that appellant did not mention a specific date of injury
or that he wished to file an accident report. He noted that appellant told him that his condition
was due to working as a mail handler for 28 years.
By letter dated April 22, 2016, OWCP notified appellant of the deficiencies of his claim
and afforded him 30 days to submit additional medical and factual evidence.
In an April 29, 2016 report, Dr. DeJong noted that appellant continued to have shoulder
pain related to his job. He provided physical examination findings and provided an impression
of chronic pain of both shoulders. Dr. DeJong advised that history, clinical course, and physical
examination were consistent with bilateral rotator cuff tendinitis. He opined that this condition
was related to appellant’s work at the employing establishment which involved moving heavy
packages and boxes. Dr. DeJong noted that repetitive motions were the usual cause of tendinitis.
He concluded that appellant’s condition would likely flare up as long as he continued to work in
the same vocation.

2

On May 12, 2016 appellant provided the dates of his examinations and medical
treatment.
In a June 6, 2016 decision, OWCP denied appellant’s traumatic injury claim as the
medical evidence of record did not contain a medical diagnosis in connection with the accepted
February 10, 2016 employment-related incident. It noted that the medical evidence of record
only contained a diagnosis of pain which was a symptom and not a diagnosis of a medical
condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence3 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.5
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place, and in the manner alleged.6
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.7 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon a complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.8 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a traumatic
injury caused or aggravated by the accepted February 10, 2016 employment incident. Appellant
3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

4

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

6

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

7

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined, respectively).
8

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

9

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

3

failed to submit sufficient medical evidence to establish a bilateral shoulder condition causally
related to the accepted employment incident.
Appellant submitted an April 5, 2016 report from Dr. DeJong who noted that he first
treated appellant on February 11, 2016 for shoulder pain. It is not possible to establish the cause
of a medical condition if the physician has not provided a diagnosis, but only notes pain.10 The
Board has consistently held that pain is a symptom and not a compensable medical diagnosis.11
Because Dr. DeJong failed to provide a medical diagnosis, his opinion is of diminished probative
value. In an August 29, 2016 report, he noted that appellant continued to have shoulder pain
related to his job. Dr. DeJong reported examination findings and diagnosed bilateral rotator cuff
tendinitis. He opined that, based on appellant’s history, clinical course, and physical
examination, appellant’s work duties of moving heavy packages and boxes caused the diagnosed
condition.
Dr. DeJong failed, however, to discuss the specific lifting incident on
February 10, 2016. A physician must provide an opinion on whether the employment incident
described caused or contributed to the claimant’s diagnosed medical condition and support that
opinion with medical reasoning to demonstrate that the conclusion reached is sound, logical, and
rational.12 The Board finds that Dr. DeJong failed to provide a supported medical opinion.
Appellant also submitted a February 11, 2016 note from a certified nurse practitioner who
diagnosed bilateral shoulder pain of unspecified chronicity and shoulder tendinitis. However, the
Board has held that a nurse practitioner is not considered a physician as defined under FECA.13
Thus, her medical findings are of no probative value for purposes of establishing entitlement to
FECA benefits.
The Board finds that appellant has failed to submit rationalized, probative medical
evidence sufficient to establish a bilateral shoulder injury causally related to the February 10,
2016 employment incident. Appellant therefore did not meet his burden of proof.
To the extent that appellant’s statements and the medical evidence indicate that his
bilateral shoulder condition could have been caused by employment factors over one day, he
could file an occupational disease claim.14
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.

10

See A.C., Docket No. 16-1587 (issued December 27, 2016).

11

B.P., Docket No. 12-1345 (issued November 13, 2012); C.F., Docket No. 08-1102 (issued October 2008).

12

See John W. Montoya, 54 ECAB 306 (2003).

13

See C.P., Docket No. 17-0042 (issued December 27, 2016); L.D., 59 ECAB 648 (2008). 5 U.S.C. § 8101(2)
(this subsection defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists,
chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law). See Paul
Foster, 56 ECAB 208 (2004).
14

20 C.F.R. §§ 10.5(q); 10.101; 10.116. See P.M., Docket No. 15-1902 (issued January 28, 2016).

4

CONCLUSION
The Board finds that appellant has failed to meet his burden of proof to establish a
bilateral shoulder condition causally related to the February 10, 2016 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the June 6, 2016 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 10, 2017
Washington, DC

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

Colleen Duffy Kiko, 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
__________________________________________
D.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Francisco, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Hank Royal, for the appellant
Office of Solicitor, for the Director

Docket No. 08-1843
Issued: June 15, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 18, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated May 6, 2008. 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 the Office met its burden of proof to terminate medical benefits for
appellant’s employment-related cervical condition.
FACTUAL HISTORY
The case was before the Board on a prior appeal. In a decision dated March 6, 2006, the
Board affirmed the termination of compensation benefits for the accepted right shoulder strain
and right shoulder impingement.1 The Board also found that the referee physician, Dr. James
Glick, a Board-certified orthopedic surgeon, did not establish that the accepted cervical strain
1

Docket No. 05-1905 (issued March 6, 2006).

had resolved, and therefore the Office did not meet its burden of proof to terminate medical
compensation for that condition. In addition, the Board set aside a July 29, 2005 Office decision
finding that appellant’s March 28, 2005 application for reconsideration was untimely and failed
to show clear evidence of error. The Board found that the application for reconsideration was
timely and the case was remanded for an appropriate decision. The history of the case is
provided in the Board’s prior decision and is incorporated herein by reference.
The July 29, 2005 Office decision made the following findings:
“In reviewing the previous [r]eferee report from Dr. Branick, it is apparent that
the weight of medical evidence not only established that the claimant was not
entitled to compensation or a right shoulder surgery, but also established that the
cervical herniation was related to the work injury of May 31, 1994. As such, the
Office should have expanded the claim to include the cervical herniation as workrelated and erred in not accepting this condition. However, as discussed below,
the weight of medical evidence also determined that the cervical herniation
condition no longer existed per Second Opinion Examiners Dr. Clarence Boyd
and Dr. Stanley Baer as well as Referee Examiners Dr. Richard Dedo and
Dr. James Glick. Therefore, the Office shall expand the claim to include the
condition of cervical herniation for the closed period of May 31, 1994 to
August 20, 2000.”
On remand, the Office requested a supplemental report from Dr. Glick. In a March 23,
2006 letter, it requested that Dr. Glick provide an opinion as to whether there were objective
findings to show continuing residuals of the cervical strain. In a report dated April 4, 2006,
Dr. Glick stated that he had reviewed his prior reports dated October 31, 2001 and June 3, 2002.
He stated that there were no objective findings to explain her symptoms, so there was no
objective evidence of a cervical strain. Dr. Glick stated that an MRI scan in 1994 showed disc
protrusions, but there was no clinical evidence to substantiate the findings.
By decision dated April 11, 2006, the Office found that Dr. Glick’s report established the
cervical strain had resolved and any prior authorization was terminated. Appellant requested an
appeal with the Board. By order dated January 31, 2007, the Board remanded the case for proper
assemblage of the case record.2 In a letter dated May 14, 2007, the Office issued a notice of
proposed termination of medical benefits for the cervical strain, based on the April 4, 2006 report
from Dr. Glick.
In a decision dated June 15, 2007, the Office terminated medical benefits as of
June 15, 2007. It noted that appellant had argued that Dr. Glick was not advised a cervical disc
herniation was an accepted condition. The Office found that Dr. Glick explained his findings
and the only issue on which the Board requested clarification was residuals of the cervical strain.
Appellant requested a review of the written record by an Office hearing representative.
In a decision dated May 6, 2008, the hearing representative affirmed the June 15, 2007
termination decision. The hearing representative found the July 29, 2005 Office decision “was
2

Docket No. 06-1211 (issued January 31, 2007).

2

incorrect in concluding that Dr. Branick’s report established that the claimant’s cervical
herniation was related to her May 31, 1994 employment injury.” The hearing representative also
found that Dr. Glick’s rationale was that there were no objective findings, and therefore even if
the Office had advised him that cervical herniation was an accepted condition, there would not
be a basis for a continuing cervical condition.
LEGAL PRECEDENT
The right to medical benefits for an accepted condition is not limited to the period of
entitlement to compensation for disability. To terminate authorization for medical treatment, the
Office must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.3
ANALYSIS
The Office further developed the medical evidence by requesting a supplemental report
from Dr. Glick. In this regard it is well established that the physician must be provided an
accurate factual background, opinions based on an inaccurate or incomplete background are of
diminished probative value.4 The Office stated in its July 29, 2005 decision that it was
expanding the claim to include a cervical disc herniation. The hearing representative
acknowledged that the Office had stated it was expanding the claim, and did not provide such
information to Dr. Glick or request an opinion as to whether the cervical disc herniation had
resolved. The March 23, 2006 letter, for example, refers only to a cervical strain.5
The hearing representative makes a finding that it was “incorrect” for the July 29, 2005
decision to accept a cervical disc herniation, because the medical evidence was, in his view,
insufficient. But the accepted conditions remain accepted until the Office properly rescinds
acceptance of the condition in accord with well-established precedent.6 At the time of the
request for a supplemental report from Dr. Glick, the accepted conditions were cervical strain
and cervical disc herniation. To the extent that the Office attempted to make a finding in the
July 29, 2005 decision that the condition had resolved as of August 20, 2000, the July 29, 2005
decision was not the proper vehicle for this adverse determination. The July 29, 2005 decision
was a nonmerit decision finding that the application for reconsideration was untimely and failed
to show clear evidence of error. A proper determination that the accepted disc herniation had

3

Furman G. Peake, 41 ECAB 361 (1990).

4

Gwendolyn Merriweather, 50 ECAB 411 (1999) (referee physician was not provided with a proper factual
background).
5

It is not clear whether the Office provided a statement of accepted facts to Dr. Glick. In his April 4, 2006 report,
he referred only to the March 23, 2006 letter.
6

See Delphina Y. Jackson, 55 ECAB 373 (2004).

3

resolved should have been issued in a separate merit decision with appeal rights, in accord with
Office procedures for termination of benefits.7
The Board accordingly finds that Dr. Glick was not provided a proper factual background
and his report did not resolve the issue. The Office did not properly advise Dr. Glick of the
accepted conditions in the case. The hearing representative’s finding that it would not have
mattered to Dr. Glick is inconsistent with the established principle that a physician must be
provided a complete background to support a rationalized medical opinion.8 Dr. Glick was not
properly notified that cervical disc herniation was an accepted condition and he did not provide
an opinion that the condition had resolved. The Office did not meet its burden of proof to
terminate medical benefits in this case.
CONCLUSION
The Board finds that the Office did not meet its burden of proof to terminate medical
benefits for the accepted cervical conditions.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 6, 2008 is reversed.
Issued: June 15, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapters 2.1400.4 and 2.1400.6
(March 1997).
8

See Gwendolyn Merriweather, supra note 4.

4