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

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

Docket No. 11-833
Issued: November 4, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 15, 2011 appellant filed a timely appeal from October 5, 2010 and
January 12, 2011 merit decisions 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 sustained more than a four percent impairment of the left
leg for which she received a schedule award.
On appeal, appellant asserts that her physician’s impairment rating should carry the
weight of the medical evidence. She also contends that an impartial medical examiner
performed a cursory examination while her attending physician provided detailed functional
testing.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on February 2, 1990 appellant, then a 31-year-old clerk, sustained a
lumbar strain and herniated L4-5 disc with radiculopathy while lifting a sack of mail. On
August 22, 1995 Dr. J. Abbott Byrd, III, an attending Board-certified orthopedic surgeon
specializing in surgery of the spine, performed an open excision of the L5-S1 disc, a posterior
lumbar interbody fusion at L5-S1 with tricortical iliac crest bone graft, bilateral posterolateral
spinal fusion at L5-S1 with bone graft and fixation hardware placement. Appellant received
compensation on the periodic rolls effective August 22, 1995. She returned to part-time limitedAppellant received
duty work as a modified distribution clerk on January 8, 1996.2
compensation on the periodic rolls for wage loss.
On July 7, 1998 Dr. Byrd opined that appellant had reached maximum medical
improvement and was able to continue working light duty for four hours a day with permanent
restrictions limiting lifting to 15 pounds. Appellant had 10 percent permanent impairment due to
left-sided lumbar radiculopathy. Dr. Byrd submitted periodic reports through October 2002
finding appellant’s condition unchanged.
In an August 31, 1998 report, an OWCP medical adviser noted that appellant had reached
maximum medical improvement. He found five percent permanent impairment to each lower
extremity based on Table 83 of the fourth edition of the American Medical Association, Guides
to the Evaluation of Permanent Impairment (hereinafter, A.M.A., Guides).3
In a January 11, 2006 report, Dr. Byrd noted decreased sensation in the left heel. He
submitted reports through November 12, 2008.
Appellant retired from the employing establishment on December 31, 2008 and elected to
receive FECA benefits. On January 20, 2010 she claimed a schedule award. In February 17 and
April 26, 2010 letters, OWCP advised appellant to obtain an impairment rating from her
attending physician utilizing the sixth edition of the A.M.A., Guides.
On June 2, 2010 Cindy Free and Rebecca McLain, physical therapists, administered
lower extremity strength tests. Referring to Table 16-124 of the sixth edition of the A.M.A.,
Guides, the therapists found a class 1 impairment of the common peroneal and tibial nerves due
to sensory and motor deficits. A class 1 sensory impairment of the common peroneal nerve had
a mid-range default value of three percent according to Table 16-12. The therapists found a
2

By decision dated July 24, 1996, OWCP issued a wage-earning capacity determination based on appellant’s
actual earnings of $382.00 a week working four hours a day as a modified distribution clerk beginning in
January 1996. On October 18, 1996 it obtained a second opinion from Dr. Felix M. Kirven, an orthopedic surgeon,
who found appellant could work eight hours a day and lift up to 30 pounds. In a March 3, 1997 report, Dr. Byrd
opined that appellant could work six hours a day and lift up to 15 pounds.
3

Table 83, page 130 of the fourth edition of the A.M.A., Guides is entitled “Unilateral Spinal Nerve Root
Impairment Affecting the Lower Extremity.”
4

Table 16-12, pages 534-36 of the sixth edition of the sixth edition of the A.M.A., Guides is entitled “Peripheral
Nerve Impairment (LEI) [lower extremity impairment].”

2

grade modifier for Functional History (GMFH) of two on the American Association of
Orthopedic Surgeons (AAOS) lower limb outcome scale. The therapists found that, as there
were no appropriate grade modifiers for Physical Examination (GMPE) or Clinical Studies
(GMCS), the default value of three percent remained undisturbed. According to Table 16-12, a
class 1 sensory involvement of the tibial nerve equaled two percent impairment of the lower
extremity. Appellant also had a class 1 mild motor deficit of the tibial nerve for strength at 4/5
above the knee, equaling five percent lower extremity impairment. The therapists assigned a
GMFH of two for the AAOS lower limb outcome scale, no net adjustment for GMPE and
GMCS, resulting in two percent lower extremity impairment for sensory deficit and five percent
impairment for motor deficit. The therapists totaled the two and five percent impairments to
equal a seven percent impairment of the left lower extremity. Using the Combined Values Chart,
the therapists combined the 7 percent and 3 percent impairments to equal a 10 percent
impairment of the left lower extremity.
In a June 23, 2010 report, Dr. Byrd reviewed the June 2, 2010 impairment rating prepared
by Ms. Free and Ms. McLain. He concurred with their ratings under the A.M.A., Guides.
Dr. Byrd opined that appellant had a 10 percent impairment of the left lower extremity as set
forth in the June 2, 2010 report.
On July 27, 2010 OWCP referred the June 2, 2010 impairment evaluation, a statement of
accepted facts and the medical record to an OWCP medical adviser for review. In an August 10,
2010 report, the medical adviser noted that Dr. Byrd’s impairment rating did not relate to
appellant’s left lower extremity as it addressed the tibial and peroneal nerves only. He opined
that Dr. Byrd should have rated the sciatic nerve as it originated in the spine. The medical
adviser found that, according to Table 16-12, page 535 of the A.M.A., Guides, appellant had four
percent impairment of the left leg due to a class 1 mild sensory deficit of the sciatic nerve.
OWCP found a conflict of medical opinion between Dr. Byrd, for appellant and OWCP’s
medical adviser, for the government, regarding the appropriate percentage of permanent
impairment. To resolve the conflict, it referred appellant to Dr. Edward W. Gold, a Boardcertified orthopedic surgeon, as impartial medical examiner. A statement of accepted facts and a
copy of the medical record were provided for his review. In a September 20, 2010 report,
Dr. Gold provided a history of injury and treatment and reviewed the statement of accepted facts.
On examination, he noted diffuse tenderness to lumbar palpation, limited range of lumbar
motion, decreased sensation in the toes of both feet, normal deep tendon reflexes in both lower
extremities and negative straight leg raising tests bilaterally. Dr. Gold diagnosed chronic lumbar
pain and left sciatica status post L5-S1 fusion. He opined that “the calculation for sciatic nerve
impairment, which was the proper neurological location attributable to the herniated disc
impingement, would include sensory loss of both the peroneal and tibial nerves.” Dr. Gold did
not find motor loss on examination. He agreed with the medical adviser that appellant had four
percent impairment of the left lower extremity due only to sensory loss in the sciatic nerve.
By decision dated October 5, 2010, OWCP granted appellant a schedule award for four
percent impairment of the left lower extremity. The period of the award ran from September 26
to December 15, 2010.

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In an October 26, 2010 letter, appellant requested a review of the written record. She
asserted that Dr. Gold did not evaluate her properly and that Dr. Byrd’s opinion should be given
weight. Appellant submitted reports dated October 13 to December 22, 2010 from Dr. Byrd,
who noted mechanical lumbar pain and a normal motor and sensory examination of both lower
extremities. She participated in physical therapy in December 2010.
By decision dated and finalized January 12, 2011, an OWCP hearing representative
affirmed the October 5, 2010 schedule award decision. The hearing representative found that
Dr. Gold’s opinion represented the weight of the medical evidence as it was thorough, well
rationalized, based on a complete and accurate history. Also Dr. Gold explained that Dr. Byrd’s
rating was in error.
LEGAL PRECEDENT
The schedule award provisions of FECA5 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. FECA, 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
OWCP. 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 a standard for evaluation of schedule losses and the Board
has concurred in such adoption.6 For schedule awards after May 1, 2009, the impairment is
evaluated under the sixth edition of the A.M.A., Guides, published in 2008.7
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).8 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition (CDX), which is then adjusted by grade modifiers based on Functional
History (GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS).9 The net
adjustment formula is GMFH - CDX + GMPE - CDX + GMCS - CDX.
FECA authorizes the payment of schedule awards only for the permanent impairment of
specified members, organs or functions of the body. No schedule award is payable for a
member, function or organ of the body not specified in FECA or in the regulations.10 Because
5

5 U.S.C. § 8107.

6

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
8

A.M.A., Guides (6th ed. 2008), page 3, section 1.3, “The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.”
9

A.M.A., Guides (6th ed. 2008), pp. 494-531.

10

William Edwin Muir, 27 ECAB 579 (1976).

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neither FECA nor the regulations provide for the payment of a schedule award for the permanent
loss of use of the back or spine,11 no claimant is entitled to such an award.12 Amendments to
FECA, however, modified the schedule award provisions to provide for an award for permanent
impairment to a member of the body covered by the schedule regardless of whether the cause of
the impairment originated in a scheduled or nonscheduled member. As the schedule award
provisions of FECA include the extremities, a claimant may be entitled to a schedule award for
permanent impairment to a limb even though the cause of the impairment originated in the
spine.13
Section 8123 of FECA 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.14 In situations where there exist
opposing medical reports of virtually equal weight and rationale and the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based upon a proper factual background, must be
given special weight.15
Where OWCP secures an opinion from an impartial medical examiner for the purpose of
resolving a conflict in the medical evidence and the opinion from such examiner requires
clarification or elaboration, OWCP has the responsibility to secure a supplemental report from
the examiner for the purpose of correcting the defect in the original opinion.16 If the specialist is
unwilling or unable to clarify or elaborate on his or her opinion as requested, the case should be
referred to another appropriate impartial medical specialist.17
ANALYSIS
OWCP accepted that appellant sustained a lumbar strain, herniated L4-5 disc and leftsided radiculopathy necessitating an L5-S1 discectomy and fusion. Appellant claimed a
schedule award on December 3, 2007. In support of her claim, she submitted July 7, 1998 and
June 23, 2010 impairment ratings by Dr. Byrd, an attending Board-certified orthopedic surgeon,
opining that appellant had a 10 percent impairment of the left leg due to peripheral nerve
impairment originating in the lumbar spine. Dr. Byrd’s June 23, 2010 report was based on
sensory impairment of the common peroneal and tibial nerves and a motor impairment of the
tibial nerve according to Table 16-12 of the sixth edition of the A.M.A., Guides. An OWCP
11

FECA itself specifically excludes the back from the definition of organ. 5 U.S.C. § 8101(19).

12

R.H., Docket No. 11-80 (issued August 15, 2011).

13

Rozella L. Skinner, 37 ECAB 398 (1986).

14

5 U.S.C. § 8123; see Charles S. Hamilton, 52 ECAB 110 (2000).

15

Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

16

Harry T. Mosier, 49 ECAB 688 (1998).

17

Guiseppe Aversa, 55 ECAB 164 (2003).

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medical adviser opined on August 10, 2010 that Dr. Byrd should have assessed only sciatic nerve
impairment. The medical adviser opined that, according to Table 16-12, appellant had a mild
sensory impairment of the sciatic nerve equaling four percent impairment of the left lower
extremity.
OWCP found a conflict between Dr. Byrd and OWCP’s medical adviser regarding the
appropriate percentage of permanent impairment and appointed Dr. Gold, a Board-certified
orthopedic surgeon, as impartial medical examiner. In his September 20, 2010 report, Dr. Gold
noted negative straight leg raising tests bilaterally, sensory loss in the toes of both feet, and
normal reflexes in both legs. He concurred with OWCP’s medical adviser that appellant had
four percent impairment of the left leg due to sciatic nerve impairment, but did not explain how
his clinical findings correlated to a sciatic nerve impairment.18 Also, Dr. Gold opined that the
sciatic nerve impairment “would include sensory loss of both the peroneal and tibial nerves.”
However, he did not explain the medical reasoning for this opinion. The Board notes that Table
16-12 contains separate rating grids for the sciatic, common peroneal and tibial nerves. Dr. Gold
did not set forth why he believed that the sciatic nerve impairment would encompass deficits of
other nerves according to Table 16-12. Therefore, the Board finds that Dr. Gold’s opinion
requires clarification.
As stated, OWCP must obtain a supplemental report from an impartial medical examiner
to cure a deficiency in the original opinion.19 Therefore, the case will be returned to OWCP to
obtain a supplemental, clarifying report from Dr. Gold explaining his rationale for the four
percent impairment rating. Following this and any other development deemed necessary, OWCP
will issue an appropriate decision in the case.
On appeal, appellant asserts that Dr. Gold’s opinion is insufficient as he only performed a
cursory examination designed to corroborate the report of an OWCP medical adviser. As stated,
the case will be remanded to OWCP to obtain a supplemental report from Dr. Gold, followed by
issuance of an appropriate decision.
CONCLUSION
The Board finds that the case is not in posture for a decision.

18

See Richard R. LeMay, 56 ECAB 341 (2005) (to properly resolve a medical conflict, it is the impartial medical
specialist who should provide a reasoned opinion as to the extent of permanent impairment in accordance with the
A.M.A., Guides; an OWCP medical adviser may review the opinion, but the resolution of the conflict is the
responsibility of the impartial medical specialist).
19

Harry T. Mosier, supra note 16.

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 12, 2011 and October 5, 2010 are set aside and the case
remanded to OWCP for further development consistent with this decision.
Issued: November 4, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.C., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Staunton, VA, Employer
__________________________________________

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

Docket No. 10-1889
Issued: March 11, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 6, 2010 appellant filed a timely appeal of the March 26, 2010 nonmerit decision
of the Office of Workers’ Compensation Programs finding that she abandoned her hearing
request.1 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
nonmerit issue in this case.
ISSUE
The issue is whether the Office properly determined that appellant abandoned her request
for a hearing.

1

The last merit decision in this case was the October 19, 2009 Office decision which denied appellant’s claim.
For Office decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal of
Office decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. See 20 C.F.R.
§§ 501.2(c) and 501.3.

FACTUAL HISTORY
On September 14, 2009 appellant, then a 57-year-old letter carrier, filed a traumatic
injury claim alleging that she injured her neck and right shoulder when her vehicle was rearended. She stated that on September 12, 2009 her vehicle was struck in the rear twice while she
was stopped at a red light. Appellant received medical care that same day and returned to work
on September 14, 2009.
In a September 17, 2009 letter, the Office advised appellant that the evidence submitted
was insufficient to establish her claim. It requested that she provide additional medical evidence
providing a medical diagnosis and physician’s opinion regarding how the alleged employment
incident caused or aggravated her claimed injury.
Appellant provided a September 22, 2009 letter from her employer requesting her to seek
damages from a third party. She did not submit any other evidence.
By decision dated October 19, 2009, the Office denied appellant’s claim on the grounds
of insufficient medical evidence to establish that she sustained an injury. It accepted that the
September 12, 2009 incident occurred as alleged but determined that she failed to provide a
medical diagnosis causally related to the automobile accident.
On November 16, 2009 appellant requested a hearing with a hearing representative
regarding the October 19, 2009 decision. She also provided a September 12, 2009 duty status
report and hospital discharge instructions signed by a nurse practitioner.
By letter dated January 27, 2010, the Office’s Branch of Hearings and Review notified
appellant that a telephone hearing was scheduled for March 3, 2010 at 10:00 a.m. eastern time.
It instructed her to call the provided toll free number a few minutes before the hearing time and
enter in the pass code when prompted.
On March 3, 2010 appellant failed to call the toll free number to participate in the
telephonic hearing.
In a decision dated March 26, 2010, the Branch of Hearings and Review found that
appellant abandoned her requested hearing. It found that she received written notification of the
hearing 30 days in advance, but failed to appear. The decision also found that nothing in the
record established that appellant contacted or attempted to contact the Office either prior to or
subsequent to the scheduled hearing to explain her failure to participate. The Office concluded
that she abandoned her hearing request.
LEGAL PRECEDENT
Under the Federal Employees’ Compensation Act and its implementing regulations, a
claimant who has received a final adverse Office decision is entitled to receive a hearing upon
written request within 30 days of the date of the decision for which a hearing is sought.2 Unless
2

5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a).

2

otherwise directed, the Office hearing representative will mail a notice of the time and place of
the hearing to the claimant and any representative at least 30 days before the scheduled date.3
The Office has the burden of proving that it mailed notice of a scheduled hearing to a claimant.4
According to the Office’s procedure manual, a hearing can be abandoned only under very
limited circumstances where all three of the following conditions are present: the claimant has
not requested a postponement; the claimant has failed to appear at a scheduled hearing; and the
claimant has failed to provide any notification for such failure within 10 days of the scheduled
date of the hearing. Under these circumstances, the Branch of Hearings and Review will issue a
formal decision finding that the claimant has abandoned her request for a hearing and return the
case to the district Office.5
ANALYSIS
The record establishes that, on January 27, 2010, in response to appellant’s timely request
for a hearing, the Branch of Hearings and Review mailed an appropriate notice of the scheduled
telephonic hearing to be held on March 2, 2010 at 10:00 a.m. eastern time. The hearing notice
was properly mailed to her address of record. The Board notes that the notice was sent more
than 30 days prior to the scheduled hearing date of March 2, 2010. The record establishes that
appellant did not call at the appointed time. In addition, she failed to request a postponement of
the hearing or explain her failure to appear at the hearing within 10 days of the scheduled
hearing. As all three conditions are met, the Board finds that appellant abandoned her request for
a hearing.6
On appeal, appellant contends that that she did not attend the hearing because she was
working. Her explanation, however, was submitted with her appeal on July 6, 2010, which did
not fall within the 10-day period after the scheduled hearing before the Branch of Hearings and
Review and is insufficient to excuse her abandonment.7
CONCLUSION
The Board finds that the Office properly determined that appellant abandoned her request
for a hearing.

3

20 C.F.R. § 10.617(b).

4

A.B., 58 ECAB 546 (2007); Michelle R. Littlejohn, 42 ECAB 463 (1991).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the Written Record, Chapter
2.1601.6(e) (January 1999). See also G.J., 58 ECAB 651 (2007).
6

See C.T., 60 ECAB __ (Docket No. 08-2160, issued May 7, 2009).

7

See J.S., Docket No. 10-117 (issued August 5, 2010).

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ORDER
IT IS HEREBY ORDERED THAT the March 26, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 11, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Brockton, MA, Employer
__________________________________________

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Docket No. 08-2393
Issued: June 16, 2009

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

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 September 2, 2008 appellant filed a timely appeal of the June 11, 2008 nonmerit
decision of the Office of Workers’ Compensation Programs, which denied reconsideration.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board does not have jurisdiction over the
merits of appellant’s claim.1
ISSUE
The issue is whether the Office properly denied appellant’s March 11, 2008 request for
reconsideration under 5 U.S.C. § 8128(a).

1

The Office issued its most recent merit decision on July 11, 2007, which is more than a year prior to the filing of
the instant appeal. As such, the Board does not have jurisdiction over the July 11, 2007 merit decision.

FACTUAL HISTORY
Appellant, a 46-year-old food service worker, has an accepted claim for cervical strain,
which arose on August 13, 2003. By decision dated October 13, 2006, the Office terminated her
wage-loss compensation and medical benefits effective October 27, 2006. It based its decision
on the June 8, 2006 report of Dr. Ronald Birkenfeld, a Board-certified neurosurgeon and Office
referral physician, who found that appellant’s employment-related cervical strain had resolved.
He also indicated that she could resume her regular employment as a food service worker and
that there was no need for further medical treatment of her cervical strain. The Branch of
Hearings and Review affirmed the termination of benefits in a July 11, 2007 decision.
On March 11, 2008 appellant requested reconsideration. She stated that the constant and
severe pain from her neck and shoulders kept her from getting any sleep. Appellant also claimed
to have been suffering from mild depression as well as insomnia. She further indicated that
because of her pain she was unable to sit still, focus or concentrate. And as a result, appellant
was precluded from currently seeking job training or education. Her March 11, 2008 request for
reconsideration was unaccompanied by any additional evidence.
By decision dated June 11, 2008, the Office denied appellant’s request for
reconsideration.
LEGAL PRECEDENT
The Office has the discretion to reopen a case for review on the merits.2 Section
10.606(b)(2) of Title 20 of the Code of Federal Regulations provides that the application for
reconsideration, including all supporting documents, must set forth arguments and contain
evidence that either: (i) shows that the Office erroneously applied or interpreted a specific point
of law; (ii) advances a relevant legal argument not previously considered by the Office; or
(iii) constitutes relevant and pertinent new evidence not previously considered by the Office.3
When an application for reconsideration does not meet at least one of the three requirements
enumerated under section 10.606(b)(2), the Office will deny the application for reconsideration
without reopening the case for a review on the merits.4
ANALYSIS
Appellant’s March 11, 2008 request for reconsideration neither alleged nor demonstrated
that the Office erroneously applied or interpreted a specific point of law. Additionally, she did
not advance a relevant legal argument not previously considered by the Office. Therefore,
appellant is not entitled to a review of the merits of her claim based on the first and second
above-noted requirements under section 10.606(b)(2).5 She also failed to satisfy the third
2

5 U.S.C. § 8128(a) (2006).

3

20 C.F.R. § 10.606(b)(2) (2008).

4

Id. at § 10.608(b).

5

Id. at § 10.606(b)(2)(i) and (ii).

2

requirement under section 10.606(b)(2). Appellant did not submit any relevant and pertinent
new evidence with her March 11, 2008 request for reconsideration. Consequently, she is not
entitled to a review of the merits of her claim based on the third requirement under section
10.606(b)(2).6
CONCLUSION
The Board finds that the Office properly denied appellant’s March 11, 2008 request for
reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the June 11, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 16, 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

6

Id. at § 10.606(b)(2)(iii).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
San Diego, CA, Employer
__________________________________________

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

Docket No. 11-102
Issued: September 6, 2011

Case Submitted on the Record

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

JURISDICTION
On October 19, 2010 appellant filed a timely appeal from a July 13, 2010 merit decision
of the Office of Workers’ Compensation Programs (OWCP) regarding his schedule award claim.
Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has more than 11 percent impairment of the right upper
extremity, for which he received a schedule award.
FACTUAL HISTORY
On February 18, 2007 appellant, then a 59-year-old customs and border protection
officer, filed a claim alleging that on February 16, 2007 he tripped on a curb during the
performance of duty and injured his neck and right shoulder, arm and wrist. On June 11, 2007
1

5 U.S.C. §§ 8101-8193.

OWCP accepted the conditions of neck sprain, disorder of bursae and tendons in right shoulder,
and right wrist sprain and paid appropriate benefits. On December 14, 2007 appellant underwent
authorized right shoulder arthroscopic surgery.2 On February 17, 2009 he underwent an
authorized C5-6 anterior cervical discectomy and fusion. Following his cervical surgery,
appellant did not return to work. OWCP subsequently accepted the condition of intervertebral
disc disorder with myelopathy, cervical region and found his right wrist sprain had resolved.
On May 16, 2010 appellant requested a schedule award. In a December 14, 2009 report,
Dr. Jerome C. Hall, a Board-certified orthopedic surgeon, noted the history of injury and
presented examination findings. He opined that appellant reached maximum medical
improvement with regard to his accepted cervical condition. He stated that appellant had
continued problems with right cervical radiculopathy, although improved with surgery.
Examination did not reveal any neurologic deficit in either upper extremity. Based on the fifth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (hereinafter A.M.A., Guides), Dr. Hall opined that appellant had 28 percent
impairment of the whole person based on diagnosis-related estimate (DRE) for the cervical
spine, category IV, and referenced the table used under the fifth edition of the A.M.A., Guides.
He opined that there was no impairment to the extremities.
On June 7, 2010 OWCP’s medical adviser reviewed appellant’s case file, including
Dr. Hall’s December 14, 2009 report. He opined that appellant reached maximum medical
improvement December 14, 2009. Under the sixth edition of the A.M.A., Guides, the medical
adviser opined that appellant had 11 percent impairment of the right arm and no impairment of
the left arm. For the right upper extremity, he stated that appellant had 10 percent arm
impairment for residual problems with the right shoulder status post right shoulder arthroscopy
under Table 15-5, page 403 of the A.M.A., Guides. The medical adviser additionally opined that
appellant had one percent impairment for residual problems with mild pain/impaired sensation
from right C6 radiculopathy. He combined the values and found 11 percent right upper
extremity impairment. The medical adviser opined that appellant had zero percent impairment of
the left upper extremity.
By decision dated July 13, 2010, OWCP awarded appellant 11 percent right upper
extremity impairment. The award ran for the period July 4, 2010 to March 1, 2011, for a period
of 34.32 weeks.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations3 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 shall be determined. The method used in
making such a determination is a matter that rests within the sound discretion of OWCP.4 For
2

The surgery included subacromial decompression with acromioplasty and release of coracoacromial ligament;
debridement of partial-thickness bursal side rotator cuff tear; and Mumford resection of the right distal clavicle.
3

20 C.F.R. § 10.404.

4

Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986).

2

consistent results and to ensure equal justice under the law to all claimants, good administrative
practice necessitates 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 the implementing
regulations as the appropriate standard for evaluating schedule losses.5 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.6
The sixth edition requires identifying the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE) and Clinical Studies (GMCS).7 The net adjustment formula is
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).8
FECA does not authorize the payment of schedule awards for the permanent impairment
of the whole person.9 Payment is authorized only for the permanent impairment of specified
members, organs or functions of the body. No schedule award is payable for a member, function
or organ of the body not specified in FECA or in the regulations.10 Because neither FECA nor
the regulations provide for the payment of a schedule award for the permanent loss of use of the
back or spine,11 no claimant is entitled to such an award.12 Amendments to FECA, however,
modified the schedule award provisions to provide for an award for permanent impairment to a
member of the body covered by the schedule regardless of whether the cause of the impairment
originated in a scheduled or nonscheduled member. As the schedule award provisions of FECA
include the extremities, a claimant may be entitled to a schedule award for permanent
impairment to a limb even though the cause of the impairment originated in the spine.13
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 nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
proving rationale for the percentage of impairment specified.14

5

Ronald R. Kraynak, 53 ECAB 130 (2001).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
7

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

8

Id. at 521.

9

Ernest P. Govednick, 27 ECAB 77 (1975); W.D., Docket No. 10-274 (issued September 3, 2010).

10

William Edwin Muir, 27 ECAB 579 (1976); W.D., id..

11

FECA itself specifically excludes the back from the definition of organ. 5 U.S.C. § 8101(19).

12

Timothy J. McGuire, 34 ECAB 189 (1982); W.D., supra note 9.

13

Rozella L. Skinner, 37 ECAB 398 (1986); W.D., supra note 9.

14

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).

3

ANALYSIS
OWCP accepted that appellant sustained work-related injuries that include neck sprain,
disorder of bursae and tendons in right shoulder, right wrist sprain, and intervertebral disc
disorder with myelopathy, cervical region. It authorized December 14, 2007 right shoulder
arthroscopic surgery and a February 17, 2009 C5-6 anterior cervical discectomy and fusion.
Appellant requested a schedule award on May 16, 2010 and submitted a report from Dr. Hall.
The Board finds that Dr. Hall’s December 14, 2009 report is not sufficient to establish
appellant’s permanent impairment for schedule award purposes. He did not apply the
appropriate edition of the A.M.A., Guides, the sixth edition, when evaluating appellant’s
impairment. As noted the sixth edition became effective on May 1, 2009. Furthermore, Dr. Hall
found that appellant had 28 percent impairment of the whole person based on his cervical spine
condition. FECA does not provide for impairment ratings of the back, spine or whole person and
appellant is not entitled to a schedule award for such ratings.15 Thus, Dr. Hall’s report is
insufficient to establish appellant’s claim as he did not rate impairment of a scheduled body
member pursuant to the sixth edition of the A.M.A., Guides.
OWCP granted appellant 11 percent right upper extremity impairment based on the
June 7, 2010 report from its medical adviser. The medical adviser stated that appellant’s 11
percent right upper extremity impairment was comprised of 10 percent right upper extremity
impairment for residual problems with the right shoulder status post right shoulder arthroscopy
under Table 15-5, page 403 of the A.M.A., Guides and one percent impairment for residual
problems with mild pain/impaired sensation from right C6 radiculopathy.
The Board finds that OWCP’s medical adviser provided insufficient explanation of his
impairment calculation. Regarding residual right shoulder problems after surgery, OWCP’s
medical adviser did not explain how he determined grade modifiers or how the net adjustment
formula was used to determine the final impairment rating. He identified Table 15, page 403 of
the A.M.A., Guides, which allows 10 percent for a class 1, grade C for a distal clavicle resection.
The medical adviser did not provide any reference to or discussion of how he determined grade
modifiers used in the net adjustment formula as described in section 15.3 of the sixth edition to
reach the appropriate grade within the class of diagnosis.16 With respect to the right C6
radiculopathy, he failed to identify the table or page in the A.M.A., Guides from which any
diagnosis-based impairment was taken. The medical adviser listed a grade C impairment within
a class 1 diagnosis but he did not specify the diagnosis nor did he address how any grade
modifiers were determined with regard to the net adjustment formula. As such, his impairment
rating requires further explanation.17
The Board will remand the case to OWCP to undertake additional development of the
medical evidence to appropriately determine if appellant has an additional impairment of the
upper extremities for schedule award purposes. On remand, OWCP should request clarification
15

See supra notes 11-13.

16

A.M.A., Guides, supra note 7 at 405-09.

17

See L.H., 58 ECAB 561 (2007) (where impairment has not been correctly described, a new or supplemental
evaluation should be obtained in accordance with OWCP procedures).

4

from its medical adviser and develop the medical evidence as appropriate to determine the extent
of permanent impairment due to appellant’s accepted employment injury under the sixth edition
of the A.M.A., Guides. If OWCP’s medical adviser is unable to provide such clarification,
appellant shall be referred for a second opinion. Following this and such other development as it
deems necessary, OWCP shall issue an appropriate merit decision.
CONCLUSION
The Board finds that the case is not in posture for decision. The Board will set aside
OWCP’s decision and remand the case for further development consistent with the findings
herein.
ORDER
IT IS HEREBY ORDERED THAT the July 13, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision of the Board.
Issued: September 6, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

5


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

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

Docket No. 11-1787
Issued: March 21, 2012

Case Submitted on the Record

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

JURISDICTION
On July 18, 2011 appellant filed a timely appeal from an April 28, 2011 decision of the
Office of Workers’ Compensation Programs (OWCP) denying his traumatic injury claim.
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 sustained a left hip injury in the performance of duty on
February 24, 2011.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the April 28, 2011 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.

FACTUAL HISTORY
On March 8, 2011 appellant, then a 39-year-old letter carrier, filed a traumatic injury
claim alleging that on February 24, 2011 he tore a muscle in his left hip as a result of stumbling
on uneven pavement, grabbing a rail and twisting himself to stop from falling down. He stopped
work on February 24, 2011.
In a March 16, 2011 letter, OWCP advised appellant that no medical evidence was
received to support his claim. It requested that he submit a detailed narrative medical report,
which included a history of injury, description of physical findings, results of diagnostic tests,
medical diagnosis and a physician’s opinion supported by medical rationale explaining how the
reported work incident caused or aggravated any medical condition.
In a March 3, 2011 report, Dr. Michael A. Kleinman, Board-certified in emergency
medicine, stated that appellant complained of increasing left hip pain and difficulty moving
around after he tripped on a crack in the sidewalk and bruised his left hip. He reviewed
appellant’s history and noted that an x-ray of his hip revealed bruising. Upon examination,
Dr. Kleinman did not observe any clubbing, cyanosis or edema.
In a March 4, 2011 report, Dr. Thomas O’Dowd, a Board-certified orthopedic surgeon,
stated that on February 23, 2011 appellant was delivering mail at work when he hit an uneven
sidewalk, grabbed a railing to keep from falling and twisted his left leg. Appellant did not report
significant pain at the time, but on the second day he experienced quite a bit of pain and
difficulty walking. He went to the emergency room, had x-rays taken, was prescribed pain
medication and a walker and was discharged. Appellant related that his pain progressively
worsened. Dr. O’Dowd reviewed appellant’s medical and social history and conducted an
examination. He observed that passive motion of appellant’s left hip caused a little bit of pain
and that twisting resulted in significant pain. X-rays of the left hip showed degenerative joint
disease (DJD) in the left hip, which Dr. O’Dowd noted was a bit premature for appellant’s age.
A computerized axial tomography (CAT) scan further revealed arthritis in the left greater than
right hip with some cystic changes. Dr. O’Dowd diagnosed deep muscle hematoma, muscle
injury, developed myoglobinemia and renal failure. He opined that appellant “probably” had a
deep muscle injury twisting and doing a nonfalling split on his left leg.
In a March 7, 2011 report, Dr. Martin Topiel, a Board-certified internist, noted that
appellant had a low-grade temperature and an unusual presentation of left hip trauma. He related
that appellant tripped while walking as a mailman and bruised his hip. Appellant was admitted
to the hospital on March 3, 2011. Upon examination, Dr. Topiel noted appellant’s complaints of
pain in his left hip and trouble moving his left leg. He opined that this would seem to be a
presentation of trauma with secondary bleeding or hematoma.
In a March 9, 2011 report, Dr. Stephen E. Zrada, a Board-certified internist, stated that
appellant was a mailman who slipped and twisted his leg a couple of days ago. Appellant
initially denied any discomfort but developed significant left leg and hip discomfort over the
following 24 to 48 hours. Dr. Zrada reviewed appellant’s history and conducted an examination.
A magnetic resonance imaging (MRI) scan revealed swelling and evidence of edema within the
left hip region. A CAT scan of the hip showed significant muscle edema and appearance of

2

inflammation. Dr. Zrada observed trace edema in appellant’s left hip, but he was unable to
palpate the region without any pain.
In a March 16, 2011 continuation of pay (COP) report, a nurse stated that appellant
sustained a left hip injury at work and went to the emergency room. Appellant was sent home
but returned in three days and was admitted with a left hip hairline fracture and complications
from internal bleeding. The nurse indicated that home physical therapy would start on March 16,
2011 and recommended that he be referred to a field nurse.
In a March 10, 2011 letter, the employing establishment controverted appellant’s claim
contending that he did not submit any medical evidence to substantiate his claim and that he did
not submit any evidence to establish that the injury occurred while he performed his official
duties. It stated that appellant’s supervisor called him to obtain additional information regarding
his claim but he was unable to talk and never called his supervisor back. The employing
establishment also noted that appellant was able to complete his assignment on February 24,
2011 and left without notifying his supervisor. Appellant also did not notify the employing
establishment of his alleged February 24, 2011 injury until March 9, 2011, 13 days after the date
of injury.
In a decision dated April 28, 2011, OWCP denied appellant’s claim finding insufficient
medical evidence to establish that he sustained any condition as a result of the February 24, 2011
employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his claim by the weight of the reliable, probative and substantial evidence3
including that he sustained an injury in the performance of duty and that any specific condition
or disability for work for which he claims compensation is causally related to that employment
injury.4 As part of this burden, the employee must submit rationalized medical opinion evidence
based on a complete factual and medical background on whether a causal relationship exists
between the claimant’s diagnosed condition and the established employment incident.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.6 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
3

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

4

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton,
40 ECAB 1143, 1145 (1989).
5

A.C., Docket No. 08-1453 (issued November 18, 2008); Y.J., Docket No. 08-1167 (issued October 7, 2008);
George H. Clark, 56 ECAB 162 (2004).
6

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007); Mary J. Summers, 55 ECAB
730 (2004).

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specified employment factors or incident.7 The opinion of the physician must be based on a
complete factual and medical background of the employee, must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the
employee.8
ANALYSIS
Appellant alleges that on February 24, 2011 he sustained a left hip injury in the
performance of duty when he tripped on the sidewalk, grabbed a rail to stop from falling and
twisted his body at work. OWCP accepted that the incident occurred as alleged but denied his
claim finding insufficient medical evidence to establish that he sustained any diagnosed
condition as a result of the accepted employment incident. The Board finds that appellant failed
to provide sufficient medical evidence establishing that he sustained a left hip injury as a result
of the February 24, 2011 work incident.
Appellant submitted various hospital records by numerous physicians from when he was
admitted into the hospital. Drs. Kleinman and Topiel both noted bruising in appellant’s hip. In
addition, Dr. O’Dowd observed DJD and arthritis in appellant’s left hip and diagnosed a deep
muscle hematoma. The Board finds that the medical evidence fails to establish that appellant’s
left hip condition was causally related to the February 24, 2011 employment incident.
Drs. Kleinman, Zrada, and Topiel noted that appellant’s slipped on the sidewalk and bruised his
hip at work. None of these physicians, however, provided an accurate date of injury or any
medical explanation as to how twisting the left leg, without falling, would have caused bruising
and degenerative changes of the hip. Because medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value, these reports are
insufficient to establish appellant’s claim.9
The report by Dr. O’Dowd is likewise insufficient to meet appellant’s burden of proof.
He provided an accurate history of injury that appellant tripped on the sidewalk at work and
twisted his body to keep from falling. Dr. O’Dowd noted that appellant “probably” had a deep
muscle injury twisting from doing a nonfalling split on his left leg. His opinion that appellant
“probably” had a deep muscle injury, however, is speculative in nature. Furthermore,
Dr. O’Dowd also did not describe the physiological process by which twisting of the leg would
have caused bruising of the hip and degenerative changes of the hip. The Board has held that
medical opinions that are speculative or equivocal in character are of diminished probative
value.10 Dr. O’Dowd’s report, therefore, is insufficient to establish appellant’s claim.
The record also contains a COP report from a registered nurse, who noted a hairline
fracture of the hip. Nurses, however, are not considered “physicians” as defined by FECA and
7

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

8

D.S., Docket No. 09-860 (issued November 2, 2009); B.B., 59 ECAB 234 (2007).

9

R.E., Docket No. 10-679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007).

10

D.D., 57 ECAB 734, 738 (2006); Kathy A. Kelley, 55 ECAB 206 (2004).

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their medical opinions are of no probative value regarding causal relationship.11 Causal
relationship is a medical issue and the medical evidence required to establish a causal
relationship is rationalized medical opinion evidence.12 The Board finds that, because appellant
has not submitted such rationalized medical opinion evidence in this claim, he did not meet his
burden of proof to establish his claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an injury in the performance of duty on February 24, 2011.

11

E.H., Docket No. 08-1862 (issued July 8, 2009); section 8102(2) of FECA provides that the term “physician”
includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic
practitioners within the scope of their practice as defined by State law; S.E., Docket No. 08-2214 (issued
May 6, 2009).
12

Mary J. Summers, supra note 6.

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ORDER
IT IS HEREBY ORDERED THAT the April 28, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 21, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oak Creek, WI, Employer
__________________________________________

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

Docket No. 18-1274
Issued: February 6, 2019

Case Submitted on the Record

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

JURISDICTION
On June 11, 2018 appellant filed a timely appeal from a May 14, 2018 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 the case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish right elbow
conditions causally related to the accepted factors of her federal employment.

1
2

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.

FACTUAL HISTORY
On March 1, 2018 appellant, then a 53-year-old group leader mail handler, filed an
occupational disease claim (Form CA-2) alleging that she developed a right elbow injury as a result
of her repetitive federal employment duties. She asserted that her right elbow became sore after
completing her workday, which included pushing and pulling mail containers, and lifting and
throwing parcels and mail sacks. Appellant indicated that she first became aware of her claimed
condition and its relation to her federal employment on February 26, 2018, as she only experienced
the symptoms while working. She did not stop work.
In a development letter dated March 20, 2018, OWCP advised appellant of the deficiencies
of her claim and afforded her 30 days to submit additional evidence and respond to its inquiries.
In response, appellant submitted a statement date stamped as received by the employing
establishment on April 5, 2018, describing her assigned job duties. She described lifting parcels
and mailbags weighing from 10 to 70 pounds onto a conveyor belt, lifting and throwing mail into
containers, and pushing containers to and from staging areas. Appellant also submitted medical
evidence.
In a work status report dated March 2, 2018, Dr. Sharleen Leonard, an attending Boardcertified family practitioner, diagnosed right medial epicondylitis and ulnar neuropathy. In
response to a question regarding whether appellant’s injury, illness, or condition was caused by
her work, Dr. Leonard answered “[y]es.” She also checked a box marked “yes” on a duty status
report (Form CA-17) dated March 2, 2018, in response to a question inquiring whether the history
of injury provided by appellant corresponded with the described injury of right epicondylitis and
right ulnar neuropathy caused by repetitive right elbow motions. Dr. Leonard made the same
notations on form reports dated from March 7 to 28, 2018, and CA-17 forms dated March 7
and 14, 2018. She prescribed a right elbow splint, medication, and occupational therapy.3
Dr. Leonard also noted limitations on use of the right upper extremity at work.
By decision dated May 14, 2018, OWCP accepted that the identified work factors occurred
at the time, place, and in the manner alleged. However, it denied appellant’s claim, finding that
the medical evidence of record was insufficient to establish causal relationship between her
diagnosed right elbow conditions and the accepted factors of her federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the

3

Appellant participated in physical therapy treatments from March 12 to 27, 2018.

2

employment injury.4 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.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) medical evidence establishing the presence or existence
of the disease or condition for which compensation is claimed; (2) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; and (3) medical evidence establishing that the diagnosed condition is causally
related to the identified employment factors.6
Causal relationship is a medical question, which requires rationalized medical opinion
evidence to resolve the issue.7 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factors must be based on a
complete factual and medical background.8 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factors.9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that her
diagnosed right elbow conditions are causally related to the accepted factors of her federal
employment.
In support of her claim, appellant submitted form reports dated March 2 to 28, 2018 from
Dr. Leonard who diagnosed right medial epicondylitis and right ulnar neuropathy. Dr. Leonard
responded “yes” to questions regarding whether the diagnosed conditions were related to
appellant’s federal employment, including repetitive right upper extremity motions. The Board
has held, however, that when a physician’s opinion on causal relationship consists only of checking
a box marked “yes” to a form question, without explanation or rationale, that opinion has limited
probative value and is insufficient to establish a claim.10

4

F.S., Docket No. 12-0369 (issued September 20, 2012); Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton,
40 ECAB 1143, 1154 (1989).
5

A.D., Docket No. 17-1855 (issued February 26, 2018); Michael E. Smith, 50 ECAB 313 (1999).

6

M.B., Docket No. 17-1999 (issued November 13, 2018); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

7

M.B., id. See Robert G. Morris, 48 ECAB 238 (1996).

8

Supra note 5.

9

Id.

10

M.O., Docket No. 18-1056 (issued November 6, 2018). See Deborah L. Beatty, 54 ECAB 3234 (2003).

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As appellant has not submitted rationalized medical evidence sufficient to establish an
injury causally related to the accepted employment factors, the Board finds that she has not met
her burden of proof.
On appeal, appellant contends that the claimed right elbow conditions were caused by the
accepted work factors of throwing bags and pulling and pushing equipment. As set forth above,
the medical evidence of record is insufficient to establish causal relationship between the accepted
work factors and appellant’s diagnosed medical conditions.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish right elbow
conditions causally related to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the May 14, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 6, 2019
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.C., Appellant
and
DEPARTMENT OF STATE, BUREAU OF
CONSULAR AFFAIRS, Washington, DC,
Employer
__________________________________________

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

Docket No. 12-704
Issued: September 14, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 10, 2012 appellant filed a timely appeal from the October 12, 2011 and
February 7, 2012 merit decisions of the Office of Workers’ Compensation Programs (OWCP)
denying her traumatic injury claim. 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 sustained a right ankle condition causally related to a
May 10, 2011 employment incident.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 11, 2011 appellant, then a 58-year-old passport processing supervisor, filed a
traumatic injury claim alleging that on May 10, 2011 she experienced pain in her right ankle and
feet when she stepped on a black binder clip and almost fell down. She explained that other
employees were present when the incident occurred and noted that she filled out an accident
report and immediately gave it to her supervisor. Appellant stopped work on May 13, 2011 and
returned on May 17, 2011.
In a May 19, 2011 letter, the employing establishment controverted appellant’s claim
alleging that her condition was not caused by her employment. It noted that an attending
physician’s report indicated that she had experienced pain in her ankles “on and off” for a year.
In a May 18, 2011 e-mail, Dean Boyle, assistant director of the New York Passport
Agency, reported that appellant had been on leave restriction since October 2006 and used any
accrued annual, sick or compensation time within the pay period in which it was earned or
immediately after it. He stated that employees who were in the area at the time of the alleged
incident informed him that they did not witness the incident.
In a May 13, 2011 return to work slip, Dr. Daniel A. Lombardi, a Board-certified
internist, stated that appellant was seen in his facility on May 13, 2011. He authorized her to
return to work on May 16, 2011.
In a May 16, 2011 magnetic resonance imaging (MRI) scan report, Dr. Peter Hobeika, a
Board-certified radiologist, observed grossly unremarkable interosseous membrane, anterior and
posterior tibiofibular ligaments, spring ligaments and lisfranc ligaments of the left ankle. He
noted an old sprain and partial tear of the deltoid ligament. Dr. Hobeika also found mild
tenosynovitis of the peroncal tendons and a possible tiny tear of the distal Achilles tendon. He
diagnosed tendinosis of the distal Achilles tendon with a possible tiny interstitial tear, mild
tenosynovitis and old sprain/partial tears of the anterior and posterior ligaments.
In a May 19, 2011 attending physician’s report, a podiatrist2 with an illegible signature,
stated that appellant experienced pain and swelling in both ankles and heels since March 2011.
Appellant was diagnosed with old sprain, Achilles tendinosis, plantar fasciitis, synovitis and
other illegible conditions. The physician checked a box marked “yes” that appellant’s condition
was caused or aggravated by an employment activity and explained that she complained of on
and off ankle pain for the past year. Appellant was authorized to return to light duty on
May 23, 2011.
On May 23, 2011 OWCP advised appellant that the evidence submitted was insufficient
to establish her claim. It requested additional medical evidence to establish that the May 10,
2011 incident occurred as alleged and that her right ankle condition resulted from the alleged
incident.

2

The physician’s license number and adress were noted, but the signature is illegible.

2

On May 26, 2011 appellant explained that her prior physician visits were for foot pain.
On May 10, 2011 she was working and hurt her right ankle and feet. Appellant provided
physical therapy notes dated May 31 to June 9, 2011. She also submitted a June 21, 2011
application for New York workers’ compensation.
Appellant resubmitted the May 16, 2011 MRI scan report with the correction that the
MRI scan was for her right ankle, not her left ankle.
In a May 19, 2011 prescription slip, Debbie P. Bautista, a general podiatrist, authorized
physical therapy twice a week.
In a May 23, 2011 return to work slip, a Dr. Ahn examined appellant that day and noted
that it was uncertain when she could return to work. A follow-up appointment was scheduled for
May 26, 2011.
In a May 28, 2011 report, Dr. Indu Garg, Board-certified in physical medicine and
rehabilitation, stated that appellant had been well until May 10, 2011 when she slipped at work
and sustained a right ankle injury. She noted that an MRI scan revealed a tear of the Achilles
tendon and swelling and tendinitis of the other cartilage. Upon examination, Dr. Garg observed
antalgic gait favoring on the right leg and swelling present on the medial aspect. She also found
severe tenderness at the Achilles tendon with muscle spasm of the calf muscle and
gastrocnemius. Dr. Garg diagnosed right ankle sprain, Achilles tendinitis and cartilage
inflammation and recommended physical therapy.
In a June 7, 2011 statement, appellant noted that in 2007 she experienced pain her left
foot at work. She explained that on April 18, 2007 she was removing a pack of 100 blank books
from a box when the passport box fell on her left foot.
In a June 15, 2011 excuse slip, Dr. Allen Shuman, a podiatrist, noted that he examined
appellant that day for foot pain and authorized her to return to work on June 17, 2011.
In a June 16, 2011 excuse slip, Dr. Garg stated that appellant had physical therapy on that
date and authorized her to remain off work until July 31, 2011 due to an ankle injury.
In an undated excuse slip, Dr. Garg stated that appellant was scheduled for physical
therapy on May 23, June 2 and 4 and July 2, 2011.
In a decision dated June 30, 2011, OWCP denied appellant’s traumatic injury claim. It
accepted that the May 10, 2011 incident occurred as alleged but denied her claim finding
insufficient medical evidence to establish that her right ankle condition was causally related to
the May 10, 2011 employment incident.
On July 1, 2011 appellant requested reconsideration.3 She explained that in March 2011
her coworkers knew that she experienced pain in both feet but her physicians did not realize it
until after the MRI scan. Appellant was examined by Dr. Bautista in April 2011 and was given
3

In a July 1, 2011 appeal request form, appellant also requested a review of the written record.

3

painkillers, which helped her right ankle but not her left ankle. On May 10, 2011 she observed
that the quality control area at special desk was not neat. As appellant left the area, she stepped
on a large black binder clip and almost fell down. She stated that other employees had their
backs to her so they did not witness the incident. Appellant experienced foot pain but continued
to work. She received medical treatment from Drs. Bautista, Goldstein and Garg who
recommended that she remain off work and start physical therapy. Appellant resubmitted
various medical reports.4
In a May 5, 2011 excuse slip, an unknown provider with an illegible signature, authorized
appellant to return to light duty on May 6, 2011 with limited weight bearing due to bilateral foot
pain.
In a May 19, 2011 attending physician’s report, an unknown provider with an illegible
signature noted pain and swelling in both of appellant’s ankles and heels since March 2011. A
diagnosis was noted of Achilles tendinosis, plantar fasciitis, ankle ligament sprains and other
illegible diagnoses. Appellant was authorized to return to light duty on May 23, 2011.
In a May 20, 2011 prescription slip, Dr. Joel A. Sender, a Board-certified internist,
treated appellant that day and excused her from work until June 3, 2011. He also indicated that
she had severe asthma.
In a May 23, 2011 treatment note, Dr. Ahn noted that appellant was treated that day and
authorized her to return to work on May 26, 2011.
In a May 28, 2011 prescription note, Dr. Garg indicated that appellant would be attending
physical therapy on Tuesdays and Thursdays. He requested that she leave work at noon on those
days for her physical therapy treatments. Appellant also provided work excuse slips from
Dr. Garg for June 7, 10, 13 and 14, 2011.
In a June 9, 2011 report, Dr. Harold L. Goldstein, a Board-certified pediatrician, stated
that he examined appellant for a right foot and ankle injury that she sustained on May 10, 2011
when she stepped on a binder clip at work. He noted that she had previously received treatment
for foot pain and ankle swelling and related that she experienced increased pain in her right ankle
after she slipped on the binder clip. Dr. Goldstein reviewed appellant’s history, noting that at the
time of injury she was already treating with a podiatrist for foot and ankle pain. On examination
he observed mild tenderness and edema of the right ankle around the medial and lateral malleoli,
mild tenderness on palpation of the Achilles tendon insertion and mild-to-moderate tenderness
on end range of motion on dorsiflexion and plantar flexion. Dr. Goldstein noted that x-rays
revealed no apparent fracture or dislocation and an MRI scan report demonstrated tendinosis of
the distal Achilles tendon with tiny interstitial tear, mild tenosynovitis peroneal tendons and mild
synovitis of the tibiotalar, calcaneocuboid and talonavicular joints.
In a July 14, 2011 note, Dr. Bautista prescribed physical therapy three times a week for
three months.
4

Appellant resubmitted Dr. Garg’s work excuse slips and May 28, 2011 report, her statement about the April 18,
2007 employment incident when she experienced left foot pain and the MRI scan reports.

4

In a July 20, 2011 consultation report, Dr. Sanjiv Bansal, a Board-certified orthopedic
surgeon, noted appellant’s complaints of right ankle pain and discomfort since May 10, 2011
when she stepped on a black binder clip at work and twisted her right ankle. Appellant
complained of pain and discomfort since the incident. Dr. Bansal related that a May 16, 2011
MRI scan revealed tendinosis of the distal Achilles tendon with partial interstitial tear, plantar
fasciitis with calcaneus spur, mild tenosynovitis of the peroneal tendon and mild synovitis of the
tibiotalar joint. He reviewed appellant’s history and noted that she underwent physical therapy.
The examination revealed swelling of the anterior talofibular ligament, pain along the posterior
calcaneal and Achilles tendon and mild pain along the medial aspect. Thompson’s test and
single heel rise test were negative. Dr. Bansal recommended an injection to the right ankle.
In an unsigned July 20, 2011 report, Dr. Bansal stated that appellant was unable to return
to work because her job required standing all day. He explained that she would not be able to
work for a month because her foot and ankle were still an ongoing issue that had not resolved.
In a July 21, 2011 excuse slip, Dr. Garg noted that he treated appellant that date.
By decision dated October 12, 2011, an OWCP hearing representative affirmed the
June 30, 2011 decision denying appellant’s claim. The medical evidence of record failed to
establish that her right ankle condition was causally related to the May 10, 2011 employment
incident.
By letters dated October 19 and November 7, 2011, appellant submitted a request for
reconsideration. She contended that she should have received workers’ compensation since
May 10, 2011.
In a November 14, 2011 report, Dr. Bansal stated that appellant’s right ankle Achilles
tendon and sprain were a “direct cause and relationship” of the May 10, 2011. He explained that
her right ankle problem was a work-related accident that she sustained when she stepped on the
binder clip and twisted her ankle. Dr. Bansal reported that appellant still had difficulty along the
anterior talofibular ligament and pain along the Achilles, especially on the lateral aspect. He also
observed intact Achilles tendon and inflammation in that area. Dr. Bansal recommended therapy
and inflammation medication.
In a November 14, 2011 excuse slip, Dr. Bansal indicated that he treated appellant that
day.
On December 1, 2011 appellant filed a claim for disability compensation for the period
June 9 to September 9, 2011.5 On December 8, 2011 OWCP advised her that she was not
entitled to disability compensation since she was denied.
In handwritten December 2, 2011 and January 12, 2012 attending physician’s reports,
Dr. Bansal noted that on May 10, 2011 appellant sustained a work-related accident to both her
ankles. He provided an illegible diagnosis and noted that she was disabled from June 9 to
September 11, 2011.
5

She filed subsequent claims for disability for the periods May 10 to September 11, 2011.

5

In a decision dated February 7, 2012, OWCP denied modification of the October 12,
2011 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of her claim by the weight of the reliable, probative and substantial evidence7
including that she sustained an injury in the performance of duty and that any specific condition
or disability for work for which she claims compensation is causally related to that employment
injury.8
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.9
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.10 Second, the employee must submit
evidence, generally only in the form of probative medical evidence, to establish that the
employment incident caused a personal injury.11 An employee may establish that the
employment incident occurred as alleged but fail to show that his or her disability or condition
relates to the employment incident.12
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence providing a diagnosis or opinion as to
causal relationship.13 Rationalized medical opinion evidence is medical evidence which includes
a physician’s rationalized opinion on whether there is a causal relationship between the
employee’s diagnosed condition and the specified employment factors or incident.14 The
opinion of the physician must be based on a complete factual and medical background of the
employee, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the employee.15 The weight of the medical evidence is
6

5 U.S.C. §§ 8101-8193.

7

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

8

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
9

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

10

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

11

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

12

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

13

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

14

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

15

D.S., Docket No. 09-860 (issued November 2, 2009); B.B., 59 ECAB 234 (2007).

6

determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested and the medical rationale expressed in support of the physician’s opinion.16
ANALYSIS
OWCP accepted that on May 10, 2011 appellant slipped on a black binder clip at work.
It denied her claim finding insufficient medical evidence to establish that her right ankle
condition was causally related to the accepted employment incident. The Board finds that
appellant did not meet her burden of proof to establish that she sustained a right ankle injury in
the performance of duty.
Appellant submitted medical reports by Dr. Bansal, who related that on May 10, 2011 she
twisted her right ankle when she stepped on a black binder clip at work. Dr. Bansal observed
swelling of the anterior talofibular ligament, pain along the posterior calcaneal and Achilles
tendon and mild pain along the medial aspect. In a November 14, 2011 report, he opined that
appellant’s right ankle Achilles tendon and sprain had a “direct cause and relationship” to the
May 10, 2011 employment incident. Dr. Bansal’s reports, however, never reflected an accurate
history of injury. Appellant’s attending podiatrist noted on the form report dated May 19, 2011
that she had a history of old ankle sprain and that she had experienced pain and swelling in both
ankles and heels since March 2011.
On May 26, 2011 appellant submitted a supplemental statement in which she
acknowledged that her prior physician visits for foot pain. Dr. Bansal’s reports do not provide
any discussion of appellant’s preexisting ankle condition. He explained generally that her right
ankle problem was a work-related accident sustained when she stepped on the binder clip and
twisted her ankle. Although Dr. Bansal concluded that appellant’s right ankle condition was
related to the May 10, 2011 employment incident, his opinion is not based upon full or an
accurate medical history. He did not provide adequate explanation or medical rationale to
support stated conclusion. The Board has found that medical opinion not based upon an accurate
history and not fortified by medical rationale is of diminished probative value.17 A wellrationalized explanation is particularly needed in this case where the record reveals that appellant
complained of bilateral foot and ankle pain prior to the May 10, 2011 employment incident.
Without medical rationale to support his conclusion, the Board finds that Dr. Bansal’s reports are
insufficient to establish appellant’s claim.
Appellant also submitted medical reports by Dr. Garg. Regarding appellant’s history, in
her May 28, 2011 report, Dr. Garg related that appellant had been well until May 10, 2011. She
did not provide a history which addressed appellant’s prior ankle treatment or complaints.
Dr. Garg accurately described the May 10, 2011 employment incident and conducted an
examination of appellant’s right ankle. She observed swelling and severe tenderness at the
Achilles tendon, muscle spasm of the calf muscle and antalgic gait. Dr. Garg diagnosed right
ankle sprain, Achilles tendinitis and cartilage inflammation. She did not, however, adequately
explore the cause of appellant’s diagnosed right ankle condition. Dr. Garg described the May 10,
16

James Mack, 43 ECAB 321 (1991).

17

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

7

2011 incident and provided a diagnosis but did not give any opinion on the causal relation
between the incident and appellant’s right ankle condition. Medical evidence that does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the
issue of causal relationship. Dr. Garg’s reports are insufficient to establish appellant’s claim.18
Similarly, Dr. Goldstein’s June 9, 2011 report does not establish causal relationship as he does
not provide any opinion on the cause of appellant’s condition nor explain how the May 10, 2011
event caused or aggravated her right ankle condition.
Appellant also submitted various reports and work excuse slips from unknown providers
with illegible signatures. The Board has previously held, however, that reports that are unsigned
or that bear illegible signatures cannot be considered as probative medical evidence because they
lack proper identification.19 These reports, therefore, are insufficient to establish appellant’s
claim.
The work excuse slips and prescription notes by Drs. Lombardi, Bautista, Shuman,
Sender, and Ahn and Dr. Hobeika’s diagnostic report are also insufficient to establish appellant’s
claim. They contain no opinion regarding the cause of appellant’s right ankle condition. They
merely noted the dates that appellant received medical treatment and when she was able to return
to work.
On appeal, appellant described the May 10, 2011 employment incident and related that
she was unable to go to work because her right ankle was swollen and hurt. Her belief, however,
is insufficient to establish that her right ankle condition was causally related to the May 10, 2011
employment incident. Causal relationship is a medical issue that can only be established by the
submission of rationalized medical opinion evidence.20 Because appellant has not provided such
rationalized medical evidence, the Board finds that she did not meet her burden of proof to
establish her claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to establish that her right ankle condition was
causally related to the May 10, 2011 employment incident.21
18

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006).
19

Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams, 55 ECAB 343 (2004).

20

I.R., Docket No. 09-1229 (issued February 24, 2010); W.D., Docket No. 09-658 (issued October 22, 2009);
D.I., 59 ECAB 158 (2007).
21

The Board notes that appellant submitted additional evidence following the February 7, 2012 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.

8

ORDER
IT IS HEREBY ORDERED THAT the February 7, 2012 and October 12, 2011 merit
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: September 14, 2012
Washington, DC

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

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

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

9


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

)
)
)
)
)
)
)
)

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

Docket No. 13-328
Issued: April 11, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 28, 2012 appellant, through his attorney, filed a timely appeal from the
August 13, 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 OWCP properly terminated appellant’s wage-loss compensation and
medical benefits effective June 15, 2010 on the grounds that he had no residuals of his
November 19, 2008 work injury after that date.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
OWCP accepted that on November 19, 2008 appellant, then a 49-year-old maintenance
mechanic, sustained joint derangement of his left shoulder while performing his work duties on
that date.2 Appellant received compensation for wage-loss and medical benefits.3
Appellant received treatment for his medical problems from Dr. Mark Filippone, a
Board-certified physical medicine and rehabilitation physician. In reports submitted in mid-tolate 2009, Dr. Filippone advised that appellant was partially disabled due to his November 19,
2008 work injury.
In a November 9, 2009 report, Dr. Jeffrey Lakin, a Board-certified orthopedic surgeon
serving as an OWCP referral physician, determined that appellant did not have any disability due
to his November 19, 2008 work injury.
OWCP found that a conflict in medical opinion between Dr. Filippone and Dr. Lakin. In
order to resolve the conflict, it referred appellant to Dr. Menachem Y. Epstein, a Board-certified
orthopedic surgeon, for an impartial medical examination and opinion regarding whether he
continued to have work-related residuals. The record contains a January 7, 2010 ME023 form
indicating that appellant was scheduled with Dr. Epstein for an examination appointment at
1:45 p.m. on January 25, 2010. The record contains several screen shots of physicians who were
bypassed before selecting Dr. Epstein which contain stated reasons for the bypass, such as
unavailability. Several of the screen shots, however, provide no explanation for why the
physicians were bypassed.4
In a February 8, 2010 report, Dr. Epstein reported the findings of his January 25, 2010
examination and noted that appellant had sustained a work-related cervical sprain on
November 19, 2008 which had since resolved. He concluded that appellant no longer had any
residuals of his November 19, 2008 work injury and that he was capable of returning to his fullduty position. OWCP then sent Dr. Epstein a new statement of accepted facts which corrected
some errors and asked him whether his opinion would change due to these revisions. On
February 25, 2010 Dr. Epstein acknowledged the information provided in the amended statement
of accepted facts and stated that his medical opinion remained unchanged.
In a June 15, 2010 decision, OWCP terminated appellant’s wage-loss compensation and
medical benefits effective June 15, 2010 on the grounds that he had no residuals of his
November 19, 2008 work injury after that date. It based its termination on the opinion of
Dr. Epstein, the impartial medical specialist.5
2

OWCP later added the condition of resolved cervical strain to the accepted conditions.

3

After a period of total disability, appellant returned to limited-duty work on a full-time basis for the employing
establishment.
4

These include screen shots for Dr. Lawrence Livingston, Dr. Jen Lee, Dr. Mark Gurland and Dr. Peter Salob.

5

Prior to issuing its June 15, 2010 decision, OWCP sent appellant a March 4, 2012 letter advising him of its
proposed termination and provided him an opportunity to challenge the proposed action.

2

In a December 28, 2010 decision, an OWCP hearing representative affirmed the June 15,
2010 termination decision. She found that the opinion of Dr. Epstein supported the termination
of appellant’s wage-loss compensation and medical benefits, rejecting counsel’s argument at a
hearing that Dr. Epstein was not properly selected through the appropriate standards for
rotational selection of impartial medical specialists.
In a July 28, 2011 decision, OWCP affirmed its December 28, 2010, noting that newly
submitted reports of Dr. Filippone did not change that fact that the weight of the medical
evidence regarding work-related residuals continued to rest with the opinion of Dr. Epstein.
In an August 13, 2012 decision, OWCP affirmed its July 28, 2011 termination decision.
LEGAL PRECEDENT
Under FECA, once OWCP has accepted a claim it has the burden of justifying
termination or modification of compensation benefits.6 OWCP may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.7
OWCP’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.8
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”9 In situations
where there exist opposing medical reports of virtually equal weight and rationale and the case is
referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of
such specialist, if sufficiently well rationalized and based upon a proper factual background,
must be given special weight.10
A physician selected by OWCP to serve as an impartial medical specialist should be one
wholly free to make a completely independent evaluation and judgment. The procedures
contemplate that the impartial medical specialists will be selected on a strict rotating basis in
order to negate any appearance that preferential treatment exists between OWCP and a particular
physician.11 OWCP has an obligation to verify that it selected an impartial medical specialist in
a fair and unbiased manner. It maintains records for this very purpose.12

6

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

7

Id.

8

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

9

5 U.S.C. § 8123(a).

10

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

11

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

12

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

3

OWCP’s procedures provide that the selection of impartial medical specialists is made
through a strict rotational system using appropriate medical directories. The procedure manual
provides that the Physicians Directory System (PDS) should be used for this purpose wherever
possible.13 The PDS is a set of stand-alone software programs designed to support the
scheduling of second opinion and impartial medical examinations. The PDS database of
physicians is obtained from the American Board of Medical Specialties which contains the
names of physicians who are Board-certified in certain specialties.14
ANALYSIS
OWCP accepted that on November 19, 2008 appellant, then a 49-year-old maintenance
mechanic, sustained joint derangement of his left shoulder and a cervical strain. In a June 15,
2010 decision, it terminated appellant’s wage-loss compensation and medical benefits effective
June 15, 2010 on the grounds that he had no residuals of his November 19, 2008 work injury
after that date. OWCP based its termination on the opinion of Dr. Epstein, a Board-certified
orthopedic surgeon who was selected as an impartial medical specialist.15
The record includes a January 7, 2010 MEO23 iFECS report which states that appellant’s
referee appointment was scheduled with Dr. Epstein at 1:45 p.m. on January 25, 2010. The
record contains iFECS screen shots of physicians who were bypassed before Dr. Epstein was
selected and some of these screen shots contain reasons for the bypass, including unavailability.
The Board notes the screen shots for several physicians provide no reason for the bypass. The
Board cannot ascertain from the documents of record the reasons that the physicians were
bypassed as no reason was stated. The record does not substantiate the proper rotational referee
selection of Dr. Epstein.
The Board has placed great importance on the appearance as well as the fact of
impartiality, and only if the selection procedures which were designed to achieve this result are
scrupulously followed may the selected physician carry the special weight accorded to an

13

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4b (May 2003).
The Board notes that, as of July 2011, the Medical Management Application within the Integrated Federal
Employees Compensation System (iFECS) replaced the prior PDS selection procedure for an impartial medical
specialist. Id. at Chapter 3.500.5 (July 2011).
14

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

15

The Board notes that OWCP properly determined that there was a conflict in the medical opinion evidence
regarding the extent of appellant’s work-related residuals between Dr. Filippone, an attending Board-certified
physical medicine and rehabilitation physician, and Dr. Lakin, a Board-certified orthopedic surgeon serving as an
OWCP referral physician.

4

impartial specialist. OWCP has not met its affirmative obligation to establish that it properly
followed its selection procedures.16 For this reason, the Board will reverse the termination.
CONCLUSION
The Board finds that OWCP did not properly terminate appellant’s wage-loss
compensation and medical benefits effective June 15, 2010.
ORDER
IT IS HEREBY ORDERED THAT the August 13, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and case remanded to OWCP for further
proceedings consistent with this decision of OWCP.
Issued: April 11, 2013
Washington, DC

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

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

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

16

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

5