United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bedford Park, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Capp P. Taylor, for the appellant
Office of Solicitor, for the Director

Docket No. 12-5
Issued: June 14, 2012

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 September 14, 2011 appellant, through her representative, filed a timely appeal from
the June 6, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her recurrence claim in File No. xxxxxx816, her occupational disease claim in File No.
xxxxxx924 and her occupational disease claim in File No. xxxxxx992. 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.
ISSUES
The issues are: (1) whether appellant established that she sustained a recurrence of
disability on February 2, 2002 due to the accepted November 20, 1985 employment injury;
(2) whether appellant met her burden of proof to establish that she developed a back injury
causally related to factors of her federal employment; and (3) whether appellant met her burden
of proof to establish that she developed bilateral carpal tunnel syndrome causally related to
factors of her federal employment
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY -- ISSUE 1
On November 20, 1985 appellant, then a 39-year-old mail clerk, sustained a traumatic
injury to her right hand in the performance of duty. OWCP created File No. xxxxxx816. The
claim was accepted for right villonodular synovitis of the hand.2
On July 10, 2010 appellant filed a Form CA-2a alleging that she sustained a recurrence of
disability on February 2, 2002 due to her accepted 1985 injury.3 She noted her recurrence of
disability as bilateral carpal tunnel syndrome due to typing daily at work. The employing
establishment controverted the claim stating that appellant had retired as of July 1, 2008 with
other claims pending before OWCP.4
In narrative statements dated May 15 and June 10, 2010, appellant alleged that her back
pain and injury was a result of 28 years of lifting, pushing and pulling heavy equipment in her
employment. She developed carpal tunnel from keying mail and typing. Appellant further stated
that she was claiming a recurrence of carpal tunnel syndrome for her right hand and was filing a
new occupational disease for her left hand and back injury.
By letter dated January 12, 2011, OWCP informed appellant that the evidence of record
was insufficient to support her claim. It informed her that her original claim was accepted for
right hand villonodular synovitis and requested that she provide additional factual and medical
evidence within 30 days.
By letter dated February 10 and March 5, 2011, appellant stated that her right wrist and
hand never healed from her November 20, 1985 injury. She complained of numbness, tingling,
soreness and weakness due to lifting tubs of mail. Appellant noted that she did not realize that
she had a left hand injury until an electromyography (EMG) test in 2008. She stated that she was
a clerk for about 13 years and would key mail for 8 to 10 hours a day. For approximately 12
hours a day, appellant would twist, bend and lift heavy tubs of mail weighing up to 70 pounds
and push and pull heavy equipment. She stated that the repetitive motions of labeling and keying
mail caused her hand problems. In 1993 appellant was promoted to a supervisor and her duties

2

Appellant received a schedule award for five percent impairment to her upper right extremity.

3

On February 22, 2010 appellant filed an occupational disease claim (Form CA-2) in File No. xxxxxx992
alleging that she developed degenerative disc disease and lumbar disc herniation from pulling, pushing and lifting as
a result of her employment duties. On June 10, 2010 she filed a notice of occupational disease claim (Form CA-2)
in File No. xxxxxx924 alleging that she developed bilateral carpal tunnel syndrome as a result of her employment
duties which included lifting and keying mail and pushing and pulling heavy equipment. On August 13, 2008
appellant filed an emotional condition claim (Form CA-2) in File No. xxxxxx802 alleging emotional distress and
stress as a result of her employment duties. OWCP combined File No. xxxxxx816, File No. xxxxxx992, File
No. xxxxxx924 and File No. xxxxxx802 into master claim File No. xxxxxx816.
4

The Board notes that in claim File No. xxxxxx802, appellant was subjected to disciplinary action for falsifying
her time cards and placed in an emergency administrative action status on January 24, 2007 for six months, pending
disciplinary action. On September 6, 2007 she received a notice of proposed removal. Effective January 5, 2008,
appellant was downgraded to the position of a Grade 5 part-time flexible window clerk at an alternative work
location. Appellant was further downgraded to a Grade 3 mail handler effective February 5, 2008.

2

included typing for two to three hours a day, some lifting and occasionally pushing and pulling
heavy equipment.
By decision dated April 19, 2011, OWCP denied appellant’s recurrence claim noting that
no medical evidence was provided. It further noted that her original November 20, 1985 injury
was for villonodular synovitis of the hand and that her claim had never been accepted for carpal
tunnel syndrome.
By letter dated May 2, 2011, appellant requested reconsideration of OWCP’s decision.
By decision dated June 6, 2011, OWCP denied appellant’s recurrence claim finding that
the evidence was insufficient to establish that her postal duties worsened her accepted upper
extremity injury.5
FACTUAL HISTORY -- ISSUE 2
On February 22, 2010 appellant, then a 54-year-old retired mail clerk, filed an
occupational disease claim (Form CA-2) alleging that she developed degenerative disc disease
and lumbar disc herniation from pulling, pushing and lifting in her federal employment over the
last 29 years. She first became aware of her condition on March 22, 2007 and of its relationship
to her employment on August 22, 2007. OWCP opened File No. xxxxxx992. The employing
establishment controverted the claim and stated that appellant retired on July 1, 2008.
In a May 18, 2009 narrative statement, appellant reported that she sustained degenerative
disc disease, disc herniation, hypertension, depressive disorder, permanent partial impairment of
the right upper extremity, right carpal tunnel syndrome and scapio lunatic disassociation due to
her federal employment duties which included heavy lifting, pushing and pulling equipment.
In an August 28, 2007 magnetic resonance imaging (MRI) scan of appellant’s lumbar
spine, Dr. Jennifer R. Menick-Thieman, Board-certified in family medicine, reported that there
were changes of spondylosis with multiple degenerated discs, minimal spondylolisthesis of L4
on L5 secondary to degenerative facet joint disease, a central and right lateral disc herniation at
the L5-S1 level and minimal central protrusion of the disc at the L4-L5 level.
In January 22 and May 30, 2008 medical reports, Dr. Menick-Thieman reported that
appellant had degenerative disc disease at multiple levels and a right disc herniation at L5-S1
commencing approximately in August 2007. She stated that appellant was incapacitated and
unable to perform her work duties secondary to unrelenting pain radiating to her right leg.
Dr. Menick-Thieman opined that appellant would not recover from her incapacities and
recommended physical therapy and continued treatment.

5

The Board notes that in its June 6, 2011 decision, OWCP issued one decision regarding appellant’s three claims
on appeal, File No. xxxxxx816, File No. xxxxxx992 and File No. xxxxxx924. Appellant did not appeal OWCP’s
April 23, 2010 denial of her emotional condition claim, File No. xxxxxx802 and OWCP did not address this claim in
its June 6, 2011 decision.

3

In an April 22, 2008 medical report, Dr. Michael J. Kochanski, a treating chiropractor,
reported that he treated appellant since October 8, 2007 for low back pain with sciatica on the
right with foot numbness. He diagnosed lumbar pain due to degenerative disc and joint disease
resulting in lateral canal stenosis causing radicular symptoms. Dr. Kochanski opined that
prolonged standing, sitting, occasional bending, lifting and work-related stress could cause
appellant’s condition to regress and recommended she not work full time.
In a November 17, 2008 report, Dr. Kochanski stated that an October 17, 2008 lumbar xray revealed subluxations in appellant’s lumbar spine. He noted that her lumbar pain was due to
subluxations which led to degenerative changes in the spine, the most prominent seen at L4-L5.
Dr. Kochanski opined that appellant’s condition was due to prolonged and repetitive stress on
her lumbar spine and was a result of years of her postal service work duties.
By letter dated April 21, 2010, OWCP informed appellant that the evidence of record was
insufficient to support her claim. It requested that she provide additional factual and medical
evidence within 30 days.
In a May 15, 2010 narrative statement, appellant reported that her leg and back pain
began while working for the postal service. She stated that she had recurring back pain but did
not know that she had a herniated disc until her August 28, 2008 MRI scan. Appellant noted that
her pain became worse with sitting, standing and walking and that her injury was a result of 28
years of lifting, pushing and pulling at her employment.
By letter dated May 19, 2010, the employing establishment controverted the claim.
In support of her claim, appellant submitted medical reports dated June 30 and July 6,
2010 from Dr. Menick-Thieman who stated that appellant’s initial August 28, 2007 MRI scan
report of the lumbar spine showed a central and right lateral disc herniation. An April 2, 2009
MRI scan of the cervical spine showed multilevel spinal stenosis with spinal cord compression.
By decision dated September 16, 2010, OWCP denied appellant’s claim finding that the
medical evidence did not demonstrate that her degenerative disc disease and lumbar disc
herniation were causally related to the established employment-related duties.
On October 15, 2010 appellant requested a telephone hearing before an OWCP hearing
representative.
In support of her request, appellant submitted progress notes dated October 15 to
December 18, 2001 noting treatment for lower back pain. She also submitted physical therapy
notes dated September 11, 2007 to June 26, 2008 for her lower back condition.
At the February 7, 2011 hearing, appellant testified that she began working for the postal
service on July 17, 1979. As a clerk, her duties included keying mail, lifting mail up to 70
pounds, casing mail, putting mail on the belt, loading mail in containers and bending and lifting
overhead for 8 to 10 hours a day, an average of six days a week. Appellant stated that in 1993
she became a supervisor which required helping limited and light-duty employees perform the
same clerk duties she was performing before, including lifting mail into and out of the containers
weighing up to 70 pounds for an average of eight hours a day, five days a week. She testified
4

that she retired on July 1, 2008. Appellant noted that she sought treatment for her back problem
in 2001 and learned she had a herniated disc after an MRI scan in 2007, which she attributed to
her federal employment duties as a clerk and supervisor. The record was held open for 30 days.
In a September 5, 2010 medical report, Dr. Menick-Thieman stated that appellant
sustained a work injury in March 2007.6 She diagnosed herniated disc with spinal stenosis at
C3-4, C4-5, C5-6, herniated disc with spinal stenosis of the lumbar spine, hyperlipidemia, right
hermicolectomy and partial hysterectomy.
In a September 30, 2010 report, Dr. Kochanski stated that he had been treating appellant
since October 8, 2007 for intersegmental lumbar dysfunction, lumbar disc syndrome, lumbar disc
degeneration, sciatica and spondylosis without myelopathy. He opined that the repetitive trauma
to the low back that occurred while working for the postal service caused damage and
degenerative changes to her lumbar discs, joints and surrounding soft tissue. Dr. Kochanski
concluded that the repetitive “wear and tear” caused instability in her low back, making it prone
to injury.
In a March 3, 2011 medical report, Dr. N.R. Patel, Board-certified in internal medicine,
reported that, based upon physical examination and review of appellant’s diagnostic tests, she
had herniated disc with spinal stenosis at C3-4, C4-5, C5-6 and herniated disc with spinal
stenosis in the lumbar spine. He opined that given the type of work duties and repetitive
activities of pushing, pulling, standing, twisting, bending, typing and heavy lifting, that appellant
developed her disability from work and that her carpal tunnel was caused by the repetitive
movements and typing duties in the employing establishment.
By decision dated March 25, 2011, OWCP affirmed its September 16, 2010 decision
finding that the medical evidence did not establish that appellant’s injury was causally related to
the accepted factors of her federal employment. It noted that x-rays of her spine were not taken
until November 17, 2008, approximately two to three months after her retirement on
July 1, 2008.
On April 27, 2011 appellant, through her representative, requested reconsideration of
OWCP’s decision. Appellant resubmitted her August 28, 2007 lumbar MRI scan and noted that
it was taken prior to her retirement on July 1, 2008.
By decision dated June 6, 2011, OWCP affirmed its March 25, 2011 decision finding that
the evidence was insufficient to establish that appellant’s back and spine condition was causally
related to the established factors of her federal employment.
FACTUAL HISTORY -- ISSUE 3
On June 10, 2010 appellant, then a 54-year-old retired mail clerk, filed a notice of
occupational disease claim (Form CA-2) alleging that she developed bilateral carpal tunnel
syndrome as a result of her employment duties which included lifting and keying mail and
6

There is no information on any employment-related injury from March 2007 in the record before the Board on
appeal.

5

pushing and pulling heavy equipment. She first became aware of her condition and of its
relationship to her employment on January 22, 2007. OWCP assigned File No. xxxxxx924.
The employing establishment controverted the claim stating that appellant retired on
July 1, 2008.
In a May 15 and June 10, 2010 narrative statement, appellant reported that her hand
injuries were a result of keying mail as a clerk for 8 to 10 hours a day. In 1993 she was
promoted to a supervisor and keyed mail for two hours a day. Appellant further noted that her
carpal tunnel syndrome was a result of her typing duties. She stated that her hand pain dated
back to 1986.
By letter dated August 31, 2010, OWCP stated that appellant should pursue her back
injury claim under claim File No. xxxxxx992 and pursue her carpal tunnel syndrome under this
claim, File No. xxxxxx924. It informed her that the evidence of record was insufficient to
support her claim and requested additional factual and medical evidence within 30 days.
In a November 15, 2009 medical report, Dr. Lenny Cohen, a Board-certified neurologist,
reported appellant’s nerve conduction study revealed abnormal. He further noted that there was
electrodiagnostic evidence of a mild right and moderate left distal median neuropathy at the
wrist, as seen in carpal tunnel syndrome, superimposed by a chronic radiculopathy at C5-6 level
bilaterally.
By letter dated September 23, 2010, the employing establishment controverted the claim.
In a September 29, 2010 narrative statement, appellant reported that she worked as a
clerk from 1979 to 1993. Her duties included keying mail, lifting up to 70 pounds and pushing
and pulling heavy equipment. In 1993, appellant was promoted to a supervisor and her duties
included keying mail and writing reports through the continual movement of her hand and wrist.
She stated that she had carpal tunnel syndrome in her wrist since 1985 which never healed.
In medical reports dated September 30, 2009 to September 15, 2010, Dr. Robert
Wysocki, a Board-certified orthopedic surgeon, reported that appellant had a history of bilateral
hand numbness and tingling which dated back to 1986 when she was diagnosed with carpal
tunnel syndrome. Upon physical examination and review of appellant’s September 15, 2009
electromyogram (EMG) nerve conduction study, he diagnosed bilateral carpal tunnel syndrome
and recommended surgical intervention.
In medical reports dated June 30 and September 23, 2010, Dr. Menick-Thieman
diagnosed carpal tunnel syndrome and cleared appellant for carpal tunnel release surgery.
By decision dated December 6, 2010, OWCP denied appellant’s claim finding that the
medical evidence failed to establish that her carpal tunnel syndrome was causally related to her
accepted employment factors.
On May 18, 2011 appellant requested reconsideration of OWCP’s decision.
In medical reports dated February 2 and May 9, 2011, Dr. John D. Sonnenberg, a Boardcertified orthopedic surgeon, reported that appellant was a retired postal employee who sought
6

treatment with him in November 2010 for numbness in both hands. He noted that appellant was
a postal employee for 29 years and that her work activities included typing, working with a
keyboard and pushing and pulling repetitively. Dr. Sonnenberg further noted that she suffered
injuries to both hands while she was employed. Upon physical examination and review of
appellant’s nerve conduction study, he diagnosed bilateral carpal tunnel syndrome.
Dr. Sonnenberg opined that appellant’s carpal tunnel was a direct result of her repetitive work
activities and that the constant use of her hands over many years provided the mechanism of
development due to repetitive actions. He also noted that physical examination was consistent
with appellant’s account of her employment activities and the lack of other vocational activities
or injuries which could cause this problem.
In a February 8, 2011 medical report, Dr. Subhash K. Shah, a Board-certified neurologist
reported that an EMG study provided evidence of carpal tunnel syndrome and radiculopathy.
Dr. Shah noted that the electrical findings were suggestive of bilateral carpal tunnel syndrome,
right greater than left and there could be mild distal axonal involvement of the right median
nerve.
In a March 3, 2011 medical report, Dr. Patel diagnosed carpal tunnel syndrome and
herniated disc. He opined that, given the type of work duties and repetitive activities of pushing,
pulling, standing, twisting, bending, typing and heavy lifting, that appellant developed her
disability from work and that her carpal tunnel was caused by the repetitive movements and
typing duties in the employing establishment.
By decision dated June 6, 2011, OWCP found that the evidence was insufficient to
establish that appellant’s upper extremity condition was causally related to the accepted factors
of her federal employment.
LEGAL PRECEDENT -- ISSUE 1
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.7
OWCP procedures state that a recurrence of disability includes a work stoppage caused
by a spontaneous material change, demonstrated by objective findings, in the medical condition
that resulted from a previous injury or occupational illness without an intervening injury or new
exposure to factors causing the original illness. It does not include a condition that results from a
new injury, even if it involves the same part of the body previously injured.8

7

20 C.F.R. § 10.5(x); see S.F., 59 ECAB 525 (2008). See 20 C.F.R. § 10.5(y) (defines recurrence of a medical
condition as a documented need for medical treatment after release from treatment for the accepted condition).
8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(b) (May 1997).
Kenneth R. Love, 50 ECAB 193, 199 (1998).

7

A person who claims a recurrence of disability due to an accepted employment-related
injury has the burden of establishing by the weight of the substantial, reliable and probative
evidence that the disability for which she claims compensation is causally related to the accepted
injury. This burden of proof requires that an employee furnish medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes
that the disabling condition is causally related to the employment injury and supports that
conclusion with sound medical reasoning.9 Where no such rationale is present, medical evidence
is of diminished probative value.10 To establish that a claimed recurrence of the condition was
caused by the accepted injury, medical evidence of bridging symptoms between the present
condition and the accepted injury must support the physician’s conclusion of a causal
relationship.11
ANALYSIS -- ISSUE 1
OWCP found that appellant sustained a traumatic injury on November 20, 1985 and
accepted her claim for right hand villonodular synovitis. Appellant claimed a recurrence of
disability as of February 2, 2002 due to residuals of her accepted hand injury. She did not claim
any lost time from work. The medical evidence of record, however, is insufficient to establish
that appellant sustained a recurrence of disability as a result of her accepted injury. Therefore,
she has failed to meet her burden of proof.
On her Form CA-2a, appellant claimed a recurrence of her right-handed carpal tunnel
syndrome. The Board notes, however, that her original November 20, 1985 claim was not
accepted for carpal tunnel syndrome. Rather, the claim was accepted for right hand villonodular
synovitis. Appellant has not provided any medical evidence noting a spontaneous worsening of
her right hand villonodular synovitis.
Further, the record does not contain a rationalized medical opinion supporting that
appellant’s current right hand carpal tunnel syndrome is causally related to her 1985 injury of
right hand villonodular synovitis. Appellant did not submit any medical evidence in this claim,
File No. xxxxxx816. She did, however, provide a number of medical reports in claim
Nos. xxxxxx992 and xxxxxx924 which provided a diagnosis of bilateral carpal tunnel syndrome.
In medical reports dated September 30, 2009 to September 15, 2010, Dr. Wysocki
diagnosed bilateral carpal tunnel syndrome, noting that appellant had a history of bilateral hand
numbness and tingling dating back to 1986 when she was initially diagnosed with carpal tunnel
syndrome. His medical report is insufficient to establish that appellant’s carpal tunnel syndrome
is causally related to her 1985 hand injury. While Dr. Wysocki noted symptoms of hand
numbness and tingling dating back to 1986, he attributes appellant’s symptoms to carpal tunnel
syndrome and not her accepted right hand villonodular synovitis. He failed to provide an
9

Mary A. Ceglia, 55 ECAB 626 (2004).

10

See Ronald C. Hand, 49 ECAB 113 (1997); Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

11

C.W., Docket No. 07-1816 (issued January 16, 2009).

8

opinion that appellant was disabled as a result of her 1985 accepted right hand injury and did not
explain how her disabling condition was causally related to the employment injury. Therefore,
Dr. Wysocki’s reports are of diminished probative value.12
In medical reports dated February 2 and May 9, 2011, Dr. Sonnenberg reported that
appellant was a retired postal employee who sought treatment with him in November 2010 for
numbness in both hands. He noted that she suffered injuries to both hands while she was
employed. Dr. Sonnenberg diagnosed bilateral carpal tunnel syndrome and opined that her
injury was a direct result of her repetitive work activities and that the constant use of her hands
over many years at the postal service. He further reported that physical examination was
consistent with appellant’s account of her employment activities and the lack of other vocational
activities and injuries which could cause this problem.
Dr. Sonnenberg’s reports do not establish a causal relationship between appellant’s
accepted right hand villonodular synovitis in 1985 and her current bilateral carpal tunnel
syndrome. Rather, he attributed appellant’s bilateral carpal tunnel syndrome to the daily
occupational duties of her position as a mail clerk. These constitute new employment exposures
rather than spontaneous recurrence of disability.13 Dr. Sonnenberg even opined that appellant’s
bilateral carpal tunnel syndrome was not a result of other injuries. As he failed to explain how
appellant’s current condition was causally related to the accepted injury, Dr. Sonnenberg’s
reports are of limited probative value.14
In a March 3, 2011 medical report, Dr. Patel diagnosed herniated disc with spinal stenosis
in lumbar spine and carpal tunnel syndrome. He opined that given the type of work duties and
repetitive activities of pushing, pulling, standing, twisting, bending, typing and heavy lifting, that
appellant developed her disability from work and that her carpal tunnel was caused by the
repetitive movements and typing duties in the postal service. Dr. Patel has attributed her
bilateral carpal tunnel syndrome to her daily occupational duties. Thus, he opined that
appellant’s claimed disability was not a spontaneous occurrence, but was a new injury.
Therefore, Dr. Patel’s report is of limited probative value.15
The remaining medical evidence of record is also insufficient to establish a causal
relationship between appellant’s accepted right hand villonodular synovitis in 1985 and her
current bilateral carpal tunnel syndrome. Dr. Cohen’s November 15, 2009 report revealed
electro diagnostic evidence of a mild right and moderate left distal median neuropathy at the
wrist, as seen in carpal tunnel syndrome. In medical reports dated June 30 and September 23,
2010, Dr. Menick-Thieman diagnosed carpal tunnel syndrome and cleared appellant for carpal
tunnel release surgery. Dr. Shah’s February 8, 2011 report provided a diagnosis of bilateral
carpal tunnel syndrome and radiculopathy. While appellant’s physicians provided a diagnosis of
12

See supra note 10.

13

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

14

L.G., Docket No. 10-608 (issued November 2, 2010).

15

L.G., Docket No. 11-142 (issued August 12, 2011).

9

bilateral carpal tunnel syndrome, none of the reports explained how the newly diagnosed injury
was causally related to the only accepted condition, namely right hand villonodular synovitis,
rather than to an intervening event or new exposure to her work environment. Medical evidence
which does not offer an opinion regarding the cause of an employee’s condition is of limited
probative value on the issue of causal relationship.16 Therefore, the remaining reports are
insufficient to establish appellant’s claim.
Appellant did not submit any medical reports from a physician who, on the basis of a
complete and accurate factual and medical history, concluded that she was totally disabled as of
February 2, 2002 due to residuals of her accepted injury.17 None of the medical reports
submitted establish a causal relationship between appellant’s accepted right hand villonodular
synovitis in 1985 and her current bilateral carpal tunnel syndrome.18 As appellant has not
submitted any medical evidence showing that she sustained a recurrence of disability due to her
accepted employment injury, the Board finds that she has not met her burden of proof.
LEGAL PRECEDENT -- ISSUES 2 & 3
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was 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
employment injury.19 These are the essential elements of every compensation claim regardless
of whether the claim is predicated on a traumatic injury or an occupational disease.20
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.21 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
16

A.D., 58 ECAB 149 (2006); Michael E. Smith, 50 ECAB 313 (1999).

17

Id.

18

M.J., Docket No. 11-1092 (issued December 14, 2011).

19

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

20

Michael E. Smith, 50 ECAB 313 (1999).

21

Elaine Pendleton, 40 ECAB 1143 (1989).

10

for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.22
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.23 The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant. This medical opinion
must include an accurate history of the employee’s employment injury and must explain how the
condition is related to the injury. The weight of medical evidence is 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.24
ANALYSIS -- ISSUE 2
OWCP accepted that appellant engaged in repetitive lifting, pushing and pulling in her
employment activities as a mail clerk. It denied her claim, however, on the grounds that the
evidence failed to establish a causal relationship between those activities and her back injuries.
The Board finds that the medical evidence of record is insufficient to establish that appellant
sustained a back injury causally related to factors of her employment as a mail clerk.
In medical reports dated August 28, 2007 to September 5, 2010, Dr. Menick-Thieman
noted that appellant sustained a work injury in March 2007. He stated that appellant’s initial
August 28, 2007 MRI scan report of the lumbar spine showed a central and right lateral disc
herniation and reported that appellant had degenerative disc disease at multiple levels
commencing approximately in August 2007. An April 2, 2009 MRI scan of the cervical spine
showed multilevel spinal stenosis with spinal cord compression. Dr. Menick-Thieman further
stated that appellant was incapacitated and unable to perform her work duties secondary to
unrelenting pain radiating to her right leg.
Dr. Menick-Thieman did not determine that appellant’s condition was work related and
did not offer a rationalized opinion on causal relationship between appellant’s diagnosed
conditions and the factors of employment implicated in the claim.25 Though the physician
provided a diagnosis, none of her reports mentioned an opinion on the cause of appellant’s back
condition. Further, her medical reports noted that appellant sustained a work injury in

22

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

23

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

24

James Mack, 43 ECAB 321 (1991).

25

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).

11

March 2007 but provided no details regarding this incident or injury.26 This makes it unclear if
appellant’s back condition is a result of a traumatic injury from March 2007 rather than an injury
produced by appellant’s work environment over a period longer than a single workday or shift,
as alleged by appellant in this claim.27 Medical reports not containing adequate rationale on
causal relationship are of diminished probative value on that issue and are insufficient to meet an
employee’s burden of proof.28 Therefore, Dr. Menick-Thieman’s medical reports are insufficient
to meet appellant’s burden of proof.
In medical reports dated April 22, 2008 to September 30, 2010, Dr. Kochanski, a
chiropractor, reported that he had been treating appellant since October 8, 2007 for low back
pain with sciatica on the right with foot numbness. He diagnosed lumbar pain due to
degenerative disc and joint disease resulting in lateral canal stenosis causing radicular symptoms
and opined that prolonged standing, sitting, occasional bending, lifting and work-related stress
could cause her condition to regress. In a November 17, 2008 report, Dr. Kochanski stated that
an October 17, 2008 lumbar x-ray revealed subluxations in appellant’s lumbar spine. He noted
that her lumbar pain was due to subluxations which led to degenerative changes in the spine, the
most prominent seen at L4-L5. Dr. Kochanski opined that appellant’s condition was due to
prolonged and repetitive stress on her lumbar spine and was a result of years of working for the
postal service. He further opined that the repetitive trauma to the low back that occurred while
working for the postal service caused damage and degenerative changes to her lumbar discs,
joints and surrounding soft tissue. He concluded that the repetitive “wear and tear” caused
instability in her low back, making it prone to injury.
In assessing the probative value of chiropractic evidence, the initial question is whether
the chiropractor is considered a physician under 5 U.S.C. § 8101(2). A chiropractor is not
considered a physician under FECA unless it is established that there is a spinal subluxation as
demonstrated by x-ray to exist.29 As Dr. Kochanski diagnosed subluxation of the lumbar spine
from an October 17, 2008 x-ray, he is considered to be a “physician” under FECA.30
The Board finds, however, that Dr. Kochanski’s reports are insufficient to establish that
appellant sustained an injury as a result of her employment duties. While Dr. Kochanski stated
an opinion on causal relationship, he failed to provide an explanation of how appellant’s work
duties would cause her spinal subluxation. He also failed to adequately describe appellant’s
work duties, did not specify how long she worked as clerk and the periods and the frequency of

26

There is no information on any employment-related injury from March 2007 in the record before the Board on
appeal.
27

A traumatic injury means a condition of the body caused by a specific event or incident, or series of events or
incidents, within a single workday or shift. 20 C.F.R. § 10.5(ee). An occupational disease is defined as a condition
produced by the work environment over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
28

Ceferino L. Gonzales, 32 ECAB 1591 (1981).

29

See Kathryn Haggerty, 45 ECAB 383 (1994).

30

A chiropractor may interpret his x-rays to the same extent as any other physician. 20 C.F.R. § 10.311(c). See
Mary A. Ceglia, 55 ECAB 626 (2004).

12

other physical movements and tasks. Medical reports without adequate rationale on causal
relationship are of diminished probative value and do not meet an employee’s burden of proof.31
While Dr. Kochanski made other diagnoses, including degenerative changes of the spine
and joint disease, as a chiropractor, he is limited to the diagnosis and treatment of a spinal
subluxation. He is not considered a physician for diagnosis and treatment of the other diagnosed
conditions.32 Dr. Kochanski’s opinion regarding the cause of these conditions is still of no
probative value.
In a March 3, 2011 medical report, Dr. Patel diagnosed appellant with herniated disc with
spinal stenosis at C3-4, C4-5, C5-6 and herniated disc with spinal stenosis in the lumbar spine.
He opined that given the type of work duties and repetitive activities of pushing, pulling,
standing, twisting, bending, typing and heavy lifting, that appellant developed her disability from
work.
The Board finds that the opinion of Dr. Patel is not well rationalized. Dr. Patel failed to
provide an adequate history of appellant’s back condition. While he concluded that appellant’s
work activities caused her herniated disc and spinal stenosis, he failed to explain how these
activities would cause her injury. Further, Dr. Patel did not specify how long she worked as
clerk, the number of hours she worked a day and the periods and frequency of the physical
movements and tasks. The opinion of a physician supporting causal relationship must rest on a
complete factual and medical background supported by affirmative evidence, address the specific
factual and medical evidence of record and provide medical rationale explaining the relationship
between the diagnosed condition and the established incident or factor of employment.33
Without medical reasoning explaining how appellant’s work duties caused or contributed to her
back condition, Dr. Patel’s report is insufficient to meet appellant’s burden of proof.34
The remaining medical evidence is also insufficient to establish a causal relationship
between appellant’s back injuries and factors of her federal employment. Appellant submitted
unsigned progress notes dated October 15 to December 18, 2001 noting treatment for lower back
pain. While this supports her allegation that her back condition began while she was employed
for the post service, medical reports lacking proper identification, such as unsigned treatment
notes, do not constitute probative medical evidence.35 Appellant also submitted physical therapy
notes dated September 11, 2007 to February 13, 2008 for her lower back condition. Physical

31

Supra note 29.

32

K.L., Docket No. 11-955 (issued October 18, 2011).

33

See Lee R. Haywood, 48 ECAB 145 (1996).

34

C.B., Docket No. 08-1583 (issued December 9, 2008).

35

See R.M., 59 ECAB 690 (2008); see also 5 U.S.C. § 8101(2).

13

therapists are not physicians under FECA; therefore, their reports do not constitute competent
medical evidence in support of a claim.36
In the instant case, the record lacks rationalized medical evidence establishing a causal
relationship between appellant’s back injuries and her employment duties as a mail clerk. Thus,
appellant has failed to meet her burden of proof.
ANALYSIS -- ISSUE 3
OWCP accepted that appellant engaged in repetitive typing and keying mail in her
employment activities as a mail clerk. It denied her claim, however, on the grounds that the
evidence failed to establish a causal relationship between those activities and her bilateral carpal
tunnel syndrome. The Board finds that the medical evidence of record is insufficient to establish
that appellant sustained bilateral carpal tunnel syndrome causally related to factors of her
employment as a mail clerk.
In medical reports dated February 2 and May 9, 2011, Dr. Sonnenberg reported that
appellant was a retired postal employee who sought treatment with him in November 2010 for
numbness in both hands. He further noted that she suffered injuries to both hands while she was
employed. Dr. Sonnenberg reported that appellant worked for the postal service for 29 years and
that her work activities involved constant repetitive activities with her hands which included
typing, working with a keyboard, pushing and pulling and lifting heavy tubs and trays. Upon
physical examination and review of appellant’s nerve conduction study, Dr. Sonnenberg
diagnosed bilateral carpal tunnel syndrome. He opined that appellant’s carpal tunnel was a direct
result of her repetitive work activities and the constant use of her hands over many years
provided the mechanism of development for carpal tunnel syndrome due to repetitive actions.
Dr. Sonnenberg also noted that physical examination was consistent with appellant’s account of
her employment activities and lack of other vocational activities and injuries which could cause
this problem.
The Board finds that the opinion of Dr. Sonnenberg is not well rationalized.
Dr. Sonnenberg diagnosed bilateral carpal tunnel syndrome and attributed appellant’s injury to
repetitive activities with her hands such as typing, working with a keyboard, pushing, pulling and
lifting heavy tubs and trays over her 29 years as a postal employee. He did not provide any
account of appellant’s medical history other than stating she suffered injuries to both of her
hands while she was employed. It is unclear if Dr. Sonnenberg is referring to her current
condition of carpal tunnel syndrome or a different employment-related hand injury. He did not
make any mention of appellant’s November 20, 1985 right hand injury of villonodular synovitis
in claim File No. xxxxxx816, whether it had resolved and how it could be related to appellant’s
current condition. Without identifying appellant’s previous hand injuries, it appears that
Dr. Sonnenberg did not have a proper factual background to make the determination that
appellant’s bilateral carpal tunnel syndrome was not a result of a preexisting condition. While
36

5 U.S.C. § 8102(2) of FECA provides as follows: (2) ‘physician’ includes surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as
defined by State law; see also Jennifer L. Sharp, 48 ECAB 209 (1996); Thomas R. Horsfall, 48 ECAB 180 (1996);
Barbara J. Williams, 40 ECAB 649 (1988).

14

Dr. Sonnenberg stated an opinion on causal relationship, he failed to provide an explanation of
how appellant’s work factors would cause her bilateral carpal tunnel syndrome other than stating
repetitive activities. Further, he failed to adequately describe appellant’s work duties, did not
specify the number of hours she worked in a day and the days per week, how many hours she
typed, pushed, pulled and lifted tubs in a day and the periods and the frequency of other physical
movements and tasks. Medical reports without adequate rationale on causal relationship are of
diminished probative value and do not meet an employee’s burden of proof.37 The opinion of a
physician supporting causal relationship must rest on a complete factual and medical background
supported by affirmative evidence, address the specific factual and medical evidence of record
and provide medical rationale explaining the relationship between the diagnosed condition and
the established incident or factor of employment.38 Dr. Sonnenberg’s reports do not meet that
standard and are insufficient to meet appellant’s burden of proof.
In a March 3, 2011 medical report, Dr. Patel diagnosed herniated disc with spinal stenosis
in lumbar spine and carpal tunnel syndrome. He opined that given the type of work duties and
repetitive activities of pushing, pulling, standing, twisting, bending, typing and heavy lifting, that
appellant developed her disability from work and that her carpal tunnel was caused by the
repetitive movements and typing duties in the postal service.
Dr. Patel’s report failed to address appellant’s prior medical history regarding her carpal
tunnel syndrome as well as any other prior hand injuries. He did not set out adequate detail
pertaining to appellant’s work duties. While Dr. Patel opined that her bilateral carpal tunnel
syndrome was a result of her repetitive movements and typing duties at the post office, he failed
to provide an opinion on how this would contribute to or aggravate her injury. Medical reports
not containing adequate rationale on causal relationship are of diminished probative value and
are insufficient to meet an employee’s burden of proof.39 Thus, Dr. Patel’s report is insufficient
to meet appellant’s burden of proof in establishing causal relationship between her bilateral
carpal tunnel syndrome and her factors of employment as a mail clerk.
The remaining medical evidence of record is also insufficient to establish a causal
relationship between appellant’s bilateral carpal tunnel syndrome and her employment duties.
Dr. Wysocki’s reports dated September 30, 2009 to September 15, 2010 diagnosed bilateral
carpal tunnel syndrome, noting that appellant had a history of carpal tunnel syndrome dating
back to 1986. Dr. Cohen’s November 15, 2009 report revealed electrodiagnostic evidence of a
mild right and moderate left distal median neuropathy at the wrist, as seen in carpal tunnel
syndrome. In medical reports dated June 30 and September 23, 2010, Dr. Menick-Thieman
diagnosed carpal tunnel syndrome and cleared appellant for carpal tunnel release surgery.
Dr. Shah’s February 8, 2011 report provided a diagnosis of bilateral carpal tunnel syndrome and
radiculopathy.

37

Supra note 29.

38

Supra note 34.

39

Supra note 29.

15

While the above medical records addressed appellant’s treatment and injury, the
physicians failed to state any causal relationship between appellant’s bilateral carpal tunnel
syndrome and her factors of employment as a mail clerk. The Board has held that 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.40 Without medical reasoning
explaining how appellant’s employment caused her bilateral carpal tunnel syndrome, these
reports are not sufficient to meet appellant’s burden of proof.41
Appellant has failed to submit any rationalized medical evidence to establish that her
bilateral carpal tunnel syndrome is causally related to factors of her federal employment. In this
claim, appellant is alleging an occupational injury from her overall duties as a mail clerk. In the
instant case, the record lacks rationalized medical evidence establishing a causal relationship
between the accepted factors of employment and appellant’s bilateral carpal tunnel syndrome.
Thus, appellant has failed to meet her burden of proof.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant failed to establish that she sustained a recurrence disability
commencing February 2, 2002 due to her accepted November 20, 1985 employment injury.
The Board also finds that appellant did not meet her burden of proof to establish that her
back injuries are causally related to factors of her employment as a mail clerk.
The Board further finds that appellant did not meet her burden of proof to establish that
her bilateral carpal tunnel syndrome is causally related to factors of her employment as a mail
clerk.

40

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

41

Supra note 35.

16

ORDER
IT IS HEREBY ORDERED THAT the June 6, 2011 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 14, 2012
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

17


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
DEPARTMENT OF AGRICULTURE,
FIELDALE FARMS CORPORATION,
Cornelia, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 06-1855
Issued: April 16, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 8, 2006 appellant filed a timely appeal from a May 2, 2006 merit decision of
the Office of Workers’ Compensation Programs terminating her compensation benefits.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
appeal.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s compensation
benefits effective March 12, 2005 on the grounds that she no longer had any residuals or
disability causally related to her employment-related injuries; and (2) whether appellant
established that she had any continuing employment-related residuals or disability after
March 12, 2005.

FACTUAL HISTORY
On March 6, 2003 appellant, then a 43-year-old poultry food inspector, filed an
occupational disease claim alleging that she developed repeated upper respiratory infections and
multiple chemical sensitivity as a result of her exposure to chemicals at the employing
establishment, where she washed and cut up contaminated chickens. She stopped work on
June 1, 2002. On May 28, 2003 appellant’s claim was accepted for chemical-induced
pneumonitis and bronchitis. She was placed on the periodic rolls on July 13, 2003.1
The record contains a May 6, 2003 report from appellant’s treating physician,
Dr. Susan L. Tanner, a treating physician, who began treating appellant in June 2002 for multiple
chemical sensitivity after exposure to chlorine vapors and ozone in the workplace. Dr. Tanner
opined that appellant was not capable of continuing in the position as a line inspector due to her
sensitivities.
On June 14, 2004 the Office referred appellant, together with a statement of accepted
facts, to Dr. Mark D. Livezey, a Board-certified allergist and immunologist and a Board-certified
internist, for a second opinion examination to determine the extent of remaining injury-related
disability. In an August 27, 2004 report, Dr. Livezey opined that appellant did not have any
residuals from her accepted injury and that she was capable of performing the duties associated
with her date-of-injury job. He described appellant’s work history, indicating that her symptoms
began when she was exposed to ozone in 1998 and noted that she had smoked a pack of
cigarettes each day for the past 28 years. Dr. Livezey’s physical examination revealed a slight
respiratory wheeze. Ear canals and tympanic membranes were intact. A pulmonary function
study showed a small airway obstruction consistent with asthma or chronic obstructive
pulmonary disease (COPD). Allergy skin testing demonstrated intradermal reactivity to the dust
mite allergen. Testing for allergies to cat and dog dander, molds, spores, pollens and all foods
produced negative results. Dr. Livezey provided diagnoses of COPD and allergic rhinitis, with a
possible asthma/reactive airway disease component, including potential hyper-reactivity to
chemical fumes. He opined that exposure at work may have led to a temporary worsening of
symptoms, which would not be expected to continue for more than a few days or weeks at most,
beyond the exposure. Dr. Livezey recommended that appellant discontinue smoking, which was
the likely cause of any current respiratory symptoms. In an accompanying work capacity
evaluation, he stated that causation had not been established. Dr. Livezey opined that appellant
was able to work six hours per day, noting that her condition might be aggravated by temperature
extremes, airborne particles and gas/fumes.
The Office found a conflict in the medical opinion evidence between Drs. Tanner and
Livezey. The Office referred appellant, together with a statement of accepted facts, the case
record and a list of questions to be addressed, to Dr. Umbreen S. Lodi, a Board-certified allergist
and immunologist, for an impartial medical examination. In a January 7, 2005 report, Dr. Lodi
reviewed a history of appellant’s employment-related exposures and medical treatment, noting
1

A July 15, 2004 memorandum to the file reflects that appellant filed a traumatic injury claim
(File No. 062064742) that was accepted for pneumonitis and rhinitis secondary to chemical exposure. The Office
combined appellant’s respiratory claims on August 2, 2004. The record does not contain a copy of the traumatic
injury claim form.

2

that appellant had a history of emphysema. Physical examination revealed no lymphadenopathy.
Appellant’s lungs were clear. Nasal mucosa was red with slight cobblestone edema of the
posterior pharyngeal wall. A spirometry performed on December 10, 2004 revealed a forced
expiratory vital capacity (FVC) of 109 percent of predicted; an forced expiratory volume (FEV1)
of 89 percent of predicted; an FEV1/FVC ratio of 82 percent of predicted; and an forced
expiratory flow (FEF) 25 to 75 percent of 52 percent of predicted. Post-bronchodilator FEV1 had
improved to 97 percent of predicted and FEF 25 to 75 had improved to 65 percent. Skin prick
testing was negative to chicken and aeroallergens. Intradermal skin testing to allergens was
significantly positive to dust mites. Dr. Lodi stated that appellant’s underlying condition was
COPD due to chronic cigarette smoking, with bronchial hyper-reactivity and allergic rhinitis. He
indicated that exposure to chlorine or ozone in the workplace might have caused a temporary
worsening of symptoms due to bronchial hyper-reactivity, which should have resolved within a
few days or weeks at most, of exposure. Dr. Lodi opined that appellant did not continue to have
residuals of the work-related exposure and was capable of performing her duties, so long as
exposure to chlorine and ozone was avoided.
By letter dated February 1, 2005, the Office issued a notice of proposed termination of
appellant’s compensation and medical benefits, based on Dr. Lodi’s January 7, 2005 report. The
Office found that appellant’s temporary aggravation of her COPD had resolved. The Office
provided 30 days in which appellant could respond to this notice.
On February 23, 2005 appellant submitted a 14-page letter reiterating the history of her
condition and her contention that she has a medical condition and disability due to her work
injury. She stated that Dr. Lodi’s examination was not thorough. Appellant argued that, if she
returned to work, where she would be reexposed to chlorine, she would immediately experience
a chemically-induced pneumonitis and bronchitis. She provided copies of previously submitted
reports from Drs. Tanner, Livezey and Lodi. Appellant submitted a March 14, 2004 report from
Dr. Tanner reflecting her diagnosis of multiple chemical sensitivities with secondary COPD.
Dr. Tanner recommended that, although appellant had no respiratory symptoms at that time, she
should totally avoid volatile aromatic chemicals. In a July 29, 2004 report, she opined that
appellant would never be able to return to work in her position as a line inspector due to her
chemical sensitivities.
By decision dated March 7, 2005, the Office terminated appellant’s compensation and
medical benefits effective March 12, 2005 on the grounds that she no longer had any
employment-related residuals or disability. The Office accorded special weight to Dr. Lodi’s
January 7, 2005 medical opinion as an impartial medical specialist.
The record contains a May 4, 2004 form, signed by Ellen Click, resource management
specialist for the employing establishment. The form reflects that the employing establishment
was unable to reassign appellant to a position that would accommodate her medical restrictions.
In an April 7, 2005 letter, the employing establishment confirmed that the agency did not have
any vacant assignments within appellant’s commuting area which would allow her to work in an
environment free of chlorine and ozone.

3

On April 5, 2005 appellant requested an oral hearing, which was held on
February 13, 2006. At the oral hearing, she testified that her work exposure to ozone and
chlorine caused her emphysema and other respiratory conditions, as well as her current
sensitivity to all chemicals. The hearing representative informed appellant that the record would
remain open for 30 days for the submission of addition evidence.
Appellant submitted an April 1, 2005 report from Dr. John L. Wilson, a treating
physician, who obtained a factual and medical history from appellant and reviewed her medial
records. She reported that she experienced excessive ozone exposure at work in 1998, which
was followed by decreased tolerance to chlorine exposure. Dr. Wilson opined that appellant was
sensitized in the workplace, that her sensitivity had increased through time and that she must
avoid exposure to sensitizing chemicals. Appellant submitted an April 6, 2005 statement from
Connie Broome, who indicated that appellant had an allergic reaction to a bottle of scented hand
lotion. In an undated statement, Rita Moran, a union representative, noted that reports
employees had filed reflected that chlorine smells allegedly burned eyes and caused drowsiness.
In a May 19, 2001 statement, Dale Glaze questioned the safety of air quality at the Fieldale plant,
indicating that several inspectors had complained from time to time of being drowsy. Appellant
submitted several articles on exposure to respiratory toxicants from the American Academy of
Allergy, Asthma and Immunology. In a March 13, 2006 letter, Michelle Poindexter, a nurse
practitioner from the employing establishment, opined that appellant was not unable to work, but
was hypersensitive to chemical exposure.
By decision dated May 2, 2006, the hearing representative affirmed the Office’s March 7,
2005 termination of medical and compensation benefits. The representative found that the
weight of medical evidence, which was contained in Dr. Lodi’s January 7, 2005 report,
established that appellant had no employment-related residuals.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.2 After it has determined that, an employee has disability
causally related to her federal employment, the Office may not terminate compensation without
establishing that the disability has ceased or that it is no longer related to the employment.3 The
Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.4

2

Harold S. McGough, 36 ECAB 332 (1984).

3

Vivien L. Minor, 37 ECAB 541 (1986); David Lee Dawley, 30 ECAB 530 (1979); Anna M. Blaine, 26 ECAB
351 (1975).
4

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

4

The right to medical benefits for an accepted condition is not limited to the period of
entitlement to compensation for disability.5 To terminate authorization for medical treatment,
the Office must establish that appellant no longer has residuals of an employment-related
condition, which requires further medical treatment.6
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.7 When the case is referred to an impartial medical specialist for the
purpose of resolving the conflict, the opinion of such specialist, if sufficiently well rationalized
and based upon a proper factual background, must be given special weight.8
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for chemical induced pneumonitis and bronchitis
and placed her on the periodic rolls. The Office, therefore, bears the burden of justifying the
termination of appellant’s compensation for these medical conditions.
Finding a conflict in medical opinion between appellant’s treating physician, Dr. Tanner,
and Dr. Livezey, the second opinion examiner, the Office properly referred appellant to an
impartial medical specialist under section 8123(a) of the Federal Employees’ Compensation Act.
The Office provided Dr. Lodi with appellant’s case file and a statement of accepted facts, so that
he could base his opinion on a complete and accurate factual and medical history. Dr. Lodi
examined appellant and reported that the accepted conditions had unequivocally resolved. He
stated that appellant’s underlying condition was COPD due to chronic cigarette smoking, with
bronchial hyper-reactivity and allergic rhinitis. Noting that exposure to chlorine or ozone in the
workplace might have caused a temporary worsening of symptoms due to bronchial hyperreactivity, Dr. Lodi opined that the condition should have resolved within a few days or weeks at
most, of exposure. He opined that appellant did not continue to have residuals of the workrelated exposure and was capable of performing her duties, so long as exposure to chlorine and
ozone was avoided. The Board finds that Dr. Lodi provided a reasoned opinion that was based
on a proper history. His opinion is entitled to special weight and establishes that appellant no
longer suffered residuals of her accepted employment injury.
In response to the proposed notice of termination, appellant argued that if she returned to
work, where she would be reexposed to chlorine, she would immediately experience a
chemically-induced pneumonitis and bronchitis. Dr. Tanner recommended that although
appellant had no respiratory symptoms, she should totally avoid volatile aromatic chemicals.
The Board has repeatedly held that a fear of future injury is not a compensable factor of

5

Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas Olivarez, Jr., 32 ECAB 1019 (1981).

6

Wiley Richey, 49 ECAB 166 (1997); Furman G. Peake, supra note 5.

7

5 U.S.C. § 8123(a).

8

Carl Epstein, 38 ECAB 539 (1987); James P. Roberts, 31 ECAB 1010 (1980).

5

employment.9 This is true even if the employee is found medically disqualified to continue in
the employment because of the effect which the employment factors might have on the
underlying condition.10 The Board has found under such circumstances, that an employee’s
disqualification for continued employment was due to her underlying condition, rather than to
the employment. In the instant case, Dr. Lodi stated that appellant’s underlying condition was
COPD due to chronic cigarette smoking, with bronchial hyper-reactivity and allergic rhinitis. He
indicated that appellant’s condition may have temporarily worsened as a result of the workrelated chemical exposure. However, Dr. Lodi opined that she did not continue to have residuals
of the chemical induced pneumonitis and bronchitis and was capable of performing her duties, so
long as exposure to chlorine and ozone was avoided. Appellant’s restrictions are clearly due to
her underlying COPD and her fear of future injury is not compensable. The Board will affirm
the Office’s May 2, 2006 decision terminating compensation for medical benefits and wage loss.
LEGAL PRECEDENT -- ISSUE 2
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating benefits shifts to appellant. In order to prevail,
appellant must establish by the weight of the reliable, probative and substantial evidence that she
had an employment-related disability, which continued after termination of compensation
benefits.11
The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence, which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
diagnosed condition and the implicated employment relationship between appellant’s diagnosed
condition and the implicated employment factors.12 The opinion of the physician must be based
on a complete factual and medical background of appellant, 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 appellant.13
ANALYSIS -- ISSUE 2
As the Office properly terminated appellant’s medical and compensation benefits, the
burden for reinstating benefits shifted to appellant. Therefore, appellant must establish by the
weight of the reliable, probative and substantial evidence that she had employment-related
residuals or disability, which continued after March 12, 2005.14 Medical evidence of record
9

See Calvin E. King, 51 ECAB 394 (2000); Joseph G. Cutrufello, 46 ECAB 285 (1994); Mary A. Geary,
43 ECAB 300 (1991).
10

Mary A. Geary, supra note 9.

11

See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Virginia Davis Banks, 44 ECAB 389 (1993); Joseph M.
Campbell, 34 ECAB 1389 (1983).
12

Donald W. Wenzel, 56 ECAB ___ (Docket No. 05-146, issued March 17, 2005).

13

Bobbie F. Cowart, 55 ECAB 746 (2004); Victor J. Woodhams, 41 ECAB 345 (1989).

14

See supra note 11.

6

submitted after the Office’s termination of benefits consists of a March 13, 2006 report from
Michelle Poindexter, a nurse practitioner, and an April 1, 2005 report from Dr Wilson. Neither
report is sufficient to establish appellant’s burden of proof.
Nurse practitioner Ms. Poindexter opined that appellant was not unable to work, but that
she was hypersensitive to chemical exposure. A nurse practitioner is not considered to be a
“physician” under the Act. Therefore, her report lacks probative value.15
In his April 1, 2005 report, Dr. Wilson opined that appellant was sensitized in the
workplace, that her sensitivity had increased through time and that she must avoid exposure to
sensitizing chemicals. However, he did not provide findings on examination or even indicate
that he actually examined appellant. Moreover, Dr. Wilson did not specifically address the
relevant issue, to-wit: whether appellant had residuals of her accepted chemical-induced
pneumonitis and bronchitis. Therefore, his report is of diminished probative value. As appellant
has not submitted rationalized medical evidence establishing that she had any continuing
residuals or disability causally related to her employment-related, chemical-induced pneumonitis
and bronchitis subsequent to March 12, 2005, she has not met her burden of proof.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation benefits
effective March 12, 2005 on the grounds that she no longer had any residuals or disability
causally related to her employment-related injuries. The Board further finds that appellant has
failed to establish that she had any employment-related residuals or disability after
March 12, 2005.

15

Section 8101(2) of the Act provides in pertinent part as follows: “(2) ‘physician’ includes surgeons, podiatrists,
dentists, clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their
practice as defined by State law.” See Merton J. Sills, 39 ECAB 572, 575 (1988).

7

ORDER
IT IS HEREBY ORDERED THAT the May 2, 2006 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 16, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.A., Appellant
and
U.S. POSTAL SERVICE, FOX CHASE POST
OFFICE, Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 12-1210 & 13-516
Issued: March 19, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On May 9, 2012 appellant, through her attorney, filed a timely appeal from a January 25,
2012 decision of the Office of Workers’ Compensation Programs (OWCP) regarding a schedule
award docketed as No. 12-1210. On July 25, 2012 counsel filed a timely appeal of a May 7,
2012 schedule award decision docketed as No. 13-516. 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 more than 12 percent impairment of the right
arm, 10 percent impairment of the left arm and 6 percent impairment of each lower extremity, for
which she received schedule awards.
On appeal, counsel contends that appellant sustained 19 percent impairment of the right
arm, 18 percent impairment of the left arm and 13 percent impairment to each lower extremity,
based on the opinion of her an attending physician. Alternatively, counsel asserts a conflict in
1

5 U.S.C. § 8101 et seq.

medical opinion requiring selection of an impartial medical examiner. He also asserts that
OWCP should have based the schedule awards on the 2007 reports of an OWCP medical adviser.
FACTUAL HISTORY
OWCP accepted that on December 15, 2003 appellant, then a 52-year-old letter carrier,
sustained a cervical sprain, lumbar strain and aggravation of a herniated cervical disc when
lifting a tub of mail. Under File No. xxxxxx024, it accepted that, on or before December 26,
2003, appellant sustained bilateral carpal tunnel syndrome, cervical and lumbar sprains and an
aggravation of cervical and lumbar herniated discs. Under File No. xxxxxx368, OWCP accepted
that appellant sustained cervical and lumbar sprains on October 7, 2008. It combined all three
claims under File No. xxxxxx860.
Appellant was treated by Dr. Charles Bolno, an attending osteopathic physician
specializing in family practice and orthopedic surgery. He submitted reports from December 7,
2003 to June 2004 prescribing work restrictions due to the December 15, 2003 injuries, which he
opined aggravated preexisting degenerative disc disease with radiculopathy into all extremities.2
Appellant obtained a December 16, 2003 magnetic resonance imaging (MRI) scan showing disc
protrusions throughout C2 to C6 with nerve root irritation, disc herniations at C3-4, C6-7, C7-T1,
an L2-L3 disc protrusion with impingement on the dural sac, disc protrusions with nerve root
impingement at L3, L4 and L5, and L5-S1 disc protrusion. Dr. Bolno submitted periodic reports
through May 15, 2010, noting chronic cervical radiculopathy in both arms, bilateral carpal tunnel
syndrome, lumbar radiculopathy in both legs, pain and paresthesias throughout all extremities
and decreased or absent extensor hallucis longus and ankle reflexes bilaterally. He attributed the
findings to the accepted injuries.3
On December 23, 2005 appellant claimed a schedule award. In a July 7, 2005
impairment report, Dr. Nicholas Diamond, an attending osteopath, used the fifth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter,
the A.M.A., Guides). He found a 41 percent impairment of the right upper extremity, a 51
percent impairment of the left upper extremity and 9 percent impairment of each lower
extremity.

2

In a December 23, 2003 report, Dr. Leonard A. Bruno, an attending Board-certified neurosurgeon, opined that
the disc herniations and protrusions throughout appellant’s cervical and lumbar spine caused radiculitis in all
extremities.
3

A February 21, 2004 nerve conduction velocity (NCV) and electromyogram (EMG) study showed acute rightsided C5 radiculopathy superimposed on chronic left-sided C5-6, C6-7 and C7-T1 radiculopathy, severe median
nerve compression in the right wrist and moderate carpal tunnel syndrome in the left wrist. A March 6, 2004 lumbar
EMG and NCV study showed left-sided L4-5 radiculopathy and right-sided L5-S1 radiculopathy. An October 3,
2005 lumbar EMG and NCV study showed multilevel lumbar radiculopathy, on the left at L4-5 and on the right at
L5-S1, progressed since the March 2004 study with increased denervation of the L5-S1 muscles on the right. An
October 17, 2005 EMG and NCV study showed bilateral radiculopathy at C5-6 and C6-7, progressed since
February 2004 and severe progressive carpal tunnel syndrome on the right. A November 15, 2007 NCV and EMG
study showed bilateral, progressive, severe carpal tunnel syndrome and chronic left-sided C5-6 and C6-7
radiculopathy with progressive denervation.

2

In a February 17, 2007 report, Dr. Arnold T. Berman, a Board-certified orthopedic
surgeon and OWCP medical adviser, opined that, under the fifth edition of the A.M.A., Guides,
appellant had 15 percent impairment of each arm, 28 percent impairment of the right leg and 27
percent impairment of the left leg due to the accepted conditions. He noted that Dr. Diamond
inappropriately included pinch strength and range of wrist motion as elements of upper extremity
impairment.
In a September 11, 2008 letter, counsel requested a case status update and submitted a
second copy of Dr. Diamond’s July 7, 2005 report. On October 9, 2008 OWCP requested that an
OWCP medical adviser review Dr. Diamond’s report and calculate the percentages of permanent
impairment based on the fifth edition of the A.M.A., Guides. In an October 17, 2008 report, the
medical adviser opined that appellant reached maximum medical improvement as of July 7,
2005, the date of Dr. Diamond’s evaluation. The medical adviser found that appellant’s
condition had not changed since his February 17, 2007 impairment rating.
In a May 4, 2009 letter, OWCP advised counsel to submit an impairment rating from
appellant’s physician utilizing the sixth edition of the A.M.A., Guides in effect as of
May 1, 2009. It noted that it combined appellant’s claims, File No. xxxxxx368 and xxxxxx024
under File No. xxxxxx368. Counsel contended in a May 8, 2009 letter that appellant was
entitled to a schedule award under the fifth edition of the A.M.A., Guides as OWCP delayed in
processing her claim.
On July 21, 2009 OWCP requested that an OWCP medical adviser address his
February 17, 2007 impairment rating using the sixth edition of the A.M.A., Guides. In an
August 2, 2009 report, OWCP’s medical adviser discussed spinal and whole person
impairments.4
On November 12, 2009 Dr. Diamond resubmitted his July 7, 2005 impairment report.
Referring to the sixth edition of the A.M.A., Guides, he found 25 percent impairment of the right
upper extremity, 26 percent impairment of the left upper extremity and 13 percent impairment of
each lower extremity. Regarding the left leg, Dr. Diamond found a class 1 diagnosis-based
impairment (CDX) for sensory deficit of the L5-S1 nerve root, affecting the sciatic nerve,
equaling four percent impairment according to Table 16-12,5 based on appellant’s history of
injury, chronic sciatica as documented on examinations. He assessed a grade 2 modifier for
Functional History (GMFH), according to Table 16-6.6 Dr. Diamond found a grade 1 modifier

4

Counsel submitted September 3, 2009 impairment rating from an evaluator, approved on September 4, 2009 by
Dr. David Weiss, an osteopath and associate of Dr. Diamond. The evaluator applied the sixth edition of the A.M.A.,
Guides to Dr. Diamond’s July 5, 2005 findings, and opined that appellant had 13 percent impairment of each leg, 18
percent impairment of the left arm and 19 percent impairment of the right arm.
5

Table 16-12, page 535 of the sixth edition of the A.M.A., Guides is entitled “Peripheral Nerve Impairment -Lower Extremity Impairments.”
6

Table 16-6, page 516 of the sixth edition of the A.M.A., Guides is entitled “Functional History Adjustment -Lower Extremities.”

3

for Clinical Studies (GMCS) according to Table 16-87 based on prior EMG studies. Using the
net adjustment formula of (GMFH - CDX) + (GMPE8 - CDX) + (GMCS - CDX), he found a
plus one adjustment, raising the default value of four percent for the sciatic nerve to six percent.
Dr. Diamond also found a class 1 motor strength deficit in the left quadriceps, implicating the
femoral nerve, with a default value of five percent according to Table 16-12. He found a GMFH
of 2 due to weakness on prior and current examinations, and a GMCS of 1 for prior NCV studies.
Using the net adjustment formula, Dr. Diamond calculated a net adjustment of plus 1, raising the
default five percent for the femoral nerve to seven percent. He then combined the six percent
sciatic nerve and seven percent femoral nerve impairments to equal a 13 percent impairment of
the left leg. Dr. Diamond applied the same grade modifiers and formulae to the right leg, finding
13 percent impairment attributable to the sciatic and femoral nerves.
Regarding the left arm, Dr. Diamond noted a GMCS of 1, a GMFH of 3 and a GMPE of
3 for decreased pinch strength according to Table 15-23,9 equaling five percent arm impairment.
He also found a class 1 motor strength deficit of the left deltoids due to axillary nerve
impairment, according to Table 15-21,10 equaling five percent impairment, six percent
impairment due to left triceps weakness in the radial nerve distribution adjusted upward to nine
percent, and a class 1 motor strength deficit of the left biceps equaling five percent impairment
of the musculocutaneous nerve. Dr. Diamond totaled these impairments to equal 26 percent
impairment of the left arm. He then explained how he applied his findings to these tables and
grading schemes to arrive at 25 percent impairment of the right arm.
On June 27, 2010 Dr. Berman reviewed Dr. Diamond’s report. He found that
Dr. Diamond misapplied the A.M.A., Guides by rating individual nerves and muscle groups
instead of nerve roots originating in the cervical spine. Dr. Berman rated 12 percent impairment
of the right arm, seven percent impairment of the left arm and six percent impairment of each
lower extremity. Regarding the right arm, under Table 15-23, appellant had a GMCS of 1 based
on electrodiagnostic findings of motor delay, a GMFH of 2 for significant intermittent symptoms
and a GMPE of 2 due to objectively decreased sensation. Applying the net adjustment formula,
or 1 + 1 + 2, Dr. Berman divided the total of 5 by 3, the number of modifiers, averaging 1.66,
rounded upward to 2, resulting in five percent arm impairment due to carpal tunnel syndrome.
Regarding the left arm, he found a GMCS of 1, a GMFH of 1 and a GMPE of 2. Using the net
adjustment formula, resulting in the equation of 1 + 1 + 2 = 4, divided by 3, equaled 1.3, rounded
downward to 1, equaling a default value of two percent arm impairment. As Dr. Diamond found
a higher GMFH for the left arm, the medical adviser found three percent impairment of the left
arm. Dr. Berman addressed the spinal nerve impairment affecting the upper extremities. He
referred to the Spinal Nerve Impairment, Upper Extremity Impairment, Proposed Table 1 from
7

Table 16-8, page 519 of the sixth edition of the A.M.A., Guides is entitled “Clinical History Adjustment -Lower Extremities.”
8

Grade modifier for Physical Examination“(GMPE).”

9

Table 15-23, page 449 of the sixth edition of the A.M.A., Guides is entitled “Entrapment/Compression
Neuropathy Impairment.”
10

Table 15-21, page 436 of the sixth edition of the A.M.A., Guides is entitled “Peripheral Nerve Impairment:
Upper Extremity Impairments.”

4

the July/August 2009, The Guides Newsletter. He found seven percent impairment of each arm
due to a class 1 impairment of C5 equaling two percent, three percent impairment for C6 and two
percent impairment for C7. Dr. Diamond used the Combined Values Chart to rate 12 percent
impairment of the right arm and seven percent impairment of the left arm. Regarding the legs,
Dr. Berman referred to proposed Table 2 of the July/August 2009 newsletter, finding a moderate
sensory deficit of three percent for L4 and three percent for L5, for a total six percent impairment
of each lower extremity.
By decision dated July 1, 2010, OWCP granted appellant schedule awards for a 12
percent impairment of the left arm, 7 percent impairment of the right arm and 6 percent
impairment to each lower extremity.
Counsel requested a hearing, contending that the July 1, 2010 schedule award reversed
the upper extremity impairment percentages as found in 2007 by OWCP’s medical adviser. He
submitted an October 19, 2010 report from Dr. Diamond, who reviewed his report of 2005.
Counsel stated that left triceps strength, coinciding with the radial nerve, “which is nerve root C5
through T1, should be included in the impairment rating.” This would result in a 24 percent
impairment of the left upper extremity and a 22 percent impairment of the right upper extremity.
At the hearing, held on October 27, 2010, counsel contended that Dr. Diamond’s reports
demonstrated a greater percentage of impairment to the right arm and both lower extremities.
In a January 6, 2011 decision, OWCP’s hearing representative remanded the case finding
that the schedule award was in error, as it reversed the upper extremity percentages found by
OWCP’s medical examiner. By decision dated February 9, 2011, OWCP issued a corrected
schedule award for 12 percent impairment of the right upper extremity, 7 percent impairment of
the left upper extremity and 6 percent impairment of each lower extremity. In a February 16,
2011 letter, counsel requested a hearing.
By decision dated March 24, 2011, OWCP awarded appellant a schedule award for an
additional 5 percent impairment of the left arm, for a total of 10 percent.
In a March 29, 2011 letter, counsel requested a hearing.
By decision dated June 13, 2011, OWCP determined that the case was not in posture for a
decision as it had not properly determined the percentage of impairment to appellant’s left arm
under the sixth edition of the A.M.A., Guides. It set aside its March 24, 2011 decision and
referred the case to an OWCP medical director for a supplemental report.
In a February 8, 2011 report, Dr. Berman reviewed the record and opined that appellant
had a class 1, grade C impairment equaling two percent impairment of the C5 nerve root, three
percent impairment of the C6 nerve root and two percent impairment of the C7 nerve root,
resulting in seven percent impairment of the left arm for cervical radiculopathy. Using the
Combined Values Chart, he found that the 7 percent impairment for cervical radiculopathy,
combined with the 5 percent previously awarded, totaled 10 percent impairment of the left arm.
OWCP issued a February 9, 2011 decision granting 12 percent impairment of the right arm and 6
percent impairment of each leg.

5

Counsel requested a hearing, held on June 21, 2011, at which he asserted that there was
conflict of medical opinion between Dr. Diamond and Dr. Berman regarding the appropriate
percentages of right upper extremity and bilateral lower extremity impairment.
By decision dated June 13, 2011, an OWCP hearing representative remanded the case for
recalculation of the schedule award for the left arm. In a July 14, 2011 report, Dr. Berman
affirmed his prior rating of 10 percent impairment of the left arm due to carpal tunnel syndrome
and cervical nerve root compression.
By decision dated July 27, 2011, OWCP granted appellant an additional 5 percent
impairment of the left arm, for a total of 10 percent. Counsel requested a hearing by an
August 1, 2011 letter, held on November 16, 2011.
By decision dated September 1, 2011, an OWCP hearing representative remanded the
case to OWCP to consider Dr. Diamond’s November 12, 2009 and October 19, 2010 reports, to
determine if appellant sustained greater than 12 percent impairment of the right upper extremity
and 6 percent impairment to each lower extremity.
In an October 12, 2011 report, Dr. Berman reviewed Dr. Diamond’s reports and opined
that they did not support more than 12 percent impairment of the right arm or 6 percent
impairment of each leg. He found that Dr. Diamond misapplied the sixth edition of the A.M.A.,
Guides by rating the sciatic and femoral nerves, encompassing multiple nerve roots, rather than
the single nerve root rating method specified in the A.M.A., Guides. Regarding the right arm,
Dr. Diamond improperly rated both the C4, C5 and C6 cervical nerve roots and the median
nerve.
By decision dated October 20, 2011, OWCP denied appellant’s claim for additional
schedule awards on the grounds that the evidence submitted did not establish greater percentages
of impairment than 12 percent of the right arm or 6 percent for each lower extremity.
At a November 16, 2011 telephonic hearing regarding the percentage of left upper
extremity impairment, counsel asserted that OWCP should have based the schedule award on the
fifth edition of the A.M.A., Guides, and that there was a conflict of medical opinion between
Dr. Diamond and Dr. Berman.
By decision dated January 25, 2012, an OWCP hearing representative found that
appellant had not established greater than 10 percent impairment of the left arm. The hearing
representative found that OWCP properly utilized the sixth edition of the A.M.A., Guides in
assessing the percentages of impairment.
Counsel requested an oral hearing, held on February 27, 2012. At the hearing, he
contended that OWCP deprived appellant of a valuable property right by adjudicating her claim
under the sixth edition of the A.M.A., Guides although she timely submitted an adequate
impairment rating while the fifth edition of the A.M.A., Guides was in effect. Counsel submitted
2011 and 2012 progress notes from Dr. Bolno, who did not address the issue of permanent
impairment.

6

In a May 7, 2012 decision, an OWCP hearing representative affirmed the October 20,
2011 decision, finding that appellant did not establish more than 12 percent impairment of the
right arm and 6 percent impairment of each leg. The hearing representative found that an OWCP
medical adviser properly applied the appropriate portions of the sixth edition of the A.M.A.,
Guides to Dr. Diamond’s findings. The hearing representative found that OWCP did not unduly
delay processing appellant’s schedule award claim such that OWCP would be compelled to
calculate the schedule awards under the fifth edition of the A.M.A., Guides.
LEGAL PRECEDENT
The schedule award provision of FECA11 and its implementing regulations12 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law 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 American Medical Association, Guides to the Evaluation of Permanent
Impairment has been adopted by the implementing regulations as the appropriate standard for
evaluating schedule losses.13
No schedule award is payable for a member, function or organ of the body not specified
in FECA or in the regulations.14 Because neither FECA nor the regulations provide for the
payment of a schedule award for the permanent loss of use of the back,15 no claimant is entitled
to such an award.16 However, in 1966, amendments to FECA modified the schedule award
provision 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 provision of FECA includes the extremities, a
claimant may be entitled to a schedule award for permanent impairment to an extremity even
though the cause of the impairment originated in the spine.17
ANALYSIS
OWCP accepted that appellant sustained bilateral carpal tunnel syndrome, cervical and
lumbar sprains, a lumbar strain and aggravation of a herniated cervical disc. Appellant claimed a
schedule award on December 23, 2005. The Board notes that, although FECA does not provide
11

5 U.S.C. § 8107.

12

20 C.F.R. § 10.404.

13

Id. at § 10.404; Jacqueline S. Harris, 54 ECAB 139 (2002).

14

Henry B. Floyd, III, 52 ECAB 220 (2001).

15

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

16

Thomas Martinez, 54 ECAB 623 (2003).

17

See Thomas J. Engelhart, 50 ECAB 319 (1999).

7

for a schedule award for the back or spine, impairment of the extremities due to a spinal injury
may be compensable.18
In a July 7, 2005 report, Dr. Diamond, an attending osteopath, examined appellant and
rated impairment under the fifth edition of the A.M.A., Guides. He subsequently updated his
impairment ratings in 2009 and 2010 to address the sixth edition of the A.M.A., Guides. It
appears that the later impairment ratings were based on the physical examination findings of
2005. Dr. Diamond found 25 percent impairment of the right arm, 26 percent impairment of the
left arm and 13 percent impairment of each leg. Dr. Berman reviewed his report on June 6, 2010
and found that Dr. Diamond misapplied the A.M.A., Guides by expressing impairment by
muscle and innervation instead of spinal nerve roots. He used Table 15-23 to rate 12 percent
impairment of the right arm and 7 percent impairment of the left arm based on bilateral median
nerve entrapment at the wrist and C4, C5 and C6 nerve root impairments. For the right arm, the
medical adviser referred to Table 15-23, noting a GMCS of 1 for motor delay, a GMFH of 2 for
symptoms, and a GMPE of 2 due to decreased sensation. Applying the net adjustment formula,
he found a modifier of 2, resulting in five percent upper extremity impairment due to carpal
tunnel syndrome. Regarding the left upper extremity, the medical adviser found a GMCS of 1, a
GMFH of 1 and a GMPE of 2, resulting in a grade modifier of 1, equaling two percent upper
extremity impairment, adjusted to three percent based on Dr. Diamond’s GMFH determination.
Dr. Berman used Spinal Nerve Impairment, Upper Extremity Impairment, Proposed Table 1
from the July/August 2009, The Guides Newsletter, to find seven percent impairment of each
arm due to C5, C6 and C7 nerve root impairments. He combined the impairments to rate a 12
percent impairment of the right arm and 7 percent impairment of the left arm. Regarding the
legs, the medical adviser utilized proposed Table 2, finding six percent impairment of each lower
extremity for sensory deficit in the L4 and L5 nerve roots. Following additional development,
Dr. Berman found an additional 5 percent impairment of the left upper extremity due to C5 nerve
root impairment, combined to equal 10 percent.
The Board finds that Dr. Berman properly used the appropriate portions of the A.M.A.,
Guides to calculate a 12 percent impairment of the right upper extremity, 10 percent impairment
of the left upper extremity and 6 percent impairment of each lower extremity. Dr. Diamond
misapplied the sixth edition of the A.M.A., Guides. OWCP properly accorded Dr. Berman’s
opinion of the weight of the medical evidence. Its January 25 and May 7, 2012 decisions were
therefore proper under the facts and circumstances of this case.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
On appeal, counsel contends that appellant sustained greater impairment based on the
opinion of Dr. Diamond. Alternatively, he asserts a conflict between Dr. Diamond and
Dr. Berman. Counsel asserts that OWCP should have based its schedule awards on the 2007
reports of Dr. Berman. As noted, Dr. Diamond misapplied the A.M.A., Guides. Therefore, his

18

See id.

8

ratings of impairment are outweighed by those of Dr. Berman. As of May 2009, the sixth edition
of the A.M.A., Guides became applicable to all schedule award ratings.19
CONCLUSION
The Board finds that appellant has 12 percent impairment of the right arm, 10 percent
impairment of the left arm and 6 percent impairment of each lower extremity, for which she
received schedule awards.
ORDER
IT IS HEREBY ORDERED THAT the May 7 and January 25, 2012 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 19, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

19

As of May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate schedule awards. J.B., Docket
No. 09-2191 (issued May 14, 2010). The Board has held that the applicable date of the sixth edition of the A.M.A.,
Guides relates to the date of the schedule award decision, not the date of maximum medical improvement or when
the schedule award claim was filed. See C.R., Docket No. 11-1441 (issued January 12, 2012).

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.J, Appellant
and
DEPARTMENT OF THE ARMY, U.S. CORPS
OF ENGINEERS, Memphis, TN, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket Nos. 21-0467 &
20-0812
Issued: March 24, 2022

Case Submitted on the Record

ORDER DISMISSING APPEAL IN DOCKET NO. 21-0467 AND
DISMISSING PETITION FOR RECONSIDERATION
IN DOCKET NO. 20-0812
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On February 4, 2021 appellant sought an appeal from a purported October 19, 2020
decision of the Office of Workers’ Compensation Programs. The Clerk of the Appellate Boards
assigned Docket No. 21-0467.
The Board has duly considered the matter and notes that its jurisdiction is limited to the
review of final adverse OWCP decisions issued under the Federal Employees’ Compensation Act
(FECA).1 This jurisdiction encompasses any final decision issued by OWCP within 180 days of
the date appellant filed his appeal. 2 As of the filing of the current appeal, the most recent OWCP
decision was dated February 11, 2020. However, by an October 19, 2020 decision in Docket No.
20-0812, the Board affirmed OWCP’s February 11, 2020 decision, finding that OWCP properly
denied appellant’s request for reconsideration as it was untimely filed and failed to demonstrate

1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a).

20 C.F.R. § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the
date of issuance of a decision of the OWCP.”
2

clear evidence of error.3 As there is no final adverse decision issued by OWCP within 180 days
of the filing of this appeal4 over which the Board may properly exercise jurisdiction, the Board
concludes that the appeal docketed as No. 21-0467 must be dismissed.
To the extent that appellant’s February 4, 2021 appeal may be construed as a timely petition
for reconsideration of the Board’s October 19, 2020 decision in Docket No. 20-0812, the Board
notes that its decision became final upon the expiration of 30 days from the date of issuance. 5
Further, as appellant did not file his disagreement with the Board’s October 19, 2020 decision until
February 4, 2021, this submission may not be deemed as a timely petition for reconsideration as it
was filed in excess of 30 days from the date of issuance. 6 Thus, the petition for reconsideration of
the October 19, 2020 Board decision must be dismissed as untimely filed. Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0467 is dismissed.
IT IS FURTHER ORDERED THAT the petition for reconsideration in Docket No.
20-0812 is dismissed as untimely filed. 7

3

Docket No. 20-0812 (issued October 19, 2020).

4

Supra note 2.

5

20 C.F.R. § 501.6(d).

6

See id. at § 501.7(a).

The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.”
20 C.F.R. § 501.6(d).
7

2

Issued: March 24, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

3