United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Francisco, CA, Employer
__________________________________________

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Appearances:
Mark Coby, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1160
Issued: January 11, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On April 27, 2015 appellant, through counsel, filed a timely appeal of a December 3,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of the case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
compensation and medical benefits effective May 13, 2013; and (2) whether appellant has
established any continuing medical condition or disability on or after May 13, 2013 due to his
March 9, 1987 employment injury.
On appeal counsel argues that the second opinion physician’s report was not entitled to
the weight of the medical evidence, that OWCP failed to adequately weigh the recent reports
from appellant’s treating physician, and that there remains a conflict of medical opinion
requiring referral to an impartial medical examiner.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 13, 1987 appellant, then a 40-year-old motor vehicle operator, filed a traumatic
injury claim (Form CA-1) alleging that on March 9, 1987, as he was stepping out of his truck,
the step gave way causing him to fall face down injuring his lower back, left shoulder, and hips.
Appellant’s attending physician, Dr. Sanford H. Lazar, an orthopedic surgeon, examined
appellant on April 13, 1987. He noted a previous back injury in January 1983 which was still
causing appellant pain. Dr. Lazar diagnosed degenerative intervertebral disc at L4-5 which had
been aggravated by the fall at work on March 9, 1987. Appellant underwent a computerized
tomography (CT) scan on May 18, 1987 which demonstrated disc bulges at L3-4 and L4-5 with
facet hypertrophy and spinal stenosis.
OWCP on August 14, 1987 accepted aggravation of an existing disability and on
April 11, 1988 expanded the acceptance to include aggravation of degenerative disc disease in
the lumbar spine and sprain of the lumbar back.
Appellant underwent a magnetic resonance imaging (MRI) scan on December 1, 1988
which demonstrated mild bulging or protrusion of the L4-5 disc and mild bulging of the L3-4
disc.
Appellant was placed on the periodic compensation rolls effective November 14, 1987.
Dr. Lazar continued to provide treatment for appellant through October 2, 2000 and
continued to opine that appellant was totally disabled. OWCP referred appellant for a second
opinion evaluation. On March 19, 2001 Dr. Stanley Baer, a Board-certified orthopedic surgeon,
diagnosed chronic lumbar strain and disc derangement at L4-5 and L5-S1. He opined that
appellant was totally disabled and continued to experience residuals of the accepted employment
injury. Dr. Baer noted that appellant had symptoms of psychological overlay.
In another second opinion report dated May 17, 2004, Dr. John R. Chu, a Board-certified
orthopedic surgeon, diagnosed chronic low back pain with a history of degenerative disc disease
at L3-4, L4-5, and L5-S1. He found no objective signs of neurologic injury, but appellant had a
significant pain response to light stimulation of appellant’s back which could not be explained on
an anatomic basis. Dr. Chu opined that appellant sustained a temporary aggravation of his
underlying degenerative disc disease at L3-4 and L4-5. He reported that appellant could return
to light-duty work.
Appellant underwent a lumbar MRI scan on May 28, 2004 which demonstrated an L3-4
broad-based disc bulge with right lateral protrusion, L4-5 broad-based disc bulge with right
neural foraminal narrowing, and L5-S1 right paracentral protrusion which contacted the right S1
nerve root.
Dr. Michael S. Sutro, a treating Board-certified orthopedic surgeon, examined appellant
on November 4 and 11, 2004 and diagnosed progressive lumbar and cervical degenerative disc
disease. He also noted a significant subjective pain response with light stimulation of his back
which could not be explained on an anatomic basis. Dr. Sutro found that appellant was disabled
due to chronic pain due to a work-related aggravation of multilevel lumbar degenerative disc
disease.

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OWCP found a conflict of medical opinion regarding appellant’s ability to work and
referred appellant for an impartial medical examination in 2005 with Dr. Richard R. Tavernetti, a
Board-certified orthopedic surgeon. In his January 24, 2005 report, Dr. Tavernetti noted that
appellant’s examination was clouded by an exaggeration of disability and pain. He opined that
appellant could not return to work for more than two hours a day. Dr. Tavernetti found that
appellant exhibited residuals of his employment injury which was an aggravation of a preexisting
condition.
Dr. Sutro continued to provide medical care and examined appellant on August 10, 2007
and on March 10, 2008 and diagnosed chronic disabling pain and depression which were
permanent in nature. He referred appellant to Dr. Arkady Gendelman, a Board-certified family
practitioner, who completed form reports indicating that appellant could sit up to two hours a
day, lift two pounds for 30 minutes and drive for a total of one hour. In reports dated
October 13, and 24, 2011 and July 10, 2012, Dr. Gendelman noted that he began examining
appellant in 2005 and found appellant disabled due to axial and radicular symptoms of multilevel
lumbar degenerative disc disease and psychiatric problems.
OWCP referred appellant for another second opinion evaluation with Dr. Aubrey A.
Swartz, a Board-certified orthopedic surgeon, on October 23, 2012. In a report dated
December 30, 2012, Dr. Swartz reviewed appellant’s medical history. He discussed the May 28,
2004 MRI scan. Dr. Swartz found that appellant was tender and sensitive to light touch on the
skin of his lumbar spine. He noted that reflexes were absent in the lower extremities and that
appellant had a burning sensation to pinwheel testing of the left thigh and total hypoesthesia over
the right thigh and right medial lower leg. Dr. Swartz reported normal motor function in the
lower extremities, but give-way collapsing weakness with strength testing of the feet and toes.
He noted that almost every movement brought a response of groaning, moaning, and expressions
of agony. Dr. Swartz found substantial pain behavior during appellant’s examination. He
concluded that there were no valid objective findings, but rather substantial pain behavior, with
exaggerated and magnified responses.
Dr. Swartz noted that acute pain was brought about by light stimulation of his back and
body movements which would be considered an example of pain behavior or symptom
magnification. He noted that appellant’s MRI scan studies had not revealed any nerve root or
spinal cord compression but consisted of multilevel degenerative disc disease with mild
protrusion of L3-4 and L5-S1. Dr. Swartz diagnosed resolved strain of the lumbar spine with
nonindustrially-related underlying and preexisting multilevel degenerative disc disease without
any neurologic deficit or injury. He opined that appellant’s multilevel disc disease at L3-4 and
L4-5 with multiple disc bulges, facet hypertrophy, and spinal stenosis were temporarily
aggravated by his March 9, 1987 employment injury. Dr. Swartz opined that the temporary
aggravation would not have lasted more than three years and that appellant’s temporary total
disability would have ceased by March 9, 1990. He reviewed appellant’s date-of-injury position
and stated that appellant could not currently lift 75 pounds due to his age. Dr. Swartz noted that
appellant could lift up to 25 pounds for four to six hours a day.
OWCP proposed to terminate appellant’s medical and compensation benefits in a letter
dated April 8, 2013. It relied on the findings in Dr. Swartz’ December 30, 2012 report. By
decision dated May 13, 2013, OWCP terminated appellant’s medical and wage-loss benefits

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effective May 13, 2013. Appellant requested an oral hearing before OWCP’s Branch of
Hearings and Review on May 22, 2013.
Appellant submitted a report dated July 29, 2013 from Dr. Fred F. Naraghi, a Boardcertified orthopedic surgeon. Dr. Naraghi noted appellant’s history of stepping down from his
truck when the step broke and reported that appellant flipped and fell backwards. He examined
appellant and found limited range of motion and pain to palpation in the lumbar spine.
Dr. Naraghi reported palpable paraspinal muscle spasms with mild decreased light touch
sensation in the right S1 distribution. He diagnosed herniated nucleus pulposus, radiculopathy
right lower extremity, lumbar spinal stenosis, and cervical radiculopathy. Dr. Naraghi opined,
“In absence of evidence to the contrary, it is with reasonable medical probability and more than
likely that injuries to his neck and back are as a result of his work-related injuries.” He found
that appellant was permanently disabled.
Appellant also submitted a report dated August 15, 2013 from Dr. James R. Liles, a
Board-certified psychiatrist, who diagnosed major depressive disorder and attributed this
condition to appellant’s employment injuries.2
Dr. Naraghi completed a supplemental report on August 23, 2013 and reviewed the
medical records. He opined that appellant also sustained a cervical injury in 1987 as a result of
his fall.
Appellant testified at the oral hearing on August 29, 2013 and described his ability to
walk for one block and his necessity to sleep on the floor. He stated that he could drive for about
20 minutes and performed very limited household chores. Appellant testified that his back pain
extended into his right hip and leg.
In a report dated September 26, 2013, Dr. Naraghi reviewed a September 9, 2013 MRI
scan and found herniated nucleus pulposus at L5-S1 with right S1 nerve root impingement,
multilevel disc bulges, radiculopathy of the right lower extremity, lumbar spinal stenosis, and
cervical radiculopathy.
By decision dated November 20, 2013, OWCP’s hearing representative found that
OWCP had met its burden of proof to terminate appellant’s compensation benefits in its
May 13, 2013 decision. She found that Dr. Swartz’ report was entitled to the weight of the
medical evidence and established that there was no objective evidence of a permanent change in
appellant’s preexisting degenerative disc disease due to the accepted employment injury. The
hearing representative further found that Dr. Naraghi’s reports lacked medical reasoning to
support his opinion that appellant had any ongoing medical condition as a result of the accepted
employment injury.
Counsel requested reconsideration through a letter dated February 12, 2014. He argued
that Dr. Naraghi’s reports created a conflict in medical opinion evidence. In a report dated
February 10, 2014, Dr. Naraghi noted appellant’s history of injury in 1987 and again noted that
appellant slipped and fell backwards. He reviewed appellant’s recent MRI scan and found a
2

As OWCP has not issued a final decision regarding appellant’s claim for a psychiatric condition, the Board will
not address this issue. 20 C.F.R. § 501.2(c).

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dorsal annular tear at L4-5 with a disc bulge. Dr. Naraghi diagnosed herniated nucleus pulposus
of L5-S1 with right nerve root impingement. He opined that this condition was likely a result of
progression of the pathology that started from the 1987 employment injury. Dr. Naraghi further
opined that appellant’s symptoms of back pain, right leg pain, and numbness and weakness
radiating into the lateral aspect of his right foot and plantar aspect of his right foot was a classic
presentation for right S1 pathology. He noted that appellant had no prior back pain preceding the
1987 employment injury. Dr. Naraghi opined that appellant’s 1987 fall was a traumatic injury
and that injury to the disc in 1987 could cause a rapid progression of any degenerative process.
Appellant underwent a lumbar MRI scan on September 9, 2013 which demonstrated
degenerative disc disease of the lumbar spine, disc bulges at L3-4, L4-5, and L5-S1. This test
indicated possible contact with the traversing right S1 nerve root.
In a decision dated March 6, 2014, OWCP reviewed the merits of appellant’s claim and
denied modification of its prior decisions. It found that Dr. Naraghi was relying on an inaccurate
description of the employment injury and appeared to be unaware of appellant’s history of back
conditions. OWCP further noted that as appellant’s initial MRI scan did not demonstrate a
herniated disc at L5-S1, a more recent test with this finding would have to be supported by
medical reasoning explaining how appellant’s 1987 employment injury resulted in an additional
condition almost 20 years later.
Counsel requested reconsideration through a form completed on April 15, 2014. OWCP
received a report dated April 3, 2014 from Dr. Naraghi in which he reviewed a recent
electromyogram (EMG) test. Dr. Naraghi repeated his version of appellant’s 1987 employment
fall and stated that it made no difference whether appellant fell backward or forward. He opined
that the disc bulge found on the MRI scan in 1988 could certainly be within the nomenclature for
a herniated disc.
By decision dated December 3, 2014, OWCP reviewed the merits of appellant’s claim
and denied modification finding that the medical evidence failed to establish medical residuals or
disability related to his March 9, 1987 employment injury. It found that Dr. Naraghi’s reports
were not based on an accurate factual background, were not sufficiently detailed, and did not
create a conflict or overcome the weight of Dr. Swartz’ report.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.3 After it has
determined that an employee has disability causally related to his or her federal employment,
OWCP may not terminate compensation without establishing that the disability has ceased or
that it is no longer related to the employment.4 Furthermore, the right to medical benefits for an
accepted condition is not limited to the period of entitlement for disability.5 To terminate

3

Mohamed Yunis, 42 ECAB 325, 334 (1991).

4

Id.

5

Furman G. Peake, 41 ECAB 361, 364 (1990).

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authorization for medical treatment, OWCP must establish that appellant no longer has residuals
of an employment-related condition which require further medical treatment.6
ANALYSIS -- ISSUE 1
The Board finds that OWCP met its burden of proof to terminate appellant’s medical and
compensation benefits effective May 13, 2013.
OWCP referred appellant for a second opinion evaluation with Dr. Swartz on
October 23, 2012. He completed a report dated December 30, 2012, reviewing appellant’s
history of injury and medical history. Dr. Swartz noted the May 28, 2004 MRI scan with disc
bulges. On physical examination, he found that appellant was tender and sensitive to light touch
on the skin of his lumbar spine and that reflexes were absent in the lower extremities. Dr. Swartz
reported normal motor function in the lower extremities, but give-way collapsing weakness with
strength testing of the feet and toes. He noted that almost every movement brought a response of
groaning, moaning, and expressions of agony. Dr. Swartz concluded that there were no valid
objective findings and that appellant exhibited pain behavior with exaggerated and magnified
responses. He noted that appellant’s MRI scan studies had not demonstrated any nerve root or
spinal cord compression but consisted only of multilevel degenerative disc disease with mild
protrusion of L3-4 and L5-S1. Dr. Swartz diagnosed resolved strain of the lumbar spine with
preexisting multilevel degenerative disc disease without any neurologic deficit or injury. He
opined that appellant’s multilevel disc disease at L3-4 and L4-5 with multiple disc bulges, facet
hypertrophy, and spinal stenosis was temporarily aggravated by his March 9, 1987 employment
injury. Dr. Swartz opined that the temporary aggravation would not have lasted more than three
years and that appellant’s temporary total disability would have ceased by March 9, 1990.
Dr. Swartz reviewed appellant’s date-of-injury position and reported that appellant could lift no
more than 25 pounds for four to six hours a day due to his age.
Dr. Swartz’ report is based on an accurate history of injury, a review of the medical
records, and his findings on physical examination. He found that appellant demonstrated
symptom magnification and that the temporary aggravation of appellant’s underlying
degenerative disc disease beginning in 1987 had resolved by 1990. Dr. Swartz found that
appellant did not require further medical treatment due to the accepted condition and that
appellant’s continuing disability was not due to his accepted employment injury, but due to his
age and preexisting degenerative condition.
At the time Dr. Swartz issued his report there was no contemporaneous, rationalized
medical evidence supporting appellant’s continued disability and medical residuals due to his
accepted employment injury. Dr. Gendelman’s reports did not include a detailed history of
injury, did not acknowledge the accepted condition, and did not provide any medical reasoning
in support of his diagnosis of axial and radicular symptoms due to multilevel lumbar
degenerative disc disease and psychiatric problems resulting in total disability.
For these reasons, the Board finds that OWCP met its burden of proof to terminate
appellant’s medical and wage-loss compensation benefits effective May 13, 2013.
6

Id.

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LEGAL PRECEDENT -- ISSUE 2
As OWCP met its burden of proof to terminate appellant’s compensation benefits, the
burden shifted to appellant to establish that he had disability causally related to his accepted
employment injury.7 To establish a causal relationship between the condition, as well as any
disability claimed and the employment injury, the employee must submit rationalized medical
opinion evidence, based on a complete factual background, supporting such a causal relationship.
Rationalized medical opinion evidence is medical evidence which includes a physician’s detailed
opinion on the issue of whether there is a causal relationship between the claimant’s diagnosed
condition and the implicated employment factors. The opinion of the physician must be based
on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant. 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.8
ANALYSIS -- ISSUE 2
Following OWCP’s May 13, 2013 termination of appellant’s medical and wage-loss
compensation benefits, appellant submitted a series of reports from Dr. Naraghi beginning on
July 29, 2013. He provided a history of injury based on appellant’s recollections that in 1987
while stepping from the truck the step broke and appellant slipped and fell backwards.
Dr. Naraghi provided findings on examination including limited range of motion and pain to
palpation in the lumbar spine as well as palpable paraspinal muscle spasms with mild decreased
light touch sensation in the right S1 distribution. He opined that appellant’s diagnosed
conditions including herniated disc were more than likely a result of his work-related injuries.
The Board finds that this report is not based on an accurate history of injury and does not address
appellant’s accepted condition of aggravation of underlying degenerative disc disease. The
report does not contain medical reasoning explaining how Dr. Naraghi reached his conclusions
based on testing occurring almost 20 years after the employment incident. His report does not
adequately address the findings by appellant’s previous attending physicians that he had
preexisting lumbar degenerative disc disease and that this condition was aggravated by
appellant’s fall in 1987. Due to these deficiencies, these reports are insufficient to establish an
additional employment injury or to establish continuing disability due to appellant’s March 1987
employment injury.
The remainder of Dr. Naraghi’s reports address additional conditions not previously
accepted by OWCP. On August 23, 2013 Dr. Naraghi reviewed appellant’s medical records and
opined that appellant also sustained a cervical injury in 1987 as a result of his fall. In his
September 26, 2013 report, Dr. Naraghi reviewed a September 9, 2013 MRI scan and found
additional conditions which he opined were employment-related including herniated nucleus
pulposus at L5-S1 with right S1 nerve root impingement, multilevel disc bulges, radiculopathy of
the right lower extremity, lumbar spinal stenosis, and cervical radiculopathy. On February 10,
7

George Servetas, 43 ECAB 424, 430 (1992).

8

James Mack, 43 ECAB 321 (1991).

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2014 Dr. Naraghi noted appellant’s history of injury in 1987 and again noted that appellant
slipped and fell backwards. He reviewed appellant’s recent MRI scan and found a dorsal annular
tear at L4-5 with a disc bulge. Dr. Naraghi diagnosed herniated nucleus pulposus of L5-S1 with
right nerve root impingement.
In support of his diagnoses, Dr. Naraghi noted the herniated disc was likely as a result of
progression of the pathology that started from the 1987 employment injury. He noted that
appellant had no prior back pain preceding the 1987 employment injury. Dr. Naraghi opined that
appellant’s 1987 fall was a traumatic injury and that injury to the disc in 1987 could cause a
rapid progression of any degenerative process. On April 3, 2014 he repeated his version of
appellant’s 1987 employment fall and wrote that it made no difference whether appellant fell
backward or forward. Dr. Naraghi opined that the disc bulge found on the MRI scan in 1988
could certainly also be within the nomenclature for a herniated disc.
The Board finds that Dr. Naraghi’s reports are insufficient to establish additional
conditions resulting from appellant’s employment injury in 1987 or to establish continuing
disability as a result of this injury. Dr. Naraghi does not address the central issue in this case,
whether the aggravation of appellant’s underlying degenerative disc disease was permanent or
temporary. The weight of the medical evidence as represented by Dr. Swartz establishes that the
aggravation was temporary. In order to overcome Dr. Swartz’ report or to create a conflict with
it, appellant must submit a report which has a clear and detailed factual basis. The
contemporaneous medical reports describe appellant’s employment incident as well as his
preexisting degenerative disc condition in 1987. None of the physicians who examined appellant
prior to Dr. Naraghi opined that appellant had sustained a herniated disc as a result of his
employment incident and the initial diagnostic studies suggested that his disc disease did not
extend to L5-S1. Furthermore, Dr. Naraghi’s reasoning in support of his diagnoses, is in direct
contrast to the accepted condition and the contemporaneous medical evidence. He opines that
appellant’s 1987 traumatic injury caused an accelerated degenerative process rather than the
accepted history that appellant had a preexisting degenerative condition which was aggravated
by the fall. Due to these deficits in the factual and medical history as well as the alteration of the
underlying basis of appellant’s claim, the Board finds that, contrary to counsel’s arguments on
appeal, Dr. Naraghi’s reports are insufficient to establish appellant’s claim for continuing
disability or medical residuals as a result of his accepted 1987 employment injury or to create a
conflict with Dr. Swartz’ report.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s medical and
wage-loss benefits effective May 13, 2013. The Board further finds that appellant has failed to
meet his burden of proof in establishing any continuing disability, medical residuals, or
additional conditions as a result of the 1987 employment injury.

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ORDER
IT IS HEREBY ORDERED THAT the December 3, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 11, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hartford, CT, Employer
__________________________________________

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Appearances:
Daniel B. Shapiro, Esq., for the appellant
Catherine P. Carter, Esq., for the Director

Docket No. 12-1795
Issued: September 24, 2013

Oral Argument June 25, 2013

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

JURISDICTION
On August 29, 2012 appellant, through counsel, filed a timely appeal from a March 8,
2012 decision of the Office of Workers’ Compensation Programs (OWCP) regarding a schedule
award. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly determined the date of maximum medical
improvement for appellant’s schedule award.
On appeal, counsel asserted that OWCP should have recognized January 1, 2001 as the
date of maximum medical improvement, based on the opinion of Dr. Byron Hartunian, an
attending Board-certified orthopedic surgeon. He contends that OWCP erred in finding that
appellant reached maximum medical improvement on October 22, 2010, based on a medical
evaluation finding that her bilateral lower extremity condition had stabilized. Counsel argued
1

5 U.S.C. § 8101 et seq.

that using a retroactive maximum medical improvement date would allow appellant to receive
wage-loss compensation for any recurrences of disability during the schedule award period
October 22, 2010 to April 28, 2016, and would give appellant more money using a four percent
lump-sum compounding formula. He also disagreed with the combining of an award for both
lower extremities into one award.
FACTUAL HISTORY
OWCP accepted that on or before September 13, 2008 appellant, then a 50-year-old letter
carrier, sustained an aggravation of osteoarthritis of both knees due to prolonged walking and
carrying mail in the performance of duty. Appellant continued to work as a letter carrier through
October 22, 2010. On October 13, 2010 bilateral knee x-rays showed the progression of
degenerative arthritis when compared to films from 2009.
On November 19, 2010 appellant claimed a schedule award.
She submitted
November 12, 2010 reports from Dr. Hartunian, who stated that clinical findings on an
October 22, 2010 examination represented 59 percent impairment of each lower extremity
according to the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (hereinafter, A.M.A., Guides), due to degenerative arthritis of both
knees.
In a December 17, 2010 report, an OWCP medical adviser found 50 percent impairment
of the right leg due to degenerative osteoarthritis of the right knee. In a January 26, 2011 report,
an OWCP medical adviser found 50 percent impairment of the left leg due to degenerative
osteoarthritis of the left knee.
In an August 12, 2011 report, Dr. Hartunian stated that appellant “reached maximum
medical improvement for her left lower extremity condition in January 2000 and for her right
lower extremity condition in January 2001.” He noted that, after appellant first experienced knee
pain in 1998, “her medical records showed a continuous progression of her degenerative arthritic
disease, which [was] a normal course for one with this malady.” Counsel asserted in an
August 15, 2011 letter that OWCP should accept Dr. Hartunian’s dates of maximum medical
improvement. Dr. David Krohn, an OWCP medical adviser, reviewed the record on
February 1, 2012. He explained that x-rays and clinical findings documented the worsening of
appellant’s degenerative arthritis of both knees through March 2011. Dr. Krohn stated that “the
progression seen in x-rays from May 15, 1998 … to the most recent x-rays … demonstrated
objective evidence for worsening of her bilateral knee arthritis.”
By decision dated March 8, 2012, OWCP granted appellant schedule awards for 50
percent impairment of the left lower extremity and 50 percent impairment of the right lower
extremity. The decision noted the date of medical improvement as October 22, 2010, the date
appellant was last exposed to injurious work factors as a letter carrier. The period of the award
ran from October 22, 2010 to April 28, 2016.
Oral argument was held on June 25, 2013. Counsel submitted a June 25, 2013
supplemental memorandum, contending that there was no evidence of record to establish a date
of maximum medical improvement later than January 1, 2001. He asserted that OWCP

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committed legal error by finding the date of maximum medical improvement as
October 22, 2010.2
On July 5, 2013 the Board issued an Order Allowing Supplemental Pleadings. On
August 5, 2013 the Director requested that the Board affirm the March 8, 2012 schedule award
as issued. The Director asserted that selecting a retroactive date of compensation was
speculative, whereas the October 22, 2010 date was supported by objective factual and medical
evidence. Counsel submitted a September 9, 2013 memorandum, contending that OWCP
committed legal error by using October 22, 2010 as the date of maximum medical improvement.
He argued that, as appellant had a degenerative condition that would never improve after
diagnosis, maximum medical improvement was attained at “the date of initial diagnosis, or, at
the latest, the first date following diagnosis that the employee is exposed to the injurious work
factors.”3
LEGAL PRECEDENT
The schedule award provisions of FECA provide for compensation to employees sustaining
impairment from loss or loss of use of specified members of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the sound discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. The American Medical
Association, Guides to the Evaluation of Permanent Impairment has been adopted by OWCP as a
standard for evaluation of schedule losses and the Board has concurred in such adoption.4 For
schedule awards after May 1, 2009, the impairment is evaluated under the sixth edition of the
A.M.A., Guides, published in 2008.5
The period covered by a schedule award commences on the date that the employee
reaches maximum medical improvement from the residuals of the employment injury.
Maximum medical improvement means that the physical condition of the injured member of the
body has stabilized and will not improve further.6 The determination of the date of maximum
2

Counsel also contended that as appellant desired a lump-sum schedule award, using October 22, 2010 as the
date of maximum improvement “forced” her to pay the four percent premium under 5 U.S.C. § 8135(a). However,
as appellant’s election of a lump-sum payment occurred in October 2012, after counsel filed his appeal, the Board
cannot address this aspect of the pleadings on the present appeal as OWCP did not issue a decision regarding this
prior to the filing of this appeal. See 20 C.F.R. § 501.2(c).
3

In his September 9, 2013 pleading, counsel requested a second oral argument in the present case. The Board, in
its discretion, has considered counsel’s request for oral argument and denies it on the grounds that it would serve no
useful purpose and serve to delay the issuance of a decision in the case.
4

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

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
6

Adela Hernandez-Piris, 35 ECAB 839 (1984).

3

medical improvement is factual in nature and depends primarily on the medical evidence.7 The
date of maximum medical improvement is usually considered to be the date of the evaluation
accepted as definitive by OWCP.8 In a case where a claimant continues to be exposed to
injurious work factors, and the medical evidence documents continued worsening of the claimed
condition, OWCP selects the date of last exposure to injurious work factors as the date of injury
and of maximum medical improvement.9
The Board has noted a reluctance to find a date of maximum medical improvement which
is retroactive to the award, as retroactive awards often result in payment of less compensation
benefits. The Board, therefore, requires persuasive proof of maximum medical improvement if
OWCP selects a retroactive date.10
ANALYSIS
OWCP accepted that appellant sustained an aggravation of degenerative arthritis of both
knees due to prolonged walking and carrying mail in the performance of duty. Appellant
continued to be exposed to the accepted injurious work factors until October 22, 2010. She
claimed a schedule award on November 19, 2010.
In support of her claim, appellant submitted November 12, 2010 reports from
Dr. Hartunian, an attending Board-certified orthopedic surgeon, who examined appellant on
October 22, 2010, the date of her last exposure to work factors. Based on that examination,
Dr. Hartunian found 59 percent impairment of each lower extremity according to the A.M.A.,
Guides. He stated in an August 12, 2011 report that appellant’s left knee reached maximum
medical improvement in January 2000 and that her right knee reached maximum medical
improvement as of January 2001. Dr. Hartunian noted, however, that objective imaging studies
documented a continuous worsening of both knees through 2010. He clearly and unequivocally
stated that appellant’s knee conditions did not stabilize in January 2000 or January 2001.
Moreover, appellant continued to be exposed to injurious work factors through October 22, 2010,
the date of Dr. Hartunian’s examination. Under these circumstances, the Board finds that OWCP
properly utilized October 22, 2010 as the date of maximum medical improvement in its March 8,
2012 schedule award.11
On appeal, counsel asserted that OWCP should utilize January 1, 2001, a retroactive date
of maximum medical improvement, to allow appellant to receive wage-loss compensation if she
were to sustain a recurrence of disability before the expiration of the award on April 28, 2016.
Counsel did not submit sufficient medical or factual evidence to establish that appellant attained
7

J.B., Docket No. 11-1469 (issued February 14, 2012); Franklin L. Armfield, 28 ECAB 445 (1977).

8

Federal (FECA) Procedure Manual, supra note 5 at Chapter 3.700.3.a (January 2010); see Richard Larry
Enders, 48 ECAB 184 (1996) (the date of maximum medical improvement was the date of the audiologic
examination used as the basis of the schedule award).
9

Barbara A. Dunnavant, 48 ECAB 517 (1997).

10

James E. Earle, 51 ECAB 567 (2000).

11

Federal (FECA) Procedure Manual, supra note 5. Id.

4

maximum medical improvement as of January 1, 2001. Dr. Hartunian clearly advised that
appellant’s condition continued to deteriorate through October 22, 2010, the date of last exposure
to injurious work factors. Therefore, a retroactive date of maximum medical improvement is
inappropriate in this case.
CONCLUSION
The Board finds that OWCP properly utilized October 22, 2010 as the date of maximum
medical improvement.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 8, 2012 is affirmed.
Issued: September 24, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Houston, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 20-1161
Issued: November 30, 2020

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On May 15, 2020 appellant filed a timely appeal from a May 12, 2020 merit decision of
the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 20-1161.
In a letter dated November 8, 2020 and received November 20, 2020, appellant requested
that the appeal be dismissed so that she may pursue a request for reconsideration with OWCP.
The Board has duly considered the matter and concludes that appellant’s request for the
dismissal of the appeal should be granted. Accordingly,

IT IS HEREBY ORDERED THAT appellant’s request for the dismissal of the appeal is
granted. The appeal docketed as No. 20-1161 is dismissed.
Issued: November 30, 2020
Washington, DC

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

Christopher J. Godfrey, Deputy Chief Judge
Employees' Compensation Appeals Board

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.V., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Columbus, OH, Employer
__________________________________________

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

Docket No. 08-1445
Issued: June 1, 2009

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 April 18, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decisions dated September 5, 2007 and March 20, 2008. Under
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that she was disabled after April 15, 2007
due to a recurrence of disability due to her accepted right knee, right ankle and low back
conditions.
FACTUAL HISTORY
On October 27, 2003 appellant, a 30-year-old baggage screener, injured her back, right
arm and right leg when the chair she was sitting on collapsed. She filed a claim for
compensation on October 27, 2003 which the Office accepted for lumbar sprain, right ankle
sprain and right knee sprain. The Office paid compensation for temporary total disability.

On March 12, 2007 appellant filed a Form CA-2a claim for benefits, alleging that she
sustained a recurrence of disability on February 26, 2007 which was causally related to her
accepted right knee and low back conditions. The record indicates that she received continuation
of pay benefits from February 27 through April 14, 2007.
Appellant submitted a March 7, 2007 Form CA-17 in which it was noted that she would be
unable to work from February to March 31, 2007. The form was initialed at the bottom by a
physician specializing in family practice.
Appellant submitted a March 28, 2007 Form CA-17 in which it was noted that she would
be unable to work from February 28 to May 15, 2007. The form was initialed at the bottom by a
physician specializing in family practice.
Appellant filed Forms CA-7 dated April 15 and May 27, 2007 seeking compensation for
wage loss from April 15 to May 23, 2007, when she returned to light duty.
Appellant submitted a March 27, 2007 report from Dr. Mark J. Triffon, a specialist in
orthopedic surgery, who related the history of injury that appellant injured her right knee and lower
back as a result of a work injury in October 2003 and that she sustained another injury in
September 2006 when she tripped over a bag at the airport. Dr. Triffon stated that appellant had
been out of work recently due to back problems and had experienced episodes of numbness and
tingling. He advised that he had reviewed a magnetic resonance imaging (MRI) scan which
showed a medial meniscal tear, as well as x-rays which showed some lateral patellar impingement
and some joint space narrowing medially. Dr. Triffon noted that appellant experienced leg locking
and catching pain when she arose from a sitting position, in addition to pain with prolonged sitting
or standing and pain when twisting or bending and squatting; he advised that these were all classic
symptoms of a meniscal tear. He recommended that she undergo arthroscopic surgery to
ameliorate her right meniscus condition and aid in her return to normal work activities.
In an April 24, 2007 report, Dr. Stephen Altic, Board-certified in family practice, related
that appellant complained of continued, persistent low back pain. He noted that on examination
she demonstrated painful flexion-extension in the lumbar spine with limitations in flexionextension with flexion at 35 degrees and extension at 0 degrees. Dr. Altic advised that a
March 30, 2007 MRI scan showed mild to moderate facet arthropathy at L3-4, L4-5 and L5-SI,
consistent with appellant’s pain, with no evidence of disc herniation. Noting the contrast
between these results and appellant’s November 1, 2004 MRI scan, which was normal and
showed no evidence of facet arthropathy, he opined that her lumbar axial pain and facet
arthropathy were causally related to the October 2003 work injury. Dr. Altic advised that this
was the only reasonable conclusion because such a condition takes years to develop and show up
radiologically and because no traumatic event had occurred between the two tests. He asserted
that, if appellant’s current facet arthropathy was merely due to a degenerative aging process, she
would not have had a normal MRI scan in 2004 and a markedly abnormal MRI scan in 2007.
Appellant submitted an April 24, 2007 Form CA-17 from a specialist in family practice
which contained a handwritten notation indicating that appellant was unable to work from
February 27 through May 15, 2007. The form contains a physician’s initials at the bottom of the

2

form which are not clear, but appear to be those of Dr. Altic, a family practitioner, who examined
appellant on April 24, 2007.1
By letter dated June 1, 2007, the Office advised appellant that it required additional
medical evidence to determine whether she was eligible for compensation benefits based on a
recurrence of disability. It asked appellant to submit a medical report supporting that she was
totally disabled as of April 15, 2007. The Office stated that appellant had 30 days to submit the
requested evidence.
By decision dated September 5, 2007, the Office denied appellant’s claim for
compensation based on wage loss, finding that she failed to establish that her total disability as of
April 15, 2007 and continuing was causally related to her accepted employment injury.
By letter dated September 14, 2007, appellant’s attorney requested an oral hearing, which
was held on January 4, 2008. At the hearing, appellant indicated that after her initial period of
disability following the October 2003 employment injury she returned to work in approximately
April 2004 on light duty. She continued to work on light duty, except for a couple of subsequent
periods of disability, until February 27, 2007.2 Appellant testified that she was requesting
compensation for wage loss beginning April 15, 2007 because the Office authorized
compensation for continuation of pay from February 27 through April 14, 2007.
In a January 21, 2008 report, Dr. Nikresh Batra, Board-certified in anesthesiology,
reviewed the history of injury, stated findings on examination and indicated that appellant was
experiencing pain in her lower back and right leg. He did not render an opinion as to whether
appellant’s February 2007 work incident was caused or aggravated by her accepted
October 2003 employment injury.
By decision dated March 20, 2008, an Office hearing representative affirmed the
September 5, 2007 Office decision.3
LEGAL PRECEDENT
When an employee, who is disabled from the job she held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence establishes
that light duty can be performed, the employee has the burden to establish by the weight of the
reliable, probative and substantial evidence a recurrence of total disability. As part of this

1

These initials are similar to the ones indicated by the physician in the March 27, 2007 Form CA-17. The Board
accepts that the initials in both forms were written by Dr. Altic, the only family practitioner who examined and
treated appellant during this period.
2

Appellant stated at the hearing that she filed three additional claims for wage loss and recurrence of disability
between May 2004 and February 2007. These other claims are not included with and are not adjudicated in the
instant claim.
3

The hearing representative affirmed the September 5, 2007 decision but adjudicated the claim as one for
recurrence of disability, beginning April 15, 2007.

3

burden, the employee must show either a change in the nature and extent of the injury-related
condition, or a change in the nature and extent of the light-duty requirements.4
ANALYSIS
In the instant case, appellant has not met her burden to provide a medical opinion
showing a change in the nature and extent of her injury-related conditions. She has failed to
submit a rationalized, probative report which relates her condition or disability as of April 15,
2007 to her employment injury.5 For this reason, she has failed establish her claim that she
sustained a recurrence of disability as a result of her accepted employment injury.
Appellant submitted reports from Dr. Altic, who stated in his April 24, 2007 report that a
March 30, 2007 MRI scan indicated mild to moderate facet arthropathy at L3-4, L4-5 and L5-SI,
consistent with her complaints of lower back pain. Dr. Altic opined that appellant’s current
lumbar axial pain and facet arthropathy were causally related to the October 2003 work injury
because her November 1, 2004 MRI scan was normal and showed no evidence of facet
arthropathy, because her March 2007 MRI scan showed facet arthropathy, and because such a
condition takes years to develop and show up radiologically. He also submitted Forms CA-17
dated March 27 and April 24, 2007 which indicated appellant would be unable to work until
May 15, 2007, and a March 9, 2007 Form CA-20 which indicated appellant was totally disabled
from February 28 to March 31, 2007 due to her work-related conditions. However, Dr. Altic did
not provide any rationalized, probative medical opinion sufficient to establish that appellant’s
claimed total disability as of April 15, 2007 was causally related to her accepted right knee and
lower back conditions. Dr. Triffon noted in his March 27, 2007 report that appellant had been out
of work recently due to back problems and had experienced episodes of numbness and tingling.
He also stated that an MRI scan indicated a medial meniscal tear in her right knee and that x-rays
of her right knee demonstrated some lateral patellar impingement and joint space narrowing.
Dr. Triffon related that appellant experienced symptoms in her right knee such as leg locking and
catching pain when she arose from a sitting position, pain with prolonged sitting or standing, and
pain when twisting or bending and squatting. He advised that appellant required arthroscopic
surgery for her right meniscus condition to help her return to her usual work activities. However,
Dr. Triffon failed to provide a medical opinion which sufficiently described appellant’s light job
duties or explained the medical process through which such duties would have been competent to
cause the claimed recurrence of disability. His report did not constitute sufficient medical
evidence demonstrating a causal connection between appellant’s employment injury and his
alleged recurrence of disability. Dr. Batra stated in his January 21, 2008 report that appellant
was experiencing pain in her lower back and right leg. He did not render an opinion as to
whether appellant’s February 2007 work incident was caused or aggravated by her accepted
October 2003 employment injury.

4

Terry Hedman, 38 ECAB 222 (1986).

5

The Board notes that although appellant filed a Form CA-2a claim for recurrence of disability beginning
February 27, 2007, the Office authorized continuation of pay from February 27 through April 14, 2007. The Board
will therefore adjudicate the claim for recurrence of disability beginning April 15, 2008.

4

Causal relationship must be established by rationalized medical opinion evidence. The
reports submitted by appellant failed to provide an explanation in support of her claim that she
was totally disabled as of April 15, 2007. These reports did not establish a worsening of
appellant’s conditions, and therefore do not constitute probative, rationalized opinion evidence
demonstrating that a change occurred in the nature and extent of the injury-related condition.6 In
addition, appellant did not submit any evidence to show that there was a change in the nature and
extent of her work requirements. The Office therefore properly found in its March 20, 2008
decision that appellant did not meet her burden to establish a recurrence of disability as of
April 15, 2007.
CONCLUSION
The Board finds that appellant has not met her burden to establish that she was entitled to
compensation for a recurrence of disability as of April 15, 2008 causally related to her accepted
right ankle, right knee and lower back conditions.
ORDER
IT IS HEREBY ORDERED THAT the March 20, 2008 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: June 1, 2009
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

6

William C. Thomas, 45 ECAB 591 (1994).

5


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
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and
)
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U.S. POSTAL SERVICE, POST OFFICE,
)
Little Rock, AR, Employer
)
___________________________________________ )
J.J., Appellant

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

Docket No. 08-548
Issued: June 13, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 19, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated October 19, 2007 which denied appellant’s claim
for a traumatic injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof in establishing that she
sustained injury on August 13, 2007.
FACTUAL HISTORY
On August 15, 2007 appellant, then a 48-year-old rural carrier, filed a claim alleging that
on August 13, 2007 she sustained injury to her leg, arm and back when her mail truck flipped
over. Appellant stopped work on August 13, 2007. She returned to light duty on September 7,
2007 and to full duty on September 12, 2007.

In support of her claim, appellant submitted an August 13, 2007 Arkansas Motor Vehicle
Crash Report, which noted that she reached down to retrieve mail from the floor board of her
vehicle and drove off the roadway and the vehicle flipped over. The report noted that appellant
was transported by emergency services to Jefferson Regional Medical Center. A witness
statement confirmed that appellant’s truck flipped over and landed in a ditch. Appellant
submitted duty status reports from Dr. Justiss Lindsey, a Board-certified family practitioner,
dated August 16 and 22, 2007. He provided clinical findings of left lower extremity weakness
and left leg swelling and recommended two weeks of physical therapy. A diagnosis on the
August 16, 2007 report is not legible. Dr. Lindsey advised that appellant was totally disabled.
On September 4, 2007 he noted clinical findings of right lower extremity contusions and noted
that the diagnosis was due to the injury. Dr. Lindsey advised that appellant could resume lightduty work on September 3, 2007, subject to restrictions.
By letter dated September 17, 2007, the Office advised appellant of the factual and
medical evidence needed to establish her claim. I requested that she submit a comprehensive
medical report from her treating physician which included a reasoned explanation as to how the
specific work factors or incidents identified by appellant had contributed to her claimed injuries.
Appellant resubmitted the duty status reports from Dr. Lindsey which were previously of
record. On September 11, 2007 he returned appellant to work full time without restrictions.
In a decision dated October 19, 2007, the Office denied appellant’s claim on the grounds
that the medical evidence was not sufficient to establish that she sustained an injury related to the
August 13, 2007 motor vehicle accident.1
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 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 the Act, that the claim was
filed within the applicable time limitation of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated
upon a traumatic injury or an occupational disease.3
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office 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.4 The second
1

5 U.S.C. §§ 8101-8193.

2

Id.

3

Gary J. Watling, 52 ECAB 357 (2001).

4

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

2

component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence. 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.5
Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant.6 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.7
The Office’s procedures recognize that a claim may be accepted without a medical report
when the condition is a minor one which can be identified on visual inspection.8 In clear-cut
traumatic injury claims, such as a fall resulting in a broken arm, a physician’s affirmative
statement is sufficient and no rationalized opinion on causal relationship is needed. In all other
traumatic injury claims, a rationalized medical opinion supporting causal relationship is
required.9
ANALYSIS
The Office properly found that the August 13, 2007 motor vehicle incident occurred as
alleged. The Board finds, however, that the medical evidence is insufficient to establish that
appellant sustained an injury causally related to the August 13, 2007 incident. On September 17,
2007 the Office advised appellant of the medical evidence needed to establish her claim.
Appellant did not submit a rationalized medical report from an attending physician addressing
how the motor vehicle accident caused or contributed to an injury.
The duty status reports of Dr. Lindsey noted clinical findings of left lower extremity
weakness and left leg swelling and recommended physical therapy. He advised that appellant
was totally disabled. However, Dr. Lindsey did not provide any specific diagnosis. In an
undated return to work note, he noted treating appellant from August 22 to September 3, 2007.
Dr. Lindsey’s reports are insufficient to establish the claim as he did not address how the
5

Id.

6

Leslie C. Moore, 52 ECAB 132 (2000).

7

Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(d) (July 2000).

9

Id.

3

August 13, 2007 accident cause or contributed to any specific condition or disability.10
Therefore, these reports are insufficient to meet appellant’s burden of proof.
On September 4, 2007 Dr. Lindsey noted clinical findings of right lower extremity
contusions and advised that appellant could resume light-duty work subject to restrictions. On
September 11, 2007 he returned appellant to work full time without restrictions. However, as
noted, these reports did not provide a history of injury or specifically address whether appellant’s
motor vehicle accident caused a diagnosed medical condition.11 Therefore, these reports are
insufficient to meet appellant’s burden of proof.
The Office procedures recognize that in clear-cut traumatic injury claims, such as a fall
resulting in a broken arm, a physician’s affirmative statement is sufficient and no rationalized
opinion on causal relationship is needed. The facts of this case do not provide for such a
situation as there was no firm diagnosis or records of appellant’s initial medical treatment on
August 13, 2007 at Jefferson Regional Medical Center. Appellant has not submitted a reasoned
medical opinion on causal relation between a diagnosed condition and the accepted work-related
incident.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship.12 Causal relationships must be established by
rationalized medical opinion evidence. Appellant failed to submit such evidence and the Office
therefore properly denied appellant’s claim for compensation.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she
sustained leg, back and arm injury causally related to her August 13, 2007 employment
incident.13

10

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006) (medical evidence which does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
11

Id.

12

See Dennis M. Mascarenas, 49 ECAB 215 (1997).

13

After the October 19, 2007 Office decision appellant submitted additional evidence. However, the Board may
not consider new evidence on appeal; see 20 C.F.R. § 501.2(c). However, this does not preclude appellant from
requesting reconsideration from the Office and submitting additional evidence in support of her reconsideration
request.

4

ORDER
IT IS HEREBY ORDERED THAT the October 19, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 13, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
MEDICAL COMMAND, Norfolk, VA,
Employer
__________________________________________

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)
)

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

Docket No. 06-750
Issued: June 5, 2007

Case Submitted on the Record

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

JURISDICTION
On February 10, 2006 appellant, through counsel, filed a timely appeal from a merit
decision of the Office of Workers’ Compensation Programs dated February 2, 2006 denying
modification of a December 23, 1997 loss of wage-earning capacity decision, a December 15,
2005 merit decision by an Office hearing representative affirming a June 7, 2005 schedule award
decision for the right upper extremity and a November 21, 2005 schedule award decision for loss
of use of the larynx. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction
over the June 7, November 21 and December 15, 2005 schedule award decisions and the
February 2, 2006 loss of wage-earning capacity determination.
ISSUES
The issues are: (1) whether the Office properly denied modification of a December 23,
1997 loss of wage-earning capacity decision; (2) whether appellant has more than a three percent
impairment of her right upper extremity, for which she received a schedule award; and
(3) whether she has more than a 10 percent impairment for loss of use of the larynx, for which
she received a schedule award.

FACTUAL HISTORY
On April 28, 1992 appellant, a 44-year-old diagnostic radiologic technician, filed a
traumatic injury claim alleging that on that date she was struck on the left shoulder and humerus
by items falling from the top of a metal cabinet.1 The Office accepted the claim for a herniated
disc at C5-6, C6 radiculopathy, left shoulder soft tissue trauma, authorized C5-6 nerve root
decompression surgery which was performed on July 20, 1993 and anterior cervical
microdiscectomy interbody fusion which was performed on November 25, 1992.
On July 7, 1997 appellant accepted the position of office automation clerk offered by the
employing establishment. She started working full time on September 15, 1997.
On December 23, 1997 the Office issued a loss of wage-earning decision finding that the
wages she earned as an office automation clerk represented her wage-earning capacity and
reduced her compensation benefits accordingly.
On February 27, 1998 appellant filed a claim for wage loss for the period January 25 to
February 27, 1998.2
By decision dated December 15, 1998, the Office denied appellant’s request for
additional wage-loss compensation for time lost over and above the compensation payments for
loss of wage-earning capacity.
In a decision dated January 28, 1999, the Office denied appellant’s request for
modification of the December 15, 1998 decision.
By decision dated August 2, 2000, the Office denied appellant’s claim for a recurrence of
disability beginning April 10, 1998.
In a report dated April 29, 2005, Dr. Michael J. Platto, an examining Board-certified
physiatrist, diagnosed C5-6, disc herniation and radiculopathy, laryngeal cord paralysis and
status post cervical discectomy. He advised that, using Table 16-10, page 482, under the
American Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter
A.M.A., Guides),3 appellant had Grade 3 or 60 percent deficit based upon her C5 sensory
deficits. He then noted that according to Table 16-13, page 489 appellant had a 5 percent upper
extremity impairment and 5 percent x 60 percent resulted in a 3 percent upper extremity
impairment. With regard to appellant’s paralyzed larynx, Dr. Platto stated that appellant had a
Class II impairment or 15 percent impairment using Table 11-8, page 265. In support of this
determination, Dr. Platto reported that appellant was capable of producing speech for everyday

1

Appellant resigned from her position effective July 15, 1994.

2

On June 19, 1998 the Office received a request for personnel action based on appellant’s request for resignation
effective April 10, 1998. Appellant filed an election form opting to receive compensation benefits under Federal
Employees’ Compensation Act on June 24, 2004.
3

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

2

use, but “she does have difficulty being heard in noisy places” and that “her speech will
sometimes cut out on her with prolonged usage.
In a report dated May 26, 2005, an Office medical adviser reviewed the medical evidence
and concluded that appellant had a three percent impairment of the upper extremity. Using
Tables 15-17, page 424 the Office medical adviser concluded that appellant had a five percent
impairment for sensory impairment at C5. He noted that according to Table 15-15, page 424 he
multiplied 60 percent by 5 percent to find a 3 percent impairment of the right upper extremity.
On June 1, 2005 appellant filed a claim for a recurrence of disability beginning
April 10, 1998.
In a decision dated June 7, 2005, the Office issued appellant a schedule award for a three
percent impairment of the right upper extremity.
The award ran from June 12 to
August 16, 2005.
In a letter dated June 20, 2005, appellant, through counsel, requested a review of the
written record by an Office hearing representative.
In a letter dated August 8, 2005, appellant, through counsel, requested reconsideration of
the June 7, 2005 decision and submitted a May 3, 2005 report by Harry A. Doyle, a Boardcertified psychiatrist, in support of her request. Dr. Doyle, based upon a psychiatric evaluation
and review of the psychological and diagnostic test results and the record, diagnosed major
depressive disorder, pain disorder associated with medical condition and psychological factors.
He attributed appellant’s depression and pain disorder to her accepted employment injury. Based
upon a review of the medical records, Dr. Doyle opined that appellant “experienced
postoperative cervical and right upper extremity pain, aggravated by work duties.” He noted that
the records showed that appellant “suffered a collapse of the bone graft and underwent a refusion
and plating in July 1993, complicated by nerve injury and vocal cord paralysis.” Dr. Doyle
noted that appellant “is experiencing serious symptoms and impairment in social and
occupational functioning as a result of [m]ajor [d]epressive [d]isorder and [p]ain [d]isorder and
she has been totally disabled from performing the duties of her former job or any other gainful
employment.” He opined that appellant had been totally disabled due to her depression and
chronic pain “from July 1994 until she returned to work with restrictions in September 1997, that
appellant became totally disabled again in April 1998 and that she has remained totally disabled
since that time.”
In a report dated October 12, 2005, the Office medical adviser concluded that appellant
had a 10 percent impairment of the larynx based on Table 11-8 at page 265. He indicated that
she was capable of producing speech for everyday needs, but sometimes it “may require effort
and occasionally may be beyond an individual’s capacity.” With reference to the A.M.A.,
Guides, the Office medical adviser noted that appellant stated that she had “persistent voice
problems aggravated by prolonged talking and singing and occasional difficulty swallowing.”
He then indicated the total impairment rating as 10 percent and the date of maximum medical
improvement as May 3, 2005.

3

On November 21, 2005 the Office issued a schedule award for a 10 percent impairment
for loss of use of the larynx.4
In a December 15, 2005 decision, an Office hearing representative affirmed the June 7,
2005 schedule award decision. The hearing representative found the medical evidence of record
was insufficient to establish that appellant had a greater than three percent permanent impairment
of the right upper extremity.
By decision dated February 2, 2006, the Office denied appellant’s request for
modification of the 1997 loss of wage-earning capacity, but expanded her claim to include the
conditions of major depressive disorder and pain disorder. The Office found that while
Dr. Doyle’s opinion was sufficient to establish consequential injuries of major depressive
disorder and pain disorder it was insufficient to warranted modification of the loss of wageearning capacity decision. In support of this conclusion, the Office noted that Dr. Doyle saw
appellant once, which was seven years after she had stopped work.
LEGAL PRECEDENT -- ISSUE 1
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.5 Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.6
The Office procedure manual provides that, if a formal loss of wage-earning capacity
decision has been issued, the rating should be left in place unless the claimant requests
resumption of compensation for total wage loss.7 The procedure manual further indicates that,
under these circumstances, the claims examiner will need to evaluate the request according to the
customary criteria for modifying a formal loss of wage-earning capacity decision.8
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
4

The Board notes that on December 8, 2005 the Office received a June 21, 2005 memorandum from the Office
medical adviser, who determined that appellant had a 34 percent voice/speech impairment based upon Tables 11-8,
page 265 and Table 11-9. In support of this conclusion, the Office medical adviser noted that he “would accept the
last two impairments of this table that indicates classification of voice and impairment.”
5

See 20 C.F.R. §§ 10.403, 10.520.

6

Id.; see Katherine T. Kreger, 55 ECAB 633 (2004).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995). See Mary E. Marshall, 56 ECAB ___ (Docket No. 04-1048, issued
March 25, 2005).
8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995). See Harley Sims, Jr., 56 ECAB ___ (Docket No. 04-1916, issued
February 8, 2005).

4

rehabilitated or the original determination was, in fact, erroneous.9 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.10
ANALYSIS -- ISSUE 1
On December 23, 1997 the Office issued a wage-earning capacity determination finding
that appellant’s wages in the office automation clerk position to which she returned on
September 15, 1997 fairly and reasonably represented her wage-earning capacity. The Office
denied modification of the rating while at the same time finding that appellant sustained a
consequential injury of major depressive disorder. While the Office found Dr. Doyle’s report
supportive of a consequential injury of major depressive disorder, it found the report insufficient
to support modification of the wage-earning capacity decision beginning April 10, 1998.
The evidence submitted by appellant to support modification of her September 15, 1997
loss of wage-earning capacity decision included a May 3, 2005 report by Dr. Doyle, which the
Office hearing representative found sufficient to warrant acceptance of consequential injuries of
major depressive disorder and pain disorder. Dr. Doyle reported that appellant experienced
“serious symptoms and impairment in social and occupational functioning as a result of major
depressive disorder and pain disorder and she has been totally disabled from performing the
duties of her former job or any other gainful employment.” He opined that appellant had been
totally disabled due to her depression and chronic pain “from July 1994 until she returned to
work with restrictions in September 1997, that she became totally disabled again in April 1998
and that she has remained totally disabled since that time.” For a physician’s opinion to be
relevant on the issue of modification of a wage-earning capacity decision, the physician must
address the duties of the selected position.11 However, medical evidence submitted by appellant
after the loss of wage-earning capacity determination did not specifically address whether the
position of automation clerk was unsuitable. Dr. Doyle did not address the relevant issue of
whether appellant’s accepted employment injury of herniated disc at C5-6, C6 radiculopathy, left
shoulder soft tissue trauma had worsened or explain how appellant’s back and shoulder
conditions prevented her from performing the position of office automation clerk. He also failed
to provide any explanation as to how appellant’s depression disorder and pain disorder precluded
appellant from performing the position of office automation clerk. Dr. Doyle merely noted that
appellant was totally disabled from working with no supporting rationale or discussion of the
duties of the position of office automation clerk. Furthermore, Dr. Doyle examined appellant
once seven years after she had stopped working. As he did not address the relevant issue in this
case, his report is of diminished probative value.
Appellant has the burden of proof to show a modification of her wage-earning capacity.
She has not submitted sufficient medical evidence to establish a material change in the nature
and extent of her injury-related conditions. Dr. Doyle did not explain how appellant’s accepted
conditions would cause her to be totally disabled for work as an office automation clerk.
9

Stanley B. Plotkin, 51 ECAB 700 (2000); Tamra McCauley, 51 ECAB 375 (2000).

10

Harley Sims, Jr., supra note 8; Stanley B. Plotkin, supra note 9.

11

Phillip S. Deering, 47 ECAB 692 (1996).

5

Appellant, consequently, has not shown that the Office’s determination of her loss of wageearning capacity should be modified.12
LEGAL PRECEDENT -- ISSUE 2
The schedule award provision of the Act13 and its implementing regulation14 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, the Act does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.15 Effective February 1, 2001, the fifth
edition of the A.M.A., Guides is used to calculate schedule awards.16
Although the A.M.A., Guides include guidelines for estimating impairment due to
disorders of the spine, under the Act a schedule award is not payable for injury to the spine.17 In
the 1960 amendments to the Act, the schedule award provision was modified 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 originates in a scheduled or nonscheduled member.
Therefore, as the schedule award provision of the Act includes the extremities, a claimant may
be entitled to a schedule award for permanent impairment to an arm or leg even though the cause
of the impairment originates in the spine.18 An impairment should not be considered permanent
until the clinical findings indicate that the medical condition is static and well stabilized.19

12

See Elbert Hicks, 55 ECAB 151 (2003).

13

5 U.S.C. §§ 8101-8193.

14

5 U.S.C. § 8107.

15

20 C.F.R. § 10.404.

16

FECA Bulletin No. 01-05 (issued January 29, 2001); see Jesse Mendoza, 54 ECAB 802 (2003).

17

Pamela J. Darling, 49 ECAB 286 (1998).

18

Thomas J. Engelhart, 50 ECAB 319 (1999). Section 15.12 of the fifth edition of the A.M.A., Guides describes
the method to be used for evaluation of impairment due to sensory and motor loss of the extremities as follows. The
nerves involved are to be first identified. Then, under Tables 15-15 and 15-16, the extent of any sensory and/or
motor loss due to nerve impairment is to be determined, to be followed by determination of maximum impairment
due to nerve dysfunction in Table 15-17 for the upper extremity and Table 15-18 for the lower extremity. The
severity of the sensory or motor deficit is to be multiplied by the maximum value of the relevant nerve. A.M.A.,
Guides, supra note 3 at 423.
19

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

6

Office procedures provide that, after obtaining all necessary medical evidence, the file
should be reviewed by an Office medical adviser for an opinion concerning the nature and
percentage of any impairment.20
ANALYSIS -- ISSUE 2
In a report dated April 29, 2005, Dr. Platto, using Table 16-10, page 82, determined that
appellant had Grade 3 or 60 percent deficit based upon her C5 sensory deficits. Using Table 1614, page 689 he concluded that appellant had a 5 percent upper extremity impairment and 5
percent x 60 percent result in a 3 percent upper extremity impairment.21
In a May 26, 2005 report, the Office medical adviser determined that appellant had a
three percent impairment of the right upper extremity. He applied the appropriate tables and
pages of the A.M.A., Guides to Dr. Platto’s findings in reaching his conclusion. The Office
medical adviser determined that appellant’s 60 percent sensory nerve deficit constituted a
Grade 3 impairment of the upper extremity based on the A.M.A., Guides 424, Table 15-15. He
further determined, that maximum impairment for sensory deficit of a C5 nerve root constituted
a five percent impairment based on the A.M.A., Guides 424, Table 15-17. The Office medical
adviser multiplied 60 percent impairment for a Grade 3 sensory deficit by a maximum
impairment of 5 percent for sensory deficit of the C5 nerve root and properly concluded that
appellant had a 3 percent impairment of the right upper extremity. There is no medical evidence
in conformance with the A.M.A., Guides which supports that appellant has more than three
percent impairment of her right upper extremity.
Consequently, appellant has not established that she is entitled to a schedule award for
greater impairment of her right upper extremity than that for which she has received.
LEGAL PRECEDENT -- ISSUE 3
The schedule award provision of the Act22 and its implementing regulation23 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, the Act does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulation as the

20

Federal (FECA) Procedure Manual, Part 2 -- Claims, Evaluation of Schedule Awards, Chapter 2.808.6(d)
(August 2002).
21

Although Dr. Platto reference tables in Chapter 6, The Upper Extremities, the tables referenced and procedures
used to calculate impairment are essentially the same as contained in Chapter 15, The Spine. Compare Tables 16-10
at 482 and 16-13 at 489, with Tables 15-17 and 15-17 at 424.
22

5 U.S.C. §§ 8101-8193.

23

5 U.S.C. § 8107.

7

appropriate standard for evaluating schedule losses.24 Effective February 1, 2001, the fifth
edition of the A.M.A., Guides is used to calculate schedule awards.25
The larynx is a scheduled member of the body for which an award is payable for 160
weeks for a total impairment.26 Under the A.M.A., Guides, impairment to the larynx is
determined by impairment of a claimant’s ability to speak.27 Speech impairment is evaluated as
to audibility (ability to speak at a level sufficient to be heard), intelligibility (ability to articulate
and to link the phonetic units of speech with sufficient accuracy to be understood), and
functional efficiency (ability to produce a serviceably fast rate of speech output and to sustain
this output over a useful period of time). The degree of impairment is equivalent to the greatest
percentage of impairment recorded in any one of these components of speech function.
ANALYSIS -- ISSUE 3
The Office awarded appellant a schedule award for a 10 percent impairment of the
larynx, based on the Office medical adviser’s assessment of the medical evidence. The Board,
however, finds that this case is not in posture as to the extent of impairment of appellant’s larynx
impairment.
In an April 29, 2006 report, Dr. Platto utilized the fifth edition of the A.M.A., Guides to
determine appellant’s laryngeal impairment. He diagnosed laryngeal cord paralysis. Dr. Platto
reported that appellant was capable of producing speech for everyday use, but noted “she does
have difficult being heard in noisy places” and that “her speech will sometimes cut out on her
with prolonged usage.” He opined that, based upon these findings, she fell into a Class II
impairment for voice and speech which correlated to a 15 percent impairment under Table 11-8,
page 265.
In a report dated October 12, 2005, the Office medical adviser concluded that appellant
had a 10 percent impairment of the larynx based upon Table 11-8 at page 265. He indicated that
appellant was capable of producing speech for everyday needs, but sometimes it “may require
effort and occasionally may be beyond an individual’s capacity.” With reference to the A.M.A.,
Guides, he noted that appellant stated that she had “persistent voice problems aggravated by
prolonged talking and singing and occasional difficulty swallowing.” The Office medical
adviser concluded that appellant had a total impairment rating of 10 percent and the date of
maximum medical improvement was May 3, 2005. The Office medical adviser failed to provide
any rationale to explain how he arrived at the 10 percent impairment rating. The Office medical
adviser did not provide any correlation between the physical findings made by Dr. Platto
regarding appellant’s larynx and the classification of voice/speech impairment found in Table
11-8. Accordingly, the case will be remanded for further development.
24

20 C.F.R. § 10.404.

25

FECA Bulletin No. 01-05 (issued January 29, 2001); see Jesse Mendoza, supra note 16.

26

20 C.F.R. § 10.404(a); 5 U.S.C. § 8107(c)(22).

27

A.M.A., Guides, 180-83 (5th ed., 2001). See also A. George Lamp, 45 ECAB 441 (1994); Martin J. Epp,
38 ECAB 858-59 (1987).

8

On remand, the Office should refer appellant, together with the case record and statement
of accepted facts, to an appropriate Board-certified specialist for an evaluation and calculation of
her work-related impairment of her larynx based on correct application of the fifth edition of the
A.M.A., Guides. After such further development as it deems necessary, the Office shall issue a
de novo decision.
CONCLUSION
The Board finds that the Office properly denied modification of appellant’s loss of wageearning capacity. The Board further finds that appellant has not met her burden of proof to
establish that she sustained more than a three percent impairment of her right upper extremity for
which she received a schedule award. The Board also finds that the case is not in posture for
decision on the issue of appellant’s impairment to her larynx.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 2, 2006 and December 15 and June 7, 2005 are affirmed
and the decision dated November 21, 2005 is set aside and the case is remanded for further
action consistent with the above opinion.
Issued: June 5, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.L., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Chamblee, GA, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 10-2278
Issued: July 14, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On September 10, 2010 appellant filed a timely appeal from a July 27, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
Appellant, a 42-year-old collections representative, filed a traumatic injury claim alleging
that she injured her left shoulder, arm and upper back on January 13, 2010 when some tables fell
against her. On February 17, 2010 Dr. Rohit M. Desai, a Board-certified internist, advised that
appellant was unable to work January 25 through March 11, 2010 due to employment-related
injuries to her shoulder, back and arm.2 He subsequently extended the period of disability
through March 15, 2010.
By decision dated March 22, 2010, OWCP denied appellant’s traumatic injury claim
because she failed to establish fact of injury.
1
2

5 U.S.C. § 8101 et seq.

Dr. Desai did not identify a specific date of injury or provide a history of injury. Furthermore, he did not
provide a specific diagnosis with respect to appellant’s reported shoulder, back and arm injuries.

On March 25, 2010 appellant requested a review of the written record. OWCP
subsequently received chiropractic treatment records for the period April through July 2010.
Appellant also submitted a June 26, 2010 report from her chiropractor, Dr. Shandreika Neal, who
diagnosed, inter alia, cervical, thoracic and lumbar sprains, brachial neuritis and lumbar disc
displacement. OWCP also received a May 11, 2010 report from Dr. Srihari R. Malempati, a
Board-certified general surgeon, who diagnosed cervical and upper thoracic strains with left
shoulder sprain secondary to fall of a heavy object. Dr. Malempati identified January 13, 2010
as the date of injury. Lastly, appellant submitted additional evidence from Dr. Desai. In a
March 17, 2010 note, he extended the period of disability through March 29, 2010. Dr. Desai
also provided an April 5, 2010 narrative report wherein he diagnosed cervical sprain/strain,
cervical intersegmental dysfunction, thoracic sprain/strain, left shoulder strain and left shoulder
tendinitis with bursitis. He identified January 13, 2010 as the date of appellant’s injury when
reportedly “tables fell on [her] upper back and left shoulder.” In an April 5, 2010 report,
Dr. Desai advised that appellant had recovered approximately 80 percent since her injury and she
was able to resume work with no heavy lifting.
In her July 27, 2010 decision, the hearing representative noted that the medical evidence
consisted of disability notes from Dr. Desai dated February 17, March 5 and 17, 2010. She also
noted chiropractic records for treatment beginning April 15, 2010. The hearing representative
did not reference Dr. Desai’s April 5, 2010 narrative report or Dr. Malempati’s May 11, 2010
report, both of which included specific medical diagnoses ostensibly related to the January 13,
2010 employment incident.
In affirming the previous denial of the claim, the hearing representative found that
Dr. Desai provided “no diagnosis of the condition for which he was treating [appellant].” The
hearing representative concluded that appellant had not provided adequate medical evidence to
support that she suffered an injury as a result of the January 13, 2010 employment incident.
On the issue of fact of injury, the case is not in posture for decision. The Board’s
jurisdiction over a case is limited to reviewing the evidence that was before OWCP at the time of
its final decision.3 As the Board’s decisions are final with regard to the subject matter appealed,
it is crucial that all relevant evidence that was properly submitted to OWCP prior to the time of
issuance of its final decision be addressed by OWCP.4 In this instance, the hearing
representative failed to consider at least two relevant medical reports that OWCP received prior
to the issuance of the July 27, 2010 decision. Whether OWCP receives relevant evidence on the
date of the decision or several days prior, such evidence must be considered.5 As the hearing
representative failed to address all relevant evidenced before her at the time she issued the
July 27, 2010 decision, the case is remanded for a proper review of the evidence and issuance of
an appropriate final decision.

3

20 C.F.R. § 501.2(c)(1) (2010).

4

Id. at § 501.6(d); see William A. Couch, 41 ECAB 548, 553 (1990).

5

Willard McKennon, 51 ECAB 145 (1999).

2

IT IS HEREBY ORDERED THAT the July 27, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this order of the Board.
Issued: July 14, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3