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

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

Docket No. 08-1908
Issued: February 12, 2009

Case Submitted on the Record

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

JURISDICTION
On July 1, 2008 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ decision dated July 20, 2007 denying her claim for compensation. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof in establishing that she sustained
an occupational disease in the performance of duty.
FACTUAL HISTORY
On October 7, 2004 appellant, then a 40-year-old mail handler, filed an occupational
disease claim alleging that she sustained bilateral carpal tunnel syndrome and right shoulder cuff
tendinitis as a result of pushing equipment weighing 89 to 400 pounds, grabbing, pulling and
pitching mail and stacking flats. She first became aware of her condition in May 2004 and
realized her condition was caused or aggravated by her employment on September 23, 2004.

Appellant did not stop work.
October 27, 2004 letter.

The employing establishment controverted her claim in an

Appellant submitted an October 7, 2004 statement noting that she previously saw
Dr. Andrew Hutter, a Board-certified orthopedic surgeon, for shoulder pain and hand numbness.
Dr. Hutter treated appellant beginning in January 2004, testing her for carpal tunnel syndrome
and tendinitis. Appellant subsequently sought treatment from Dr. John Capo, a Board-certified
orthopedic surgeon. In a September 22, 2004 work restriction form, Dr. Capo diagnosed right
carpal tunnel syndrome and right shoulder rotator cuff tendinitis. On September 23, 2004 he
noted appellant’s eight-month history of right hand numbness, tingling and pain and right
shoulder pain. In an October 19, 2004 work restriction form, Dr. Capo reiterated the diagnosis.
In a work capacity evaluation form of the same date, he specified limitations in appellant’s work
activities.
In a January 25, 2005 letter, the Office advised appellant of the factual and medical
evidence needed to establish her claim and allowed her 30 days to submit such evidence. It
requested that she submit a comprehensive medical report containing a physician’s reasoned
opinion on the cause of her condition.
In response, appellant submitted an August 9, 2004 treatment note in which Dr. Capo
advised that appellant had an eight-month history of right hand numbness, tingling and pain as
well as right shoulder pain. She had a history of no significant trauma, but noticed right arm
symptoms while working. Dr. Capo diagnosed right shoulder rotator cuff tendinitis and right
carpal tunnel syndrome. In an October 11, 2004 progress note, he noted appellant’s right arm
symptoms and also noted complaint of left hand numbness and tingling with carpal tunnel-like
symptoms. On December 7, 2004 Dr. Capo repeated the diagnosis. He also noted that
appellant’s condition could be aggravated by continuous stress on the hand for long periods of
time. A February 21, 2005 treatment note indicated that appellant was involved in a motor
vehicle accident on February 11, 2005 and experienced mild pain in her neck and shoulder.
Other treatment notes from Dr. Capo addressed appellant’s status and findings and recommended
carpal tunnel surgery on the right. An April 29, 2004 diagnostic study obtained by Dr. Dong
Cho, a Board-certified physiatrist, advised that electromyogram (EMG) results were suggestive
of moderate-to-severe right carpal tunnel syndrome.
Appellant submitted treatment notes from Dr. Hutter dated February 27 to May 14, 2004.
Dr. Hutter advised that appellant had left quad repair after a fall down stairs and diagnosed status
post left quad repair. On April 9, 2004 he stated that her numbness and tingling in her right hand
became worse at night and when driving. Dr. Hutter advised that appellant had right carpal
tunnel syndrome. On April 30, 2004 appellant was treated “for the work-related shoulder injury
and her hand.” Dr. Hutter stated that an EMG showed moderate carpal tunnel syndrome on the
right and it “appeared to be related to the injury at work.” On May 14, 2004 he reiterated that
appellant’s right carpal tunnel syndrome was documented by the EMG and “appeared to be
work-related due to repetitive trauma.
In a September 29, 2006 decision, the Office denied appellant’s claim for compensation
on the grounds that the medical evidence did not establish that her diagnosed conditions were
caused by the factors of her employment.

2

On January 8, 2007 appellant requested an oral hearing which was held on May 15, 2007.
The Office hearing representative indicated that she would hold the record open for 30 days in
order to accept additional evidence. Appellant submitted an August 29, 2005 diagnostic testing
report of Dr. Mark Wilner, a Board-certified physiatrist, who noted that appellant had numbness
and tingling in the right fingers and hand for six months. Dr. Wilner advised that the EMG
results revealed evidence of right carpal tunnel syndrome.
On July 20, 2007 an Office hearing representative affirmed the December 29, 2006
decision denying appellant’s claim for compensation.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act 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; that an injury was sustained while in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.1
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.2
ANALYSIS
The evidence establishes that appellant has been diagnosed with carpal tunnel syndrome
and right shoulder rotator cuff tendinitis. The record also reflects that she pushes equipment
weighing 89 to 400 pounds, grabs, pulls and pitches mail and stacks flats as part of her job
duties. However, appellant has not provided sufficient medical evidence establishing that her
diagnosed conditions are causally related to these employment factors.
In a December 7, 2004 treatment note, Dr. Capo stated that appellant’s right carpal tunnel
syndrome and right rotator cuff tendinitis can be aggravated by continuous stress on the hand for
long periods of time. He did not define the source of continuing stress on appellant’s hand or
specifically state whether that source was related to her job duties. Dr. Capo diagnosed right
carpal tunnel syndrome and right rotator cuff tendinitis but did not provide any medical opinion
establishing causal relationship between the diagnosed condition and appellant’s employment

1

J.E., 59 ECAB ___ (Docket No. 07-814, issued October 2, 2007); Elaine Pendleton, 40 ECAB 1143 (1989).

2

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Roy L. Humphrey, 57 ECAB 238 (2005).

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duties.3 In subsequent medical reports, Dr. Capo failed to address whether or how appellant’s
carpal tunnel syndrome was caused by her job duties. His records do not provide a full history of
appellant’s work duties or provide a narrative opinion on how her employment would cause or
aggravate carpal tunnel syndrome or shoulder tendinitis. The fact that a disabling condition
manifests itself during a period of employment does not establish a right to compensation
benefits, nor does it raise an inference of causal relationship between such condition and an
employment injury.4
In the April 30 and May 14, 2004 treatment notes, Dr. Hutter generally indicated that
appellant’s carpal tunnel syndrome was related to an injury sustained at work. However, he did
not address any specific job duties as the cause of her diagnosed condition or explain the reasons
any employment factors would cause or aggravate the diagnosed condition.5 Furthermore, the
May 14, 2004 treatment note was speculative in nature, noting that it “appeared” that appellant’s
condition was related to a work injury.6 Other treatment notes from Dr. Hutter did not provide a
medical opinion as to the cause of appellant’s carpal tunnel syndrome.
The treatment notes from Drs. Cho and Wilner interpreted the EMG results to diagnose
right carpal tunnel syndrome and right rotator cuff tendinitis. However, the physicians did not
otherwise state an opinion regarding how appellant’s pushing equipment, pitching mail or
stacking flats caused or aggravated her diagnosed conditions. Consequently, the medical
evidence of record does not establish that she sustained an occupational disease in the
performance of duty.
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
sustained an occupational disease in the performance of duty.

3

See K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 13, 2007).

4

Dolph G. Stuart, 13 ECAB 480 (1969).

5

See Gloria J. McPherson, 51 ECAB 441 (2000) (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

See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962) (where the Board held that medical opinions which are
speculative or equivocal in character have little probative value).

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated July 20, 2007 is affirmed.
Issued: February 12, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.F., Appellant
and
DEPARTMENT OF DEFENSE, EDUCATION
ACTIVITY, Alexandria, VA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 13-1662
Issued: January 2, 2014

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On July 2, 2013 appellant filed a timely appeal from a June 7, 2013 nonmerit decision
and a February 20, 2013 merit decision of the Office of Workers’ Compensation Programs
(OWCP). The Board assigned Docket No. 13-1662.
On November 8, 2012 appellant, then a 50-year-old custodial worker, filed a traumatic
injury claim alleging an injury to his back and right leg when he lifted a heavy trash can at work
on October 31, 2012. In support of his claim, appellant submitted reports of attending
physician’s assistants. These included a report dated December 27, 2012 of a December 14,
2012 visit. Appellant also submitted reports of Dr. Brian J. Battersby, Jr., an attending Boardcertified orthopedic surgeon, including a December 14, 2012 work capacity report. In a
February 20, 2013 decision, OWCP denied appellant’s claim on the grounds that he had not
submitted sufficient medical evidence in support of the claim.1
Appellant requested reconsideration in April 2013 and submitted additional documents,
including the December 27, 2012 report now countersigned by Dr. Battersby and an April 13,
2013 addendum by Dr. Battersby. In its June 7, 2013 decision, OWCP denied appellant’s

1

Physicians assistants are not considered physicians under 5 U.S.C. § 8101(2).

request for further review of the merits of his claim under 5 U.S.C. § 8128(a), finding the
evidence submitted by appellant to be duplicative.
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.3 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his application
for review within one year of the date of that decision.4
The Board notes that OWCP failed to consider the new medical report dated
December 27, 2012 by Dr. Battersby. This report now countersigned by Dr. Battersby and
submitted for the first time with appellant’s reconsideration request, constituted new and relevant
medical evidence. Therefore, the submission of this evidence requires reopening of appellant’s
claim for merit review.5 The case shall be remanded to OWCP and, after any development
deemed necessary, OWCP shall conduct a merit review of appellant’s claim, pursuant to 5
U.S.C. § 8128(a) and issue an appropriate merit decision.6

2

Under section 8128 of FECA, “The Secretary of Labor may review an award for or against payment of
compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
3

20 C.F.R. § 10.606(b)(2).

4

Id. at § 10.607(a).

5

See D.M., Docket No. 10-1844 (issued May 10, 2011); Kenneth R. Mroczkowski, 40 ECAB 855 (1989).

6

Given the Board’s disposition of the nonmerit issue of this case (the denial of appellant’s merit review request),
it is not necessary to consider the merit issue, i.e., whether appellant submitted sufficient medical evidence to
establish that he sustained a work-related injury on October 31, 2012. See 20 C.F.R. § 501.2(c).

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IT IS HEREBY ORDERED THAT the June 7, 2013 decision of the Office of Workers’
Compensation Programs is reversed and the case remanded to OWCP for further proceedings
consistent with decision of the Board.
Issued: January 2, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Ann Arbor, MI, Employer
__________________________________________

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

Docket No. 09-921
Issued: December 14, 2009

Case Submitted on the Record

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

JURISDICTION
On February 25, 2009 appellant filed a timely appeal from Office of Workers’
Compensation Programs’ June 17, 2008 and January 9, 2009 decisions denying compensation for
wage loss. 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 met her burden of proof in establishing that she was
entitled to additional compensation for wage loss for intermittent periods between December 11,
2006 and September 27, 2007 causally related to her federal employment.
FACTUAL HISTORY
On October 7, 2006 appellant, a 54-year-old automation clerk, injured her left foot while
walking to her vehicle. She filed a claim for benefits, which the Office accepted for posterior tibial
tendinitis of the left foot.

Appellant submitted CA-7 and CA-7a forms dated March 18, 2008 requesting
compensation for wage loss for intermittent periods between December 11, 2006 through
September 27, 2007.
By letter dated March 27, 2008, the Office asked appellant to submit medical evidence
establishing disability for the periods claimed. It requested contemporaneous medical evidence,
which established that she was examined by a physician on the dates, noted and indicated that
her accepted condition had worsened to the point that she was disabled from performing her
regular work duties.
The Office noted that appellant had requested a total of 223.27 hours in wage loss. It
received a May 31, 2007 report from Dr. James K. Kleanthous, a specialist in podiatry, who
stated that he had been treating appellant since November 2006 for posterior tibial tendinitis, her
accepted condition and posterior tibial tendon dysfunction. Dr. Kleanthous advised that
appellant’s accepted foot condition was occasionally aggravated by her work duties and that she
required time off from work to ameliorate her work-related foot pain. He asserted that one of
these periods in which she required time off and was absent from work due to her work-related
foot pain was May 23 through 26, 2007. Dr. Kleanthous therefore requested that appellant be
excused from work on those dates.
The Office disallowed the time requested by Dr. Kleanthous from May 23 to 26, 2007,
which totaled 32 hours in wage-loss compensation. It stated that it required a diagnosis of an
accepted condition and noted that a diagnosis of “pain,” by itself, was not sufficient to establish
fact of injury and support incapacitation from work on the days claimed. With regard to the
remainder of the dates on which appellant requested wage-loss compensation, the Office advised
appellant that the following requests for wage loss were not supported by the appropriate medical
reports on the dates claimed: 4 hours for a doctor’s visit on December 11, 2006; 4 hours for
December 29, 2006; 8 hours for December 30, 2006;1 24 hours for March 17, 19 and 24, 2007;
24 hours for April 13, 14 and 16, 2007;2 8 hours for May 8, 2007; 3.66 hours for June 18, 2007;
24 hours for the period June 19 through 21, 2007;3 8 hours for June 25; 3.50 hours for June 27,
2007; 8 hours per day from June 28 through 31, 2007; 8 hours for July 14, 2007; 5.30 hours for

1

The Office noted that it had received a December 29, 2007 report from Dr. Albert Klemptner, Board-certified in
internal medicine, on which he stated that appellant was under his care from December 29, 2007 through January 1,
2008 but did not provide an explanation as to why appellant could not work or what caused her total disability from
work during this period.
2

The Office noted that it had received an April 17, 2007 report from Dr. Klemptner on which he indicated that
appellant was under his care from April 13 through 17, 2007; however, he did not provide an explanation as to why
appellant could not work or what caused her total disability from work during this period.
3

The Office stated that it had received a June 18, 2007 report from Dr. Klemptner on which he indicated that
appellant was under his care from June 16 through 21, 2007; however, he did not provide an explanation as to why
appellant could not work or what caused her total disability from work during this period.

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July 16, 2007;4 7.23 hours for July 30, 2007; 8 hours claimed for July 30, 2007;5 8 hours for
August 6, 2007;6 4 hours for August 14, 2007; 6.87 hours for August 15, 2007; 8 hours per day
from August 16 through 18, 2007; 8 hours for August 20, 2007;7 8 hours on September 5, 2007;
4 hours on September 7, 2007; 8 hours on September 8, 2007;8 4 hours on September 25, 2007
and 8 hours from September 26 through 27, 2007.9
By decision dated June 17, 2008, the Office affirmed in part and denied in part
appellant’s claim for compensation based on wage loss. It accepted appellant’s claims for wage
loss for the following periods: 4 hours for a doctor’s visit on December 11, 2006; 4 hours for
December 29, 2006; 3.98 hours for January 4, 2007; 4 hours for May 16, 2007; 3.66 hours for
June 18, 2007; 3.50 hours for June 27, 2007; 4 hours for July 16, 2007; 4 hours for August 6, 2007;
and 4 hours for September 4, 2007, for a total of 35.14 hours.10
By letter dated June 19, 2008, appellant’s attorney requested an oral hearing, which was
held on October 15, 2008. Appellant resubmitted the documents pertaining to medical
appointments that she had submitted prior to the Office’s June 17, 2008 decision.
By decision dated January 9, 2009, an Office hearing representative affirmed the June 17,
2008 decision denying modification. The Office stated that appellant had failed to submit
medical evidence establishing a longer period for appointments than that for which she had
already received compensation.

4

The Office noted that it had received a July 16, 2007 report from Dr. Klemptner on which he indicated that
appellant was under his care from July 14 through 16, 2007; however, he did not provide an explanation as to why
appellant could not work or what caused her total disability from work during this period.
5

The Office noted that it had received a July 30, 2007 report from Dr. Kleanthous, who stated that appellant
complained of foot pain, which kept her out of work on that date. The Office reiterated that it required a diagnosis
of an accepted condition and that “pain” is not sufficient to support incapacitation from work on the date claimed.
6

The Office noted that it had received an August 6, 2007 report from Dr. Klemptner on which he indicated that
appellant was under his care on that date; however, he did not provide an explanation as to why appellant could not
work or what caused her total disability from work during this period.
7

The Office noted that it had received an August 16, 2007 report from Dr. Klemptner on which he indicated that
appellant was under his care from August 14 to 21, 2007; however, he did not provide an explanation as to why
appellant could not work or what caused her total disability from work during this period.
8

The Office noted that it had received a September 7, 2007 report from Dr. Klemptner on which he indicated that
appellant was under his care from September 5 to 9, 2007; however, he did not provide an explanation as to why
appellant could not work or what caused her total disability from work during this period.
9

The Office noted that it had received a September 26, 2007 report from Dr. Klemptner on which he indicated
that appellant was under his care from September 24 to 27, 2007; however, he did not provide an explanation as to
why appellant could not work or what caused her total disability from work during this period.
10

The Office listed the dates for which she had been denied compensation. In some cases, the Office stated dates
for which she was awarded compensation, but had the hours she requested from eight to four.

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LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act11 has the
burden of establishing the essential elements of his or her claim by the weight of the evidence.12
Under the Act, the term disability is defined as an inability, due to an employment injury, to earn
the wages the employee was receiving at the time of injury, i.e., an impairment resulting in loss
of wage-earning capacity.13 For each period of disability claimed, the employee has the burden
of establishing that he or she was disabled for work as a result of the accepted employment
injury.14 Whether a particular injury causes an employee to become disabled for work and the
duration of that disability are medical issues that must be proved by a preponderance of
probative and reliable medical opinion evidence.15 The fact that a condition manifests itself
during a period of employment does not raise an inference that there is a causal relationship
between the two.16 The Board will not require the Office to pay compensation for disability in
the absence of medical evidence directly addressing the specific dates of disability for which
compensation is claimed. To do so would essentially allow an employee to self-certify his or her
disability and entitlement to compensation.17
ANALYSIS
In support of her claim, appellant submitted CA-7 and CA-7a forms for intermittent
periods from December 11, 2006 to September 27, 2007, claiming a total of 223.27 hours. The
Office paid wage-loss compensation for 35.14 hours during this period. The Office denied four
hours of compensation on several days for which she had claimed eight hours of leave without pay,
noting that she was entitled to no more than four hours of compensation for routine medical
appointments. It noted that, while longer periods of time were allowed when required by the
nature of the medical procedure and/or the need to travel a substantial distance to obtain the
medical care, appellant failed to provide sufficient medical evidence to support that she was
disabled or attending a medical examination on the dates claimed.
The Board finds that the May 31, 2007 report from Dr. Kleanthous provides sufficient
medical evidence to support disability from May 23 to 26, 2007. Dr. Kleanthous indicated that
he was treating appellant for her accepted condition through this period and that her condition
necessitated absence from work on those dates. He provided a diagnosis of her condition and a
sufficient rationale as to why she was absent on the dates she requested wage-loss compensation.
With regard to the rest of the medical reports of record, however, appellant has not established
11

5 U.S.C. §§ 8101-8193.

12

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

13

See Prince E. Wallace, 52 ECAB 357 (2001).

14

Dennis J. Balogh, 52 ECAB 232 (2001).

15

Gary L. Watling, 52 ECAB 278 (2001).

16

Manual Garcia, 37 ECAB 767 (1986).

17

Amelia S. Jefferson, 57 ECAB 183 (2005); Fereidoon Kharabi, 52 ECAB 291 (2001).

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that she was disabled beyond the periods for which the Office awarded her compensation.
Dr. Kleanthous’ July 30, 2007 report merely stated that appellant was unable to work on that date
due to foot pain. Dr. Klemptner submitted numerous reports, which indicated that appellant was
under his care, and missed work for certain periods. These reports, however, are of diminished
probative value in that they did not provide adequate medical rationale in support of their
conclusions.18 Dr. Klemptner failed to indicate in these reports the reason for appellant’s
incapacitation and provide specific support for her absences. Appellant has failed to provide
sufficient medical evidence to establish disability as claimed during these periods.
Accordingly, the Board modifies the Office’s wage-loss determination to allow 32 hours
claimed from May 23 to 26, 2007. In all other respects, the June 17, 2008 and January 9, 2009
decisions are affirmed.
CONCLUSION
The Board modifies the June 17, 2008 and January 9, 2009 decisions to award 32
additional hours of wage-loss compensation from May 23 to 26, 2008. The Board finds that
appellant has not met her burden of proof in establishing that she was entitled to additional
compensation for wage loss for intermittent periods between December 11, 2006 through
September 27, 2007 causally related to her federal employment.

18

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

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ORDER
IT IS HEREBY ORDERED THAT the June 17, 2008 and January 9, 2009 decisions of
the Office of Workers’ Compensation Programs be affirmed, as modified.
Issued: December 14, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.H., Appellant
and
U.S. POSTAL SERVICE,
St. Louis, MO, Employer
__________________________________________

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

Docket No. 08-1053
Issued: October 15, 2008

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 February 26, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated December 11, 2007 terminating her compensation
and medical benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s
compensation and medical benefits.
FACTUAL HISTORY
On August 15, 2006 appellant, then a 50-year-old mail handler filed a traumatic injury
claim alleging that on August 5, 2006 a bundle of magazines fell onto her head resulting in
muscle strain. On October 20, 2006 the Office accepted her claim for neck sprain.
Further medical evidence was received following the acceptance of the claim. In a
December 7, 2006 note, Dr. William Richardson, Board-certified in family medicine, requested

that appellant be evaluated by a physical therapist for neck pain and headache and be treated as
needed. In a December 14, 2006 note, he stated that appellant was hit on the head by a bundle of
magazines on August 5, 2006 while at work. Dr. Richardson found muscle spasms and trigger
points in the neck, diagnosed musculoskeletal neck pain and headaches, and recommended
medications and physical therapy.
By letter dated December 7, 2006, the Office advised appellant that information had been
received from her treating physician indicating that she had sustained a recurrence of disability.
It requested further information from her. Appellant responded by letter received on
December 28, 2006 indicating that her pain had intensified greatly, that she remained on light
duty but that she could not perform a different assignment requested by her supervisor. On
January 24, 2007 the Office denied appellant’s claim for a recurrence of total disability.
On February 26, 2007 the Office denied appellant’s request for a shoulder condition to be
included as a consequential injury of her claim.
On March 28, 2007 appellant requested an oral hearing.
On March 29, 2007 appellant accepted an offer of modified duty for four and a half hour
shifts. On May 3, 2007 the Office denied appellant’s recurrence claim beginning on
March 29, 2007.
In a May 10, 2007 decision, the Office denied appellant’s hearing request finding that it
was untimely.
In a May 16, 2007 letter, the field nurse assigned by the Office asked Dr. Richardson to
select one of three doctors: Dr. R. Peter Mirkin, a Board-certified orthopedic surgeon, Dr. Tom
Reinsel or Dr. Michael Chabot, to treat appellant.
In a May 17, 2007 note, Dr. Richardson requested that Dr. Mirkin evaluate and treat
appellant for chronic neck pain.
In a May 23, 2007 letter, Dr. Mirkin stated that he was evaluating appellant for a second
opinion evaluation only. He stated that appellant related the August 5, 2006 injury when a
bundle struck her in the head. Dr. Mirkin also stated that he reviewed reports from
Dr. Richardson which documented extensive treatment. He performed a physical examination
finding that her range of motion of the cervical spine was 90 percent of normal with no spasms,
motor and sensory examination intact and normal peripheral pulses. Dr. Mirkin reviewed the
computerized tomography (CT) scan and did not see any new disc herniation or severe
degenerative changes above and below the fusion at C5-6. He opined that appellant had cervical
spondylosis. Dr. Mirkin noted that she “may have had a strain but certainly her symptomatology
has persisted for much longer than a strain should.” He found no objective reason for appellant’s
persistent symptomatology. Dr. Mirkin recommended that a myleogram be performed.
On May 30, 2007 a CT cervical spine myelography was performed by Dr. Lubuan Wang,
Board-certified in radiology, and revealed postsurgical changes at C5-6, that alignment was near
anatomic with straightening of normal lordotic curvature which could suggest underlying muscle
spasm. Dr. Wang diagnosed minimal posterior osteophytes at C5-6 and C6-7 without central
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canal stenosis and found no central canal stenosis or neural foraminal stenosis identified within
the limits of the examination.
In a June 6, 2007 letter, Dr. Mirkin stated that he saw appellant for a second medical
evaluation. He reviewed the myelogram and found signs of a fusion at C5-6, minimal
spondylosis, no compression of nerve roots and no herniated disc and no evidence of
neuroforaminal stenosis. Dr. Mirkin stated that her examination was unchanged. Appellant
reported to Dr. Mirkin that her neck was swollen but he did not see it. Dr. Mirkin stated that he
was unable to find a structural abnormality of her neck as a result of her work injury therefore
there was no reason to pose restrictions on her as a result of her neck condition. He found
appellant had reached maximum medical improvement from her work injury and could return to
work without restrictions. In a June 14, 2007 letter, appellant told the Office that she did not feel
that Dr. Mirkin properly performed a physical examination.
In a June 20, 2007 letter, the Office asked Dr. Richardson to review Dr. Mirkin’s report
and respond as to whether he agreed with Dr. Mirkin’s opinion that appellant could be released
to regular duty. On June 26, 2007 Dr. Richardson responded “no” and submitted a work
restriction form limiting appellant to four hours of work per day indefinitely. He stated that it
was “undetermined” whether appellant had reached maximum medical improvement as she had
further evaluations with a neurosurgeon.
On July 17, 2007 the Office terminated appellant’s disability compensation and medical
benefits.
In an August 5, 2007 letter, appellant objected to the July 17, 2007 termination and
argued that there was evidence of her accepted neck strain condition in the enclosed letter from
Dr. Thomas R. Forget, Jr., Board-certified in neurological surgery.
In his June 25, 2007 letter, Dr. Forget reported that he examined appellant on the same
day and found slight decreased range of motion of her neck due to a muscle spasm in her neck.
He opined that appellant was suffering from neck strain and whiplash-type injury and
recommended pain management. Dr. Forget also reported appellant’s history, that she was hit in
the head at work in August 2006 and had had a cervical fusion at C5-6.
In a December 11, 2007 merit decision, an Office hearing representative conducted a
review of the written record and affirmed the termination of appellant’s disability and medical
benefits finding that the weight of the medical evidence was with Dr. Mirkin who found that
appellant had no residuals of the accepted injury and could resume full-time work.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden to justify termination or modification
of compensation benefits.1 After it has determined that an employee has a disability causally
related to his or her federal employment, the Office may not terminate compensation without

1

Joseph Roman, 55 ECAB 233 (2004), Mohamed Yunis, 42 ECAB 325, 334 (1991).

3

establishing that the disability has ceased or that it is no longer related to the employment.2
Furthermore, the right to medical benefits for an accepted condition is not limited to the period
of entitlement for disability.3 To terminate authorization for medical treatment, the Office must
establish that appellant no longer has residuals of an employment-related condition which require
further medical treatment.4
ANALYSIS
The Board finds that the Office improperly terminated appellant’s compensation benefits
effective December 11, 2007 on the grounds that she had no further employment-related
disability or residuals of her condition. In order to terminate compensation and medical benefits
the Office must establish that the accepted conditon has ceased or is no longer related to the
employment incident.5 As the Office has accepted appellant for neck strain it bears the burden to
establish either that the neck strain has resolved or that it is no longer related to the August 5,
2006 employment incident. The Office has not met its burden to terminate appellant’s
compensation and medical benefits.
The Board finds Dr. Mirkin’s reports not to be based on an accurate factual history nor
sufficiently well rationalized.6 Dr. Mirkin opined that appellant “may have had a strain but
certainly her symptomatology has persisted much longer than a strain should.” In order for his
reports to be based on an accurate factual history Dr. Mirkin must accept as fact what the Office
has accepted, that appellant had a neck strain due to the August 5, 2006 employment incident.
As his opinion is not based on accurate factual history it is of no probative value on the issue of
whether the condition has resolved. Additionally Dr. Mirkin’s opinion is speculative. He
concludes that because a strain should have resolved by the date of the examination that
appellant’s current symptomatology could not be from a strain. Finally Dr. Mirkin never
definitively opines that appellant’s neck strain had resolved. To establish that a condition has
resolved the Office must provide a rationalized medical opinion based on proper factual and
medical background which concludes that the condition has completely resolved. The Office
based its decision on reports that do not support its conclusion that appellant’s neck strain
condition had resolved.
The Office did not address Dr. Forget’s report. Dr. Forget reported appellant’s factual
history, performed a physical examination and diagnosed neck strain and whiplash-type injury.
Dr. Mirkin’s and Dr. Forget’s reports are assessed as to the sufficiency of the medical rationale
provided to support their conclusions. Dr. Mirkin’s report has no probative value as it is
2

Id.

3

Joseph Roman, 55 ECAB 233 (2004), Furman G. Peake, 41 ECAB 361, 364 (1990).

4

Id.

5

Jaja K. Asaramo, 55 ECAB 200 (2004).

6

Dr. Mirkin is a treating physician, not an impartial medical examiner, therefore his report is not entitled to
special weight. When impartial medical specialists are used to resolve a medical conflict their reports are given
special weight if sufficiently well rationalized and based upon a proper factual background. Guiseppe Aversa, 55
ECAB 164 (2003).

4

speculative and based on an in accurate factual history. Dr. Forget’s report supports a diagnosis
of neck strain based on physical examination. The burden is not on appellant to prove that her
neck strain still exists but rather the burden is on the Office to prove that the neck strain has
resolved. The weight of the medical evidence does not rest with Dr. Mirkin therefore the Office
has not met its burden.
For the foregoing reasons, the Board finds that the Office did not properly terminate
appellant’s medical benefits, and failed to meet its burden of proof to terminate appellant’s
wage-loss compensation.
CONCLUSION
The Board finds that the Office improperly terminated appellant’s compensation and
medical benefits as it did not meet its burden of proof to establish that appellant’s accepted
condition had ceased.
ORDER
IT IS HEREBY ORDERED THAT the December 11, 2007 decision of the Office of
Workers’ Compensation Programs be reversed.
Issued: October 15, 2008
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
DEPARTMENT OF EDUCATION,
)
San Francisco, CA, Employer
)
___________________________________________ )
F.D., Appellant

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

Docket No. 08-2499
Issued: September 9, 2009

Case submitted on the record

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

JURISDICTION
On September 19, 2008 appellant filed a timely appeal from a July 16, 2008 decision of
the Office of Workers’ Compensation Programs which suspended her compensation. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly suspended appellant’s compensation benefits
effective July 6, 2008 for failing to submit a Form CA-1032, as requested.
FACTUAL HISTORY
On April 8, 1979 appellant, then a 47-year-old collection technician, filed an
occupational disease claim alleging stress caused or aggravated by work factors. She stopped
work on May 7, 1984. The Office accepted the claim for bilateral carpal tunnel syndrome, right
carpal tunnel syndrome release on May 11, 1992, thoracic outlet syndrome, aggravation of nerve
root plexus disorder and adjustment disorder. Appellant was placed on the periodic
compensation rolls.

On April 22, 2008 the Office sent appellant a Form CA-1032 for completion. It informed
her that federal regulations required her to make an affidavit of any earnings or employment
during the previous year and that the form was enclosed for that purpose. The Office notified
appellant that she had to completely answer all questions and return the statement within 30
days, otherwise her benefits would be suspended. Appellant did not respond.
On June 5, 2008 the Office sent appellant another CA-1032 form to complete. It again
informed her that federal regulations required her to make an affidavit of any earnings or
employment during the previous year. The Office reiterated that appellant had to completely
answer all questions and return the statement within 30 days; otherwise her benefits would be
suspended. No response was received from her.
By decision dated July 16, 2008, the Office suspended appellant’s compensation benefits,
effective July 6, 2008, for failing to submit the CA-1032 form as requested. It noted that she did
not respond to its requests for completion of the form.
LEGAL PRECEDENT
Section 8106(b) of the Federal Employees’ Compensation Act authorizes the Secretary of
Labor to require a partially disabled employee to report his earnings from employment or selfemployment, by affidavit or otherwise, in the manner and at the times the Secretary specifies.
Pursuant to this authority, as well as her authority under 5 U.S.C. § 8149 to prescribe rules and
regulations necessary for the administration and enforcement of the Act, the Secretary has
promulgated the following regulation at 20 C.F.R. § 10.528:
“[The Office] periodically requires each employee who is receiving compensation
benefits to complete an affidavit as to any work or activity indicating an ability to
work, which the employee has performed for the prior 15 months. If an employee
who is required to file such a report fails to do so within 30 days of the date of the
request, his or her right to compensation for wage loss under 5 U.S.C. [§] 8105
[total disability] or 8106 [partial disability] is suspended until [it] receives the
requested report. At that time, [the Office] will reinstate compensation retroactive
to the date of suspension if the employee remains entitled to compensation.”
ANALYSIS
On April 22 and June 5, 2008, the Office provided appellant with a Form CA-1032 and
explained that federal regulations required her to complete it and answer questions concerning
her employment and earnings. It properly notified appellant that if she did not completely
answer all questions and return the statement within 30 days, her benefits would be suspended.
Notwithstanding such notice, appellant did not return the forms within 30 days as
requested. The Board finds that the Office properly suspended her right to compensation for

2

wage loss under section 10.528 of the implementing federal regulations.1 The Board will affirm
the Office’s July 16, 2008 decision.2
CONCLUSION
The Board finds that the Office properly suspended appellant’s compensation benefits for
failing to submit information on a Form CA-1032, as required.
ORDER
IT IS HEREBY ORDERED THAT the July 16, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 9, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

1

See Kathy J. Snyder, Docket No. 00-490 (issued January 24, 2002).

2

Subsequent to the filing of the appeal, appellant submitted additional evidence to the Office. The Board’s
review of the case is limited to the evidence of record which was before the Office at the time of its final decision.
20 C.F.R. § 501.2(c).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.C., Appellant
and
DEPARTMENT OF THE ARMY,
Huntington, WV, Employer
__________________________________________

)
)
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)
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)

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

Docket No. 07-1955
Issued: January 25, 2008

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 July 17, 2007 appellant filed a timely appeal from the Office of Workers’ Compensation
Programs’ nonmerit decision dated June 18, 2007 denying reconsideration. Because more than
one year has elapsed between the most recent merit decision of record, the Board’s July 17, 2006
decision, and the filing of this appeal on July 17, 2007, the Board lacks jurisdiction to review the
merits of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for a review of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case is on appeal to the Board for the fifth time. The Office accepted that appellant,
then 29 years old, sustained a lumbosacral strain resulting from a February 23, 1967 work injury.
Appellant underwent a laminectomy in 1960 and had a spinal fusion in 1967. It also accepted a
low back strain superimposed on preexisting degenerative disc disease when appellant was

kicked in the back by a coworker on February 10, 1988. In a July 29, 1998 decision, the Board
affirmed the Office’s termination of compensation benefits effective November 12, 1994. It
found that the April 5, 1994 report of Dr. Carl Roncaglione, a Board-certified orthopedic surgeon
and an impartial medical examiner, established that appellant did not have residuals of his
accepted injury.1 On September 20, 2001 appellant claimed a recurrence of disability beginning
February 10, 1988 that he attributed to his February 10, 1988 work injury and the failure of his
1967 back surgery. In an April 18, 2005 order, the Board set aside the Office’s September 4,
2003 nonmerit decision denying appellant’s reconsideration request and remanded the case so
that the case files could be doubled.2 In a July 17, 2006 decision, the Board affirmed the
Office’s October 12, 2005 decision which denied modification of a December 31, 2002 decision
finding that appellant did not establish a recurrence of disability.3 In a May 1, 2007 decision, the
Board affirmed an October 26, 2006 Office decision that denied appellant’s request for a review
of the merits of his claim.4 The facts and the circumstances of the case as set out in the Board’s
prior decisions are incorporated herein by reference.
In a June 1, 2007 letter, appellant requested reconsideration. He submitted a magnetic
resonance imaging (MRI) scan dated January 22, 2003. It noted degenerative disc disease most
prominent at L4-L5 and neuroforaminal stenosis bilaterally at L5-S1. Appellant also submitted
copies of a September 13, 2000 medical report from Dr. Wesley Johnson, a Board-certified
orthopedic surgeon, and a July 23, 2001 medical report from Dr. Robert W. Lowe, a Boardcertified orthopedic surgeon, both previously of record.
By decision dated June 18, 2007, the Office denied appellant’s request for
reconsideration finding that the evidence submitted neither raised legal questions nor included
new and relevant evidence sufficient to warrant a review of the prior decision.5
LEGAL PRECEDENT
Under section 8128(a) of the Federal Employees’ Compensation Act,6 the Office has the
discretion to reopen a case for review on the merits. The Office must exercise this discretion in
accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
regulations, which provides that a claimant may obtain review of the merits of the claim by
either: (1) showing that the Office erroneously applied or interpreted a specific point of law;
(2) advancing a relevant legal argument not previously considered by the Office; or

1

Docket No. 96-1682 (issued July 29, 1998); petition for recon. denied, (issued November 16, 1998).

2

Docket No. 04-764 (issued April 18, 2005).

3

Docket No. 06-195 (issued July 17, 2006).

4

Docket No. 07-296 (issued May 1, 2007).

5

Appellant filed an appeal to the Board and requested an oral argument which was scheduled for
February 14, 2008. In a December 8, 2007 letter, appellant advised the Board that he no longer desired oral
argument. Accordingly, the Board will proceed with a decision on the record.
6

5 U.S.C. § 8128(a).

2

(3) constituting relevant and pertinent new evidence not previously considered by the Office.7
Section 10.608(b) provides that, when an application for reconsideration does not meet at least
one of the three requirements enumerated under section 10.606(b)(2), the Office will deny the
application for reconsideration without reopening the case for a review on the merits.8
ANALYSIS
Appellant’s June 1, 2007 request for reconsideration neither alleged, nor demonstrated
that the Office erroneously applied or interpreted a specific point of law. He did not advance a
relevant legal argument not previously considered by the Office. Consequently, appellant is not
entitled to a review of the merits of his claim based on the first and second above-noted
requirements under section 10.606(b)(2).9
With respect to the third requirement, constituting relevant and pertinent new evidence
not previously considered by the Office, appellant submitted no relevant evidence. The
January 22, 2003 MRI scan, while new, is not relevant to the issue in this case. The underlying
issue in this case is whether the medical evidence establishes whether appellant sustained a
recurrence of disability on February 10, 1988 causally related to his employment injuries. The
MRI scan is not relevant because it does not address causal relationship between appellant’s
employment and any diagnosed medical conditions. The diagnostic study, without addressing
causal relationship, is not relevant to the issue in this case. The Board has held that the
submission of evidence which does not address the particular issue involved does not comprise a
basis for reopening a case.10 Appellant also submitted copies of medical evidence from
Dr. Johnson and Dr. Lowe, which were previously of record and considered by the Office.
Evidence or argument which is duplicative or cumulative in nature is insufficient to warrant
reopening a claim for merit review.11 The duplicative nature of this evidence does not require
reopening the record for further merit review. Consequently, appellant is not entitled to a review
of the merits of his claim based on the third above-noted requirement under section
10.606(b)(2).12
Appellant neither showed that the Office erroneously applied or interpreted a point of
law; advanced a point of law or fact not previously considered by the Office; nor did he
constitute relevant and pertinent evidence not previously considered by the Office.13

7

20 C.F.R. § 10.606(b)(2).

8

20 C.F.R. § 10.608(b).

9

20 C.F.R. § 10.608(b)(2)(i) and (ii).

10

Joseph A. Brown, Jr., 55 ECAB 542 (2004).

11

Denis M. Dupor, 51 ECAB 482 (2000).

12

20 C.F.R. § 10.606(b)(2)(iii).

13

20 C.F.R. § 10.606(b).

3

Accordingly, the Board finds that the Office properly determined that appellant was not entitled
to a merit review.14
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the June 18, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 25, 2008
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

14

See James E. Norris, 52 ECAB 93 (2000).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., claiming as widow of D.H. Appellant,
and
DEPARTMENT OF LABOR, MINE SAFETY &
HEALTH ADMINISTRATION,
Boulder City, NV, Employer
__________________________________________

)
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)
)
)
)
)
)

Appearances:
Gordon Reiselt, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-2019
Issued: March 13, 2007

Case Submitted on the Record

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

JURISDICTION
On August 29, 2006 appellant filed an appeal from decisions of the Office of Workers’
Compensation Programs dated March 14 and August 15, 2006, which denied her claim for death
benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that the
employee’s death was causally related to factors of his federal employment.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated October 3, 2005, the
Board affirmed as modified Office decisions dated August 24 and November 2, 2004.1 The
1

Docket No. 05-380 (issued October 3, 2005).

Board found that the Office properly accepted that the employee sustained two compensable
factors of employment: that he worked prolonged hours and that threats were made against him
regarding the investigation of the Rattlesnake mine. The Board also found that appellant’s
regular job of investigating fatalities and carrying out his supervisory duties including
investigating those employees he supervised were compensable factors under Lillian Cutler.2
The Board, however, found that the weight of the medical evidence rested with the opinion of the
Office referral physician, Dr. Barbara Connors, Board-certified in internal and occupational
medicine, regarding whether the employee’s death was caused by the compensable factors of his
federal employment. It was noted that Dr. Robert E. Kessler, an attending Board-certified
osteopath specializing in manipulative medicine, stated that the employee’s coronary arteries
were reported to be clear at the time they were harvested. While the record contained a
pathology report regarding donor specimen number 55809, there was nothing to identify the
surgical specimen as belonging to the employee. Dr. Irwin Hoffman Board-certified in internal
medicine and cardiovascular disease, reviewed the employee’s medical records at appellant’s
request. He advised that the employee’s coronary arteries were not normal with evidence of
severe triple vessel disease. However, Dr. Hoffman relied in part on the unidentified pathology
report; therefore, his opinion was of diminished probative value. The law and the facts of the
previous Board decision are incorporated herein by reference.
On December 5, 2005 appellant, through her attorney, requested reconsideration and
submitted a November 2, 2005 report in which Dr. Kessler advised that he had reviewed a final
pathology report dated June 15, 2001, which demonstrated that the employee had severe
coronary atherosclerosis with the right coronary artery 90 percent occluded, the left anterior
descending artery 80 percent occluded and the circumflex artery 60 percent occluded which was
very significant. He stated that, in retrospect, his earlier opinion had been based on faulty
information and was wrong, concluding that the employee had very significant atherosclerosis.
A CryoLife, Inc. Nevada donor network procurement form, No. 55809, identified the donor as
the employee. David M. Frank, a vice president with CryoLife, provided an affidavit dated
October 20, 2005, in which he attested that the specimens for donor number 55809 were kept in
the ordinary course of business at CryoLife and donor number 55809 was identified as the
employee. He stated that the pathology report prepared by Pathworks Anatomic Pathology
Laboratory for donor number 55809 referred to the employee.
By decision dated March 14, 2006, the Office denied modification of the prior decision.
On April 12, 2006 appellant’s attorney again requested reconsideration. In a March 31, 2006
report, Dr. Hoffman reiterated his opinion that the employee had coronary artery disease and an
old inferior-posterior myocardial infarction at the time of his death. He opined that fatal
arrhythmias could be precipitated by occupational stresses such as the death threats experienced
by appellant. In a merit decision dated August 15, 2006, the Office again denied modification.

2

28 ECAB 125 (1976).

2

LEGAL PRECEDENT
The Federal Employees’ Compensation Act3 provides that the United States shall pay
compensation for disability or death of an employee resulting from personal injury sustained
while in the performance of duty.4 However, an award of compensation in a survivor’s claim
may not be based on surmise, conjecture or speculation or on appellant’s belief that the
employee’s death was caused, precipitated or aggravated by his employment. The mere showing
that the employee was receiving compensation for total disability at the time of death does not
establish that the death was causally related to conditions resulting from the employment injury.5
A claimant has the burden of proving by the weight of the reliable, probative and substantial
evidence that the employee’s death was causally related to his or her employment. This burden
includes the necessity of furnishing rationalized medical opinion evidence, based on a complete
factual and medical background, showing causal relationship.6
In the case of Cutler,7 the Board explained that there are distinctions as to the type of
employment situations giving rise to a compensable stress-related condition arising under the
Act. There are situations where an injury or illness has some connection with the employment
but nevertheless does not come within coverage under the Act.8 When an employee experiences
emotional stress in carrying out his or her employment duties and the medical evidence
establishes that the disability resulted from an emotional reaction to such situation, the disability
is generally regarded as due to an injury arising out of and in the course of employment. This is
true when the employee’s disability results from an emotional reaction to a special assignment or
other requirement imposed by the employing establishment or by the nature of the work.9 To
establish entitlement to benefits, the claimant must establish a factual basis for the claim by
supporting allegations with probative and reliable evidence.10
The medical evidence required to establish a causal relationship, generally, is rationalized
medical opinion evidence.11 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 employee’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
employee, must be one of reasonable medical certainty and must be supported by medical
3

5 U.S.C. §§ 8101-8193.

4

Id. at § 8102(a).

5

See Susanne W. Underwood (Randall L. Underwood), 53 ECAB 139 (2001).

6

Lois E. Culver (Clair L. Culver), 53 ECAB 412 (2002).

7

Supra note 2.

8

See Robert W. Johns, 51 ECAB 137 (1999).

9

Lillian Cutler, supra note 2.

10

Janice I. Moore, 53 ECAB 777 (2002).

11

See Donna L. Mims, 53 ECAB 730 (2002).

3

rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.12
Section 8123(a) of the Act provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.13
ANALYSIS
The Board finds that this case is not in posture for decision. As noted, the record
establishes compensable employment factors. The Office must base its decision on an analysis
of the medical evidence.14 Part of an appellant’s burden of proof is the submission of
rationalized medical opinion evidence establishing a causal relationship between the
compensable employment factors and the employee’s death.15 In analyzing the medical evidence
of record, the Board finds that a conflict in medical opinion evidence exists between the opinions
of appellant’s consulting cardiologist, Dr. Hoffman and the Office referral physician,
Dr. Connors, regarding whether the employee’s death was caused or contributed to by the
compensable factors of his federal employment. Both physicians are Board-certified yet had
different opinions regarding the relationship between employment factors and the employee’s
death. Dr. Hoffman advised that the employee’s coronary arteries were not normal with
evidence of severe triple vessel disease. He discussed the compensable factors found by the
Office and concluded that, to a reasonable degree of medical certainly, the job stresses
accelerated the employee’s coronary condition, making him increasingly likely to sustain
coronary complications such as the ventricular fibrillation episode which caused his death.
Dr. Connors, on the other hand, opined that smoking was an established cause of cardiac
arrhythmias and stated that there was no medical documentation in the record to support that
appellant was under stress or sought any type of medical care for stress. The record was
supplemented with evidence that establishing the previously unidentified pathology report as that
of the employee.16 Furthermore, Dr. Connors relied in part on Dr. Kessler’s initial impression
that the employee’s heart vessels looked fairly clear. Dr. Kessler reviewed the June 15, 2001
pathology report and found the decedent had severe occlusive coronary atherosclerosis, which
was aggravated by stress.
The case is not in posture for decision and will be remanded to the Office. On remand,
the Office should refer the case record, including an amended statement of accepted facts that
12

Claudio Vazquez, 52 ECAB 496 (2001).

13

5 U.S.C. § 8123(a).

14

Janet L. Terry, 53 ECAB 570 (2002).

15

Lois E. Culver, supra note 6.

16

In a report dated June 15, 2001, Dr. Gregory S. Ray, Board-certified in anatomic and clinical pathology,
advised that the donor heart specimen number 55809 revealed evidence of a past myocardial infarction involving the
posterior left ventricle and severe atherosclerosis with narrowing of the right coronary artery to 10 percent of its
original size, the left anterior descending to 20 percent of its original size and the left circumflex to 40 percent of its
original size. The aortic valve and anterior mitral leaflet revealed moderate atherosclerotic plaque formation.

4

lists all accepted employment factors, to an appropriate Board-certified cardiologist for an
impartial medical opinion regarding the cause of the employee’s death. After such further
development as the Office deems necessary, it shall issue an appropriate decision.
CONCLUSION
The Board finds this case is not in posture for decision as a conflict in medical opinion
exists between Dr. Hoffman, appellant’s consulting cardiologist and Dr. Connors, the Office
referral physician.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 15 and March 14, 2006 be set aside and the case
remanded to the Office for proceedings consistent with this opinion of the Board.
Issued: March 13, 2007
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Tampa, FL,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-1755
Issued: March 23, 2016

Case Submitted on the Record

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

JURISDICTION
On August 19, 2015 appellant timely appealed a July 16, 2015 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the claim.
ISSUE
The issue is whether appellant has greater than five percent permanent bilateral upper
extremity impairment.
FACTUAL HISTORY
This case has previously been on appeal. The relevant facts follow. On August 20, 2008
appellant, then a 59-year-old mail handler, sustained a traumatic injury in the performance of
duty. He was unloading mail from a freight elevator when the overhead door came down and
1

5 U.S.C. § 8101 et seq.

struck appellant on the left side of his head. OWCP initially accepted the claim for head
contusion and cervical strain.2 On September 30, 2009 it expanded the acceptance of appellant’s
claim to include bilateral shoulder adhesive capsulitis (ICD-9 726.0). Appellant retired effective
October 31, 2009. He subsequently filed a claim (Form CA-7) for a schedule award.
By decision dated April 9, 2012, OWCP granted a schedule award for five percent
permanent impairment of each upper extremity.3 It based the award on a January 12, 2012
impairment rating from appellant’s treating physician, Dr. Kenneth P. Botwin, a Board-certified
physiatrist with a subspecialty in pain medicine.4 The district medical adviser (DMA) reviewed
Dr. Botwin’s report and similarly found five percent permanent bilateral upper extremity
impairment due to shoulder impingement syndrome.5
On appeal the Board found that appellant had failed to establish more than five percent
permanent impairment of his upper extremities.6 The Board’s April 10, 2013 decision is
incorporated herein by reference.7
On May 17, 2013 appellant underwent a right shoulder arthroscopic debridement of the
labrum and rotator cuff, subacromial decompression, and distal clavicle resection. Dr. K. Koco
Eaton, a Board-certified orthopedic surgeon, performed the right shoulder procedure, which
OWCP had authorized.
Appellant’s postoperative diagnoses included right shoulder
impingement, labral tear, partial rotator cuff tear, and acromioclavicular (AC) joint arthritis.
On May 25, 2014 appellant filed a claim for an additional schedule award (Form CA-7).
In a June 10, 2014 report, Dr. Botwin found five percent permanent bilateral upper
extremity impairment under Table 15-5, Shoulder Regional Grid, A.M.A., Guides 402 (6th ed.
2009). He also rated appellant under Table 17-2, Cervical Spine Regional Grid, A.M.A., Guides

2

August 20, 2008 cervical spine x-rays revealed spondylosis, with disc space loss greatest at C4-5 and C5-6.
Additionally, small ventral and dorsal osteophytes were noted from C4-5 through C6-7. Other than signs of early
degenerative changes, there was no evidence of acute fracture or dislocation. An October 8, 2009 cervical magnetic
resonance imaging (MRI) scan also revealed cervical spondylosis with central stenosis at C4-5 and C5-6.
3

The award covered a period of 31.2 weeks beginning January 12, 2012.

4

Dr. Botwin first examined appellant on September 24, 2009.

5

Both Dr. Botwin and the DMA referenced Table 15-5, Shoulder Regional Grid, American Medical Association,
Guides to the Evaluation of Permanent Impairment 402 (6th ed. 2009).
6

Docket No. 12-1595 (issued April 10, 2013).

7

Although the Board affirmed the five percent bilateral upper extremity impairment rating, it set aside OWCP’s
finding with respect to whether appellant was entitled to augmented three-fourths compensation. In an April 26,
2013 corrected award, OWCP recalculated appellant’s compensation based on the regular (two-thirds) rate and any
applicable cost-of-living increase(s).

2

564 (6th ed. 2009). Dr. Botwin found “6 [percent] for the cervical spine.”8 He noted that
appellant had a combined impairment of 16 percent.9
The DMA reviewed the case on July 16, 2014 and explained that OWCP does not
recognize spinal impairments. Consequently, there was no basis for an award of six percent
impairment for the permanent impairment of the cervical spine. The DMA further noted that
appellant had previously received an award for five percent permanent bilateral upper extremity
impairment due to his shoulders. As such, he was not entitled to an additional award based on
Dr. Botwin’s June 10, 2014 five percent permanent bilateral shoulder impairment rating.
By decision dated August 5, 2014, OWCP denied an additional schedule award based on
the DMA’s July 16, 2014 report.
On September 9, 2014 appellant requested reconsideration. He submitted a September 5,
2014 impairment rating from Dr. Botwin. At the time, Dr. Botwin diagnosed cervicalgia,
cervical myofascial pain, cervical neuritis or radiculitis NOS, shoulder joint pain, limb pain,
shoulder adhesive capsulitis, bilateral shoulder AC joint syndrome, and rotator cuff syndrome.
He explained that appellant sustained permanent injury from his August 20, 2008 accident,
which resulted in impairment of the upper extremities. Dr. Botwin further explained that
appellant has cervical radiculopathy resulting in bilateral arm impairment, with his right arm
more significantly limited. He also noted that appellant had undergone surgery. According to
Dr. Botwin, there was impingement on the left side involving the C8 nerve root. There was also
evidence of bilateral impingement at C5-6, which affected both upper extremities. Based on
appellant’s “radiculopathy,” Dr. Botwin found six percent impairment under Table 17-2,
Cervical Spine Regional Grid, A.M.A., Guides 564 (6th ed. 2009). He also found seven percent
right shoulder impairment under Table 15-5, Shoulder Regional Grid, A.M.A., Guides 403 (6th
ed. 2009) based on a diagnosis of “S/P [status post] right shoulder surgery.” With respect to
appellant’s the left shoulder, Dr. Botwin found five percent impairment under Table 15-5,
A.M.A., Guides 402 (6th ed. 2009). Lastly, he explained there was a combined 18 percent
impairment, which was in addition to appellant’s previous bilateral shoulder rating.
Dr. James W. Dyer, the DMA and a Board-certified orthopedic surgeon, reviewed the
record on September 25, 2014, and found that Dr. Botwin’s September 5, 2014 findings did not
support an additional schedule award.10 He explained that Dr. Botwin used Table 17-2, Cervical
Spine Regional Grid, A.M.A., Guides 564 (6th ed. 2009), rather than for spinal nerve extremity
impairment as required under FECA.11 The DMA further noted that Dr. Botwin’s MRI-based
8

Appellant’s cervical MRI scans from October 8, 2009, October 26, 2011, and February 4, 2014 all revealed
multi-level cervical spondylosis.
9

Dr. Botwin’s diagnoses included cervicalgia, headache, neuralgia and neuritis, muscle spasm, limb pain,
shoulder joint pain, bilateral shoulder AC joint syndrome, and cervical neuritis or radiculitis -- not otherwise
specified (NOS).
10

Dr. Dyer previously reviewed the record in conjunction with OWCP’s April 9, 2012 schedule award.

11

As discussed infra, FECA does not provide for the payment of a schedule award for the permanent loss of use
of the back/spine or the body as a whole. Where a spinal condition affects the upper and/or lower extremities, a
schedule award is permissible. The FECA-approved methodology for rating cervical-related upper extremity
impairment is set forth in The Guides Newsletter, Rating Spinal Nerve Extremity Impairment Using the Sixth
Edition (July/August 2009).

3

finding of cervical radiculopathy was not supported and/or confirmed by upper extremity
electrodiagnostic studies. Consequently, he found no (zero) additional impairment of the upper
extremities.
In an October 16, 2014 decision, OWCP reviewed the merits of appellant’s latest
schedule award claim, but denied modification based on the DMA’s September 25, 2014 report.
During an October 21, 2014 telephone conversation with OWCP, appellant noted that no
one addressed the fact that he had undergone surgery. In a November 10, 2014 letter to OWCP,
he again commented about his May 2013 right shoulder surgery, which reportedly had not
eliminated his problems. Appellant also noted that Dr. Botwin was unfamiliar with The Guides
Newsletter.
On November 13, 2014 appellant formally requested reconsideration. He submitted a
November 7, 2014 report from Dr. Botwin. In an effort to clarify his September 5, 2014 report,
Dr. Botwin explained that, despite right shoulder surgery and postprocedure injections,
appellant’s pain persisted. He attributed appellant’s symptoms to concomitant cervical
radiculopathy, which finding was reportedly based upon physical examination. Dr. Botwin
indicated that appellant’s impairment involved both the arm and shoulder. He further noted that
the shoulder injuries had been rated seven percent on the right and five percent on the left under
Table 15-5, Shoulder Regional Grid, A.M.A., Guides 402-03 (6th ed. 2009). As for the cervical
spine condition, this was rated at six percent under Table 17-2, Cervical Spine Regional Grid,
A.M.A., Guides 564 (6th ed. 2009).12 Dr. Botwin noted that the cervical spine impairment rating
was based on medically documented physical examination findings of a cervical disc injury. He
also noted that the cervical rating was in addition to the previous rating given for the shoulders.
Since issuing its October 16, 2014 merit decision, OWCP received the results of a
November 25, 2014 bilateral upper extremity electromyography and nerve conduction study
(EMG/NCV). Dr. Botwin described the NCV results as normal. However, he noted that the
EMG results showed increased insertional activity in the bilateral cervical paraspinal and
polyphasic motor units at C5, which could represent chronic bilateral C5 myotomal
radiculopathy. Dr. Botwin also reported there was no large fiber-type neuropathy or plexopathy.
Additionally, OWCP received the results of a December 2, 2014 bilateral upper extremity
small fiber/pain fiber nerve conduction study. Dr. Botwin indicated that the results were
consistent with nerve/disc irritation at the right T1 level. He also noted there was involvement of
the cervical facets at both levels from C2 - T1, bilaterally.
In a January 30, 2015 decision, OWCP denied modification. The senior claims examiner
found that Dr. Botwin’s November 7, 2014 report was essentially the same as his September 5,
2014 report, which the DMA previously found insufficient. She reiterated that it was crucial to
have electrodiagnostic studies of the upper extremities to confirm radiculopathy, which were
purportedly absent.13 The senior claims examiner further noted that Dr. Botwin admittedly had
12

Dr. Botwin acknowledged that he was unfamiliar with The Guides Newsletter.

13

The senior claims examiner found there were “no results of electrodiagnostic testing necessary to arrive at
[Dr. Botwin’s six percent cervical spine impairment] rating.”

4

not based his impairment rating on The Guides Newsletter for rating spinal nerve extremity
impairment.
On February 20, 2015 appellant filed a new request for reconsideration. He submitted a
February 18, 2015 impairment rating from Dr. Botwin who found four percent bilateral upper
extremity impairment. Dr. Botwin noted that appellant had both motor and sensory deficits in
the C5 and C6 nerve root distributions, bilaterally. Electrodiagnostic studies reportedly
confirmed the levels of involvement. Applying The Guides Newsletter, Dr. Botwin found that
under Proposed Table 1 (Spinal Nerve Impairment: Upper Extremity Impairments) appellant
had a mild sensory deficit at C5 and C6, bilaterally.14 He further noted that this impairment was
in addition to the previous rating for appellant’s bilateral shoulder condition.
OWCP also received Dr. Botwin’s February 20, 2015 follow-up treatment notes where he
indicated, inter alia, that appellant had pain fiber NCV results consistent with bilateral cervical
spinal nerve root impairment. He reiterated that appellant had five percent (whole person)
impairment based on sensory deficits involving the C5 and C6 nerve roots, bilaterally. Again,
Dr. Botwin noted that appellant’s sensory impairment was in addition to his prior rating for the
bilateral shoulder condition.
By decision dated April 6, 2015, OWCP denied modification of its January 30, 2015
decision. The senior claims examiner noted that although Dr. Botwin claimed that his
February 18, 2015 impairment rating was based on electrodiagnostic studies, the report only
listed an October 14, 2009 EMG/NCV that Dr. Botwin characterized as normal.15 Consequently,
OWCP found that Dr. Botwin’s February 18, 2015 report was of diminished probative value.
On April 15, 2015 appellant requested reconsideration. He had recently undergone
additional testing, which included left shoulder and cervical MRI scans, as well as a bilateral
upper extremity EMG/NCV.
An April 7, 2015 left shoulder MRI scan revealed moderate AC joint osteoarthritis and
mild glenohumeral joint osteoarthritis, which had progressed slightly when compared to
appellant’s May 30, 2012 scan. The latest study also revealed mild supraspinatus tendinopathy,
which was new. Additionally, there was no evidence of a rotator cuff tear.
Appellant’s April 29, 2015 cervical MRI scan revealed a congenitally small cervical
canal, as well as multilevel congenital and acquired partial central canal stenosis; most
pronounced at C4-5 and C5-6. There was also evidence of high-grade bilateral neuroforaminal
compromise at C7-T1. Appellant’s latest cervical MRI scan reportedly showed no significant
changes when compared to his February 4, 2014 study.16

14

Citing Table 15-11, A.M.A., Guides 420 (6th ed. 2009), Dr. Botwin noted that appellant’s combined eight
percent upper extremity impairment represented five percent whole person impairment.
15

In his February 18 and 20, 2015 reports, Dr. Botwin did not include the diagnostic studies from November 25
and December 2, 2014.
16

Dr. Robert A. Zamore, a Board-certified diagnostic radiologist with a subspecialty in neuroradiology,
interpreted appellant’s April 29, 2015 cervical MRI scan.

5

An April 21, 2015 upper extremity EMG/NCV revealed normal NCV results, but the
EMG was interpreted as abnormal. Dr. Botwin reported increased insertional activity in the
bilateral cervical paraspinal and denervation in the bilateral C5-6 myotomes, consistent with
bilateral myotomal radiculopathy. He also noted that the latest results showed a progression
from appellant’s November 25, 2014 study. There was no evidence of large fiber-type
neuropathy, plexopathy, or myopathy.
Dr. Botwin included the results of appellant’s recent studies in his April 30 and May 5,
2015 follow-up examination reports. In the latter report, he diagnosed neck sprain and strain,
cervicalgia, cervical neuritus or radiculitis NOS, limb pain, bilateral shoulder AC joint
syndrome, adhesive capsulitis of shoulder, rotator cuff syndrome, and shoulder joint pain.
Dr. Botwin explained that the latest MRI scan findings and the April 21, 2015 EMG results
supported his February 18, 2015 impairment rating, which he attributed to appellant’s August 20,
2008 injury.
By decision dated July 16, 2015, OWCP reviewed the merits of the schedule award
claim, but denied modification. The senior claims examiner reviewed Dr. Botwin’s May 5, 2015
report and noted that he had diagnosed several conditions OWCP had not accepted, including
“cervical radiculitis.” He further noted that cervical strain, which was an accepted condition,
“usually resolves in six to eight weeks.” After reviewing the results of appellant’s latest cervical
MRI scan and EMG/NCV, the senior claims examiner determined that the conditions responsible
for appellant’s increased impairment were “congenital in nature” and unrelated to his
employment injury.
LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.17 FECA,
however, does not specify the manner by which the percentage loss of a member, function or
organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.18 Effective May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2009).19
Neither FECA nor the regulations provide for the payment of a schedule award for the
permanent loss of use of the back/spine or the body as a whole.20 However, a schedule award is

17

For complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).
18

5 U.S.C.

20 C.F.R. § 10.404.

19

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims,
Chapter 2.808.6a (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).
20

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

6

permissible where the spinal condition affects the upper and/or lower extremities.21 The sixth
edition of the A.M.A., Guides (2009) provides a specific methodology for rating spinal nerve
extremity impairment.22 It was designed for particular jurisdictions, such as FECA, which
mandate ratings for extremities and preclude ratings for the spine. The FECA-approved
methodology is premised on evidence of radiculopathy affecting the upper and/or lower
extremities. The appropriate tables for rating spinal nerve extremity impairment are incorporated
in the Federal (FECA) Procedure Manual.23
When determining entitlement to a schedule award, preexisting impairment to the
scheduled member should be included.24 Impairment ratings for schedule awards include those
conditions accepted by OWCP as job related, and any preexisting permanent impairment of the
same member or function.25 If the work-related injury has affected any residual usefulness in
whole or in part, a schedule award may be appropriate.26 There are no provisions for
apportionment under FECA.27 But when the prior impairment is due to a previous work-related
injury and a schedule award has been granted for such prior impairment, the percentage already
paid is subtracted from the total percentage of impairment.28
If a claimant sustains increased impairment at a later date which is due to work-related
factors, an additional award will be payable if supported by the medical evidence.29 In this
situation, the original award is undisturbed and the new award has its own date of maximum
medical improvement (MMI), percent of impairment, and period of award.30 This may occur if
the claimant sustains additional impairment due to the original work factors with no intervening
or additional exposure to those same work factors.31

21

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims,
Chapter 2.808.6a(3) (February 2013).
22

The methodology and applicable tables were published in The Guides Newsletter, Rating Spinal Nerve
Extremity Impairment Using the Sixth Edition (July/August 2009).
23

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(January 2010).
24

Carol A. Smart, 57 ECAB 340, 343 (2006); Michael C. Milner, 53 ECAB 446, 450 (2002).

25

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims,
Chapter 2.808.5d (February 2013).
26

Id.

27

Id.

28

Id. at Chapter 2.808.7a(1) (February 2013); 5 U.S.C. § 8108; 20 C.F.R. § 10.404(c).

29

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims,
Chapter 2.808.9b (February 2013).
30

Id.

31

Id.

7

ANALYSIS
In April 2012, appellant received a schedule award for five percent permanent
impairment of each upper extremity. The rating was based on a diagnosis of bilateral shoulder
impingement syndrome under Table 15-5, A.M.A., Guides 402 (6th ed. 2009). In May 2013,
appellant underwent OWCP-approved right shoulder arthroscopic surgery, which included distal
clavicle resection. Almost one year postsurgery, he filed a claim (Form CA-7) for an additional
schedule award. In support of this latest claim, appellant submitted a June 10, 2014 report from
Dr. Botwin who found an additional “six [percent] for the cervical spine” under Table 17-2,
Cervical Spine Regional Grid, A.M.A., Guides 564 (6th ed. 2009). Dr. Botwin also reiterated his
prior rating of five percent bilateral shoulder impairment under Table 15-5, A.M.A., Guides 402
(6th ed. 2009).
Based on the opinion of its DMA, OWCP declined an additional schedule award by
decision dated August 5, 2014. Dr. Botwin’s June 10, 2014 rating did not demonstrate an
increase with respect to appellant’s bilateral shoulder impairment. As to the six percent rating
for appellant’s cervical spine, OWCP advised that FECA does not provide for the payment of a
schedule award for the permanent loss of use of the back/spine.32 Consequently, it denied an
additional schedule award by decision dated August 5, 2014.
Appellant requested reconsideration and submitted a September 5, 2014 rating from
Dr. Botwin who noted, inter alia, seven percent right upper extremity impairment due to “[status
post] right shoulder surgery.” Dr. Botwin referenced Table 15-5, Shoulder Regional Grid,
A.M.A., Guides 403 (6th ed. 2009), but when the DMA reviewed Dr. Botwin’s September 5,
2014 report, he did not reference the right shoulder postsurgery seven percent impairment. The
DMA’s September 25, 2014 report focused entirely on Dr. Botwin’s finding of six percent
cervical spine impairment.
As noted, appellant’s authorized May 17, 2013 right shoulder arthroscopic procedure
included a distal clavicle resection. Under Table 15-5, A.M.A., Guides 403 (6th ed. 2009), an
AC joint injury or disease that is “s/p Distal clavicle resection” represents a class 1 upper
extremity impairment with a range of 8 to 12 percent. The default (C) impairment rating is 10
percent. Prior to his surgery appellant had received a five percent rating for right shoulder
impingement syndrome pursuant to Table 15-5, A.M.A., Guides 402 (6th ed. 2009). Because the
DMA failed to consider whether appellant’s May 2013 right shoulder surgery resulted in an
increased impairment as noted by Dr. Botwin, the case shall be remanded for further
consideration.33
In its latest merit decision, OWCP denied modification because appellant’s increased
impairment was purportedly due to a congenital condition of the cervical spine. It based this
finding on a narrow reading of appellant’s April 29, 2015 cervical MRI scan, the results of which
Dr. Botwin included in his May 5, 2015 report.

32

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

33

Once OWCP undertakes development of the record, it must do a complete job in procuring medical evidence
that will resolve the relevant issues in the case. Richard F. Williams, 55 ECAB 343, 346 (2004).

8

Dr. Zamore, the radiologist who reviewed the latest cervical MRI scan, noted that
appellant’s cervical canal was “congenitally small.” He also noted “[c]ongenital and acquired
partial central canal stenosis” at multiple levels, but most pronounced at C4-5 and C5-6. The
Board notes that appellant’s three prior cervical MRI scans dating back to October 2009 made no
mention of a congenitally small cervical canal. In fact, the first reference to central stenosis at
C4-5 and C5-6 noted that the condition was the result of a combination of changes, including
disc degeneration with osteophyte formations, disc bulges, and hypertrophy of ligamentum
flavum. Despite Dr. Botwin’s assertion that appellant’s upper extremity impairment was due to
his August 20, 2008 employment injury, the senior claims examiner dismissed his May 5, 2015
report as appellant’s increased impairment was “congenital in nature,” and unrelated to his
employment injury. This action was improper as it is the function of the claims examiner to
decide the facts in the case.34 Moreover, the claims examiner “must” utilize the DMA when
adjudicating a schedule award claim and calculation of the percentage of impairment is required
in order to establish the schedule award.35
Appellant’s date-of-injury cervical x-rays revealed early degenerative changes at C4-5
through C6-7. To date, OWCP has only accepted cervical strain as work related. However,
impairment ratings for schedule awards include those conditions accepted by OWCP as work
related, and any preexisting impairment of the same member or function.36 Whether appellant’s
upper extremity impairment is partly due to a congenitally small cervical canal and/or a
preexisting degenerative condition does not preclude the condition’s inclusion in a schedule
award. Accordingly, the Board finds that the case is not in posture for decision.
On remand, OWCP shall further review the evidence consistent with this decision and if
appropriate, refer the case record to an OWCP medical adviser for review. After OWCP has
developed the medical record consistent with the above-noted directive, it shall issue a de novo
decision regarding appellant’s entitlement to an additional schedule award.
CONCLUSION
The case is not in posture for decision.

34

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.8 (September 2010); see e.g., Barbara Bush, 38 ECAB 710 (1987).
35

See id. at Chapter 2.810.8d(1).

36

Id. at Chapter 2.808.5d (February 2013).

9

ORDER
IT IS HEREBY ORDERED THAT the July 16, 2015 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: March 23, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10