United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
U.S. POSTAL SERVICE, DUANESBURG
POST OFFICE, Duanesburg, NY, Employer
__________________________________________

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

Docket No. 06-2137
Issued: April 9, 2007

Case Submitted on the Record

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

JURISDICTION
On September 22, 2006 appellant filed a timely appeal of a March 23, 2006 merit
decision of the Office of Workers’ Compensation Programs, finding that she did not sustain an
injury in the performance of duty and nonmerit decisions dated April 26 and August 25, 2006,
denying her requests for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the
Board has jurisdiction over the merits of this claim.
ISSUES
The issues are: (1) whether appellant established that she sustained a back and neck
injury in the performance of duty on December 29, 2005, as alleged; and (2) whether the Office
properly denied her April 12 and May 24, 2006 requests for a merit review of her claim pursuant
to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 4, 2006 appellant, then a 35-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 29, 2005 she experienced pain in her lower back,

a muscle spasm in her left leg and tightness in her neck and middle back when she stepped off a
curb and slipped on ice while loading her car with mail. She stated that she did not realize the
parking lot was “glared” with ice.
On appellant’s claim form, Judith C. Bianchine, an employing establishment postmaster,
controverted the claim on the grounds that the alleged injury did not occur in the performance of
duty. She stated that appellant did not report any incident, accident or injury to her until
January 3, 2006. Ms. Bianchine further stated that appellant had complained about chronic back
pain since the beginning of her reemployment at the employing establishment. She noted that
appellant made numerous chiropractic visits for back and neck pain and muscle spasms which
she spoke about often to everyone at work. Ms. Bianchine related that her knowledge of the
facts of the injury was not in agreement with appellant’s statement of injury. She contended that
appellant had changed the facts several times or there was a lack of facts regarding the alleged
injury. Ms. Bianchine noted that on January 3, 2006 appellant called in sick at 6:20 a.m. but did
not mention an injury. Two hours later appellant stated that she “slipped” on Thursday.
In a January 3, 2006 email message, Ms. Bianchine further described the alleged injury.
On Tuesday, January 3, 2006 at approximately 6:20 a.m., appellant contacted Ms. Bianchine at
home to advise that she was unable to work on that day. She had seen a chiropractor on the
previous day who she believed cracked her back into place but she was unable to sit or stand that
morning. Appellant further advised that she had not found anyone to cover her route.
Ms. Bianchine responded that she would call her back. After spending over one hour calling
several offices and substitutes, Ms. Bianchine found no available substitute. When she called
appellant back, appellant stated that she slipped on ice in the parking lot on Thursday,
December 29, 2005. Ms. Bianchine stated that appellant had not advised her about the injury.
Appellant stated that she told, Lisa Thatcher, a coworker, about the injury. At approximately
9:45 a.m., appellant called Ms. Bianchine from her physician’s office and requested the address
of the workers’ compensation office so that her physician could order x-rays. Ms. Bianchine
stated that she was too busy to provide this information and appellant replied that she would call
her back. John Reilly, an employing establishment employee, advised Ms. Bianchine that, until
appellant filed a CA-1 form, no accident had occurred. Appellant called Ms. Bianchine at
2:45 p.m. and stated that she was waiting for her physician to read the x-rays and that she may
have sustained a herniated disc.
In a January 5, 2006 narrative statement, Stacey Mercier, appellant’s coworker, related
that appellant was supposed to be on vacation during the week between Christmas and New
Year’s Day and that no coverage for her absence was available. She stated that she was
exhausted so she asked appellant either on Thursday, December 22 or Friday, December 23,
2005, whether she was going to call in during the stated time period. Ms. Mercier responded that
she did not have it in her to perform appellant’s and her job which usually occurred when she
called in. Appellant stated that she was not going to call in during the stated week but could not
promise that she would not call in soon.
In an undated narrative statement, Ms. Thatcher stated that she did not remember the day
appellant fell in the employing establishment’s parking lot but remembered her coming back
inside the office after she loaded her car with mail. Appellant cautioned her to be careful
because it was slippery by her car and she almost fell. Ms. Thatcher stated that she did not

2

appear to be hurt or affected in any way. She related that appellant left to deliver her mail and
did not refer to this matter again. Several days later, Ms. Thatcher stated that she reiterated her
statement of injury when Ms. Bianchine asked her about the incident.
Appellant submitted a January 3, 2006 medical report from Dr. Kevin P. Cope, a Boardcertified family practitioner, who provided a history that she complained about low and middle
back pain after falling on ice at work on December 29, 2005. Dr. Cope stated that appellant
sustained lumbar radiculopathy and thoracic and cervical strains. In a January 9, 2006 report, he
reiterated his prior diagnoses and opinion on causal relation. Dr. Cope’s January 3, 2006
disability certificate stated that appellant was off work from that date until January 9, 2006. On
January 3, 2006 he ordered physical therapy. In a January 9, 2006 disability certificate, Dr. Cope
stated that appellant was to remain off work from that date through January 10, 2006.
A January 10, 2006 disability certificate of Diane Vecchio, a nurse practitioner, stated
that appellant was totally incapacitated from that date until January 24, 2006. In a January 11,
2006 report, Ms. Vecchio provided a history that approximately two weeks ago, appellant
slipped and fell on ice. She provided a diagnosis of cervical and lumbar strains and lumbar
contusion. On January 24, 2006 Ms. Vecchio conducted a follow-up examination regarding a
slip and fall that occurred approximately six weeks ago. She reiterated her prior diagnoses and
stated that appellant also had intermittent symptoms of nerve irritation/radiculitis.
In an undated narrative statement, Ms. Bianchine stated that Michael Fisher, appellant’s
replacement, advised her that it was well known that appellant did not want to work until she got
a new car. Mr. Fisher further advised that the transmission was not working in her car and she
complained about the car and how she could not afford to replace it. He informed Ms. Bianchine
that appellant’s car broke down on several occasions and Mr. Ketchum, a garage owner, gave her
a ride to work so that she could finish her route with her other car. Ms. Bianchine stated that
Mr. Fisher related that appellant could not regularly use the other car because her back hurt when
she sat on the console and she could not reach the boxes. Mr. Fisher reported that he told her it
was her responsibility to find a vehicle that she could work out of in a safe manner. Appellant
responded that she could not afford one.
By letter dated February 3, 2006, the Office advised appellant that the evidence submitted
was insufficient to establish her claim. It addressed the factual and medical evidence that she
needed to submit to support her claim of injury.
The Office received a January 30, 2006 report from Dr. Timothy J. Greenan, a Boardcertified radiologist. A magnetic resonance imaging (MRI) scan of appellant’s cervical spine
demonstrated mild discogenic disease, spondylosis and diffuse posterior disc bulges at C5-6 and
C6-7 and a left lateral herniated nucleus pulposus at C5-6 impression on the left ventral aspect of
the spinal cord extending into the left anterior recess.
A January 24, 2006 form report from Dr. Russell N.A. Cecil, a Board-certified orthopedic
surgeon, stated that appellant sustained a neck, low back and left leg injury on
December 29, 2005. On January 31, 2006 Dr. Cecil determined that appellant was totally
disabled. He opined that appellant could not return to limited-duty work that required twisting
and turning. In addition, she could not return to her regular work duties because they required

3

physical labor. Appellant informed Dr. Cecil that she could not drive to Albany, New York to
work inside the employing establishment.
Ms. Vecchio’s January 24, 2006 disability certificate stated that appellant was totally
incapacitated from that date through February 21, 2006.
In a January 25, 2006 letter, Louise T. Coulombe, an employing establishment injury
compensation specialist, stated that the January 30, 2006 MRI scan clearly demonstrated that
appellant had underlying discogenic disease, spondylosis and diffuse posterior disc bulges at
C5-6 and C6-7. She noted that, prior to filing a claim, appellant was being treated by a
chiropractor. According to Ms. Coulombe appellant did not report an injury to her postmaster
and that as a rural carrier she was responsible for providing her own vehicle to deliver mail. She
related that the postmaster stated that at no time did appellant report an injury. Ms. Coulombe
contended that appellant did not have a vehicle to deliver mail and alleged an injury because she
had no money to repair her vehicle. She further contended that the facts surrounding the alleged
injury were not accurate and that appellant’s postmaster advised her that she had made it very
clear to her subordinates that she had no intentions of returning to work.
The Office received treatment notes from appellant’s physical therapists covering
intermittent dates from January 6 through February 24, 2006. Undated and unsigned form
reports indicated that appellant sustained a low back, left leg and neck injury on
December 29, 2005. Ms. Vecchio’s January 26, 2006 report reiterated her prior diagnoses. On
January 4, 2006 Dr. Kevin Lau, a Board-certified radiologist, performed an x-ray of appellant’s
cervical spine which demonstrated minimal degenerative change.
In a February 16, 2006 letter, appellant further described the December 29, 2005 incident.
Upon arriving at work on that date at approximately 10:00 a.m., she began to load her car with
mail to deliver on her route. She stepped off the curb and slipped on ice, injuring her neck and
back on the left side. Appellant stated that she did not realize that the parking lot around the car
was a “glare” of ice. She related that it was not properly maintained that morning and no salt
was put down. Appellant indicated that she did not feel any pain at that moment, she just felt
stiff and tight. She immediately advised Ms. Thatcher to be very careful because she had just
slipped on the ice. Ms. Thatcher replied that she was aware of the ice because she almost slipped
that morning while getting out of her car. Appellant stated that she did not advise her boss at that
time about the injury because her boss was at a counter waiting on customers and she was not in
immediate pain. She proceeded to deliver mail and later noticed that the more she reached for
the gas and brake pedals with her left leg, her back began to get tighter. The more appellant
reached and stretched to put mail in boxes, the more her neck started to tighten. She continued
her route. Appellant returned to the office, signed out and went home. She stated that, when she
arrived home, she put heat on her back and neck every 20 minutes to loosen them up. Appellant
also took Tylenol to ease the discomfort. She stated that she continued to perform her regular
work duties on December 30 and 31, 2005 and January 1 and 2, 2006 despite experiencing
stiffness in her neck and back, muscle spasms down the left side of her neck and back and a
headache. On December 30, 2005 appellant told Ms. Mercier that her back and neck were stiff
and sore from slipping on ice the day before.

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Appellant related that on January 1, 2006 she could hardly walk or sit for more than 20
minutes. She sought chiropractic treatment on January 2, 2006. In the morning on January 3,
2006, appellant called Ms. Bianchine at home to inform her that she was not coming into work
that day due to extreme pain. She stated that she fell on December 29, 2005 while loading her
car and that she thought the pain would go away and that she would get better in a few days.
Appellant described her symptoms and medical treatment. Ms. Bianchine advised her that no
one was available to cover for her. Appellant responded that she was unable to drive to work
due to her condition. Ms. Bianchine called her back at 7:17 a.m. reiterating that no coverage
could be found. Appellant again stated that she was unable to work and that she was seeking
medical attention. She called Ms. Bianchine from her physician’s office to obtain insurance
information but she was too busy to give her the requested information. Appellant called back
later that day and advised Ms. Bianchine that she would be off work for one week and that she
had a follow-up appointment scheduled on January 9, 2006. On January 12, 2006 she received a
call from Ms. Bianchine requesting that she remove her mail car from the employing
establishment’s property because it was a safety hazard.
Appellant stated that she had not sustained any other injury between December 29, 2005
and January 3, 2006. She had not experienced any pain and discomfort or been treated for a back
or neck injury prior to December 29, 2005. Appellant related that, contrary to Ms. Bianchine’s
statement, she only had one chiropractic appointment in August 2004 and April 2005.
In a letter dated March 2, 2006, Ms. Coulombe contended that appellant had issues about
not being able to take time off work during the holidays. She had a history of back problems and
chiropractic treatment which she shared with Ms. Bianchine. Ms. Coulombe stated that the
cause of the alleged injury was questionable as the history provided by appellant was not
consistent.
In an undated narrative statement, Ms. Bianchine reiterated that she had no knowledge of
appellant’s statements regarding the alleged December 29, 2005 injury and that she did not
receive any report of icy conditions in the employing establishment’s parking lot from any other
employees or customers that day. She denied any knowledge of appellant’s allegations regarding
her condition from December 30, 2005 through January 2, 2006. Ms. Bianchine stated that
appellant had ample opportunity to mention the incident and that she was usually very vocal
about any particular ache or pain she experienced. She related that Ms. Mercier told her that she
did not remember appellant saying anything about “slipping” and/or her symptoms. Appellant
mentioned for the first time in her statement that she fell. Ms. Bianchine stated that her previous
statements only spoke about a slip and she first received notice about the claimed fall from the
injury compensation office. She noted that appellant’s CA-1 form indicated that she slipped.
Ms. Bianchine further noted that she had several discussions with appellant regarding the proper
way to lift. On one occasion, appellant stated that she could not lift properly due to her knees.
Ms. Bianchine instructed her to stop and get out of her vehicle to rearrange her load. She also
instructed her to remove her personal vehicle from the employing establishment’s property as
another carrier could not park as assigned. Snow was accumulating around the vehicle and the
area could not be plowed. Ms. Bianchine stated that the build up was causing an unsafe
condition in the parking lot but she did not know how this information pertained to appellant’s
alleged injury. She noted that appellant had complained to her on many occasions about sciatic
pain. Ms. Bianchine was aware of this condition because she was undergoing surgery in

5

March 2006 to correct her own sciatica and L5-4 disc problems. She and appellant often
discussed the similar nature of their back and leg pain.
Ms. Vecchio’s February 14, 2006 addendum treatment note reported appellant’s back and
neck symptoms and her headaches, dizziness and nausea. She instructed appellant to remain off
work until February 21, 2006. Dr. Cecil’s February 21, 2006 disability certificate stated that
appellant was unable to work from that date through March 7, 2006. A February 28, 2006
disability certificate from Dr. Frank L. Genovese, a Board-certified neurosurgeon, stated that
appellant should remain off work until she was evaluated on March 27, 2006 by Dr. Paul W.
Salerno, a Board-certified physiatrist, for her severe neck, arm and shoulder pain. On January 3,
2004 Dr. Lau performed several x-rays. Appellant’s lumbar spine was negative and there was no
evidence of a fracture of her thoracic spine. Minimal degenerative changes were found in her
cervical spine.
By decision dated March 23, 2006, the Office denied appellant’s claim on the grounds
that she did not establish that the claimed employment incident occurred at the time, place and in
the manner alleged and that she sustained a medical condition caused by the alleged incident.
The Office received Dr. Cecil’s February 27, 2006 treatment note which stated that
appellant sustained cervical disc disease.
By letter dated April 12, 2006, appellant requested reconsideration of the Office’s
March 23, 2006 decision. She submitted Dr. Salerno’s March 27, 2006 prescription note which
stated that appellant had pain in her cervical spine, left arm and low back. Form reports from
Dr. Cecil, Dr. Craig Anderson, a chiropractor, and Dr. Salerno dated March 29 and 31 and
April 3, 2006, respectively, provided a history that on December 29, 2005 appellant slipped on
ice while in the performance of duty. Dr. Cope stated that she fell on ice at work on the claimed
date. Drs. Cecil, Cope and Salerno diagnosed cervical, lumbar and upper extremity pain, lumbar
spine sprain/strain, cervical, lumbar and thoracic strains and lumbar contusion and radiculopathy.
Dr. Anderson diagnosed “847.25, 724.8, 847.0, 722.0 and 847.15.” All of these physicians
indicated with an affirmative mark that the diagnosed conditions were caused by the
December 29, 2005 incident. Dr. Cecil stated that appellant worked on December 30 and 31,
2005 which aggravated her original injury.
In a March 27, 2006 narrative report, Dr. Salerno reiterated his prior history of the
alleged injury. He reported appellant’s complaints and his findings on physical and radiological
examination. Dr. Salerno opined that appellant had cervical spine pain with left upper extremity
pain symptoms status post the alleged injury of December 29, 2005. He stated that her
symptoms were consistent with left C5-6 herniated nucleus pulposus with associated myofascial
pain. Appellant also sustained lumbar spine sprain/strain status post the alleged December 29,
2005 work injury. Dr. Salerno stated that her symptoms were likely musculoskeletal in nature.
Dr. Anderson’s January 2, 2006 narrative report reiterated his prior history of the alleged
December 29, 2005 injury. He reported his findings on physical and objective examination.
Dr. Anderson stated that the new primary diagnosis was an acute moderate lumbar strain/sprain
with associated acute moderate sacroiliac sprain/strain. He also diagnosed acute moderate
cervical sprain/strain with associated cervical disc displacement and an acute moderate thoracic

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sprain/strain with associated thoracic somatic dysfunction. Dr. Anderson opined that these
conditions were caused by the alleged December 29, 2005 injury.
In a January 25, 2006 report, Ms. Vecchio stated that appellant had a serious health
condition that began on December 29, 2005 and would probably continue until June 30, 2006.
She further stated that the probable duration of her incapacity was contained in her January 24,
2006 report.
The Office received additional treatment notes from appellant’s physical therapist
covering intermittent dates from January 6 through May 2006.
By decision dated April 26, 2006, the Office denied appellant’s request for
reconsideration on the grounds that her arguments and the evidence that she submitted were
insufficient to warrant a merit review of the Office’s prior decision.
The Office received Dr. Cope’s May 2, 2006 report which reiterated his prior history of
injury. Dr. Cope noted appellant’s ability to work and medical treatment she received following
the alleged injury including an evaluation on January 3 and 9, 2006 in his office by Thomas
Venditti, a physician’s assistant. He reported appellant’s symptoms and his findings on physical
examination. Dr. Cope opined that she had a left lateral herniated nucleus pulposus at C5-6 and
cervical, thoracic and lumbosacral strains that were related to the December 29, 2005 work
incident.
By letter dated May 24, 2006, appellant requested reconsideration of the Office’s
April 26, 2006 decision. She submitted Dr. Cope’s May 16, 2006 report which reiterated
appellant’s history of injury and medical treatment, her ability to work and his opinion regarding
causal relation as set forth in his May 2, 2006 report.
On August 25, 2006 the Office issued a decision, denying appellant’s request for
reconsideration on the grounds that the evidence submitted was of an immaterial nature and
insufficient to warrant a merit review of its prior decisions.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of 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 timely filed
within the applicable time limitation period of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.2 These are the essential
elements of each compensation claim regardless of whether the claim is predicated upon a
traumatic injury or an occupational disease.3 Establishing that a federal employee has sustained
1

5 U.S.C. §§ 8101-8193.

2

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

3

Delores C. Ellyett, 41 ECAB 992, 998-99 (1990); Ruthie M. Evans, 41 ECAB 416, 423-27 (1990).

7

a traumatic injury in the performance of duty involves two components. First, the employee
must submit sufficient evidence to establish that she actually experienced the employment
incident at the time, place and in the manner alleged.4 Second, the employee must submit
evidence, in the form of medical evidence to establish that the employment incident caused a
personal injury.5 The term injury as defined by the Act, refers to some physical or mental
condition caused by either trauma or by continued or repeated exposure to or contact with,
certain factors, elements or conditions.6
An employee who claims benefits under the Act has the burden of establishing the
occurrence of an injury at the time, place and in the manner alleged, by a preponderance of the
reliable, probative and substantial evidence.7 An injury does not have to be confirmed by
eyewitnesses in order to establish the fact that an employee sustained an injury in the
performance of duty, but the employee’s statements must be consistent with the surrounding
facts and circumstances and his or her subsequent course of action.8 An employee has not met
his or her burden of proof of establishing the occurrence of an injury when there are such
inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.9 Such
circumstances as late notification of injury, lack of confirmation of injury, continuing to work
without apparent difficulty following the alleged injury and failure to obtain medical treatment
may, if otherwise unexplained, cast sufficient doubt on an employee’s statements in determining
whether a prima facie case has been established.10 However, an employee’s statement alleging
that an injury occurred at a given time and in a given manner is of great probative value and will
stand unless refuted by strong or persuasive evidence.11
ANALYSIS -- ISSUE 1
Appellant alleged that she sustained a back and neck injury in the performance of duty on
December 29, 2005. The Board finds that she established that the employment incident occurred
on December 29, 2005, as alleged.
The Board finds that there are not such inconsistencies in the evidence as to cast serious
doubt upon the validity of appellant’s claim that she experienced an employment incident on
December 29, 2005. Appellant consistently claimed that she sustained a back and neck injury on
4

Julie B. Hawkins, 38 ECAB 393, 396 (1987); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of
Injury, Chapter 2.803.2a (June 1995).
5

John J. Carlone, 41 ECAB 354, 356-57 (1989); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact
of Injury, Chapter 2.803.2a (June 1995).
6

Elaine Pendleton, supra note 2; 20 C.F.R. § 10.5(a)(14).

7

William Sircovitch, 38 ECAB 756, 761 (1987); John G. Schaberg, 30 ECAB 389, 393 (1979).

8

Charles B. Ward, 38 ECAB 667, 670-71 (1987); Joseph Albert Fournier, Jr., 35 ECAB 1175, 1179 (1984).

9

Tia L. Love, 40 ECAB 586, 590 (1989); Merton J. Sills, 39 ECAB 572, 575 (1988).

10

Samuel J. Chiarella, 38 ECAB 363, 366 (1987); Henry W.B. Stanford, 36 ECAB 160, 165 (1984).

11

Robert A. Gregory, 40 ECAB 478, 483 (1989); Thelma S. Buffington, 34 ECAB 104, 109 (1982).

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December 29, 2005 as a result of slipping and falling on ice in the employing establishment’s
parking lot while loading mail into her car. Ms. Thatcher stated that, although appellant did not
appear to be hurt and proceeded to deliver mail, appellant cautioned her to be careful on the
parking lot because she slipped by her car and almost fell. Ms. Thatcher stated that she was
aware of the icy conditions because she almost slipped while getting out of her car on
December 29, 2005. Dr. Cope’s January 3, 2006 report and Ms. Vecchio’s January 11 and 24,
2006 reports provided a history as related by appellant that on December 29, 2005 she slipped
and fell on ice at work.
Ms. Bianchine and Ms. Coulombe stated that appellant did not promptly report the
December 29, 2005 incident, noting that she did not report the incident until January 3, 2006.
They also stated that she provided an inconsistent or incomplete statement of injury.
Ms. Bianchine noted that on January 3, 2006 appellant called in sick but failed to mention that
she sustained an injury. She indicated that it was not until a conversation later that day when
appellant told her that she had slipped on ice in the parking lot on December 29, 2005. Both
Ms. Bianchine and Ms. Coulombe stated that appellant had underlying neck and back conditions
prior to the alleged injury as she had made numerous chiropractic visits for chronic neck and
back pain. They both contended that she claimed an injury because she could not afford to fix
the car she used to deliver mail. Ms. Bianchine’s statement regarding this contention is based on
Mr. Fisher’s account that appellant’s car was not working properly and that she could not afford
a new one. The Board notes that the record does not contain any corroborative evidence such as,
a statement from Mr. Fisher or Mr. Ketchum regarding the status of appellant’s car and her
ability to afford a new one.
Appellant explained that she did not promptly report the December 29, 2005 incident to
her supervisor because she did not feel any pain at that moment, just stiffness and tightness. In
addition, she stated that her supervisor was busy waiting on customers at a counter at the time of
the incident. Appellant stated that on December 30, 2005 she told Ms. Mercier that her back and
neck were stiff and sore from slipping on ice the day before. Ms. Thatcher stated that appellant
told her that she slipped on ice and almost fell while loading mail into her car.
Although appellant continued to work on December 30 and 31, 2005 and January 1
and 2, 2006, she sought medical treatment for her increasing symptoms within a short time
period after the December 29, 2005 incident. She was examined by Dr. Cope on January 3, 2006
and he provided a history of the December 29, 2005. Dr. Cope opined that appellant sustained
lumbar radiculopathy and thoracic and cervical strains and that she was totally disabled from
January 3 through 10, 2006 and ordered physical therapy. Ms. Bianchine stated that on
January 3, 2006 appellant called her from her physician’s office and told her that she may have
sustained a herniated disc as a result of the December 29, 2005 incident. She was evaluated on
January 10, 2006 by Ms. Vecchio who provided a history of injury, diagnosed cervical and
lumbar strains and lumbar contusion and found her totally disabled from that date through
January 24, 2006.
Appellant stated that prior to the December 29, 2005 incident she had not experienced
any back or neck pain or discomfort. She denied undergoing several chiropractic treatments.
Appellant stated that she was only treated once in August 2004 and April 2005. Contrary to
Ms. Coulombe’s contention that appellant did not want to work during the holidays, Ms. Mercier

9

stated that appellant told her she had no plans to call in during the week between Christmas and
New Year’s Day.
Based on the statements of appellant, Ms. Thatcher, Ms. Mercier and Ms. Bianchine and
the reports and disability certificates of Dr. Cope and Ms. Vecchio, the Board finds that the
employment incident in the form of slipping and falling on ice in the employing establishment’s
parking lot on December 29, 2005 did in fact occur.
The Board, however, finds that appellant did not submit sufficient medical evidence to
establish that she sustained a back and neck injury due to the accepted December 29, 2005
employment incident.
As noted, Dr. Cope’s January 3, 2006 report provided a history of the December 29, 2005
employment incident. In this report, as well as, his January 9, 2006 report, he stated that
appellant sustained lumbar radiculopathy and thoracic and cervical strains on
December 29, 2005.
Dr. Cope’s reports, however, failed to address how the lumbar
radiculopathy and thoracic and cervical strains were caused or contributed to by the accepted
employment incident. The Board finds that this evidence is insufficient to establish appellant’s
claim.
The disability certificates, reports and treatment note from Ms. Vecchio, a nurse
practitioner, are of no probative value because a nurse practitioner is not considered a physician
under the Act.12 Similarly, the treatment notes from appellant’s physical therapists do not
constitute probative medical evidence inasmuch as a physical therapist is not considered a
physician under the Act.13 Further, the undated and unsigned reports submitted by appellant
have no probative value because they are not signed by a physician.14 As the reports lack proper
identification, the Board finds that they do not constitute probative medical evidence sufficient to
establish appellant’s burden of proof.15
Dr. Cecil’s January 24, 2006 report stated that appellant sustained a neck, low back and
left leg injury on December 29, 2005. His January 31, 2006 report stated that she was totally
disabled and that she could not perform her regular work duties because they involved physical
labor. Dr. Cecil failed to provide a diagnosis for appellant’s neck, back and left leg conditions.
He also failed to provide medical rationale explaining how and why the December 29, 2005
accepted employment incident caused an injury and resultant disability. Dr. Cecil’s reports are
insufficient to establish appellant’s claim.
12

5 U.S.C. § 8101(2) which defines “physician” as including surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by State law; see also Joseph N. Fassi, 42 ECAB 231 (1991) (medical evidence signed only by a registered nurse or
nurse practitioner is generally not probative evidence).
13

5 U.S.C. §§ 8101-8193; 8101(2); Vickey C. Randall, 51 ECAB 357, 360 (2000) (a physical therapist is not a
physician under the Act).
14

Ricky S. Storms, 52 ECAB 349 (2001).

15

Vickey C. Randall, 51 ECAB 357 (2000); Merton J. Sills, 39 ECAB 572 (1988) (Reports not signed by a
physician lack probative value).

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The disability certificates of Drs. Cope, Cecil and Genovese, finding that appellant was
totally disabled for work from January 3 through 10 and February 21 through March 27, 2006
are insufficient to establish her claim because they failed to provide a diagnosis and to discuss
how the diagnosed condition was caused by the December 29, 2005 employment incident.16
Appellant has not submitted rationalized medical evidence establishing that she sustained
a back and neck injury in the performance of duty on December 29, 2005. She has failed to meet
her burden of proof.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128 of the Act,17
the Office’s regulations provide that a claimant must: (1) show that the Office erroneously
applied or interpreted a specific point of law; (2) advance a relevant legal argument not
previously considered by the Office; or (3) constitute relevant and pertinent new evidence not
previously considered by the Office.18 To be entitled to a merit review of an Office decision
denying or terminating a benefit, a claimant also must file his or her application for review
within one year of the date of that decision.19 When a claimant fails to meet one of the above
standards, the Office will deny the application for reconsideration without reopening the case for
review of the merits.
ANALYSIS -- ISSUE 2
As previously stated, the Board has found the evidence of record sufficient to establish
that the December 29, 2005 incident occurred as alleged, but insufficient to establish that
appellant sustained neck and back injuries causally related to this accepted work incident. The
relevant underlying issue is whether appellant sustained back and neck injuries causally related
to the December 29, 2005 employment incident.
In support of her April 12, 2006 reconsideration request, appellant submitted Dr. Cecil’s
February 27, 2006 treatment note which stated that she had cervical disc disease. Dr. Salerno’s
March 27, 2006 prescription note stated that appellant suffered from pain in the cervical spine,
left arm and low back. This evidence fails to address whether appellant sustained an injury
causally related to the December 29, 2005 employment incident. In a March 27, 2006 report,
Dr. Salerno stated that appellant sustained a left C5-6 herniated nucleus pulposus with associated
myofascial pain and a lumbar spine sprain/strain status post the December 29, 2005 work injury.
Although Dr. Salerno opined that appellant sustained injuries following the December 29, 2005
employment incident, he did not specifically state that these injuries were caused by the accepted
employment incident. The Board has held that the submission of evidence which does not
16

Daniel Deparini, 44 ECAB 657, 659 (1993).

17

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he 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).
18

20 C.F.R. § 10.606(b)(1)-(2).

19

Id. at § 10.607(a).

11

address the particular issue involved does not constitute a basis for reopening a case.20 Because
neither Dr. Cecil nor Dr. Salerno addressed the relevant issue in this case, their treatment and
prescription notes and report are insufficient to warrant reopening appellant’s claim for further
merit review.21
Dr. Anderson, a chiropractor, stated in reports dated January 2 and March 31, 2006, that
appellant sustained an acute moderate lumbar strain/sprain with associated acute moderate
sacroiliac sprain/strain, acute moderate cervical sprain/strain with associated cervical disc
displacement and acute moderate thoracic sprain/strain with associated thoracic somatic
dysfunction causally related to the December 29, 2005 employment incident. However,
Dr. Anderson’s reports are irrelevant and do not constitute a basis for reopening appellant’s
claim for further merit review because under section 8101(2) of the Act, chiropractors are only
considered physicians, and their reports considered medical evidence, to the extent that they treat
spinal subluxations as demonstrated by x-ray to exist.22 There is no indication that Dr. Anderson
treated a spinal subluxation as demonstrated by x-ray to exist and, therefore, these nonmedical
documents would have no bearing on the main issue of the present case which is medical in
nature. The Board finds that Dr. Anderson’s reports do not constitute a basis for reopening
appellant’s claim for further merit review.
As noted, a nurse and physical therapist are not considered physicians under the Act.
Therefore, Ms. Vecchio’s January 25, 2006 report and the treatment notes from appellant’s
physical therapists are insufficient to warrant reopening her claim for further merit review.23
The March 29 and 30 and April 3, 2006 form reports of Drs. Salerno, Cecil and Cope
indicated with an affirmative mark that appellant’s lumbar and cervical conditions were caused
by the December 29, 2005 employment incident. The Board finds that these reports constitute
pertinent new and relevant medical evidence not previously considered by the Office, which
requires reopening of appellant’s claim for merit review. The Board also finds that Dr. Cope’s
May 16, 2006 report, which was submitted in support of appellant’s May 24, 2006
reconsideration request, and states that her cervical, thoracic and lumbar conditions were
causally related to the December 29, 2005 employment incident constitutes pertinent new and
relevant medical evidence, which requires reopening of appellant’s claim for merit review. The
underlying issue in the present case is whether appellant established that she sustained neck and
back injuries due to the December 29, 2005 employment incident. Drs. Salerno, Cecil and Cope
stated that appellant sustained cervical spine pain with left upper extremity pain symptoms,
cervical, lumbar and thoracic strains, lumbar contusion, lumbar radiculopathy and left lateral
herniated nucleus pulposus at C5-6 due to the December 29, 2005 work incident.

20

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

21

Id.

22

5 U.S.C. § 8101(2), 20 C.F.R. § 10.311(a). See Thomas W. Stevens, 50 ECAB 288 (1999); George E. Williams,
44 ECAB 530 (1993).
23

See supra notes 12 and 13.

12

Dr. Cope’s May 2, 2006 report which was submitted in support of appellant’s May 24,
2006 reconsideration request diagnosed left lateral herniated nucleus pulposus at C5-6 and
cervical, thoracic and lumbosacral strains. Because Dr. Cope did not address the relevant issue
of whether the diagnosed conditions were caused by the accepted employment incident, this
report is insufficient to warrant reopening appellant’s claim for further merit review.24
Since appellant has submitted evidence in support of her April 12 and May 24, 2006,
2006 reconsideration requests which meets the third standard for obtaining a merit review of her
case, the Board finds that the Office should have reopened the case for a review on the merits.
Accordingly, the Board will remand the case to the Office for a review on the merits.
CONCLUSION
The Board finds that appellant has failed to establish that she sustained a back and neck
injury in the performance of duty on December 29, 2005. The Board, however, finds that the
Office improperly denied her April 12 and May 24, 2006 requests for merit review of her claim
pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs
March 23, 2006 decision is affirmed. The decisions of the Office dated August 25 and April 26,
2006 are reversed and the case is remanded for further action consistent with this decision.
Issued: April 9, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
24

Edward Matthew Diekemper, supra note 20.

13


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS, VA
MEDICAL CENTER, Minneapolis, MN,
Employer
__________________________________________

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

Docket No. 21-1308
Issued: March 30, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 9, 2020 appellant filed a timely appeal from a March 31, 2020 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the March 31, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant met her burden of proof to establish more than 23 percent
permanent impairment of her left lower extremity, for which she previously received a schedule
award.
FACTUAL HISTORY
This case has previously been before the Board on a different issue.3 The facts and
circumstances as set forth in the Board’s prior decision are incorporated herein by reference. The
relevant facts are as follows.
On December 9, 2009 appellant, then a 33-year-old pharmacy technician, filed a traumatic
injury claim (Form CA-1) alleging that on November 10, 2009 she injured her left knee when she
tripped over a stack of totes. OWCP accepted the claim for left knee strain and authorized left
kneecap repair/arthroscopic surgery, which was performed on July 26, 2012. It also authorized
the removal of left support implant, which was performed on February 7, 2014, and total left knee
arthroplasty, which was performed on January 21, 2015.
On December 17, 2015 appellant filed a claim for compensation (Form CA-7) for a
schedule award.
By decision dated February 8, 2016, OWCP granted appellant a schedule award for 23
percent left lower extremity permanent impairment. The award ran 66.24 weeks for the period
January 23, 2016 to April 30, 2017 and was based on the impairment rating of Dr. Ann M. Reiner,
an occupational and environment physician, and the January 14, 2016 report of Dr. David I.
Krohn, a Board-certified internist, serving as an OWCP district medical adviser (DMA). The
diagnostic basis for the schedule award was appellant’s total knee replacement.
By decision dated July 29, 2016, OWCP expanded acceptance of the claim to include left
leg sprain, left lower leg joint pain, left gait abnormality, closed dislocation of patella, c ramp in
limb, and venous embolism and thrombosis of deep vessels of the lower extremity.
On December 2, 2019 appellant filed a Form CA-7 claim for an increased schedule award.
On January 8, 2020 OWCP referred appellant, along with the case record, an updated
statement of accepted facts (SOAF), and a series of questions to Dr. Chester A. DiLallo, a Boardcertified orthopedic, for a second opinion evaluation regarding permanent impairment of
appellant’s left lower extremity. The January 8, 2020 SOAF provided to Dr. DiLallo included past
treatment modalities and noted that appellant previously received a schedule award for 23 percent
permanent impairment of the left lower extremity.
In a report dated February 4, 2020, Dr. DiLallo noted his review of the SOAF and
appellant’s medical records. He determined that appellant had reached MMI on February 4, 2020.
Upon examination of the left knee, Dr. DiLallo found a slightly shortened stance on the left side,
3

Docket No. 18-1620 (issued May 6, 2019).

2

tenderness in the inferior patella and lateral side of the knee in the collateral ligaments region, no
effusion, some slight medial instability, and the patella could not be subluxed by manual pressure.
He also reported full left knee extension and flexion to 120 degrees. Dr. DiLallo referred to the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides),4 Knee Regional Grid and noted that, for the left knee, the diagnostic key factor was a
total knee replacement arthroplasty with a good result (good position, stable, and functional).5 He
noted a grade modifier for functional history (GMFH) of 3 based on a pain disability questionnaire,
which yielded a raw score of 113. Dr. DiLallo found that a grade modifier for clinical studies
(GMCS) was not applicable and that no other grade modifiers were applicable.6 He explained that
application of the net adjustment formula resulted in a finding of -+1 or grade D, which was the
equivalent of 25 percent permanent impairment of the left lower extremity.
On February 7, 2020 OWCP referred Dr. DiLallo’s report, the medical record, and SOAF,
to Dr. David J. Slutsky, a Board-certified orthopedic surgeon serving as a district medical adviser
(DMA). In a report dated March 21, 2020, Dr. Slutsky noted his disagreement with Dr. DiLallo’s
impairment rating of 25 percent left lower extremity permanent impairment. Based on his review
of Dr. DiLallo’s report and SOAF, Dr. Slutsky calculated 21 percent left lower extremity
permanent impairment. In reaching this determination, he assigned a class of diagnosis (CDX) for
the diagnosis of total knee replacement with fair or good result of class 2 7 (class 2, default value
of 25 percent). 8 Dr. Slutsky assigned a GMFH of 0 as Dr. DiLallo related that appellant had no
gait derangement, a grade modifier for physical examination (GMPE) of 2 due to general palpatory
tenderness and no instability and no GMCS as it was used to define the class of impairment. 9 He
explained that application of the net adjustment formula resulted in a finding of -2 or grade A,
which was the equivalent of 21 percent permanent impairment of the left lower extremity. 10
Dr. DiLallo noted that this was less than her prior impairment rating.
By decision dated March 31, 2020, OWCP denied appellant’s claim for an increased
schedule award.

4

A.M.A., Guides (6 th ed. 2009).

5

Id. at 511, Table 16-3.

6

Id. at 516, Table 16-6.

7

Dr. Slutsky noted a class 3 instead of class 2. However, this appears to be a typographical error as he refers the
midrange of 25 percent. The midrange is 25 percent for a class 2 while the midrange for a class 3 is 37 percent.
8

Supra note 6.

9

Id. at 516, Table 16-6, 517, Table 16-7, and 519, Table 16-8.

10

Id. at 521.

3

LEGAL PRECEDENT
The schedule award provisions of FECA,11 and its implementing federal regulations,12 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. FECA,
however, does not specify the manner in which the percentage loss of a membe r shall be
determined. The method used in making such a determination is a matter which rests in the
discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized
the use of a single set of tables so that there may be uniform standards applicable to all claimants.
OWCP evaluates the degree of permanent impairment according to the standards set forth in the
specified edition of the A.M.A., Guides, published in 2009.13 The Board has approved the use by
OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes. 14
In determining impairment for the lower extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the lower extremity
to be rated. With respect to the left knee, the relevant position of the left leg for the present case,
reference is made to Table 16-3 (Knee Regional Grid) beginning on page 509. 15 After CDX is
determined from the Knee Regional Grid (including identification of a default grade value), the
net adjustment formula is applied using the GMFH, GMPE, and GMCS. The net adjustment
formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).16 Evaluators are directed to provide
reasons for their impairment rating choices, including the choices of diagnosis from regional grids
and calculations of modifier scores. 17
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed through an OWCP medical adviser for an opinion concerning the nature and
extent of impairment in accordance with the A.M.A., Guides, with an OWCP medical adviser
providing rationale for the percentage of impairment specified.18

11

5 U.S.C. § 8107.

12

20 C.F.R. § 10.404.

13

For decisions issued after May 1, 2009, the sixth edition of the A.M.A., Guides is used. A.M.A., Guides, (6 th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.5(a) (March 2017); see also id. at Chapter 3.700, Exhibit 1 (January 2010).
14

M.T., Docket No. 21-0169 (issued October 14, 2021); P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro
Rivera, 12 ECAB 348 (1961).
15

See supra note 5 at 509-11.

16

Id. at 515-22.

17

Id. at 23-28; see D.W., Docket No. 21-0840 (issued November 30, 2021); R.V., Docket No. 10-1827 (issued
April 1, 2011).
18

See supra note 16 at Chapter 2.808.6(f) (March 2017).

4

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish greater than 23
percent permanent impairment of her left lower extremity for which she previously received a
schedule award.
In a February 4, 2020 report, Dr. DiLallo, based upon a review of the medical records, a
SOAF, and series of questions, diagnosed a total left knee replacement. He provided a permanent
impairment rating based upon the sixth edition of the A.M.A., Guides. Dr. DiLallo assigned a
CDX for the diagnosis of total knee replacement with fair or good result of class 2 based on a good
result and a GMFH of 3 based on a pain disability questionnaire which yielded a raw score of 113.
He applied the net adjustment formula and calculated 25 percent permanent impairment of the left
lower extremity based upon the DBI methodology.
OWCP referred Dr. DiLallo’s report to the DMA, Dr. Slutsky. In a report dated March 21,
2021, Dr. Slutsky found 21 percent left lower extremity permanent impairment. He disagreed with
Dr. DiLallo’s finding of 25 percent left lower agreement impairment, which he explained was due
to the difference in the application of the GMFH. Dr. Slutsky explained that he determined
appellant GMFH of 0 rather than GMFH 3, as found by Dr. DiLallo, which he explained was based
Dr. DiLallo’s finding of no gait derangement.
Dr. Slutsky properly reviewed the medical evidence and evaluated appellant’s impairment
of the left lower extremity in accordance with the A.M.A., Guides, as a GMFH of 0 rather than
GMFH of 3, based upon no gait derangement. The Board further finds that Table 17-12, cited by
Dr. DiLallo as the basis for finding a GMFH of 3 is inapplicable as it pertains to the pelvis and not
the knee.
As there is no medical evidence of record in conformance with the sixth edition of the
A.M.A., Guides, establishing that appellant has greater impairment than that which was previously
awarded, the Board finds that appellant has not met her burden of proof.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased permanent impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish greater than 23
percent permanent impairment of her left lower extremity for which she previously received a
schedule award.

5

ORDER
IT IS HEREBY ORDERED THAT the March 31, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 30, 2022
Washington, DC

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

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.G., Appellant
and
U.S. POSTAL SERVICE, BRANDON POST
OFFICE, Brandon, FL, Employer
__________________________________________

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

Docket No. 19-1859
Issued: August 20, 2020

Case Submitted on the Record

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

JURISDICTION
On September 10, 2019 appellant filed a timely appeal from an August 30, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
FACTUAL HISTORY
On July 6, 2016 appellant, then a 44-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that she injured her neck the day before when her vehicle was rear-ended
when she was delivering mail while in the performance of duty. OWCP initially accepted her
claim for cervical strain of muscle, fascia and tendon, and sprain of the ligaments of the thoracic
1

5 U.S.C. § 8101 et seq.

spine. It subsequently expanded acceptance of the claim to include aggravation of cervical
spondylosis with radiculopathy. OWCP paid appellant wage-loss compensation on the
supplemental rolls for intermittent periods of disability commencing June 5, 2017. On
November 7, 2017 appellant underwent an OWCP-approved anterior cervical discectomy and
fusion at C4-6 performed by Dr. Sheyan Armaghani, an orthopedic surgeon.
On January 8, 2019 appellant filed a claim for a schedule award (Form CA-7).
In a development letter dated January 14, 2019, OWCP requested that Dr. Armaghani
provide a report addressing appellant’s date of maximum medical improvement (MMI) and
providing a rating of her permanent impairment under the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides)2 and The
Guides Newsletter, Rating Spinal Nerve Extremity Impairment Using the Sixth Edition
(July/August 2009) (The Guides Newsletter). It requested that Dr. Armaghani respond within 30
days.
In a report dated November 9, 2018, Dr. Armaghani examined appellant for complaints of
neck and right arm pain. On physical examination of her upper extremities, he observed hand
intrinsic strength of 4+/5 with otherwise normal findings, including normal reflexes and intact
sensation to light touch at C4-T1 bilaterally. Dr. Armaghani diagnosed cervical spondylosis with
myeloradiculopathy. He noted that appellant had reached MMI on October 26, 2018 and
concluded that she had seven percent permanent impairment based on “1996 guidelines” for her
cervical spine. In an addendum attached to the report dated February 6, 2019, Dr. Armaghani
explained that this rating for her cervical spine represented dysfunction in her upper extremities as
cervical spine nerves gave function to the upper extremities.
On March 13, 2019 Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving as
a district medical adviser (DMA), reviewed Dr. Armaghani’s reports dated November 9, 2018 and
February 6, 2019 and found that his permanent impairment evaluation could not be considered
probative for schedule award purposes under FECA, because he had not utilized The Guides
Newsletter in calculating appellant’s percentage of permanent impairment of the upper extremities
due to spinal nerve impairment. The DMA further noted that the reports lacked sufficient detail
to permit assignment of an impairment rating. He recommended contacting Dr. Armaghani to
obtain a supplemental report regarding appellant’s percentage of permanent impairment or
obtaining a second opinion evaluation from a Board-certified physician. The DMA noted that the
date of MMI was presently undetermined.
In a letter dated April 2, 2019, OWCP requested a supplemental report from Dr. Armaghani
in which he should provide an opinion as to permanent impairment consistent with the sixth edition
of the A.M.A., Guides and The Guides Newsletter and noted that ratings should be provided under
both the diagnosis-based impairment (DBI) and range of motion (ROM) methodologies, if
permitted. It enclosed the DMA’s report of March 13, 2019 for his review and requested that he
submit the supplemental report within 30 days.
On April 26, 2019 OWCP referred appellant to Dr. William Dinenberg, a Board-certified
orthopedic surgeon, for a second opinion regarding appellant’s permanent impairment. It noted
2

A.M.A., Guides (6th ed. 2009).

2

the need to provide a discussion, with rationale, explaining whether the DBI or ROM methodology
was utilized in calculating permanent impairment.
In a letter dated December 13, 2018, and received by OWCP on May 2, 2019,
Dr. Armaghani noted his review of appellant’s extensive history of medical treatment following
her July 5, 2016 motor vehicle incident. He found that she had reached MMI, but he also noted
that, due to her prior fusion procedure, she had a 25 percent likelihood of needing additional
surgery above or below her current fusion within 10 years.
In a report dated May 23, 2019, Dr. Dinenberg noted his review of the medical record and
a statement of accepted facts (SOAF). He reported physical examination findings which included:
range of motion findings of cervical flexion and extension to 20 and 30 degrees respectively;
rotation to the right of 50 degrees; rotation to the left of 60 degrees; 1+ biceps, triceps, and
brachioradialis reflexes bilaterally; full strength of the biceps, triceps, deltoid, wrist flexion,
extension, and finger abduction; 5-/5 grip strength on the right; 4+/5 grip strength on the left;
forearm measurements of 23.5 centimeters (cm) on the left and 25 cm on the right; diminished
sensation in the middle ring and small fingers on the left to light touch; normal sensation
throughout the right upper extremity; nontenderness to palpation of the thoracic spine; and
tenderness of the lower cervical spine to the left of the midline extending onto the left trapezius.
Dr. Dinenberg diagnosed cervical spine strain, thoracic spine strain, and aggravation of
spondylosis with radiculopathy of the cervical region, postanterior cervical discectomy at C4-5
and C5-6 with residual left upper extremity symptomology and cervical pain. He noted that
appellant reached MMI on May 24, 2019, the date of his examination. Dr. Dinenberg requested
an electromyography and nerve conduction velocity (EMG/NCV) study prior to assignment of an
impairment rating.
An EMG/NCV study dated June 28, 2019 demonstrated normal results for the bilateral
upper extremities with no electrodiagnostic evidence of nerve entrapment, generalized peripheral
neuropathy, or cervical radiculopathy.
In an addendum report dated July 8, 2019, Dr. Dinenberg noted his review of the results of
an EMG/NCV study completed on June 28, 2019 concluding that the study was normal for nerve
conduction and electrodiagnostic results related to the bilateral upper extremities. He further noted
that appellant’s physical examination had demonstrated weakness of grip, left greater than right,
and some atrophy of the left forearm compared to the right, with diminished sensation of the
middle, ring, and small fingers on the left. Dr. Dinenberg explained that the diminished sensation
of the left hand was most consistent with a C7-8 radicular symptomology, and that the loss of
bilateral grip strength was more consistent with C8 radiculopathy or myelopathy. Noting that
appellant’s accepted cervical radiculopathy was related to the C4-5 and C5-6 discs, no residuals
related to her accepted diagnosis were observed. Dr. Dinenberg also noted that, as such, no
permanent impairment rating for her accepted conditions was appropriate, as her symptoms were
related to conditions that had not been accepted as work related, such as myelopathy. He further
noted that Dr. Armaghani had found appellant to be possibly myelopathic before her operative
intervention and had noted preoperative weakness of grip.
In a report dated July 18, 2019, Dr. Katz, serving as a DMA, reviewed the medical record,
including the second opinion report of Dr. Dinenberg dated July 8, 2019, and the SOAF. The
DMA noted that Dr. Dinenberg had identified no objectively verifiable motor or dermatomal
3

sensory deficiencies in either upper extremity and reported normal electrodiagnostic studies for
the accepted cervical disc levels, and that, as such, there was no ratable impairment of any spinal
nerve and no ratable permanent impairment resulting from the accepted conditions. He noted that
the key diagnostic factors utilized in determination of DBI for the accepted conditions of the claim
were not eligible for an alternative range of motion impairment calculation based on the sixth
edition of the A.M.A., Guides. The DMA found that appellant reached MMI on July 8, 2019 and
concluded that she had zero percent permanent impairment of the right and left upper extremities
based on the sixth edition of the A.M.A., Guides and The Guides Newsletter.
By decision dated August 30, 2019, OWCP denied appellant’s schedule award claim
finding that she had not met her burden of proof to establish permanent impairment of a scheduled
member or function of the body.
LEGAL PRECEDENT
The schedule award provisions of FECA,3 and its implementing federal regulations,4 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.5 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.6
Neither FECA nor its regulations provide for a schedule award for impairment to the
back/spine or to the body as a whole.7 Furthermore, the back is specifically excluded from the
definition of organ under FECA.8 The sixth edition of the A.M.A., Guides does not provide a
separate mechanism for rating spinal nerve injuries as impairments of the upper or lower
extremities. Recognizing that FECA allows ratings for the extremities and precludes ratings for
the spine, The Guides Newsletter offers an approach to rating spinal nerve impairments consistent
with sixth edition methodology. For peripheral nerve impairments to the upper or lower
extremities resulting from spinal injuries, OWCP’s procedures indicate that The Guides Newsletter
is to be applied.9 The Board has recognized the adoption of this methodology for rating extremity
impairment, including the use of The Guides Newsletter, as proper in order to provide a uniform
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id. at § 10.404(a).

6
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also Chapter 3.700.2 and Exhibit 1 (January 2010) id.
7

See L.L., Docket No. 19-0214 (issued May 23, 2019); N.D., 59 ECAB 344 (2008); Tania R. Keka, 55 ECAB
354 (2004).
8

See 5 U.S.C. § 8101(19); see also G.S., Docket No. 18-0827 (issued May 1, 2019); Francesco C. Veneziani, 48
ECAB 572 (1997).
9

Supra note 6 at Chapter 3.700 (January 2010). The Guides Newsletter is included as Exhibit 4.

4

standard applicable to each claimant for a schedule award for extremity impairment originating in
the spine.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
In a report dated November 9, 2018, Dr. Armaghani indicated that appellant had reached
MMI and assessed a permanent impairment rating of seven percent based on “1996 guidelines for
[appellant’s] cervical spine and bilateral upper extremities.” In an addendum attached to
February 6, 2019 report, he explained that this rating represented dysfunction in her upper
extremities.
The DMA, Dr. Katz, properly explained that Dr. Armaghani’s impairment evaluation could
not be considered probative for schedule award purposes under FECA, because Dr. Armaghani
had not utilized The Guides Newsletter in calculating appellant’s percentage of permanent
impairment of the upper extremities due to spinal nerve impairment.11 The DMA further explained
that Dr. Armaghani’s reports dated November 9, 2018 and February 6, 2019 lacked sufficient detail
to permit assignment of a permanent impairment rating.12 The Board finds that the DMA properly
explained that Dr. Armaghani’s reports were insufficient to establish permanent impairment of a
scheduled member or function of the body.
On May 23, 2019 Dr. Dinenberg, a second opinion physician, reviewed the medical record
and conducted a physical examination. Pursuant to OWCP’s request, he provided a permanent
impairment evaluation based upon appellant’s loss of ROM of the cervical spine. The Board notes
initially that while OWCP requested that Dr. Dinenberg evaluate appellant’s loss of ROM and he
provided findings pertaining to appellant’s loss of cervical spine ROM, neither FECA nor its
regulations provide for a schedule award for permanent impairment of the spine. Therefore
appellant’s loss of cervical ROM was not a proper basis for assessment of permanent impairment.13
Dr. Dinenberg also observed that appellant had weakness of grip, left greater than right,
and some atrophy of the left forearm compared to the right, with diminished sensation of the
middle, ring, and small fingers on the left. After reviewing the June 28, 2019 EMG/NCV study,
he explained in an addendum report dated July 8, 2019 that the diminished sensation of appellant’s
left hand found on physical examination was most consistent with a C7-8 radicular symptomology,
and that the loss of bilateral grip strength was more consistent with C8 radiculopathy or
myelopathy. Noting that appellant’s accepted cervical radiculopathy was related to the C4-5 and

10

See E.D., Docket No. 13-2024 (issued April 24, 2014); D.S., Docket No. 13-2011 (issued February 18, 2014).

11

Supra note 9.

12

This description must be in sufficient detail so that the claims examiner (CE) and others reviewing the file will
be able to clearly visualize the impairment with its resulting restrictions and limitations. K.F., Docket No. 18-1517
(issued October 9, 2019).
13

Supra note 7.

5

C5-6 discs, no residuals related to those disc levels were observed. Dr. Dinenberg noted that, as
such, no impairment rating for her accepted diagnoses was appropriate.
OWCP properly referred the evidence of record to the DMA. On July 18, 2019 the DMA
noted that Dr. Dinenberg had identified no objectively verifiable motor or dermatomal sensory
deficiencies in either upper extremity related to radiculopathy from the accepted cervical disc
levels and had reported normal electrodiagnostic studies. He therefore found that appellant had
no ratable permanent impairment pursuant to The Guides Newsletter.14 The Board finds that the
DMA in this case properly applied the standards of The Guides Newsletter to determine that
appellant did not have permanent impairment of a scheduled member or function of the body as
The Guides Newsletter rates permanent impairment from cervical radiculopathy based upon
sensory or motor loss of the upper extremities.15 It specifically explains that the ratings for the
sensory component and the motor component are adjusted for functional history (Table 15-7)16
and clinical studies (Table 15-9),17 excluding physical examination (Table 15-8)18 since neurologic
examination defines the impairment values in Table 15-20.19 The DMA explained that appellant
had normal electrodiagnostic studies and had no objectively verifiable motor or dermatomal
sensory deficiencies in either upper extremity related to radiculopathy from the accepted cervical
disc conditions. The Board concludes that the DMA properly found that appellant’s permanent
impairment due to her accepted cervical radiculopathy could only be rated based upon her
diagnoses and resulting motor and sensory losses of the upper extremities, under The Guides
Newsletter. As appellant has no objectively verifiable motor or sensory losses from the accepted
cervical disc conditions, the evidence of record did not establish that appellant had permanent
impairment of a scheduled member due to her accepted cervical disc conditions.
The Board also notes that OWCP improperly suggested, by requesting that Dr. Dinenberg
provide a permanent impairment rating based upon loss of ROM of appellant’s upper extremities,
that appellant’s upper extremity impairment could be alternatively rated using ROM methodology.
Under FECA Bulletin No. 17-06, “If the rating physician provided an assessment using the ROM
method and the A.M.A., Guides allow for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods and identify
the higher rating for the CE.”20 The A.M.A., Guides however do not allow a permanent
impairment rating due to loss of ROM if the diagnosis did not contain an asterisk in the DBI grid.21
The Guides Newsletter explains that impairment for radiculopathy is reflected only as a DBI rating.
The Guides Newsletter does not indicate by asterisk in the DBI grid that an alternate impairment
14

T.K., Docket No. 19-1222 (issued December 2, 2019).

15

See E.F., Docket No. 18-1723 (issued May 1, 2019).

16

A.M.A., Guides 406.

17

Id. at 410.

18

Id. at 408; supra note 9.

19

See supra note 9.

20

FECA Bulletin No. 17-06 (May 8, 2017).

21

N.M., Docket No. 19-1925 (issued June 3, 2020).

6

rating due to loss of ROM can be made for a diagnosis of cervical radiculopathy from a spinal
nerve impairment. Therefore, the DMA properly concluded that appellant’s permanent
impairment could only be rated under The Guides Newsletter for the accepted C4-5 and C5-6
radiculopathy diagnoses, and that appellant’s permanent impairment could not be rated based upon
loss of ROM.
Appellant has submitted no other medical evidence in conformance with The Guides
Newsletter, establishing permanent impairment of a scheduled member or function of the body.
The Board therefore finds that she has not met her burden of proof to establish her claim for a
schedule award.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the August 30, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 20, 2020
Washington, DC

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

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Santa Paula, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 06-2109
Issued: January 24, 2007

Case Submitted on the Record

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

JURISDICTION
On September 21, 2006 appellant filed a timely appeal from a July 6, 2006 Office of
Workers’ Compensation Programs’ merit decision, denying his claim for injuries to his back,
groin and hips. Pursuant to 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’s back, groin and hip conditions were causally related to
factors of his federal employment.
FACTUAL HISTORY
This case was previously before the Board. By order dated June 22, 2006, the Board
remanded the case for proper assemblage because the case record was missing certain medical
reports mentioned in Office decisions.1

1

Docket No. 06-944, order remanding case (issued June 22, 2006).

On July 20, 2004 appellant, then a 51-year-old distribution clerk, filed a traumatic injury
claim alleging that on July 1, 2004 he injured his back, groin and hips when he attempted to push
three parcels weighing 50 pounds each to his right side along a counter.2
In a December 8, 2003 report, Dr. Daniel A. Capen, an attending Board-certified
orthopedic surgeon, addressed appellant’s November 26, 2003 employment-related lumbar
strain/sprain and noted that he also had systemic lupus. He noted that in 1993 appellant
underwent bilateral hip surgery due to avascular necrosis (AVN) caused by long-term steroid use
and systemic lupus. In a December 1, 2004 report, Dr. Andrew R. Jarminski, an attending family
practitioner and associate of Dr. Capen, described appellant’s physical progress following the
November 26, 2003 employment-related lumbar sprain/strain.
In a July 2, 2004 report, Dr. Jay E. Persselin, an attending rheumatologist, stated that
appellant developed hip pain the previous day. Tests were ordered to determine the cause of the
condition.
On August 25, 2004 Dr. Capen recommended limited-duty work in connection with the
claimed July 1, 2004 injury, indicating that he had limited spinal motion. He did not provide a
diagnosis. An August 26, 2004 report from Dr. Capen addressed appellant’s November 26, 2003
lumbar sprain/strain. He did not mention the claimed July 1, 2004 injury.
By decision dated September 15, 2004, the Office denied appellant’s claim on the
grounds that the evidence did not establish that his back, groin and hip conditions were causally
related to his employment.
On September 13, 2005 appellant requested reconsideration and submitted additional
evidence.
In a July 8, 2004 report, Dr. Persselin stated that appellant was experiencing groin and
bilateral hip pain, probably caused by hip arthritis and osteoarthritis secondary to AVN and
possible lumbar nerve root irritation. He had a history of AVN of the hips. Appellant also had
radicular pain in both legs with decreased sensation likely due to lumbar nerve root irritation but
possibly caused by systemic lupus erythematosus with associated peripheral neuropathy. In a
December 1, 2004 duty status report, Dr. Persselin diagnosed lumbar sprain/strain and provided
work restrictions. In a June 28, 2005 report, Dr. Persselin discussed appellant’s systemic lupus
condition.
In a September 15, 2004 report, Dr. Jarminski diagnosed a lumbar sprain/strain resulting
from the November 26, 2003 employment injury. In a December 1, 2004 report, he provided
findings on physical examination and stated that appellant was feeling better since his
November 26, 2003 employment injury.

2

At the time of his claimed July 1, 2004 injury, appellant was working in a limited-duty position with the
restriction of no lifting over five pounds. The Office had previously accepted a lumbosacral strain sustained on
November 26, 2003.

2

In a July 6, 2005 duty status report, Dr. Capen diagnosed lumbar sprain/strain and
indicated that the condition was caused by the July 1, 2004 work incident. He provided a list of
work restrictions. In an unsigned July 15, 2005 report, Dr. Capen stated that appellant was still
experiencing pain in his back, left buttock and both feet. Findings on physical examination of
the lumbar spine included spasm, discomfort and limited range of motion and radicular irritation
into both feet. He diagnosed lumbar sprain/strain syndrome with left L4 radiculopathy. An
August 30, 2004 electromyogram revealed left L4 radicular irritation.
In a September 20, 2005 report, Dr. Capen stated that on July 1, 2004 appellant was
pushing several heavy packages at work and exacerbated his low back pain with tingling and
numbness in the lower extremities as well as groin and bilateral hip pain. He stated, “It is my
opinion that [appellant] did have an exacerbation of his condition, which would be an expected
response considering his medical history and his physical condition.”3
By decision dated November 16, 2005, the Office denied modification of its
September 15, 2004 decision.
On July 6, 2006 the Office reissued its November 16, 2005 denial of appellant’s claim on
the grounds that the evidence failed to establish that his back, groin and hip conditions were
causally related to factors of his federal employment.4
LEGAL PRECEDENT
To establish a causal relationship between a claimant’s medical conditions and his
employment, he must submit rationalized medical opinion evidence based on a complete factual
and medical background supporting such a causal relationship.5 Rationalized medical opinion
evidence is medical evidence which includes a physician’s opinion on the issue of whether there
is a causal relationship between the claimant’s condition and the implicated employment factors.
The opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.6 Neither the fact that a disease or
condition manifests itself during a period of employment nor the belief that the disease or
condition was caused or aggravated by employment factors or incidents is sufficient to establish
causal relationship.7
3

The Board notes that an August 9, 2004 report mentioned by Dr. Capen in his September 20, 2005 report is not
of record.
4

Appellant submitted additional evidence subsequent to the Office decision of July 6, 2006. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal.
5

Michael S. Mina, 57 ECAB ___ (Docket No. 05-1763, issued February 7, 2006).

6

Gary J. Watling, 52 ECAB 278 (2001); Gloria J. McPherson, 51 ECAB 441 (2000).

7

Michael S. Mina, supra note 5.

3

ANALYSIS
Appellant has the burden to establish that he sustained injuries to his back, groin and hips
on July 1, 2004 when he moved heavy parcels along a counter at work.
A December 8, 2003 report from Dr. Capen addressed appellant’s November 26, 2003
employment-related lumbar strain/sprain. He also noted that appellant underwent bilateral hip
surgery in 1993 and had systemic lupus. In a December 1, 2004 report, Dr. Jarminski addressed
appellant’s physical progress following the November 26, 2003 injury. These reports relate to a
separate November 26, 2003 employment injury. They do not explain how the claimed July 1,
2004 injuries to appellant’s back, groin and hips were caused or aggravated when he attempted to
push heavy parcels along a counter. Therefore, these reports do not establish that appellant’s
back, groin and hip conditions are causally related to his employment. On August 25, 2004
Dr. Capen recommended limited-duty work in connection with the claimed July 1, 2004 injury.
However, he did not provide a diagnosis or any medical rationale explaining how appellant’s
injury or need for limited duty was causally related to his employment. In a September 15, 2004
report, Dr. Jarminski diagnosed lumbar sprain/strain resulting from the November 26, 2003
employment injury but did not mention the claimed July 1, 2004 injuries. In a December 1, 2004
report, he provided findings on physical examination and stated that appellant was feeling better
since his November 26, 2003 employment injury. These reports do not address the issue of
whether appellant’s back, groin and hip conditions were caused or aggravated by the July 1,
2004 work incident. In a July 6, 2005 duty status report, Dr. Capen diagnosed lumbar
sprain/strain and indicated that the condition was caused by the July 1, 2004 work incident but
provided no medical rationale in support of his opinion. An unsigned July 15, 2005 report
included the observation that appellant was still experiencing pain in his back, left buttock and
both feet. He diagnosed lumbar sprain/strain syndrome with left L4 radiculopathy but provided
no rationalized explanation for the cause of the condition. In a September 20, 2005 report,
Dr. Capen stated that on July 1, 2004 appellant was pushing several heavy packages at work and
exacerbated his low back pain with tingling and numbness in the lower extremities as well as
groin and bilateral hip pain. He stated, “It is my opinion that [appellant] did have an
exacerbation of his condition, which would be an expected response considering his medical
history and his physical condition.” However, Dr. Capen did not provide a specific diagnosis for
the groin and hip conditions. Additionally, he provided insufficient medical rationale for his
opinion on causal relationship. Such rationale is particularly important in light of the fact that
appellant had a preexisting hip condition for which he underwent surgery and a prior back injury.
Dr. Capen did not adequately explain how the July 1, 2004 incident caused either a new injury to
his back, groin and hips or an aggravation of his preexisting back and hip conditions. Medical
reports that do not contain adequate rationale on causal relationship are of diminished probative
value and are generally insufficient to meet an employee’s burden of proof.8 Lacking sufficient
medical rationale addressing the issue of causal relationship, the reports from Dr. Capen and
Dr. Jarminski are not sufficient to establish that appellant’s back, groin and hip conditions were
caused or aggravated by his employment.

8

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

4

In a July 2, 2004 report, Dr. Persselin stated that appellant developed hip pain the
previous day. However, he did not opine that this condition was caused by the incident at work
on July 1, 2004. On July 8, 2004 Dr. Persselin stated that appellant was experiencing groin and
bilateral hip and leg pain. He indicated that the cause of the pain was hip arthritis and
osteoarthritis secondary to AVN and possible lumbar nerve root irritation. Dr. Persselin did not
provide a rationalized medical opinion explaining how appellant’s groin, hip and leg conditions
were caused or aggravated by the July 1, 2004 work incident. Rather, he appears to relate
appellant’s problems to preexisting nonwork-related conditions. Because of these deficiencies,
the reports of Dr. Persselin are not sufficient to establish that appellant sustained work-related
injuries to his back, groin and hips on July 1, 2004, as alleged.
CONCLUSION
The Board finds that appellant failed to establish that his back, groin and hip conditions
were causally related to factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 6, 2006 is affirmed.
Issued: January 24, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5