United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., Appellant
and
U.S. POSTAL SERVICE, FORT LAUDERDALE
PROCESSING & DISTRIBUTION CENTER,
Fort Lauderdale, FL, Employer
__________________________________________

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

Docket No. 10-219
Issued: September 3, 2010

Case Submitted on the Record

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

JURISDICTION
On October 29, 2009 appellant filed a timely appeal from a June 9, 2009 decision of the
Office of Workers’ Compensation Programs denying a schedule award. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.1
ISSUE
The issue is whether appellant sustained a ratable impairment of the upper extremities
related to accepted right shoulder and cervical sprains.

1

Appellant submitted new medical evidence following issuance of the June 9, 2009 decision. The Board may not
consider evidence for the first time on appeal that was not before the Office at the time it issued the final merit
decision in the case. 20 C.F.R. § 501.2(c). Appellant may submit this evidence to the Office accompanying a valid
request for reconsideration.

FACTUAL HISTORY
The Office accepted that on June 9, 1997 appellant, then a 39-year-old distribution clerk,
sustained a right shoulder strain while processing mail. It later expanded the claim to include
cervical and lumbar sprains.
Appellant sought treatment for neck and low back pain beginning in August 1997. On
July 10, 2000 Dr. Michael P. Feanny, an attending Board-certified orthopedic surgeon,
performed C4-5 and C5-6 anterior discectomies and fusions. Dr. David B. Ross, an attending
Board-certified neurologist, submitted reports from December 4, 2007 to September 29, 2008
diagnosing herniated cervical and lumbar discs, tenosynovitis of the right shoulder, headaches
and vertigo.
On June 2, 2009 appellant claimed a schedule award. She submitted a May 13, 2009
report from Dr. Ross diagnosing tenosynovitis of the right shoulder and cervical postfusion
syndrome. Dr. Ross found normal strength, tone, sensation and reflexes in both upper
extremities.2 On June 4, 2009 an Office medical adviser reviewed Dr. Ross’ May 13, 2009
report and found appellant had reached maximum medical improvement. He opined that
appellant had no permanent impairment of either upper extremity as Dr. Ross observed normal
strength, tone, reflexes and sensation.
By decision dated June 9, 2009, the Office denied appellant’s schedule award claim on
the grounds that the medical evidence did not demonstrate any ratable impairment of a scheduled
member of the body.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulations4 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The American Medical Association, Guides to the
Evaluation of Permanent Impairment has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.5

2

The Office noted that appellant did not specify the member of the body for which she claimed the schedule
award. As appellant submitted medical evidence discussing the upper extremities, it developed the schedule award
claim as one for upper extremity impairment.
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

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

2

No schedule award is payable for a member, function, or organ of the body not specified
in the Act or in the regulations.6 As neither the Act nor the regulations provide for the payment
of a schedule award for the permanent loss of use of the back,7 no claimant is entitled to such an
award.8 However, in 1966, amendments to the Act modified the schedule award provision to
provide for an award for permanent impairment to a member of the body covered by the
schedule regardless of whether the cause of the impairment originated in a scheduled or
nonscheduled member. As the schedule award provision of the Act includes the extremities, a
claimant may be entitled to a schedule award for permanent impairment to an extremity even
though the cause of the impairment originated in the spine.9
ANALYSIS
The Office accepted that appellant sustained a right shoulder strain and cervical and
lumbar sprains. Appellant claimed a schedule award for upper extremity impairment, based on
the May 13, 2009 opinion of Dr. Ross, an attending Board-certified neurologist, who found
normal strength, sensation, tone and reflexes in both arms and diagnosed tenosynovitis of the
right shoulder. An Office medical adviser found that Dr. Ross’ opinion did not support a ratable
impairment of either arm. The Office therefore denied appellant’s schedule award claim.
The Board finds that the medical evidence does not establish a ratable impairment of
either upper extremity. Dr. Ross found no objective neurologic abnormalities of either arm.
Although he diagnosed tenosynovitis of the right shoulder, he did not opine that this was a workrelated condition or that it caused a permanent impairment of the right upper extremity. There is
no other medical evidence of record supporting a ratable impairment of upper extremity.
Therefore, the Office’s June 9, 2009 decision denying appellant’s schedule award claim was
proper under the facts and circumstances of this case.
CONCLUSION
The Board finds that appellant has not established that she sustained a ratable impairment
of the upper extremities related to accepted cervical and lumbar strains and a right shoulder
sprain.

6

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

7

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

8

Thomas Martinez, 54 ECAB 623 (2003).

9

N.M., 58 ECAB 273 (2007).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 9, 2009 is affirmed.
Issued: September 3, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Greensboro, NC, Employer
__________________________________________

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

Docket No. 09-1832
Issued: May 13, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 13, 2009 appellant filed a timely appeal from the February 18, 2009 nonmerit
decision of the Office of Workers’ Compensation Programs, which denied reconsideration of her
case. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review that
denial.
ISSUE
The issue is whether the Office properly denied further merit review of appellant’s case.
FACTUAL HISTORY
On January 31, 1997 appellant, then a 38-year-old management assistant, sustained an
injury in the performance of duty when she leaned back in her chair and it fell over backwards.
The Office accepted a contusion and sprain of the left shoulder and recurrent left shoulder
dislocation. On August 30, 1997 appellant underwent surgery for Bankart repair with capsular
reefing.

On November 9, 1998 the Office issued a schedule award for a 46 percent impairment of
appellant’s left upper extremity. On February 21, 2006 the Office issued a schedule award for an
additional 10 percent impairment of her left upper extremity following a March 23, 2005
excision of the distal clavicle and left shoulder fusion. On July 12, 2006 an Office hearing
representative affirmed the additional award and on January 17, 2007 the Office reviewed the
merits of appellant’s case and denied modification of the prior schedule awards.
On December 14, 2007 the Office accepted appellant’s claim for the additional
conditions of consequential left shoulder proximal humerus fracture and chronic distal radialulnar joint instability of the left wrist.1
Appellant wrote to the Office on December 20, 2008: “I am writing to request
reconsideration of the decision made on my request for a higher disability rating which your
office denied.” She enclosed an October 13, 2008 report from Dr. Gary G. Poehling, a Boardcertified orthopedic surgeon and professor, whom the Office authorized as the treating physician.
Dr. Poehling noted appellant’s chief complaint of left wrist pain, numbness and
weakness. He related her history of injury and left shoulder surgeries. Dr. Poehling described
his findings on examination, including a fixed left shoulder, forward flexed and internally rotated
about 30 degrees, so that her hand was at her abdomen. He assessed left wrist joint pain and
offered an opinion on permanent impairment:
“It is my opinion that this patient, when looking at the [w]orkers’
[c]omp[ensation] guide, as far as reading her shoulder, it states that ankylosis in
optimum position of the shoulder results in 50 percent of the arm and added 5
percent if there is resection of the end of the clavicle. To my mind, this patient is
at the extreme with seven operations, no deltoid musculature at all,
hyperparesthesias about the arm and pain in her wrist, which is all part and parcel
of this injury that she sustained back in 1997. I would rate this patient at 70
percent of the left upper extremity. In my opinion, this patient will not be able to
use the left upper extremity.”
On February 12, 2009 an Office medical adviser reviewed Dr. Poehling’s report and
explained that a fixed left shoulder in 30 degrees flexion/internal rotation with resection of the
distal end of the left clavicle represented a 39 percent impairment of the left upper extremity.2
He noted that Dr. Poehling gave no basis for rating left wrist pain and concluded that the
evidence provided no additional objective clinical data to support an increase in the 56 percent
impairment rating appellant previously received.
In a decision dated February 18, 2009, the Office denied appellant’s December 20, 2008
request for reconsideration. It found that her request was untimely and failed to present clear
evidence of error in the Office’s most recent merit decision on January 17, 2007. The Office
1

The Office also accepted osteoarthritis.

2

The Office medical adviser cited the American Medical Association, Guides to the Evaluation of Permanent
Impairment (5th ed. 2001), Figures 16-40 to 16-46 (pages 476-79) and Table 16-27 (page 506).

2

noted that Dr. Poehling provided no objective information to support his impairment rating of 70
percent.
On appeal, appellant contends that the new medical evidence was not properly
considered.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act3 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides.4
ANALYSIS
Appellant requested reconsideration on December 20, 2008. However, she was not
arguing error in the Office’s most recent merit decision. Appellant presented evidence in support
of her claim of increased impairment due to her accepted conditions. The Board notes there is no
one-year time limitation on requesting an increased schedule award. The Office improperly
reviewed the evidence under section 8128 and the clear evidence of error standard.
The Board will set aside the Office’s February 18, 2009 decision denying reconsideration
and will remand the case for an appropriate final decision on the merits of appellant’s claim for
an increased schedule award. After such further development, as it deems necessary, it shall
issue a merit decision on the extent of permanent impairment to appellant’s left arm.5
CONCLUSION
The Board finds that the Office improperly reviewed appellant’s claim for an increased
schedule award under section 8128(a).

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404. For impairment ratings calculated on and after May 1, 2009, the Office should advise any
physician evaluating permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.6.a (January 2010).
5

20 C.F.R. § 10.126 (the Office decision shall contain findings of fact and a statement of reasons).

3

ORDER
IT IS HEREBY ORDERED THAT the February 18, 2009 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded for further action
consistent with this decision.
Issued: May 13, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.H., Appellant
and
U.S. POSTAL SERVICE, MARKET STREET
POST OFFICE, Philadelphia, PA, Employer
__________________________________________

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

Docket No. 07-2303
Issued: March 18, 2008

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 September 10, 2007 appellant, through her attorney, filed a timely appeal from an
August 30, 2007 decision of the Office of Workers’ Compensation Programs regarding a
schedule award. 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 has established that she sustained greater than a nine
percent impairment of the right upper extremity, for which she received schedule awards. On
appeal, appellant’s attorney requested that the Board review the Office’s schedule award
assessment and pay rate calculation.
FACTUAL HISTORY
This is appellant’s third appeal before the Board in this case. On the first appeal, by
decision dated June 15, 2006,1 the Board remanded the case to the Office for further
1

Docket No. 06-258 (issued June 15, 2006).

development regarding whether appellant sustained greater than a five percent impairment of the
right upper extremity, for which she received a schedule award. On the second appeal, by
decision and order dated May 9, 2007,2 the Board set aside an October 16, 2006 decision of the
Office granting appellant an additional four percent impairment of the right upper extremity, for
a total of nine percent. The Board found that the Office improperly relied on an Office medical
adviser to resolve a conflict regarding the appropriate percentage of permanent impairment. The
Board remanded the case for appointment for a new impartial medical examiner. The law and
the facts of the case as set forth in the Board’s prior decision are hereby incorporated by
reference.
In a June 4, 2007 file memorandum, the Office noted the conflict of medical opinion
between Dr. George L. Rodriguez, an attending Board-certified physiatrist, and Dr. Richard J.
Mandel, a Board-certified orthopedic surgeon and second opinion physician. To resolve the
conflict, the Office referred appellant, the medical record and a statement of accepted facts to
Dr. John R. Donahue, a Board-certified orthopedic surgeon, for an impartial medical opinion.3
Dr. Donahue submitted a July 18, 2007 report reviewing the medical record. He noted
that appellant was very anxious and did not give a full effort on strength and range of motion
testing. Appellant complained of pain and numbness throughout both upper extremities.
Dr. Donahue found positive Phalen’s and Tinel’s signs bilaterally and limited flexion in the
fingers of the right hand. He opined that appellant’s presentation was most consistent with the
October 16, 2003 examination performed by Dr. Rodriguez. Referring to the fifth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter,
A.M.A., Guides), Dr. Donahue opined that flexion of the proximal interphalangeal joint of the
right second, third, fourth and fifth fingers limited to 95 degrees equaled a four percent
impairment of the right upper extremity according to Tables 16-2,4 16-15 and 16-23.5 He also
affirmed Dr. Rodriguez’s finding of a 3 percent impairment of the right upper extremity due to a
Grade 4 or 25 percent loss of strength in the median nerve distribution, according to Table 16-11,

2

Docket No. 07-214 (issued May 9, 2007).

3

In a June 15, 2007 letter, appellant’s attorney alleged that the Office did not follow its procedures for selecting
impartial medical examiners because another of his compensation clients was still waiting for an impartial medical
examination whereas appellant had already been scheduled. The Office responded by July 16, 2007 letter,
explaining that the Office followed the appropriate procedures in appellant’s case in selecting the impartial medical
examiner. The Office explained that many variables affected appointment scheduling.
4

A.M.A., Guides 439, Table 16-2 (fifth edition) “Conversion of Impairment of the Hand to Impairment of the
Upper Extremity.”
5

Id. at 502, Table 16-23, “Joint Impairment Due to Excessive Passive Mediolateral Instability.”

2

page 4846 and Table 16-15.7 Dr. Donahue combined the four and three percent impairments to
find a seven percent total impairment of the right upper extremity.8
The Office submitted Dr. Donahue’s July 18, 2007 report to an Office medical adviser for
review. In an August 14, 2007 report, an Office medical adviser agreed with Dr. Donahue’s
calculation of a seven percent impairment of the right upper extremity. The medical adviser
explained that Dr. Donahue properly utilized Tables 16-2, 16-15 and 16-23 to determine four
percent impairment due to decreased motion of the carpometacarpal joint of the thumb and
proximal interphalangeal joints of the second, third, fourth and fifth fingers. The medical adviser
also found that Dr. Donahue properly used Table 16-15 to determine 10 percent impairment for
median nerve motor deficit below the elbow. The 10 percent was then multiplied by 25 percent
for a Grade 4 deficit according to Table 16-11. Multiplying 25 percent times 10 percent equaled
2.5 percent impairment, rounded off to 3 percent. Using the Combined Values Chart on page
604, four percent plus three percent equaled seven percent.
By decision dated August 30, 2007, the Office found that appellant had not established
that she sustained greater than a nine percent impairment of the right upper extremity, for which
she received schedule awards. The Office found that the weight of the medical evidence rested
with Dr. Donahue, who found a seven percent impairment of the right upper extremity, less than
the nine percent previously awarded.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act9 provides for
compensation to employees sustaining impairment from loss or loss of use of specified members of
the body. The Act, however, does not specify the manner in which the percentage loss of a
member shall be determined. The method used in making such determination is a matter which
rests in the sound discretion of the Office. For consistent results and to ensure equal justice, the
Board has authorized the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The A.M.A., Guides has been adopted by the Office as a standard for
evaluation of schedule losses and the Board has concurred in such adoption.10 As of February 1,

6

Id. at 484, Table 16-11, “Determining Impairment of the Upper Extremity Due to Motor and Loss-of-Power
Deficits Resulting From Peripheral Nerve Disorders Based on Individual Muscle Rating.”
7

Id. at 492, Table 16-15, “Maximum Upper Extremity Impairment Due to Unilateral Sensory or Motor Deficits
or to Combined 100 percent Deficits of the Major Peripheral Nerves.”
8

In a July 19, 2007 report, Dr. Joseph J. Thoder, an attending Board-certified orthopedic surgeon, noted that
July 17, 2007 electromyography (EMG) and nerve conduction velocity (NCV) testing showed bilateral carpal tunnel
syndrome, unchanged from prior studies.
9

5 U.S.C. §§ 8101-8193.

10

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

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2001, schedule awards are calculated according to the fifth edition of the A.M.A., Guides,
published in 2000.11
The standards for evaluating the permanent impairment of an extremity under the
A.M.A., Guides are based on loss of range of motion, together with all factors that prevent a limb
from functioning normally, such as pain, sensory deficit and loss of strength. All of the factors
should be considered together in evaluating the degree of permanent impairment.12 Chapter 16
of the fifth edition of the A.M.A., Guides provides a detailed grading scheme and procedure for
determining impairments of the upper extremities due to pain, discomfort, loss of sensation, or
loss of strength.13
Section 8123 of the Federal Employees’ Compensation 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.14 In situations where there exist opposing medical reports of virtually equal weight
and rationale and the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.15
ANALYSIS
The Office accepted that appellant sustained bilateral carpal tunnel syndrome and
stenosing tenosynovitis with trigger finger of the thumb, third and fourth digits of both hands. A
conflict of medical opinion then arose between appellant’s attending physician and a second
opinion physician regarding the percentage of permanent impairment. To resolve this conflict,
the Office referred appellant to Dr. Donahue, a Board-certified orthopedic surgeon, to ascertain
the appropriate percentage of permanent impairment attributable to the accepted conditions.
Dr. Donahue provided a July 18, 2007 report finding a seven percent impairment of the
right upper extremity. Referring to Tables 16-2, 16-15 and 16-23 of the A.M.A., Guides, he
found that flexion of the proximal interphalangeal joint of the right second, third, fourth and fifth
fingers limited to 95 degrees equaled a four percent impairment of the right upper extremity.
Dr. Donahue also found a three percent impairment of the right upper extremity due to Grade 4
weakness in the median nerve distribution according to Tables 16-11 and Table 16-15.

11

See FECA Bulletin No. 01-05 (issued January 29, 2001) (schedule awards calculated as of February 21, 2001
should be evaluated according to the fifth edition of the A.M.A., Guides. Any recalculations of previous awards
which result from hearings, reconsideration or appeals should, however, be based on the fifth edition of the A.M.A.,
Guides effective February 1, 2001).
12

See Paul A. Toms, 28 ECAB 403 (1987).

13

A.M.A., Guides 433-521, (5th ed. 2001) Chapter 16, “The Upper Extremities.”

14

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

15

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

4

Dr. Donahue then used the Combined Values Chart, adding the four and three percent
impairments to equal a seven percent impairment of the right upper extremity.
An Office medical adviser reviewed Dr. Donahue’s report and explained that
Dr. Donahue properly applied the appropriate tables and grading schemes in determining the
percentage of permanent impairment. The medical adviser concurred with Dr. Donahue’s
assessment of a seven percent impairment of the right upper extremity. The Board finds that
Dr. Donahue properly applied the grading schemes of the A.M.A., Guides in assessing the
percentage of permanent impairment of the upper extremities.16
Dr. Donahue’s evaluation conforms to the A.M.A., Guides and establishes that appellant
has no greater than the nine percent impairment of the right upper extremity previously awarded.
The Board further finds that Dr. Donahue’s opinion as impartial medical examiner is entitled to
special weight as his opinion is based on a complete and accurate factual and medical history and
properly applied the A.M.A., Guides to his clinical findings on examination.17 Therefore,
appellant has not established that she sustained greater than a nine percent impairment of the
right upper extremity, for which she received schedule awards.
On appeal, appellant’s attorney requested that the Board review the Office’s pay rate
calculations. The period covered by schedule awards commences on the date that the employee
reaches maximum medical improvement from the residuals of the employment injury.18 The
Office used the date of a June 17, 2005 impartial medical examination as the date of maximum
medical improvement, in accordance with Board precedent. In a November 8, 2005 decision, the
Office granted appellant a schedule award for a five percent impairment of the right upper
extremity. The period of the award ran for 15.6 weeks, from June 17 to October 4, 2005. The
Office calculated that appellant earned $846.41 a week, properly using March 12, 2002 as the
effective date, the date of an accepted recurrence of disability following light duty since the
injuries.19 The Office multiplied $846.41 by the three-fourths rate as appellant had eligible
dependents, equaling $667.00. The Office multiplied $667.00 by 15.6 weeks, resulting in a
payment of $10,405.20 for the entire period. On October 20, 2006 the Office issued a schedule
award for an additional four percent impairment of the right arm. The period of the award ran
12.48 weeks, from October 5 to December 31, 2005. The Office used the previously derived
$667.00 weekly compensation rate, multiplied by 12.48 weeks, resulting in a single payment of
$8,324.16. The Board also finds that the Office’s mathematical calculations of the amount of the
schedule award were correct. Therefore, the Board finds that the Office correctly calculated the
monetary aspect of the schedule awards.

16

The fifth edition of the A.M.A., Guides 494 provides that impairment for carpal tunnel syndrome be rated on
motor and sensory impairments only. See also Robert V. DiSalvatore, 54 ECAB 351 (2003) (where the Board found
that the fifth edition of the A.M.A., Guides provides that impairment for carpal tunnel syndrome be rated on motor
and sensory impairments only, without additional impairment values for decreased grip strength).
17

Jacqueline Brasch (Ronald Brasch), supra note 15.

18

James E. Earle, 51 ECAB 567 (2000); Yolandra Librera, 37 ECAB 388 (1986).

19

5 U.S.C. § 8101(4).

5

CONCLUSION
The Board finds that appellant has not established that she sustained greater than a nine
percent impairment of the right upper extremity, for which she received schedule awards.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 30, 2007 is affirmed.
Issued: March 18, 2008
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.L., Appellant
and
U.S. POSTAL SERVICE, NORTH TEXAS
PROCESSING & DISTRIBUTION CENTER,
Coppell, TX, Employer
__________________________________________

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Appearances:
Michael E. Woods, for the appellant
Office of Solicitor, for the Director

Docket No. 14-1250
Issued: December 2, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 6, 2014 appellant, through her representative, filed a timely appeal from
January 9 and April 14, 2014 merit decisions 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.
ISSUES
The issues are: (1) whether OWCP followed proper procedure when selecting the
impartial medical specialist; (2) whether appellant met her burden of proof to establish a
consequential lumbar condition due to her March 9, 2004 employment injury; and (3) whether
OWCP met its burden of proof to terminate appellant’s compensation benefits effective
January 13, 2014.

1

5 U.S.C. §§ 8101-8193.

On appeal, appellant’s representative asserted that Dr. Bernie McCaskill, a Boardcertified orthopedic surgeon, was not properly selected as an impartial specialist and, as such, his
opinion was not entitled to special weight regarding the issues presented.
FACTUAL HISTORY
On March 9, 2004 appellant, then a 28-year-old mail handler, injured her left foot while
pushing a bulk mail container. She returned to modified duty, which she continued until her
retirement in 2012.2 OWCP accepted the claim for contusion of left great toe, injury to peroneal
nerve, and tenosynovitis of the left foot/ankle.3
On January 10, 2013, Dr. Mike Shah, a Board-certified physiatrist, noted the history of
injury and stated that appellant had developed L5 radiculitis. Left leg examination demonstrated
mild swelling and decreased range of motion, with tenderness and significantly decreased
strength. Lumbar spine examination showed mild tenderness, good range of motion, decreased
leg strength, and equivocal range of motion. Dr. Shah noted his comparison of November 2009
and March 2012 lower extremity electrodiagnostic studies, advising that the later study showed
the development of right L5 radiculitis. He requested that appellant’s claim be expanded to
include a consequential lumbar radiculitis, opining that this resulted from her chronic foot
injuries and working on cement floors, bending, and lifting for years. On January 29, 2013
Dr. Shah reported her complaint of such severe left foot pain and weakness that she could barely
walk. Examination demonstrated significant weakness with dorsiflexion and plantar flexion and
appellant had an antalgic gait with sensory loss along the peroneal distribution. Dr. Shah
reiterated his diagnoses and recommended therapy.
In March 2013, OWCP referred appellant to Dr. Donald M. Mauldin, Board-certified in
orthopedic surgery, for a second opinion evaluation.4 Dr. Mauldin was specifically asked to
comment as to whether she had any continuing residuals of the accepted conditions and whether
the case should be expanded to include lumbar radiculitis. In an April 23, 2013 report, he
described the history of injury, his review of the medical record, and appellant’s complaint of
constant pain since the work injury. Lower extremity examination showed a fairly normal gait
with no evidence of skin discoloration of the feet, no edema and no temperature differential.
Nails were well manicured and polished. Calf and forefoot circumference and circumference
around the base of the nail of the great toe were equal bilaterally. Hair growth was normal.
2

Appellant voluntarily retired on August 13, 2012. She received schedule awards for eight percent total
impairment of the left leg: four percent on October 17, 2007; two percent on February 7, 2012; and two percent on
September 12, 2012.
3

Dr. Tracey Rae Adams, a Board-certified physiatrist, performed a December 20, 2004 electrodiagnostic study of
the lower extremities that demonstrated a left accessory deep peroneal nerve, an anatomic anomaly, but was
otherwise normal. An October 16, 2009 left ankle magnetic resonance imaging (MRI) scan study showed mild
tenosynovitis. An MRI scan of the left foot that day revealed possible mild Lisfranc’s ligament sprain and mild
degenerative change of the first metatarsal head. A November 2, 2009 lower extremity electrodiagnostic study was
interpreted as abnormal with evidence suggesting a left peroneal neuropathy at the foot and no evidence of lumbar
radiculopathy or tibial neuropathy.
4

Dr. Mauldin had previously seen appellant on February 23, 2005. At that time he found nothing clinically
wrong with her left foot.

2

Dr. Mauldin found some breakaway weakness of the left great toe of no known reasoning.
Passive range of motion when distracted appeared normal, yet on active range of motion
appellant resisted dorsiflexion beyond approximately a neutral position on the left foot. The left
ankle was grossly stable with no swelling. Dr. Mauldin diagnosed status post history of a
contusion/crush, injury to the left foot with no objective documentation of any significant
structural injury initially, and chronic pain complaints of the left foot. He indicated that there
were no objective findings to support appellant’s pain complaints or evidence that she had
developed a true complex regional pain syndrome. Dr. Mauldin opined that the accepted
conditions should not be expanded to include lumbar radiculitis since there was never any
evidence of a structural injury to the lumbar spine and this should not have developed from her
foot injury. He recommended a functional capacity evaluation (FCE) noting that, unless there
was specific documentation of a foot disorder, appellant could return to full duty.
OWCP referred appellant for an FCE that was completed on April 29, 2013. The
evaluation demonstrated that appellant was self-limiting with numerous activities due to
complaints of severe left foot/ankle discomfort. In an addendum dated May 14, 2013,
Dr. Mauldin indicated that he had reviewed the April 29, 2013 FCE and concluded that, based on
his examination and the FCE results, she could return to full duty. He confirmed this opinion in
an April 14, 2013 work capacity evaluation.
OWCP determined that a conflict in medical evidence had been created between Dr. Shah
and Dr. Mauldin regarding whether appellant’s accepted employment conditions should be
expanded to include a lumbar spine condition as a consequence of the employment injury. The
record includes a July 16, 2013 screen shot showing that Dr. McCaskill had been selected to
perform the impartial evaluation. The record also included an OWCP Form ME023 with a
certification that the medical management application (MMA) was used to select the referee
physician, and a log of bypassed physicians, including bypass codes and explanations of why
each physician was bypassed.5 On July 17, 2013 OWCP referred appellant to Dr. McCaskill.
On July 21, 2013 appellant’s representative requested to participate in selecting the
impartial physician. He asserted that the Texas medical board documented unprofessional
conduct by Dr. McCaskill such that a new referee examination was required. He attached a
June 9, 1992 order of public reprimand indicating that the Texas State Board of Medical
Examiners found that Dr. McCaskill failed to practice medicine in an acceptable manner because
he failed to perform adequate follow up and testing on two patients. On August 21, 2009 the
Texas medical board fined Dr. McCaskill $1,000.00 for failure to timely release medical records.
In a July 31, 2013 decision, OWCP denied appellant’s request to participate in the
selection of the referee physician. It found that Dr. McCaskill was properly selected to perform
the referee examination, and found the 1992 and 2009 documentation regarding his
qualifications were not a valid reason to show that he was not properly selected to serve as an
impartial specialist in this case. Appellant was provided appeals rights. On August 24, 2013

5

The log indicated that Dr. Joshua Woody was bypassed based on zip code location and that Drs. James Hood,
Robert Holladay, Grant McKeever, and John Steele were bypassed because appellant had previously been seen by
an associate of each listed physician.

3

appellant’s representative requested a hearing. The Branch of Hearings and Review
acknowledged the request for a hearing. No further action was taken on this request.
In reports dated August 27, 2013 report, Dr. McCaskill noted the history of injury as
presented by appellant, her complaint of continuous left leg and low back pain, and his review of
the medical record. Physical examination demonstrated that appellant sat without obvious
discomfort and moved with a somewhat slow and stiff but symmetrical gait. She could rise to
her tiptoes but did not toe walk; could stand on her right heel but not on the left; did not heel
walk on either leg; stood on each leg without significant pelvic tilting; and could bend, kneel,
and pick up an object from the floor very slowly but without obvious difficulty. Appellant
moved on and off an examination table somewhat slowly but without obvious difficulty. Direct
visual inspection of her lower back was unremarkable, with no obvious muscle spasm or
deformity. She showed limited back range of motion and reported that light touch over her
lower back, light pressure over the apex of the head, and any passive movement of her lower
back, including minimal rotation of the torso and pelvis in the same direction, caused significant
pain.
Seated hidden straight leg raising on both the left and right caused no obvious discomfort,
was not limited, and did not cause withdrawal. Supine straight leg raising was not evaluated.
Appellant demonstrated diffuse giveaway weakness in the left leg that did not appear to be of
physiologic origin and claimed that she was unable to extend her left ankle beyond 40 degrees of
flexion despite the fact that her left ankle was in a neutral position when she stood. Infrapatellar
reflex was 2+ on the left and trace on the right with no other abnormal neurological findings in
either leg. There was no obvious swelling, atrophy, deformity or other objective evidence of a
significant musculoskeletal injury in either leg, and midthigh, midcalf, maximum ankle, and
midfoot circumferences were equal bilaterally. Dr. McCaskill reported that appellant showed an
inconsistent tremor of her left foot during examination.
Dr. McCaskill diagnosed left leg pain, chronic, anatomic etiology undetermined (by
history); spondyogenic lumbosacral spine pain associated with right leg pain, chronic, anatomic
etiology undetermined (by history); and multiple nonphysiological findings. He noted that there
were no significant objective abnormal physical findings other than a relatively decreased right
infrapatellar reflex which did not explain appellant’s accepted left leg complaints, noting that
there was no significant atrophy in either leg and that she had multiple nonphysiologic findings.
Dr. McCaskill stated that previous imaging studies showed no abnormalities to explain the
diffuse, persistent, and severe nature of the patient’s complaints.
Dr. McCaskill recommended that, because the two electrodiagnostic studies were not in
agreement, a third study be completed. This was done on September 26, 2013 by Dr. Radie F.
Perry, a Board-certified physiatrist. The study demonstrated normal bilateral peroneal motor and
sensory nerve conduction, normal bilateral tibial conduction with no electrophysiologic evidence
of lumbosacral radiculopathy or plexopathy of the left lower extremity. In response to specific
OWCP questions, Dr. McCaskill advised that there were no significant objective abnormal
physical findings with regard to the accepted left leg conditions and apparent multiple
nonphysiologic findings. He found no credible objective residuals that could reasonably be
attributed to the March 9, 2004 employment injury.

4

In regard to lumbar radiculitis, appellant reported that her lower back and right lower
extremity symptoms began spontaneously seven years after the accepted date of injury and
because Dr. McCaskill found no credible evidence of a significant ongoing left lower extremity
injury or any evidence of an injury to explain the persistence and magnitude of her complaints,
he found no basis to attribute the lower back, and right leg complaints to the March 9, 2004 work
injury. Dr. McCaskill concluded that there was no credible evidence that the accepted left leg
conditions would prevent her from returning to her regular work. He completed a work capacity
evaluation on September 28, 2013 in which he indicated that appellant could perform her usual
job for eight hours daily without restriction.
In a November 1, 2013 decision, OWCP denied appellant’s request to expand the claim
to include a lumbar condition. On November 19, 2013 appellant’s representative requested a
hearing. He also reiterated his request for an explanation of the selection of Dr. McCaskill as
referee physician, questioning the codes provided for the bypassed physicians. In November 20,
2013 correspondence, OWCP informed appellant’s representative of the procedures used to
select Dr. McCaskill and responded to his questions. Appellant’s representative requested
further explanation on November 29, 2013 to which OWCP explained the connection between
the bypassed physician and appellant’s case on December 2, 2013.
On November 25, 2013 OWCP proposed to terminate appellant’s compensation benefits
as the medical evidence established that she had no residuals or disability due to the employment
injury.6
Appellant’s representative disagreed with the proposed termination. He asserted that
Dr. McCaskill was improperly selected as the referee physician such that his opinion was not
entitled to special weight. Appellant submitted a July 24, 2013 report in which Dr. Jeffrey Fritz,
a Board-certified anesthesiologist, noted her history and her complaint of bilateral foot aching
and radiating low back pain with difficulty in prolonged walking and standing. Dr. Fritz advised
that she had significant weakness with both dorsiflexion and plantar flexion to resistance and an
antalgic gait with sensory loss along the peroneal distribution. He reviewed the October 16,
2009 left foot MRI scan study and November 2, 2009 electrodiagnostic study and concluded that
appellant had a chronic work-related foot injury with an altered gait affecting her lumbar spine.
Dr. Fritz recommended medication to control pain.
In a January 9, 2014 decision, OWCP finalized the termination of appellant’s wage-loss
and medical benefits, effective January 23, 2014, on the grounds that that she had no residuals of
the accepted conditions. It found that the weight of the evidence rested with the opinion of
Dr. McCaskill, the impartial specialist. Appellant’s representative timely requested a hearing.
He submitted a January 16, 2014 left foot MRI scan that showed a small synovial/ganglion cyst
between the base of the third and fourth metatarsals and was otherwise normal.
At the hearing, held on February 20, 2014, appellant’s representative reiterated that
Dr. McCaskill was improperly selected as referee physician. He again disputed the bypass codes
of Dr. Woody, based on location, and Drs. Hood, Holladay, McKeever, and Steele, based on
6

OWCP initially issued a November 4, 2013 decision terminating appellant’s medical benefits.
November 22, 2013, it informed her that this decision was issued in error.

5

On

conflict. Appellant testified regarding her medical condition and the hearing representative
explained the type evidence needed to establish a consequential back condition. The record was
held open for 30 days.
In e-mail correspondence dated December 2, 2013 and March 14, 2014, OWCP
explained to appellant that Dr. Hood and Dr. Holladay were in association with Dr. Mauldin in a
medical group called Mean Corpuscular Hemoglobin Concentration (MCHC), formerly called
Occupational Safety Health (OHS), and that Drs. McKeever and Steele were in a network called
Churchill, in association with Dr. Tracy Adams who had previously seen appellant.
By decision dated April 14, 2014, an OWCP hearing representative found that OWCP
properly denied appellant’s request to participate in the selection of the referee physician, that
she had not established a consequential lumbar condition, and that OWCP properly terminated
appellant’s medical and wage-loss benefits. She affirmed OWCP decisions dated November 1,
2013 and January 9, 2014.
LEGAL PRECEDENT -- ISSUE 1
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.7 The implementing regulations
states that, if a conflict exists between the medical opinion of the employee’s physician and the
medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall
appoint a third physician to make an examination. This is called a referee examination, and
OWCP will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.8
Congress did not address the manner by which an impartial medical referee was to be
selected.9 Under OWCP’s procedures, the Director of OWCP has exercised discretion to
implement practices pertaining to the selection of the impartial medical referee. Unlike second
opinion physicians, the selection of referee physicians is made from a strict rotational system.10
OWCP will select a physician who is qualified in the appropriate medical specialty and who has
no prior connection with the case.11
In turn, the Director has delegated authority to each district office for selection of the
referee physician by use of the MMA within the intergrade federal employee’s compensation
system (iFECS).12 This application contains the names of physicians who are Board-certified in
7

5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008).

8

20 C.F.R. § 10.321.

9

J.S., Docket No. 12-1343 (issued April 22, 2013).

10

Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter
3.500.4.b (July 2011).
11

Id. at Chapter 3.500.4.b(1).

12

Id. at Chapter 3.500.4.b(6).

6

over 30 medical specialties for use as referees within appropriate geographical areas.13 The
MMA in iFECS replaces the prior Physician Directory System (PDS) method of appointment.14
It provides for a rotation among physicians from the American Board of Medical Specialties,
including the medical boards of the American Medical Association and those physicians Boardcertified with the American Osteopathic Association.15
Under the procedure manual, a claimant may request to participate in the selection of the
referee physician or may object to the physician selected under the MMA. In such instances, the
claimant must provide valid reasons for any request or objection to the claims examiner.16 The
right of the claimant to participate in the selection of the medical referee is not unqualified. He
or she must provide a valid reason, not limited to: (a) documented bias by the selected
physician; (b) documented unprofessional conduct by the selected physician; (c) a female
claimant who requests a female physician when gynecological examination is required; or (d) a
claimant with a medically documented inability to travel to the arranged appointment when an
appropriate specialist may be located closer.17 When the reasons are considered acceptable, the
claimant will be provided with a list of three specialists available through the MMA.18 If the
reason offered is determined to be invalid, a formal denial will issue if requested.19
Selection of the referee physician is made through use of the application by a medical
scheduler in the district office. The claims examiner may not dictate the physician to serve as the
referee examiner.20 The medical scheduler imputes the claim number into the application, from
which the claimant’s home zip code is loaded.21 The scheduler chooses the type of examination
to be performed (second opinion or impartial referee) and the applicable medical specialty. The
next physician in the roster appears on the screen and remains until an appointment is scheduled
or the physician is bypassed.22 If the physician agrees to the appointment, the date and time are
entered into the application. Upon entry of the appointment information, the application prompts
the medical scheduler to prepare a Form ME023 appointment notification report for imaging into

13

Id. at Chapter 3.500.4.b(6)(a).

14

Id. at Chapter 3.500.5.

15

Id. at Chapter 3.500.5.a.

16

Id. at Chapter 3.500.4.f.

17

Id. at Chapter 3.500.4.f(1).

18

Id. at Chapter 3.500.4.f(1)(e)(2).

19

Id. at Chapter 3.500.4(f)(1)(e)(3).

20

Id. at Chapter 3.500.5.b.

21

Id. at Chapter 3.500.5.c.

22

Id. Upon entry of a bypass code, the MMA will present the next physician based on specialty and zip code.

7

the case file.23 Once an appointment with a medical referee is scheduled the claimant and any
authorized representative is to be notified.24
ANALYSIS -- ISSUE 1
The Board finds that OWCP did not abuse its discretion in denying appellant’s request to
participate in the selection of the referee physician. As noted, a claimant may request to
participate in the selection of the referee physician or may object to the physician selected under
the MMA. In such instances, the he or she must provide valid reasons for any request or
objection to the claims examiner.25 The right of the claimant to participate in selecting the
medical referee is not unqualified. He or she must provide a valid reason such as documented
bias or documented unprofessional conduct by the selected physician.26
Appellant’s
representative asserted that Dr. McCaskill demonstrated unprofessional conduct as documented
by a 1992 public reprimand for failure to practice medicine in an acceptable manner by failing to
provide adequate testing follow up and a fine of $1,000.00 for failure to timely release medical
records in August 2009. The facts in this case are similar to a Board decision in Jewell F.
Milby.27 In the Milby case the claimant submitted several documents from the Kentucky Board
of Medical Licensure which indicated that in a February 20, 1992 order of probation, the
Kentucky Board found that in prescribing a controversial pain medication, the physician in
question “although by no means intentionally or through gross negligence,” had “deviated
slightly from the standard of practice required by the Kentucky Medical Practice Act.” In Milby
the Board found that, as here, the record contained no evidence that the physician had been
suspended from medical practice and determined that the physician had been properly selected as
an impartial medical specialist.28 The Board concludes that in the case at hand, as in Milby, the
evidence of claimed unprofessional conduct by Dr. McCaskill does not rise to the level
contemplated by OWCP’s procedures described above.
The Board also finds that Dr. McCaskill was properly selected to perform the impartial
evaluation. The record indicates that OWCP followed the procedures established by the MMA
in selecting Dr. McCaskill. Appellant specifically questioned the validity of bypassing
Dr. Woody, based on code L or location, and Drs. Hood, Holladay, McKeever, and Steele, based
on code C or conflict. The record includes a screen shot and Form ME023 indicating that the
Dr. McCaskill was selected. Attached was a log of bypassed physicians, including bypass codes
and explanations of why each physician was bypassed, and a certification that the MMA had
been used to select the referee physician. The bypass log indicated that Dr. Woody no longer
travelled to the location listed. In e-mail correspondence dated December 2, 2013 and March 14,
23

Id. at Chapter 3.500.5.g.

24

Id. at Chapter 3.500.4.d.

25

Id. at Chapter 3.500.4.f.

26

Id. at Chapter 3.500.4.f(1).

27

Docket No. 01-1763 (issued April 24, 2002).

28

Id.; see also P.M., Docket No. 11-2132 (issued August 2, 2012).

8

2014, OWCP explained that Drs. Hood and Holladay were in association with Dr. Mauldin (the
second opinion physician) in a medical group called MCHC, formerly called OHS, and that Drs.
McKeever and Steele were in a network called Churchill, in association with Dr. Tracy Adams
who had previously seen appellant as a treating physician.
As noted by the Board in the case Ronald Santos,29 a physician serving as an impartial
medical specialist should be one who is wholly free to make a completely independent
evaluation and judgment, untrammeled by a conclusion rendered on a prior examination.30 An
opinion of an associate of a physician who has previously rendered an opinion on the claim
cannot be considered completely independent and therefore his report cannot be used by OWCP
to resolve the conflict in the medical evidence.31 The importance of safeguarding the
independence of impartial medical specialists is also recognized in OWCP procedures which
indicate that it will select a physician who is qualified in the appropriate specialty and who has
had no prior connection with the case or is an associate of another physician previously
connected with the case.32
While it is unclear in this case to what degree the members of the medical management
groups MCHC and Churchill are associated, appellant has provided no evidence to support his
proposition that these groups are merely schedulers. The Board finds that OWCP provided
adequate documentation to establish that it properly utilized its MMA system in selecting
Dr. McCaskill.33
LEGAL PRECEDENT -- ISSUE 2
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.34 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 employee.35 Neither the mere 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.36

29

53 ECAB 742 (2002).

30

Id.; see also Raymond E. Heathcock, 32 ECAB 2004 (1981).

31

Id.

32

Supra note 10 at Chapter 3.500.4.b.

33

See B.H., Docket No. 14-423 (issued June 26, 2014).

34

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

35

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

36

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

9

Once the primary injury is causally connected with the employment, Larson notes that a
subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is
compensable if it is the direct and natural result of a compensable primary injury.37
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.38 The implementing regulations
of that section further provide that, if a conflict exists between the medical opinion of the
employee’s physician and the medical opinion of either a second opinion physician or an OWCP
medical adviser, OWCP shall appoint a third physician to make an examination. This is called a
referee examination, and OWCP will select a physician who is qualified in the appropriate
specialty and who has no prior connection with the case.39 When there exist opposing medical
reports of virtually equal weight and rationale and the case is referred to an impartial medical
specialist for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently
well rationalized and based upon a proper factual background, must be given special weight.40
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met her burden of proof to establish lumbar
radiculopathy was caused or aggravated by or was a consequence of the March 9, 2004
employment injury. In July 2013, OWCP determined that a conflict in medical opinion had been
created between the opinions of Dr. Shah, an attending physician, and Dr. Mauldin, an OWCP
referral physician, regarding the accepted ankle condition should be expanded to include a
lumbar spine condition a consequential injury due to the March 9, 2004 injury. On July 17, 2013
it referred her to Dr. McCaskill for an impartial evaluation.
The Board finds that Dr. McCaskill’s opinion is sufficiently rationalized to merit the
special weight of a referee medical examiner.41 In a comprehensive report dated August 27,
2013, Dr. McCaskill noted appellant’s complaints of significant back pain with minimum touch
and her report that the back pain began spontaneously seven years after the March 2004
employment injury. Seated straight leg raising caused no obvious discomfort, and other than a
decreased right infrapatellar reflex, there were no significant objective abnormal physical
findings.
Dr. McCaskill reported Dr. Perry’s electrodiagnostic test findings of no
electrophysiologic evidence of lumbosacral radiculopathy. He concluded that appellant had no
credible objective residuals that could reasonably be attributed to the March 9, 2004 work injury.
In regard to lumbar radiculitis, Dr. McCaskill indicated that, because he found no credible
evidence of a significant ongoing left leg injury or any evidence of an injury to explain the
persistence and magnitude of her back complaints, he found no basis to attribute the lower back
37

Larson, The Law of Workers’ Compensation § 1300; see Charles W. Downey, 54 ECAB 421 (2003).

38

See supra note 6.

39

See supra note 7.

40

V.G., 59 ECAB 635 (2008).

41

Id.

10

and right leg complaints to the March 9, 2004 work injury and there was no credible evidence
that the accepted left leg conditions would prevent her from returning to her regular work. He
completed a work capacity evaluation on September 28, 2013 in which he indicated that
appellant could perform her usual job for eight hours daily without restriction.
The additional medical evidence subsequently submitted is insufficient to overcome the
weight accorded Dr. McCaskill as impartial medical specialist regarding the issue of whether
appellant had a consequential lumbar condition. While Dr. Fritz indicated in a July 24, 2013
report that she had a chronic work-related foot injury, which altered her gait and affected her
lumbar spine, he did not provide a reasoned explanation as to how the March 9, 2004
employment injury caused a low back condition. Without a detailed medical report describing
the employment incident in detail and noting, physiologically, how and why appellant sustained
a lumbar condition as a result of the March 9, 2004 employment injury, Dr. Fritz’ opinion is not
sufficient to meet appellant’s burden of proof.42 Appellant also submitted a January 16, 2014
MRI scan study of the left foot, not relevant to the issue of whether she had a lumbar condition.
The Board therefore concludes that Dr. McCaskill’s opinion that appellant did not have a
lumbar condition causally related to the March 9, 2004 employment injury is entitled to the
special weight accorded an impartial medical examiner.43 The additional medical evidence
submitted is insufficient to overcome the weight accorded him as an impartial medical specialist
regarding this issue. Appellant therefore did not meet her burden of proof to establish that the
claimed lumbar radiculopathy was causally related to the March 9, 2004 employment injury.
LEGAL PRECEDENT -- ISSUE 3
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the
employment.44 OWCP’s burden of proof to terminate compensation includes the necessity of
furnishing rationalized medical opinion evidence based on a proper factual and medical
background.45
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability. To terminate authorization for medical treatment, OWCP must
establish that a claimant no longer has residuals of an employment-related condition that require
further medical treatment.46

42

See M.L., Docket No. 14-1128 (issued September 17, 2014).

43

See Sharyn D. Bannick, 54 ECAB 537 (2003).

44

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

45

Id.

46

T.P., 58 ECAB 524 (2007).

11

ANALYSIS -- ISSUE 3
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective January 13, 2014. The Board initially notes that
Dr. McCaskill was not an impartial examiner on the issue of termination and his opinion
therefore is not entitled to the special weight of a referee. Nonetheless, the Board finds that the
weight of the medical evidence, based on the opinions of Dr. Mauldin and Dr. McCaskill,
establishes that appellant had no continuing employment-related residuals.
In his April 23, 2013 report, Dr. Mauldin provided extensive examination findings,
noting no evidence of skin discoloration or edema and normal distracted passive range of motion
of the left lower extremity. He indicated that there were no objective findings of any significant
left foot structural injury or to support her pain complaints. He recommended a FCE that was
done on April 29, 2013 and indicated that appellant was self-limiting with numerous activities.
On May 14, 2013 Dr. Mauldin advised that he had reviewed FCE and concluded that, based on
his examination and FCE results, she could return to full duty.
On August 27, 2013 Dr. McCaskill also provided extensive physical examination
findings. The only abnormal finding was a decreased right infrapatellar reflex, and the accepted
conditions were of the left leg. With regard to the left lower extremity condition, Dr. McCaskill
advised that appellant had apparent multiple nonphysiologic findings and no credible objective
residuals attributed to the March 9, 2004 employment injury. He concluded that she could return
to her usual job without restriction.
Dr. Shah, an attending physiatrist, indicated on January 29, 2013 that appellant
complained of severe left foot pain and weakness and that examination demonstrated significant
weakness with dorsal and plantar flexion and sensory loss along the peroneal distribution. On
July 24, 2013 Dr. Fritz reported similar findings. The record, however, includes a September 26,
2013 electrodiagnostic study demonstrating normal bilateral peroneal motor and sensory nerve
conduction, normal bilateral tibial conduction and no evidence of lumbosacral radiculopathy or
plexopathy of the left lower extremity. A January 16, 2014 MRI scan study of the left foot
merely demonstrated small synovial/ganglion cyst. Based on these negative objective studies,
the Board finds the opinions of Dr. Shah and Dr. Fritz of diminished probative value regarding
findings or weakness in dorsiflexion and plantar flexion and sensory loss along the peroneal
distribution and concludes that the weight of the medical evidence rests with the opinions of Drs.
Mauldin and McCaskill.
The weight of the medical evidence is determined by its reliability, its probative value, its
convincing quality, the care of analysis manifested and the medical rationale expressed in
support of the physician’s opinion.47 The Board finds that the weight of the medical evidence
regarding whether appellant continued to have residuals of the accepted conditions on or after
January 13, 2014 rests with the opinions of Dr. Mauldin and Dr. McCaskill who provided
reasoned explanations in their reports dated April 23 and August 27, 2013. Thus, OWCP met its

47

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

12

burden of proof in finding that the March 9, 2004 employment injury resolved on January 13,
2014 and properly terminated appellant’s wage-loss compensation and medical benefits.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly selected the impartial medical specialist, that
appellant failed to meet her burden of proof to establish that her lumbar condition was a
consequence of a March 9, 2004 employment injury, and that OWCP met its burden of proof to
terminate her compensation benefits effective January 13, 2014.
ORDER
IT IS HEREBY ORDERED THAT the April 14 and January 9, 2014 decisions of the
Office of Workers’ Compensation Programs are affirmed.48
Issued: December 2, 2015
Washington, DC

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

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

48

James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective November 16, 2015.

13


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Indianapolis, IN, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-1244
Issued: March 4, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 4, 2018 appellant filed a timely appeal from a December 15, 2017 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
ISSUE
The issue is whether appellant has met her burden of proof to modify her April 25, 1996
loss of wage-earning capacity (LWEC) determination.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the December 15, 2017 decision, OWCP received additional evidence. Appellant
also submitted additional evidence on appeal. However, the Board’s Rules of Procedure provides: “The Board’s
review of a case is limited to the evidence in the case record that was before OWCP at the time of its final decision.
Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1).
Thus, the Board is precluded from reviewing this additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as
follows.
On June 1, 1992 appellant, then a 39-year-old part-time mail handler, filed a traumatic
injury claim (Form CA-1) alleging that on May 27, 1992 she sustained back and leg injuries when
she was struck by a cart while in the performance of duty. OWCP accepted the claim for low back
strain, herniated L4-5 disc, enthesopathy of the hip region, and sciatica. By decision dated
April 25, 1996, it determined that appellant’s actual earnings in a part-time modified mail handler
position, effective January 20, 1996, fairly and reasonably represented her wage-earning capacity.
OWCP reduced appellant’s compensation to reflect her LWEC.4
Appellant continued to receive compensation based on the April 25, 1996 LWEC until
January 29, 2009 when she underwent an authorized lumbar surgery. By letter dated February 2,
2009, OWCP informed her that she was entitled to temporary total disability, effective
January 29, 2009. It placed her on the periodic compensation rolls at a total disability rate effective
January 30, 2009, and continues to receive total disability compensation.
In correspondence dated February 18, 2013, appellant maintained that she had not been
properly compensated from 2000 to 2007.
By decision dated June 18, 2013, OWCP found that appellant’s February 18, 2013
correspondence constituted an untimely application for reconsideration which failed to
demonstrate clear evidence of error. On December 2, 2013 appellant appealed to the Board. By
decision dated May 2, 2014, the Board set aside OWCP’s June 18, 2013 decision, finding that
appellant had requested modification of her April 25, 1996 LWEC determination for the period
prior to January 30, 2009.5 The case was remanded to OWCP for a proper merit review on the
issue of modification of the LWEC determination.
By decision dated August 7, 2014, OWCP denied modification of the April 25, 1996
LWEC determination. It found that the evidence of record failed to establish that modification
was warranted.
On July 17, 2015 appellant again requested modification of the April 25, 1996 LWEC
determination. By decision dated May 4, 2016, OWCP denied modification of the April 25, 1996

3

Docket No. 14-0348 (issued May 2, 2014); Docket No. 16-1858 (issued February 8, 2017).

4
By decision dated July 9, 1996, OWCP denied appellant’s claim for a recurrence of disability commencing
March 31, 1996. By decision dated December 31, 1998, it denied her claim for a recurrence of disability commencing
May 16, 1998. By decision dated May 19, 1999, OWCP denied modification of the December 31, 1998 decision. By
decision dated February 25, 2000, it denied reconsideration of the merits of the claim. The record also contains an
August 26, 2008 decision denying a request for hearing before an OWCP hearing representative.
5

Supra note 3.

2

LWEC determination, finding that the medical evidence of record was insufficient to warrant
modification based on a material change in the employment-related condition.
Appellant again appealed to the Board. By decision dated February 8, 2017, the Board
reviewed the medical evidence of record dated from May 9, 1996 to January 19, 2009 and affirmed
OWCP’s decision.6
On December 19, 2016 OWCP referred her to Dr. Norman Mindrebo, a Board-certified
orthopedic surgeon, for a second opinion evaluation regarding her continuing disability status. By
report dated January 19, 2017, Dr. Mindrebo noted his review of the medical record, including the
statement of accepted facts. He reported that appellant related a very complicated, “colorful
medical history” with significant emotional overlay and probable symptom magnification.
Dr. Mindrebo noted the history of injury and that appellant reported that she had several other
work-related injuries, had been in a car accident, did not get better after the 2009 lumbar surgery,
and had cervical spine, bilateral shoulder, and left knee surgical procedures that were not due to
the 1992 employment injury. He advised that appellant had progressive degenerative disc changes
and diagnosed failed surgery of the lumbar spine and both shoulders and noted diffuse chronic
pain in her upper and lower extremities, buttock, low back, and neck. Dr. Mindrebo noted the
accepted conditions and advised that appellant would never return to gainful employment due to
her chronic pain, but needed no further treatment due to the 1992 employment injury. In a
supplemental report dated February 23, 2017, he indicated that there were no objective findings
on appellant’s physical examination that would justify continued disability from work due to the
accepted lumbar conditions.
In a February 6, 2017 report, Dr. Karen H. Adkins, a Board-certified internist, advised that
appellant had multiple orthopedic surgical procedures and had ongoing joint and low back pain
that required physical therapy and massage therapy.
In a March 1, 2017 report, Dr. Nilda Durany, a family physician, noted that appellant was
permanently disabled due to a May 27, 1992 employment injury. She provided physical
examination findings and diagnosed “lumbar disc, sprain lumbosacral, enthesopathy right hip, and
sciatica.” Dr. Durany opined that all diagnosed conditions were a direct result of the May 27, 1992
employment injury.
OWCP determined that a conflict in medical evidence had been created between
appellant’s treating physician and Dr. Mindrebo regarding whether appellant continued to have
residuals of the May 27, 1992 employment injury. In April 2017, it referred her, together with a
statement of accepted facts, medical records, and a series of questions to Dr. Neil H. Levine, a
Board-certified orthopedic surgeon, for an impartial medical evaluation. In a May 23, 2017 report,
Dr. Levine described his complete review of the medical record beginning in 1992. He advised
that, based on his clinical examination, appellant did not have objective findings consistent with
lumbar radiculopathy and that, while she was totally disabled, the disability was not a result of the
May 27, 1992 employment injury, but instead was due to a progression of her preexisting

6

Id.

3

degenerative disease. Dr. Levine concluded that appellant had no residuals of the work-related
conditions.
On September 26, 2017 appellant again requested modification of the April 25, 1996
LWEC determination. She asserted that her claim should be considered a recurrence of disability
rather than modification of her LWEC determination.
By decision dated December 15, 2017, OWCP reviewed appellant’s September 26, 2017
request for modification and the evidence submitted since its May 4, 2016 decision. It found that,
as an LWEC was in place, compensation based on a recurrence of disability was not appropriate.
OWCP further found that the medical evidence submitted was insufficient to modify the existing
LWEC determination because none of the physicians discussed appellant’s work capabilities for
the period April 25, 1996 to January 29, 2009. It therefore denied modification of the April 25,
1996 LWEC determination.
LEGAL PRECEDENT
An injured employee who is either unable to return to the position held at the time of injury
or unable to earn equivalent wages, but who is not totally disabled for all gainful employment, is
entitled to compensation computed on loss of wage-earning capacity.7 An LWEC determination
is a finding that a specific amount of earnings, either actual earnings or earnings from a
selected/constructed position, represents a claimant’s ability to earn wages.8 Generally, an
employee’s actual earnings best reflect his or her wage-earning capacity.9 Absent evidence that
actual earnings do not fairly and reasonably represent the employee’s wage-earning capacity, such
earnings must be accepted as representative of the individual’s wage-earning capacity.10
OWCP procedures provide that if an injured employee has returned to alternative
employment in the private sector, the claims examiner should consider the number of hours
actually being worked in relation to the number the claimant is medically capable of working and
review both the nature of the occupation and the actual wages earned in the new position to
determine whether the earnings fairly and reasonably represent the wage-earning capacity.11
Compensation payments are based on these determinations, and OWCP’s finding remains
undisturbed until properly modified.12 Modification of an LWEC determination is unwarranted
unless there is a material change in the nature and extent of the injury-related condition, the

7

5 U.S.C. § 8115(a); 20 C.F.R. §§ 10.402, 10.403; see T.H., Docket No. 18-0704 (issued September 6, 2018).

8

See W.G., Docket No. 18-0374 (issued August 28, 2018).

9

T.H., supra note 7.

10

Id.

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on Actual
Earnings, Chapter 2.815.5d (June 2015).
12

J.H., Docket No. 18-0535 (issued December 31, 2018); Katherine T. Kreger, 55 ECAB 633, 635 (2004).

4

employee has been retrained or otherwise vocationally rehabilitated, or the original determination
was erroneous.13 The burden of proof is on the party seeking modification.14
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.15 Rationalized medical evidence is evidence which
includes a physician’s rationalized medical opinion on the issue of whether there is causal
relationship between the claimant’s diagnosed condition and the employment injury. 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, which
explains the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.16
ANALYSIS
The Board finds that appellant has not met her burden of proof to modify her April 25,
1996 LWEC determination.17
Appellant asserts on appeal that she sustained a recurrence of disability because her
accepted condition materially worsened. She did not assert that the April 25, 1996 LWEC
determination was erroneous or indicate that she had been retrained or otherwise vocationally
rehabilitated.18
In its February 8, 2017 decision, the Board reviewed all evidence submitted prior to
OWCP’s May 4, 2016 decision. The Board’s review of the previously submitted medical evidence
of record is res judicata absent any further review by OWCP under section 8128(a) and; therefore,
the prior evidence need not be addressed again in this decision.19
In the December 15, 2017 decision on appeal, OWCP reviewed the evidence submitted
subsequent to its May 4, 2016 decision. This included a January 19, 2017 report from
Dr. Mindrebo, an OWCP referral physician, a February 6, 2017 report from Dr. Adkins, an
13

20 C.F.R. § 10.511; see J.H., id; Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of
Wage-Earning Capacity Decisions, Chapter 2.1501.3 (June 2013).
14

J.A., Docket No. 17-0236 (issued July 17, 2018); Sue A. Sedgwick, 45 ECAB 211 (1993).

15

S.C., Docket No. 17-1587 (issued January 2, 2019).

16

Id.

17

5 U.S.C. § 8114(d).

18

Appellant also asserts on appeal that she should be compensated for a 1988 unreported employment injury and
is entitled to a schedule award. However, the Board’s jurisdiction is limited to reviewing final adverse decisions of
OWCP issued under FECA within 180 days from the date of issuance. 20 C.F.R. §§ 501.2(c), 501.3(a) & (e); see
C.H., Docket No. 18-0772 (issued November 14, 2018); J.B., Docket No. 09-2191 (issued May 14, 2010). OWCP
has not issued a final adverse decision within the Board’s jurisdiction on these issues.
19
E.C., Docket No. 17-1765 (issued January 24, 2018); E.L., Docket No. 16-0635 (issued November 7, 2016). See
A.T., Docket No. 16-0738 (issued May 19, 2016).

5

attending internist, a March 1, 2017 report from Dr. Durany, an attending family physician, and a
May 23, 2017 report from Dr. Levine, who provided an impartial medical evaluation with regard
to whether appellant had current residuals of the conditions caused by the May 27, 1992
employment injury. None of these physicians contemporaneously discussed appellant’s work
capability during the period from April 25, 1996 to January 29, 2009, which is the disputed issue
in this case. While Dr. Durany opined that all diagnosed conditions were a direct result of the
May 27, 1992 employment injury, and noted that appellant was totally disabled, appellant has been
on total disability compensation since 2009.
It is appellant’s burden of proof to establish that modification of the April 25, 1996 LWEC
determination was warranted prior to January 30, 2009.20 The Board finds that appellant has not
met her burden of proof to submit a rationalized medical opinion, based on a complete background,
establishing a material change in her employment-related condition, which prevented her from
performing the light-duty mail handler position. Appellant, therefore, did not meet her burden of
proof in this case.
Appellant may request modification of the LWEC determination, supported by new
evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that appellant has not met her burden of proof to modify her April 25,
1996 LWEC determination.

20

J.A., supra note 14.

6

ORDER
IT IS HEREBY ORDERED THAT the December 15, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 4, 2019
Washington, DC

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

Alec J. Koromilas, 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
__________________________________________
K.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Staten Island, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-655
Issued: January 21, 2011

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 January 11, 2010 appellant filed a timely appeal from a July 20, 2009 merit decision
of the Office of Workers’ Compensation Programs. 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 sustained a recurrence of disability on October 2, 2004
causally related to her accepted cervical condition.
FACTUAL HISTORY
This case was previously before the Board. Appellant’s claim was accepted for a cervical
strain sustained on September 30, 1999. She returned to work at limited duty as a modified letter
carrier. Appellant’s position was modified on several occasions to conform to her work
restrictions.
On October 13, 2004 appellant filed a (Form CA-2a) claim alleging that she sustained a
recurrence of disability commencing October 2, 2004 causally related to her accepted cervical

condition. In reports dated November 8 and December 6, 2004, Dr. Stephen A. Kulick, Boardcertified in psychiatry and neurology, advised that she underwent magnetic resonance imaging
(MRI) scans of her cervical spine and upper extremities. He recommended physical therapy and
that she remain off work until her condition was reassessed.
In a January 14, 2005 decision, the Office denied appellant’s recurrence claim. By
decision dated April 3, 2006, it denied modification of the January 14, 2005 Office decision. In a
March 27, 2007 decision,1 the Board affirmed the Office’s April 3, 2006 decision. The facts of
this case as set forth in the Board’s March 27, 2007 decision are incorporated by reference.
Appellant sought reconsideration on March 5, 2008, contending that the Office had erred
by accepted only a cervical strain as a result of the September 30, 1999 injury. In a February 14,
2008 report, Dr. Kulick noted that he first treated her on November 8, 2004 and that he obtained
a history of the 1999 injury. Appellant complained of radicular and cervical pain and was
examined on February 1, 2005, at this time she had neck pain radiating into the upper
extremities, left more than right, with numbness and tingling in the upper extremities, left more
than right and occasional weakness in the left upper extremity. Dr. Kulick stated that a
March 21, 2005 cervical MRI scan showed a left C4-5 paracentral disc herniation with moderate
impression on the left central aspect of the thecal sac and C5-6 disc herniation with a ventral
impression upon the thecal sac, in addition to C6-7 disc herniation impinging the thecal sac and
straightening of the cervical spine secondary to muscle spasm. On March 30, 2005 he reviewed
cervical films from 1999 and stated that they confirmed a cervical C4-5 disc herniation; he also
reviewed the 2004 cervical MRI scan, which revealed C4-5, C5-6, C6-7 disc protrusions.
Dr. Kulick advised that as of July 27, 2005 appellant was no longer able to deliver mail
due to multiple disc protrusions. He recommended treatment by epidural steroid injections; but
appellant deferred. Dr. Kulick stated that her condition remained essentially unchanged
throughout examinations conducted periodically from October 21, 2005 through
November 14, 2007. He concluded that appellant’s C4-5, C5-6 and C6-7 disc herniations and
her muscular pain and spasm were causally related to the September 30, 1999 employment injury
and that she had an exacerbation of these preexisting symptoms in October 2004. Dr. Kulick
asserted that she was totally disabled from her usual job as a letter carrier and had reached
maximal benefit from physical therapy and medication. Given the multiplicity of her cervical
disc herniations, surgical intervention would involve an extensive laminectomy, with anterior
cervical disc decompression and fusion, plates and rods and screws, to which appellant did not
want to subject herself.
In a July 20, 2009 decision, the Office denied appellant’s claim, finding that she failed to
establish that her disability as of October 2, 2004 was caused or aggravated by the accepted
cervical condition.

1

Docket No. 06-1361 (issued March 27, 2007).

2

LEGAL PRECEDENT
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that light duty can be performed, the employee has the burden to establish by the
weight of the reliable, probative and substantial evidence a recurrence of disability. As part of
this burden, the employee must show either a change in the nature and extent of the injuryrelated condition, or a change in the nature and extent of the light-duty requirements.2
Causal relationship is a medical issue to be established by rationalized medical opinion
evidence from a physician.3 The opinion of the physician must be based on a complete and
accurate factual and medical history, one of reasonable medical certainty, and support by
rationale explaining how the specific employment factor identified caused or contributed to the
claimed condition or disability.4
ANALYSIS
In September 1999, appellant sustained injury accepted by the Office for a cervical strain.
The record establishes that she returned to modified duty under medical restrictions that were
periodically revised by her attending physician. Appellant stopped work on October 5, 2004,
claiming a recurrence of total disability as of October 2, 2004 due to her accepted injury.
Appellant has not established a change in the nature and extent of her injury-related
condition. The medical evidence of record is not sufficient to establish that her accepted cervical
strain caused or contributed to her claimed disability as of October 2, 2004. For this reason,
appellant failed to establish a recurrence of disability as a result of her accepted injury.
The February 14, 2008 report of Dr. Kulick provided background on his treatment of
appellant since November 8, 2004. Dr. Kulick diagnosed cervical disc herniations at C4-C5-C6
and C7 for which appellant was totally disabled for work. He related that diagnostic testing from
1999 listed an impression of a herniated cervical disc at C4-5, for which she receive physical
therapy. With regards to her disability commencing October 2004, Dr. Kulick noted that a
month prior to treatment, appellant “developed recurrence of symptoms of neck pain radiation
into the upper extremities and weakness in the left upper extremity as well as numbness and
tingling in both upper extremities.” He advised that she was unable to work. Dr. Kulick stated
that a March 21, 2005 cervical MRI scan showed a left C4-5 paracentral disc herniation, a C5-6
disc herniation and a C6-7 disc herniation impinging the thecal sac and straightening of the
cervical spine secondary to muscle spasm. He also stated that MRI scan results from 1999 and
2004 revealed C4-5, C5-6 and C6-7 disc protrusions.

2

Terry Hedman, 38 ECAB 222 (1986).

3

See Larry D. Dunkin, 56 ECAB 220 (2004).

4

See Donald W. Wenzel, 56 ECAB 390 (2005).

3

The Board notes that Dr. Kulick did not describe the nature of the modified-duty work
performed by appellant from September 1999 to October, 2004 before she stopped work.
Dr. Kulick did not adequately explain why a cervical sprain or the condition accepted in this case
was sufficient to cause appellant to become disabled, as alleged; or how a muscle tissue injury
would exacerbate or contribute to the diagnosed herniations of the cervical spine. The
relationships described by Dr. Kulick focused primarily on the similarity of the symptoms
experienced by appellant in 1999 to those for which he treated her in 2004.
Causal relationship must be established by rationalized medical opinion evidence.
Dr. Kulick’s February 14, 2008 report does not adequately explain how the nature of appellant’s
accepted condition materially changed or cause disability as of October 2, 2004. His report is
somewhat speculative on causal relationship as he listed an impression relating the cervical disc
conditions to the 1999 injury and an exacerbation of her preexisting symptoms in 2004.
Dr. Kulick report is not sufficient to establish a change in the nature and extent of the injuryrelated condition.5
The Board finds that the evidence also fails to establish that there was a change in the
nature and extent of appellant’s limited-duty assignments such that she was no longer physically
able to perform the requirements of her modified-duty job. Following the 1999 injury, appellant
returned to modified duty as of October 1, 1999 with restrictions related to her cervical
condition. She did not submit sufficient factual evidence to establish that the modified job
exceeded her work restrictions.
On appeal, counsel contends that the Office should accept those conditions diagnosed
beyond the cervical strain; as noted, however, it is appellant’s burden of proof to establish causal
relation for conditions not accepted as employment related.
CONCLUSION
The Board finds that appellant did not establish a recurrence of disability commencing
October 2, 2004 causally related to her accepted cervical strain.

5

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

4

ORDER
IT IS HEREBY ORDERED THAT the July 20, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 21, 2011
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