United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.A., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
ACQUISITION SUPPORT CENTER,
Redstone, AL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Davis L. Middlemas, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-52
Issued: January 8, 2013

Case Submitted on the Record

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

JURISDICTION
On October 10, 2012 appellant, through his representative, filed a timely appeal from
decisions of the Office of Workers’ Compensation Programs (OWCP) dated June 20, 2011 and
April 19, 2012. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that he sustained a diagnosed cervical
condition on June 9, 2010.
FACTUAL HISTORY
On June 14, 2010 appellant, then a 46-year-old international program management
specialist, filed a traumatic injury claim (Form CA-1) alleging that he injured his neck on June 9,

1

5 U.S.C. § 8101 et seq.

2010 at work when an elevator malfunctioned. He stated that as the doors closed, the elevator
lurched or jumped up and down, causing him to snap his neck.
In a letter dated June 24, 2010, OWCP advised appellant that the evidence submitted was
insufficient to establish that he had sustained a traumatic injury in the performance of duty. It
requested additional information, including medical evidence providing a diagnosis and a
physician’s opinion explaining a causal relationship between the diagnosed condition and the
alleged June 9, 2010 incident.
In a June 24, 2010 report, Dr. Larry Parker, a Board-certified orthopedic surgeon,2 noted
that appellant recently experienced the onset of pain on the right side of his neck when he was
jolted by a malfunctioning elevator. Prior to the elevator episode, appellant had been doing well
following a cervical fusion from C4 down to T1. X-rays of the cervical spine showed a solid
arthrodesis with retained hardware at C4-5. Dr. Parker diagnosed cervicalgia, cervical radiculitis
and cervical degenerative disc disease and recommended a magnetic resonance imaging (MRI)
scan of the cervical spine. The record contains a report of a July 10, 2010 MRI scan of the
cervical spine. On July 13, 2010 Dr. Parker reviewed the results of the July 10, 2010 MRI scan,
which revealed spondylitic changes at C3-4 above the fusion mass. He recommended a
computerized tomography (CT) scan of the cervical spine in order to determine the integrity of
the most recent fusion at C4-5.
By decision dated August 4, 2010, OWCP denied appellant’s claim, finding the medical
evidence of record was insufficient to establish a causal relationship between his cervical
condition and the claimed June 9, 2010 incident.
On August 31, 2010 appellant, through his representative, requested an oral hearing.
Counsel contended that the June 9, 2010 incident aggravated his preexisting cervical condition.
In an August 10, 2010 narrative report, Dr. Parker stated that appellant had undergone
several cervical fusions, the most recent of which had occurred on March 2, 2009. He was
released to routine follow-up on March 25, 2010. Dr. Parker enclosed a copy of his notes from a
March 25, 2010 examination of appellant, which reportedly revealed that he had no complaints
and would not need additional x-rays on his next visit.3 On June 24, 2010 he examined appellant
following a June 9, 2010 whiplash incident at work, in which an elevator had lurched
significantly, jarring his neck. A July 23, 2010 CT scan showed a significant fracture through
the C4-5 fusion graft, which was not present prior to the June 9, 2010 incident. Dr. Parker
opined to a reasonable degree of medical certainty that the June 9, 2010 work injury had
aggravated appellant’s preexisting condition.4
The record contains an August 23, 2010 operative report describing a posterior cervical
fusion at C4-5 performed by Dr. Parker.
2

The June 24, 2010 report was written by Ron Philly, a physician’s assistant and cosigned by Dr. Parker.

3

Dr. Parker stated that he had enclosed a copy of the March 2, 2009 operative report and notes from appellant’s
March 25, 2010 visit. The record, however, does not reflect that he submitted a copy of the operative report or
March 25, 2010 notes along with his August 10, 2010 report.
4

The record contains a report of a July 23, 2010 CT myelogram.

2

By decision dated February 7, 2011, OWCP’s hearing representative vacated its
August 4, 2010 decision and remanded appellant’s claim for further development. The
representative instructed OWCP to prepare a statement of accepted facts (SOAF) identifying
appellant’s history of six prior neck surgeries from 2003 to 2009, describing the June 9, 2010
incident and appellant’s August 23, 2010 surgery. OWCP was to refer the medical file,
including a copy of appellant’s March 2009 surgical report, to a medical adviser for review and
an opinion as to whether appellant’s cervical condition was causally related to the June 9, 2010
employment incident or the need for surgery on August 23, 2010.
The record contains an April 11, 2011 SOAF reflecting that on June 9, 2010 appellant
experienced neck and arm pain when an elevator lurched up and down, causing his neck to snap.
The SOAF further indicated that Dr. Parker had treated him for this incident since June 24, 2010
and had performed surgeries on March 2, 2009 and August 23, 2010. OWCP forwarded the
SOAF to a medical adviser, with copies of the July 10, 2010 cervical MRI scan and July 23,
2010 cervical and CT myelogram to the medical adviser.
In an April 27, 2011 report, OWCP’s medical adviser diagnosed healed status
postoperative C4-7 spinal fusion from chronic degenerative disc disease of the cervical spine.
He opined that the established diagnosis was not causally related to the June 9, 2010 employment
incident which did not contribute to the August 23, 2010 surgery. The medical adviser stated
that on March 2, 2009 appellant required fusion at C4-5 for preexisting cervical disease.
Thereafter, he developed nonunion with lucency at the inferior end plate at C4, which is
compatible with incomplete fusion at this level, resulting in the need for his August 23, 2010
surgery.
By decision dated June 20, 2011, OWCP denied the claim, finding that the weight of the
evidence rested with the April 21, 2011 report of its medical adviser. The claims examiner found
that the evidence of record did not establish that appellant had sustained a medical condition
causally related to accepted work events.
On February 22, 2012 appellant, through his attorney, requested reconsideration. In a
January 10, 2012 report, Dr. Parker reiterated the history of injury and treatment. He stated that
by the time of his March 25, 2010 office visit, appellant had fully recovered from the cervical
fusion that had been performed on March 2, 2009. Appellant had no complaints with his neck
and his condition was so satisfactory that Dr. Parker did not feel the need to see him again for
another six months for a simple check on his medication. Dr. Parker was confident enough in
appellant’s satisfactory condition to opine that there would not even be the need for an x-ray on
his return.5 On June 24, 2010 appellant was treated for severe and significant pain following the
lurching elevator incident on June 9, 2010 that caused a jarring and whiplash movement in his
neck. The results of the cervical myelogram were significant and striking: there was a definite
and significant crack or lytic lesion through the C-4-5 fusion which had been performed in
March 2009. This crack or lytic lesion had not been present before the June 9, 2010 workplace
elevator accident. Dr. Parker opined to a reasonable degree of medical certainty, that the

5

Dr. Parker noted that the report from appellant’s March 25, 2009 office visit had been previously provided. The
record, however, does not reflect that a copy of that report had been received by OWCP by the date of Dr. Parker’s
January 10, 2012 report.

3

crack/lytic lesion present in the June 2010 myelogram and the need for surgery in August 2010
was caused by the elevator lurching incident on June 9, 2010.
By decision dated April 19, 2012, OWCP denied modification of the June 20, 2011
decision, finding that the evidence of record did not establish that appellant’s claimed medical
condition was caused by the established June 9, 2010 incident. The claims examiner stated that
there was no x-ray evidence showing that the crack at C4-5 was not present prior to the June 9,
2010 incident. Rather, based on the medical adviser’s report, he found that the medical evidence
established that his condition was more compatible with an incomplete fusion.
On appeal, counsel contends that the medical evidence is sufficient to establish
appellant’s claim. Specifically, he contends that Dr. Parker’s March 25, 2010 notes show that a
cervical spine x-ray was performed at the time of the March 25, 2010 office visit establishing
that the crack at C4-5 was not present at that time.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence,6 including that he or she
sustained an injury in the performance of duty and that any specific condition or disability for
work for which he or she claims compensation is causally related to that employment injury.7 As
part of his or her burden, the employee must submit rationalized medical opinion evidence based
on a complete factual and medical background showing causal relationship.8 The weight of
medical evidence is determined by its reliability, its probative value, its convincing quality, the
care of the analysis manifested and the medical rationale expressed in support of the physician’s
opinion.9
When an employee claims that he or she sustained a traumatic injury in the performance
of duty, he or she must establish the fact of injury, consisting of two components, which must be
considered in conjunction with one another. The first is whether the employee actually
experienced the incident that is alleged to have occurred at the time, place and in the manner
alleged. The second is whether the employment incident caused a personal injury and generally
this can be established only by rationalized medical evidence.
The medical evidence required to establish a causal relationship between the employee’s
diagnosed condition and the compensable employment event must be well rationalized.10 The
physician’s opinion must be based on a complete factual and medical background of the
employee, must be one of reasonable medical certainty and must be supported by medical
6

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

7

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

8

Id.; Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

9

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

10

Deborah L. Beatty, 54 ECAB 340 (2003). See also Tracey P. Spillane, 54 ECAB 608 (2003); Betty J. Smith,
54 ECAB 174 (2002). The term injury as defined by FECA, refers to a disease proximately caused by the
employment. 5 U.S.C. § 8101(5). See 20 C.F.R. § 10.5(q)(ee).

4

rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the employee.11
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.12
ANALYSIS
The Board finds this case not in a posture for decision because an unresolved conflict of
medical opinion exists between appellant’s attending physician, Dr. Parker, on one side and
OWCP’s medical adviser on the other.
Dr. Parker treated appellant for preexisting cervical stenosis and cervical division of
developmental disabilities and performed a cervical fusion on March 2, 2009. The record
reflects that appellant had recovered from his March 2, 2009 surgery and was asymptomatic by
the time of his March 25, 2010 visit with Dr. Parker. On June 24, 2010 appellant presented with
severe neck pain following the June 9, 2010 elevator incident in which an elevator had lurched
significantly, jarring his neck. A July 23, 2010 CT scan showed a significant fracture through
the C4-5 fusion graft, which was not present prior to the June 9, 2010 incident. On August 10,
2010 Dr. Parker opined to a reasonable degree of medical certainty that the June 9, 2010 work
injury had aggravated appellant’s preexisting condition. In his January 10, 2012 report, he stated
that the results of the cervical myelogram following the June 9, 2010 elevator incident were
significant and striking: there was a definite and significant crack or lytic lesion through the
C4-5 fusion which had been performed in March 2009. This crack or lytic lesion had not been
present before the June 9, 2010 workplace elevator accident. Dr. Parker opined to a reasonable
degree of medical certainty, that the crack/lytic lesion present in the June 2010 myelogram and
the need for surgery in August 2010 was caused by the elevator lurching incident on
June 9, 2010.
In his April 27, 2011 report, OWCP’s medical adviser diagnosed healed status
postoperative C4-7 spinal fusion from chronic degenerative disc disease of the cervical spine and
opined that the established diagnosis was not causally related to the June 9, 2010 employment
event, and that the event did not contribute to the August 23, 2010 surgery. He indicated that
appellant had developed nonunion with lucency at the inferior end plate at C4 following the
March 2, 2009 fusion, which was more compatible with incomplete fusion than an elevator
incident.
The Board finds that the opinion of OWCP’s medical adviser conflicts with that of
appellant’s attending physician, Dr. Parker, concerning whether appellant sustained an injury
causally related to the accepted June 9, 2010 elevator incident. Accordingly, the case will be
remanded for further medical development. On remand, OWCP should refer appellant to an
appropriate specialist, along with the case record and a SOAF for an examination and an opinion

11

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

12

5 U.S.C. § 8123(a).

5

on the relevant issue in order to resolve the conflict. After such development of the case record
as OWCP deems necessary, a de novo decision shall be issued.13
CONCLUSION
The Board finds that this case is not in posture for a decision.
ORDER
IT IS HEREBY ORDERED THAT the April 19, 2012 and June 20, 2011 decisions of
the Office of Workers’ Compensation Programs are set aside and the case remanded for further
development consistent with this decision of the Board.
Issued: January 8, 2013
Washington, DC

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

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

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

13

On appeal, counsel contends that Dr. Parker’s notes dated March 25, 2010 establish conclusively that x-rays
were performed that show no crack at C4-5 level at that time. The Board notes that the record prior to the issuance
of the April 19, 2012 decision does not contain a copy of Dr. Parker’s March 25, 2010 notes. The Board’s
jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision. Therefore,
this additional evidence cannot be considered by the Board. 20 C.F.R. § 501.2(c); Dennis E. Maddy, 47 ECAB 259
(1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Baltimore, MD, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-980
Issued: September 5, 2007

Case Submitted on the Record

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

JURISDICTION
On February 27, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ December 1, 2006 merit decision denying his claim for a left knee
condition and authorization of left knee surgery. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3(d)(2), the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that his left knee
condition and need for left knee surgery were causally related to his August 8, 1997 employment
injury.
FACTUAL HISTORY
On August 8, 1997 appellant, then a 46-year-old maintenance mechanic, filed a traumatic
injury claim alleging that he injured his right knee at work on that date. Appellant indicated that,
after kneeling on a catwalk while working, he was unable to straighten his right knee and “it felt

dislocated” when he stood up. He did not stop work but he started performing limited-duty work
for the employing establishment.
In various medical reports dated August 8, 1997, appellant reported that he had right knee
pain and his attending physicians diagnosed right knee strain. He did not report any left knee
problems at this time. The findings of diagnostic testing from late August 1997 showed a tear of
the posterior horn of the right medial meniscus. The Office accepted that appellant sustained a
right knee strain, a right medial meniscus tear and internal derangement of the right knee and
paid compensation for periods of disability. On November 21, 1997 appellant underwent
surgery for a right partial medial meniscectomy which was authorized by the Office.
On September 23, 2002 Dr. Kevin E. McGovern, an attending Board-certified orthopedic
surgeon, noted that appellant reported that his left knee started becoming painful “during the
course his treatment” of his 1997 right knee injury. He noted that the findings of
September 2002 x-ray testing revealed that appellant had degenerative arthritis affecting the
medial compartments of both knees. On October 30, 2002 Dr. McGovern stated that on
examination appellant exhibited medial joint tenderness in both knees without instability.
Dr. McGovern diagnosed degenerative arthritis of the knees and noted, “It is my opinion that
appellant’s degenerative arthritis has been aggravated and accelerated by his injury and medial
meniscectomy.” On January 8, 2003 Dr. McGovern indicated that appellant had marked
tenderness in his right medial joint but very mild tenderness in his left medial joint. He
diagnosed “status post strain of his knee with meniscectomy, right knee and exacerbation and
acceleration of degenerative arthritis as a result of his 1997 injury and treatment.
On November 3, 2003 appellant underwent a total replacement of the right knee which
was authorized by the Office. He also claimed that his left knee condition was related to his
August 9, 1997 employment injury and requested authorization for a total replacement of the left
knee. In response to questions posed by appellant’s rehabilitation nurse, Dr. McGovern
responded in late October 2003, that appellant’s “left knee trauma” was related to the August 9,
1997 employment injury because the preexisting degenerative joint disease was aggravated by
the right knee injury. He stated that appellant should have a left knee replacement six weeks or
more after his right knee replacement.
On March 5, 2004 Dr. Willie E. Thompson, a Board-certified orthopedic surgeon acting
as an Office medical adviser, determined that appellant did not sustain an injury to the left knee
that was consequential to the accepted right knee injury. He stated:
“In some cases where an injured knee may require protected weight bearing for a
period of time there may be some discomfort in the opposite knee due to overuse
and stress. Once that has ceased, the contralateral knee returns to normal. In this
case, this individual underwent a total knee replacement on November 2, 2003
more than four months ago. Clearly at this point in time any aching sensation or
discomfort in the left knee would have resolved without any residuals whatsoever.
In an April 1, 2004 decision, the Office denied appellant’s claim for left knee surgery on
the grounds that appellant had not shown that the requested surgery was necessitated by an
employment-related condition.

2

On April 7, 2004 Dr. McGovern stated that appellant’s left knee condition was related to
the employment-related right knee injury sustained on August 8, 1997. He indicated that
appellant’s painful right knee caused him to have an abnormal gait for an extended time and
posited that appellant was required to put added stress and strain on his left knee and aggravated
the preexisting degenerative arthritis of his left knee. Dr. McGovern stated that appellant needed
a left knee replacement. On August 9, 2004 Dr. McGovern provided an opinion that appellant’s
need for a left knee replacement was related to his August 8, 1997 right knee injury. He stated
that appellant had an abnormal gait due to his employment-related right knee condition which
caused “increased weight bearing on his left knee in an effort to avoid the painful right knee,
which then caused a significant exacerbation of preexisting degenerative changes in his left
knee….”
In a March 29, 2005 decision, an Office hearing representative determined that there was
a conflict in the medical opinion between Dr. McGovern and Dr. Thompson regarding whether
appellant’s left knee condition and the need for left knee surgery were causally related to his
August 8, 1997 employment injury. The hearing representative set aside the Office’s April 1,
2004 decision and remanded the case for referral to an impartial medical specialist.
In September 2005, the Office referred appellant to Dr. Sankara Kothakota, a Boardcertified orthopedic surgeon, for an impartial medical examination and an opinion regarding
whether appellant’s left knee condition and need for left knee surgery were causally related to his
August 8, 1997 employment injury.1
On October 17, 2005 Dr. Kothakota stated that appellant reported having problems with
his left knee after undergoing a right knee replacement on November 6, 2003 and indicated that
he felt that the pain in his right knee and the consequent overuse of his left knee caused him to
develop a left knee condition. He stated that examination of the left knee revealed a moderate
amount of varus deformity and palpable osteophyte on the medial aspect of the knee.
Dr. Kothakota indicated that the left knee was tender on the medial aspect and that x-rays
showed medial compartment osteoarthritis. He stated that x-rays of the right knee showed very
satisfactory alignment of the knee with implants in place and diagnosed post total right knee
arthroplasty, degenerative arthritis of the left knee including medial compartment osteoarthritis,
and moderate to severe obesity.2 Dr. Kothakota stated that appellant’s left knee symptoms were
directly related to the natural progression of the degenerative arthritis of his left knee and noted
that his left knee condition was aggravated by obesity. He reviewed the medical record and
found that there was no indication that appellant’s left knee condition was aggravated by an
employment-related condition. Dr. Kothakota stated that there was no direct injury to the left
knee in 1997. He noted, “Certainly, [appellant] needs either unicompartmental or a total knee
arthroplasty, but that was directly related to the natural progression of joint disease and obesity
and his varus deformity.”

1

Appellant was initially referred to Dr. Kevin Hanley, a Board-certified orthopedic surgeon, for an impartial
medical examination. However, the Office took Dr. Hanley off the list of impartial medical specialists and appellant
had to be referred to another impartial medical specialist.
2

The record reveals that appellant weighed approximately 300 pounds.

3

In a January 5, 2006 decision, the Office determined that appellant did not establish that
his left knee condition and need for left knee surgery were causally related to his August 8, 1997
employment injury. The Office found that the weight of the medical evidence regarding this
matter rested with the well-rationalized opinion of Dr. Kothakota.
Appellant requested a hearing before an Office hearing representative. At the August 28,
2006 hearing, he testified that he fell on both knees on August 8, 1997. Appellant alleged that
Dr. Kothakota asked to perform his left knee surgery and suggested that Dr. Kothakota changed
the rationale for his medical opinion after he refused his request.3 In a December 1, 2006
decision, the Office hearing representative affirmed the Office’s January 5, 2006 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act4 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury.5
Section 8103(a) of the Act states in pertinent part: “The United States shall furnish to an
employee who is injured while in the performance of duty, the services, appliances, and supplies
prescribed or recommended by a qualified physician, which the Secretary of Labor considers likely
to cure, give relief, reduce the degree or the period of disability, or aid in lessening the amount of
the monthly compensation.”6 In order to be entitled to reimbursement of medical expenses,
appellant has the burden of establishing that the expenditures were incurred for treatment of the
effects of an employment-related injury or condition.7 Proof of causal relationship in a case such
as this must include supporting rationalized medical evidence.8
The medical evidence required to establish a causal relationship between a claimed
period of disability and an employment injury is rationalized medical opinion evidence.
Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the compensable employment factors. The opinion of the physician
3

Appellant submitted August 22, 2006 statements which were similar to his August 28, 2006 testimony. He also
submitted July 19 and October 4, 2006 reports in which Dr. McGovern indicated that he sustained degenerative
arthritis of the left knee due to his August 8, 1997 injury.
4

5 U.S.C. §§ 8101-8193.

5

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

6

5 U.S.C. § 8103.

7

Bertha L. Arnold, 38 ECAB 282, 284 (1986).

8

Zane H. Cassell, 32 ECAB 1537, 1540-41 (1981); John E. Benton, 15 ECAB 48, 49 (1963).

4

must be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature
of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.9
Section 8123(a) of the Act provides in pertinent part: “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.”10 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.11
ANALYSIS
The Office accepted that appellant sustained a right knee strain, a right medial meniscus
tear and internal derangement of the right knee. On November 21, 1997 appellant underwent a
right partial medial meniscectomy which was authorized by the Office. He contends that his left
knee condition was related to his August 9, 1997 employment injury and requested authorization
for a total replacement of his left knee.
The Office properly determined that there was a conflict in the medical opinion between
Dr. McGovern, an attending Board-certified orthopedic surgeon, and Dr. Thompson, a Boardcertified orthopedic surgeon acting as an Office medical adviser, regarding whether appellant’s
left knee condition and need for left knee surgery were causally related to his August 8, 1997
employment injury.
In April 7 and August 9, 2004 reports, Dr. McGovern determined that appellant’s left
knee condition and need for left knee surgery were related to the employment-related right knee
injury he sustained on August 8, 1997. He indicated that the abnormal gait caused by appellant’s
painful right knee placed added stress on his left knee and aggravated the preexisting
degenerative arthritis of his left knee. In contrast, Dr. Thompson concluded on March 5, 2004
that appellant’s need for left knee surgery was not employment related because he did not sustain
an injury to his left knee that was consequential to the accepted right knee injury. He stated that
there might be some cases where an injured knee might require protected weight bearing and
cause discomfort in the opposite knee, but posited that such discomfort would only be temporary.
In order to resolve the conflict, the Office properly referred appellant, pursuant to section
8123(a) of the Act, to Dr. Kothakota, a Board-certified orthopedic surgeon, for an impartial
medical examination and an opinion on the matter.12 The Board finds that the weight of the
9

See Donna Faye Cardwell, 41 ECAB 730, 741-42 (1990).

10

5 U.S.C. § 8123(a).

11

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

12

See supra note 10 and accompanying text.

5

medical evidence is represented by the thorough, well-rationalized opinion of Dr. Kothakota.13
The report of Dr. Kothakota establishes that appellant’s left knee condition and need for left knee
surgery were not causally related to his August 8, 1997 employment injury.
In an October 17, 2005 report, Dr. Kothakota concluded that appellant’s left knee
condition was not related to his employment-related August 8, 1997 right knee injury and that his
proposed left knee surgery was not necessitated by an employment-related condition. He stated
that appellant reported having problems with his left knee after undergoing a right knee
replacement on November 6, 2003 and indicated that he felt that the pain in his right knee and
the consequent overuse of his left knee caused him to develop a left knee condition.
Dr. Kothakota stated that, examination of the left knee revealed a moderate amount of varus
deformity and palpable osteophyte on the medial aspect of the knee and diagnosed post total
right knee arthroplasty, degenerative arthritis of the left knee including medial compartment
osteoarthritis and moderate to severe obesity.
The Board has carefully reviewed the opinion of Dr. Kothakota and notes that it has
reliability, probative value and convincing quality with respect to its conclusions regarding the
relevant issue of the present case. Dr. Kothakota’s opinion is based on a proper factual and
medical history in that he had the benefit of an accurate and up-to-date statement of accepted
facts, provided a thorough factual and medical history and accurately summarized the relevant
medical evidence.14 He provided medical rationale for his opinion by explaining that appellant’s
left knee symptoms were directly related to the natural progression of the degenerative arthritis
of his left knee and by noting that his left knee condition was aggravated by his obesity and his
varus deformity. Dr. Kothakota stated that there was no direct injury to the left knee in 1997 and
indicated that he had reviewed the medical record and found that there was no indication that
appellant’s left knee condition was related to his employment-related right knee condition. He
acknowledged that appellant needed left knee surgery but explained that the surgery was
necessitated by nonwork-related conditions.
The Board notes that appellant testified at his oral hearing that he fell on both knees on
August 8, 1997, but the record reveals that he made no such assertion in the claim form for the
August 8, 1997 injury and the contemporaneous medical evidence does not mention a fall.
Appellant alleged that Dr. Kothakota was biased against him, but he provided no support for this
argument. After Dr. Kothakota’s evaluation, appellant submitted July 19 and October 4, 2006
reports in which Dr. McGovern indicated that he sustained degenerative arthritis of the left knee
due to his August 8, 1997 injury. However, as Dr. McGovern was on one side of the conflict in
the medical evidence, his additional reports are essentially duplicative of his prior stated opinion
and are insufficient to give rise to a new conflict.15

13

See supra note 11 and accompanying text.

14

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

15

See Richard O’Brien, 53 ECAB 234 (2001).

6

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that his left
knee condition and need for left knee surgery were causally related to his August 8, 1997
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
December 1, 2006 decision is affirmed.
Issued: September 5, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lexington, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
John P. Vita, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-755
Issued: November 9, 2007

Case Submitted on the Record

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

JURISDICTION
On January 24, 2007 appellant, through her attorney, filed a timely appeal of the Office
of Workers’ Compensation Programs’ hearing representative’s merit decision dated July 28,
2006 finding that she did not establish a recurrence of disability on July 24, 2002 causally related
to her federal employment, and a nonmerit decision dated November 8, 2006. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merit and nonmerit issues of
this case.
ISSUES
The issues are: (1) whether appellant sustained a recurrence of disability as of July 24,
2002; and (2) whether the Office properly declined to reopen her claim for reconsideration of the
merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On March 19, 2002 appellant, then a 41-year-old rural carrier filed a traumatic injury
claim alleging that she injured her lower back when she bent down to lift a tray of letters. The

Office accepted her claim for lumbar sprain and strain on May 21, 2002. Appellant’s attending
physician, Dr. Robert Wilder, Board-certified in physical medicine and rehabilitation, released
her to return to light-duty work on December 31, 2002. He indicated that appellant could lift 2
pounds continuously and 10 pounds intermittently for four hours a day. Dr. Wilder found that
appellant could sit and grasp intermittently for four hours a day. Appellant could stand and walk
as well as push and pull intermittently for one hour a day. She could perform fine manipulation
continuously for four hours a day and reach above the shoulder intermittently for two hours a
day. Appellant accepted a light-duty job offer based on these restrictions on January 6, 2003
filing, answering the telephone, marking mail and aiding the box clerk and completing rent
notices and filing for four hours a day. She worked four hours a day from December 31, 2002 to
February 10, 2003.
Appellant continued to miss work due to back pain. She underwent a discogram on
February 6, 2003 which demonstrated a degenerated disc with a posterior annular tear at L5-S1.
Appellant stopped work on February 25, 2003. Dr. Donald P.K. Chan, a Board-certified
orthopedic surgeon of professorial rank, recommended spinal fusion surgery. The Office
authorized surgery on March 27, 2003. On April 9, 2003 appellant underwent a posterolateral
uninstrumented fusion from L5-S1 and left-sided L5-S1 decompression consisting of partial
medial facetectomy and forminotomy and iliac crest bone graft. The Office entered appellant on
the periodic rolls on April 25, 2003.
Dr. Chan released appellant to perform light-duty work on October 14, 2003 lifting 5 to
10 pounds continuously and 20 pounds intermittently for four hours a day. He indicated that she
could sit for five hours continuously and standing for three hours continuously. Dr. Chan found
that appellant could walk intermittently. He further indicated that appellant should bend, stoop,
twist, push and pull for no more than one hour a day intermittently. Dr. Chan found that
appellant could perform simple grasping and fine manipulation intermittently for eight hours a
day. He concluded that she could reach above the shoulder two hours a day intermittently and
drive a vehicle continuously for four hours a day. Appellant returned to sedentary work eight
hours a day on October 27, 2003.
Dr. Chan examined appellant on April 20, 2004 as a one-year follow-up to the spinal
fusion. He stated that appellant would be prone to backaches with increased activities. Dr. Chan
stated that she required permanent light-duty work. He provided work restrictions of lifting 15
pounds continuous and 25 pounds intermittently four hours a day. Dr. Chan indicated that
appellant could sit, stand and drive a motor vehicle for five hours a day. He indicated that she
could walk, bend, stoop, twist as well as push and pull intermittently up to one hour a day.
Dr. Chan stated that appellant could grasp intermittently for eight hours a day and reach above
the shoulder intermittently for three hours a day.
By decision dated July 27, 2004, the Office reduced appellant’s compensation to reflect
her actual earnings as a modified rural carrier with wages of $866.40 per week. The Office
found that appellant’s actual earnings as of December 31, 2002 fairly and reasonably represented
her wage-earning capacity. The Office concluded that she had no loss of wage-earning capacity.
Appellant filed a claim for compensation on August 5, 2004 requesting wage-loss
compensation from July 26 to August 6, 2004. She submitted a form report dated September 2,

2

2004 from Dr. Vincent Arlet, a surgeon of professorial rank, diagnosing failed back and
indicating with a checkmark “yes” that appellant’s condition was due to her employment.
Dr. Arlet stated that appellant was totally disabled from July 26 to August 30, 2004.
Appellant filed a recurrence of disability on September 2, 2004 alleging that she had
sustained a recurrence of disability on July 23, 2004 causally related to her March 11, 2002
employment injury. She noted that she had stopped work on July 26, 2004. Appellant’s
supervisor completed the reverse of the form and indicated that following her accepted
employment injury appellant’s duties included answering the telephone, filing, monitoring the
lobby area and verify undelivered bulk business mail. In a report dated August 2, 2005,
Dr. Arlet opined that appellant had sustained an acute flare-up of her low back pain and indicated
with a checkmark that this condition was due to her accepted employment injury. He stated that
appellant was currently totally disabled and required an evaluation for a change of work and
work restrictions. On August 5, 2004 Dr. Arlet diagnosed acute flare-up of back pain. He stated
that appellant had experienced an exacerbation of her existing back pain. In a note dated
August 27, 2004, Dr. Arlet found that appellant was totally disabled through September 4, 2004.
In a letter dated September 16, 2004, the Office requested additional factual and medical
information from appellant supporting her claim for recurrence of disability.
Dr. Arlet examined appellant on September 2, 2004 and diagnosed low back pain. He
suggested a discogram and appellant requested a second opinion. Dr. Arlet referred appellant to
Dr. Frances H. Shen, a Board-certified orthopedic surgeon of professorial rank, who completed a
form report on October 22, 2004 diagnosing failed back syndrome and indicating with a
checkmark “yes” that this condition was due to her employment activity. Dr. Shen found that
appellant was totally disabled and referred appellant to Dr. David S. Rubendall, an osteopath
Board-certified in physical medicine and rehabilitation, for evaluation on October 22, 2004. In
form reports dated October 27 and November 2, 2004, Dr. Rubendall indicated that appellant
was totally disabled through December 2, 2004. On November 2, 2004 he reported that
appellant’s nerve conduction studies and electrodiagnostic test results were normal.
By decision dated November 19, 2004, the Office denied appellant’s claim for a
recurrence of disability, finding that she had not established a change in the nature and extent of
her injury-related condition, or a change in the nature and extent of her light-duty job
requirements.
Appellant requested an oral hearing on November 30, 2004. Dr. Rubendall completed a
form report on November 18, 2004 and indicated that appellant was totally disabled due to her
chronic lumbar pain due to her accepted employment injury. On December 2, 2004 he opined
that appellant could resume light-duty work based on her November 18, 2004 functional capacity
evaluation. This evaluation indicated that appellant could occasionally lift and carry up to 20
pounds, stand for 30 minutes, sit for 40 minutes and walk for 30 minutes frequently. Appellant
returned to full-time light-duty work on December 17, 2004. On January 3, 2005 Dr. Rubendall
reviewed appellant’s light-duty job requirements and approved her position. He stated that
appellant should have consecutive days off to provide for adequate recovery.

3

Appellant testified at the oral hearing on May 26, 2006 and stated that following her
July 26, 2004 recurrence of disability her light-duty job requirements changed. She stated that
prior to July 26, 2004 she was cancelling letters, filing change of address cards and taking the
business bulk mail. Appellant also performed computer work and helped carriers case letters and
drove carriers on their routes. She stated that her back began swelling and her back pain
increased. Following her return to work in December 2004 appellant no longer prepared the
business bulk mail and no longer drove carriers or ran errands.
Appellant’s attorney submitted a report dated June 26, 2006 from Dr. Rubendall noting
that on October 27, 2004 appellant exhibited chronic low back and bilaterally leg pain and
numbness continuing from her April 2003 surgery. He noted that he provided work restrictions
in December 2004.
By decision dated July 28, 2006, the hearing representative found that appellant had not
submitted sufficient medical opinion evidence to establish a change in the nature and extent of
her injury-related condition. The hearing representative concluded that appellant had not met her
burden of proof in establishing a recurrence of disability beginning July 26, 2004.
Appellant, through her attorney, requested reconsideration on August 30, 2006 and
alleged that appellant had submitted sufficient medical evidence to establish a change in the
nature and extent of her injury-related condition. In support of this request, appellant submitted
an impairment rating from Dr. Rubendall finding that she had 23 percent impairment of the
whole person. She also submitted a new position description.
By decision dated November 8, 2006, the Office denied reconsideration without further
merit review.
LEGAL PRECEDENT -- ISSUE 1
A recurrence of disability is the inability to work after an employee has returned to work,
caused by a spontaneous change in a medical condition which had resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment which
caused the illness. The term also means an inability to work that takes place when a light-duty
assignment made specifically to accommodate an employee’s physical limitations due to his or
her work-related injury or illness is withdrawn (except when such withdrawal occurs for reasons
of misconduct, nonperformance of job duties or a reduction-in-force), or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.1 When an employee who is disabled from the job she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that she can perform the limited-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and to show that she cannot perform such limited-duty work. As part of this burden,
the employee must show a change in the nature and extent of the injury-related condition or a
change in the nature and extent of the limited-duty job requirements.2 The Office is not
1

20 C.F.R. § 10.5(x).

2

Joseph D. Duncan, 54 ECAB 471, 472 (2003); Terry R. Hedman, 38 ECAB 222, 227 (1986).

4

precluded from adjudicating a limited period of employment-related disability when a formal
wage-earning capacity determination has been issued.3
ANALYSIS -- ISSUE 1
On September 2, 2004 appellant alleged a recurrence of total disability due to her
accepted injuries of lumbar sprain and strain and lumbar fusion. In support of her claim, she
submitted medical evidence pertaining to her medical condition as of July 23, 2004. Dr. Arlet, a
surgeon of professorial rank, completed reports on August 2 and 5, 2004 and opined that
appellant had sustained a “flare-up” of her low back pain and indicated with a checkmark “yes”
that this condition was due to her employment injuries. He did not offer new diagnosis or any
opinion regarding a change in appellant’s condition in his initial report. Dr. Arlet merely
indicated that appellant had experienced an exacerbation of her low back pain. On September 2,
2004 he diagnosed failed back. Dr. Arlet indicated with a checkmark “yes” that appellant’s
condition was due to her accepted employment injuries. These reports are not sufficient to meet
appellant’s burden of proof in establishing a change in the nature and extent of her injury-related
condition as Dr. Arlet did not offer any medical reasoning explaining how her current diagnosed
condition of failed back was related to her accepted employment injuries. Furthermore, the
Board has held that an opinion on causal relationship which consists only of a physician
checking “yes” to a medical form report question on whether the claimant’s condition was
related to the history given is of little probative value. Without any explanation or rationale for
the conclusion reached, such a report is insufficient to establish causal relationship.4
Dr. Shen, a Board-certified orthopedic surgeon of professorial rank, diagnosed failed
back syndrome on October 22, 2004 and also indicated with a checkmark “yes” that appellant’s
condition was due to her employment injuries. He found that appellant was totally disabled.
This report is not sufficient to establish that appellant sustained a change in the nature and extent
of her injury-related condition such that she was totally disabled. As noted, the Board has held
that a physician must submit medical reasoning in support of an opinion and a mere checkmark
is not sufficiently detailed to constitute probative medical rationale.5
Appellant submitted several reports from Dr. Rubendall, an osteopath Board-certified in
physical medicine and rehabilitation, diagnosing chronic lumbar pain and indicating that
appellant was totally disabled. Dr. Rubendall did not explain how appellant’s lumbar condition
had worsened following her April 2003 surgery and October 27, 2003 return to a sedentary work
position. While he offered new work restrictions, he did not specify a new diagnosis or explain
why he felt that appellant’s condition had worsened necessitating new work restrictions.
Without medical reasoning explaining that appellant had indeed sustained a change in the nature

3

Sandra D. Pruitt, 57 ECAB ___ (Docket No. 05-739, issued October 12, 2005); but see Katherine T. Kreger, 55
ECAB 633 (2004) (the Board found that when a lengthy period of disability was suggested that the appropriate issue
was not whether appellant had established a recurrence of disability, but whether the existing wage-earning capacity
determination should have been modified).
4

Lucrecia M. Nielson, 41 ECAB 583, 594 (1991).

5

Id.

5

and extent of her injury-related conditions, Dr. Rubendall’s reports are not sufficient to meet
appellant’s burden of proof in establishing a recurrence of total disability.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,6 the Office’s regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.7 When a claimant fails to meet one of the above standards, the Office
will deny the application for reconsideration without reopening the case for review on the
merits.8
ANALYSIS -- ISSUE 2
Appellant requested reconsideration of the hearing representative’s July 28, 2006
decision on August 30, 2006 and submitted additional evidence and argument. She, through her
attorney, alleged that she had submitted sufficient medical evidence to establish her claim. This
statement is not sufficient to show that the Office erroneously applied or interpreted a specific
point of law and does not advance a relevant legal argument not previously considered by the
Office as this argument addresses the central issue previously considered by the Office and the
hearing representative, whether appellant has in fact met her burden of proof in establishing a
change in the nature and extent of her employment-related condition.
Appellant also submitted a permanent impairment rating from Dr. Rubendall and a new
position description. These documents while not previously considered by the Office and
therefore are new, an impairment rating and a position description are not relevant and pertinent
to appellant’s claim for a recurrence of disability in July 2004 and are insufficient to require the
Office to reopen appellant’s claim. Neither of these documents address the central issue of
appellant’s claim, whether she sustained a change in the nature and extent of her injury-related
condition on or after July 24, 2004 rendering her totally disabled.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof in establishing that she
sustained a recurrence of total disability. The Board further finds that appellant did not submit
evidence or argument in support of her request for reconsideration which would require the
Office to reopen her claim for consideration of the merits.

6

5 U.S.C. §§ 8101-8193, § 8128(a).

7

20 C.F.R. § 10.606(b)(2).

8

20 C.F.R. § 10.608(b).

6

ORDER
IT IS HEREBY ORDERED THAT the November 8 and July 28, 2006 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: November 9, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.S., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Billings, MT, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 12-1264
Issued: November 26, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 24, 2012 appellant, through her attorney, filed a timely appeal from a March 29,
2012 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that she had any continuing employmentrelated disability or residuals after April 21, 2008.
On appeal appellant’s attorney asserts that the March 29, 2012 decision is contrary to fact
and law.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
This case has previously been before the Board. In an April 10, 2009 decision, the Board
found that an April 21, 2008 OWCP decision properly determined that appellant had no
disability or residuals due to an April 30, 2007 employment injury, accepted for closed
dislocations of the sacrum and lumbar vertebra. OWCP terminated her monetary and medical
benefits effective that day.2 By order dated January 12, 2012, the Board remanded the case to
OWCP to consider appellant’s timely reconsideration request under 20 C.F.R. § 10.606(b)(2).3
The facts of the previous Board decision and order are incorporated herein by reference.
The relevant medical evidence includes an April 10, 2008 magnetic resonance imaging
(MRI) scan study of the lumbar spine. It demonstrated minimal facet arthropathy and no disc
protrusions, spinal stenosis or foraminal narrowing. A June 11, 2008 imaging scan demonstrated
increased uptake in the sacroiliac joint which could represent bilateral sacroiliitis and
degenerative changes in the mid-cervical and lower lumbar spine. In reports dated May 28, 2008
to January 28, 2009, Dr. Steven J. Rizzolo, an attending Board-certified orthopedic surgeon,
noted appellant’s history that she had been injured at work in October 2007. He described her
complaint of right iliolumbar pain. Dr. Rizzolo noted that the MRI scan study was unremarkable
and the bone scan negative. He provided examination findings, noting probable right sacroiliac
joint dysfunction. Dr. Rizzolo diagnosed chronic right iliolumbar pain and sacroiliitis and
recommended a work-up for a rheumatologic disorder. On July 14 and November 19, 2008 he
injected appellant’s sacroiliac joint and on January 28, 2009 advised that her continuing care
could be handled by a primary care provider.
In a March 29, 2012 merit decision, OWCP denied modification of its April 21, 2008
decision. It found that the medical evidence submitted did not establish a causal relationship
between appellant’s continuing condition and the October 30, 2007 work injury.
LEGAL PRECEDENT
As OWCP met its burden of proof to terminate the employee’s compensation benefits on
April 21, 2008, the burden shifted to her to establish that she had any continuing disability
causally related to her accepted low back injury.4 To establish a causal relationship between the
condition, as well as any attendant disability claimed and the employment injury, an employee
must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such a causal relationship.5 Causal relationship is a medical issue and
the medical evidence required to establish a causal relationship is rationalized medical evidence.6
2

Docket No. 08-2051 (issued April 10, 2009). OWCP accepted that appellant, a mail processing clerk, sustained
closed dislocations of the sacrum and lumbar vertebra on November 8, 2007 when she pulled open a drawer that was
stuck.
3

Docket No. 11-1399 (issued January 12, 2012).

4

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

5

Jennifer Atkerson, 55 ECAB 317 (2004).

6

Id.

2

The opinion of the physician must be based on a complete factual and medical background of the
employee, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.7
ANALYSIS
The Board finds that appellant submitted insufficient medical evidence to establish that
she continued to be disabled after April 21, 2008 due to the October 30, 2007 employment
injury.8
In reports dated May 28, 2008 to January 28, 2009, Dr. Rizzolo generally indicated that
appellant was injured at work in October 2007. He reviewed diagnostic studies which he advised
were unremarkable and provided physical examination findings. Dr. Rizzolo did not provide an
opinion regarding the cause of any condition or an opinion regarding her ability to work.9 The
diagnostic studies submitted on reconsideration provided no opinion on disability. The Board
has held that medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.10
The medical evidence therefore is of little probative value. As appellant did not provide a
rationalized medical opinion on reconsideration, she did not meet her burden of proof to
establish that she continues to have work-related disability due to the accepted dislocations of the
sacrum and lumbar vertebra caused by the October 30, 2007 employment injury.11
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 appellant did not establish that she had any continuing employmentrelated disability or condition after April 21, 2008 causally related to the October 30, 2007
employment injury.

7

Leslie C. Moore, 52 ECAB 132 (2000); Victor J. Woodhams, 41 ECAB 345 (1989).

8

Appellant also submitted an October 22, 2008 report from Randy Glaser, a physician’s assistant. Reports from a
physician’s assistant are not considered medical evidence as a physician’s assistant is not considered a physician
under FECA. 5 U.S.C. § 8101(2); Ricky S. Storms, 52 ECAB 349 (2001).
9

The most recent medical report of record is Dr. Rizzolo’s January 28, 2009 report.

10

Willie M. Miller, 53 ECAB 697 (2002).

11

S.S., 59 ECAB 315 (2008).

3

ORDER
IT IS HEREBY ORDERED THAT the March 29, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 26, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.J., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Hanover, MD, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 13-1192
Issued: August 12, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 18, 2013 appellant, through counsel, filed a timely appeal from the April 1,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP) and an
April 16, 2013 nonmerit decision of 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 these
decisions.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he has
more than a two percent permanent impairment of his left leg, for which he received a schedule
award; and (2) whether OWCP properly denied appellant’s request for further review of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
OWCP accepted that on February 6, 2012 appellant, then a 39-year-old federal air
marshal, sustained a lateral collateral ligament sprain of his left knee and a tear of the medial
meniscus of his left knee during defensive measures training at work. On February 6, 2012 he
underwent left knee surgery, including a partial medial meniscectomy. The surgery was
authorized by OWCP.
In a June 27, 2012 report, Dr. Robert Macht, an attending Board-certified general
surgeon, determined that appellant had a two percent permanent impairment of his left leg under
the standards of the sixth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (6th ed. 2009). He referenced a diagnosis-based impairment under the
category of partial medial meniscectomy in Table 16-3 (Knee Regional Grid) on page 509.
In July 2012, counsel submitted medical evidence regarding an injury that appellant
sustained in early 1991, a fractured left lateral malleolus and partial disruption of the deltoid
ligament with subluxation of the left ankle joint. On April 1, 1991 appellant underwent open
reduction and internal fixation of the fracture subluxation of his left ankle. On February 24,
1992 the hardware from the April 1, 1991 surgery was removed. The medical records also
discussed appellant’s treatment after these surgeries.
OWCP requested that Dr. Macht provide a supplemental report regarding appellant’s left
leg impairment. On September 27, 2012 Dr. Macht provided the results of his examination of
appellant. He stated that appellant had a left ankle injury in 1991 and was diagnosed by x-rays
as having a lateral malleolar fracture with spread of the left ankle mortise. Dr. Macht stated:
“As noted in my recent report he has a two percent permanent partial impairment
of his left lower extremity due to his left knee condition. Based on the Ankle
Regional Grid, Table 16-2, page 503, he has a class 1 impairment of his ankle due
to his malleolar fracture with mild motion deficit. Column C is selected based on
his functional history, physical examination and clinical studies. [Appellant]
therefore is assigned a 10 percent impairment of the left lower extremity due to
his ankle condition. This combined with the figure for his knee condition to yield
a total 12 percent permanent partial impairment of his left lower extremity.”
In an October 17, 2012 report, Dr. Lawrence Manning, a Board-certified orthopedic
surgeon serving as an OWCP medical adviser, discussed Dr. Macht’s reports and stated, with
respect to appellant’s left ankle impairment rating, “The fracture was not a part of this accepted
condition and as such this impairment is disregarded in my review.” Dr. Manning indicated that
he concurred with Dr. Macht that appellant had two percent impairment of the left leg based on
the left medial meniscus tear and stated, “The knee region grid in the [sixth edition of the
A.M.A., Guides] confirms this rating for this diagnosis. The total of 12 percent impairment was
disregarded as it included impairment for the ankle fracture. Date of [maximum medical
improvement] is June 27, 2012, the date of Dr. Macht’s initial impairment rating.”
In a December 31, 2012 decision, OWCP granted appellant a schedule award for a two
percent permanent impairment of his left leg. The award ran for 5.76 weeks from June 27 to

2

August 6, 2012 and was based on Dr. Manning’s impairment rating as derived from the findings
of Dr. Macht.
On January 7, 2013 appellant requested reconsideration of his claim and, through
counsel, argued that his schedule award should have included the preexisting impairment from
his left ankle injury.
In an April 1, 2013 decision, OWCP affirmed its December 31, 2012 schedule award
decision finding that appellant only had two percent permanent impairment of his left leg. It
noted that his left ankle fracture was not included in the impairment rating because it was
“unrelated” to his accepted left knee injuries. OWCP did not discuss the legal precedent relating
to inclusion of preexisting impairments in impairment ratings.
On April 4, 2013 appellant requested reconsideration of his claim and, through counsel,
again argued that his schedule award should have included the preexisting impairment from his
left ankle injury.
In an April 16, 2013 decision, OWCP denied appellant’s request for further review of the
merits of his claim pursuant to 5 U.S.C. § 8128(a) noting that the evidence and argument he
submitted was repetitious.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA2 and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.4 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.5
The Board has held that in determining the amount of a schedule award for a member of
the body that sustained an employment-related permanent impairment, preexisting impairments of
the body are to be included.6

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

Id.

5

FECA Bulletin No. 09-03 (issued March 15, 2009).

6

See Dale B. Larson, 41 ECAB 481, 490 (1990); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.3.b. (June 1993). This portion of OWCP procedures provide that the impairment rating of a
given scheduled member should include “any preexisting permanent impairment of the same member or function.”

3

It is well established that proceedings under FECA are not adversarial in nature, and
while the claimant has the burden to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.7
ANALYSIS -- ISSUE 1
OWCP accepted that on February 6, 2012 appellant sustained a lateral collateral ligament
sprain of his left knee and a tear of the medial meniscus of his left knee during defensive
measures training at work. On February 6, 2012 appellant underwent OWCP-authorized left
knee surgery, including a partial medial meniscectomy.
In July 2012, counsel submitted medical evidence regarding an injury appellant sustained
in early 1991, a fractured left lateral malleolus and partial disruption of the deltoid ligament with
subluxation of the left ankle joint. On April 1, 1991 and February 24, 1992 appellant underwent
left ankle surgery.
In a December 31, 2012 decision, OWCP granted appellant a schedule award for a two
percent permanent impairment of his left leg. The award was based on an impairment rating
calculated by Dr. Manning, a Board-certified orthopedic surgeon serving as an OWCP medical
adviser, and solely involved a diagnosis-based impairment rating of appellant’s left knee. The
rating was as derived from the findings of Dr. Macht, an attending Board-certified hand surgeon.
The Board notes, however, that Dr. Manning did not adequately explain why appellant’s
preexisting left ankle condition was not included in the impairment rating for his left leg. As
noted above, the Board has held that in determining the amount of a schedule award for a member
of the body that sustained an employment-related permanent impairment, preexisting impairments
of the body are to be included.8 Dr. Manning did not provide a medical discussion of whether the
left ankle condition constituted a preexisting impairment that should be included in the impairment
rating, but rather dismissed its inclusion by stating, “The fracture was not a part of this accepted
condition and as such this impairment is disregarded in my review.” In its April 1, 2013 decision
affirming the schedule award for a two percent left leg impairment, OWCP did not provide any
further clarification of the matter and merely noted that the left ankle condition was not included
because it was “unrelated.”
For these reasons, additional development is needed to determine whether appellant’s
preexisting left ankle condition should be included in the calculation of the permanent
impairment of his left leg, for which he had received an award for two percent impairment. The
case shall be remanded to OWCP for this purpose and, after such development it deems
necessary, OWCP shall issue an appropriate decision regarding his left leg impairment.9

7

Dorothy L. Sidwell, 36 ECAB 699, 707 (1985); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

8

See supra note 6.

9

Given the Board’s disposition of the merit issue of this case, it is not necessary for it to consider the nonmerit
issue. See 20 C.F.R. § 10.126.

4

CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
has more than a two percent permanent impairment of his left leg, for which he received a
schedule award. The case is remanded to OWCP for further development.
ORDER
IT IS HEREBY ORDERED THAT the April 1, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: August 12, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


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

)
)
)
)
)
)
)
)

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

Docket No. 08-497
Issued: June 12, 2008

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 December 10, 2007 appellant filed a timely appeal from the November 28, 2007
schedule award decision of the Office of Workers’ Compensation Programs. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant has more than five percent impairment to his right leg and
four percent impairment to his left leg, for which he received schedule awards.
FACTUAL HISTORY
On May 7, 2003 appellant, then a 46-year-old mail handler group leader, filed an
occupational disease claim for injury to his feet which he attributed to lifting and pulling sacks of
mail and loading tractor trailers. On June 22, 2005 his claim was accepted for hallux valgus
deformities to the left and right feet, hammer toes and bunions. On November 14, 2005
appellant had surgery on his right foot for an excision of the intermetatarsal neuroma between

the 3rd and 4th metatarsals and a hammer digit arthroplasty, proximal interphalangeal joint, of the
2nd toe of the right foot.
On June 15, 2006 appellant filed a claim for a schedule award. In a June 12, 2007 report,
Dr. Emmanuel E. Jacob, a Board-certified physiatrist, reviewed appellant’s medical history,
activities of daily living and provided findings on physical examination. He noted that appellant
continued to experience pain in both feet with dyesthesia. Dr. Jacob discussed appellant’s
impairment under the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) (fifth edition). He rated loss of range of motion under Table 1714, page 537, as two percent lower extremity (mild) impairment of the metatarsophalangeal
(MP) and interphalangeal (IP) joints of both the right and left great toes.1 He found that the MP
joint dorsiflexion of eight degrees in the right and left lesser toes represented two percent
impairment to each extremity. Dr. Jacob rated impairment due to dyesthesia in both feet under
Table 17-37, page 552, stating that the nerve deficit represented five percent impairment to each
lower extremity.2 In rating loss of strength, he referred generally to Table 16-13, page 489, and
Table 16-11, page 484, to find that dorsiflexion of 4/5 was “equivalent to 20 percent motor
deficit and 35 percent impairment = 7 percent impairment of the lower extremity.” Dr. Jacob
added each of the impairment values to find a total 20 percent impairment to the lower
extremities.
On September 15, 2007 an Office medical adviser reviewed the medical evidence and
noted that Dr. Jacob’s had not properly applied the A.M.A., Guides. He noted that the
impairment rating for loss of strength had been made with reference to Chapter 16 and tables
evaluating the C4 nerve root, which would not be applicable to appellant’s lower extremity
impairment. Therefore the seven percent impairment rating could not be accepted. The Office
medical adviser recommended that appellant’s schedule award be based on loss of range of
motion of the toes. He agreed with the ratings provided by Dr. Jacobs, noting two percent lower
extremity impairment at both great toes for loss of MP flexion and IP flexion. The impairment to
the right and left lesser toes for MP motion of eight degrees dorsiflexion was two percent lower
extremity impairment. As to the dyesthesia rating of five percent impairment to both feet, the
Office medical adviser stated that Dr. Jacob had not properly rated impairment. He noted that
appellant’s surgery was for excision of a Morton’s neuroma of the right foot, which was the third
branch of the medial plantar nerve. Dr. Jacob noted that the maximum sensory impairment
allowed for the medial plantar nerve was five percent.3 However, he did not complete the
calculation for sensory loss with reference to the tables that grade sensory deficit. The Office
medical adviser noted that Table 16-10, page 482, classified 25 percent sensory deficit as a
Grade 4 loss.4 Allowing a 25 percent deficit of the maximum 5 percent impairment for sensory
loss of the medial plantar nerve resulted in one percent impairment for pain. The Office medical
1

Dr. Jacob identified 20 degrees dorsiflexion of the MP joint in both great toes and plantar flexion of 12 degrees
in the right great toe IP joint and 15 degrees in the left great toe IP joint.
2

Dr. Jacob did not identify the specific nerve root causing impairment under Table 17-37.

3

Table 17-37, page 552.

4

The A.M.A., Guides 550, provide that in rating sensory loss under Table 17-37, partial loss should be rated as in
the upper extremity as noted at Tables 16-10 and 16-11.

2

adviser rated the total right lower extremity impairment as five percent by adding the range of
motion loss (2 + 2 =4) and combining the one percent sensory impairment. The total left lower
extremity impairment was four percent, based on adding the loss of range of motion to the toes.
By decision dated November 28, 2007, the Office issued a schedule award for five
percent impairment of the right lower extremity and four percent impairment of the left lower
extremity.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act5 sets for the number of weeks
of compensation to be paid for the permanent loss of use of specified members, functions and
organs of the body.6 The Act, however, does not specify the manner by which the percentage
loss of a member, function, or organ shall be determined. To ensure consistent results and equal
justice for all claimants under the law, good administrative practice requires the use of uniform
standards applicable to all claimants.7 The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.8
ANALYSIS
Appellant’s claim was accepted by the Office for hallux valgus deformities of both feet
and hammertoes. He underwent surgery of the right foot consisting of an excision of a Morton’s
neuroma. In rating appellant’s impairment as 20 percent of the lower extremities, the Board
notes that Dr. Jacob did not properly apply the A.M.A., Guides. As noted by the Office medical
adviser, he rated impairment for loss of strength with reference to tables appearing in Chapter 16,
which is relevant to rating upper extremity impairment.9 Dr. Jacob, therefore, did not properly
identify the corresponding lower extremity nerve which would cause loss of strength to either
leg. Although Dr. Jacob properly referred to Table 17-14 in rating loss of range of motion to the
great toes and lesser toes of both feet, he miscalculated the total loss as eight percent to each leg.
Under Table 17-14, the impairment allowed for great toe MP and IP impairment, as described, is
a total of two percent for mild impairment with another two percent allowed for the MP loss of
the lesser toes. This results in a total of four percent impairment for loss of range of motion to
each lower extremity, as noted by the Office medical adviser. Therefore, Dr. Jacobs erroneously
doubled the extent of loss of range of motion impairment in making his rating. His rating of
sensory loss, or pain, is also not in conformance with the A.M.A., Guides. Dr. Jacobs noted only
that he allowed five percent impairment for dyesthesia to both lower extremities under
Table 17-37. However, he did not identify the nerve root causing impairment and he did not
5

5 U.S.C. §§ 8101-8193.

6

5 U.S.C. § 8107.

7

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

8

20 C.F.R. § 10.404.

9

Dr. Jacob’s did not address Table 17-37, which provides a protocol for evaluating motor loss to the lower
extremities.

3

grade the extent of the nerve deficit with reference to Table 16-10 as directed at page 550. This
error was also noted by the Office medical adviser. For these reasons, the impairment rating
provided by Dr. Jacob’s is of diminished probative value.
The Board finds that the weight of medical opinion is represented by the report of the
Office medical adviser who reviewed the report of Dr. Jacobs and provided explanation for
determining that appellant had five percent impairment of his right lower extremity due to
sensory loss of one percent and loss of range of motion of four percent. As to the left leg, the
Office medical adviser found four percent impairment based on loss of range of motion. There is
no other medical evidence establishing greater impairment that conforms to the A.M.A., Guides.
CONCLUSION
The Board finds that appellant has five percent impairment to his right leg and four
percent impairment to his left leg, for which he received schedule awards.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 28, 2007 be affirmed.
Issued: June 12, 2008
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