United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS CRISIS LINE, Atlanta, GA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 20-1499
Issued: August 18, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On August 5, 2020 appellant filed a timely appeal from a July 22, 2020 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant 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.

ISSUE
The issue is whether appellant has met her burden of proof to establish chemical exposure
while in the performance of duty on March 28, 2020, as alleged.
FACTUAL HISTORY
On March 31, 2020 appellant, then a 42-year-old health science specialist, filed a traumatic
injury claim (Form CA-1) alleging that on March 28, 2020 at approximately 6:15 a.m. she had an
asthma attack due to exposure to a substance sprayed from an aerosol can while in the performance
of duty. She asserted that her coworker in the adjacent room sprayed the aerosol can twice, which
elevated her heart rate and caused difficulty breathing with choking and coughing. Appellant noted
that the fire department and paramedics were summonsed, and that her blood pressure elevated.
On the reverse side of the claim form, E.E., a supervisor with the employing establishment,
acknowledged that appellant was injured while in the performance of duty.
In an undated work excuse note, an unidentifiable healthcare provider excused appellant
from work on March 30, 2020 for severe allergies and indicated that she could return to work on
April 6, 2020. In a separate undated work excuse note, Dr. Jahmal Hairston, a Board-certified in
otolaryngologist, excused appellant from work on April 3, 2020 and indicated that she could return
to work on April 10, 2020
In an undated witness statement, L.S., appellant’s supervisor, noted that on March 28, 2020
appellant reached out to supervisors at approximately 6:06 a.m., alleging that someone sprayed an
unknown substance next door triggering her asthma attack. She indicated that she, along with
other supervisors, immediately rushed to appellant’s office, but initially found no visible signs of
distress. L.S. alleged that they could not smell anything in the room or the hallway. She attested
that when they checked on appellant’s coworkers in the adjacent room, they explained that they
had not sprayed anything but were using disinfecting wipes. L.S. related that appellant asserted
that the smell was stronger than the wipes and that she heard something being sprayed. She
observed that appellant took several long pauses as she reported having difficulty breathing. L.S.
indicated that appellant initially refused to seek medical attention, but eventually requested
medical assistance. She noted that emergency medical services (EMS) promptly arrived and that
the situation was resolved by 8:00 a.m.
In an April 10, 2020 witness statement, W.H., appellant’s coworker, noted that he was
aware that aerosols had been used at the employing establishment.
In an April 13, 2020 e-mail, K.R., appellant’s coworker, noted that on March 28, 2020 she
had left her office briefly and her managers came into her office to ask if someone sprayed
something.
On April 15, 2020 the employing establishment controverted appellant’s claim, asserting
that she had not submitted sufficient evidence to establish causal relationship.

2

In an undated work excuse note, an unidentifiable healthcare provider excused appellant
from work on April 10, 2020 for severe allergies and indicated that she could return to work on
April 17, 2020.
In an April 16, 2020 duty status report (Form CA-17), Dr. Hairston indicated that
appellant’s asthma was triggered at work on March 28, 2020. He provided work restrictions.
In an April 30, 2020 development letter, OWCP noted that, when appellant’s claim was
first received, it appeared to be a minor injury that resulted in minimal or no lost time from work
and, therefore, payment of a limited amount of medical expenses was administratively approved
without formally considering the merits of her claim. It reopened the claim for consideration and
requested additional factual and medical evidence from appellant. OWCP provided her with a
questionnaire for her completion and afforded her 30 days to respond.3
In a March 30, 2020 medical report, Dr. Hairston recounted that appellant reported that she
had experienced an asthma attack at work on March 28, 2020 after her coworker sprayed an
unknown substance in their workspace. He indicated that appellant’s long-term asthma pattern
may be classified as moderately persistent and gradually developed over the years. Dr. Hairston
noted that appellant experienced symptoms including wheezing, chest tightness, and shortness of
breath, pain, as well as difficulty breathing. He opined that appellant’s asthma was triggered by
an aerosol spray at work on March 28, 2020.
In an April 6, 2020 medical report, Dr. Hairston noted that appellant presented for follow
up for treatment of asthma. He diagnosed allergic rhinitis, dyspnea, nasal hypertrophy, and
asthma.
In an April 16, 2020 medical report, Dr. Hairston diagnosed allergic rhinitis, nasal
hypertrophy, and nasal obstruction.
An April 20, 2020 computerized tomography (CT) scan of the paranasal sinuses revealed
mucosal thickening of the maxillary and ethmoid sinuses, narrowing of the ostiomeatal units, nasal
septal deviation, and mucosal hypertrophy of the turbinates narrowing the nasal air passageway.
In an April 21, 2020 medical report, Dr. Neil Persaud, a cosmetic, plastic, and
reconstructive surgery specialist, noted that appellant presented for allergy evaluation. He
indicated that appellant suffered an asthma episode on March 28, 2020.
In a May 4, 2020 medical report, Dr. Hairston diagnosed chronic sinusitis.
In a May 5, 2020 response to OWCP’s development questionnaire, appellant indicated that
she had been experiencing ongoing asthmatic symptoms prior to the alleged employment incident.
She asserted that her asthma was triggered, however, when D.H., her coworker, reported to work
one hour before her shift and sprayed equipment. Appellant related that she heard a woman’s
voice around 6:00 a.m. and then an aerosol can being sprayed twice at approximately 6:15 a.m.
She attested that she began experiencing asthmatic symptoms, including shortness of breath, racing
3

On May 29, 2020 OWCP afforded appellant additional 30 days to submit the requested evidence.

3

heart, and difficulty breathing. Appellant noted that her supervisors arrived in her room 10 minutes
later to inspect the situation. She asserted that her supervisors never inspected her coworker’s
belongings to confiscate what was sprayed.
By decision dated July 22, 2020, OWCP denied appellant’s claim, finding that she had not
established the factual component of her claim. It concluded that the requirements had, therefore,
not been met to establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,5 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. The second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.8
An injury does not have to be confirmed by eyewitnesses in order to establish the fact that
an employee sustained an injury in the performance of duty, but the employee’s statements must
be consistent with the surrounding facts and circumstances and his or her subsequent course of
action.9 The employee has not met his or her burden of proof of establishing the occurrence of an
injury when there are such inconsistencies in the evidence as to cast serious doubt upon the validity
of the claim. Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast serious doubt on an employee’s statements
4

Supra note 1.

5
F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
6

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
7

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
9

See J.M., Docket No. 19-1024 (issued October 18, 2019); M.F., Docket No. 18-1162 (issued April 9, 2019).

4

in determining whether a case has been established. An employee’s statement alleging that an
injury occurred at a given time and in a given manner is of great probative value and will stand
unless refuted by strong or persuasive evidence.10
ANALYSIS
The Board finds that appellant has met her burden of proof to establish chemical exposure
while in the performance of duty on March 28, 2020.
Appellant has consistently reported that on March 28, 2020 her asthma attack was triggered
by chemical exposure while in the performance of duty. She has also reported that she experienced
multiple symptoms, including asthma, as a result. Appellant submitted a detailed account of the
March 28, 2020 employment incident in her May 5, 2020 response to OWCP’s development
questionnaire, which is consistent with the account she provided on her claim form. As noted, an
employee’s statement alleging that an injury occurred at a given time and place, and in a given
manner is of great probative value and will stand unless refuted by strong or persuasive evidence.11
On the reverse side of the claim form E.E., a supervisor with the employing establishment,
acknowledged that appellant was injured while in the performance of duty and that the facts about
the injury comported with statements from appellant and/or witnesses. Supervisor L.S. also
explained that coworkers in the office next to appellant were using a disinfectant at the time. The
Board further notes that appellant sought medical treatment on the morning of the alleged
exposure. The history of the March 28, 2020 employment incident was also confirmed by
Drs. Hairston and Persaud’s medical reports, which referenced the employment incident and noted
their examinations contemporaneous to the said incident. For these reasons, the Board finds that
this evidence of record is sufficient to establish that the alleged March 28, 2020 employment
incident occurred as alleged.12 Appellant has, thus, established the factual component of fact of
injury.13
As appellant has established that the claimed occupational exposure occurred, as alleged,
the question becomes whether this exposure caused an injury.14 As OWCP found that appellant
had not establish fact of injury, it did not evaluate the medical evidence. Thus, the Board will set
aside OWCP’s July 22, 2020 decision and remand the case for consideration of the medical
evidence of record.15 After any such further development as deemed necessary, OWCP shall issue

10

See M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67 (2007).

11

Id.

12

C.R., Docket No. 20-1147 (issued January 5, 2021).

13

Id.

14

See J.C., Docket No. 18-1803 (issued April 19, 2019).

15

S.A., Docket No. 19-1221 (issued June 9, 2020).

5

a de novo decision addressing whether appellant has met her burden of proof to establish an injury
causally related to the accepted occupational exposure.16
CONCLUSION
The Board finds that appellant has met her burden of proof to establish chemical exposure
while in the performance of duty on March 28, 2020. The Board further finds that this case is not
in posture for decision regarding whether appellant has established an injury causally related to
the accepted chemical exposure.
ORDER
IT IS HEREBY ORDERED THAT the July 22, 2020 decision of the Office of Workers’
Compensation Programs is reversed and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: August 18, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

16

P.S., Docket No. 19-1818 (issued April 14, 2020).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
REGION IV, Atlanta, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-1969
Issued: February 2, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 10, 2014 appellant, through his attorney, filed a timely appeal from the
July 16, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that he sustained an incontinence condition
consequential to his accepted work injuries that caused work-related disability on or after
June 3, 2013.
FACTUAL HISTORY
On August 17, 2006 appellant, then a 45-year-old claims representative, filed a traumatic
injury claim alleging that on August 17, 2006 he entered a restroom at work and he slipped due
1

5 U.S.C. §§ 8101-8193.

to a leaking urinal. He indicated that he had to hold onto a partition to keep from falling down.
OWCP accepted that appellant sustained a lumbar sprain and lumbar stenosis.
On January 11, 2007 Dr. Juris Shibayama, an attending Board-certified orthopedic
surgeon, performed OWCP-authorized surgery, including L4-5 laminectomy, bilateral
foraminotomies, and fusion with instrumentation and bone graft. Appellant returned to work for
four hours a day on March 21, 2007.
In an October 17, 2007 report, Dr. Shibayama noted that appellant had been doing very
well following his L4-5 fusion until he was rear-ended in a motor vehicle accident on August 2,
2007 by a vehicle he thought was going 30 to 40 miles an hour. He indicated that when
appellant was seen in the emergency room he was extremely sore and he had episodes of
complete buttock numbness and difficulty controlling his urine and bowel, requiring him to rush
to the bathroom. On October 22, 2007 Dr. Shibayama performed cervical surgery on appellant
(between the C4 and C7 levels) due to his motor vehicle accident. He indicated that, prior to the
August 2, 2007 accident, appellant had no signs or symptoms of bladder or bowel issues.
Appellant stopped work on March 14, 2011 and OWCP accepted his claim for a
recurrence of disability beginning that date. He was placed on the periodic compensation rolls.
On April 8, 2011 Dr. Shibayama performed OWCP-authorized L3-4 laminectomy,
bilateral foraminotomies, and fusion with instrumentation. On June 8, 2011 he noted that
appellant was having bowel and bladder incontinence. OWCP-authorized appellant to undergo
spinal cord stimulator implant surgery on September 19, 2012. In an October 16, 2012 report,
Dr. Shibayama indicated that appellant was pleased with the results of the spinal cord stimulator.
On October 30, 2012 Dr. Shibayama indicated that appellant could start working four
hours a day for three weeks and could increase his work hours to six and eight hours a day over
three-to-four week intervals. He stated that appellant could not bend, twist, or lift greater than 10
pounds and that he could not drive more than 20 minutes at a time because the spinal cord
stimulator had to be turned off while driving.
On November 8, 2012 the employing establishment advised OWCP that the job it was
offering to appellant did not require driving, but that he wanted a job within 20 miles from his
home. The record contains an internet map service printout showing that the distance from his
home to his workplace was approximately 21 miles, a drive which took approximately 27
minutes.
On November 17, 2012 appellant accepted the modified-duty job of social insurance
specialist for four hours a day. By January 29, 2013 he had gradually increased his work hours
to eight hours per day.
In December 18, 2012 and January 1, 2013 reports, Dr. Shibayama continued to
recommend that appellant not drive more than 20 minutes to work due to his having to turn off
his spinal cord stimulator. In an April 30, 2013 report, he noted that appellant was doing well
post fusion surgery and indicated that his spinal cord stimulator was helping his condition.
Dr. Shibayama recommended that appellant not drive more than 20 minutes at a time because he
has to turn off the spinal cord stimulator, which in turn caused a severe increase in pain that
2

could be incapacitating and might render him unable to work. He recommended a change in
work location but he did not mention any incontinence issues.
On May 13, 2013 Dr. Shibayama noted that appellant reported doing well with his spinal
cord stimulator. He stated that appellant reported that he recently had a transient ischemic
accident and had been taken to the emergency room following a black out where he found
himself on the floor. Appellant also stated that he experienced an episode of urinary
incontinence at work. Dr. Shibayama noted that fluoroscopic images from appellant’s spinal
cord stimulator showed that the left lead had pulled back, but he noted that this would not
explain appellant’s urinary problem. He indicated that he would reprogram the spinal cord
stimulator to make sure that there was no stimulation. Dr. Shibayama noted that, since appellant
recently experienced a transient ischemic accident, it was reasonable to refer him to an urologist
to evaluate possible compression as he might be experiencing a neurogenic bladder.
Appellant stopped work on May 17, 2013 and has not returned. On May 30, 2013 the
employing establishment proposed to remove him from his job due to inappropriate conduct of a
sexual nature with three coworkers. Appellant took annual and sick leave through May 31, 2013
and then began to take leave without pay on June 3, 2013 prior to his retirement. The employing
establishment stated that it did not terminate appellant because he had filed for disability
retirement.
On June 3, 2013 Dr. Troy Sofinowski, an attending Board-certified urologist, indicated
that appellant saw him for an incontinence problem. He did not provide an opinion on the cause
of this condition, but noted that additional testing would be needed if appellant failed medical
management.
In June 4, 2013 reports, Dr. Shibayama noted that appellant had an episode of complete
incontinence at work on May 9, 2013. He indicated, however, that it was not an incident of true
incontinence. On June 4, 2013 Dr. Shibayama stated that appellant urgently needed a computed
tomography (CT) myelogram due to his incontinence. The testing was performed on
June 10, 2012.
In a June 11, 2013 report, Dr. Shibayama noted the CT myelogram showed that the spinal
cord stimulator was in the expected position, but that there were mild-to-moderate L2 canal
stenosis and postsurgical changes from L3 to L5. He posited that appellant was experiencing
symptoms at L2-3 and recommended that he have an epidural injection and continue to stay off
work. Dr. Shibayama stated that if appellant did not respond to this treatment L2-3 laminectomy
surgery would be considered.
In a June 13, 2013 report, Dr. William Newton, an attending Board-certified physical
medicine and rehabilitation physician, noted that appellant’s urology testing indicated that he had
bladder nerve irritation and a significant decrease in urgency since he started Flowmax. He
noted that appellant’s CT myelogram was unremarkable with no compression of the spine to
correlate with his incontinence. Dr. Newton noted appellant’s spinal cord stimulator had been
reprogrammed approximately 10 days prior and that he was getting better coverage for his legs.
He indicated that appellant’s main complaints focused on his upper and middle back, between
his scapula, but he did not discuss appellant’s ability to work.

3

On June 10 and 28, 2013 appellant filed CA-7 forms, claim for compensation, alleging
entitlement to compensation for total disability from June 3 to 14, 2013 and June 17 to 28, 2013.
A Notification of Personnel Action (Form SF-50) indicated that he filed for disability retirement
on June 24, 2013.
In June 21 and July 12, 2013 letters, OWCP informed appellant that he needed to submit
medical evidence in support of his compensation claim. In a July 15, 2013 telephone call to
OWCP, appellant advised that he quit his job due to urinary incontinence. OWCP informed him
that Dr. Newton had stated that there was no compression of the spinal cord to correlate with the
incontinence.
In a July 15, 2013 report, Dr. Shibayama stated that appellant seemed to be getting
progressively worse which he felt was a continuation of his work-related injury. He asserted that
appellant had bowel and bladder incontinence because of his stenosis, which had been present
since early June 2013. Dr. Shibayama posited that appellant was unable to work.
On July 18, 2013 Dr. Shibayama indicated that appellant had been doing relatively well
until approximately early May 2013. He noted that appellant was having issues with
incontinence and that he experienced no improvement through his urologist. Dr. Shibayama
indicated that appellant had been unable to work for the past couple of months. He noted that, on
examination, appellant was very distressed and stated that he had an overweight body habitus at
270 pounds. Dr. Shibayama found that appellant had 5/5 strength and intact sensation. He noted
that appellant’s urinary incontinence was of concern and indicated that he needed to undergo
L2-3 laminectomy as soon as possible.
In a July 25, 2013 report, Dr. Shibayama requested L2-3 surgery and stated that delay
would result in continued incontinence. On July 31, 2013 he performed L2-3 laminectomy
surgery. On August 26, 2013 Dr. Sofinowski reported that appellant’s urinary incontinence had
improved since his July 31, 2013 surgery. He did not provide any opinion on the cause of
appellant’s urinary symptoms.
In a September 12, 2013 report, Dr. Shibayama indicated that appellant was six weeks
post L2-3 laminectomy and that his urinary symptoms were better, but had not resolved. He
opined that it would take appellant a year to recover due to the severity of his stenosis symptoms
and referred appellant to a new pain management specialist at appellant’s request.
In an October 21, 2013 decision, OWCP denied appellant’s claim for compensation from
June 3 to 14, 2013 and June 17 to 28, 2013. It stated that Dr. Shibayama provided no objective
findings with medical rationale indicating that appellant’s urinary incontinence was causally
related to the accepted work injury. OWCP noted that the July 31, 2013 back surgery performed
by Dr. Shibayama was not authorized. It also denied a request for electroflowmetry and urine
capacity measure, because it was not established that appellant’s incontinence was causally
related to his work injury.
Appellant underwent a new myelogram on January 3, 2014 due to Dr. Shibayama’s
concerns of L2-3 stenosis, but he did not indicate in his January 14, 2014 report that there were

4

any new findings. Dr. Shibayama continued to produce reports in which he indicated that
appellant should be kept off work.
Appellant requested a telephonic hearing with an OWCP hearing representative. During
the May 13, 2014 hearing, he testified that he requested retirement after having urination
problems while interviewing a claimant. Appellant indicated that he hardly had any feeling
below his waist due to his stimulator machine. He testified that June 3, 2013 constituted the
second occasion that he had incontinence problems at work. Appellant stated that, since his last
surgery, the frequent urination problems had decreased by 70 percent.
In a November 27, 2013 report, Dr. Shibayama noted that appellant’s L2-3 stenosis and
neurogenic claudication and July 30, 2013 emergency surgery were due to his August 17, 2006
injury because his prior L4-5 surgery had been delayed. He opined that appellant’s total
disability started June 4, 2013, the first time he saw appellant after his bladder incontinence on
May 19 and June 3, 2013.
In a June 3, 2014 report, Dr. Shibayama noted that appellant’s injections helped to some
degree. He stated that appellant’s thigh burning was reduced but was still present. Appellant’s
x-rays showed that his hardware was in excellent position and that the fusions consolidated
extremely well. Dr. Shibayama noted that appellant’s bladder issues were slowly improving to
some degree and recommended that he continue off work.
In a July 16, 2014 decision, the hearing representative affirmed OWCP’s October 21,
2013 decision. She found that the medical evidence did not show that appellant had work-related
disability on or after June 3, 2013 due to his accepted work-related conditions or that he
sustained incontinence as a consequence of his accepted work-related conditions.
LEGAL PRECEDENT
The general rule respecting consequential injuries is that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause, which is attributable to the employees own intentional conduct.2
A claimant bears the burden of proof to establish a claim for a consequential injury. As part of
this burden, he or she must present rationalized medical opinion evidence.3
An employee seeking benefits under FECA 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 FECA, that the claim was timely filed within the applicable time
limitation period of FECA, 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.4 The medical evidence required to establish a causal
2

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

3

Charles W. Downey, 54 ECAB 421 (2003).

4

J.F., Docket No. 09-1061 (issued November 17, 2009).

5

relationship between a claimed period of disability and an employment injury is rationalized
medical opinion evidence. 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 appellant.5
Whether a particular employment injury causes disability for employment and the
duration of that disability are medical issues, which must be proved by a preponderance of
reliable, probative and substantial medical evidence.6
ANALYSIS
The Board finds that appellant did not establish that he sustained disability on or June 3,
2013 due to a work-related incontinence condition or the direct effects of his accepted work
injuries, lumbar sprain, and lumbar stenosis.
In the present claim, appellant contended that he had to stop work and retire because of
incontinence caused by his work-related back injury. There is no mention of urinary issues until
the October 17, 2007 report of Dr. Shibayama, an attending Board-certified orthopedic surgeon,
when he noted that appellant had been doing very well following his L4-5 fusion until he was
rear-ended on August 2, 2007 by a motor vehicle he thought to be going 30 to 40 miles an hour.
He indicated that appellant was seen in the emergency room and had been extremely sore.
Appellant experienced episodes of complete buttock numbness and difficulty controlling his
urine and bowel, which caused him to rush to the bathroom. On October 22, 2007
Dr. Shibayama performed cervical surgery on appellant (between the C4 and C7 levels) due to
his motor vehicle accident. He indicated that, prior to the August 2, 2007 accident, appellant had
no symptoms of bladder or bowel issues. Appellant’s motor vehicle accident, any subsequent
injuries or incontinence caused by that accident are not work related.
In reports dated from June and July 2013, Dr. Shibayama first asserted that appellant had
been unable to work beginning June 3, 2013 due to incontinence related to his work-related
stenosis. He did not explain how appellant’s incontinence condition was due to his accepted
work injuries. Explanation on that point is important because appellant’s incontinence did not
begin until his motor vehicle accident in 2007, which required cervical surgery. Dr. Shibayama
also failed to discuss the significance of appellant’s early-May 2013 transient ischemic accident,
which caused him to black out and fall to the floor. Appellant had incontinence a few days after
this incident which occurred shortly before he stopped work.
The Board notes that there is no opinion from a physician specializing in incontinence
conditions that appellant’s incontinence problems were caused by his accepted work injuries.
There was no mention of incontinence in the medical records between September 6, 2011 and
May 13, 2013, when appellant saw Dr. Newton, a Board-certified physical medicine and
rehabilitation physician, who noted that appellant had recently had a transient ischemic accident
5

See E.J., Docket No. 09-1481 (issued February 19, 2010).

6

W.D., Docket No. 09-658 (issued October 22, 2009).

6

and blacked out, falling to the floor, and then a few days later had urinary incontinence.
Dr. Newton did not provide an opinion on the cause of appellant’s incontinence, but he noted
that appellant’s CT myelogram was unremarkable with no compression of the spine to correlate
with his incontinence. No other physician of record commented on this aspect of the medical
evidence. Appellant did not submit a fully-rationalized medical report to support his claim that
his incontinence condition was related to his accepted work injuries.
For these reasons, appellant did not meet his burden of proof to establish that he sustained
the condition of incontinence because of his accepted work injuries. As he has not established
such a consequential injury, he has not established that he had work-related disability on or after
June 3, 2013 due to an incontinence condition. Moreover, appellant did not submit rationalized
medical evidence showing that he had work-related disability on or after June 3, 2013 due to the
effects of his accepted work injuries, lumbar sprain, and lumbar stenosis.
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 meet his burden of proof to establish that he
sustained the condition of incontinence as a consequence of his accepted work injuries. The
Board further finds that he did not meet his burden of proof to establish that he had work-related
disability on or after June 3, 2013, either due to a work-related incontinence condition or the
direct effects of his accepted work injuries.

7

ORDER
IT IS HEREBY ORDERED THAT the July 16, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 2, 2015
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.E., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
WEST LOS ANGELES VETERANS
ADMINSTRATION MEDICAL CENTER,
Los Angeles, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 09-2047
Issued: April 14, 2010

Case Submitted on the Record

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

JURISDICTION
On August 11, 2009 appellant filed a timely appeal of the February 23 and June 17, 2009
merit decisions of the Office of Workers’ Compensation Programs finding that she did not
sustain an injury while in the performance of duty. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that she sustained a right thumb injury or
condition on February 1, 2006, as alleged.
On appeal, appellant contends that her right thumb injury continues to prevent her from
pushing heavy carts and gripping trays as required by her job.

FACTUAL HISTORY
On February 8, 2006 appellant, then a 32-year-old food service worker, filed a traumatic
injury claim alleging that on February 1, 2006 she bruised her right thumb. When pushing a cart
into a refrigerator, the refrigerator door closed smashing her right thumb. Appellant stopped
work for one hour on February 1, 2006.
In a January 12, 2009 disability certificate, Dr. Richard Kay, an attending Board-certified
internist, advised that appellant sustained de Quervain’s tendinitis and osteoarthritis of the right
thumb and that she was totally disabled for work from January 13 to February 1, 2009. Dr. Kay
added that appellant could return to light-duty work on February 2, 2009.
On January 16, 2009 appellant filed a claim alleging that she sustained a recurrence of
disability on December 18, 2008 due to her February 1, 2006 injury.
By letter dated January 23, 2009, the Office requested that appellant submit factual and
medical evidence, including a rationalized medical report from an attending physician which
described a history of injury, provided a firm diagnosis, findings, symptoms and test results
together with an opinion with medical reasons on why the diagnosed condition was caused or
aggravated by the February 1, 2006 incident.1 It explained that since it had not adjudicated the
merits of the case when it administratively paid for medical treatment in 2006, it had to make a
formal decision on both her original claim for injury on February 1, 2006 and her claim for a
recurrence of disability.
In a January 29, 2009 disability certificate, Dr. Kay reiterated his diagnoses of
de Quervain’s tendinitis of the right thumb and finding that appellant was totally disabled from
January 13 to February 1, 2009. Appellant required physical restrictions until February 28, 2009.
In a January 27, 2009 employing establishment form, Dr. Kay reviewed a history of the
February 1, 2006 incident and opined that appellant’s de Quervain’s tendinitis of the right thumb
was caused by the accepted incident. Appellant was temporarily disabled from March 13 to
April 13, 2009.
A February 6, 2006 progress note from Elnora Cunningham, a physician’s assistant,
advised that appellant could continue performing light-duty work with restrictions until
February 21, 2006. In a March 30, 2006 note, Ms. Cunningham advised that appellant could
return to work on that date with no restrictions.
By decision dated February 23, 2009, the Office denied appellant’s claims. It found that
the medical evidence was insufficient to establish that she sustained an injury or condition,
specifically de Quervain’s tenosynovitis or osteoarthritis, or a recurrence of disability causally
related to the accepted February 1, 2006 employment incident.

1

In the January 23, 2009 developmental letter, the Office indicated that appellant’s claim was originally received
as a simple and uncontroverted case resulting in minimal or no time lost from work. It paid appellant compensation
for limited medical expenses without formal adjudication of her claim.

2

On March 12, 2009 appellant requested a review of the written record by an Office
hearing representative. In a February 24, 2009 statement, she alleged that on September 24,
2009 she cut her right thumb on the sharp edge of a metal cabinet while at work.
In a February 26, 2009 disability certificate and March 5, 2009 report, Dr. Kay reiterated
the diagnosis of de Quervain’s tendinitis of the right thumb. He advised that appellant could
perform light-duty work from February 2 through August 2, 2009.
In a February 2, 2006 progress note, Ms. Cunningham stated that appellant sustained a
possible right thumb contusion. She could continue to perform light-duty work through
February 21, 2006. In an April 3, 2006 progress note, Ms. Cunningham stated that appellant
sustained a possible right thumb strain. She was released to full-duty work.
In a February 1, 2006 progress note, Michael Steinberg, a physician’s assistant, reviewed
a history of the February 1, 2006 employment incident. He also reviewed a February 1, 2006
x-ray which revealed no evidence of an acute right hand osseous injury or significant
degenerative disease. In a September 24, 2006 progress note, Jean H. Chang, a registered nurse,
indicated that appellant received a tetanus shot for a skin tear.
By decision dated June 17, 2009, an Office hearing representative affirmed the
February 23, 2009 decision. The hearing representative found the medical evidence insufficient
to establish that appellant sustained a right thumb injury or condition, consisting of right thumb
de Quervain’s tenosynovitis or osteoarthritis of the right thumb causally related to the
February 1, 2006 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
filed within applicable time limitation, that an injury was sustained while in the performance of
duty as alleged, and that any disability and/or specific condition for which compensation is
claimed are causally related to the employment injury.3 These are the essential elements of each
and every compensation claim regardless of whether the claim is predicated on a traumatic injury
of an occupational disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee

2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

4

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999); Elaine Pendleton, supra
note 3.

3

actually experienced the employment incident or exposure, which is alleged to have occurred.5
In order to meet her burden of proof to establish the fact that she sustained an injury in the
performance of duty, an employee must submit sufficient evidence to establish that she actually
experienced the employment injury or exposure at the time, place and in the manner alleged.6
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.7 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.8 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.9
ANALYSIS
The Office accepted that appellant pushed a cart into a refrigerator which closed on her
right thumb on February 1, 2006 while working as a food service worker. The Board finds that
the medical evidence of record is insufficient to establish that her right thumb condition was
caused or aggravated by the February 1, 2006 employment incident.
Dr. Kay provided reports which found that appellant sustained de Quervain’s tendinitis
and osteoarthritis of the right thumb. He advised that she was totally disabled for work from
January 13 to February 1, 2009. Dr. Kay stated that appellant could perform light-duty work
from February 2 through August 2, 2009. This evidence, however, does not discuss how the
diagnosed conditions were caused or contributed to by the accepted February 1, 2006
employment incident. This is important as the accepted incident took place some three years
prior to his examination. Dr. Kay failed to explain how the refrigerator door closing on
appellant’s thumb would cause or contribute to the diagnosed de Quervain’s tendinitis or
osteoarthritis of appellant’s right thumb. His opinion is insufficient to establish that she
sustained an employment injury causally related to the accepted employment incident.10 Dr. Kay
reiterated in a January 27, 2009 employing establishment form that appellant’s de Quervain’s
tendinitis of the right thumb was caused by the February 1, 2006 employment incident and that
she was temporarily disabled from March 13 to April 13, 2009. This report, however, does not
cure the deficiencies in rationale explaining the mechanism of injury and causal relationship.
The Board finds that Dr. Kay’s opinion is insufficient to establish appellant’s claim.

5

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995).

6

Linda S. Jackson, 49 ECAB 486 (1998).

7

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined).
8

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

9

Charles E. Evans, 48 ECAB 692 (1997).

10

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

4

The progress notes from Ms. Cunningham and Mr. Steinberg, physician’s assistants, and
Ms. Chang, a registered nurse, have no probative medical value in establishing appellant’s claim.
Physician’s assistants and registered nurses are not physicians as defined under the Act.11
The Board finds that there is insufficient rationalized medical evidence of record to
establish that appellant sustained a right thumb injury causally related to the accepted
February 1, 2006 employment incident. Appellant did not meet her burden of proof.
CONCLUSION
The Board finds that appellant has failed to establish that she sustained right thumb injury
or condition in the performance of duty on February 1, 2006, as alleged.12
ORDER
IT IS HEREBY ORDERED THAT the June 17 and February 23, 2009 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: April 14, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

11

Roy L. Humphrey, 57 ECAB 238, 242 (2005); 5 U.S.C. § 8101(2).

12

In view of the disposition of this appeal, the issue of whether appellant established a recurrence of disability
causally related to the February 1, 2006 employment incident, as addressed by the district Office in its February 23,
2009 decision, is moot.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Warrenton, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Appellant, pro se
No appearance, for the Director

Docket No. 09-1378
Issued: October 20, 2009

Oral Argument September 10, 2009

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On May 5, 2009 appellant filed a timely appeal from Office of Workers’ Compensation
Programs’ March 9, 2009 merit decision denying her claim for recurrence of disability and the
April 22, 2009 nonmerit decision denying her request for an oral hearing. Pursuant to 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 the Office properly denied appellant’s request for an oral
hearing as untimely under 5 U.S.C. § 8124; and (2) whether appellant is entitled to wage-loss
compensation for the period October 26 through November 2, 2008.
FACTUAL HISTORY
On December 21, 2006 appellant, a 52-year-old supervisory air traffic control specialist,
filed a claim alleging that she sustained injuries to her lower back and shoulder on December 13,

2006 while reaching for folders.1 The Office initially denied her claim on September 26, 2007
on the grounds that she had failed to establish fact of injury. Following an Office hearing
representative’s June 30, 2008 decision reversing the September 26, 2007 decision, it accepted
appellant’s claim for a lumbar sprain.
On August 20, 2008 appellant submitted a Form CA-2a alleging that she sustained a
recurrence of disability as of July 9, 2008 while she was typing at work. On November 21, 2008
she submitted a claim for compensation for the period October 26 through November 2, 2008. In
support of her claim, appellant provided an October 27, 2008 attending physician’s report from
Dr. Robert Goldman, a treating physician, who stated that she was disabled from October 23
through November 8, 2008. Dr. Goldman indicated by placing a checkmark in the “yes” box
that appellant’s condition was causally related to an employment activity.” In response to a
request for an explanation of his opinion, he stated, “aggravated strain.”
On February 5, 2009 the Office informed appellant that the evidence submitted was
insufficient to establish that she had sustained a recurrence of disability or that she was disabled
during the alleged period. It advised her to submit a detailed statement regarding the recurrence
of her disability and a medical report which contained a diagnosis and a rationalized opinion as
to how her current disabling condition was causally related to the original work injury.
By letter dated March 3, 2009, the Office informed appellant that she had until March 9,
2009 to supply sufficient evidence in support of her request for compensation.
The record contains a March 3, 2009 statement from appellant received by the Office on
March 9, 2009. She indicated that she had never completely recovered from her December 13,
2006 injury, noting that she had continued to experience stiffness and pain in her neck muscles.
Appellant asserted that her flare-ups were a direct result of the original injury. She noted that she
had sustained a traumatic injury in March 2008, when she fell in the employing establishment
cafeteria and reinjured her neck in June 2008 while on official travel in Atlanta.
The record also contains a copy of a February 26, 2009 letter to appellant’s employer
from Dr. Olivia Gomez, a Board-certified internist. The letter was received by the Office on
March 9, 2009. Dr. Gomez stated that, on October 23, 2008, Dr. Goldman had diagnosed
recurrent strain and new strain to the neck and left shoulder and had placed appellant “off work”
for two weeks. She asked the employer to assist appellant with any paper work necessary to
cover the time in October and November of 2008, “when she had medical reasons to be off
work.” The record also contains an October 6, 2008 report of an x-ray of the cervical spine,
which was received on March 9, 2009.
By decision dated March 9, 2009, the Office denied appellant’s compensation claim,
stating that it had received no response to its February 5, 2009 development letter. It found that
the evidence of record failed to support disability during the alleged period.

1

Appellant originally filed a CA-2a form alleging a recurrence of disability under OWCP File No. xxxxxx711.
The Office determined that she was alleging a new injury and processed her claim as an occupational disease claim
(OWCP File No. xxxxxx080).

2

Appellant submitted an undated request for an oral hearing. The record contains a copy
of the envelope in which the request was delivered reflecting a postmark of April 9, 2009. By
decision dated April 22, 2009, the Office hearing representative denied appellant’s request for an
oral hearing as untimely.
LEGAL PRECEDENT -- ISSUE 1
Section 8124(b)(1) of the Federal Employees’ Compensation Act provides that a claimant
not satisfied with a decision of the Office is entitled to a hearing before an Office hearing
representative when the request is made within 30 days after issuance of the Office’s decision.2
Under the implementing regulations, a claimant who has received a final adverse decision by the
Office is entitled to a hearing by writing to the address specified in the decision within 30 days
(as determined by postmark or other carrier’s date marking) of the date of the decision for which
a hearing is sought.3 If the request is not made within 30 days, or if it is made after a
reconsideration request, a claimant is not entitled to a hearing or a review of the written record as
a matter of right.4
The Board has held that the Office, in its broad discretionary authority in the
administration of the Act, has the power to hold hearings in certain circumstances where no legal
provision was made for such hearings and that the Office must exercise this discretionary
authority in deciding whether to grant a hearing. The Office’s procedures, which require the
Office to exercise its discretion to grant or deny a hearing when the request is untimely or made
after reconsideration, are a proper interpretation of Board precedent.5
ANALYSIS -- ISSUE 1
The 30-day time period for determining the timeliness of appellant’s request for an oral
hearing commenced on the first day following the issuance of the Office’s March 9, 2009
decision.6 The 30th day following its issuance fell on April 8, 2009. The date of filing for
appellant’s hearing request was fixed by the date of the postmark, namely, April 9, 2009.7 As
her request for an oral hearing was made more than 30 days following the issuance of the

2

5 U.S.C. § 8124(b)(1).

3

20 C.F.R. § 10.616(a); 5 U.S.C. § 8124(b)(1).

4

Teresa Valle, 57 ECAB 542 (2006).

5

D.E., 59 ECAB ___ (Docket No. 07-2334, issued April 11, 2008).

6

See John B. Montoya, 43 ECAB 1148, 1151-52 (1992). See also Donna A. Christley, 41 ECAB 90, 91 (1989).

7

See 20 C.F.R. § 10.616(a). See also Gerard F. Workinger, 56 ECAB 259 (2005).

3

Office’s decision, it was untimely. Accordingly, appellant was not entitled to an oral hearing as
a matter of right.8
The Office exercised its discretionary authority under section 8124 of the Act in
considering whether to grant a hearing. The Board has held that, as the only limitation on the
Office’s authority is reasonableness, abuse of discretion is generally shown through proof of
manifest error, clearly unreasonable exercise of judgment or actions taken which are contrary to
both logic and probable deduction from established facts.9 In the instant case, the Office found
that appellant’s request could be equally well addressed through a request for reconsideration
under section 8128 and the submission of new evidence. The Board has held that it is an
appropriate exercise of discretion for the Office to apprise appellant of the right to further
proceedings under the reconsideration provisions of section 8128.10 The Board finds that the
Office properly exercised its discretion in denying appellant’s request for an oral hearing as
untimely.
LEGAL PRECEDENT -- ISSUE 2
Section 10.5(x) of the Office’s regulations defines “recurrence of disability” as an
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 that caused the illness.11
When an employee, who is disabled from the job he held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence establishes
that he can perform the light-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
show that he cannot perform such light duty. 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 light-duty job requirements.12

8

The Board notes that neither the date of the decision (March 9, 2009) nor the 30th day following the issuance of
the decision (April 8, 2009), fell on a weekend or a federal holiday. See John B. Montoya, supra note 6 (If the last
date of the relevant time period is a Saturday, Sunday or legal holiday, it is not included in determining timeliness);
see also Marguerite J. Dvorak, 33 ECAB 1682 (1982) (In computing a time period, the date of the event from which
the designated period of time begins to run shall not be included, while the last day of the period so computed shall
be included unless it is a Saturday, a Sunday or a legal holiday).
9

Samuel R. Johnson, 51 ECAB 612 (2000).

10

See André Thyratron, 54 ECAB 257 (2002).

11

20 C.F.R. § 10.5(x) (2002). See Carlos A. Marrero, 50 ECAB 117 (1998).

12

Conard Hightower, 54 ECAB 796 (2003).

4

An employee seeking benefits under the Act13 has the burden of proof to establish the
essential elements of his claim by the weight of the evidence.14 For each period of disability
claimed, the employee has the burden of establishing that he was disabled for work as a result of
the accepted employment injury.15 Whether a particular injury causes an employee to become
disabled for work, and the duration of that disability, are medical issues that must be proved by a
preponderance of probative and reliable medical opinion evidence.16 The Board will not require
the Office to pay compensation for disability in the absence of medical evidence directly
addressing the specific dates of disability for which compensation is claimed. To do so, would
essentially allow an employee to self-certify their disability and entitlement to compensation.17
The medical evidence required to establish a causal relationship, generally, is rationalized
medical opinion evidence.18 Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant,19 must be one of reasonable medical certainty,20 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.21
As the Board’s jurisdiction of a case is limited to reviewing that evidence which was
before the Office at the time of its final decision,22 it is necessary that the Office review all
evidence submitted by a claimant and received by the Office prior to issuance of its final
decision.23 As the Board’s decisions are final as to the subject matter appealed,24 it is crucial that

13

5 U.S.C. §§ 8101-8193.

14

See Amelia S. Jefferson, 57 ECAB 183(2005); see also Nathaniel Milton, 37 ECAB 712 (1986); Joseph M.
Whelan, 20 ECAB 55 (1968).
15

See Amelia S. Jefferson, supra note 14. See also David H. Goss, 32 ECAB 24 (1980).

16

See Edward H. Horton, 41 ECAB 301 (1989).

17

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

18

See Viola Stanko, claiming as widow of Charles Stanko, 56 ECAB 436 (2005); see also Naomi A. Lilly, 10
ECAB 560, 572-573 (1959).
19

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

20

See Morris Scanlon, 11 ECAB 384, 385 (1960).

21

See William E. Enright, 31 ECAB 426, 430 (1980).

22

20 C.F.R. § 501.2(c).

23

See William A. Couch, 41 ECAB 548 (1990).

24

See 20 C.F.R. § 601.6(c).

5

all evidence relevant to the subject matter of the claim which was properly submitted to the
Office prior to the time of issuance of its final decision be addressed by the Office.25
ANALYSIS -- ISSUE 2
The Board finds that this case is not in posture for a decision as to whether appellant is
entitled to compensation for the period October 26 through November 2, 2008, as the Office
failed to review and consider all evidence of record prior to issuing its March 9, 2009 decision.
Therefore, the case must be remanded for a merit review of all evidence received and an
appropriate final decision.
In its February 5, 2009 development letter, the Office provided appellant 30 days to
submit a detailed statement regarding the recurrence of her disability and a medical report, which
contained a diagnosis and a rationalized opinion as to how her current disabling condition was
causally related to the original work injury. In its March 3, 2009 letter, it informed appellant that
she had until March 9, 2009 to supply sufficient evidence in support of her request for
compensation. In its March 9, 2009 denial of appellant’s claim, the Office stated that it had
received no further evidence from her in response to its February 5, 2009 development letter.
However, the record reflects that the Office received new factual and medical evidence from
appellant on March 9, 2009, the day the decision was issued. It received a March 3, 2009
narrative statement from appellant, a February 26, 2009 medical report from Dr. Gomez, and an
October 6, 2008 report of an x-ray of the cervical spine.
Board precedent requires the Office to review all evidence submitted by a claimant and
received by the Office prior to the issuance of its final decision, including evidence received on
the date of the decision.26 It makes no difference that the claims examiner may not have been
directly in possession of the evidence. Indeed, Board precedent envisions evidence received by
the Office but not yet associated with the case record when the final decision is issued.27 In the
instant case, the Office was apparently unaware that appellant had submitted additional evidence
in response to the February 5, 2009 development letter and, therefore, did not review or consider
such evidence prior to issuing its final decision. The Board, therefore, must set aside the
March 9, 2009 decision and remand the case to the Office to fully consider the evidence which
was properly submitted by appellant prior to the March 9, 2009 decision. Following
reconstruction of the record, the Office shall issue a de novo decision on the merits of the claim.

25

See Yvette N. Davis, 55 ECAB 475 (2004) (Board precedent requires the Office to review all evidence
submitted by a claimant and received by the Office prior to the issuance of its final decision, and it makes no
difference that the evidence may not be directly in possession of the evidence). See also Linda Johnson, 45 ECAB
439 (1994) (where the Board found that the Office improperly failed to consider a medical report received on the
date of its decision).
26

See Yvette N. Davis, supra note 25; see also William A. Couch, supra note 23 (Office did not consider new
evidence received four days prior to the date of its decision); see Linda Johnson, supra note 25 (applying Couch
where the Office did not consider a medical report received on the date of its decision).
27

See Yvette N. Davis, supra note 25; Linda Johnson, supra note 25.

6

CONCLUSION
The Board finds that the Office hearing representative properly denied appellant’s request
for an oral hearing as untimely. The Board further finds that this case is not in posture for a
decision on whether appellant is entitled to wage-loss compensation from October 26 through
November 2, 2008. The Office denied appellant’s claim for compensation without reviewing
evidence received on the date of its final decision. The Board will affirm the Office’s April 22,
2009 decision, but will set aside the March 9, 2009 decision and remand the case for a merit
review of all the evidence received and for an appropriate final decision on appellant’s
entitlement to compensation benefits.
ORDER
IT IS HEREBY ORDERED THAT the April 22, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed. It is further ordered that the Office’s March 9,
2009 decision is set aside and the case is remanded for further action consistent with this
decision.
Issued: October 20, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Wailuku, HI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-2090
Issued: February 18, 2014

Case Submitted on the Record

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

JURISDICTION
On September 12, 2013 appellant, through her attorney, filed a timely appeal from the
July 26, 2013 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 met her burden of proof to establish a recurrence of total
disability on or after October 22, 2012 due to her March 26, 2011 work injury.
FACTUAL HISTORY
OWCP accepted that on March 26, 2011 appellant, then a 41-year-old letter carrier,
sustained a lumbar sprain and aggravation of lumbar or lumbosacral intervertebral degenerative
disc disease due to loading boxes at work. She stopped work on March 26, 2011. Appellant
1

5 U.S.C. §§ 8101-8193.

returned to work on October 4, 2011 for four hours a day in a limited-duty capacity. She later
progressed to performing limited-duty work for six hours a day.
In an August 7, 2012 report, Dr. Paula Lenny, an attending Board-certified occupational
medicine physician, noted that appellant reported experiencing mild low back pain. She
described findings on physical examination and diagnosed L4-5 and L5-S1 degenerative disc
disease with chronic low back pain. Dr. Lenny stated that the range of back motion was normal,
muscle strength was 5/5 in the back and legs and reflexes were normal and symmetric
throughout.
Appellant stopped work on October 22, 2012 and on November 2, 2012, she submitted a
claim (Form CA-7) alleging that she was entitled to full wage-loss compensation effective
October 22, 2012.
In an October 22, 2012 report, Dr. Lenny discussed the March 26, 2011 work injury
noting that appellant reported that she was loading a lot of boxes into her mail vehicle on that
date and aggravated her low back. She stated, “[appellant] has had a magnetic resonance
imaging (MRI) scan test which showed progression in her L5-S1 degenerative disc disease.”
Dr. Lenny indicated that appellant came in prior to her next scheduled appointment due to
experiencing increased low back pain and pain to the right thigh. Appellant denied reinjury and
indicated that she went to the beach the previous day and did her usual amount of walking.
Dr. Lenny indicated that, upon examination, appellant had some limitation of range of back
motion. She diagnosed L4-5 and L5-S1 degenerative disc disease “with chronic low back pain,
flare up of low back pain and [right] thigh pain.” In an October 22, 2012 note, Dr. Lenny stated
that appellant was placed off work from October 22 to 29, 2012.2
In an October 29, 2012 note, Dr. Lenny stated that appellant was placed off work on
October 29, 2012 and that she would be on modified duty from October 30 to November 19,
2012 during which time she could not bend at the waist, twist her torso/spine or lift, carry, push
or pull more than five pounds.
In a November 16, 2012 letter, OWCP advised appellant that, due to the fact that she was
previously working six hours a day, her total disability wage-loss claim was being viewed as a
claim for recurrence of total disability. It requested that she submit additional factual and
medical evidence in support of her claim.
In an October 29, 2012 report, Dr. Lenny stated that appellant came in for follow up of
her increased low back pain and pain to the right thigh. Appellant reported that her pain was
deep and still went to her right thigh. Dr. Lenny’s findings on physical examination were similar
to those observed on October 22, 2012.
On November 19, 2012 Dr. Lenny indicated that appellant came in again for follow up of
increased low back pain and pain to the right thigh. Physical examination findings revealed no
2

In an October 16, 2012 note, Dr. Lenny had indicated that appellant could lift or carry up to 35 pounds and pull
or push up to 75 pounds. The precise requirements of the limited-duty job appellant performed when she stopped
work on October 22, 2012 remain unclear.

2

major changes, although range of back motion showed improvement. In a November 19, 2012
note, Dr. Lenny stated that appellant should be on modified duty from November 19 to
December 19, 2012. Appellant was not to lift, carry, push or pull more than 10 pounds. On
December 17, 2012 Dr. Lenny indicated that appellant should continue on modified duty from
December 17, 2012 to January 17, 2013 with no lifting, carrying, pushing or pulling of more than
10 pounds.
In a December 5, 2012 report, Dr. Lenny opined that the herniated L5-S1 disc observed
in the findings of an October 31, 2012 MRI scan test was caused by the March 26, 2011 work
incident. She indicated that this work-related condition prevented appellant from meeting the
lifting requirements of her limited-duty position.
By decision dated January 14, 2013, OWCP denied appellant’s claim on the grounds that
she had not submitted sufficient medical evidence to establish a recurrence of total disability on
or after October 22, 2012 due to her March 26, 2011 work injury. It indicated that the reports of
Dr. Lenny did not provide a rationalized opinion that appellant’s injury-related condition had
worsened such that she could no longer perform her limited-duty work.
After OWCP’s January 14, 2003 decision, appellant submitted additional progress reports
and work limitation notes of Dr. Lenny dated beginning in early 2013. Dr. Lenny discussed
appellant’s back and right leg condition and recommended work restrictions such as no lifting
more than 10 pounds.
Appellant requested a telephone hearing with an OWCP hearing representative. During
the May 7, 2013 hearing, counsel argued that Dr. Lenny’s reports showed that appellant’s workrelated back condition worsened such that she could no longer work.3 Appellant testified that
she stopped working on October 22, 2012 due to a worsening of her work-related condition. She
stated that prior to that date she had been doing her normal work but that on October 22, 2012
she woke feeling that her condition had worsened.
After the hearing, appellant submitted additional progress reports and work limitation
notes of Dr. Lenny dated in June and July 2013. Dr. Lenny continued to report that appellant’s
back and right leg condition had worsened and that she had such work limitations as no lifting
more than 10 pounds.
In April 2013, OWCP had referred appellant to Dr. Steven A. Kaneshiro, a Boardcertified orthopedic surgeon, for evaluation of her work-related residuals and her ability to
perform work. In a July 15, 2013 report, received on July 23, 2013, Dr. Kaneshiro posited that
appellant’s March 26, 2011 work incident permanently aggravated her preexisting lumbar
degenerative disc disease as evidenced by a July 5, 2011 MRI scan test showing progressive L5S1 disc herniation and development of an extruded free fragment with impingement on the right
S1 nerve root. He indicated that her current symptoms were due to this permanent aggravation
and required the imposition of work restrictions such as no lifting, carrying, pushing or pulling
more than 10 pounds.

3

Counsel indicated that in approximately January 2013 OWCP increased appellant’s disability payments.

3

In a July 26, 2013 decision, OWCP’s hearing representative affirmed the January 14,
2013 decision denying appellant’s claim for a recurrence of total disability. He indicated that,
since the January 14, 2013 decision, she had not submitted sufficient medical evidence to
establish a work-related recurrence of total disability. However, the hearing representative did
not provide any discussion of the numerous medical reports submitted since that time, including
the July 15, 2003 report of Dr. Kaneshiro.4
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 of record
establishes that he or she can perform the light-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 show that he or she cannot perform such light duty. 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 light-duty job requirements.5
FECA provides that OWCP shall determine and make findings of fact in making an award
for or against payment of compensation after considering the claim presented by the employee and
after completing such investigation as OWCP considers necessary with respect to the claim.6
Since the Board’s jurisdiction of a case is limited to reviewing that evidence which is before
OWCP at the time of its final decision,7 it is necessary that OWCP review all evidence submitted
by a claimant and received by OWCP prior to issuance of its final decision. As the Board’s
decisions are final as to the subject matter appealed,8 it is crucial that all evidence relevant to that
subject matter which was properly submitted to OWCP prior to the time of issuance of its final
decision be addressed by OWCP.9

4

OWCP’s hearing representative indicated that in December 2012, OWCP “began paying [appellant] full
disability wage-loss compensation” which was based on the employing establishment’s indication on a payment
form that it could no longer accommodate her work restrictions. The record reflects that appellant received
increased disability payments beginning in December 2012, but the reason for this increase remains unclear.
5

Cynthia M. Judd, 42 ECAB 246, 250 (1990); Terry R. Hedman, 38 ECAB 222, 227 (1986). 20 C.F.R. § 10.5(x)
provides, “Recurrence of disability means an 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 that caused the illness. This 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.”
6

5 U.S.C. § 8124(a)(2).

7

See 20 C.F.R. § 501.2(c).

8

Id. at § 501.6(d).

9

William A. Couch, 41 ECAB 548, 553 (1990).

4

ANALYSIS
OWCP accepted that on March 26, 2011 appellant sustained a lumbar sprain and
aggravation of degeneration of lumbar or lumbosacral intervertebral disc due to loading boxes at
work. She returned to limited-duty work for the employing establishment. Appellant stopped
work on October 22, 2012 and on November 2, 2012 she submitted a claim (Form CA-7)
alleging that she was entitled to full wage-loss compensation effective October 22, 2012. In
decisions dated January 14 and July 26, 2013, OWCP denied her claim on the grounds that she
did not submit sufficient medical evidence to establish that she sustained a recurrence of total
disability on or after October 22, 2012 due to her March 26, 2011 work injury.
In the present case, OWCP’s hearing representative noted that no new medical evidence,
specifically addressing the claimed recurrence had been received since the date of the hearing. The
record did reflect receipt on July 23, 2012 of the July 15, 2013 report of Dr. Kaneshiro, a Boardcertified orthopedic surgeon, who served as an OWCP referral physician.10 The Board, therefore,
must set aside the July 26, 2013 decision of OWCP and remand the case so that OWCP may fully
consider the second opinion report received by OWCP prior to the issuance of these decisions.11
Following such further consideration and after such further development as it deems necessary,
OWCP shall issue an appropriate decision.
CONCLUSION
The Board finds the case is not in posture for decision regarding whether appellant met
her burden of proof to establish that she sustained a recurrence of total disability on or after
October 22, 2012 due to her March 26, 2011 work injury. The case is remanded to OWCP for
further development.

10

In this report, Dr. Kaneshiro posited that appellant’s March 26, 2011 work incident permanently aggravated her
preexisting lumbar degenerative disc disease as evidenced by a July 5, 2011 MRI scan test showing progressive L5S1 disc herniation and development of an extruded free fragment with impingement on the right S1 nerve root. He
noted that this permanent aggravation required the imposition of work restrictions such as no lifting, carrying,
pushing or pulling more than 10 pounds.
11

See supra notes 6 through 9.

5

ORDER
IT IS HEREBY ORDERED THAT the July 26, 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: February 18, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.F., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
CORPS OF ENGINEERS, Philadelphia, PA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 07-635
Issued: July 2, 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 4, 2007 appellant timely appealed the December 22, 2006 merit decision of
the Office of Workers’ Compensation Programs, which granted a schedule award. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the schedule
award.
ISSUE
The issue is whether appellant has more than 20 percent impairment of the left lower
extremity.
FACTUAL HISTORY
Appellant, a 59-year-old small craft operator, injured his left lower extremity on
November 29, 2005 when he fell into an open hatch aboard a tugboat. He immediately stopped
working. The Office accepted appellant’s claim for left knee contusion, left lateral collateral

ligament sprain and permanent aggravation of left knee osteoarthritis. He returned to work in a
limited-duty capacity on February 21, 2006.
On April 9, 2006 appellant filed a claim for a schedule award. However, he did not
submit any evidence of a permanent impairment attributable to his November 29, 2005
employment injury. The Office denied his claim in a decision dated May 31, 2006.
Appellant requested reconsideration on June 15, 2006. The request was accompanied by
a May 2, 2006 impairment rating from Dr. George L. Rodriguez, a Board-certified physiatrist.
According to Dr. Rodriguez, appellant reached maximum medical improvement on March 3,
2006 and he had 68 percent impairment of his left lower extremity. Dr. Rodriguez referenced a
March 22, 2006 x-ray and a prior magnetic resonance imaging scan as evidence of appellant’s
left knee osteoarthritis. He found 50 percent impairment for arthritis involving the knee joint and
20 percent impairment for severe patellofemoral arthritis. Dr. Rodriguez also noted that
appellant had 20 percent lower extremity impairment due to a moderate left knee flexion
contracture of 15 percent.1
Dr. Steven H. Kahn, an orthopedic surgeon and Office referral physician, examined
appellant on July 24, 2006. He found 25 percent impairment due to left knee arthritis and 10
percent impairment for a mild left knee flexion contracture of 7 percent, for an overall lower
extremity impairment of 35 percent. Dr. Kahn indicated that appellant reached maximum
medical improvement on March 18, 2006.
The Office found a conflict of medical opinion and referred appellant for an impartial
medical examination with Dr. Walter Poprycz, a Board-certified orthopedic surgeon, who
examined appellant on September 7, 2006 and found an overall left lower extremity impairment
of 35 percent. According to Dr. Poprycz, appellant had reached maximum medical improvement
on March 20, 2006. In a supplemental report dated November 29, 2006, Dr. Poprycz explained
that appellant had a left knee flexion contracture of approximately 10 percent, which represented
a moderate 20 percent impairment of the left lower extremity. He also noted that appellant had
arthritis of the patellofemoral joint, with a corresponding lower extremity impairment of 15
percent. Dr. Poprycz further explained that he added the range-of-motion impairment (20
percent) and the arthritis-based impairment (15 percent) for a total left lower extremity
impairment of 35 percent.
The Office medical adviser reviewed the case file on December 8, 2006 and
recommended that appellant receive an award for 20 percent left lower extremity impairment
based on Dr. Poprycz’ finding of a left knee range-of-motion deficit. He explained that the lesser
impairment for patellofemoral arthritis should be disregarded because it could not properly be
combined with a range-of-motion impairment.

1

Although Dr. Rodriguez identified two arthritis-based impairments (50 percent and 20 percent) and a range-ofmotion impairment (20 percent), he did not explain how he reached his overall lower extremity impairment rating of
68 percent.

2

By decision dated December 22, 2006, the Office granted appellant a schedule award for
20 percent impairment of the left lower extremity. The award covered a period of 57.6 weeks
from March 20, 2006 to April 27, 2007. The current appeal followed.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.2 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 under the law, good administrative practice requires the use of uniform
standards applicable to all claimants. The implementing regulations have adopted the American
Medical Association, Guides to the Evaluation of Permanent Impairment as the appropriate
standard for evaluating schedule losses.3 Effective February 1, 2001, schedule awards are
determined in accordance with the A.M.A., Guides (5th ed. 2001).4
ANALYSIS
Appellant’s counsel argued that the schedule award should have been based on
Dr. Rodriguez’ May 2, 2006 left lower extremity impairment rating of 68 percent. The Board
disagrees. Dr. Rodriguez’s impairment rating was not consistent with the rating provided by
Dr. Kahn, whose opinion the Office had solicited. The two physicians disagreed about the
severity of appellant’s left knee flexion contracture as well as the location and extent of the
arthritis affecting appellant’s left knee. Because of this disagreement, the Office declared a
conflict in medical opinion and referred appellant to Dr. Poprycz for an impartial medical
evaluation.5
Dr. Poprycz and Dr. Rodriguez were in agreement with respect to the impairment
attributable to appellant’s left knee flexion contracture. They both described the condition as
moderate, with a corresponding lower extremity impairment rating of 20 percent pursuant to
Table 17-10, A.M.A., Guides 537,6 but there opinions differed regarding the extent of
impairment attributable to appellant’s left knee osteoarthritis. Dr. Rodriguez found impairment

2

For a total loss of use of a leg, an employee shall receive 288 weeks’ compensation.
§ 8107(c)(2) (2000).
3

20 C.F.R. § 10.404 (2006).

4

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (June 2003).

5 U.S.C.

5

The Act provides that, if there is disagreement between the physician making the examination for the Office and
the employee’s physician, the Office shall appoint a third physician who shall make an examination. 5 U.S.C.
§ 8123(a); Shirley L. Steib, 46 ECAB 309, 317 (1994).
6

The knee impairment is considered moderate when the flexion contracture is between 10 degrees and 19
degrees. Table 17-10, A.M.A., Guides 537. Whereas Dr. Rodriguez’ May 2, 2006 examination revealed a 15
degrees loss, Dr. Poprycz’ subsequent examination demonstrated an approximate 10 degrees flexion contracture.
However, both measurements fall within the range of a moderate impairment.

3

involving both the knee and patellofemoral joints.7 However, Dr. Poprycz’ arthritis impairment
rating was limited to the patellofemeral joint, for which he found 15 percent lower extremity
impairment based on a one millimeter cartilage interval under Table 17-31, A.M.A., Guides 537.
When the Office’s medical adviser reviewed the case file on December 8, 2006, he
concurred with Dr. Poprycz’ impairment ratings for loss of range of motion (20 percent) and
patellofemoral arthritis (15 percent). However, he correctly noted that these two methods for
evaluating lower extremity impairment could not be combined under the A.M.A., Guides (5th ed.
2001). Table 17-2, A.M.A., Guides 526, specifically precludes the combination of these two
lower extremity impairment evaluation methods. Furthermore, the A.M.A., Guides section on
evaluating lower extremity arthritis impairments provides that “[i]mpairment of individuals with
knee flexion contractures should not be estimated using x-rays because measurements are
unreliable. In these individuals, the range-of-motion method should be used.”8 The Office
medical adviser recommended that appellant’s schedule award be based on Dr. Proprycz’ 20
percent lower extremity rating for flexion contracture, which was the greater of the two ratings
provided.
The Board finds that the Office properly relied on Dr. Poprycz’s opinion. It was
sufficiently well rationalized and based upon a proper factual background. He not only
examined appellant, but also reviewed appellant’s medical records. Dr. Poprycz also reported
accurate medical and employment histories. Therefore, the Office properly accorded
determinative weight to Dr. Poprycz’ findings, as he was the impartial medical examiner.9 The
20 percent impairment rating provided by the Office medical adviser on December 8, 2006 is
consistent with Dr. Poprycz’ examination findings and conforms to the A.M.A., Guides (5th ed.
2001). As such, the reports of Dr. Poprycz constitute the weight of the medical evidence.10
CONCLUSION
Appellant has not demonstrated that he has greater than 20 percent impairment of the left
lower extremity.

7

Citing Table 17-31, A.M.A., Guides 544, Dr. Rodriguez found 50 percent impairment of the knee joint and 20
percent impairment of the patellofemoral joint.
8

Section 17.2h, A.M.A., Guides 544.

9

Where the Office has referred appellant to an impartial medical examiner to resolve a conflict in the medical
evidence, the opinion of such a specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight. Gary R. Sieber, 46 ECAB 215, 225 (1994).
10

See Bobby L. Jackson, 40 ECAB 593, 601 (1989).

4

ORDER
IT IS HEREBY ORDERED THAT the December 22, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 2, 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

5