United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Topeka, KS, Employer
__________________________________________

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Appearances:
Bruce Alan Brumley, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-2487
Issued: September 14, 2009

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 September 17, 2008 appellant filed a timely appeal from a June 19, 2008 decision of
the Office of Workers’ Compensation Programs adjudicating his claim for a schedule award.
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 more than three percent impairment to his right upper
extremity and two percent impairment to his left upper extremity for which he received schedule
awards.
On appeal, counsel for appellant contends that the medical evidence establishes that
appellant sustained injury to his shoulders which contributes to his impairment.

FACTUAL HISTORY
This is the second appeal in this case.1 By order dated September 14, 2006, the Board
dismissed appellant’s appeal at his request so that he could submit a request for reconsideration
to the Office.
On April 19, 2002 appellant, then a 61-year-old motor vehicle service driver, sustained a
laceration to his forehead near his left eye and a cervical spine strain when his truck overturned
due to high wind during a thunderstorm. The Office accepted his claim for a left eyebrow
laceration, cervical strain and surgical decompression and fusion at C4-5 and C5-6, performed on
September 13, 2002. On October 21, 2003 appellant filed a claim for a schedule award. On
November 6, 2003 the Office accepted a lumbar strain and temporary aggravation of
degenerative disc disease at L3-4, resolved.
In a December 9, 2003 report, Dr. Kimball Stacey, an internist and an Office referral
physician, provided findings on physical examination. He found 15 percent impairment of the
left upper extremity based on motor deficit of the left biceps muscle that is innervated by the
musculocutaneous nerve, as evidenced by the loss of left biceps deep tendon reflexes. Dr. Stacey
rated 12 percent impairment of the right upper extremity based on moderate glenohumeral joint
crepitus.2 On February 29, 2004 Dr. Daniel D. Zimmerman, a Board-certified internist and an
Office medical adviser, stated that lack of a reflex does not equate to weakness. Dr. Stacey did
not perform an examination validating weakness in the left upper extremity. Dr. Zimmerman
stated that impairment due to a cervical spine condition must be based on radicular residuals of a
nerve root lesion at the cervical level causing upper extremity sensory or motor deficit. He
determined that the impairment rating calculated by Dr. Stacey was not consistent with the fifth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (the A.M.A., Guides).
In an April 12, 2004 report, Dr. George Varghese, a Board certified physiatrist and an
Office referral physician, reviewed appellant’s medical history and provided findings on physical
examination. Appellant had normal range of motion in both upper extremities. Muscle strength
was normal bilaterally. There were no inflammatory changes or deformities detected.
Neurological examination revealed subjective hypothesia in the C5 distribution and some
hyperesthesia in the C6 distribution. The rest of the dermatomes were normal. In the left upper
extremity, appellant had subjective hypothesia in the C5-6 dermatome. The rest of the
dermatomes were normal. There was decreased biceps jerk in his left upper extremity but the
rest of the reflexes were 2+. Dr. Varghese calculated 3 percent right upper extremity
impairment, including 1 percent for pain and sensory deficit in the C5 dermatome, based on
Table 15-16 and 15-17 at page 424 (20 percent for Grade 4 sensory deficit multiplied by 5
percent maximum for the C5 nerve root). He calculated 2 percent impairment for pain and
sensory deficit at the C6 dermatome based on the same tables and assigning 40 percent for
Grade 3 sensory deficit. Dr. Varghese calculated two percent impairment to the left upper
1

Docket No. 06-1436 (issued September 14, 2006).

2

Joint crepitus, also called articular crepitus, is the grating sensation caused by the rubbing together of the dry
synovial surfaces of the joints. See DORLAND’S, Illustrated Medical Dictionary (30th ed. 2003) 433.

2

extremity, including one percent for sensory deficit, each, for the C5 and C6 nerve roots based
on Tables 15-15 and 15-17. On April 23, 2004 Dr. Zimmerman agreed with Dr. Varghese’s
rating of three percent impairment of appellant’s right upper extremity and two percent for his
left upper extremity.
By decision dated April 29, 2004, the Office granted appellant schedule awards for three
percent right upper extremity impairment and two percent left upper extremity impairment. The
periods of the awards ran from April 6 to July 24, 2004.3
Appellant requested an oral hearing that was held on November 4, 2004. He submitted
reports dated November 29 and December 3, 2004 from Dr. Peter V. Bieri, an otolaryngologist,
who provided findings on physical examination. Appellant had persistent pain in his neck and
low back, radiating into both shoulders. He had a persistent tremor at rest involving the
dominant right upper extremity. Appellant also had frequent numbness and tingling, depending
on activity level and posture. Examination of the shoulders revealed no signs of acute
inflammation. Appellant had crepitance bilaterally involving the acromioclavicular joint with
active and passive range of motion, which was otherwise full and unrestricted. Shoulder level
and overhead use was accompanied by a marked subjective increase in pain. The tremor of the
distal right upper extremity was noted at rest, which dissipated upon intention. Grip strength
measured by a Jamar dynamometer was 36.5 kilograms (kg) on the dominant right side as
opposed to 24.0 kg on the left. Vascular integrity was intact. Sensory examination revealed
slight decrease in sensation along the dermatome supplied by C5 and C6. Deep tendon reflexes
were slightly decreased at the level of the triceps, bilaterally. Dr. Bieri found 15 percent bilateral
upper extremity impairment, including 10 percent for bilateral pain and weakness based on page
510 of the fifth edition of the A.M.A., Guides and 5 percent bilaterally for residuals of
impingement syndrome of both shoulders based on Table 16-3 at page 439.
By decision dated December 21, 2004, an Office hearing representative vacated the
April 29, 2004 decision and remanded the case for further development of the medical evidence
because the Office had not reviewed the opinion of Dr. Bieri.
On March 2, 2005 Dr. Zimmerman stated that Dr. Bieri did not provide a medical history
or sufficient examination findings from which an impairment rating could be made. He stated
that Dr. Bieri provided no examination findings or history regarding upper extremity weakness
that could be applied to page 510 of the A.M.A., Guides.4
By decision dated March 15, 2005, the Office denied appellant’s claim for an increased
schedule award to his upper extremities.

3

The Federal Employees’ Compensation Act provides for 312 weeks of compensation for 100 percent loss or loss
of use of the upper extremity. 5 U.S.C. § 8107(c)(1). Multiplying 312 weeks by three percent and two percent
equals 15.60 weeks of compensation.
4

Table 16-35 at page 510 provides upper extremity impairment ratings due to strength deficit from
musculoskeletal disorders based on manual muscle testing of individual units of motion of the shoulder and elbow.

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On February 23, 2006 appellant requested that his claim be expanded to include a
bilateral shoulder condition. In a February 22, 2006 report, Dr. Bieri stated that appellant had 10
percent bilateral upper extremity impairment due to radicular pain based on page 489 of the
A.M.A., Guides.5 He did not explain how he arrived at his impairment calculation. Dr. Bieri
also found five percent impairment to each shoulder for impingement impairment due to pain
and crepitance according to page 499 of the A.M.A., Guides.6
On March 17, 2005 appellant requested a telephonic hearing that was held on
January 24, 2006. By decision dated March 21, 2006, an Office hearing representative
determined that the weight of the evidence, as represented by the opinion of Dr. Varghese,
established that appellant had no more than three percent impairment to the right upper extremity
and two percent to the left upper extremity.
On March 20, 2007 appellant requested reconsideration. He submitted a copy of
Dr. Bieri’s December 3, 2004 report with a handwritten note concurring appellant’s bilateral hip
condition. On a copy of his February 22, 2006 report, Dr. Bieri circled the words “bilateral
shoulder impingement impairments” and handwrote “secondary to injury -- no prior
symptomatology.”
On April 9, 2007 Dr. Zimmerman reiterated that Dr. Bieri did not provide an impairment
rating conforming to pages 21 and 22 of the fifth edition of the A.M.A., Guides.7 The reports
lacked medical rationale containing a detailed explanation of how appellant’s upper extremity
impairment related to his accepted cervical conditions or any explanation as to how Dr. Bieri
made his impairment ratings.
By decision dated May 4, 2007, the Office denied modification of the March 21, 2006
decision.
On May 1, 2008 appellant requested reconsideration. In an April 30, 2008 report,
Dr. Bieri reiterated that appellant had five percent impairment due to bilateral shoulder
impingement due to his findings on physical examination on November 29, 2004 and
February 22, 2006. This included crepitance (crackling) and subjective complaints of pain from
overhead shoulder use. The medical history included complaints of bilateral shoulder pain since
shortly after the April 19, 2002 work injury. Dr. Bieri stated that the accident involved
appellant’s motor vehicle being overturned in high winds and multiple impacts from being tossed
in the vehicle. He stated that this mechanism of injury was sufficient to cause the diagnosis of
5

Page 489 contains Table 16-13 (Maximum Upper Extremity Impairment Due to Unilateral Sensory or Motor
Deficits of Individual Spinal Nerves or to Combined 100 percent Deficits) (C5 to T1). (Emphasis in the original.)
6

Page 499 contains Table 16-18 (Maximum Impairment Values for the Digits, Hand, Wrist, Elbow and Shoulder
Due to Disorders of Specific Joints or Units).
7

See Chapter 2, Practical Application of the A.M.A., Guides, section 2.6, Preparing Reports, 21-22. This section
provides that an impairment rating must include a clinical evaluation with a medical history, current clinical status,
diagnostic study results, a discussion of whether the individual had reached maximum medical improvement,
diagnoses, causation and a discussion of impairment rating criteria. It must contain a calculation of the impairment
with reference to how specific physical findings relate to criteria in the applicable sections of the A.M.A, Guides.

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bilateral shoulder impingement syndrome and related disorders of the shoulder joint. Dr. Bieri’s
impairment ratings were based on pages 498 to 499 of the fifth edition of the A.M.A., Guides
and Table 16-18 at page 499. He stated that the five percent impairment for each shoulder was
based on the five percent upper extremity impairment provided in Table 16-18 for the
sternoclavicular shoulder joint. Dr. Bieri indicated that the finding of crepitance and related
impingement in appellant’s physical examinations best fit section 16.7, Table 16-18.
Dr. Zimmerman noted a shoulder condition that was not accepted by the Office. He
reviewed the medical evidence contemporaneous with the accepted motor vehicle accident
regarding shoulder problems. A May 13, 2002 office note from Dr. K.N. Arjunan, a Boardcertified neurosurgeon, indicated that appellant had pain in the left shoulder but there were no
physical examination findings regarding either shoulder. A June 24, 2002 note indicated that a
magnetic resonance imaging (MRI) scan of the left shoulder was negative. In October 23, 2002
notes, Dr. Arjunan noted that appellant still had right shoulder pain, especially with abduction of
the right arm and his right shoulder “crackled.” There were no physical examination findings for
either shoulder in the October 23, 2002 note. A December 3, 2002 note provided no history
regarding either shoulder except that appellant had discomfort and tightness. Dr. Zimmerman
noted that the December 3, 2002 office note discussed appellant’s condition following cervical
spine surgery, decompression and fusion at C4-5 and C5-6, performed on September 13, 2002.
He stated that a valid diagnosis of impingement syndrome required symptoms, signs and
diagnostic studies. There was no clear, unequivocal documentation in the first eight to ten
months post injury that appellant had any specific diagnosis at the shoulder level, based on a
thorough history, physical examination and diagnostic studies. The contemporaneous reports of
Dr. Arjunan indicated cervical spine complaints, not shoulder complaints.
By decision dated June 19, 2008, the Office denied modification of the May 4, 2007
decision.8
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act9 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides.10
Neither the Act nor the implementing regulations provide for a schedule award for loss of
use of the back or to the body as a whole.11 However, the schedule award provisions of the Act
8

Subsequent to the June 19, 2008 Office decision, additional evidence was associated with the file. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal.
9

5 U.S.C. § 8107.

10

20 C.F.R. § 10.404 (1999).
(5th ed. 2001).
11

Effective February 1, 2001, the Office began using the A.M.A., Guides

See Guiseppe Aversa, 55 ECAB 164 (2003).

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include the extremities and a claimant may be entitled to a schedule award for permanent
impairment to a lower extremity even though the cause of such impairment originates in the
spine.12
In a claim for permanent impairment under the Act, the employee has the burden of
proving that the condition for which a schedule award is sought is causally related to his or her
federal employment.13
ANALYSIS
Appellant’s upper extremity schedule awards were based on the April 12, 2004 report
from Dr. Varghese, who reviewed the medical history and provided findings on physical
examination. Dr. Varghese found a normal range of motion in both upper extremities. Muscle
strength was normal bilaterally. There were no inflammatory changes or deformities detected.
Neurological examination revealed subjective hypothesia in the C5 distribution and probably
some hyperesthesia in the C6 distribution. The rest of the dermatomes were normal. In the left
upper extremity, appellant had subjective hypothesia in the C5-6 dermatome. The rest of the
dermatomes were normal. There was decreased biceps jerk in his left upper extremity but the
rest of the reflexes were 2+. Dr. Varghese found three percent right upper extremity impairment,
including 1 percent for pain and sensory deficit, in the C5 dermatome based on Table 15-16 and
15-17 at page 424 (20 percent for Grade 4 sensory deficit multiplied by five percent maximum
for the C5 nerve root). He calculated 2 percent impairment for pain and sensory deficit at the C6
dermatome based on the same tables and assigning 40 percent for Grade 3 sensory deficit.
Dr. Varghese multiplied the 40 percent for Grade 3 sensory deficit by the 5 percent maximum
allowed for the C6 nerve root. However, Table 15-17 provides eight percent maximum for
sensory deficit of the C6 nerve root, not five percent. Multiplying 40 percent by 8 percent equals
3 percent impairment, not 2 percent. The Board notes that the total right upper extremity
impairment should be four percent, not three percent.14 Dr. Varghese found two percent
impairment to the left upper extremity, including one percent for sensory deficit, each, for the C5
and C6 nerve roots based on Tables 15-15 and 15-17. However, as noted, Table 15-17 provides
eight percent maximum sensory loss for the C6 nerve root. Multiplying 20 percent for Grade 4
sensory deficit by eight percent maximum for the C6 nerve root equals 1.6, rounded to two
percent. Accordingly, appellant has two percent left upper extremity impairment for the C6
nerve root sensory deficit, which, combined with one percent for the C5 nerve root sensory
deficit, equals three percent left upper extremity impairment. The Board finds that appellant has
four percent right upper extremity impairment and three percent left upper extremity impairment.
Dr. Stacey calculated 15 percent impairment of the left upper extremity based on motor
deficit of appellant’s left biceps muscle, noting a loss of left biceps deep tendon reflexes. He
calculated 12 percent impairment of the right upper extremity based on moderate glenohumeral
12

See Vanessa Young, 55 ECAB 575 (2004).

13

See Veronica Williams, 56 ECAB 367 (2005).

14

See also A.M.A., Guides, Table 16-13 at page 489 regarding maximum upper extremity impairment due to
sensory or motor deficits of individual spinal nerves.

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joint crepitus. However, Dr. Stacey did not reference any portions of the A.M.A., Guides in
making his rating nor did he explain how he calculated impairment. Dr. Zimmerman noted that
lack of a reflex, alone, did not establish weakness and Dr. Stacey did not provide any other
findings on examination to validate weakness in the left upper extremity. The Board finds that
the impairment rating of Dr. Stacey is not based on the fifth edition of the A.M.A., Guides or
sufficient to establish that appellant has more than four percent right arm impairment or three
percent left arm impairment.
Dr. Bieri stated that he found 15 percent bilateral upper extremity impairment, including
10 percent for bilateral pain and weakness based on page 510 of the fifth edition of the A.M.A.,
Guides and 5 percent bilaterally for residuals of impingement syndrome of both shoulders based
on Table 16-3 at page 439.15 He noted pain in appellant’s neck radiating into both shoulders and
a persistent tremor at rest involving the dominant right upper extremity. Shoulder level and
overhead use was accompanied by a marked subjective increase in pain. However, physical
examination of the shoulders revealed no signs of acute inflammation. Vascular integrity was
intact. Sensory examination revealed slight decrease in sensation along the dermatome supplied
by C5 and C6. Deep tendon reflexes were slightly decreased at the level of the triceps,
bilaterally. On February 22, 2006 Dr. Bieri reiterated his opinion that appellant had 10 percent
bilateral upper extremity due to radicular pain based on page 489 of the A.M.A., Guides.
However, he did not explain how he arrived at his impairment calculation. Dr. Bieri calculated
five percent impairment to each shoulder for impingement impairment due to pain and crepitance
according to page 499 of the A.M.A., Guides. He did not explain his impairment calculation or
provide medical rationale regarding causal relationship. In March 2007, Dr. Bieri circled the
words “bilateral shoulder impingement impairments” on a copy of his February 22, 2006 report
and handwrote “secondary to injury -- no prior symptomatology.” However, Dr. Bieri provided
no additional medical history, findings on physical examination or medical rationale supporting
his impairment rating.16 He provided no examination findings or history regarding upper
extremity weakness that could be applied to page 510 of the A.M.A., Guides.17 Dr. Bieri’s
subsequent report addressed appellant’s hip condition which is not relevant to the issue on
appeal. His 2004 through 2007 reports do not meet the requirements for an impairment rating as
provided on pages 21 and 22 of the fifth edition of the A.M.A., Guides.18 Due to these
15

Table 16-3 at page 439 of the A.M.A., Guides involves the conversion of upper extremity impairment to
impairment of the whole person. The Board notes that neither the Act nor the implementing regulations provide for
a schedule award for loss of use of the back or to the body as a whole. See Guiseppe Aversa, 55 ECAB 164 (2003).
However, the schedule award provisions of the Act include the extremities and a claimant may be entitled to a
schedule award for permanent impairment to an upper or lower extremity even though the cause of such impairment
originates in the spine. See Vanessa Young, supra note 12.
16

See George Randolph Taylor, 6 ECAB 986 (1954) (a medical opinion not fortified by medical rationale is of
little probative value).
17

As noted, Table 16-35 at page 510 provides upper extremity impairment ratings due to strength deficit from
musculoskeletal disorders based on manual muscle testing of individuals units of motion of the shoulder and elbow.
18

See Chapter 2, Practical Application of the A.M.A., Guides, section 2.6, Preparing Reports, 21-22. This section
provides that an impairment rating must include a clinical evaluation with a medical history, current clinical status,
diagnostic study results, a discussion of whether the individual had reached maximum medical improvement,
diagnoses, causation and a discussion of impairment rating criteria. It must contain a calculation of the impairment
with reference to how specific physical findings relate to criteria in the applicable sections of the A.M.A., Guides.

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deficiencies, Dr. Bieri’s opinion on appellant’s upper extremity impairment is of diminished
probative value.
On April 30, 2008 Dr. Bieri stated that he based his calculation of five percent
impairment due to bilateral shoulder impingement on appellant’s November 29, 2004 and
February 22, 2006 findings on physical examination and on the medical evidence. The physical
findings included crepitance and subjective complaints of pain from overhead shoulder use.
Dr. Bieri stated that the 2002 medical reports included subjective complaints of bilateral shoulder
pain. He noted that appellant’s accident involved his motor vehicle being overturned in high
winds and his multiple impacts from being tossed in the vehicle. Dr. Bieri stated that this
mechanism of injury was sufficient to cause the diagnosis of bilateral shoulder impingement
syndrome and related disorders of the shoulder joint and the bilateral shoulder impairment rating.
However, the contemporaneous 2002 medical reports do not provide objective physical
examination findings or any diagnosis regarding appellant’s shoulders. The Board has held that
contemporaneous evidence is entitled to greater probative value than later evidence.19
Dr. Arjunan’s May 13, 2002 note indicated that appellant had left shoulder pain but there were
no physical examination findings regarding either shoulder. A June 24, 2002 note indicated that
an MRI scan of the left shoulder was negative. There were no physical findings in this note. On
October 23, 2002 Dr. Arjunan noted that appellant “still” had right shoulder pain, especially with
abduction of the right arm and his right shoulder crackled. There were no physical examination
findings for either shoulder in the October 23, 2002 note. A December 3, 2002 note provided no
history or physical findings regarding either shoulder and noted only subjective shoulder
discomfort. There is no clear documentation in the contemporaneous 2002 medical reports that
appellant had any diagnosis, specifically at the shoulder level, based on a thorough history,
physical examination and diagnostic studies. Due to these deficiencies, Dr. Bieri’s April 30,
2008 report is not sufficient to establish that appellant is entitled to a schedule award for shoulder
impairment.
The Board finds that the weight of the medical evidence establishes that appellant has
four percent impairment to his right upper extremity and three percent impairment to his left
upper extremity.
On appeal, appellant argues that his shoulder conditions should be accepted as causally
related to the April 19, 2002 accepted cervical and lumbar spine conditions. He states that his
testimony at the November 4, 2004 hearing was described in the December 21, 2004 hearing
representative’s decision. Appellant asserts that the hearing representative found his testimony
credible. However, the hearing representative merely related appellant’s description of the
April 19, 2002 incident. The case was remanded because the Office had not reviewed the
November 29 and December 3, 2004 reports of Dr. Bieri which were submitted after the
April 29, 2004 schedule award decision. The hearing representative did not find that appellant’s
shoulder conditions should be accepted by the Office. Therefore, this argument is without merit.
Appellant argues that his shoulder conditions should be accepted because the shoulder
symptoms manifested after the 2002 employment injury as reflected in the 2002 reports of
Dr. Arjunan. Dr. Bieri also opined that the shoulder conditions were causally related to the
19

See Conard Hightower, 54 ECAB 796 (2003).

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accepted employment injury. The Board addressed the 2002 medical reports and the 2004
through 2008 reports of Dr. Bieri regarding the issue of causal relationship between appellant’s
shoulder conditions and his accepted conditions. Therefore, this argument has been considered
and found to be without merit. Appellant argues that a May 7, 2007 (sic) report of Dr. Michael
Smith supports causal relationship between his shoulder conditions and his employment injury.
However, Dr. Smith did not diagnosis a shoulder condition in his May 7, 2002 report. He noted
appellant’s left shoulder pain and a positive impingement sign and stated, “There has been some
question brought up regarding potential shoulder injury.” Dr. Smith ordered an MRI scan of the
left shoulder which revealed moderate degenerative arthritic changes involving the
acromioclavicular joint resulting in a mild degree of impingement. However, Dr. Smith
provided no medical rationale explaining how the left shoulder impingement was causally related
to the April 19, 2002 employment injury. Therefore, this argument is without merit. Appellant
argues that Dr. Zimmerman did not properly consider the shoulder symptoms described in the
2002 reports. As noted, in a claim for permanent impairment under the Act, the employee has
the burden of proving that the condition for which a schedule award is sought is causally related
to his or her federal employment. Appellant did not submit sufficient medical evidence
establishing that his shoulder conditions were causally related to his 2002 employment injury.
CONCLUSION
The Board finds that appellant has four percent impairment to his right upper extremity
and three percent impairment to his left upper extremity. On return of the case record, the Office
should modify its June 19, 2008 decision to reflect appellant’s increased right and left upper
extremity impairment and calculate the additional compensation to which he is entitled.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 19, 2008 is affirmed, as modified.
Issued: September 14, 2009
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
FACILITIES ENGINEERING CMDSTATIONS, San Diego, CA, Employer
__________________________________________

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

Docket No. 16-0773
Issued: August 24, 2016

Case Submitted on the Record

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

JURISDICTION
On March 7, 2016 appellant filed a timely appeal from a January 8, 2016 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that he sustained a
traumatic injury on December 10, 2014 in the performance of duty.
FACTUAL HISTORY
On December 17, 2014 appellant, then a 20-year-old maintenance mechanic, filed a
traumatic injury claim (Form CA-1) alleging that he sustained back and neck injuries on
1

5 U.S.C. § 8101 et seq.

December 10, 2014 at the rear loading dock at Building 220. Appellant’s supervisor related on
the claim form that appellant was loading a cart with sheetrock into the back of a flatbed truck
and that he stepped off the edge of the dock (42 inches high) and landed on his left side. Two
coworkers reported that they were in the truck while appellant was loading the cart and they did
not see him fall, but saw him lying on the ground. They indicated that appellant did not call out
for help after he claimed he fell. The supervisor reported that he had not talked to appellant
about the incident as he was taken by ambulance and that the employing establishment was
investigating the validity of the claim.
In a January 12, 2015 statement, appellant indicated that he was emptying a loaded
bucket of sheet rock from Building 220 off the back dock and pushing the bucket onto the
flatbed utility truck. Due to the lip from the dock to the lift gate, he was having trouble getting
the bucket on the lift gate. While trying to get the bucket on the flatbed truck, appellant stepped
to the side thinking he had more room, felt his ankle roll, missed a step and fell. He felt strong
pain and stiffness in his lower back, left shoulder and right hand.
Along with the claim, appellant submitted: physical therapy evaluation forms, diagnostic
tests, work status forms and patient visit information.
In a December 18, 2014 report, Dr. Timothy Wilken, a family practitioner, indicated
appellant was injured on the job site on December 13, 2014. Appellant reported that his current
episode of pain started five days ago. The event which precipitated this pain was a fall off a
dock into a metal dumpster. Appellant was taken to the emergency room and told his x-rays did
not show a fracture. Dr. Wilken diagnosed lumbar strain, muscle spasm, hand strain, shoulder
strain, back pain, left hand pain, and left shoulder pain and opined with a check mark “yes” that
his diagnoses were consistent with appellant’s account of injury. Medical report summaries of
December 18, 23, and 30, 2014, and January 6, 2015 were provided along with requests for
authorization.
In a January 20, 2015 report, Dr. Wilken advised that appellant had been temporarily
totally disabled since his fall on December 10, 2014. He sustained multiple contusions when he
fell off a dock at work and landed very hard in a metal dumpster. Dr. Wilken provided a history
of appellant’s treatments and indicated that appellant would be released to modified duty the next
day.
In a February 26, 2015 report, Dr. Wilken diagnosed work-related lumbar strain, shoulder
strain, and hand strain. He indicated that appellant could return to regular work and discharged
him from care.
In a January 21, 2015 letter, the employing establishment controverted the claim. It
submitted pictures taken at the scene immediately after the incident by appellant’s supervisor and
notes that they failed to show a certainty of “mechanism of injury” as described by appellant and
left open the question of how he could have possibly slipped and fell to one side of the truck
unanswered. The employing establishment further noted that there was no mention of a metal
dumpster on the CA-1 form, appellant’s statement, and the emergency room doctor’s report.
Furthermore, there did not appear to be any swipe marks where the handprint indicated a fall into
the dumpster. Enclosed was a January 12, 2015 statement from appellant’s supervisor.

2

By letter dated March 25, 2015, OWCP advised appellant of the deficiencies in his claim
and provided him the opportunity to submit additional factual and medical evidence. Appellant
was asked to submit evidence to support how the injury occurred as there was insufficient factual
evidence to establish that he actually experienced the employment factor(s) alleged to have
caused injury and to respond to questionnaire provided in the letter. He was afforded 30 days to
submit the requested information. No additional information was received.
By decision dated May 1, 2015, OWCP denied the claim as the evidence did not support
that the injury or event(s) occurred as alleged. It specifically found that there was no clear
narrative regarding the specific details of how appellant became injured and the medical reports
from December 10 through 30, 2014 had no narrative about how appellant developed his
conditions.
On October 13, 2015 OWCP received an appeal request form noting appellant’s
October 5, 2015 request for reconsideration. In an October 4, 2015 letter, also received on
October 13, 2015, appellant requested reconsideration and indicated that he did not receive
notice of the May 1, 2015 decision until the end of May, due to the fact that he had been evicted
from his residence. He stated that he never received the notice of deficiencies and therefore
never responded to the request for additional information to support his claim. Appellant
indicated that the initial incident report from the employing establishment was missing and that
he had tried to contact the person in charge of that report, but had not received a return telephone
call. He indicated that he was picked up by the American Medical Response in an ambulance at
the location of the injury and attached the documentation for review.
A December 10, 2014 report from the American Medical Response indicated that
appellant was found lying left-lateral on concrete. Appellant stated that he fell backward off of a
four foot concrete loading dock. Care provided to appellant was documented.
In the December 10, 2014 emergency department report, Dr. Craig A. Walls, a Boardcertified emergency room physician, provided an impression of contusion. The history of injury
provided by appellant was that he missed a stair and fell onto his lower back and tried to catch
himself with his shoulder. X-rays of the lumbar spine, sacrum and coccyx revealed no fracture
and no dislocation. Appellant was discharged and advised to follow-up with a primary care
physician. Copies of December 10, 2014 diagnostic studies were also provided.
A duplicate copy of Dr. Wilken’s February 26, 2015 report was also provided.
By decision dated January 8, 2016, OWCP denied modification of its May 1, 2015
decision. It found that there was still no evidence to factually establish that the injury occurred
as alleged. OWCP further noted that the medical evidence of record was insufficient to establish
an injury causally related to the alleged event.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish 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 filed within the applicable time

3

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.2 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.3
OWCP regulations, at 20 C.F.R. § 10.5(ee) define a traumatic injury as a condition of the
body caused by a specific event or incident or series of events or incidents within a single
workday or shift.4 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 actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.5
To determine whether an employee actually sustained an injury in the performance of
duty, OWCP 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 actually experienced the
employment incident which is alleged to have occurred. An employee has the burden of
establishing the occurrence of an injury at the time, place, and in the manner alleged by a
preponderance of the reliable, probative, and substantial evidence.6 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, as alleged, but the employee’s statements must be consistent with
surrounding facts and circumstances and his subsequent course of action. 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 cast doubt on
an employee’s statements in determining whether he has established a prima facie case.7
However, an employee’s statement alleging that an injury occurred at a given time and in a given
manner is of great probative value and will stand unless refuted by strong or persuasive
evidence.8

2

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

3

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

4

20 C.F.R. § 10.5(ee); Ellen L. Noble, 55 ECAB 530 (2004).

5

T.H., 59 ECAB 388 (2008).

6

Charles B. Ward, 38 ECAB 667 (1987).

7

Merton J. Sills, 39 ECAB 572, 575 (1988).

8

Thelma S. Buffington, 34 ECAB 104 (1982).

4

ANALYSIS
Appellant has not submitted sufficient evidence to show that an employment incident
occurred as alleged in the performance of his duties as a maintenance mechanic on December 10,
2014 as his claim lacks specificity regarding the claimed mechanism of injury.9
Appellant did not complete the claim form, as he was taken to the emergency department
by ambulance. However, two coworkers, who were in the truck while appellant was loading the
cart, indicated that they did not see him fall and only saw him lying on the ground. This is
consistent with the ambulance report of how they found him. In his January 12, 2015 statement,
appellant indicated that he was emptying a loaded bucket of sheet rock from Building 220 off the
back dock and was pushing the bucket onto the flatbed utility truck. Due to the lip from the dock
to the lift gate, he was having trouble getting the bucket on the lift gate so he stepped to the side
thinking he had more room, felt his ankle roll and missed a step and fell. The history of injury
reported to Dr. Walls, the emergency room physician on the day of the injury, was that he missed
a stair and fell onto his lower back and tried to catch himself with his shoulder. He later told
Dr. Wilken that he had fallen off a dock into a metal dumpster while at work. Appellant did not
clearly describe to either emergency personnel, the emergency room physician, or Dr. Wilken the
specific details of how he became injured. While the medical reports of record provide several
diagnoses and detail treatment history, there is no medical narrative as to how appellant’s
medical conditions resulted or developed. Dr. Wilken’s opines in his December 18, 2014 report
and January 20, 2015 letter that appellant’s condition and total disability is consistent with the
injury, but fails to provide a detailed statement of the mechanism of injury to account for the
multiple injuries claimed. Medical opinions based on an incomplete or inaccurate history are of
diminished probative value.10
Furthermore, appellant did not respond to OWCP’s request that he describe the
employment incident or factors that caused his claimed injury. He subsequently claimed he
never received OWCP’s notice of deficiencies as he was evicted from his home. OWCP’s
regulations provide that a copy of the decision shall be mailed to the employee’s last known
address.11 The Board has found that, in the absence of evidence to the contrary, a letter properly
addressed and mailed in the due course of business, such as in the course of OWCP’s daily
activities, is presumed to have arrived at the mailing address in due course.12 There is no
evidence of record that either the development letter or the initial decision was undeliverable.

9

Bonnie A. Contreras, 57 ECAB 364, 367 (2006).

10

See M.W., 57 ECAB 710 (2006).

11

20 C.F.R. § 10.127 provides, a copy of the decision shall be mailed to the employee’s last known address. See
Kenneth E. Harris, 54 ECAB 502 (2003).
12

See Shakeer Davis, 52 ECAB 448 (2001). Where OWCP mailed a copy of the preliminary decision to both
appellant and counsel at their addresses of record. No evidence had been presented to rebut the presumption of
receipt. Thus, it is presumed that the preliminary decision reached both appellant and her attorney.

5

The Board finds that appellant has failed to provide sufficient factual and medical
evidence to establish a prima facie claim.13
On appeal, appellant argues that he was injured on the job and that his medical conditions
are work related. As noted, the evidence of record did not sufficiently establish that an
employment incident occurred on December 10, 2014 as alleged. As appellant did not establish
that an incident occurred, it is not necessary to consider the medical evidence with regard to
causal relationship.14
CONCLUSION
The Board finds that appellant did not establish that he sustained a traumatic injury in the
performance of duty on December 10, 2014.
ORDER
IT IS HEREBY ORDERED THAT the January 8, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 24, 2016
Washington, DC

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

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

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

13

See O.W., Docket No. 09-2110 (issued April 22, 2010).

14

See id.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF JUSTICE, U.S. MARSHALS )
SERVICE, Alexandria, VA, Employer
)
__________________________________________ )
R.H., Appellant

Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-449
Issued: June 5, 2014

Case Submitted on the Record

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

JURISDICTION
On December 23, 2013 appellant, through his attorney, filed a timely appeal from an
October 9, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying his claim for an employment-related injury. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish a neck or left shoulder
injury in the performance of duty on July 21, 2011, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the October 9, 2013 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

On appeal, counsel contends that the evidence of record, including an August 9, 2013
report from Dr. Patrick Collalto, a Board-certified orthopedic surgeon, is sufficient to establish
causal relationship.
FACTUAL HISTORY
On August 4, 2011 appellant, then a 55-year-old deputy marshal, filed a traumatic injury
claim (Form CA-1) alleging that he injured his neck and left shoulder as a result of doing dip
exercises on July 21, 2011 as part of a required fitness program. He stated that it was an overuse
injury from weight lifting and his doctor thought it was a muscle impingement of the nerve.
Appellant did not stop work.
In an August 11, 2011 report, Dr. Collalto noted that appellant had pain and numbness in
his left shoulder and arm that radiated down to his left index finger. Upon examination, he found
no tenderness, swelling, deformities, instability, subluxations, weakness or atrophy. Left upper
extremity range of motion in all planes was full and painless. Dr. Collalto diagnosed shoulder
pain, cervical radiculopathy and probable herniated nucleus pulposus (HNP).
An August 17, 2011 magnetic resonance imaging (MRI) scan of the cervical spine
revealed spondylotic changes worst at C5-6 and C6-7 where disc protrusions flattened the cord at
these levels causing severe degrees of central canal stenosis.
In an August 23, 2011 report, Dr. Collalto reiterated his diagnoses and findings.
By letter dated September 21, 2011, OWCP advised appellant that when it received his
claim, it appeared to be a minor injury that resulted in minimal or no lost time from work. Based
on these criteria and the fact that the employing establishment did not challenge the case,
payment of a limited amount of medical expenses was administratively approved. OWCP would
reopen the claim for consideration because the medical bills had exceeded $1,500.00. It
requested additional evidence and afforded appellant 30 days to respond to its inquiries.
Appellant submitted a statement reiterating the facts of his claim. In a September 27,
2011 report, Dr. Collalto advised that appellant was injured on July 21, 2011 and believed that
his pain and current diagnosis were causally related to the traumatic injury caused by weight
training during a required fitness program. On September 27, 2011 Dr. Collalto reiterated the
diagnoses of cervical radiculopathy and shoulder pain and restricted appellant from overhead
lifting. Appellant also submitted physical therapy notes dated September 12 and 15, 2011.
An August 17, 2011 MRI scan of the left shoulder showed an abnormal signal at the
distal supraspinatus at its insertion, fluid/edema in the subacromial/subdeltoid bursa and
degenerative changes.
By decision dated October 24, 2011, OWCP accepted that the July 21, 2011 incident
occurred in the performance of duty. It denied the claim on the basis that appellant failed to
submit sufficient medical evidence to establish fact of injury.
On October 24, 2011 appellant, through his attorney, requested reconsideration. He
submitted physical therapy notes dated September 19 and October 20, 2011.
2

In a November 14, 2011 report, Dr. Collalto advised that appellant had been his patient
since August 11, 2011 for complaints of shoulder and neck pain. He diagnosed cervical
radiculopathy, probable HNP and rotator cuff tear. On January 19, 2012 Dr. Collalto noted that
appellant had been under his care for left shoulder pain and that his left shoulder and arm pain
was consistent with weight training.
By decision dated April 27, 2012, OWCP denied modification of its October 24, 2011
decision.
On October 12, 2012 appellant, through his attorney, requested reconsideration. He
submitted an October 11, 2012 report from Dr. Collalto, which indicated that a recent
examination showed some tenderness referable to the shoulder and neck with mild limitations to
range of motion. Dr. Collalto opined that appellant’s neck and shoulder conditions were causally
related to the fitness training at work. He stated that MRI scans showed evidence of tendinitis,
bursitis and radiculopathy with underlying cervical disc complex at C5-6.
By decision dated November 29, 2012, OWCP denied modification of its April 27, 2012
decision.
On August 5, 2013 appellant, through his attorney, requested reconsideration and
submitted a July 23, 2013 report from Dr. Collalto who reiterated the diagnoses and noted that
appellant was doing dips training in July 2011. On August 9, 2013 Dr. Collalto opined that
appellant’s dipping or dip exercises during his fitness training at work caused him to suddenly
injure his neck and left shoulder, specifically his left rotator cuff. The injury also exacerbated an
underlying degenerative condition as appellant was not experiencing any symptoms prior to the
dip exercises.
By decision dated October 9, 2013, OWCP denied modification of the November 29,
2012 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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 injury4 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.5
3

5 U.S.C. § 8101 et seq.

4

OWCP regulations define a traumatic injury as a condition of the body caused by a specific event or incident, or
series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
5

See T.H., 59 ECAB 388 (2008). See also Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB
1143 (1989).

3

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. 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. Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury. An employee may establish that the employment incident
occurred as alleged but fail to show that his or her condition relates to the employment incident.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. 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 employee.7
ANALYSIS
OWCP accepted that the employment incident of July 21, 2011 occurred at the time,
place and in the manner alleged. The primary issue is whether appellant sustained an injury in
the performance of duty on July 21, 2011. Dr. Collalto diagnosed cervical radiculopathy and a
rotator cuff tear. The Board finds that appellant did not meet his burden of proof to establish a
causal relationship between his cervical left shoulder conditions and the employment incident.
Dr. Collalto diagnosed cervical radiculopathy, a probable herniated disc and left shoulder
rotator cuff tear. He opined that appellant’s neck and left shoulder conditions were causally
related to the traumatic injury caused by weight training during a required fitness program at
work. Dr. Collalto’s original treatment records did not address causal relationship. On
October 11, 2012 he stated that a recent examination showed some tenderness referable to the
shoulder and neck with mild limitations to range of motion. Dr. Collalto stated that MRI scans
showed evidence of tendinitis, bursitis and radiculopathy with underlying cervical disc complex
at C5-6. On July 23, 2013 he indicated that appellant was doing dips training in July 2011. On
August 9, 2013 Dr. Collalto opined that appellant’s dipping or dip exercises during his fitness
training at work caused him to suddenly injure his neck and left shoulder, specifically his left
rotator cuff. He further opined that the injury exacerbated an underlying degenerative condition
as appellant was not experiencing any symptoms prior to the dip exercises. The Board finds that
Dr. Collalto failed to provide a fully-rationalized opinion addressing how appellant’s neck and
left shoulder conditions were caused or aggravated by weight training and dipping exercises at
work on July 21, 2011. He noted generally that appellant’s condition occurred while he was at
work, but such generalized statements do not establish causal relationship because they repeat
appellant’s allegations. They are unsupported by adequate medical rationale explaining how his
physical activity at work caused or aggravated the diagnosed conditions.8 Lacking thorough
6

Id. See Shirley A. Temple, 48 ECAB 404 (1997); John J. Carlone, 41 ECAB 354 (1989).

7

Id. See Gary J. Watling, 52 ECAB 278 (2001).

8

See K.W., Docket No. 10-98 (issued September 10, 2010).

4

medical rationale on the issue of causal relationship, the Board finds Dr. Collalto’s reports are of
limited probative value and insufficient to establish that appellant sustained an employmentrelated injury in the performance of duty on July 21, 2011.
The physical therapy notes dated September 12 through October 20, 2011 do not
constitute medical evidence as they were not prepared by a physician.9 As such, the Board finds
that appellant did not meet his burden of proof with these submissions.
The submitted MRI scans dated August 17, 2011 are diagnostic in nature and therefore
do not address causal relationship. As such, the Board finds that they are insufficient to establish
appellant’s claim.
As appellant has not submitted any rationalized medical evidence to support his
allegation that he sustained an injury causally related to a July 21, 2011 employment incident, he
has failed to meet his burden of proof to establish a claim for compensation.
On appeal, counsel contends that the evidence of record is sufficient to establish causal
relationship. As noted, the Board finds that Dr. Collalto’s opinion on causal relationship is of
diminished probative value.
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 has not met his burden of proof to establish that his neck
and left shoulder conditions are causally related to a July 21, 2011 employment incident, as
alleged.

9

Physical therapists are not physicians under FECA. See 5 U.S.C. § 8101(2).

5

ORDER
IT IS HEREBY ORDERED THAT the October 9, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 5, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Los Angeles, CA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 12-1385
Issued: December 21, 2012

Case Submitted on the Record

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

On June 11, 2012 appellant filed a timely appeal from a March 2, 2012 decision of the
Office of Workers’ Compensation Programs (OWCP) affirming the prior denial of an
occupational disease claim. The claim was docketed as No. 12-1385.
The Board has duly considered the matter and finds that this case is not in posture for
decision. In its March 2, 2012 decision, OWCP found that appellant had not established a
claimed lumbar condition as he submitted insufficient medical evidence. It referred to medical
reports filed under File No. xxxxxx618, accepted for carpal tunnel syndrome. OWCP stated that
“numerous medical reports concerning the back” in File xxxxxx618 were “reviewed in
conjunction with preparation of this decision.”
The record forwarded to the Board suggests that File No. xxxxxx618 contains evidence
relevant to File No. xxxxxx042 presently before the Board. The Board therefore finds this case
is not in posture for a decision, as the record before the Board is incomplete and would not
permit an informed adjudication of the case by the Board. Thus, the case must be remanded to
OWCP to combine the claim files. OWCP procedures provide for doubling claims when correct
adjudication of the issues depends on frequent cross-reference between files.1 Upon remand, it
1

See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance & Management, Chapter 2.400.8(c)
(February 2000).

should combine file number xxxxxx618 with the instant case, file number xxxxxx042. After
combining the two records, OWCP should consider all relevant evidence regarding whether
appellant sustained a lumbar condition as claimed. It should then issue an appropriate decision.
IT IS HEREBY ORDERED THAT the February 3, 2012 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded for further proceedings
consistent with this order of the Board.
Issued: December 21, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.L., (Widow of P.L.), Appellant
and
DEPARTMENT OF THE NAVY,
PORTSMOUTH NAVAL SHIPYARD,
Portsmouth, NH, Employer
__________________________________________
Appearances:
Appellant, pro se
No appearance, for the Director

)
)
)
)
)
)
)
)
)

Docket No. 08-2312
Issued: February 18, 2009

Oral Argument January 15, 2009

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

JURISDICTION
On August 19, 2008 appellant filed a timely appeal from the May 29, 2008 merit decision
of an Office of Workers’ Compensation Programs’ hearing representative who denied her claim
for compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the merits of the case. The Board also has jurisdiction to review the Office’s July 21,
2008 nonmerit decision denying reconsideration.
ISSUES
The issues are: (1) whether the employee’s death on December 26, 2005 was causally
related to his November 7, 1961 employment injury; and (2) whether the Office properly denied
appellant’s request for reconsideration.
FACTUAL HISTORY
On November 7, 1961 the employee, then a 33-year-old shipfitter, sustained an injury in
the performance of duty when a pipe struck him in the head: “I was working on torpedo guide

cylinder on ground level at forward end of 606 submarine; staging pipes slipped out of a crane
operating overhead. One pipe struck me on the head, knocking me down.” The Office accepted
the employee’s claim for lumbosacral strain and contusions to the right shoulder, right upper
thigh and right lower leg. The employee received compensation for wage loss on the periodic
rolls.
The employee died on December 26, 2005. The certified abstract of the certificate of
death listed the causes of death as (a) respiratory arrest and (b) pleural effusion, 6 to 12 months.
Other significant conditions included chronic obstructive pulmonary disease.
On May 26, 2006 appellant filed a claim for compensation by widow. She stated that the
employee’s death was indirectly caused by medication for back pain from his November 7, 1961
work injury. On June 22, 2006 the Office asked appellant to make sure that the physician’s
report on the back of the claim was completed by the attending physician. It added: “Arrange
for the submission of a comprehensive narrative medical report from the treating physician that
gives the doctor’s opinion, with medical reasons, on the direct cause of death. This opinion
should include the contribution of both job-related and nonemployment factors.”
In a decision dated August 3, 2006, the Office denied appellant’s claim for compensation.
It found that the medical evidence failed to establish that the employee’s death was caused by his
November 7, 1961 employment injury.
Following a telephonic hearing on March 11, 2008, an Office hearing representative
affirmed the denial of compensation. In a decision dated May 29, 2008, the hearing
representative found no narrative report or any other statement from a physician relating the
employee’s death to residuals or medication from the work injury.
On June 7, 2008 appellant requested reconsideration. She noted, among other things, that
all available evidence had not been submitted. Appellant stated that she had plenty more
evidence, too much, in fact, to mail or communicate about by telephone.
In a decision dated July 21, 2008, the Office denied appellant’s request. It found that
appellant’s request did not meet at least one of the three standards for obtaining a merit review of
her case.
LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act provides compensation for the disability or
death of an employee resulting from personal injury sustained while in the performance of his
duty.1 If death results from an injury sustained in the performance of duty, the United States
shall pay a monthly compensation equal to a percentage of the monthly pay of the deceased
employee in accordance with the following schedule: (1) To the widow or widower, if there is
no child, 50 percent.2 If death results from an injury sustained in the performance of duty, the

1

5 U.S.C. § 8102(a).

2

Id. at § 8133(a)(1).

2

United States shall pay, to the personal representative of the deceased or otherwise, funeral and
burial expenses not to exceed $800.00, in the discretion of the Secretary of Labor.3
An award of compensation may not be based on surmise, conjecture or speculation or on
appellant’s unsupported belief of causal relation. Appellant has the burden of establishing by the
weight of the reliable, probative and substantial evidence that the employee’s death was causally
related to an employment injury or to factors of his employment. This burden includes the
necessity of furnishing medical opinion evidence of a cause and effect relationship based upon a
proper factual and medical background. The mere showing that an employee was receiving
compensation for total disability at the time of death does not establish that his death was
causally related to conditions resulting from the employment injury.4
ANALYSIS -- ISSUE 1
Appellant filed a claim for compensation benefits on May 26, 2006 and therefore bears
the burden of proof to establish her entitlement. She has the burden to prove that the employee’s
death on December 26, 2005 was causally related to his November 7, 1961 employment injury.
It is not enough for appellant to express her belief that the employee’s death was indirectly
caused by medication for back pain from his accepted work injury. Causal relationship is a
medical issue and must be addressed by a qualified physician. Appellant must submit to the
Office a medical report from a physician who provides an accurate history of the employee’s
November 7, 1961 employment injury, that correctly addresses the cause of death on
December 26, 2005, and that explains, with sound medical reasoning, how one led to the other.
The physician’s medical explanation is critical and must show that his or her conclusion is sound
and logical. Such rationalized medical opinion evidence is absolutely necessary for appellant to
establish the element of causal relationship. Without it, she has not established a prima facie
case.
Appellant has submitted no medical evidence in support of her claim. The Board has
reviewed her case record carefully and can find no medical report relating the employee’s death
on December 26, 2005 to the work injury he sustained on November 7, 1961. The death
certificate does not, on its face, support appellant’s claim that the employee died from his 1961
work injury. The Board fully appreciates appellant’s argument about the causes of death listed
on the death certificate. However, appellant must submit a physician’s opinion to explain how
the employee’s death was a result of the 1961 employment injury. The attending physician’s
report on the back of her claim form remains blank.
In the absence of a well-reasoned medical opinion soundly explaining how the
employee’s death resulted from his 1961 employment injury, the Board must find that appellant
3

Id. at § 8134(a).

4

Lorraine E. Lambert (Arthur R. Lambert), 33 ECAB 1111 (1982). The employee in Lambert, a 48-year-old
component cleaner at the Portsmouth Naval Shipyard, was struck in the head by a broken steam line on
November 3, 1970. He died on June 5, 1977. The death certificate listed the immediate cause of death as a
“bilateral pulmonary congestion moderate severe” due to “arteriosclerotic heart disease with old healed myocardial
infarction of anterior left ventricular.” The approximate interval between the onset of the pulmonary congestion and
death was “weeks.” Other significant conditions were “old cardiovascular accident and liver congestion.”

3

has not met her burden of proof. The Board will therefore affirm the Office hearing
representative’s May 29, 2008 decision denying appellant’s claim for compensation benefits.5
LEGAL PRECEDENT -- ISSUE 2
The Act provides that the Office may review an award for or against payment of
compensation at any time on its own motion or upon application.6 The employee shall exercise
this right through a request to the district Office. The request, along with the supporting
statements and evidence, is called the “application for reconsideration.”7
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.8
An application for reconsideration must be sent within one year of the date of the Office
decision for which review is sought.9 A timely request for reconsideration may be granted if the
Office determines that the employee has presented evidence or argument that meets at least one
of these standards. If reconsideration is granted, the case is reopened and the case is reviewed on
its merits. Where the request is timely but fails to meet at least one of these standards, the Office
will deny the application for reconsideration without reopening the case for a review on the
merits.10
ANALYSIS -- ISSUE 2
Appellant made her June 7, 2008 request for reconsideration within one year of the
Office hearing representative’s May 29, 2008 decision. Her request is therefore timely. The
question is whether her request meets at least one of the three standards for obtaining further
merit review of her case.

5

As the Board explained at the oral argument held on January 15, 2009, should appellant get a doctor to draw a
causal connection between the 1961 employment injury and the employee’s 2005 death, she may submit this
medical opinion to the Office and request that the Office reconsider its May 29, 2008 decision. Appellant has one
year from the date of this Board’s decision to submit the required medical opinion to the Office with a written
request for reconsideration.
6

5 U.S.C. § 8128(a).

7

20 C.F.R. § 10.605 (1999).

8

Id. at § 10.606.

9

Id. at § 10.607(a).

10

Id. at § 10.608.

4

Appellant’s request does not show that the Office erroneously applied or interpreted a
specific point of law; nor does it advance a relevant legal argument not previously considered by
the Office. She submitted evidence, but none of it is relevant and pertinent to her claim for
compensation benefits. As noted, she must submit medical evidence to discharge her burden of
proof. The only evidence that is relevant and pertinent to her claim for compensation benefits is
a physician’s opinion connecting the employee’s death to his 1961 employment injury.
Appellant submitted no such evidence with her request for reconsideration.
Because appellant’s request for reconsideration does not meet at least one of the three
standards for obtaining a merit review of her case, the Board finds that the Office properly
denied that request. The Board will therefore affirm the Office’s July 21, 2008 decision.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that the
employee’s death on December 26, 2005 was causally related to his November 7, 1961
employment injury. The Board also finds that the Office properly denied appellant’s request for
reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the July 21 and May 29, 2008 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: February 18, 2009
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

5


United States Department of Labor
Employees Compensation Appeals Board
__________________________________________
Y.J., Appellant
and
U.S. POSTAL SERVICE, CARDISS COLLINS
PROCESSING & DISTRIBUTION CENTER,
Chicago, IL, Employer
__________________________________________

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)
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)
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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1337
Issued: February 7, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 26, 2020 appellant, through counsel, filed a timely appeal from a May 11, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s medical
benefits, effective July 2, 2019, finding that she no longer had residuals causally related to her
accepted bilateral shoulder and hand conditions; and (2) whether appellant has met her burden of
proof to establish continuing residuals on or after July 2, 2019.
FACTUAL HISTORY
On September 24, 2015 appellant, then a 58-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that she developed intense pain and irritation in her hands,
wrists, elbows, and shoulders due to factors of her federal employment including repetitively using
her hands and arms while working on flat machines for four and a half years at work. She noted
that she first became aware of her claimed condition on September 15, 2015 and realized its
relationship to her federal employment on September 21, 2015. Appellant stopped work on
September 28, 2015 and returned on October 3, 2015. OWCP accepted her claim for bilateral
shoulder articular cartilage disorder and bilateral hand synovitis and tenosynovitis.
On October 7, 2016 appellant underwent OWCP-authorized right shoulder arthroscopy and
stopped work. OWCP paid appellant wage-loss compensation on the supplemental rolls, effective
October 5, 2016 and placed her on the periodic rolls, effective March 5, 2017. On August 11,
2017 appellant returned to full-time, limited-duty work. She continued to receive medical
treatment and undergo physical therapy treatment for her bilateral shoulder and hand conditions.
On March 7, 2018 OWCP referred appellant, along with a statement of accepted facts, a
copy of the case record, and a series of questions, to Dr. Steven Chandler, an osteopath specializing
in orthopedic surgery, for a second opinion evaluation regarding the status of her employmentrelated conditions. In a June 20, 2018 report, Dr. Chandler reviewed her history of injury and
noted her current complaints of pain and weakness in her hands. Upon examination of appellant’s
shoulders, he observed tenderness to the proximal biceps tendon and acromioclavicular (AC) joint.
Examination of her hands revealed decreased range of motion (ROM) of the wrists. Dr. Chandler
diagnosed bilateral shoulder bursitis, bilateral shoulder impingement syndrome, bilateral shoulder
tendinitis and/or tenosynovitis, bilateral carpal tunnel syndrome, and bilateral de Quervain’s
disease/tenosynovitis.
Dr. Chandler opined that appellant’s right shoulder impingement and rotator cuff tendinitis
had resolved after her right shoulder arthroscopy and when she was released back to work on
2

5 U.S.C. § 8101 et seq.

3

The Board notes that, following the May 11, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not b e 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.

2

March 10, 2017. He further opined that she still had residuals of her left shoulder condition and
noted that examination findings had shown positive Neer’s examination and tenderness to
palpation over the subacromial space. Regarding appellant’s bilateral hand condition,
Dr. Chandler reported that diagnostic testing showed that her bilateral wrist tenosynovitis
condition had resolved as of February 13, 2017, when appellant was released back to work.
Dr. Chandler concluded that she no longer needed therapy for her accepted conditions.
In a July 31, 2018 progress report, Dr. William Payne, a Board-certified orthopedic
surgeon, reported that appellant was seen for follow-up of right shoulder pain. He noted right
shoulder examination findings of tenderness in the AC joint and abnormal ROM. Dr. Payne
diagnosed status post right shoulder subacromial decompression. He recommended work
conditioning or physical therapy. Dr. Payne also completed occupational health injury notes dated
July 31 and September 18, 2018, which indicated that appellant could return to work with
restrictions.
In a supplemental report dated August 20, 2018, Dr. Chandler clarified that appellant’s
right shoulder conditions had resolved as of August 11, 2017 when she was released to full duty.
He also explained that his recommendation that she use splints was more prophylactic so that her
work duties did not aggravate her bilateral wrist condition.
In a January 10, 2019 prescription therapy report, Dr. David Barnes, an osteopath who
specializes in family medicine, noted appellant’s accepted conditions. He explained that she had
a few “flare-up” episodes since her last evaluation, but continued to show improvement. Upon
physical examination, Dr. Barnes observed muscle spasm and tenderness in appellant’s bilateral
thenar pads and hypothenar pads and wrists and restricted ROM. He requested authorization for
physical and occupational therapy to treat her bilateral hand conditions. Dr. Barnes also completed
duty status reports (Form CA-17) dated August 16, 2018 through February 7, 2019, wherein he
opined that appellant could return to work with restrictions.
OWCP subsequently determined that a conflict in medical opinion existed between
Dr. Barnes, appellant’s treating physician, and Dr. Chandler, OWCP’s second opinion medical
examiner, with regard to the status of her accepted conditions. As such, it referred her to
Dr. Michael Cohen, a Board-certified orthopedic surgeon, for an impartial medical examination to
resolve the conflict.
In a February 28, 2019 report, Dr. Cohen indicated that he reviewed appellant’s records
and noted that her claim was accepted for bilateral shoulder articular cartilage disorder and bilateral
hand tenosynovitis and tendinitis. He noted that diagnostic imaging of her right hand in 2016 4
showed significant carpometacarpal (CMC) arthritis and diagnostic imaging of her left hand in
2017 5 showed modest wrist and CMC arthritis. Dr. Cohen reported appellant’s complaints of
bilateral shoulder pain and pain in the area of the CMC joints of her hands. Upon physical
4

A December 28, 2016 right hand magnetic resonance imaging (MRI) scan demonstrated severe osteoarthritis of
the first CMC joint with full-thickness cartilage loss and mild degenerative changes at the metacarpophalangeal and
interphalangeal joints.
5

A January 30, 2017 left hand MRI scan revealed mild-to-moderate degenerative change in the left wrist, first
CMC joint, and first metacarpophalangeal joint.

3

examination of her hands and wrists, he observed full ROM, no tenderness, and negative
Finkelstein’s tests. Examination of appellant’s bilateral shoulders revealed full ROM and rotator
cuff strength. Dr. Cohen opined that appellant had no residuals of her accepted bilateral shoulder
conditions. He reported that examination of her shoulders demonstrated full ROM with the only
positive finding of tenderness over the biceps tendon. Dr. Cohen also opined that appellant’s
bilateral de Quervain’s tenosynovitis had resolved. He noted that she had negative Finkelstein’s
test on both wrists and no tenderness over the first dorsal compartment on both wrists. Dr. Cohen
opined that appellant’s current symptoms were related to her underlying arthritis condition, and
not related to her employment. He reported that physical therapy would not likely improve her
arthritic symptoms. Dr. Cohen completed a work capacity evaluation (Form OWCP-5c), which
indicated that appellant could work full time with restrictions.
On March 19, 2019 OWCP issued a notice proposing to terminate appellant’s medical
benefits because her accepted bilateral shoulder and hand conditions had resolved. It found that
the special weight of medical evidence rested with the February 28, 2019 medical report of
Dr. Cohen, OWCP’s impartial medical examiner (IME), who found that she no longer had any
residuals causally related to her accepted bilateral upper extremity conditions. OWCP afforded
appellant 30 days to submit additional evidence or argument, in writing, if she disagreed with the
proposed termination.
In an April 15, 2019 letter, appellant noted her disagreement with the proposed termination.
Appellant submitted additional evidence. In progress reports and occupational health
injury notes dated March 12 and April 9, 2019, Dr. Payne noted that she was seen for follow-up
evaluation of her right shoulder and complaints of left shoulder pain. Upon examination of the
right shoulder, he observed abnormal ROM on passive external rotation and normal sensation.
Examination of appellant’s left shoulder revealed tenderness in the AC joint and abnormal
abduction and forward flexion. Diagnostic testing, including a Hawkins impingement test, was
positive. Dr. Payne diagnosed status post right shoulder arthroscopy and repair. He indicated that
appellant could work with restrictions.
In an April 4, 2019 report, Dr. Barnes noted his disagreement with an OWCP examiner’s
opinion that appellant only suffered from arthritis in her thumb because arthritis would not present
with the objective findings that he had seen. He noted diagnoses of bilateral shoulder other
articular cartilage disorder and bilateral hand synovitis and tenosynovitis. Dr. Barnes indicated
that it was medically necessary to treat these conditions with continued medical treatment and
therapy. He also provided a motor grip strength testing report.
On April 9, 2019 appellant underwent a bilateral shoulder x-ray examination, which
showed “unremarkable bilateral shoulder x-ray.”
In an April 17, 2019 report, Dr. Barnes agreed that appellant suffered from arthritis, but
explained that she also continued to have objective findings and symptoms of her accepted bilateral
hand tenosynovitis condition. He reported that findings from his physical evaluation and
computerized ROM and grip strength and motor testing revealed that she had limited ROM in her
wrists, as well as weakness of the wrist and hand muscles. Dr. Barnes indicated that if appellant
only suffered from arthritis, she would not have those examination findings. He explained that

4

arthritis was also typically found within synovitis and tenosynovitis patients. Dr. Barnes
concluded that appellant continued to suffer from her accepted bilateral hand condition.
In an April 30, 2019 addendum report, Dr. Cohen recounted that he had reviewed
Dr. Barnes’ additional reports, including the motor grip and strength testing report, and noted his
disagreement with Dr. Barnes’ opinion. He explained that CMC arthritis would also result in
decreased ROM of the hand, wrist, and thumb, as well as decreased strength and mobility.
Dr. Cohen reported that physical evaluation of appellant’s hands revealed no findings of
tenosynovitis, including no tenderness over the first dorsal compartment of both wrists and
negative Finkelstein’s tests. He confirmed that his opinion from his initial February 28, 2019
impartial medical report remained unchanged.
A May 3, 2019 left shoulder MRI scan showed partial thickness tear of the distal anterior
supraspinatus tendon, infraspinatus tendinosis, and mild degenerative changes of the glenohumeral
and AC joints.
In a May 9, 2019 letter, appellant contended that the medical evidence of record had
demonstrated that her pain resulted f rom a tear in her left shoulder and not from arthritis. She also
alleged that she continued to experience symptoms in her hands from her a ccepted bilateral
tenosynovitis condition. Appellant indicated that she needed to undergo left shoulder surgery to
repair her left shoulder tear and continued physical therapy treatment for her bilateral hand
condition.
In a May 21, 2019 occupational health injury report, Dr. Payne noted a diagnosis of left
shoulder pain and indicated that appellant could return to work with restrictions.
In a June 6, 2019 Form CA-17 report, Dr. Barnes indicated that appellant could return to
work with restrictions of no pushing or pulling and taking a 10-minute break every hour.
OWCP also received physical therapy and chiropractic treatment notes dated f rom
August 29, 2018 through May 13, 2019.
By decision dated July 2, 2019, OWCP finalized the proposed termination of appellant’s
medical benefits, effective that date. It found that the special weight of medical evidence rested
with Dr. Cohen, the IME, who had determined in February 28 and April 30, 2019 reports, that she
did not have residuals due to her accepted bilateral shoulder and hand conditions.
On March 5, 2020 appellant, through counsel, requested reconsideration and submitted
additional medical evidence.
In reports dated July 2, 2019 through February 18, 2020, Dr. Payne noted diagnoses of left
shoulder pain, left shoulder partial thickness tear, and status post right shoulder arthroscopy. He
indicated that appellant could work with restrictions.
OWCP received an August 8, 2019 Form CA-17 report by Dr. Barnes, who indicated that
appellant could return to work with restrictions.

5

In an October 8, 2019 progress note, Dr. Payne reported appellant’s complaints of right
and left shoulder pain aggravated by pushing, pulling, lifting, and repetitive activities at or above
shoulder height. He noted right shoulder examination findings of tenderness in the AC right joint
and abnormal abduction, flexion, and external rotation. Examination of appellant’s left shoulder
revealed normal ROM. Dr. Payne diagnosed status post right shoulder arthroscopy and left
shoulder partial thickness tear.
On October 10, 2019 Dr. Payne submitted a request for authorization for left shoulder
arthroscopy.
In a November 21, 2019 prescription for therapy note, Dr. Barnes noted that appellant was
doing well with therapy, but still reported difficulty with strength, grip strength, and ROM. He
reiterated his disagreement with the opinion that her symptoms were due only to her CMC arthritis
and explained that CMC arthritis would not present with all the objective findings in his
examination and computerized testing. Dr. Barnes opined that additional medical treatment was
needed to treat appellant’s bilateral hand condition and to guarantee that her condition would not
deteriorate.
In a January 29, 2020 narrative report, Dr. Payne noted that appellant injured her shoulders
and hands due to repetitive movement at work. He reported that she currently complained of
bilateral hand pain, worse on the right, intermittent numbness, tingling, and weakness and bilateral
shoulder pain. Dr. Payne discussed the medical treatment that appellant had received and noted
that after several evaluations and diagnostic testing, he assessed that she had right shoulder rotator
cuff tear, left shoulder impingement with partial tear, bilateral CMC arthritis, bilateral shoulder
pain, and bilateral de Quervain’s tenosynovitis. He opined that the injuries that she sustained were
a result of repetitive use of the work-related injury while working at the employing establishment.
Dr. Payne indicated that appellant would need surgery on her left shoulder and additional physical
therapy.
By decision dated May 11, 2020, OWCP denied modification of the July 2, 2019 decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of benefits.6 It may not terminate compensation without establishing
either that the disability has ceased or that it is no longer related to the employment. 7 OWCP’s
burden of proof includes the necessity of furnishing rationalized medical opinion evidence based
on a proper factual and medical background. 8

6

A.D., Docket No. 18-0497 (issued July 25, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197
(2005); Paul L. Stewart, 54 ECAB 824 (2003).
7

A.G., Docket No. 18-0749 (issued November 7, 2018); see also I.J., 59 ECAB 408 (2008); Elsie L. Price, 54
ECAB 734 (2003).
8

R.R., Docket No. 19-0173 (issued May 2, 2019); T.P., 58 ECAB 524 (2007); Del K. Rykert, 40 ECAB 284 (1988).

6

The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.9 To terminate authorization for medical treatment, OWCP
must establish that the employee no longer has residuals of an emplo yment-related condition,
which require further medical treatment. 10
Section 8123(a) of FECA provides that if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary shall
appoint a third physician (known as a referee physician or IME) who shall make an examination. 11
For a conflict to arise the opposing physicians’ viewpoints must be of “virtually equal weight and
rationale.”12 When OWCP has referred the case to an IME 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. 13
ANALYSIS -- ISSUE 1
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
medical benefits, effective July 2, 2019.
OWCP improperly determined that a conflict in the medical opinion evidence existed
between Dr. Barnes, appellant’s treating physician and Dr. Chandler, OWCP’s second opinion
examiner, regarding whether her accepted bilateral shoulder and hand conditions had resolved. In
his June 20 and August 20, 2018 reports, Dr. Chandler reported her complaints of pain and
weakness in her hands. He noted physical examination findings of tenderness to the proximal
biceps tendon and AC joint of appellant’s shoulders and decreased ROM of her wrists.
Dr. Chandler diagnosed bilateral shoulder bursitis, bilateral shoulder impingement syndrome,
bilateral shoulder tendinitis and/or tenosynovitis, bilateral carpal tunnel syndrome, and bilateral
de Quervain’s disease/tenosynovitis. He opined that appellant’s right shoulder condition had
resolved after her right shoulder arthroscopy and her release to work on August 11, 2017, but that
she continued to suffer residuals of her left shoulder condition. Dr. Chandler also indicated that
her bilateral wrist condition had resolved when she was released back to work on
February 13, 2017.
As noted above, for a conflict to arise the opposing p hysicians’ viewpoints must be of
virtually equal weight and rationale. 14 In this case, the Board finds, however, that Dr. Chandler
9

L.W., Docket No. 18-1372 (issued February 27, 2019); Kathryn E. Demarsh, 56 ECAB 677 (2005).

10

R.P., Docket No. 17-1133 (issued January 18, 2018); A.P., Docket No. 08-1822 (issued August 5, 2009).

11

5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).
12

H.B., Docket No. 19-0926 (issued September 10, 2020); C.H., Docket No. 18-1065 (issued November 29, 2018);
Darlene R. Kennedy, 57 ECAB 414, 416 (2006).
13

S.S., Docket No. 19-0766 (issued December 13, 2019); W.M., Docket No. 18-0957 (issued October 15, 2018);
Gloria J. Godfrey, 52 ECAB 486 (2001).
14

Supra note 12.

7

failed to provide sufficient explanation as to why, despite diminished examination findings,
appellant’s accepted right shoulder and hand conditions had resolved.15 Dr. Chandler relied on the
fact that she was released back to work. The Board has held that a report is of limited probative
value regarding a given medical matter if a physician does not provide medical rationale explaining
his or her opinion on that matter.16 Therefore, the Board finds that Dr. Chandler’s opinion was not
of equal weight and was, thus, insufficient to create a conflict with Dr. Barnes.17 Furthermore,
Dr. Chandler determined that appellant still had residuals of her left shoulder condition and, thus,
there was no conflict in medical evidence regarding her left shoulder condition. As no true conflict
existed in the medical evidence at the time of the referral to Dr. Cohen, the Board finds that his
report may not be afforded the special weight of an IME and should be considered for its own
intrinsic value. 18 The referral to Dr. Cohen is therefore considered to be a second opinion
evaluation.19
In a February 28, 2019 report, Dr. Cohen reviewed appellant’s records and noted that
appellant’s claim was accepted for bilateral shoulder articular cartilage disorder and bilateral hand
tenosynovitis and tendinitis. He noted that diagnostic imaging of her bilateral hands had revealed
wrist and CMC arthritis. Dr. Cohen reported bilateral hand examination findings of full ROM, no
tenderness, and negative Finkelstein’s tests. Examination of appellant’s bilateral shoulders
revealed full ROM and rotator cuff strength. Dr. Cohen opined that her accepted bilateral shoulder
and hand conditions had resolved as she no longer had examination findings to support her
conditions. He opined that appellant’s current symptoms were related to her underlying arthritis
condition, and not related to her employment. Dr. Cohen reported that she could continue to work
full time with restrictions.
Appellant’s treating physician, Dr. Barnes, however, submitted numerous reports wherein
he noted that appellant continued to suffer residuals of her accepted bilateral shoulder and hand
conditions that required medical treatment. In a January 10, 2019 report, he indicated that she
continued to show muscle spasm and tenderness in her bilateral thenar pads and hypothenar pads
and wrists. Dr. Barnes requested authorization for physical and occupational therapy to treat
appellant’s bilateral hand conditions. In an April 4, 2019 report and April 17, 2019 letter, he
expressed his disagreement with an OWCP examiner’s opinion that appellant only suffered from
arthritis. Dr. Barnes noted that examination findings still showed deficits in her hand and
shoulders. He reported diagnoses of bilateral shoulder other articular cartilage disorder and
15

See P.E., Docket No. 19-0837 (issued October 20, 2020); see also F.R., Docket No. 17-1711 (issued
September 6, 2018).
16

L.G., Docket No. 19-0142 (issued August 8, 2019); C.M., Docket No. 14-0088 (issued April 18, 2014).

17

Supra note 13; see also R.B., Docket No. 20-0109 (issued June 25, 2020) (the Board found that a second-opinion
examiner’s report was of limited probative value and insufficient to create a conflict in medical opinion with the
claimant’s treating physician).
18

See R.B., id.; see also F.R., supra note 15.

19

See M.G., Docket No. 19-1627 (issued April 17, 2020); S.M., Docket No. 19-0397 (issued August 7, 2019) (the
Board found that at the time of the referral for an impartial medical examination there was no conflict in medical
opinion evidence; therefore, the referral was for a second opinion examination); Cleopatra McDougal-Saddler, 47
ECAB 480 (1996).

8

bilateral hand synovitis and tenosynovitis. Dr. Barnes indicated that it was medically necessary to
treat these conditions with continued medical treatment and therapy.
In an April 30, 2019 addendum report, Dr. Cohen noted that he had reviewed Dr. Barnes’
additional reports, and disagreed with his opinion. He reiterated that physical evaluation of
appellant’s bilateral hands revealed no findings of tenosynovitis, including no tenderness over the
first dorsal compartment of both wrists and negative Finkelstein’s tests. Dr. Cohen confirmed that
his opinion from his initial February 28, 2019 impartial medical report remained unchanged.
The Board therefore finds that the medical reports of Dr. Cohen and Dr. Barnes are of
virtually equal weight and rationale, and therefore an unresolved conflict in medical opinion now
exists between Dr. Barnes and Dr. Cohen regarding whether appellant’s accepted bilateral
shoulder and hand conditions had resolved. It is well established that when there exist opposing
medical reports of virtually equal weight and rationale, the case should be referred to an IME for
the purpose of resolving the conflict. 20 As a conflict in medical evidence regarding whether
appellant’s accepted bilateral shoulder and hand conditions had resolved remains prior to July 2,
2019, the Board finds that OWCP has not met its burden of proof to terminate her medical benefits.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
medical benefits effective July 2, 2019.21

20

Supra notes 11 and 13.

21

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

9

ORDER
IT IS HEREBY ORDERED THAT the May 11, 2020 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: February 7, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

10