United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cincinnati, OH, Employer
__________________________________________

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

Docket No. 11-532
Issued: December 21, 2011

Case Submitted on the Record

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

JURISDICTION
On December 30, 2010 appellant, through his attorney, filed a timely appeal from a
November 17, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP)
which denied his claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
injury in the performance of duty.
FACTUAL HISTORY
On March 15, 2010 appellant, then a 34-year-old mail processing clerk, filed an
occupational disease claim alleging that he developed degenerative joint and disc disease of the
1

5 U.S.C. § 8101 et seq.

cervical spine and radiculopathy of the left upper extremity at work. He stated that his physician
attributed his condition to the work he performed which included, keying mail on a parcel sorter
machine, working mail from slides and lifting mail sacks. Appellant explained that his work
duties aggravated a previous military neck injury. He first became aware of the condition on
August 1, 1993 and first realized that it was caused or aggravated by his employment on
February 18, 2010. Appellant also stopped work on that date.
In a letter dated March 18, 2010, Kelly James, a human resources specialist with the
employing establishment, controverted the claim. She noted that appellant’s injury of August 1,
1993 was 17 years earlier, and he did not file a claim until he needed a cervical spine fusion,
which was scheduled for March 24, 2010.
In a March 15, 2010 statement, appellant noted that he was hired in 1995 as a “keyer”
clerk. Prior to work as a keyer clerk, he was hired as a mail handler in late 1994 or early 1995
but advised that he was at risk while performing the duties of a mail handler due to his
preexisting cervical condition from the military. Appellant alleged that his duties included lifting
mail sacks up to 70 pounds, throwing mail and keying parcels exacerbated his condition. He
explained that, after seeing his treating physician on February 18, 2010, he realized that his work
duties affected his service-connected disability.
On March 25, 2010 OWCP received a February 1, 2010 rating decision from the
Department of Veterans Affairs finding that appellant had no disability for service-connected left
upper extremity radiculopathy; 10 percent disability for cervical degenerative disc and joint
diseases; and 10 percent for headaches. The decision noted that he served in the United States
Navy from 1984 to 1988 and 1990 to 1995. A December 2009 neck examination revealed that
there was “no objective evidence of painful motion, spasm, weakness, tenderness and no findings
following repetitive motion. Degenerative disc disease was diagnosed and the examiner
expressed the opinion it is at least as likely as not related to your degenerative joint disease.”
By letter dated March 29, 2010, OWCP advised appellant that additional factual and
medical evidence was needed. It explained that a physician’s opinion was crucial to his claim
and allotted 30 days within which to submit the requested information.
In an April 14, 2010 statement, appellant described the duties he performed and noted a
previous spinal fusion of the lumbar region in 2000 which was work related.
Appellant also submitted reports from Dr. Norberto Andaluz, a neurosurgeon. On
March 24, 2010 Dr. Andaluz performed an anterior cervical discectomy at C6-7 to treat left side
C7 radiculopathy. In a March 25, 2010 postoperative report, he advised that appellant had a
history of a military neck injury while diving in the 1980s in which he had a 45-second episode
of total body paralysis. In 1993, while in the military, intermittent left upper extremity
radiculopathy began which became constant in March 2009. In an April 12, 2010 attending
physician’s report, Dr. Andaluz diagnosed cervical spondylosis without myelopathy. He noted
that appellant had an original neck injury in 1993. Dr. Andaluz checked a box “yes” indicating
that appellant’s condition was caused or aggravated by work activity and added “persistent
activity and lifting may have aggravated his condition.” OWCP also received nursing notes.

2

By decision dated June 15, 2010, OWCP denied appellant’s occupational disease claim.
It found that he did not submit sufficient medical evidence to support a causal relationship
between the accepted work-related activities and the diagnosed medical conditions.
On June 28, 2010 appellant’s representative requested a telephonic hearing, which was
held on September 20, 2010. Appellant testified that his regular work included lifting mail
sacks, throwing mail and keying parcels on a sorting machine. He indicated that he remained off
work. Appellant noted that he was originally injured on August 1, 1993 while in the Navy and
also had a diving accident in 1987 while in naval service. He confirmed that he received a
disability retirement. Appellant also clarified that August 1, 1993 was the date his neck was
injured in the Navy. He explained that February 18, 2010 was when he became aware his work
had affected his neck. Appellant confirmed that he underwent cervical spine surgery in
March 2010.
On September 23, 2010 appellant’s representative submitted additional medical evidence,
which included a March 24, 2010 operative report from Dr. Andaluz, who performed an anterior
cervical discectomy at C6-7 with allograft and plating.
Appellant also submitted a December 21, 2009 electromyography (EMG) scan read by
Dr. Joseph A. Nicolas, a Board-certified neurologist, as abnormal and revealed left C7
radiculopathy. The nerve conduction studies were normal. A January 14, 2010 magnetic
resonance imaging (MRI) scan of the cervical spine read by Dr. Charles Lee, a Board-certified
diagnostic radiologist revealed mild, stable degenerative changes and foraminal narrowing at
C6-7. OWCP also received several occupational therapy progress notes, including a July 28,
2010 note stating that appellant had chronic cervical pain and radiculopathy that “has been
exacerbated by lifting a heavy mailbag.” In an August 26, 2010 progress note, the occupational
therapist related that appellant worked at the employing establishment lifting bags all day. He
advised that appellant had recently returned to work two and a half weeks following an injury
from lifting a 36-pound mailbag. The occupational therapist set forth appellant’s work
restrictions.
In a September 8, 2010 report, Dr. Muhammad Munir, a Board-certified anesthesiologist,
noted that appellant had neck and left arm weakness that was ongoing for over a year, following
a cervical fusion in March 2010. He advised that appellant’s condition improved until June 2010
when he returned to work. Dr. Munir noted that appellant was lifting a bucket of mail weighing
approximately 30 to 40 pounds and sustained a “pop” and “severe pain in his neck again with
radiation down to the scapular region on the left side as well as to the left shoulder and
occasionally into the left triceps.” He diagnosed cervical postlaminectomy pain syndrome;
lumbar spondylosis and lumbar postlaminectomy pain syndrome; cervical degenerative disc
disease at multiple levels as well as a loss of lordosis from myofascial spasm. Dr. Munir stated
that “considering his lumbar fusion, his cervical fusion and return of his symptoms along with
further injury since his cervical fusion with his current job” it would be best to search for an
alternate position as “continued and unexpected weight lifting in the current job may make his
pain and condition worse.”
In a letter dated October 4, 2010, Ms. James of the employing establishment noted that
appellant began work on October 28, 1995 with a preexisting neck condition related to his prior

3

military service. She also noted that appellant filed a claim for a traumatic injury in June 2010
for a work-related aggravation of his neck condition, which was denied.2
In a letter dated October 14, 2010, appellant’s representative asserted that the July 28,
2010 progress note supported that work factors, lifting the heavy mailbags, exacerbated
appellant’s chronic cervical pain.3
In a letter dated October 14, 2010, appellant explained that August 1, 1993 was the date
of his injury while serving in the Navy, not the date of the claimed work injury. He indicated
that the aggravation of a neck condition developed due to his work activities over several years.
Appellant noted that, while an EMG in 1995 was normal, the same test in 2010 was positive for a
cervical spine condition.
By decision dated November 17, 2010, OWCP’s hearing representative affirmed the
June 15, 2010 decision. He found that date of injury actually being claimed was February 18,
2010, and noted that appellant incorrectly entered August 1, 1993 as the date of injury.
LEGAL PRECEDENT
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.4
The medical evidence required to establish a causal relationship, generally, is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized medical opinion on the issue of whether there is a causal
relationship between the claimant’s diagnosed condition and the implicated employment factors.
The opinion of the physician must be based upon a complete factual and medical background of
the claimant, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.5
ANALYSIS
Appellant’s work duties are not in dispute and the record indicates that such duties
included keying mail, working mail from slides, and lifting mail sacks. However, he has not

2

This claim is not before the Board on the present appeal.

3

The record reflects that he was actually referring to the notes from the physical therapist.

4

Solomon Polen, 51 ECAB 341 (2000); see also Victor J. Woodhams, 41 ECAB 345, 352 (1989).

5

Id.

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submitted sufficient medical evidence to indicate that his cervical spine condition was causally
related to his employment.
Appellant provided reports from Dr. Andaluz. They included Dr. Andaluz’ April 12,
2010 report, in which he diagnosed cervical spondylosis without myelopathy and noted an
original neck injury in 1993 while on active duty. He checked the box “yes” to indicate that
appellant’s condition was caused or aggravated by an employment activity. Dr. Andaluz noted
that “persistent activity and lifting may have aggravated his condition.” Although he provided
some support for causal relationship, his opinion that appellant’s work “may have” aggravated
his condition is couched in speculative terms. The Board has held that medical opinions which
are speculative or equivocal in character have little probative value.6 Dr. Andaluz did not
provide a fully-rationalized opinion report in which he explained how particular work factors
contributed to or aggravated appellant’s condition.7 The need for rationale is particularly
important where the record shows that appellant’s cervical condition began prior to his tenure at
the employing establishment. Other reports from Dr. Andaluz did not specifically address
whether particular work activities caused or aggravated appellant’s condition. Medical evidence
which does not offer any opinion regarding the cause of an employee’s condition is of limited
probative value on the issue of causal relationship.8
In a September 8, 2010 report, Dr. Munir noted appellant’s history which included neck
and left arm weakness for over a year and a cervical fusion in March 2010. He noted that
appellant’s condition improved until June when he returned to work and was lifting a bucket of
mail and sustained a “pop” and “severe pain in his neck again with radiation down to the
scapular region on the left side as well as to the left shoulder and occasionally into the left
triceps.” Dr. Munir diagnosed cervical postlaminectomy pain syndrome; lumbar spondylosis and
lumbar postlaminectomy pain syndrome; cervical degenerative disc disease at multiple levels as
well as a loss of lordosis from myofascial spasm. He opined that “considering his lumbar fusion,
his cervical fusion, and return of his symptoms along with further injury since his cervical fusion
with his current job” it would be best to search for an alternate position as “continued and
unexpected weight lifting in the current job may make his pain and condition worse.” It appears
that Dr. Munir largely addressed a traumatic incident that occurred in June 2010 instead of the
occupational disease filed as February 18, 2010.9 Furthermore, although Dr. Munir noted the
history of appellant’s condition and commented on the type of work he should do, he did not
specifically provide his own opinion as to whether appellant’s work duties caused or aggravated
a diagnosed medical condition.
Appellant also provided several diagnostic reports. They included a December 21, 2009
EMG scan read by Dr. Nicolas and a January 14, 2010 MRI scan. However, these reports
merely reported findings and did not contain a physician’s opinion regarding the cause of the
6

Vaheh Mokhtarians, 51 ECAB 190 (1999).

7

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
8

Michael E. Smith, 50 ECAB 313 (1999).

9

As noted, supra note 2, a claim for a June 2010 injury was developed separately by OWCP.

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reported condition. Additionally, appellant provided occupational therapy reports and nurses
notes. As occupational therapists and nurses are not physicians as defined by FECA, their
opinions regarding the cause of appellant’s condition are of no probative medical value.10
Appellant has not submitted rationalized medical evidence in which a physician explains
the reasons why appellant’s work duties have caused or contributed to his claimed conditions.
The Board therefore finds that, as appellant did not submit medical evidence to establish that his
neck and cervical spine condition was causally related to factors of employment, he has failed to
meet his burden of proof.
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
Under the circumstances described above, the Board finds that appellant has not met his
burden of proof in establishing that he sustained an injury in the performance of duty.

10

See 5 U.S.C. § 8101(2); Roy L. Humphrey, 57 ECAB 238 (2005); H.S., Docket No. 11-679 (issued
October 6, 2011). See also Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board held that medical
opinion, in general, can only be given by a qualified physician).

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ORDER
IT IS HEREBY ORDERED THAT the November 17, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 21, 2011
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Des Moines, IA, Employer
__________________________________________

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

Docket No. 09-1489
Issued: February 25, 2010

Case Submitted on the Record

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

JURISDICTION
On May 27, 2009 appellant filed a timely appeal from the December 12, 2008 merit
decision of the Office of Workers’ Compensation Programs finding that she did not establish that
her back condition was causally related to her accepted injury. 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 met her burden of proof to establish that her back
condition is causally related to her February 10, 2007 injury.
FACTUAL HISTORY
On August 22, 2007 appellant, then a 45-year-old clerk, filed a traumatic injury claim
alleging that on February 10, 2007 she was lifting a tray of mail and felt a pull in her upper back
and left side. She did not stop work but returned to a limited-duty position.
Appellant was treated by Dr. Alan J. Schultz, a chiropractor, for lumbar disc and hip pain.
Dr. Schultz diagnosed thoracic sprain and subluxation of the thoracic spine and administered
biomechanics anterior adjustive procedures at T4, T7 and T10. In reports dated August 9 to

September 17, 2007, he noted that appellant was a postal worker and her duties required constant
standing and lifting. In reports dated September 18 to October 1l, 2007, Dr. Schultz treated
appellant for pain in the thoracic spine and interscapular region bilaterally. He noted that an
October 1, 2007 x-ray of the thoracic spine revealed subluxation at T4 and C7. Dr. Schultz
advised that subluxations could arise from repetitive motion and opined that appellant’s work
was the cause of her current spinal symptoms.
Appellant submitted June 20, 2007 thoracic spine x-ray report noting mild anterior
wedging at T11 and T12, a magnetic resonance imaging scan of the thoracic spine dated June 22,
2007 which revealed mild anterior wedging of T11 and T12 which was age indeterminate and
otherwise appearing normal. A June 29, 2007 bone scan revealed no abnormalities in the
thoracic spine.
On August 23, 2007 appellant sought treatment from Dr. Susan L. Donahue, an
osteopath, for upper back pain. Dr. Donohue had treated her since June 2005 for upper back
complaints. She related that appellant reported performing repetitive lifting while at work that
caused her back to become sore. On February 17, 2007 appellant presented with a one-week
history of tenderness in her left upper back which she reported occurred while she was leaning
over and lifting mail with her left hand. Dr. Donahue recommended physical therapy, antiinflammatories and muscle relaxers. She noted an x-ray of the thoracic spine revealed a
questionable anterior wedging deformity at T11 and T12 which were age indeterminate.
Dr. Donahue returned appellant to work with restrictions. On July 31, 2007 appellant was seen
in consultation with Dr. Clay E. Ransdell, an osteopath. She reported a three-month history of
pain in the left thoracic shoulder region which developed at work after lifting a mail tray.
Dr. Clay noted pain with palpation of the left upper thoracic region and tightness of the
paraspinal muscles. He diagnosed left-sided upper to mid-thoracic level myofascial pain and
recommended medial branch nerve blocks.
Appellant submitted reports from Dr. Donahue dated September 19 to 28, 2007. She
diagnosed musculoskeletal upper back pain. In a duty status report dated September 25, 2007,
Dr. Donahue noted that appellant could resume light-duty work on September 27, 2007. From
October 2 to 4, 2007, appellant was also treated by Dr. Camille Rivera, a Board-certified
physiatrist, who diagnosed thoracic/scapular pain and advised that appellant could resume work
on October 8, 2007 with restrictions.
In a November 7, 2007 decision, the Office found insufficient medical evidence
addressing causal relationship.
Appellant requested reconsideration and submitted a November 6, 2007 duty status report
from Dr. Rivera who diagnosed thoracic myositis strain. He noted that she could resume work
with restrictions. In reports dated December 27, 2007 to February 27, 2008, Dr. Marc Molis, a
Board-certified family practitioner, treated appellant for upper back pain which she reported
developed in February 2007 after a lifting incident at work. He found pain with abduction of the
left shoulder and abnormal movement of the left scapula. Dr. Molis diagnosed left rotator cuff
strain and left scapular dyskinesia and recommended physical therapy. On February 27, 2008 he
noted improvement in appellant’s condition with good range of left shoulder motion. Dr. Molis
diagnosed left rotator cuff tendinitis and found that appellant was injured at work when she was
pulling and lifting a heavy mailbag from a conveyor belt. A December 28, 2007 left shoulder
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MRI scan revealed increased T2 signal within the supraspinatus tendon most likely due to
tendinopathy and or partial thickness intrasubstance tear.
On May 6, 2008 the Office denied modification of the November 7, 2007 decision.
On May 20, 2008 appellant requested reconsideration. In a May 13, 2008 report,
Dr. Molis reported that appellant initially injured herself in February 2007 when her arm was
jerked back when attempting to stop a bin of mail on a conveyor belt. Dr. Molis noted that
appellant was subsequently treated; however, her condition was not correctly diagnosed which
led to treatment which did not improve her condition. He noted that upon being properly
diagnosed appellant’s condition improved.
In a decision dated August 8, 2008, the Office vacated the May 6, 2008 decision and
accepted appellant’s claim for left rotator cuff strain. Her claim remained denied for a back
condition causally related to the February 10, 2007 incident.
On October 17 and 27, 2008 appellant requested reconsideration. In an October 16, 2008
note, Dr. Molis diagnosed scapular dyskinesia which he opined correlated to appellant’s back
pain. Dr. Molis advised that the scapula would compensate for a weak rotator cuff which caused
pain and irritation in the upper back and shoulder blade region. He diagnosed appellant’s back
pain as scapular dyskinesia which directly related to her rotator cuff issues.
In a decision dated December 12, 2008, the Office denied modification of the August 8,
2008 decision.1
LEGAL PRECEDENT
When an employee claims that he or she sustained an injury in the performance of duty,
the employee must submit sufficient evidence to establish that he or she experienced a specific
event, incident or exposure occurring at the time, place and in the manner alleged. The
employee must also establish that such event, incident or exposure caused an injury. Once an
employee establishes an injury in the performance of duty, he or she has the burden of proof to
establish that any subsequent medical condition or disability for work, which the employee
claims compensation, is causally related to the accepted injury.2 To meet his or her burden of
proof, an employee must submit a physician’s rationalized medical opinion on the issue of
whether the alleged injury was caused by the employment incident.3 Medical conclusions
unsupported by rationale are of diminished probative value and are insufficient to establish
causal relation.4

1

The Office also issued an April 1, 2009 schedule award decision. Appellant did not appeal this decision.

2

See Leon Thomas, 52 ECAB 202 (2001).

3

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

4

Albert C. Brown, 52 ECAB 152 (2000).

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ANALYSIS
The Office accepted appellant’s claim for left rotator cuff strain. However, it denied her
February 10, 2007 claim for a back condition.
Appellant submitted reports from Dr. Schultz, a chiropractor. The record establishes that
Dr. Schultz obtained and reviewed x-rays in diagnosing a spinal subluxation at T4 and C7. He is
considered a physician under the Act.5 While the reports of Dr. Schultz dated August 9 to
September 17, 2007 provide some support for causal relationship, they are insufficient to
establish that appellant sustained a back condition causally related to the accepted incident.
Dr. Schultz noted that appellant’s work duties required constant standing and lifting. He opined
that subluxations could arise from repetitive motion and believed appellant’s work was the cause
of her current thoracic symptoms. Dr. Schultz did not address or describe the February 10, 2007
incident in which appellant lifted a tray of mail. The present claim is not one for an occupational
disease. Dr. Schultz did not explain how a back condition occurred as a result of work duties
over a single workday. Rather, he advised that appellant’s thoracic symptoms were the result of
repetitive standing and lifting over a period greater than one day or shift.6
Dr. Donahue treated appellant since June 2005 for preexisting upper back pain. On
February 17, 2007 appellant reported a one-week history of tenderness in her left upper back
which occurred after she leaned over to lift mail with her left hand. Although noting a history of
the February 2007 incident Dr. Donahue did not provide a rationalized opinion explaining how
the incident caused or contributed to upper back symptoms. Dr. Donahue’s report indicates that
appellant had a preexisting history of upper back pain for which she received treatment prior to
February 17, 2007. Her other reports did not address causal relationship.
In a July 31, 2007 report, Dr. Ransdell diagnosed left side upper to mid thoracic level
myofascial pain. She reported a three-month history of pain in the left thoracic shoulder region
which developed at work after lifting a mail tray. Dr. Rivera diagnosed thoracic/scapular pain.
However, neither physician provided a rationalized opinion explaining how the February 10,
2007 lifting incident caused or contributed to the diagnosed conditions.
In reports dated December 27, 2007 to February 27, 2008, Dr. Molis treated appellant for
upper back pain which she reported developed in February 2007 after a lifting incident at work.
Dr. Molis diagnosed left rotator cuff strain and left scapular dyskinesia. He opined that
appellant’s condition was employment related based on her presentation and history. Dr. Molis
addressed the prior treatment that appellant had received, noting that her rotator cuff strain had
not been properly diagnosed. Based on his reports the Office accepted this condition as related
to the February 10, 2007 lifting incident. On October 16, 2008 Dr. Molis noted that appellant
had pain with motion of her left scapula, diagnosed as scapular dyskinesia. He noted that the
shoulder blade would compensate for the weakened rotator cuff. Such pain mimicked back pain
to the upper back and shoulder blade region. He diagnosed appellant’s back pain as scapular
5

Section 8101(2) of the Act provides that chiropractors are considered physicians “only to the extent that their
reimbursable services are limited to treatment consisting of manual manipulation of the spine to correct a
subluxation as demonstrated by x-ray to exist and subject to regulation by the Secretary.” See 5 U.S.C. § 8101(2).
6

Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).

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dyskinesia and opined it was directly related to the rotator cuff issues. The Board finds that the
opinion of Dr. Molis constitutes the weight of medical opinion in this case. He identified the
pain appellant experienced following the accepted incident as related to her left shoulder
condition.
Appellant also submitted other medical records including diagnostic tests. However,
these records do not address whether the employment injury of February 10, 2007 was a cause of
an upper back condition. The Board finds that appellant has not submitted sufficient evidence to
establish that an upper back condition was caused or related to any activities at work on
February 10, 2007.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish an upper
back condition causally related to her February 10, 2007 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the December 12 and August 8, 2008 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: February 25, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Peekskill, NY, Employer
__________________________________________

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

Docket No. 18-0441
Issued: February 19, 2020

Case Submitted on the Record

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

JURISDICTION
On December 28, 2017 appellant, through counsel, filed a timely appeal from an
October 18, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits in this case.3

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 services 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.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that following the October 18, 2017 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to expand the acceptance of his
claim to include osteoarthritis of the right hip causally related to the accepted January 28, 2014
employment injury.
FACTUAL HISTORY
On January 31, 2014 appellant, then a 58-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that on January 28, 2014 he twisted and felt pain in his right
knee when casing mail while in the performance of duty. On April 4, 2014 OWCP accepted his
claim for exacerbation of localized primary osteoarthritis of the right lower leg. It authorized
arthroscopic surgery on October 2, 2014 and a total right knee replacement on January 20, 2016.
Appellant stopped work on January 31, 2014 and OWCP placed him on the periodic rolls
commencing May 8, 2015.
Appellant was treated by Dr. Scott L. Russinoff, a Board-certified orthopedist, from
February 4 to March 28, 2014, for a right knee injury sustained when he was twisting at work on
January 28, 2014.4 Dr. Russinoff diagnosed mild exacerbation of right knee arthritis. On April 29,
2014 appellant reported continued right knee pain and right hip pain and noted his knee would
buckle and therefore was unable to return to work. Dr. Russinoff noted that x-rays of both knees
and right hip demonstrated mild arthritis. He diagnosed right knee pain with secondary hip pain.
On July 17, 2014 Dr. Russinoff noted that appellant presented with right knee and hip pain in the
groin region. He diagnosed a lateral meniscus tear of the right knee and exacerbation of right hip
arthritis causally related to his accepted employment injury.
On May 23, 2014 appellant came under the treatment of Dr. Douglas J. Fauser, a Boardcertified orthopedist, for a right shoulder and right leg injury sustained when he “rolled his tractor.”
This treatment continued through July 22, 2014. Dr. Fauser diagnosed a rotator cuff tear of the
right shoulder and contusion of the right leg.
Appellant continued to be treated by Dr. Fauser on May 11, 2015 for increasing
symptomology referable to the right knee which affected his gait pattern. Appellant reported using
a cane outdoors and having a corticosteroid injection into the right hip. Dr. Fauser noted that
appellant had a degenerative right hip and an externally rotated gait pattern and noted findings on
examination of an effusion over the right knee, externally rotated gait pattern, and pain with
internal rotation of the hip. He diagnosed osteoarthritis of the right knee and hip and recommended
a total right knee replacement.5
In reports dated January 6 and 13, 2016, Dr. Fauser noted appellant’s right hip pain which
he concluded was compensatory in nature after his right knee injury. Appellant reported that over
the prior month or two he experienced increasing right-sided groin and hip pain which were more
symptomatic than his right knee. Evaluation of the right hip revealed restricted range of motion
4

A magnetic resonance imaging (MRI) scan of the right knee, dated May 5, 2014, revealed a tear of the posterior
horn of the lateral meniscus and osteoarthritis.
5

In an August 10, 2015 report, an OWCP district medical adviser (DMA) concurred with Dr. Fauser’s
recommended total right knee replacement.

2

and weakness of hip abduction. X-rays of the right hip revealed moderate-to-severe osteoarthritis
secondary to compensating for his right knee, and end-stage osteoarthritis of the patellofemoral
joints. Dr. Fauser again recommended a total right knee replacement as well as an intra-articular
corticosteroid injection into the ipsilateral hip. On January 20, 2016 he performed a
fluoroscopically guided therapeutic injection of the right hip. Dr. Fauser performed a right total
knee arthroplasty on January 26, 2016 and diagnosed end-stage patellofemoral arthrosis of the
right knee. Appellant experienced postoperative complications and developed a deep venous
thrombosis (DVT) of the right leg and arthrofibrotic total right knee replacement. On March 15,
2016 Dr. Fauser performed a manipulation of the right knee under anesthesia and diagnosed
arthrofibrosis of the right knee, status post total knee replacement.
In a report dated April 21, 2016, Dr. Fauser noted that appellant sustained a right knee
injury at work on January 28, 2014 and subsequently underwent arthroscopic surgery in
October 2014, viscosupplementation injections, physical therapy, a right total knee replacement,
and manipulation of the right knee under anesthesia. He advised that due to appellant’s workrelated injury, altered gait, stiffness, and weakness in the knee he had developed compensatory
right hip pain. Dr. Fauser noted that x-rays of the right hip and pelvis revealed osteoarthritis and
opined that this condition was aggravated by the original work-related right knee injury. He
indicated that due to the severe nature of his hip pain appellant underwent an injection on
January 20, 2016. In a progress notes dated April 25 and May 23, 2016, Dr. Fauser reported
appellant’s increasing complaints of right hip pain. He noted during physiotherapy for the knee
replacement he experienced increased groin pain into his right thigh and buttock. Dr. Fauser
opined that appellant’s hip condition should be included as part of his workers’ compensation
claim.
Appellant presented in follow up to Dr. Fauser on June 29, 2016 after finishing his
regimen of physical therapy for his right knee. He noted recovery from his right knee injury
had been hindered by his right hip osteoarthritis. Appellant indicated that he never had issues,
including stiffness, with his hip prior to his work-related injury. Dr. Fauser diagnosed status
post right total knee replacement and right hip osteoarthritis.
On July 1, 2016 OWCP referred appellant to Dr. Louis Nunez, a Board-certified
orthopedist, for a second opinion examination to determine whether appellant had residuals of
his work-related conditions, whether he sustained a right hip injury causally related to the
January 28, 2014 work injury, and whether he could return to work subject to restrictions.
In a July 21, 2016 report, Dr. Nunez noted findings on physical examination of limited
range of motion of the right hip of 100/130 degrees, limited range of motion for the right knee,
and a well-healed midline incision of the right knee with an effusion. He noted that appellant
had disabling residuals of the right knee including limited flexion. Dr. Nunez opined that he
required continued treatment for his right knee and advised that he had disability due to the
injury of January 28, 2014 as well as from the right hip condition which was not related to the
January 28, 2014 injury. He concluded that appellant’s disability was due to the significant
limitation in range of motion in the right knee, as well as the nonwork-related right hip condition.
Dr. Nunez noted that he had not reached maximum medical improvement and was not capable
of returning to his date-of-injury position. He recommended additional treatment of aspiration
of his knee joint and additional physical therapy. In a work capacity evaluation dated July 21,
2016, Dr. Nunez noted that appellant could return to work for four hours a day with restrictions.
3

On September 1, 2016 OWCP informed appellant that his claim was accepted for
exacerbation of the right lower leg osteoarthritis. It found, however, that the evidence then of
record was insufficient to establish that the acceptance of his claim should be expanded to include
the additional condition of osteoarthritis of the right hip. OWCP advised appellant of the type of
factual and medical evidence needed to establish his claim and provided a questionnaire for his
completion. It afforded him 30 days to respond.
On August 24, 2016 Dr. Fauser noted that appellant underwent an intra-articular
corticosteroid injection into the right hip which provided 60 percent relief in symptoms. Findings
on examination revealed restricted range of motion of the right hip with mild pain. Dr. Fauser
diagnosed right hip osteoarthritis.
In a statement dated September 26, 2016, appellant requested that the acceptance of his
claim be expanded to include his right hip condition claiming that Dr. Russinoff and Dr. Fauser
supported his claim that his hip exacerbation was caused by the accepted employment-related knee
injury.
By decision dated October 3, 2016, OWCP denied appellant’s request to expand the
acceptance of his claim to include the additional condition of osteoarthritis of the right hip finding
that the evidence of record failed to establish that the condition was causally related to the accepted
employment injury.
In an October 12, 2016 report, Dr. Fauser indicated that appellant’s right knee was
progressing, but his right hip hindered his ability to exercise and build strength. He diagnosed
osteoarthritis of the right hip with no prior history of hip pain. Dr. Fauser indicated that an altered
gait, and ambulating with an antalgic gait on the hip after his knee injury, had aggravated his hip
pain. He diagnosed status post right total knee replacement with right hip osteoarthritis.
On October 14, 2016 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review. By decision dated November 23, 2016, an OWCP
hearing representative vacated the October 3, 2016 decision and remanded the case for further
medical development. The hearing representative instructed OWCP to request a supplemental
report from Dr. Nunez that included rationale in support of his conclusion that appellant’s hip
condition was not causally related to his employment injury.
In an October 21, 2016 report, Dr. Fauser noted that appellant experienced only temporary
relief from intra-articular corticosteroid injections and opined that appellant’s right hip pain was
the result of compensating from his original work-related, twisting injury. A radiograph of the
right hip and pelvis dated January 13, 2016 revealed moderate-to-severe osteoarthritis of the left
hip. Dr. Fauser indicated that appellant had no prior history of hip problems despite having
underlying osteoarthritis. He opined that appellant’s hip pain was a direct result of compensating
from his right knee.
On November 30, 2016 Dr. Fauser noted that appellant experienced worsening right hip
pain. He noted that appellant’s hip significantly impacted his ability to continue to recover from
his right knee replacement as he had groin and thigh pain, and difficulty ascending and descending
stairs. Physical examination revealed limited internal and external rotation of the hip and a
nonantalgic gait. Dr. Fauser diagnosed right hip osteoarthritis.

4

On December 2, 2016 OWCP requested clarification from Dr. Nunez, specifically asking
him to explain why he disagreed with appellant’s treating physician who opined that the right hip
pain developed as a consequential injury caused by his altered gait and avoidance of right-sided
weight bearing.
In a report dated January 9, 2017, Dr. Fauser noted that appellant was one year post right
total knee replacement, but his right hip precluded significant advancement in function secondary
to well-localized groin and thigh pain and marked restriction of range of motion. He recommended
hip arthroplasty on the right side.
In response to OWCP’s inquiry, Dr. Nunez submitted a supplemental report dated
January 27, 2017 in which he indicated that Dr. Russinoff’s April 29, 2014 note reported x-rays of
both knees and right hip revealed arthritis present prior to the work-related injury. He indicated
that the bilateral hip arthritis was therefore preexisting. Dr. Nunez advised that despite putting
less weight on the right leg he experienced persistent pathology of the right knee because the right
total knee replacement may be loose. He indicated that the fact that appellant still has pathology
and complaints with the right knee had no bearing on his underlying osteoarthritis of the right hip
and therefore the additional condition was not related to the injury sustained in January 2014.
Dr. Nunez noted disagreement with appellant’s treating physician who opined that the right hip
had developed as a consequential injury caused by his altered gait and avoidance of right-sided
weight bearing. He opined that the right leg would not be considered consequential to the right
knee, but rather the normal progression of the preexisting osteoarthritis.
In a work capacity evaluation (Form OWCP-5c) dated February 27, 2017, Dr. Fauser noted
that appellant could return to work two hours a day with sedentary duties. In a report dated
February 27, 2017, he saw appellant in follow up for his right hip osteoarthritis and noted that he
reported using a cane secondary to right hip pain.
By decision dated March 8, 2017, OWCP denied appellant’s request to expand the
acceptance of his claim to include osteoarthritis of the right hip finding that the evidence of record
failed to establish that this additional condition was causally related to the accepted employment
injury.
On March 13, 2017 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review. The hearing was held on August 30, 2017.
On April 11, 2017 Dr. Fauser treated appellant in follow-up for right hip pain, stiffness,
and pain with ambulation. He noted in a May 24, 2017 report that appellant presented with marked
symptomology of groin pain, thigh pain, rest and startup pain, and buckling. Dr. Fauser
recommended a total hip replacement.
On July 5, 2017 Dr. Joel S. Buchalter, a Board-certified orthopedic surgeon, noted that
appellant was recommended for a right total hip replacement. He noted that appellant was
clinically static in terms of his pain on a daily basis and was unable to participate in physical
therapy because it was too painful.
In a report dated August 17, 2017, Dr. Andrew Peretz, a Board-certified orthopedic
surgeon, noted that appellant was static, exhibited start up stiffness and pain, and was unable to
ambulate for prolonged periods of time due to groin, anterior thigh, and laterally based hip pain.
5

By decision dated October 18, 2017, an OWCP hearing representative affirmed the
decision dated March 8, 2017.
LEGAL PRECEDENT
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.7 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and an accepted injury must be based on a complete factual and
medical background.8 Additionally, the physician’s opinion must be expressed in terms of a
reasonable degree of medical certainty and must be supported by medical rationale which, explains
the nature of the relationship between the diagnosed condition and the accepted employment
injury.9
When an injury arises in the course of employment, every natural consequence that flows
from that injury likewise arises out of the employment, unless it is the result of an independent
intervening cause attributable to a claimant’s own intentional misconduct.10 Thus, a subsequent
injury, be it an aggravation of the original injury or a new and distinct injury, is compensable if it
is the direct and natural result of a compensable primary injury.11
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.12 The implementing regulations
state that, if a conflict exists between the medical opinion of the employee’s physician and the
medical opinion of either a second opinion physician or a DMA, OWCP shall appoint a third
physician to make an examination.13 When there exist opposing medical reports of virtually equal
weight and rationale and the case is referred to an impartial medical specialist for the purpose of

6

M.B., Docket No. 19-0485 (issued August 22, 2019); R.J., Docket No. 17-1365 (issued May 8, 2019); Jaja K.
Asaramo, 55 ECAB 200 (2004).
7

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

8

M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

9

Id.

10

See S.M., Docket No. 19-0397 (issued August 7, 2019); Mary Poller, 55 ECAB 483, 487 (2004); 1 Arthur Larson
& Lex K. Larson, Larson’s Workers’ Compensation Law 10-1 (2006).
11
A.T., Docket No. 18-1717 (issued May 10, 2019); Susanne W. Underwood (Randall L. Underwood), 53 ECAB
139 (2001).
12

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

13

20 C.F.R. § 10.321.

6

resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.14
ANALYSIS
The Board finds that the case is not in posture for a decision.
In a July 21, 2016 report, Dr. Nunez indicated that appellant had disability due to the
employment injury of January 28, 2014 as well as from the right hip condition, but advised that
the right hip condition was not related to the accepted January 28, 2014 employment injury. In a
supplemental report dated January 27, 2017, he indicated that the bilateral hip arthritis was
preexisting, per diagnostic studies. Dr. Nunez opined that the fact that appellant still had pathology
and complaints with the right knee has no bearing on his underlying osteoarthritis of the right hip
and therefore the hip condition was not related as a consequential condition to his accepted right
knee condition. He noted his disagreement with appellant’s treating physician whose opinion was
that the right hip condition had developed as a consequential injury caused by his altered gait and
avoidance of right-sided weight bearing. Dr. Nunez opined that the right leg would not be
considered consequential to the right knee, but rather the normal progression of the preexisting
osteoarthritis.
In a report dated April 21, 2016, Dr. Fauser noted that appellant had sustained a January 28,
2014 employment injury and opined that as a consequence of appellant’s work-related knee injury,
altered gait, stiffness, and weakness, he had developed compensatory right hip pain. He noted that
x-rays of the right hip and pelvis revealed osteoarthritis and he opined that this condition had been
aggravated by the original right knee injury. On June 29, 2016 Dr. Fauser noted that appellant’s
recovery from his right knee injury was hindered by his right hip osteoarthritis. He diagnosed
status post right total knee replacement and right hip osteoarthritis. Similarly, on October 21 and
November 30, 2016, Dr. Fauser opined that appellant’s right hip condition had developed as a
result of compensating from his original work-related twisting injury. He indicated that appellant
had no prior history of hip problems despite having an underlying osteoarthritis of the hip.
Dr. Fauser opined that appellant’s hip pain was therefore a direct result of compensating on his
right knee.
The Board finds that a conflict in medical opinion has been created between appellant’s
attending physician and that of the second opinion physician regarding whether appellant’s
osteoarthritis of the right hip was caused or aggravated by the accepted right knee condition
following his January 28, 2014 employment injury.15 Section 8123 of FECA provides that, if there
is a disagreement between the physician making the examination for the United States and the
employee’s physician, OWCP shall appoint a third physician who shall make an examination.16
As there remains an unresolved conflict in medical opinion regarding whether appellant’s
diagnosed right hip condition is causally related to, or a consequence of, the accepted January 28,
14

K.S., Docket No. 19-0082 (issued July 29, 2019); V.G., 59 ECAB 635 (2008).

15

See S.M., Docket No. 19-0397 (issued August 7, 2019).

16

Supra note 12.

7

2014 employment injury the case shall be remanded to OWCP for creation of an updated statement
of accepted facts and referral to an appropriate specialist to obtain an impartial medical opinion
regarding whether the acceptance of appellant’s claim should be expanded to include his diagnosed
right hip condition. Following this and any other development deemed necessary, OWCP shall
issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the October 18, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: February 19, 2020
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Woodville, WI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-1502
Issued: February 4, 2015

Case Submitted on the Record

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

JURISDICTION
On June 18, 2014 appellant, through counsel, filed a timely appeal from an April 17,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish an injury in the
performance of duty on October 4, 2011.

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted new evidence to OWCP after issuance of the April 17, 2014 decision. However, the Board
lacks jurisdiction to review evidence for the first time on appeal. See 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
On August 17, 2012 appellant, then a 53-year-old part-time flexible sales and services
distribution associate, filed a traumatic injury claim alleging that on October 4, 2011 she
developed a left shoulder injury in the performance of duty when she was handling a bent shelf.
She did not stop work at that time, but later stopped work due to surgery.
By letter dated August 23, 2012, OWCP notified appellant that the evidence was
insufficient to establish her claim because no medical evidence had been received and allowed
her 30 days to supplement the record.
In an August 27, 2012 statement, appellant noted that her claim was filed after the date of
injury because her supervisor was hesitant to file the claim. She also stated that she waited until
January 4, 2012 to receive medical treatment because the employing establishment was
shorthanded because of the holiday season. A January 20, 2012 accident report email noted that
appellant had reported a possible torn left rotator cuff when she was injured while at work on
October 4, 2011.
By decision dated September 26, 2012, OWCP accepted that the incident occurred, but
denied appellant’s claim because the medical evidence failed to state a diagnosed condition.
OWCP received a January 4, 2012 report from Dr. Marvin Klingler, a family medicine
practitioner. Dr. Klinger noted that appellant complained of left shoulder pain. He diagnosed
left shoulder strain and stated that the apparent precipitating event was a fall. In a February 1,
2012 report, Dr. Lance Weagant, a Board-certified family practitioner and associate of
Dr. Klingler, noted that appellant was injured on October 4, 2011 when she attempted to bring a
cart down from a shelf. He advised that appellant reinjured her shoulder in mid-December when
she had a fall at work. Upon physical examination, Dr. Weagant advised that there was no
swelling or significant impingement. He noted that appellant had full flexion, abduction and
external rotation with mildly limited internal rotation. Dr. Weagan further noted that appellant
had some tenderness over the acromion and biceptal groove. Dr. Weagant advised that left
shoulder x-rays had been ordered. In a February 1, 2012 diagnostic report, Dr. Mareve Kayfes,
Board-certified in diagnostic radiology, advised that left shoulder x-rays revealed no acute
abnormalities, no soft tissue calcifications, and maintained joint spaces.
On March 8, 2012 Dr. Weagant noted that appellant’s pain began six months earlier. He
advised that appellant related that the pain was intermittent, sharp, and stabbing. Appellant also
related that her pain increased with lifting and was relieved with rest. Dr. Weagan stated that the
apparent precipitating event was lifting and that it was a workers’ compensation injury. In an
accompanying March 8, 2012 disability status report, he advised that appellant could work
without restrictions.
In a June 11, 2012 report, Dr. Thomas Comfort, a Board-certified orthopedic surgeon to
whom appellant was referred by Dr. Weagant, stated that appellant had a work-related injury on
October 4, 2011 when holding a shelf that suddenly gave way. He advised that x-rays showed an
intact rotator cuff and acromioclavicular (AC) joint arthrosis. On physical examination,
Dr. Comfort found that appellant had tenderness at the AC joint with positive compression and

2

mildly positive abduction testing. He stated that appellant had difficulty sleeping on her left side
and that her pain was aggravated by lifting, pushing, and reaching. In an August 29, 2012 report,
Dr. Weagant advised that appellant still had shoulder pain and that her symptoms were
unchanged. Dr. Weagant also referred appellant to an orthopedist for her shoulder pain.
In a September 4, 2012 report, Dr. Weagant documented that appellant had a left
shoulder injury at work on October 4, 2011. He noted first treating her on February 1, 2012 and
that the injury occurred while she was attempting to lift a cart off of a shelf from overhead.
Dr. Weagan noted the dates on which he treated appellant and advised that findings included left
shoulder pain, limited range of motion, and pain with palpation of the shoulder. Left shoulder
x-rays and magnetic resonance imaging (MRI) scans showed left acromioclavicular joint
arthrosis and mild supraspinatus tendinopathy with partial irregular tearing. Dr. Weagant opined
that appellant’s job as a postal worker, especially having to repeatedly lift material above
shoulder level, caused her injury with ongoing pain and disability.
In July 13 and September 26, 2012 reports, Dr. Jason Dieterle, an orthopedic surgeon and
associate of Dr. Comfort, diagnosed left shoulder impingement syndrome with partial thickness
tear of the rotator cuff and AC arthrosis. He noted that appellant injured herself when she pulled
a cart at work. Appellant also submitted physical therapy reports and reports from medical
assistants.
On October 19, 2012 appellant requested an oral hearing which was held on
February 12, 2013. At the hearing, appellant reiterated that her claim was not immediately filed
after the injury because her supervisor did not want to file the claim. She stated that she delayed
seeking medical treatment because she did not want to jeopardize her job.
By letter dated March 18, 2013, the employing establishment controverted the claim.
The letter highlighted that appellant had not sought medical treatment immediately and that, in
some of the medical reports, the physician stated that appellant’s condition was caused by a fall.
This was inconsistent with appellant’s reports. The employing establishment also argued that
appellant had preexisting conditions including osteoarthritis and supraspinatus tendinitis.
In a March 12, 2013 addendum report, Dr. Dieterle clarified the history of injury from
jamming her shoulder while pulling on a mail cart to holding on to an upper shelf on a cart that
gave way.
By decision dated May 1, 2013, an OWCP hearing representative affirmed the denial of
appellant’s claim because, although the evidence did not establish a diagnosed condition, the
medical evidence was insufficient to establish that the diagnosed condition was causally related
to the accepted work incident.
On September 24, 2013 appellant’s attorney requested reconsideration and submitted
additional evidence.
In an August 26, 2013 report, Dr. Michael Lockheart, Board-certified in occupational
medicine, diagnosed left shoulder pain. He noted that appellant jammed her left shoulder when
she attempted to pull a shelf from a cart on October 4, 2011. Dr. Lockheart noted that appellant
related to him that her physician deemed the injury work related.
3

In an October 31, 2012 report, Dr. Dieterle advised that appellant was interested in
surgery if other treatment did not resolve her condition. In a December 18, 2012 report, he
advised that appellant would proceed with surgery. In a January 2, 2013 surgery report,
Dr. Dieterle advised that he performed a left shoulder arthroscopy with rotator cuff repair,
arthroscopic subacromial decompression, acromioplasty, and arthroscopic distal clavicle
resection. On January 14, 2013 he advised that appellant was two weeks’ postsurgery and had
some occasional mild pain. In an accompanying disability status report, Dr. Dieterle advised that
appellant was able to work with maximum restrictions.
On February 5, 2013 Dr. Dieterle advised that appellant may have reinjured her rotator
cuff while exercising with a handmade rope and pulley. Appellant stated that she felt a pop and
immediate pain when the rope dropped causing her arm to drop. Dr. Dieterle ordered an MRI,
which revealed no evidence of recurrent full thickness tearing of the supraspinatus tendon.3 In a
February 11, 2013 report, Dr. Dieterle noted that the MRI scan findings and recommended
continued physical therapy. On March 13, 2013 he advised that appellant was improving, but
still had limited motion. Dr. Dieterle continued submitting postsurgical status reports and work
restrictions.
In an August 8, 2013 report, Dr. Samuel Inkumsah, Board-certified in family medicine,
stated that appellant injured herself at work as she was unloading mail from an upright steel cart.
He stated that she pushed on the side of the cart with her right hand and pulled down on the shelf
with her left when the shelf came loose jamming her in the shoulder. Dr. Inkumsah diagnosed
partial thickness tear of the rotator cuff and associated bone spurring. He opined that appellant’s
rotator cuff tear and bone spurring was caused by the force of the shelf jamming into her
shoulder. Dr. Inkumsah added that two months later appellant fell on uneven pavement while at
work which he opined caused part of appellant’s condition.
On September 9, 2013 Dr. Comfort stated that appellant was at work using a mail cart
with an upper and lower shelf when her left arm gave way jamming her shoulder as she was
holding the upper shelf. He advised that x-rays revealed AC arthrosis and that an April 5, 2012
MRI scan revealed a partial thickness tearing of the supraspinatus. Dr. Comfort opined that
appellant’s injury was work related. He noted appellant’s January 2, 2013 surgery and advised
that, as of June 25, 2013, she had nearly full strength and full active range of motion.
In a September 10, 2013 report, Dr. Lockheart diagnosed shoulder pain, low back pain,
foot pain, fibromyalgia, and neck pain. He noted that appellant had shoulder surgery in
January 2013 and indicated that this was being claimed as a workers’ compensation injury.
By decision dated April 17, 2014, OWCP denied modification of its May 1, 2013
decision.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim by the weight of reliable, probative, and substantial
3

The MRI scan was taken on February 8, 2013.

4

evidence,4 including that he or she is an “employee” within the meaning of FECA and that he or
she filed his or her claim within the applicable time limitation.5 The employee must also
establish that she sustained an injury in the performance of duty as alleged and that her disability
for work, if any, was causally related to the employment injury.6
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 she 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.7
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.8
ANALYSIS
On October 4, 2011 appellant claimed that she injured her left shoulder when she tried to
remove a damaged shelf from a cart. The evidence supports that the claimed incident with the
shelf occurred at work. Therefore, the Board finds that the first component of fact of injury is
established. However, the medical evidence is insufficient to establish that the employment
incident on October 4, 2011 caused appellant’s left shoulder injury.
In his August 8, 2013 report, Dr. Inkumsah diagnosed partial thickness tear of the rotator
cuff and associated bone spurring. He opined that this was caused by the force of the shelf
jamming into her shoulder. He added that two months later appellant fell on uneven pavement
while at work which he opined caused part of appellant’s condition. The Board finds that
Dr. Inkumsah’s report is not sufficiently rationalized to establish the claim. Although he offered
an opinion on causal relationship, he failed to explain the reasons for his opinion. Dr. Inkumsah
did not address the process by which a cart jamming appellant’s shoulder would cause a rotator
cuff tear.
In his September 4, 2012 report, Dr. Weagant advised that appellant reported her injury
while attempting to lift a cart off of an overhead shelf. He noted that diagnostic testing showed
left acromioclavicular joint arthrosis and mild supraspinatus tendinopathy with partial irregular
4

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

5

R.C., 59 ECAB 427 (2008).

6

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

7

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

8

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

5

tearing. Dr. Weagant opined that appellant’s job as a postal worker, especially having to
repeatedly lift material above shoulder level, caused her injury with ongoing pain and disability.
However, this statement focused on appellant’s general position as a postal worker without
specifically explaining how the October 4, 2011 work incident caused or contributed to
appellant’s diagnosed conditions. On February 1, 2012 Dr. Weagant stated that appellant injured
herself on October 4, 2011 when she attempted to bring down a cart from a shelf. In his
March 8, 2012 report, he noted that appellant’s pain began six months earlier and that the
“apparent” precipitating event was lifting and that it was a workers’ compensation injury. These
reports are also insufficient to discharge appellant’s burden of proof because they do not
sufficiently explain how the work event caused or contributed to an injury. Furthermore, the use
of the term “apparent” suggests equivocal support for causal relationship.9 Other reports from
Dr. Weagant do not specifically address causal relationship and are insufficient to establish the
claim.
Appellant also provided reports from Dr. Comfort. In the June 11, 2012 report,
Dr. Comfort stated that appellant had a work-related injury on October 4, 2011 when holding a
shelf that suddenly gave way. On September 9, 2013 he stated that appellant was at work using a
mail cart with an upper and lower shelf when her left arm gave way jamming her shoulder as she
was holding the upper shelf. Dr. Comfort opined that appellant’s injury was work related.
While these reports provide some support for causal relationship, they are insufficient to
discharge appellant’s burden of proof because Dr. Comfort does not provide medical rationale
explaining the basis of his conclusion on causal relationship.
In his August 26, 2013 report, Dr. Lockheart diagnosed left shoulder pain. In his
September 10, 2013 report, he indicated that the injury was being claimed as a workers’
compensation injury. These reports do not discharge appellant’s burden of proof. Dr. Lockheart
is not relating his own opinion on causal relationship but instead is repeating what appellant told
him.10 In any event, he also did not provide any medical reasoning explaining how the
October 4, 2011 work incident caused or contributed to a diagnosed medical condition.
Appellant submitted multiple reports from Dr. Dieterle. In July 13 and September 26,
2012 reports, Dr. Dieterle offered diagnoses that included left shoulder impingement syndrome
with partial thickness of the rotator cuff and noted that appellant injured herself when she pulled
a cart at work. In a March 12, 2013 report, he corrected his account to reflect that appellant
injured her shoulder as she was holding on to an upper shelf on a cart that gave way and jammed
her shoulder. While these reports mention the employment incident, they too appear to be
simply repeating what appellant told him regarding the cause of her condition. In none of these
reports did Dr. Dieterle explain how the October 4, 2011 work incident caused or contributed to
a diagnosed condition.11 Thus, these reports are insufficient to establish the claim. Other reports
9

See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962) (where the Board held that medical opinions which are
speculative or equivocal in character have little probative value).
10

K.C., Docket No. 10-425 (issued August 20, 2010).

11

See also C.M., Docket No. 14-88 (issued April 18, 2014) (a physician’s opinion regarding causal relationship
that appears to be primarily based on appellant’s own representations rather than on objective medical findings is of
limited probative value).

6

from Dr. Dieterle are also insufficient to establish the claim as they did not specifically attribute
appellant’s condition to the accepted work incident.
Dr. Klingler’s report and reports of diagnostic testing are insufficient to discharge
appellant’s burden of proof because they do not offer a physician’s opinion on causal
relationship between a diagnosed condition and the October 4, 2011 work incident.12
Consequently, appellant has failed to establish, with rationalized medical evidence that
the October 4, 2011 work incident caused or contributed to her diagnosed medical condition.
The need for medical reasoning or rationale is particularly important here where appellant did
not file her claim for over 10 months and she did not seek medical treatment for over two months
after the claimed injury.13 Because appellant has not provided such medical opinion evidence in
this case, she has failed to meet her burden of proof.
Appellant may submit new evidence or argument as part of a formal written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that she sustained a traumatic injury in
the performance of duty on October 4, 2011.

12

Jaja K. Asaramo, 55 ECAB 200 (2004) (medical evidence that does not offer any opinion regarding the cause
of an employee’s condition is of diminished probative value on the issue of causal relationship).
13

Dr. Weagant’s February 1, 2012 and Dr. Inkumsah’s August 8, 2013 reports indicate that appellant had a fall at
work in December 2011 that contributed to her condition. This claim does not pertain to any fall that may have
occurred at work and the record does not indicate that a claim was filed regarding any such fall.

7

ORDER
IT IS HEREBY ORDERED THAT the April 17, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 4, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL SEA
SYSTEMS COMMAND-SHIPYARDS,
NORFOLK NAVAL SHIPYARD,
Portsmouth, VA, Employer
__________________________________________

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

Docket No. 13-1268
Issued: September 5, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 29, 2013 appellant filed a timely appeal from a November 8, 2012 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for a
review of the written record. The most recent merit decision was issued on July 31, 2012, more
than 180 days prior to the filing of the instant appeal. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review this decision. As the last merit decision was issued on July 31, 2012, the Board does not
have jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for review of the written
record as untimely.
On appeal, appellant notes that he received six injections in his right knee from
January 22 to March 7, 2013.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 29, 2006 appellant, then a 60-year-old marine machine mechanic, filed a
traumatic injury claim alleging that on August 28, 2006, while taking out the trash from the tool
trailer, he stepped down on a wooden block, slipped, twisted his knee and fell, thereby injuring
his right knee. On September 18, 2006 OWCP accepted his claim for tear of the medial
meniscus of the right knee.
On July 17, 2009 OWCP issued a schedule award for a five percent impairment of the
right lower extremity. On December 2, 2011 appellant filed a claim for an additional schedule
award. On July 31, 2012 OWCP issued a schedule award for a one percent impairment of the
left lower extremity.
By letter dated September 27, 2012, appellant’s congressman forwarded appellant’s
request for review of the written record by an OWCP hearing representative, which was dated
September 25, 2012.
By decision dated November 8, 2012, OWCP denied appellant’s request for review of the
written record as it was not filed within the 30-day time limitation for requesting an oral hearing
or review of the written record. It also reviewed his request under its discretionary authority, but
denied the review of the written record as it determined that the case could be equally well
addressed by requesting reconsideration and submitting evidence not previously considered
which established that the percentage of permanent impairment was greater than the amount
awarded.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides that a claimant for compensation not satisfied with
a decision of the Secretary is entitled, on request made within 30 days after the date of the
issuance of the decision, to a hearing on his or her claim before a representative of the
Secretary.2 Sections 10.617 and 10.618 of the federal regulations implementing this section of
FECA provide that a claimant shall be afforded a choice of an oral hearing or a review of the
written record by a representative of the Secretary.3 A claimant is entitled to a hearing or review
of the written record as a matter of right only if the request is filed within the requisite 30 days as
determined by postmark or other carriers’ date marking and before the claimant has requested
reconsideration.4 Although there is no right to a review of the written record or an oral hearing if
not requested within the 30-day time period, OWCP may within its discretionary powers grant or
deny a hearing when the request is untimely or made after reconsideration under section
8128(a).5

2

5 U.S.C. § 8124(b)(1).

3

20 C.F.R. §§ 10.621, 10.617.

4

Eddie Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 ECAB 155 (1999).

5

See M.W., Docket No. 12-1267 (issued November 2, 2012); Federal (FECA) Procedure Manual, Part 2 -Claims, Hearings and Review of the Written Record, Chapter 2.1601.2(a) (October 2011).

2

ANALYSIS
By decision dated July 31, 2012, OWCP issued a schedule award. Appellant had 30calendar days from that decision, or until August 30, 2012, to request a review of the written
record. Because his request was dated September 25, 2012, appellant did not timely request a
review of the written record. Accordingly, he was not entitled to a review of the written record
as a matter of right under section 8124(b)(1) of FECA. In its decision denying appellant’s
request, OWCP further exercised its discretion and denied his request on the grounds that he
could equally well address the relevant issue in his case by requesting reconsideration. Because
reconsideration exists as an alternative appeal right to address the issue raised by OWCP’s
July 31, 2012 decision, the Board finds that OWCP did not abuse its discretion in denying
appellant’s untimely request for a review of the written record.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for review of the written
record.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 8, 2012 is affirmed.
Issued: September 5, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

3


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

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1986
Issued: April 22, 2010

Case Submitted on the Record

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

JURISDICTION
On July 31, 2009 appellant timely appealed the April 17, 2009 merit decision of the
Office of Workers’ Compensation Programs, which affirmed an April 7, 2008 schedule award.
Pursuant to 20 C.F.R. §§ 501.2 and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has greater than 10 percent impairment of both the left and
right upper extremity. On appeal, appellant asserts that the Office failed to follow its procedures
to select an independent medical examiner.
FACTUAL HISTORY
Appellant, a 46-year-old mail handler, has an accepted claim for bilateral carpal tunnel
syndrome and right elbow tendinitis and epicondylitis, which arose on or about
January 29, 2003. On November 17, 2005 she underwent a right carpal tunnel release, which the
Office approved.1 Following surgery, appellant received appropriate wage-loss compensation.
1

Appellant’s surgeon was Dr. Alexander M. Marcus, a Board-certified orthopedic surgeon, with a subspecialty in
hand surgery.

She returned to work on January 26, 2006 and ultimately resumed her regular duties as a mail
handler.
In February 2007 appellant filed a claim for a schedule award. She submitted a
November 6, 2006 impairment rating from Dr. David Weiss, a Board-certified orthopedist, who
diagnosed cumulative and repetitive trauma disorder, bilateral carpal tunnel syndrome and
chronic lateral epicondylitis of the right elbow. Dr. Weiss found 60 percent impairment of the
right upper extremity and 30 percent impairment of the left upper extremity. His impairment
rating for the right upper extremity included motor strength deficits involving the biceps (6
percent) and triceps (10 percent). Additionally, Dr. Weiss found impairment due to “Grade 4”
sensory deficit involving the median nerve (31 percent) and impairment due to right lateral pinch
deficit (30 percent). Regarding the left upper extremity, he found impairment for left thumb
abduction (9 percent) and lateral pinch deficit (20 percent). Dr. Weiss also found a “Grade 4”
sensory deficit involving the left median nerve (10 percent). According to him, appellant
reached maximum medical improvement (MMI) on November 6, 2006.
On March 3, 2007 Dr. Morley Slutsky, Board-certified in occupational medicine, the
Office’s district medical adviser (DMA), reviewed the case record, including Dr. Weiss’
November 6, 2006 impairment rating. He found 13 percent bilateral upper extremity impairment
due to Grade 4 sensory (10 percent) and motor (3 percent) deficits involving the median nerve.
Dr. Slutsky explained that appellant’s claim had not been accepted for a triceps or biceps
condition, and therefore, any impairment attributed to those conditions was unrelated to the
current claim. He also indicated that, when determining impairment due to carpal tunnel
syndrome, lateral pinch strength should not be used to rate median nerve motor deficit.
The Office declared a conflict in medical opinion based on the disagreement between
Dr. Weiss and the DMA regarding the extent of appellant’s bilateral upper extremity permanent
impairment. It selected Dr. Edward B. Krisiloff, a Board-certified orthopedic surgeon, to
conduct an impartial medical evaluation. Dr. Krisiloff examined appellant on November 9,
2007, and based on his evaluation, he found 10 percent impairment of both upper extremities due
to Grade 4 sensory deficits involving the left and right median nerve. His examination did not
reveal evidence of motor deficit in either extremity. Dr. Krisiloff also noted that there was no
restriction as far as range of motion. He explained that the difference between his rating (10
percent) and Dr. Slutsky’s (13 percent) was due to the absence of evidence of motor deficit.
Dr. Krisiloff also expressed disagreement with Dr. Weiss’ inclusion of impairment due to right
biceps and triceps weakness, as they were not accepted conditions. Lastly, he stated that pinch
strength was not a reliable way to determine median nerve impairment in the hand.
Dr. Krisiloff’s physical examination revealed no thenar atrophy and appellant had normal
opposition of her thumb, bilaterally.
On November 17, 2007 Dr. Arnold T. Berman, a Board-certified orthopedic surgeon and
DMA, reviewed Dr. Krisiloff’s report and concurred with the impartial medical examiner’s 10
percent bilateral upper extremity impairment rating.
On April 7, 2008 the Office granted a schedule award for 10 percent impairment of the
left and right upper extremities. The award covered a period of 62.4 weeks beginning
April 7, 2006. The Branch of Hearings and Review affirmed the schedule award by decision
dated April 17, 2009.
2

LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.2 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice under the law, good administrative practice requires the use of uniform
standards applicable to all claimants. The implementing regulations have adopted the American
Medical Association, Guides to the Evaluation of Permanent Impairment as the appropriate
standard for evaluating schedule losses.3 Effective February 1, 2001, schedule awards are
determined in accordance with the A.M.A., Guides (5th ed. 2001).4 While the fifth edition of the
A.M.A., Guides was in effect when the Office issued the April 7, 2008 schedule award, the
Office has since adopted the sixth edition of the A.M.A., Guides (6th ed. 2008) for all schedule
award determinations issued on or after May 1, 2009.5
The Act provides that, if there is disagreement between the physician making the
examination for the Office and the employee’s physician, the Office shall appoint a third
physician who shall make an examination.6 A physician selected by the Office to serve as an
impartial medical examiner should be free to exercise his judgment independently.7 The Office
developed procedures for selecting impartial medical examiners that were designed to provide
safeguards against any possible appearance that the selected physician’s opinion is biased.8 The
procedures contemplate that an impartial medical examiner will be selected from Board-certified
specialists in the appropriate geographical area on a strict rotating basis in order to negate any
appearance of preferential treatment between a particular physician and the Office.9
The Federal (FECA) Procedure Manual provides that the selection of referee physicians
(impartial medical examiners) is made through a “strict rotational system” using appropriate
medical directories.10 According to the procedure manual, the Physicians’ Directory System
(PDS) should be used for selecting impartial medical examiners wherever possible.11 The PDS
2

For a total loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1) (2006).
3

20 C.F.R. § 10.404 (2009).

4

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

5

Id. at Chapter 3.700, Example 1 (January 2010).

5 U.S.C.

6

5 U.S.C. § 8123(a); Shirley L. Steib, 46 ECAB 309, 317 (1994). Where the Office has referred appellant to an
impartial medical examiner to resolve a conflict in the medical evidence, the opinion of such a specialist, if
sufficiently well rationalized and based upon a proper factual background, must be given special weight. Gary R.
Sieber, 46 ECAB 215, 225 (1994).
7

T.P., 58 ECAB 524, 526-27 (2007).

8

Id.

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4b (May 2003).

10

Id.

11

Id.

3

is a set of stand-alone software programs designed to support the scheduling of second opinion
and referee examinations.12 The PDS database of physicians is based in large part on the
Directory of Medical Specialists compiled by the American Board of Medical Specialties. The
Directory contains the names of physicians who are Board-certified in certain specialties as
recognized by the American Medical Association. The PDS database also includes Boardcertified osteopathic physicians recognized by the American Osteopathic Association.13
ANALYSIS
Appellant’s counsel argued, inter alia, that the Office failed to abide by its own
procedures in selecting Dr. Krisiloff as the impartial medical examiner.14 With respect to the
selection of an impartial medical examiner, the procedure manual provides that the services of all
available and qualified Board-certified specialists will be used as far as possible to eliminate any
inference of bias or partiality.15 This is accomplished by selecting specialists in “alphabetical
order” as listed in the roster chosen under the specialty and/or subspecialty heading in the
appropriate geographic area, and repeating the process when the list is exhausted.16 In this
instance, Dr. Krisiloff’s selection appears not to have been based on a “strict rotational system”
as mandated by the procedure manual.
The Office selected Dr. Krisiloff after bypassing four other orthopedic surgeons whose
surnames fell within the N to S range of the alphabet. The last physician bypassed prior to
Dr. Krisiloff’s selection as impartial medical examiner was his associate, Dr. Stephen
Schneider.17 When a physician is bypassed the Office is required to provide a reason.18 The
Office’s reported reason for bypassing Dr. Schneider was because he did not perform impartial
medical evaluations. It was further noted that “Dr. Krisiloff does the [impartial medical
examinations].”
Having bypassed Dr. Schneider, the Office should have proceeded
alphabetically down the list of qualified Board-certified specialists. However, there is no
indication that this occurred. Instead, the Office selected Dr. Krisiloff as the impartial medical
examiner.
While there is no evidence of bias on the part of Dr. Krisiloff, the Office’s failure to
adhere to a “strict rotational system” denies his opinion the appearance of unbiased and impartial
fact-finding that the PDS was purposely designed to instill. Because it does not appear that
Dr. Krisiloff was not properly selected as an impartial medical examiner, his November 9, 2007
impairment rating is not entitled to determinative weight. Consequently, there remains an
12

Id. at Chapter 3.500.7 (May 2003).

13

Id.

14

Contrary to counsel’s argument, the Office properly found there was a conflict of medical opinion between
appellant’s physician, Dr. Weiss, and the DMA, Dr. Slutsky. As discussed infra, the conflict remains unresolved
based on Dr. Krisiloff’s November 9, 2007 impairment rating.
15

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4b(1) (May 2003).

16

Id.

17

The letterhead on Dr. Krisiloff’s November 9, 2007 report includes his name as well as Dr. Schneider’s.

18

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.7d(4) (May 2003).

4

unresolved conflict in medical opinion regarding the extent of appellant’s bilateral upper
extremity impairment.
On remand, the Office is instructed to refer appellant to an impartial medical examiner to
determine the extent of any employment-related permanent impairment in accordance with the
A.M.A., Guides (6th ed. 2008). After such further medical development, the Office shall issue a
de novo decision regarding appellant’s entitlement to a schedule award.
CONCLUSION
The case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 17, 2009 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision.
Issued: April 22, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
DEPARTMENT OF THE NAVY, MILITARY
SEALIFT COMMAND, Virginia Beach, VA,
Employer
__________________________________________

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

Docket No. 07-359
Issued April 23, 2007

Case Submitted on the Record

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

JURISDICTION
On November 21, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated August 17, 2006, which denied his claim for a
traumatic injury. He also timely appealed the Office’s October 17, 2006 nonmerit decision
denying his request for an oral hearing. Pursuant to C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of appellant’s claim.1
ISSUES
The issues are: (1) whether the Office properly denied appellant’s request for a hearing
as untimely filed and; (2) whether appellant established that he sustained a traumatic injury in the
performance of his federal employment.

1

The record includes evidence received after the Office issued the October 17, 2006 decision. The Board cannot
consider new evidence for the first time on appeal. 20 C.F.R. § 501.2(c) (2004).

FACTUAL HISTORY
On March 24, 2005 appellant, then a 51-year-old civilian mariner, filed a traumatic injury
claim alleging that on December 24, 2004 he sustained a right shoulder injury and rotator cuff
tear when he was pushed and knocked into a group of shipmates by another shipmate.
In a June 30, 2005 letter, the Office requested additional factual information from
appellant. Appellant did not respond.
By an August 10, 2005 decision, the Office denied appellant’s claim on the grounds that
the evidence was insufficient to establish that the injury occurred in the performance of duty.
The decision was sent to an address not of record.2
On August 17, 2006 appellant informed the Office that he did not receive the decision as
it was sent to an incorrect address. The Office reissued the decision on August 17, 2006. On
September 18, 2006 appellant submitted a request for an oral hearing.
By an October 17, 2006 decision, the Office denied appellant’s request for an oral
hearing on the grounds that appellant was not entitled to a hearing as a matter of right as the
request was made 30 days after issuance of the final decision.
LEGAL PRECEDENT
A claimant dissatisfied with a decision of the Office shall be afforded an opportunity for
an oral hearing or, in lieu thereof, a review of the written record. A request for either an oral
hearing or a review of the written record must be submitted in writing, within 30 days of the date
of the decision for which a hearing is sought.3 If the request is not made within 30 days or if it is
made after a reconsideration request, a claimant is not entitled to a hearing or a review of the
written record as a matter of right.4 The Board has held that the Office, in its broad discretionary
authority in the administration of the Federal Employees’ Compensation Act,5 has the power to
hold hearings in certain circumstances where no legal provision was made for such hearings and
that the Office must exercise this discretionary authority in deciding whether to grant a hearing.6
The Office’s procedures, which require the Office to exercise its discretion to grant or deny a
hearing when the request is untimely or made after reconsideration, are a proper interpretation of
the Act and Board precedent.7
2

Appellant listed his address in the CA-1 form as 30660 Milky Way Drive, Apt D26, Temecula, CA 92592. Both
the development letter and the decision were sent to 2581 Ulric Street, San Diego, CA 92111. It is unclear from the
record why this second address was used by the Office.
3

20 C.F.R. § 10.616(a) (2004).

4

Claudio Vazquez, 52 ECAB 496 (2001).

5

5 U.S.C. §§ 8101-8193.

6

Marilyn F. Wilson, 52 ECAB 347 (2001).

7

Claudio Vazquez, supra note 4.

2

ANALYSIS
The Board finds that appellant timely requested a hearing. In its October 17, 2006
decision, denying appellant’s request for a hearing, the Office stated that, as the decision was
issued August 10, 2005 and appellant’s request was postmarked September 18, 2006,8 his request
for a hearing was untimely as it was not made within 30 days. The Board, however, notes that
on August 17, 2006, the Office reissued the decision, and it is from this decision that appellant
requested a hearing.9
The 30-day period in which appellant could request a hearing as a matter of right
commenced August 18, 2006.10 The 30th day fell on Saturday, September 16, 2006. In
computing a time period the date of the event from which the designated period of time begins to
run shall not be included while the last day of the period so computed shall be included unless it
is a Saturday, a Sunday or a legal holiday.11 Appellant’s request for a hearing was postmarked
on Monday September 18, 2006 and, therefore, was filed on the last day of the extended 30-day
period. Therefore, he was entitled to a hearing before an Office hearing representative as a
matter of right. As the Board finds the request for a hearing was timely filed, the case will be
remanded to the Office to provide appellant the opportunity for a hearing.
CONCLUSION
The Board finds that appellant’s September 18, 2006 hearing request was timely filed.
Therefore, the Office improperly denied his hearing request. In view of the Board’s disposition
of the first issue, it is premature to address the merits of whether appellant had established that he
sustained a traumatic injury in the performance of duty.

8

Under the Office’s procedures, the timeliness of a request for a hearing is determined on the basis of the
postmark of the envelope, which contains the letter requesting a hearing. See 20 C.F.R. § 10.616(a) (2004); Federal
(FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter 2.1601.4(a)
(December 1995).
9

The August 17, 2006 decision is considered reissued as the August 10, 2005 decision was not sent to appellant’s
last known address as required. See 20 C.F.R. § 10.127 (2004) (“A copy of the decision shall be mailed to the
employee’s last known address.”)
10

See Angel M. Lebron, Jr., 51 ECAB 488 (2000) (the date of the event from which the designated period of time
begins to run shall not be included when computing the time period).
11

See Marguerite J. Dvorak, 33 ECAB 1682 (1982). See also FECA Program Memorandum No. 250
(January 29, 1979).

3

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 17, 2006 and August 10, 2005 be set aside and the case
remanded to the Office for further proceedings in accordance with this opinion of the Board.
Issued: April 23, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4