United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.Y., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, ALASKA
REGIONAL OFFICE, Anchorage, AK, Employer
__________________________________________

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

Docket No. 16-1324
Issued: July 24, 2017

Case Submitted on the Record

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

JURISDICTION
On June 10, 2016 appellant filed a timely appeal from the April 29, 2016 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that her diagnosed condition of dysphonia
was causally related to the accepted September 16, 2014 employment events.
On appeal, appellant alleges that the evidence establishes that her voice problems are
causally related to her federal employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 9, 2014 appellant, then a 55-year-old human resources personnel security
assistant, filed a traumatic injury claim (Form CA-1) alleging that on September 16, 2014, as she
attempted to pick up and unpack boxes from an office move, she collapsed from fumes. She
noted that when she began to fall, she dropped a box on her feet, and pulled a five foot lamp that
broke and hit her on the right side of her face. Appellant stated that the bulk of the injury was to
her left foot, but that she also experienced headaches, difficulty breathing, dry heaves/coughing,
nasal dripping, irritated eyes, and minor bruises and soreness.
In a September 18, 2014 note, Dr. Michael Fischer, a Board-certified family practitioner,
indicated that appellant was seen in connection with her reaction and near syncope possibly
related to materials used in the painting and recarpeting of her office. He noted that it was his
impression that she had a reaction to one of the agents involved, but noted that he did not have
the expertise to sort out these questions for her with regard to either specific diagnosis or
treatment, and was therefore referring her to Alaska Allergy and Immunology for a consultation.
Dr. Fischer noted that he was retiring on September 30, 2014 and that appellant would receive
follow-up care with the providers at Summit Family Practice.
In an October 15, 2014 report, Dr. Elizabeth Lafleur, a Board-certified family
practitioner, noted that she was appellant’s new physician and would be managing referrals and
conducting further evaluations. In an attending physician’s report dated October 30, 2014, she
diagnosed: “Allergy (no diagnosis from injury),” and checked a box marked “yes” indicating
that the condition was caused by the alleged employment events. Dr. Lafleur noted that
appellant did not have any limitations from the injury. In a report of the same date, she
diagnosed suspected exposure to potentially hazardous chemicals. Dr. Lafleur referred appellant
for pulmonary function studies which were conducted on November 12, 2014 by Dr. Marek A.
Martynowicz, a pulmonologist, and interpreted as a normal study.
On November 13, 2014 appellant filed a claim for recurrence of disability (Form CA-2a),
alleging a recurrence of the alleged September 16, 2014 injury on October 17, 2014. She stated
that, due to chemical reactions, she had to work from home, and traveled back and forth to pick
up and deliver work. Appellant alleged that on October 17, 2014 she entered the building and
almost immediately began to feel a reaction, and after being in the building for approximately
10 minutes her headache began, her voice changed, and her throat felt like it had been singed.
On November 20, 2014 a building assessment was conducted by Dan Pohland of J.L.
Properties. He concluded that her office did reveal some accumulated dust on office furnishings,
but did not reveal any potential odors or fumes; that no significant level of airborne particulates
were measured; that the temperature, relative humidity, carbon dioxide, and carbon monoxide
levels were within the recommended range; and that the overall results indicated that the
environmental conditions in the building were generally within acceptable levels.
On December 3, 2014 OWCP informed appellant that further medical information was
necessary to support her claim and afforded 30 days to submit the information.

2

In a December 16, 2014 report, Dr. Lafleur again diagnosed suspected exposure to
potentially hazardous chemicals. She discussed appellant’s episode on September 16, 2014, and
indicated that appellant was currently working from home. Dr. Lafleur noted that there was no
clear diagnosis, noting no foot pain or restrictions or limitations and that the pulmonary testing
came back negative.
By decision dated January 5, 2015, OWCP accepted that the alleged events occurred as
described, but denied appellant’s claim as she failed to establish a medical diagnosis causally
related to the accepted employment factors.
Following OWCP’s decision, it received a November 18, 2014 report in which
Dr. Beth A. Baker, a Board-certified pulmonologist, conducted a normal methacholine challenge
test which did not demonstrate hyperresponsive airways.
In a January 8, 2015 report, Dr. Jeffrey G. Demain, a physician Board-certified in allergy
and immunology, indicated that appellant had suspected allergic contact dermatitis. He noted no
evidence of primary pulmonary process or hypersensitivity pneumonitis at this time. Dr. Demain
discussed her work environment and noted that appellant’s history and interpretation of audio
recordings was most consistent with Extrathoracic Airway Dysfunction/Vocal Cord Dysfunction
that were provoked by exposure to irritant aerosols in her work environment during remodeling.
He noted that a follow-up was needed.
In a January 13, 2015 report, Dr. Lafleur again noted suspected exposure to potentially
hazardous chemicals and contended that it was an Americans with Disabilities Act (ADA) case,
not a workers’ compensation case. She encouraged appellant to work within guidelines of the
ADA to pursue any special accommodations. Dr. Lafleur noted that the podiatrist cleared
appellant of any traumatic injury. She also found that her allergist did agree that appellant had
sensitivity to some chemicals in the carpeting.
On January 29, 2015 appellant filed a second claim for recurrence of disability (Form
CA-2a) alleging a recurrence of the alleged September 16, 2014 injury on January 12, 2015. She
stated that, after returning to work, within a two and a half-hour period she experienced irritation
of the eyes and shortly thereafter a feeling of a headache followed by hoarseness.
On February 4, 2015 appellant also requested reconsideration of the January 5, 2015
decision.
By decision dated April 9, 2015, OWCP determined that, although appellant had now
established a medical diagnosis, she had failed to establish that the work exposure on
September 16, 2014 caused or contributed to her diagnosis. Accordingly, appellant’s claim was
denied.
On June 9, 2015 Dr. Sverre Vedal, a Board-certified pulmonologist, evaluated appellant
for persistent problems with her voice. He recommended speech therapy.
In a June 9, 2015 report, Dr. Allen D. Hillel, a Board-certified otolaryngologist, noted
that appellant has had voice complaints since a remodel at her employment with application of a
new carpet and that, since that time, she has had persistent difficult with her voice. He noted that
3

appellant’s presentation was unusual. Dr. Hillel found that exposure was generally not as
reliably repetitive as the patient reports; rather it has a much less defined pattern. He indicated
that speech therapy was the only treatment that she would recommend. Dr. Hillel did not think
appellant would benefit from working a half day schedule, but did discuss the option of an
occupational evaluation.
In a July 15, 2015 report, Dr. Shilpa N. Gowda, a resident physician, found a potential
irritant process, exacerbated by workplace exposure. She diagnosed dysphonia and irritable
larynx. Dr. Gowda opined, “We feel that the irritable larynx and spasmodic dysphonia are due to
inhalational exposure that occurred during remodeling of [appellant’s] workplace.” She noted
that temporality and biological plausibility supported the relatedness of appellant’s symptoms to
work on a more probable than not basis. Dr. Gowda opined that given the ubiquitous nature of
potentially offending agents, she felt that the best approach would be to modify appellant’s
response to the offending irritant rather than modifying the workplace and its particular
exposure, and therefore she did not recommend any adjustments at this time. She noted that it
was difficult to surmise the exact causative agent of appellant’s irritant symptoms from
appellant’s history alone, and knowing the causative agent would allow better recommendations.
Dr. Gowda recommended that appellant continue with speech therapy and continue to see
Dr. Lafleur for management of depression and anxiety, which may also help with her current
irritant symptoms. She noted that appellant likely had an autonomous irritancy reaction to
workplace exposure, but that it was difficult to surmise the exact causative agent of appellant’s
irritant symptoms from workplace exposure alone.
Dr. Vedal, in an attending note attached to Dr. Gowda’s report, indicated that he
evaluated appellant with Dr. Gowda and that he agreed with her evaluation report with only
minor edits. He noted that appellant had dysphonia and historical features of irritant-induced
irritable larynx syndrome, and that, in their opinion, this was caused by her occupational
exposure during renovation to a more probable than not degree of medical certainty. Dr. Vedal
noted that persistence of symptoms in the absence of exposure to the causative agent is typical.
He also noted symptoms of untreated GERD.
On September 1, 2015 appellant requested reconsideration.
Kristina M. Warring, speech therapist, evaluated appellant from August 24 through
October 1, 2015 and discussed with appellant behavioral and qualitative analysis of resonance
and voice.
On August 25, 2015 Dr. Lafleur diagnosed dysphonia. She recommended that appellant
follow up with counseling recommendations. Dr. Lafleur recommended no significant changes
to her plan of care. She indicated that occupational medicine instructed that the plan of care
should not be an adjustment to appellant’s workplace, but instead focus on mitigating her
response through counseling and speech therapy. Dr. Lafleur noted that appellant alleged that
she had another episode on a work trip when everyone was using markers, but that this episode
of hoarseness lasted only three days. She noted that appellant continued to be able to sing in the
church choir.

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In a November 2, 2015 decision, OWCP denied modification of its earlier decisions as
the evidence of record failed to establish a causal relationship between appellant’s work factors
and her diagnosed medical condition.
On February 10, 2016 appellant again requested reconsideration.
In a November 7, 2015 report, Dr. Gowda noted that the symptoms with which appellant
presented at the clinic, as well as the videostroboscopy, were consistent with vocal cord
dysfunction. She continued, “Furthermore, we feel that the work relatedness of [appellant’s]
vocal cord dysfunction is more probable than not.” Although they had not identified a specific
agent responsible, Dr. Gowda opined that identification of this inciting agent is not necessary for
establishing the work relatedness of the claim, as the temporality to work of a well-established
diagnosis of vocal cord dysfunction would be sufficient. She also noted that while psychological
overlay of her vocal cord dysfunction is likely, the psychological overlay does not negate the
work relatedness of her vocal cord disorder.
In a December 16, 2015 report, Dr. Demain listed appellant’s diagnosis as dysphonia and
nonallergic vasomotor rhinitis. He recommended that she continue therapy.
On January 6, 2016 Dr. David Moeller, a Board-certified radiologist, conducted an
esophagram and found a small amount of gastroesophageal reflux with the water siphon test.
Appellant continued treatment with Ms. Warring on October 14, 2015. She also saw
Karen Drake, a speech language pathologist, on January 14, 2016 for a consultation. Appellant
was given warm up voice and breathing exercises, and exercises to work toward relaxing
muscles whiles symptomatic.
In a February 3, 2016 note, Dr. Christopher Gay, a Board-certified anesthesiologist, noted
that appellant was evaluated for pain, muscle spasms, and headaches. He noted that she has a
chronic vocal cord dysfunction which has been determined to be related to environmental factors
at work, and that given the locational trigger of her symptoms, interventional treatments of her
pains are not recommended. Dr. Gay suggested that appellant be allowed to telecommute five
days a week and noted that, while there may be occasional instances where she would be
required to come into the workplace, this would alleviate the anxiety and stress associated with
the vocal cord dysfunction, as well as remove her from any offending agents.
In a February 17, 2016 report, Dr. Demain listed appellant’s diagnoses as dysphonia,
originally following chemical exposure, but that her symptoms continued to worsen when she
returned to her workplace. He discussed possible medication trials.
In an April 29, 2016 decision, OWCP denied modification of its prior decisions. It found
that the evidence of record remained insufficient to establish that the diagnosed medical
condition was causally related to the employment events of September 16, 2014.

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LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish that the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was caused in the performance of duty as alleged,
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.3 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a fact of injury has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place, and in the manner alleged.5 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.6
The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the employee.7 The weight of the
medical evidence is determined by its reliability, its probative value, its convincing quality, the
care of analysis manifested, and the medical rationale expressed in support of the physician’s
opinion.8
ANALYSIS
The issue is whether the accepted employment events on September 16, 2014 caused her
diagnosed medical condition. The determination of whether an employment incident/event
caused an injury is generally established by medical evidence.9 The Board finds that the medical
evidence of record is devoid of a well-rationalized medical opinion linking appellant’s diagnosed
voice condition of dysphonia to the employment events of September 16, 2014.
2

Id.

3

Joe D. Cameron, 42 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

4

Victor J. Woodhams, 41 ECAB 345 (1989).

5

John J. Carlone, 41 ECAB 354 (1989).

6

Id.

7

I.J., 59 ECAB 408 (2008).

8

James Mack, 43 ECAB 321 (1991).

9

N.S., Docket No. 15-1955 (issued June 23, 2016).

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Dr. Fischer first examined appellant on September 18, 2014, and indicated that he saw
her for her reaction and near syncope which had occurred at work, that his impression was that
she had a true reaction to one of the agents involved, but noted that he did not have the expertise
to sort out the questions with regard to a specific diagnosis or treatment. He referred her to other
physicians for follow-up treatment. Dr. Fischer’s opinion, which does not contain a medical
diagnosis or a rationalized opinion on causal relationship, is insufficient to establish causal
relationship.10
After Dr. Fischer’s retirement, appellant received treatment from Dr. Lafleur, who on
October 30, 2014, by checking a box marked “yes” diagnosed suspected exposure to potentially
hazardous chemicals. The Board has held, however, that an opinion on causal relationship which
consists only of a physician checking “yes” to a medical form question is of little probative
value.11 Without any explanation or rationale for the conclusion reached, such report is
insufficient to establish causal relationship. In the December 16, 2014 report, Dr. Lafleur again
diagnosed suspected exposure to potentially hazardous chemicals, noted the September 16, 2014
episode, and reported that there was no clear diagnosis. On January 13, 2015 she indicated that
this was an ADA case, not a workers’ compensation case. The Board finds that Dr. Lafleur has
failed to provide a rationalized medical opinion explaining how appellant sustained a diagnosed
condition causally related to her employment on September 16, 2014.12 In fact, Dr. Lafleur
infers that there was no such causal relationship.
Appellant saw a series of specialists in the course of her treatment. Dr. Demain
diagnosed dysphonia and nonallergic vasomotor rhinitis. However, he did not explain the
pathophysiological process by which appellant’s employment incident of September 16, 2014
would have caused or aggravated her condition.13 Dr. Hillel recommended speech therapy. He
noted that appellant’s presentation was unusual in that her difficulty with exposure was generally
not as reliably repetitive as appellant reported, but had a much less defined pattern. Dr. Hillel
did not provide a rationalized medical opinion linking appellant’s diagnosed voice issues with
the accepted employment events on September 16, 2014. Dr. Gay noted that appellant’s chronic
vocal cord dysfunction had been determined to be related to environmental factors at work.
However, the Board finds that he did not provide a rationalized medical explanation of causal
relationship, but rather made a brief conclusory statement.14
Appellant was also evaluated by Dr. Gowda and Dr. Vedal. In a July 15, 2015 note,
Dr. Gowda noted that appellant likely had an autonomous irritancy reaction to workplace
exposure, but that it was difficult to surmise the exact causative agent of appellant’s irritant
symptoms from workplace exposure alone. She followed up on November 7, 2015, and found
that more probably than not appellant’s vocal cord dysfunction was related to her employment
10

Supra note 7.

11

L.D., Docket No. 16-1289 (issued December 8, 2016).

12

Supra note 7.

13

T.O., Docket No. 16-9423 (issued June 20, 2016).

14

See F.H., Docket No. 09-0255 (issued September 10, 2009).

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due to the temporality of her symptoms with work. Dr. Gowda also noted that while
psychological overlay of her vocal cord dysfunction was likely, the psychological overlay does
not negate the work relatedness of her vocal cord disorder.
Dr. Vedal added a diagnosis of dysphonia and historical features of irritant-induced
irritable larynx syndrome, and opined to a more probable than not degree of medical certainty
that this was caused by her occupational exposure during a renovation. These reports from
Dr. Gowda and Dr. Vedal are speculative in nature as the physicians qualify their support by
noting that a causal relationship between the medical condition and appellant’s employment was
likely or more probable than not. Therefore, these reports have little probative value.15 Further,
neither the fact that a disease or condition manifests itself during a period of employment nor the
belief that the disease or condition was caused or aggravated by employment events is sufficient
to establish causal relationship.16
Appellant had multiple objectively normal studies. Dr. Martynowicz noted a normal
pulmonary function study on November 12, 2014. On November 18, 2014 Dr. Baker conducted
a methacholine challenge test and determined that it did not demonstrate hyperresponsive
airways. Dr. Moeller found a small amount of gastroesophageal reflux with water siphon test on
his esophagram of January 6, 2016. Accordingly, the diagnostic studies have no probative value
as to the cause of her accepted diagnosis. Furthermore, none of these physicians addressed
causal relationship within their medical reports. These reports are therefore of no probative
value.17
Ms. Warring and Ms. Drake are speech pathologists, not medical doctors. A speech
pathologist is not considered a physician under FECA and therefore these opinions are of no
probative medical value.18
An award of compensation may not be based on surmise, conjecture, or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor her belief that the condition was caused by her employment is sufficient to
establish causal relationship.19 Because she failed to provide medical opinion evidence clearly
explaining how her diagnosed condition is causally related to the employment events of
September 16, 2014 she has failed to meet his burden of proof and OWCP properly denied her
claim for compensation.

15

Ricky S. Storms, 52 ECAB 349 (2001) (while the opinion of a physician supporting causal relationship need not
be one of absolute medical certainty the opinion must not be speculative or equivocal, the opinion should be
expressed in terms of a reasonable degree of medical certainty).
16

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

17

R.C., Docket No. 16-1272 (issued December 2, 2016).

18

The term physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors,
and osteopathic practitioners within the scope of their practice as defined by State law. 5 U.S.C. § 8102(2); D.P.,
Docket No. 09-2065 (issued August 4, 2010) (a speech pathologist is not a physician as defined under FECA).
19

D.I., 59 ECAB 158 (2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

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Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that her diagnosed medical condition
of dysphonia on September 16, 2014 was causally related to the accepted employment events of
September 16, 2014.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 29, 2016 is affirmed.
Issued: July 24, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
Jamaica, NY, Employer
__________________________________________

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

Docket No. 13-1785
Issued: January 14, 2014

Case Submitted on the Record

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

JURISDICTION
On July 24, 2013 appellant, through her attorney, filed a timely appeal from an April 22,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish an injury in the
performance of duty on July 13, 2012.
FACTUAL HISTORY
On July 23, 2012 appellant, then a 57-year-old contract representative, filed a traumatic
injury claim alleging that on July 13, 2012 she injured her neck, back and extremities when the
elevator in which she was riding dropped abruptly between floors. The record reflects that under
1

5 U.S.C. § 8101 et seq.

claim file number xxxxxx243, OWCP had accepted a prior neck strain due to a prior injury on
January 16, 2004 due to an elevator accident.
Appellant submitted an August 2, 2012 Form CA-16 Authorization for Examination
and/or Treatment. In a July 12, 2012 note, Dr. Sreevani Thota, a Board-certified internist,
advised that appellant was totally disabled for work from July 16 to August 3, 2012.
In a July 24, 2012 report and an August 2, 2012 letter, Dr. Robert Robbins, a
chiropractor, diagnosed cervical, thoracic, lumbosacral and left shoulder strains arising from the
July 13, 2012 elevator incident. He found that appellant was totally disabled from July 13 until
September 4, 2012 having been treated with physical therapy.
By letter dated August 10, 2012, OWCP notified appellant of the deficiencies in the
evidence. It requested additional medical and factual evidence to support her claim.
In a July 23, 2012 report, Dr. Robbins noted the history of injury and appellant’s elevator
accident. He set forth findings on examination. Dr. Robbins provided a diagnostic impression
postelevator accident with multiple trauma resulting in cervical, thoracic and lumbar sprains,
intersegmental joint dysfunction and associated myofascial pain; bilateral shoulder sprains and
joint dysfunction with associated myofascial pain, secondary to cervicothoracic spine weakness
and injury at C5-T1; bilateral lower extremity radicular symptoms secondary to lumbosacral
spine weakness and injury at L2-S1. He stated that trauma to the spine created an acute
subluxation syndrome as the vertebrae had deviated from normal biomechanical functions and
supportive spinal structures. Dr. Robbins indicated that no special tests were ordered or
reviewed during his examination. He noted that appellant was sent for x-rays to rule out fracture
to the cervical, thoracic and lumbar spine.
In response to OWCP’s August 10, 2012 request, appellant submitted August 1, 2012
x-ray reports of the left shoulder, lumbosacral spine, cervical spine and thoracic spine obtained
for Dr. Robbins.
In a handwritten September 1, 2012 report, Dr. Thomas Damato, a Board-certified
surgeon, recommended appellant not return to work as her medication was being adjusted. He
noted that an appropriate return to work date was in 60 to 90 days.
In an August 30, 2012 report, Dr. Thota stated that the July 13, 2012 elevator incident
traumatized appellant and her symptoms were worsened with severe pain behavior. He
diagnosed anxiety disorder/panic attack and lumbar/cervical radiculopathy. Dr. Thota opined
that the conditions were caused or aggravated by the July 13, 2012 employment incident as
appellant was claustrophoblic after the incident. In an August 30, 2012 prescription note, he
opined that she was disabled from work until October 2, 2012 due to the diagnosed conditions.
By decision dated September 19, 2012, OWCP denied appellant’s claim. It found that
the medical evidence was insufficient to relate the diagnosed conditions to the accepted work
incident.

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In a letter dated October 1, 2012, appellant requested reconsideration. She described her
symptoms and alleged the July 13, 2012 elevator incident left her with physical, neurological and
mental/emotional injuries.
In handwritten reports of September 22 and 29, 2012, Dr. Damato stated that appellant
was under his care since September 1, 2012 for post-traumatic stress disorder, major depression
and anxiety due to the July 13, 2012 work injury. Appellant’s medication was being adjusted
and she would be out of work until December 1, 2012.
In a September 27, 2012 report, Dr. Michel S. Badin, a Board-certified internist, noted
that appellant was first seen on July 17, 2012 for a July 3, 2012 elevator accident and that she
was anxious and restless. He noted that she was under care of her chiropractor for her cervical
and shoulder pain and under the care of Dr. Damato for her anxiety insomnia and restlessness.
Dr. Badin noted that appellant was admitted to the hospital from September 4 until 11, 2012 for
hyperglycemia, acute gastristis and esophagitis which were aggravated by her anxiety and
restlessness following the reported incident. He noted that per Dr. Damato, appellant has been
disabled from July 13 until December 1, 2012.
In September 27 and October 22, 2012 duty status reports, Dr. Robbins, appellant’s
chiropractor, diagnosed cervical, thoracic, lumbar spine injury with radiculopathy as related to
the July 13, 2012 employment incident and opined that she was able to perform limited-duty
work with restrictions.
By decision dated January 3, 2013, OWCP denied modification of its prior decision.
In a January 17, 2013 letter, appellant, through her attorney, requested reconsideration.
Dr. Thota stated that, in an August 30, 2012 report, appellant was disabled because of the
July 13, 2012 incident. He stated that she became claustrophobic after the elevator stopped and
she was now afraid to drive a car. Dr. Thota indicated that he saw appellant on July 17 and
August 22, 2012 and described her symptoms, which he noted had improved.
In a November 28, 2012 report, Dr. Robbins opined that appellant was totally disabled
from the date of the accident on July 13, 2012 until present. He indicated that she suffered
severe injuries to her neck, back and left shoulder and that, although improvement had been
noted, she should refrain from any sort of work as it would likely exacerbate her condition.
Dr. Damato, in a November 24, 2012 handwritten report, indicated that appellant suffered
from post-traumatic stress disorder, generalized anxiety and major depression and a multiple of
medical issues. He opined that she was unable to return to work.
A copy of November 12, 2012 electromylogram (EMG) results were also provided.
In a January 31, 2013 letter, OWCP advised Dr. Damato that in order for appellant to
establish her claim for an emotional condition, he needed to provide a rationalized explanation as
to how the July 13, 2012 incident caused an emotional condition and any disability. It noted that
it is accepted that appellant was stuck in an elevator and had to climb backward onto the ladder
to the next floor.
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In a January 28, 2013 report, Dr. Damato noted that appellant experienced a similar
incident in an elevator on January 16, 2004. He opined that the two elevator accidents of
January 16, 2004 and July 13, 2012 had a definite effect on her medical well-being and that she
currently suffered from psychiatric symptoms of major depression, generalized anxiety,
post-traumatic stress disorder, panic attacks and several other medical issues. Dr. Damato
advised that appellant would require psychiatric and medical care to return her to baseline
functioning prior to the two accidents. He further advised that she remains totally disabled from
work at this time.
By decision dated April 22, 2013, OWCP denied modification of its prior decisions.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.2 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.4
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.5 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.6
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.7 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that

2

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

3

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

4

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 2.

5

D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

6

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 2.
7

Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006); Katherine J. Friday, 47 ECAB 591 (1996).

4

the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.8
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.9 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors.10 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.11
ANALYSIS
OWCP accepted that appellant sustained the employment incident as alleged on
July 13, 2012. It denied her claim on the grounds that she failed to submit any rationalized
medical evidence explaining how the July 13, 2012 employment incident caused or aggravated
her numerous diagnosed conditions.
The Board finds that appellant failed to submit sufficient rationalized medical evidence to
establish the causal connection between her diagnosed conditions and the July 13, 2012
incident.12
Appellant submitted reports from her chiropractor, Dr. Robbins, who opined that the
cervical, thoracic, lumbosacral and left shoulder strains arose from the July 13, 2012 elevator
incident. The reports from Dr. Robbins are of limited probative value. The Board finds that he
is not a physician as defined under FECA. Section 8101(2) of FECA provides that the term
“physician” includes chiropractors 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.13 A chiropractor is not considered a physician under FECA
unless reimbursable services are limited to treatment consisting of manual manipulation of the
spine to correct a subluxation as demonstrated by x-ray to exist.14 In a July 23, 2012 report,
Dr. Robbins indicated that the trauma to appellant’s spine caused an acute subluxation

8

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215 (1997).

9

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D Wayne Avila, 57 ECAB
642 (2006).
10

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

11

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

12

See Robert Broome, 55 ECAB 339 (2004).

13

5 U.S.C. § 8101(2).

14

Id.; see Sean O Connell, 56 ECAB 195 (2004); Mary A. Ceglia, 55 ECAB 626 (2004).

5

syndrome.15 As of that date, no x-rays of the cervical or lumbar spine had been obtained to
support a spinal subluxation. X-rays were performed for Dr. Robbins on August 1, 2012, but his
August 2, 2012 report did not address the diagnostic testing. Therefore, the diagnosis of a
subluxation as demonstrated by x-ray is not established. Dr. Robbins is not a “physician” and his
medical opinion is of no probative value.16
Dr. Thota provided July 12 and August 30, 2012 out of work notes and an August 30,
2012 report. He opined that appellant’s anxiety disorder/panic attack and lumbar/cervical
radiculopathy were caused or aggravated by the July 13, 2012 employment incident. The Board
has held that brief medical notes consisting solely of conclusory statements without supporting
rationale are of diminished probative value.17 Medical reports not containing rationale on causal
relationship are generally insufficient to support an employee’s burden of proof.18 In view of the
lack of any rationale provided by Dr. Thota on the issue of causal relationship, the Board finds
that his opinion fails to establish that appellant’s diagnosed anxiety disorder/panic attack and
lumbar/cervical radiculopathy were caused or aggravated by the July 13, 2012 employment
incident.
Dr. Damato found appellant disabled for work from July 13, 2012 due to post-traumatic
stress disorder, major depression and anxiety and multiple medical issues which arose due to the
July 13, 2012 work injury. In a January 28, 2013 report, he opined that her elevator accidents of
January 16, 2004 and July 13, 2012 had a definite effect on her mental and medical well-being.
Dr. Damato failed to provide a full or accurate medical history or adequate rationale as to how
the elevator incidents caused appellant’s diagnosed mental conditions.19 His stated conclusion
on causal relationship fails to establish that she sustained an emotional condition caused or
aggravated the July 13, 2012 elevator incident.
In a September 27, 2012 report, Dr. Badin referenced the findings of the other attending
physicians, but fails to offer his own opinion on causal relationship. Medical evidence that
offers no opinion regarding the cause of an employee’s condition is of diminished probative
value and insufficient to meet appellant’s burden of proof.20
The x-rays and EMG test results submitted by appellant are diagnostic in nature and do
not address causal relation. An award of compensation may not be based on surmise, conjecture
15

A spinal subluxation is an incomplete dislocation, off-centering, misalignment, fixation or abnormal spacing of
the vertebrae. See 20 C.F.R. § 10.5(bb).
16

See Jack B. Wood, 40 ECAB 95, 109 (1988).

17

See T.M., Docket No. 08-975 (issued February 6, 2009); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006);
William C. Thomas, 45 ECAB 591 (1994) (a medical report is of limited probative value on the issue of causal
relationship if it contains a conclusion regarding causal relationship which is unsupported by medical rationale).
18

See D.U., Docket No. 10-144 (issued July 27, 2010); S.S., 59 ECAB 315 (2008); William C. Thomas, supra
note 17.
19

See supra note 16.

20

A.F., 59 ECAB 714 (2008); Ellen L. Noble, 55 ECAB 530 (2004); Jaja K. Asaramo, 55 ECAB 200 (2004).

6

or speculation. Neither the fact that appellant’s conditions became apparent during a period of
employment nor the belief that her condition was caused, precipitated or aggravated by her
employment is sufficient to establish causal relationship.21 Causal relationship must be
established by rationalized medical opinion evidence and she failed to submit such evidence.
OWCP advised appellant that it was her responsibility to provide a comprehensive
medical report which described her symptoms, test results, diagnosis, treatment and a physician’s
opinion, with medical reasons, on the cause of her condition. Appellant failed to submit
sufficient medical documentation. She has not met her burden of proof.22
On appeal, counsel contends that the medical evidence submitted is sufficient to either
accept the claim or to require further medical development. As noted, the medical evidence
submitted to the record is deficient on the issue of causal relation.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained an injury in the performance of duty on July 13, 2012 as alleged.

21

See Joe T. Williams, 44 ECAB 518, 521 (1993).

22

The record contains a Form CA-16 signed by the employing establishment official on August 2, 2012. When
the employing establishment properly executes a Form CA-16 which authorizes medical treatment as a result of an
employee’s claim for an employment-related injury, the Form CA-16 creates a contractual obligation, which does
not involve the employee directly, to pay for the cost of the examination or treatment regardless of the action taken
on the claim. The period for which treatment is authorized by a Form CA-16 is limited to 60 days from the date of
issuance, unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c); Tracy P. Spillane, 54 ECAB 608 (2003).

7

ORDER
IT IS HEREBY ORDERED THAT the April 22, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 14, 2014
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.D., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Bay Pines, FL, Employer
__________________________________________

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Appearances:
Capp P. Taylor, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-774
Issued: February 16, 2007

Case Submitted on the Record

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

JURISDICTION
On February 8, 2006 appellant filed a timely appeal from the November 28, 2005 merit
decision of the Office of Workers’ Compensation Programs which denied compensation for
wage loss. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the
merits of the Office’s decision.
ISSUE
The issue is whether appellant’s August 5, 2001 employment injury caused disability for
work beginning January 23, 2002.
FACTUAL HISTORY
On a prior appeal of this case,1 the Board found a conflict in medical opinions between
the Office medical advisers and Dr. Clinton B. Davis, an attending orthopedic surgeon, on
1

Docket No. 03-1345 (issued January 21, 2004).

whether the August 5, 2001 employment injury, accepted for lumbar strain, aggravated
appellant’s preexisting degenerative spondylolisthesis at L4-5 and if so, whether the aggravation
resulted in the need for surgery. The facts of this case as set forth in the Board’s decision are
hereby incorporated by reference.
Appellant, a 66-year-old registered nurse, sustained an injury in the performance of duty
on August 5, 2001: “I slipped on an apple peeling. I caught myself but twisted right leg, back
and right arm.” She received medical attention that day at the employing establishment’s
occupational health unit. Appellant continued to work, often taking sick and annual leave. Due
to a previous shoulder injury, she was permanently accommodated effective March 20, 1997.
Appellant was working limited duty when she slipped on the apple peel.
On August 29, 2001 appellant saw Dr. Davis. He noted:
“[Appellant] is well known to me from previous orthopedic problems.
Specifically she has had a right shoulder rotator cuff repair and has had a problem
with her lower back for years with a diagnosis of L4/5 degenerative
spondylolisthesis.
“[Appellant] was working on August 5, 2001 when she slipped on a piece of
apple and twisted her back, landing up against the wall and she had increased
back and shoulder pain following this. This has been several weeks now and
[she] has gotten over most of the acute pain. [Appellant] is back working again
and just wanted to be sure that she had not sustained any severe problem that
might continue to cause her difficulties.”
Dr. Davis reported that x-rays that day again showed “about the same degree of L4-5
degenerative spondylolisthesis that appellant has had previously.” He advised appellant, as he
had in the past, that surgical treatment was often done for degenerative L4-5 spondylolisthesis,
but this was entirely dependent on her assessment of pain and disability and whether surgery
would be justified for that. Dr. Davis continued:
“Certainly this is a weak area in [appellant’s] back and is susceptible to increased
symptoms when subjected to a stress such as the fall, but once again any specific
treatment would be only for severe disabling pain that she is not having at this
point. [She] will let us know if this gets worse to that degree, but otherwise I
think she can continue on her light[-]duty work status without any pushing,
pulling or lifting with her right arm or repetitive bending activities.”
On January 22, 2002 Dr. Davis signed a prescription note: “[Appellant] is no longer able
to work secondary to her severe low back condition and thus, is on temporary total disability
until after anticipated surgery.” Appellant stopped work on January 23, 2002 and claimed
compensation for disability. On April 1, 2002 Dr. Davis released her to return to light duty with
no patient physical contact due to her back problems. Appellant retired on September 30, 2002.
The Office referred appellant, together with the medical record and a statement of
accepted facts, to Dr. D. Barry Lotman, a Board-certified orthopedic surgeon, for an impartial
medical opinion to resolve whether the August 5, 2001 employment injury aggravated her
2

preexisting degenerative spondylolisthesis at L4-5. On March 25, 2004 Dr. Lotman related the
history of injury, current complaints and findings on physical and radiographic examination. He
noted that appellant had injured her low back on the job multiple times and had occasional
radicular left leg symptoms over the years. Dr. Lotman diagnosed left sciatica due to a herniated
nucleus pulposus (HNP) at the L5 level and spinal stenosis at L4 with a first-degree slip. He
explained that, without a preinjury magnetic resonance imaging scan for comparison, it was not
possible to determine with certainty whether the fall in August 2001 aggravated the slip of L4
or L5. Dr. Lotman stated that appellant had been inadequately evaluated and treated. There was
no electromyogram or nerve conduction study to determine the source of her radicular symptoms
and no discography to determine whether the cause of her radicular symptoms was the stenosis
or the herniated disc. Dr. Lotman concluded:
“It is my considered opinion that [appellant’s] is not symptomatic from her
spondylosis [sic] but from the disc herniation at L5. Based on the fact that she
had intermittent radicular symptoms prior to August 2001, it is my opinion that
the HNP at L5 antedated the work injury of August 5, 2001. I believe that the
injury has caused a permanent aggravation of [appellant’s] L5 herniation.
“I cannot determine whether the August 2001 [incident] materially or
substantially increased [appellant’s] spinal stenosis.”
On April 20, 2004 the Office expanded its acceptance of appellant’s claim to include disc
herniation at L5.
Appellant again claimed compensation for disability beginning
January 23, 2002.
On October 11, 2004 Dr. Davis reported that appellant still experienced severe lower
back pain and radiating leg pain. He stated that she had a known L4-5 spondylolisthesis with a
disc herniation and nerve root impingement, which was severely symptomatic since her injury on
August 5, 2001. Dr. Davis stated that he supported disability: “I still feel that [appellant’s]
problem is work related and that she is still in need of surgical treatment as previously advised.”
In a decision dated December 29, 2004, the Office denied appellant’s claim of disability.
The Office found that the medical evidence failed to establish disability causally related to the
August 5, 2001 employment injury beginning January 23, 2002.
The employing establishment advised that appellant did not stop work in January 2002,
she was having other medical problems and problems with her son. The employing
establishment also advised that the work restrictions given by Dr. Davis did not exceed the work
restrictions currently in place for appellant’s modified-duty job. There was no apparent
disability for the job held at the time of the 2001 injury because on the date of injury appellant
was already working in a modified position. She disputed the allegation that she was having
other medical problems and problems with her son.
In a decision dated November 28, 2005, the Office reviewed the merits of appellant’s
claim for compensation and denied modification of its December 29, 2004 decision.

3

LEGAL PRECEDENT
A claimant seeking benefits under Federal Employees’ Compensation Act2 has the
burden of proof to establish the essential elements of her claim by the weight of the evidence,3
including that she sustained an injury in the performance of duty and that any specific condition
or disability for work for which she claims compensation is causally related to that employment
injury.4 When the medical evidence establishes that the residuals of an employment injury are
such that, from a medical standpoint, they prevent the claimant from continuing in her
employment, she is entitled to compensation for any loss of wage-earning capacity resulting
from such incapacity.5
For each period of disability claimed, the claimant has the burden of proving that she was
disabled for work as a result of her accepted employment injury.6 Whether a particular injury
causes a claimant to become disabled for work, and the duration of that disability, are medical
issues that must be proved by a preponderance of the reliable, probative and substantial
evidence.7
ANALYSIS
When Dr. Davis, the attending orthopedic surgeon, saw appellant on August 29, 2001 he
indicated that she had substantially recovered from the August 5, 2001 employment injury. After
noting that she had increased back and shoulder pain following the incident, he observed: “This
has been several weeks now and [appellant] has gotten over most of the acute pain. She is back
working again and just wanted to be sure that she had not sustained any severe problem that
might continue to cause her difficulties.” Further, Dr. Davis noted that any specific treatment
would be only for severe disabling pain, which “she is not having at this point.”
Five months later, appellant was temporarily totally disabled for work. The reason
remains unclear. Dr. Davis reported on January 22, 2002 that appellant was “no longer able to
work secondary to her severe low back condition and thus, is on temporary total disability until
after anticipated surgery.” He did not explain what happened between August 29, 2001 and
January 22, 2002 to account for her disability or how it related to the accepted injury.
Dr. Davis offered no objective findings to support his opinion. Appellant was well
known to him from previous orthopedic problems. She had a problem with her lower back for
years with a diagnosis of L4-5 degenerative spondylolisthesis, but x-rays on August 29, 2001
2

5 U.S.C. §§ 8101-8193.

3

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

4

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

5

Bobby W. Hornbuckle, 38 ECAB 626 (1987).

6

David H. Goss, 32 ECAB 24 (1980).

7

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

4

again showed “about the same degree of L4-5 degenerative spondylolisthesis that she has had
previously.”
Dr. Davis asserted that appellant was no longer able to work, but he did not demonstrate
that he understood the physical requirements of her modified position. If residuals of the
August 5, 2001 employment injury were such that, from a medical standpoint, they prevented her
from continuing in her modified position, Dr. Davis did not say why. He pointed to no job
activity that appellant was now unable to perform due to residuals of the August 5, 2001 injury.
When Dr. Davis reported on January 22, 2002 that appellant was no longer able to work
“secondary to her severe low back condition,” he did not attribute this disability for work to a
herniated disc. His diagnosis was a preexisting degenerative spondylolisthesis at the L4-5 level.
It was only after a conflict in medical opinion arose on whether the August 5, 2001 incident
aggravated appellant’s spondylolisthesis that Dr. Lotman, the impartial medical specialist,
diagnosed left sciatica due to a herniated disc in the low back. It was his considered opinion that
appellant was not symptomatic from her spondylosis [sic] but from the disc herniation at L5
which the August 5, 2001 incident had permanently aggravated. Dr. Davis later mentioned disc
herniation in his October 11, 2004 report, but he stated in only the most general terms that he
supported disability.
Appellant has not met her burden of proof. Dr. Davis did not support his opinion with
findings on examination and medical rationale and he did not base his opinion on relevant
information about appellant’s modified position.8 After the Office accepted a herniated disc, he
did not explain how this condition caused temporary total disability for work more than five
months after the injury in question. The Board will affirm the Office’s November 28, 2005
decision denying appellant’s claim for compensation.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that the
August 5, 2001 incident at work caused temporary total disability for work beginning
January 23, 2002.

8

See generally Melvina Jackson, 38 ECAB 443, 450 (1987) (addressing factors that bear on the probative value
of medical opinions).

5

ORDER
IT IS HEREBY ORDERED THAT the November 28, 2005 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 16, 2007
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
U.S. POSTAL SERVICE, MERCHANDISE
MART POST OFFICE, Chicago, IL, Employer
__________________________________________

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

Docket No. 21-0060
Issued: March 17, 2022

Case Submitted on the Record

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

JURISDICTION
On October 13, 2020 appellant filed a timely appeal from a May 27, 2020 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 2
ISSUE
The issue is whether appellant has met her burden of proof to establish greater than 23
percent permanent impairment of the right lower extremity or greater than 16 percent permanent

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the May 27, 2020 decision, appellant submitted additional evidence to OWCP.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

impairment of the left lower extremity for which she previously received schedule award
compensation.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances of the case
as set forth in the Board’s prior decisions and order are incorporated herein by reference. The
relevant facts are as follows.
On December 28, 1998 appellant, then a 42-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 26, 1998 she sustained a right knee injury when she
slipped and fell to the floor while in the performance of duty. OWCP assigned the claim OWCP
File No. xxxxxx040 and accepted it for right knee contusion, right knee strain, and right knee
chondromalacia.
Appellant had previously filed a traumatic injury claim (Form CA-1) on January 15, 1992
that was accepted by OWCP for bilateral frostbite of the feet and bilateral plantar fibromatosis.4
OWCP assigned OWCP File No. xxxxxx102 to the claim. It later expanded acceptance of that claim
to include the additional conditions of bilateral tarsal tunnel syndrome and bilateral lesion of the
plantar nerve as work related.
By decision dated May 30, 2013, under OWCP File No. xxxxxx102, OWCP granted
appellant 16 percent permanent impairment of the left lower extremity and 23 percent permanent
impairment of the right lower extremity under the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).5
On December 5, 2013, under OWCP File No. xxxxxx102, OWCP referred appellant for a
second opinion examination and impairment rating with Dr. Allan Brecher, a Board-certified
orthopedic surgeon. In a January 20, 2014 report, Dr. Brecher reported the findings of his
January 14, 2014 examination. He referred to the sixth edition of the A.M.A., Guides and noted
that for the right knee, appellant’s chondromalacia warranted a of Class 1 based under Table 16-3
(Knee Regional Grid), page 511, the class of diagnosis (CDX) the right knee chondromalacia
resulted in a Class 1 impairment with a default value of seven.6 Dr. Brecher assigned a grade
modifier for functional history (GMFH) of 2, a grade modifier for physical examination (GMPE)
of 1, and a grade modifier for clinical studies (GMCS) of 2. He utilized the net adjustment formula,
3

Docket No. 14-1689 (issued July 2, 2015); Docket No. 16-1826 (issued May 15, 2017); Order Remanding Case,
Docket No. 19-0525 (issued March 20, 2020).
4

Appellant also has a prior claim for a traumatic injury on April 12, 1985, which was accepted by OWCP under
OWCP File No. xxxxxx224 for lumbosacral strain.
5
A.M.A., Guides (6 th ed. 2009). OWCP indicated that it had previously awarded appellant schedule awards for a
total of 20 percent permanent impairment of the right lower extremity and 13 percent permanent impairment of the
left lower extremity. Therefore, the May 30, 2013 award granted an additional award of six percent permanent
impairment of the right lower extremity a nd three percent permanent impairment of the left lower extremity.
6

Dr. Brecher indicated that appellant had reached maximum medical improvement (MMI) by the time of his
January 14, 2014 examination.

2

(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX) = (2 - 1) + (1 - 1) + (2 - 1) = 2, which resulted
in a grade D or eight percent permanent impairment of the right lower extremity. As for appellant’s
right plantar fibromatosis, Dr. Brecher referenced Table 16-2 (Foot and Ankle Regional Grid),
page 501, and found the CDX resulted in a Class 1 with a default value of one. He assigned a
GMFH of 2, GMPE of 2, and GMCS of 1. Dr. Brecher utilized the net adjustment formula,
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX) = (2 - 1) + (2 - 1) + (1 - 1) = 2, which resulted
in a grade D or two percent permanent impairment of the right lower extremity. He added the 8
percent and 2 percent values to yield a rating of 10 percent permanent impairment for the right
lower extremity. Dr. Brecher indicated that, for the left lower extremity, left plantar fibromatosis
was accepted, but a left knee condition was not accepted. Therefore, using the same criteria as the
right side, he determined that appellant would have two percent permanent impairment of the left
lower extremity due to plantar fibromatosis.
OWCP then referred OWCP File No. xxxxxx102 to Dr. Cristopher Gross, a Board-certified
orthopedic surgeon serving as an OWCP district medical adviser (DMA). In a February 24, 2014
report and a March 17, 2014 supplemental report, Dr. Gross concurred with the impairment rating
of Dr. Brecher. He found that appellant had 10 percent permanent impairment of the right lower
extremity comprised of 8 percent permanent impairment due to right knee deficits and 2 percent
permanent impairment due to plantar fibromatosis. Dr. Gross also found that appellant had two
percent permanent impairment of the left lower extremity due to plantar fibromatosis.
By decision dated April 7, 2014, under OWCP File No. xxxxxx102, OWCP denied
modification of the May 30, 2013 decision, finding that appellant had not established greater than
16 percent permanent impairment of the left lower extremity and 23 percent permanent impairment
of the right lower extremity.
Appellant appealed the April 7, 2014 decision to the Board and, by decision dated July 2,
2015,7 under OWCP File No. xxxxxx102, the Board set aside the April 7, 2014 decision and remanded the
case to OWCP for further development of the medical evidence.
During the pendency of the Board appeal, under OWCP File No. xxxxxx102, OWCP again
referred the case to Dr. Gross, serving in his role as a DMA. In a May 3, 2014 report, Dr. Gross
again found that appellant had a total of 10 percent permanent impairment of the right lower
extremity, comprised of 8 percent permanent impairment due to right knee deficits and 2 percent
permanent impairment due to plantar fibromatosis. He also found that appellant had two percent
permanent impairment of the left lower extremity due to plantar fibromatosis. With respect to
impairment of the right lower extremity due to right knee arthritis, Dr. Gross explained that
appellant’s right knee arthritis warranted eight percent permanent impairment of the right lower
extremity due to three millimeters of cartilage interval (CDX of Class 1) when utilizing Table 163, page 511, of the sixth edition of the A.M.A., Guides. He assigned a GMFH of 2 because she
used a cane and assigned a GMPE of 1 due to normal range of motion (ROM) of the right knee
and minimal tenderness on palpation. Dr. Gross noted that a GMCS was not applicable because
clinical studies were used in the determination of the diagnosis. He indicated that, utilizing the net
adjustment formula, (GMFH - CDX) + (GMPE - CDX) = (2-1) + (1-1) = +1, corresponded to
7

Supra note 3.

3

grade D under Class 1 on Table 16-3 and warranted eight percent permanent impairment of the
right lower extremity due to right knee deficits. Dr. Gross further found that, utilizing Table 162, appellant had two percent permanent impairment of each lower extremity due to her bilateral
plantar fibromatosis.
OWCP, under OWCP File No. xxxxxx102, then referred appellant for a second opinion
examination and evaluation with Dr. James Elmes, a Board-certified orthopedic surgeon. In a
March 24, 2016 report, Dr. Elmes considered the impairment caused by appellant’s bilateral
plantar fibromatosis and referred to the sixth edition of the A.M.A., Guides, utilizing Table 16-2,
page 501, he noted a CDX of Class 1 for bilateral plantar fibromatosis with a default value of one
percent. He assigned a GMFH of 2, noting that she used a cane and limped. Dr. Elmes assigned
a GMPE of 2 noting moderate palpable findings and tenderness with normal ROM. He indicated
that the GMCS was not applicable. Dr. Elmes utilized the net adjustment formula, (GMFH - CDX)
+ (GMPE - CDX) = (2-1) + (2-1) = +2, which resulted in a grade D or two percent permanent
impairment of each lower extremity.
With regard to the right knee, Dr. Elmes noted that, according to Table 16-3, page 511,
appellant’s three-millimeter cartilage interval related to primary knee joint arthritis resulted in a
CDX of Class 1 with a default value of seven. He assigned a GMFH of 2 because appellant was
known to utilize a cane and assigned a GMPE of 1 due to normal ROM with minimal tenderness
on palpation. Dr. Elmes noted that a GMCS was not applicable. He utilized the net adjustment
formula, (GMFH - CDX) + (GMPE - CDX) = (2-1) + (1-1) = +1, which resulted in a grade D or
eight percent permanent impairment of the right lower extremity. Dr. Elmes noted that, when this
8 percent value was added to the above-described 2 percent impairment due to plantar
fibromatosis, appellant had 10 percent permanent impairment of the right lower extremity. As
noted above, he determined that appellant’s left lower extremity permanent impairment was two
percent.
OWCP, under OWCP File No. xxxxxx102, then referred the case to Dr. Michael M. Katz,
a Board-certified orthopedic surgeon serving as DMA. On April 29, 2016 Dr. Katz reviewed
Dr. Elmes’ calculations and concluded that he correctly determined impairment. However, he
noted that appellant’s right knee conditions were accepted under a different claim and, therefore,
Dr. Elmes’ determination of eight percent permanent impairment for the right lower extremity
pertaining to the right knee should not be considered. By decision dated May 13, 2016, OWCP
found that appellant had not established greater than 16 percent permanent impairment of her left
lower extremity and 23 percent permanent impairment of her right lower extremity for which she
previously received schedule awards. Appellant appealed to the Board and, by decision dated
May 15, 2017, the Board affirmed OWCP’s May 13, 2016 decision.8
On April 30, 2018, under the present claim, OWCP File No. xxxxxx040, appellant filed a
claim for compensation (Form CA-7) for an increased schedule award. She submitted medical
reports dated January 15, 2016 through September 8, 2017 regarding her accepted right knee
condition(s).

8

Id.

4

On June 12, 20218 OWCP administratively combined the present claim, OWCP File No.
xxxxxx040, with OWCP File No. xxxxxx102, with the latter file designated the master file.9
On June 12, 2018 OWCP referred the combined case file, including a May 20, 2014
statement of accepted facts (SOAF), to Dr. Katz, serving as a DMA, to determine if appellant
was entitled to additional impairment of the right knee. It indicated that the relevant case files
had been administratively combined.
In a June 13, 2018 report, Dr. Katz noted that he previously had not recommended payment
of a schedule award for right knee impairment in his April 29, 2016 report regarding OWCP File
No. xxxxxx102 as he was not then aware that the case files were combined. He reported that, based
on his current review, if prior awards paid for the right lower extremity included eight percent
permanent impairment based on the conditions of the right knee, then there would be no
additional award. Dr. Katz reported that a schedule award for 10 percent permanent impairment
of the right lower extremity due to a right knee condition had been recommended in a medical
report dated October 4, 2002, under OWCP File No. xxxxxx040, and so it would be reasonable to
assume that at some point appellant was paid at least 8 percent permanent impairment for her right
knee condition. As such, he determined that appellant would be entitled to no further award for
impairment of the right knee.
On August 20, 2018 OWCP requested an addendum report from Dr. Katz as to whether
appellant had additional permanent impairment of the right lower extremity. It noted that he should
review the SOAF dated May 20, 2014. OWCP noted again that appellant had received schedule
award compensation for 23 percent permanent impairment of the right lower extremity. It
instructed Dr. Katz that, in providing a rating of appellant’s current permanent impairment of the
right knee, he should stipulate whether the rating was included in the prior percentage awarded or
if there should be consideration of an additional award.
In an August 31, 2018 report, Dr. Katz related that, while medical evidence had been
received in OWCP File No. xxxxxx102 regarding appellant’s right knee permanent impairment
and an eight percent permanent impairment rating had been proposed, he had not recommended
acceptance of the proposed impairment rating in his April 29, 2016 report as the claims had not
been administratively combined. He concluded, however, that based on OWCP’s August 20,
2018 memorandum, it appeared that all prior recommended awards had been paid and, thus, the
prior awards paid with respect to the conditions of the right knee exceeded the present
impairment of eight percent permanent impairment of the right lower extremity.
By decision dated September 6, 2018, OWCP denied appellant’s claim for an increased
schedule award under OWCP File No. xxxxxx040, finding that she had no greater impairment of
the right lower extremity than the 23 percent previously awarded.
Appellant appealed to the Board and, by order dated March 20, 2020,10 the Board set aside
OWCP’s September 6, 2018 decision and remanded the case for further development. The Board
9

It is noted that OWCP File No. xxxxxx102 had previously been combined with OWCP File No. xxxxxx224.

10

Supra note 3.

5

found that the SOAF provided to Dr. Katz was inaccurate, as it did not list the schedule awards
appellant had previously received for her lower extremities and did not clarify whether the
awards were paid for permanent impairment caused by appellant’s right knee condition or for
permanent impairment caused by conditions of other regions of appellant’s right lower
extremity. The Board directed OWCP to prepare a complete and accurate SOAF and request that
Dr. Katz submit a clarifying report regarding appellant’s right lower extremity permanent
impairment. Following this and any further development deemed necessary, OWCP was to issue
a de novo decision.
On remand OWCP referred the case record to Dr. Katz, in his capacity as a DMA, and
provided him with an updated SOAF dated May 14, 2020, which referenced appellant’s combined
claims for the lower extremities and noted only, that appellant had received schedule awards for
23 percent permanent of the right lower extremity and 16 percent permanent of the left lower
extremity.
In a May 20, 2020 report, Dr. Katz indicated that he reviewed the submitted records
including the May 3, 2014 report of Dr. Gross and the updated SOAF of May 14, 2020. He noted
that on May 3, 2014 Dr. Gross reviewed the impairment evaluation of Dr. Brecher, dated
January 20, 2014, in which Dr. Brecher determined eight percent permanent impairment of the
right lower extremity on the basis of a CDX due to impairment under the key factor of primary
knee arthritis resulting in a Class 1 impairment, grade D. Dr. Katz advised that Dr. Gross
concurred with Dr. Brecher’s rating and recommended the same level of impairment, i.e., 10
percent permanent impairment of the right lower extremity (knee and foot) and 2 percent
permanent impairment of the left lower extremity (foot). He advised that Dr. Gross reviewed prior
records in arriving at his conclusions and appeared to have done so correctly. Dr. Katz noted that
the case record, including the updated SOAF, demonstrated that at least 10 percent of the
permanent impairment awarded for each extremity stemmed from foot impairment. He indicated
that it appeared that, given the prior “overlapping award” of 23 percent for the right lower
extremity, there would be no net additional award due for the right lower extremity on the basis of
Dr. Gross’ May 3, 2014 assessment, since his recommended impairment of 8 (constancy within
the same sentence) percent for the right lower extremity “does not exceed the prior overlapping
award.” Dr. Katz noted, likewise, his recommendation of 2 percent permanent impairment for the
left lower extremity does not exceed the prior overlapping award of 16 percent permanent
impairment for the left lower extremity. Therefore, he found there is no net additional award now
due for the left lower extremity based on his recommendation of May 13, 2014.
By decision dated May 27, 2020, OWCP determined that appellant had not met her burden
of proof to establish greater than 23 percent permanent of the right lower extremity or greater than
16 percent permanent of the left lower extremity for which she previously received schedule award
compensation.

6

LEGAL PRECEDENT
The schedule award provisions of FECA 11 and its implementing federal regulations 12 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall b e determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants and the Board has
concurred in such adoption.13 As of May 1, 2009, the sixth edition of the A.M.A., Guides is used
to calculate schedule awards. 14
ANALYSIS
The Board finds that this case is not in posture for decision.
On remand from the Board’s March 20, 2020 order, OWCP provided Dr. Katz with a
May 14, 2020 SOAF, which briefly discussed appellant’s combined claims for the lower
extremities and noted, without elaboration, that appellant had received schedule awards for 23
percent permanent of the right lower extremity and 16 percent permanent of the left lower
extremity. The May 14, 2020 SOAF did not identify each individual schedule award that appellant
received, nor did it explain what portions of each schedule award represented impairment caused
by deficits in different areas of the lower extremities (e.g., knee deficits versus foot deficits).
It is OWCP’s responsibility to provide a complete and proper frame of reference for a
physician by preparing a SOAF. 15 OWCP’s procedures dictate that when a DMA, second opinion
specialist, or referee physician renders a medical opinion based on a SOAF, which is incomplete
or inaccurate, or does not use the SOAF as the framework in forming his or her opinion, the
probative value of the opinion is seriously diminished or negated altogether. 16 OWCP did not
provide Dr. Katz with a complete SOAF as it did not list the previous individual schedule awards
appellant had received for her lower extremities and did not clarify whether the awards were paid
for permanent impairment of appellant’s right knee or for permanent impairment of other areas of
appellant’s lower extremities. Thus, the Board finds that the May 27, 2020 report produced by

11

5 U.S.C. § 8107.

12

20 C.F.R. § 10.404.

13

Id.; see V.J., Docket No. 1789 (issued April 8, 2020); Jacqueline S. Harris, 54 ECAB 139 (2002).

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims, Chapter
2.808.5a (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and
Exhibit 1 (January 2010).
15

J.N., Docket No. 19-0215 (issued July 15, 2019); Kathryn E. Demarsh, 56 ECAB 677 (2005).

16

R.W., Docket No. 19-1109 (issued January 2, 2020); Federal (FECA) Procedure Manual, Part 3 -- Medical,
Requirements for Medical Reports, Chapter 3.600.3 (October 1990).

7

Dr. Katz was not based on an accurate factual framework and cannot represent the weight of the
medical evidence sufﬁcient to deny appellant’s claim for an additional schedule award.17
Once OWCP undertakes to develop the medical evidence, it has the responsibility to do so
in a manner that will resolve the relevant issues in the case. 18 Accordingly, the Board finds that
the case must be remanded to OWCP. On remand OWCP shall prepare a complete and accurate
SOAF and request that Dr. Katz, the DMA, submit a clarifying report regarding appellant’s lower
extremity permanent impairment. Following this and other such further development as deemed
necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the May 27, 2020 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded to OWCP for further proceedings
consistent with this decision of the Board.
Issued: March 17, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

17

G.C., Docket No 18-0842 (issued December 20, 2018).

18

D.S., Docket No. 19-0292 (issued June 21, 2019).

8