United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
North Little Rock, AR, Employer
__________________________________________

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

Docket No. 17-1129
Issued: December 5, 2017

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 May 1, 2017 appellant filed a timely appeal from a March 20, 2017 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a right shoulder injury
causally related to the accepted September 26, 2015 employment incident.
FACTUAL HISTORY
On November 12, 2015 appellant, then a 51-year-old mail processor clerk, filed a
traumatic injury claim (Form CA-1) alleging that on September 29, 2015 she sustained a superior
1

5 U.S.C. § 8101 et seq.

labral tear from anterior to posterior (SLAP) of the right shoulder when she lifted a tray full of
mail from a lower shelf and had to swing the tray above her head to a higher shelf. In an
accompanying narrative statement, she reported that the tray of mail weighed 15 to 20 pounds
and she had to lift it approximately 12 inches over her head to place it on the top shelf.
Appellant explained that she first felt shoulder pain on September 26, 2015 and sought
emergency medical treatment on September 29, 2015 after the pain did not subside. She was
restricted from work until October 2, 2015 and sought treatment with her attending physician on
October 5, 2015. Appellant reported that she first notified her supervisor of the injury on
October 7, 2015. On the reverse side of the form, appellant’s supervisor controverted the claim
stating that appellant failed to report the injury on September 26, 2015.
A September 29, 2015 emergency department work release form from the Sisters of
Charity Hospital advised that appellant was treated on that date and could return to work on
October 2, 2015 with no restrictions.2
In medical notes dated October 5 and 13, 2015, Dr. Rebecca Simons, Board-certified in
family practice, provided light-duty work restrictions.
In a November 11, 2015 medical note, Dr. Simons reported that appellant was evaluated
on November 10, 2015 and was diagnosed with a SLAP III tear of the right shoulder. She
explained that this was a tear in the labrum, a soft tissue fibrous part of the shoulder joint.
Dr. Simons restricted appellant from work through December 15, 2015.
By letter dated November 24, 2015, the employing establishment controverted the claim
noting that it was not filed within 30 days of injury.
By letter dated November 30, 2015, OWCP informed appellant that the evidence of
record was insufficient to establish her claim. Appellant was advised of the medical and factual
evidence needed. OWCP noted that her Form CA-1 indicated a September 29, 2015 date of
injury, while her statement identified a September 26, 2015 injury when she experienced pain in
her shoulder while performing her employment duties. It requested she provide clarification
regarding this discrepancy. Appellant was afforded 30 days to submit the necessary evidence.
In a November 6, 2015 diagnostic report, Dr. Hari Gopal, a Board-certified diagnostic
radiologist, reported that a magnetic resonance imaging (MRI) scan of the right shoulder
revealed a likely SLAP III tear; infraspinatus and supraspinatus tendinosis, a concealed tear
within the supraspinatus tendon; slight fluid surrounding the extra-articular long head of the
biceps, possibly due to mild tenosynovitis; mild spurring of the acromioclavicular joint indenting
the musculotendinous junction of the supraspinatus with trace of subacromial bursal fluid; and
scarring and thickening contiguous with the inferior glenohumeral ligaments.
In a November 10, 2015 medical note, Dr. Simons reported that a November 6, 2015
MRI scan of the right shoulder revealed a soft tissue tear. She provided appellant with work
restrictions and referred her for an orthopedic evaluation.

2

The physician’s signature is illegible.

2

In a November 25, 2015 attending physician’s report (Form CA-20), Dr. Simons reported
that appellant complained of right shoulder pain beginning around September 1, 2015. She
diagnosed right shoulder SLAP III tear and tendinosis and reported that the condition was
possibly aggravated by doing work on high shelves and lifting.
In a December 22, 2015 narrative statement, appellant reported that her injury occurred
on September 26, 2015. When the pain did not subside, she sought medical treatment on
September 29, 2015. Appellant’s narrative statement described her course of medical treatment.
By decision dated January 6, 2016, OWCP denied appellant’s claim finding that the
evidence of record failed to establish that her diagnosed right shoulder condition was causally
related to the accepted September 26, 2015 employment incident.3
On January 19, 2016 appellant requested an oral hearing before an OWCP hearing
representative.
In a January 15, 2016 medical report, Dr. Rajiv Jain, Board-certified in internal medicine
and sports medicine, reported that appellant presented for evaluation of right shoulder pain due
to an occupational injury. He explained that appellant injured her right shoulder when lifting
crates of mail above her head in September 2015. A December 10, 2016 x-ray of the right
shoulder revealed no acute fracture, dislocation, or focal significant pathologic sclerosis or lysis.
An MRI scan of the right shoulder revealed SLAP III tear, infraspinatus tendinosis, and
supraspinatus tendinosis with concealed distal insertional tear. Dr. Jain diagnosed pain in the
right shoulder, small distal supraspinatus tear, and superior glenoid labrum lesion of the right
shoulder. He checked the box marked “yes” when asked if the incident the patient described was
the competent medical cause of this injury. Regarding appellant’s rotator cuff injury, Dr. Jain
recommended icing the shoulder before bed. He provided a physical therapy referral and
restricted appellant from returning to work until further notice.
In a January 18, 2016 therapy note, Scott Dinse, a treating physical therapist (PT),
reported that appellant injured her right shoulder on September 1, 2015 when lifting boxes of
mail overhead. He diagnosed right shoulder tendinopathy and partial cuff tear.
In a May 6, 2016 medical report, Dr. Jain reported that appellant presented for follow up
of right shoulder pain from an occupational injury. He noted that she injured her right shoulder
while lifting a mailbox about one year prior while working at the employing establishment and
had not been back to work for almost a year. Dr. Jain provided findings on physical examination
and diagnosed pain in the right shoulder, superior glenoid labrum lesion of the right shoulder,
and adhesive capsulitis of the left shoulder. He checked the box marked “yes” when asked if the
incident the patient described was the competent medical cause of this injury.
By letter dated August 8, 2016, OWCP notified appellant that her hearing would be held
on September 13, 2016 at 12:00 p.m. Eastern Standard Time (EST). It provided her with a toll
free number to call at that time to be connected to the hearing representative and court reporter.
3

OWCP noted that the date of injury was corrected to September 26, 2015 as identified in appellant’s
December 22, 2015 narrative statement.

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By decision dated October 3, 2016, OWCP’s hearing representative found that appellant
had abandoned her request for an oral hearing. She noted that appellant received written notice
30 days in advance of the hearing, but failed to participate. The hearing representative also
found no evidence that appellant contacted OWCP either prior to or subsequent to the scheduled
hearing to explain her failure to appear.
On December 13, 2016 appellant requested reconsideration of the January 6, 2016
OWCP decision.
In a November 22 2016 medical note, Dr. Jain reported that he first evaluated appellant
on January 15, 2016 for a right shoulder injury sustained at work on September 1, 2015. He
opined that this injury was causally related to repeatedly lifting heavy crates of mail overhead
while working as a postal employee, which aggravated underlying degenerative changes in her
rotator cuff and labrum.
By decision dated March 20, 2017, OWCP affirmed the January 6, 2016 decision finding
that the evidence of record failed to establish that appellant’s diagnosed right shoulder injury was
causally related to the accepted September 26, 2015 employment incident.
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 or specific condition for which compensation is claimed are causally related to the
employment injury.4 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.5
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.6 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence supporting such a causal relationship.7 The opinion of the physician
4

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

5

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

6

Elaine Pendleton, supra note 4.

7

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

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must be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature
of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant. This medical opinion must include an accurate history of the
employee’s employment injury and must explain how the condition is related to the injury. The
weight of 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
OWCP accepted that the September 26, 2015 employment incident occurred as alleged.
The issue is whether appellant established that the incident caused a right shoulder injury. The
Board finds that she failed to submit sufficient medical evidence to establish that her right
shoulder condition is causally related to the September 26, 2015 employment incident.9
In medical notes dated October 5 through November 11, 2015, Dr. Simons noted a tear in
the labrum of the right shoulder joint and diagnosed right shoulder SLAP III tear. Dr. Simons
failed to discuss the September 26, 2015 employment incident or provide any opinion regarding
the cause of appellant’s condition.10 The Board has held that medical evidence that does not
offer an opinion regarding the cause of an employee’s condition is of limited probative value on
the issue of causal relationship.11 As such, these reports are insufficient to establish appellant’s
traumatic injury claim.
In a November 25, 2015 Form CA-20, Dr. Simons noted complaints of right shoulder
pain which started around September 1, 2015. The Board notes that Dr. Simons’ Form CA-20
does not provide support for a traumatic injury having occurred on September 26, 2015 as
appellant’s shoulder complaints predate the employment incident. Moreover, Dr. Simons’
opinion on causation is highly speculative as she reported that the right shoulder SLAP III tear
and tendinosis were possibly aggravated by doing work on high shelves/lifting. 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.12 Although Dr. Simons had some
understanding of appellant’s employment duties, she failed to provide a firm medical conclusion

8

James Mack, 43 ECAB 321 (1991).

9

See Robert Broome, 55 ECAB 339 (2004).

10

See L.M., Docket No. 14-973 (issued August 25, 2014); R.G., Docket No. 14-113 (issued April 25, 2014);
K.M., Docket No. 13-1459 (issued December 5, 2013); A.J., Docket No. 12-548 (issued November 16, 2012).
11

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

12

Rickey S. Storms, 52 ECAB 349 (2001).

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that the September 26, 2015 employment incident caused or aggravated appellant’s injury.13 As
such, the reports of Dr. Simons are insufficient to meet appellant’s burden of proof.14
The Board finds that Dr. Jain’s medical reports dated January 15 through November 22,
2016 are also insufficient to establish appellant’s traumatic injury claim. In his January 15, 2016
report, Dr. Jain noted that appellant presented for evaluation of right shoulder pain due to an
occupational injury, explaining that she injured her right shoulder when lifting crates of mail
above her head in September 2015. He diagnosed small distal supraspinatus tear and superior
glenoid labrum lesion of the right shoulder. Dr. Jain checked the box marked “yes” when asked
if the incident the patient described was the competent medical cause of injury.
Dr. Jain, however, failed to specifically address the September 26, 2015 employment
incident and only generally repeated appellant’s allegations pertaining to the cause of her injury.
Such generalized statements do not establish causal relationship because they merely repeat
appellant’s allegations and are unsupported by adequate medical rationale explaining how the
physical activity actually caused the diagnosed conditions.15 Moreover, though Dr. Jain checked
the box marked “yes” when asked if he believed appellant’s condition was caused or aggravated
by the accepted September 26, 2015 employment incident, the Board has held that a report that
addresses causal relationship by checkmark, without medical rationale explaining how the work
condition caused the alleged injury, is of diminished probative value and insufficient to establish
causal relationship.16 Without explaining physiologically how the movements involved in the
September 26, 2015 employment incident caused or contributed to the diagnosed right shoulder
conditions, Dr. Jain’s opinion is of limited probative value and insufficient to meet appellant’s
burden of proof.17
Dr. Jain’s May 6, 2016 report is also insufficient to establish appellant’s traumatic injury
claim as the physician provides a conflicting narratives pertaining to her right shoulder injury.
He notes follow-up for an occupational right shoulder injury from one year prior when lifting a
mail box at work. Based on this report, it is unclear if appellant experienced a prior right
shoulder injury having occurred in May 2015 as Dr. Jain failed to discuss any aspect of
appellant’s medical history. His November 22, 2016 report also fails to cure this discrepancy as
he reported evaluating appellant for a right shoulder injury sustained at work on
September 1, 2015. The Board has found that a physician must provide a narrative description of
the identified employment incident and a reasoned opinion on whether the employment incident
described caused or contributed to the diagnosed medical condition.18 With no discussion of the

13

See Michael R. Shaffer, 55 ECAB 339 (2004).

14

See Beverly R. Jones, 55 ECAB 411 (2004).

15

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

16

See Calvin E. King, Jr., 51 ECAB 394 (2000); see also Frederick E. Howard, Jr., 41 ECAB 843 (1990).

17

Supra note 9.

18

John W. Montoya, 54 ECAB 306 (2003).

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specific September 26, 2015 employment incident and circumstances surrounding the injury, the
reports of Dr. Jain fail to provide support for a traumatic injury having occurred on that date.19
In his November 22, 2016 report, Dr. Jain opined that appellant’s right shoulder injury
was causally related to repeatedly lifting heavy crates of mail overhead while working as a postal
worker. However, he failed to identify a firm medical diagnosis which he attributes to her
employment injury, nor did he discuss how the accepted employment incident described would
cause the mechanism of injury.20 As such this report is of diminished probative value. Dr. Jain
further noted that appellant’s work activity aggravated the underlying degenerative changes in
her rotator cuff and labrum. He did not address why appellant’s complaints were not caused by a
preexisting degenerative condition, nor did he discuss whether her preexisting degenerative
injury had progressed beyond what might be expected from the natural progression of that
condition.21 A well-rationalized opinion is particularly warranted when there is a history of
preexisting conditions.22 As such, Dr. Jain’s reports are of limited probative value and
insufficient to meet appellant’s burden of proof.23
The remaining medical evidence of record is also insufficient to establish causal
relationship between appellant’s right shoulder injury and the September 26, 2015 employment
incident. Dr. Gopal’s November 6, 2015 report is of no probative value as he interpreted
diagnostic imaging studies with no opinion on the cause of injury.24
The January 18, 2016 physical therapy report is insufficient to establish appellant’s claim
as physical therapists are not considered physicians as defined under FECA, their opinions are of
no probative value.25
The Board finds that record lacks rationalized medical evidence establishing causal
relationship between the September 26, 2015 employment incident and her diagnosed right
shoulder injury. Thus, appellant has failed to meet her burden of proof.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 and 10.607.
19

S.R., Docket No. 12-1098 (issued September 19, 2012).

20

T.D., Docket No. 17-0649 (issued June 16, 2017).

21

R.E., Docket No. 14-868 (issued September 24, 2014).

22

T.M., Docket No. 08-975 (issued February 6, 2009); Michael S. Mina, 57 ECAB 379 (2006).

23

John W. Montoya, 54 ECAB 306 (2003).

24

G.C., Docket No. 17-0675 (issued June 15, 2017).

25

5 U.S.C. § 8102(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. See also Roy L. Humphrey, 57 ECAB 238 (2005). Physical therapists are not physicians and a
physical therapist’s opinion regarding diagnosis or causal relationship is of no probative value. V.C., Docket No.
14-1124 (issued November 3, 2014).

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CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her right
shoulder injury is causally related to the accepted September 26, 2015 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the March 20, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 5, 2017
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.W., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER/FACILITY,
Knoxville, TN, Employer
__________________________________________

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

Docket No. 21-0393
Issued: October 14, 2021

Case Submitted on the Record

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

JURISDICTION
On January 26, 2021 appellant filed a timely appeal from a December 1, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case. 2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the December 1, 2020 decision, appellant submitted 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
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish a diagnosed medical
condition causally related to the accepted August 5, 2020 employment incident.
FACTUAL HISTORY
On August 6, 2020 appellant, then a 44-year-old mail processing clerk, filed a traumatic
injury claim (Form CA-1) alleging that on August 5, 2020 she injured her shoulder when a bad
wheel on a general postal container (GPC) caused her to pull a muscle in her shoulder while in the
performance of duty. She did not stop work. In a statement which accompanied the claim form,
appellant indicated that she injured her right shoulder when she tried to push a GPC, which had a
stiff wheel, across the aisle.
In an August 6, 2020 report, Carrie Neal, an advanced practice nurse, noted that appellant
had been experiencing pain in her right shoulder after pushing a GPC the day before. On review
of an x-ray scan of her right shoulder, she observed no evidence of a fracture, dislocation, or a
destructive lesion and diagnosed a right shoulder strain.
On August 8, 2020 the employing establishment offered appellant a modified assignment,
which required scanning mail for seven hours per day.
In an August 13, 2020 medical report, Dr. James Howell, Board-certified in family
medicine, evaluated appellant for a right shoulder injury. Appellant informed him that she was
pushing a GPC and felt a pain in her right shoulder. Dr. Howell diagnosed a right shoulder strain
and recommended physical therapy. In a September 3, 2020 medical report, he noted appellant’s
physical therapy treatment for her right shoulder strain and recommended that she undergo a
magnetic resonance imaging (MRI) scan for further evaluation.
In a September 10, 2020 diagnostic report, Dr. Phillip Clark, a Board-certified diagnostic
radiologist, performed an MRI scan of appellant’s right upper extremity, finding moderate rotator
cuff tendinosis with low-grade partial-thickness tearing and mild subacromial subdeltoid bursitis.
In a medical report of even date, Dr. Howell reviewed the MRI scan of appellant’s right shoulder
and diagnosed a right shoulder strain, a tear of the right supraspinatus tendon and a tear of the right
infraspinatus tendon.
Appellant also submitted physical therapy reports dated August 25 to October 1, 2020 in
which she was evaluated and treated for her diagnosis of a strain of an unspecified muscle, fascia
and tendon at shoulder and upper arm level, right arm. She reported that she was pushing a cart at
work when the wheel bounded and slowed the cart down, causing her to experience pain in the
right shoulder.
In an October 26, 2020 development letter, OWCP advised appellant of the deficiencies of
her claim and instructed her as to the factual and medical evidence necessary to establish her claim.
It requested that she submit a narrative medical report from her physician, which contained a
detailed description of findings and diagnoses, explaining how the alleged incident caused or
aggravated her medical condition. OWCP afforded appellant 30 days to respond.

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Appellant submitted additional physical therapy reports dated from October 6 to 9, 2020.
In a September 25, 2020 medical report, Dr. Justin Kennon, a Board-certified orthopedic
surgeon, evaluated appellant for pain in her right shoulder and arm. He observed that on August 5,
2020 she was pushing a heavy cart and later felt significant discomfort in the anterior and posterior
aspect of her shoulder with radiating pain down her right arm and fingers. On examination and
review of her diagnostic studies, Dr. Kennon diagnosed cervical radiculopathy.
In an October 28, 2020 medical report, Dr. Colin Booth, a Board-certified orthopedic
surgeon, evaluated appellant for neck pain radiating into the anterior radial aspect of the right arm
that she experienced after pushing a heavy object at work in August. On examination, he
diagnosed bilateral C6 radiculopathy right greater than left.
By decision dated December 1, 2020, OWCP denied appellant’s traumatic injury claim,
finding that she had not submitted medical evidence from a qualifying physician containing a
diagnosis in connection with her claimed injury. It concluded, therefore, that the requirements had
not been met to establish an injury as defined under FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 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 timely filed within the applicable
time limitation of FECA, 4 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury. 5 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. 6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment incident
at the time, place, and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury. 7

3

Supra note 1.

4

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

K.L., Docket No. 18-1029 (issued January 9, 2019); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee),
10.5(q)

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Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 8 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the accepted employment incident must be based on a
complete factual and medical background.9 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and the
specific employment incident. 10
ANALYSIS
The Board finds that this case is not in posture for decision.
Dr. Howell, in his August 13 and September 10, 2020 medical reports, indicated that
appellant experienced pain in her right shoulder after pushing a GPC at work. On examination
and review of an MRI scan of her right shoulder, he diagnosed a right shoulder strain, a tear of the
right supraspinatus tendon and a tear of the right infraspinatus tendon. Additionally, Drs. Kennon
and Booth examined appellant and diagnosed cervical radiculopathy after she reported sustaining
a right upper extremity injury in August 2020 as a result of pushing a heavy cart at work.
Therefore, the Board finds that the evidence of record establishes a diagnosed medical condition
in connection to the accepted August 5, 2020 employment incident.
As the medical evidence of record establishes a diagnosed medical condition, the case must
be remanded for consideration of the medical evidence with regard to the issue of causal
relationship. Following this and other such further development as deemed necessary, OWCP
shall issue a de novo decision.
CONCLUSION
The Board finds that appellant has met her burden of proof to establish a diagnosed medical
condition. The Board further finds, however, that the case is not in posture for decision with regard
to causal relationship.

8

T.H., 59 ECAB 388, 393-94 (2008); Robert G. Morris, 48 ECAB 238 (1996).

9

M.V., Docket No. 18-0884 (issued December 28, 2018).

10

Id.; Victor J. Woodhams, 41 ECAB 345, 352 (1989).

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ORDER
IT IS HEREBY ORDERED THAT the December 1, 2020 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: October 14, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.E., Appellant
and
DEPARTMENT OF THE ARMY,
Fort Monmouth, NJ, Employer
__________________________________________

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

Docket No. 10-81
Issued: September 17, 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 October 13, 2009 appellant filed a timely appeal from July 24, 2009 merit decision of
the Office of Workers’ Compensation Programs. Under 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than an 11 percent permanent impairment to her
right upper extremity.
FACTUAL HISTORY
Appellant, a 53-year-old supervisory contract specialist, sustained a fall on her right side
on August 12, 2003. She filed a claim for benefits on August 14, 2003, which the Office
accepted for fracture of the radial head in the right arm, right wrist sprain, traumatic arthropathy
of the right hand, right trigger finger and right hip and thigh sprain. Arthroscopic surgery was
authorized.

In a report dated May 14, 2007, Dr. David O. Weiss, an osteopath, found that appellant
had a 38 percent right upper extremity impairment under the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (5th ed. 2001). He stated
on examination that she had tenderness over the carpometacarpal joint, with resisted thumb
extension graded at a four plus out of five. Dr. Weiss found that grip strength testing performed
via Jamar hand dynamometer at level 3 revealed 32 kilograms (kg) on the right versus 12 kg on
the left, which equated to a 62.5 percent strength deficit to the right hand. He further found that
pinch key unit testing measured 8 kg on the right versus 5 kg on the left; three-point pinch
measured 7 kg on the right versus 10 kg on the left. Dr. Weiss stated that appellant had a
perceived sensory deficit to cotton whisk sensation over the radial nerve distribution of the right
wrist and hand. He measured wrist joint circumference of 19 centimeters (cm) on the right
versus 18.5 cm on the left; a lower arm circumference of 26.5 cm on the right versus 27.5 cm on
the left.
Dr. Weiss calculated his 38 percent right upper extremity rating based on the following
factors: a 4 percent impairment for loss of right wrist dorsiflexion and a 4 percent impairment
for loss of right wrist palmar flexion under Figure 16-28 at page 467 of the A.M.A., Guides; a
2 percent impairment for right wrist ulnar deviation at Figure 16-31, page 469 of the A.M.A.,
Guides, for a total 10 percent range of motion impairment of the right wrist; a 1 percent
impairment for Grade 4 sensory deficit of the right radial nerve at Table 16-10, page 482 and
Table 16-15, page 492 of the A.M.A., Guides and a 30 percent impairment for loss of right grip
strength at Table 16-34, page 509 of the A.M.A., Guides. Using the Combined Values Chart at
page 604, he rated a total 38 percent right upper extremity impairment. Dr. Weiss found that
appellant reached maximum medical improvement on May 14, 2007.
In a December 28, 2007 report, Dr. Arnold T. Berman, Board-certified in orthopedic
surgery and an Office medical adviser, reviewed Dr. Weiss’ report and found that appellant had
an 11 percent permanent impairment rating for the right upper extremity. He concurred with
Dr. Weiss’ findings and conclusions with regard to the 10 percent range of motion impairment of
the right wrist and the 1 percent impairment for Grade 4 sensory deficit of the right radial nerve.
However, Dr. Berman rejected Dr. Weiss’ 30 percent impairment for grip strength based on
section 16.8a of the A.M.A., Guides,1 which states that decreased strength cannot be rated in the
presence of painful conditions because such conditions prevent the effective application of
maximum force in the region being evaluated.
The Office found that there was a conflict in the medical evidence regarding the
percentage of impairment in appellant’s right upper extremity used under the fifth edition
A.M.A., Guides. It scheduled her for an impartial medical examination with Dr. Elliott C.
Semet, Board-certified in orthopedic surgery. In an April 22, 2008 report, Dr. Semet found that
appellant had an 11 percent permanent impairment of the right upper extremity under the
A.M.A., Guides. He measured limitations of dorsi and palmar flexion of approximately 35 to 40
degrees with pain generated beyond 35 degrees for a final measurement of a total arc motion of
75 degrees. Dr. Semet calculated radial deviation of approximately 18 degrees and ulnar
deviation of 20 degrees. He advised that appellant displayed no pain at the extremes of motion
1

A.M.A., Guides 508.

2

with the exception of dorsi and palmar flexion; he noted no pain with ulnar deviation, pressure
over the triangular fibrocartilage or any other provocative stress testing of the triangular
fibrocartilage.
Dr. Semet had appellant undergo grip strength testing with a hand dynameter at level 3.
He stated that testing was inconsistent on repetitive tries with maximal medical grip strength
significantly less than rapid exchange testing; with rapid exchange, he noted that she was able to
produce an extra 25 pounds of grip strength. Dr. Semet related that his examination of
three-point pinching and key pinching was unreliable as appellant was clearly watching the
amount of pressure she put forth. He stated that, while her sensory examination showed a
perceived sensory deficit in the small area of radial sensory isolated to the index finger, she had
equal sensation to the blue monofilament bilaterally. Dr. Semet noted that the difference in her
wrist circumference measured one-quarter of an inch; her maximum grip strength improved from
25 to 40 pounds with a maximum grip strength obtained at 65 pounds on the left side.
Dr. Semet concluded based on his examination, the lack of consistency appellant showed
and section 16.8a of the A.M.A., Guides, that she had no ratable impairment based on decreased
strength. He concurred with Drs. Weiss and Berman that she was entitled to a 10 percent range
of motion impairment of the right wrist, based on 8 percent for dorsi and palmar flexion deficit
and 2 percent for loss of ulnar deviation and a 1 percent impairment for Grade 4 sensory deficit
of the right radial nerve based on the applicable figures at pages 467-692 of the A.M.A., Guides.
In an August 25, 2008 report, an Office medical adviser agreed with Dr. Semet’s opinion
that appellant had an 11 percent impairment of her right upper extremity. He stated that loss of
motion of 35 to 40 degrees, flexion and palmar flexion combined, at Figure 16-28, page 467, of
the A.M.A., Guides yielded a total eight percent right wrist range of motion impairment. The
Office medical adviser also stated that pursuant to Figure 16-28, page 467 of the A.M.A., Guides
an ulnar deviation of 20 degrees equated to a two percent impairment. Lastly, he noted a small
area of sensory deficit on the ulnar side of the index finger, which yielded a 1 percent sensory
deficit impairment at Table 16-10, page 492 of the A.M.A., Guides, for a total 11 percent right
upper extremity impairment.
By decision dated November 21, 2008, the Office granted appellant a schedule award for
an 11 percent permanent impairment of the right upper extremity for the period April 22 to
December 18, 2008 for a total of 34.32 weeks of compensation. It found that Dr. Semet’s referee
medical opinion represented the weight of the medical evidence.
By letter dated December 5, 2008, appellant’s attorney requested an oral hearing, which
was held on April 30, 2009.
By decision dated July 24, 2009, an Office hearing representative affirmed the
November 21, 2008 Office decision.

2

This constitutes either a misstatement or typographical error on the part of Dr. Semet; the figures he relied on
are located at pages 467-69 of the A.M.A., Guides.

3

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 set forth the
number of weeks of compensation to be paid for permanent loss or loss of use of the members of
the body listed in the schedule. Where the loss of use is less than 100 percent, the amount of
compensation is paid in proportion to the percentage loss of use.4 However, the Act does not
specify the manner in which the percentage of loss of use of a member is to be determined. For
consistent results and to insure equal justice under the law to all claimants, the Office has
adopted the A.M.A., Guides fifth edition as the standard to be used for evaluating schedule
losses.5 The claimant has the burden of proving that the condition for which a schedule award is
sought is causally related to his or her employment.
In situations where there are opposing medical reports and the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.6
ANALYSIS
In this case, the Office referred appellant to Dr. Semet, the impartial examiner, who
determined that she had an 11 percent permanent impairment of the right upper extremity under
the A.M.A., Guides.7 Dr. Semet concurred with Drs. Weiss and Berman that appellant was
entitled to a 10 percent range of motion impairment of the right wrist (based on 8 percent for
dorsi and palmar flexion deficit and 2 percent for loss of ulnar deviation) and a 1 percent
impairment for Grade 4 sensory deficit of the right radial nerve based on the applicable figures at
pages 467-69 of the A.M.A., Guides.
In an August 25, 2008 report, an Office medical adviser agreed with Dr. Semet’s opinion
that appellant had an 11 percent impairment of her right upper extremity. He stated that loss of
motion of 35 to 40 degrees, flexion and palmar flexion combined, at Figure 16-28, page 467, of
the A.M.A., Guides yielded a total eight percent right wrist range of motion impairment. The
Office medical adviser also stated that pursuant to Figure 16-28, page 467 of the A.M.A., Guides
an ulnar deviation of 20 degrees equated to a two percent impairment. Lastly, he noted that the
small area of sensory deficit on the ulnar side of the index finger equated to a 1 percent sensory
deficit impairment at Table 16-10, page 492 of the A.M.A., Guides, for a total 11 percent right
upper extremity impairment.

3

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

4

Id. at § 8107(c)(19).

5

20 C.F.R. § 10.404.

6

See Gloria J. Godfrey, 52 ECAB 486 (2001).

7

It is well established that the opinion of an impartial medical specialist is to be given special weight. See
Anna M. Delaney, 53 ECAB 384 (2002).

4

However, Dr. Semet and the Office medical adviser in his August 25, 2008 report
rejected Dr. Weiss’ 30 percent impairment rating for grip strength deficit based on section 16.8a
of the A.M.A., Guides,8 which states:
“In a rare case, if the examiner believes the individual’s loss of strength represents
an impairing factor that has not been considered adequately by other methods in
the A.M.A., Guides, the loss of strength may be rated separately…. If the
examiner judges that loss of strength should be rated separately in an extremity
that presents other impairments, the impairment due to loss of strength could be
combined with the other impairments, only if based on unrelated etiologic or
pathomechanical causes. Otherwise the impairment ratings based on objective
anatomic findings take precedence. Decreased strength cannot be rated in the
presence of decreased motion, painful conditions, deformities or absence of parts
that prevent effective application of maximal force in the region to be evaluated.”9
The Board notes that Dr. Semet, the impartial medical examiner, performed grip strength
testing with a hand dynameter, which was inconsistent and unreliable with repetitive tries
attempted. He opined that appellant was modulating the amount of pressure she exerted.
Dr. Semet concluded that, based on his examination, the lack of consistency she showed and
section 16.8a of the A.M.A., Guides, she had no ratable impairment based on decreased strength.
The Board finds that Dr. Semet’s opinion was sufficiently thorough, well rationalized and
factually supported to merit the special weight of an impartial medical examiner. The Office
medical adviser reviewed Dr. Semet’s report and found that appellant was not entitled to more
than an 11 percent award for his right upper extremity impairment. Based on the reports from
Dr. Semet and the Office medical adviser, which were rendered in conformance with the
applicable figures and tables of the A.M.A., Guides, the Office properly found in its
November 21, 2008 decision that appellant had an 11 percent permanent impairment of the right
upper extremity.
Counsel contends on appeal that Dr. Semet’s report is not rationalized and that he failed
to use appropriate methods to measure appellant’s range of motion impairment. He further
contends that the physician cited page numbers but did not provide specific cites to the
applicable tables of the A.M.A., Guides on which he relied. As discussed, however, Dr. Semet’s
report is thorough, well rationalized and based on an accurate factual and medical history;
consequently, his report represents the weight of the medical evidence. He indicated a
10 percent impairment for loss of range of motion, the same rating provided by every physician
of record in this case. As noted above, Dr. Semet’s rating was supported by his examination and
appropriate testing procedures. While he did not indicate the precise tables or figures of the
A.M.A., Guides on which he relied, the Office medical adviser reviewed his report, utilized his
findings and conclusions and properly applied them to Figure 16-28 at page 467 and Table 16-10
at page 492 of the A.M.A., Guides in rendering his 11 percent right upper extremity impairment
rating.

8

A.M.A., Guides 508.

9

Id.

5

Counsel also contends on appeal that Dr. Semet was not properly selected from the
Physician’s Directory System (PDS) and was not chosen in accordance with proper procedures.10
He argues that the Office intended to select Dr. Semet as the impartial medical specialist and
therefore two physicians were bypassed for no telephone number or incorrect telephone number.
Counsel notes on appeal that he was able to confirm the bypassed physicians’ telephone
numbers. His ability to “confirm” the bypassed physicians telephone numbers does not establish
abuse of discretion malfeasance on the part of the Office during the actual scheduling process.11
There is no other probative medical evidence establishing that appellant sustained any
additional permanent impairment. The Board finds that the Office medical adviser properly
applied the A.M.A., Guides to rate her right upper extremity impairment based on Dr. Semet’s
opinion, which constitutes the weight of medical opinion. The Board affirms the July 24, 2009
decision, which affirmed the November 21, 2008 schedule award decision.
CONCLUSION
The Board finds that appellant has no more than an 11 percent impairment of her right
upper extremity.

10

To ensure the complete independence of physicians that are selected as impartial medical specialists, the Office
developed specific procedures to safeguard against any possible appearance that the selected physician’s opinion is
biased or prejudiced. Impartial medical specialists are selected from among Board-certified specialists in the
appropriate geographical area on a strict rotating basis to negate the appearance that any preferential treatment exists
between a particular physician and the Office. The Federal (FECA) Procedure Manual provides that the selection of
an impartial medical specialists is made through a strict rotational system using appropriate medical directories. The
procedure manual provides that the PDS should be used for this purpose wherever possible. See Federal (FECA)
Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4(b) (May 2003). See also Willie M.
Miller, 53 ECAB 697 (2002).
11

R.B., 61 ECAB ___ (Docket No. 09-1786, issued July 1, 2010).

6

ORDER
IT IS HEREBY ORDERED THAT the July 24, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 17, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 14-722
Issued: May 8, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 11, 2014 appellant, through his attorney, filed a timely appeal from an
October 21, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP)
terminating his compensation benefits. 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 OWCP properly terminated appellant’s compensation benefits
effective March 19, 2013 on the grounds that he had no further residuals of his August 14, 2007
employment injury.
FACTUAL HISTORY
On August 14, 2007 appellant, then a 50-year-old mail handler, filed a traumatic injury
claim alleging that on that date he sustained injuries when he tripped at work. OWCP accepted
the claim for an aggravation of bilateral carpal tunnel syndrome. At the time of his employment
1

5 U.S.C. § 8101 et seq.

injury, he worked part-time limited duty as a result of a May 2, 1993 injury, accepted by OWCP
for brachial neuritis and neck sprain under file number xxxxxx328. Appellant stopped work on
November 9, 2010 after the employing establishment withdrew his employment under the
National Reassessment Program (NRP). OWCP paid him compensation for total disability
beginning December 10, 2010.
On July 21, 2011 OWCP referred appellant to Dr. Stanley Askin, a Board-certified
orthopedic surgeon, for a second opinion examination. In a report dated August 12, 2011,
Dr. Askin diagnosed continued carpal tunnel syndrome that had not been adequately treated. He
found no evidence of brachial neuritis and neck sprain. Dr. Askin opined that appellant could
return to his regular employment duties.
On September 1, 2011 Dr. Jennifer Chu, a Board-certified physiatrist, discussed
appellant’s symptoms of bilateral hand numbness and tingling. On examination, she found
weakness in the hands, fingers, forearms and wrists bilaterally and reduced motion of the neck.
Dr. Chu diagnosed an aggravation of bilateral carpal tunnel syndrome and found that the results
of electrical stimulation “also indicate presence of active ongoing muscle spasms due to
aggravation of the carpal tunnel syndrome when he fell on his forearms at work on
August 14, 2007.” She found that appellant was unable to return to his regular employment as a
result of his carpal tunnel syndrome.
In an addendum dated September 28, 2011, Dr. Askin found that any employment-related
aggravation of carpal tunnel syndrome had ceased based on the fact that appellant had “not
worked in such a long time….” He also noted that appellant might have diabetic neuropathy.
By decision dated December 1, 2011, OWCP terminated appellant’s compensation
effective December 1, 2011. It found that the medical evidence established that he had no
disability or condition resulting from his August 14, 2007 employment injury.
On December 6, 2011 appellant’s attorney requested an oral hearing before an OWCP
hearing representative.
In a report dated December 14, 2011, Dr. Chu reviewed Dr. Askin’s report and disagreed
with his finding that appellant’s current condition of carpal tunnel syndrome was unrelated to the
August 14, 2007 employment injury. She found that appellant had continued brachial neuritis
due to a May 2, 1993 work injury. Dr. Chu asserted that he could not work full time or perform
his usual work duties.
Following a preliminary review, in a decision dated February 14, 2012, OWCP’s hearing
representative vacated the December 1, 2011 decision. She found that a conflict in medical
opinion arose between Dr. Askin and Dr. Chu regarding whether appellant had further residuals
of either his August 14, 2007 or 1993 employment injuries. On remand, the hearing
representative instructed OWCP to combine the 1993 and 2007 claims and amend the statement
of accepted facts to show that it had not accepted a 1995 claim for carpal tunnel syndrome. She
instructed OWCP to determine whether appellant had any residuals of either the 1993 or 2007
work injury.
On June 18, 2012 OWCP referred appellant to Dr. Gregory Maslow, a Board-certified
orthopedic surgeon, for an impartial medical examination. It asked Dr. Maslow to address
2

whether appellant had any continuing condition due to either his 1993 or 2007 employment
injuries.
In a report dated July 25, 2012, Dr. Maslow discussed appellant’s complaints of hand
pain on both sides with numbness, cramping and tingling. On examination, he found tenderness
“even to sometimes very light palpation.” Dr. Maslow found a full range of motion of the wrist
without crepitus but symptoms of pain and a negative Phalen’s test and Tinel’s sign at the wrists
and elbows. He reviewed the medical records and diagnosed multiple contusions. Dr. Maslow
stated:
“It is my opinion that there is absolutely no evidence that [appellant] suffered
injury to his wrists or hands on August 14, 2007. It is further my opinion within
reasonable medical probability, that [he] did not suffer any aggravation of
preexistent carpal tunnel syndrome on August 14, 2007. I do not see any
evidence that [he] suffered any aggravation of what had been thought to be a
preexistent cervical radiculitis problem on August 14, 2007.
“It is my opinion that [appellant] did not suffer any significant injury at all on
August 14, 2007. It is further my opinion that there is no evidence that any injury
on August 14, 2007 changed his work status, and it is my opinion that based on
today’s examination he is perfectly capable of employment as a mail handler
without any restrictions imposed by the August 14, 2007 event.”
Dr. Maslow concluded that appellant did not sustain carpal tunnel syndrome due to his
August 14, 2007 employment injury. On examination he had a negative Tinel’s sign and
Phalen’s test, no atrophy and no hypesthesia in the median nerve distribution. Dr. Maslow noted
that, while objective studies had demonstrated “severe median nerve abnormality” of the wrists,
these conditions were present prior to the August 14, 2007 incident. He stated:
“It is my opinion that [appellant] should have had a surgical release of the carpal
tunnel on both sides long ago for his complaints. Now his complaints are diffuse
and I do not feel that any definite intervention is warranted based on today’s
clinical examination.”
By decision dated August 13, 2012, OWCP terminated appellant’s compensation
effective August 13, 2012 based on its finding that Dr. Maslow’s opinion represented the weight
of the evidence and established that he had no further residuals of his employment injury.
On August 16, 2012 appellant, through his attorney, requested an oral hearing.
Following a preliminary review, by decision dated October 11, 2012, an OWCP hearing
representative vacated the August 13, 2012 decision. She determined that OWCP should have
issued another proposed termination of compensation prior to terminating compensation benefits.
On December 13, 2012 OWCP advised appellant that it proposed to terminate his
compensation and authorization for medical benefits based on the report of Dr. Maslow, the
impartial medical examiner. In a December 26, 2012 response, counsel asserted that
Dr. Maslow’s opinion was not in accordance with the statement of accepted facts. He further
noted that appellant was working limited duty at the time of his August 14, 2007 work injury.

3

On January 2, 2013 Dr. Chu submitted a progress report and diagnosed an aggravation of
bilateral carpal tunnel syndrome. In a report dated January 9, 2013, she disagreed with
Dr. Maslow’s findings, noting that there were objective findings of numbness and loss of
strength with weakness and tightness of the fingers and spasm of the trapezius muscles. Dr. Chu
stated, “[appellant] still continues to suffer from an aggravation of his underlying carpal tunnel
syndrome secondary to the fall on August 14, 2007. This fall initiated and aggravated the
myofascial pain syndrome by causing ongoing irritation on chronic involvement of multiple
cervical nerve roots.” Dr. Chu advised that appellant was unable to undergo surgery due to his
diabetes. She found that appellant could work with restrictions.
On January 14, 2013 OWCP accepted appellant’s claim for an aggravation of carpal
tunnel syndrome bilaterally. It requested that Dr. Maslow address whether he agreed with the
diagnosis and whether the condition continued. On January 31, 2013 OWCP again advised
Dr. Maslow that it had factually accepted the existence of an aggravation of carpal tunnel
syndrome and requested that he provide a supplemental opinion on whether the condition
continued and complete a work restriction evaluation.
In a work restriction evaluation dated February 9, 2013, Dr. Maslow found that appellant
had no limitations and could resume his regular employment. He indicated that another factor to
be considered in identifying an appropriate position was a “prior neck injury.”
By letter dated February 28, 2013, OWCP requested that Dr. Maslow review and
comment on Dr. Chu’s January 2 and 9, 2013 reports. On March 8, 2013 Dr. Maslow related
that it “would be extremely difficult to aggravate any preexistent carpal tunnel syndrome by
falling on the forearms.” He disagreed with Dr. Chu’s finding that appellant was disabled,
noting that his examination showed a negative Tinel’s sign and Phalen’s test.
In a decision dated March 19, 2013, OWCP terminated appellant’s compensation
effective that date after finding that the weight of the evidence established that he had no further
disability or condition due to his August 14, 2007 employment injury.
On March 22, 2013 appellant, through his attorney, requested an oral hearing. At the
hearing, held on July 17, 2013, counsel noted that appellant was a poor surgical candidate for
carpal tunnel releases due to his diabetes. He questioned Dr. Maslow’s diagnosis of multiple
contusions and asserted that it was inconsistent with the statement of accepted facts and OWCP’s
acceptance of the claim for an aggravation of bilateral carpal tunnel syndrome.
In a decision dated October 21, 2013, OWCP’s hearing representative affirmed the
March 19, 2013 decision.
On appeal, counsel contends that Dr. Maslow’s opinion is outside the statement of
accepted facts as he disagreed with OWCP’s acceptance that appellant sustained an aggravation
of carpal tunnel syndrome due to his August 14, 2007 work injury. He further notes that
Dr. Maslow did not address the fact that appellant was not performing his regular employment
duties at the time of his August 2007 injury. Counsel also indicates that Dr. Maslow’s report is
inconsistent as he found no carpal tunnel syndrome but also indicated that he should have had
carpal tunnel releases.

4

LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.2
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.3
Further, the right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.4 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.5
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.6 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 resolving the conflict, the opinion of such specialist, if
sufficiently well rationalized and based upon a proper factual background, must be given special
weight.7
OWCP’s procedure manual provides as follows:
“When the DMA [district medical adviser], second opinion specialist or referee
physician renders a medical opinion based on a SOAF [statement of accepted
facts] 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.”8
ANALYSIS
OWCP accepted that appellant sustained an aggravation of bilateral carpal tunnel
syndrome as the result of an August 14, 2007 employment injury. At the time of his injury,
appellant was working limited duty as the result of a May 2, 1993 employment injury, accepted
by OWCP for brachial neuritis and cervical strain. In a decision dated February 14, 2012, an
OWCP hearing representative determined that a conflict arose between Dr. Chu, appellant’s
attending physician, and Dr. Askin, an OWCP referral physician, regarding whether he had any
2

Elaine Sneed, 56 ECAB 373 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

3

Gewin C. Hawkins, 52 ECAB 242 (2001).

4

T.P., 58 ECAB 524 (2007); Pamela K. Guesford, 53 ECAB 727 (2002).

5

Id.

6

5 U.S.C. § 8123(a).

7

David W. Pickett, 54 ECAB 272 (2002); Barry Neutuch, 54 ECAB 313 (2003).

8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600(3)
(October 1990).

5

further employment-related disability or condition. She instructed OWCP to combine the case
records for the 1993 and 2007 injury and refer appellant for an impartial medical examiner to
determine the extent of any employment-related condition or disability due to either injury.
OWCP referred appellant to Dr. Maslow, a Board-certified orthopedic surgeon, for an
impartial medical examination.
When there exists a conflict in medical opinion and the case is referred to an impartial
medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if
sufficiently well rationalized and based upon a proper factual background, must be given special
weight.9 OWCP provided Dr. Maslow with a statement of accepted facts stating that it accepted
an aggravation of bilateral carpal tunnel syndrome due to the August 14, 2007 employment
injury. In a report dated July 25, 2012, Dr. Maslow found that appellant had a negative Phalen’s
test and Tinel’s sign at the wrists and elbows. He diagnosed multiple contusions as a result of
the August 14, 2007 employment injury. Dr. Maslow opined that appellant did not sustain an
aggravation of bilateral carpal tunnel syndrome due to his work injury on August 14, 2007. He
further noted that appellant should have undergone carpal tunnel release long ago. Dr. Maslow
advised that he could resume his usual employment. In a work restriction evaluation dated
February 9, 2013, he listed no physical limitations but noted that appellant’s previous neck injury
was a factor to be considered in finding an appropriate position.
The Board finds that the opinion of Dr. Maslow is not entitled to special weight as it is
outside of the statement of accepted facts. Dr. Maslow did not conclude that appellant had no
further disability or residuals of his aggravation of carpal tunnel syndrome but instead found that
he did not experience such an injury on August 14, 2007. In letters dated January 14 and 31,
2013, OWCP advised Dr. Maslow that it had accepted appellant’s claim for an aggravation of
bilateral carpal tunnel syndrome and requested that he address whether he agreed with the
diagnosis and whether the condition continued; however, he did not respond to OWCP’s
requests. To the extent that Dr. Maslow’s opinion is outside the framework of the statement of
accepted facts, it is based on an inaccurate factual history and insufficient to meet OWCP’s
burden of proof.10 He did not address, as requested by OWCP, whether appellant had any
continued residuals from his May 2, 1993 work injury of brachial neuritis and neck sprain.
OWCP did not indicate whether it was attempting to rescind acceptance of appellant’s
aggravation of bilateral carpal tunnel syndrome based on Dr. Maslow’s report. It did not notify
him that it was contemplating rescission or actually rescind acceptance of the aggravation of
bilateral carpal tunnel syndrome in its termination decision. OWCP must inform a claimant
correctly and accurately of the grounds on which a rejection rests so as to afford the claimant an
opportunity to meet, if possible, any defect appearing therein.11 It may not find that residuals of
an employment injury have ceased by a particular date when the evidence upon which the
decision rests tends to support that, in fact, the injury never occurred.12 Accordingly, the Board
9

See R.C., 58 ECAB 238 (2006); Darlene R. Kennedy, 57 ECAB 414 (2006).

10

See T.F., Docket No. 12-209 (issued June 18, 2012).

11

See John M. Pittman, 7 ECAB 514 (1955).

12

See T.F., Docket No. 12-209 (issued June 18, 2012); John L. Hofmann, Docket No. 04-1802 (issued
November 22, 2004).

6

finds that OWCP did not meet its burden of proof to terminate appellant’s compensation
benefits.
CONCLUSION
The Board finds that OWCP improperly terminated appellant’s compensation benefits
effective March 19, 2013 on the grounds that he had no further residuals of his August 14, 2007
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the October 21, 2013 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: May 8, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.F., Appellant
and
DEPARTMENT OF THE NAVY, FLEET
READINESS CENTER -- EAST,
Cherry Point, NC, Employer
__________________________________________

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

Docket No. 12-1420
Issued: February 4, 2013

Case Submitted on the Record

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

JURISDICTION
On June 20, 2012 appellant, through his counsel, timely appealed the May 30, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied a schedule
award. 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 the schedule award claim.2
ISSUE
The issue is whether appellant has a ratable impairment of the lower extremities
attributable to his employment-related lumbar condition.

1
2

5 U.S.C. § 8101 et seq.

The record includes evidence received after OWCP issued its May 30, 2012 final decision. As this evidence
was not part of the record when OWCP issued its May 30, 2012 decision, the Board is precluded from considering it
for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
Appellant, a 59-year-old aircraft electrician, was injured in an August 1, 2009
employment-related fall. OWCP accepted his claim for closed fracture of the right wrist,
aggravation of (lumbar) degenerative disc disease and aggravation of lumbar intervertebral disc
displacement without myelopathy. It authorized a March 28, 2011 lumbar laminectomy,
discectomy and interbody fusion at L4, 5 and S1.
On September 19, 2011 appellant filed a claim for a schedule award (Form CA-7) with
respect to his accepted back condition.3 He submitted a September 8, 2011 impairment rating
from his surgeon, Dr. Brian J. Battersby Jr.,4 who rated 33 percent whole person impairment
(WPI) due to lumbar spondylolisthesis.5
In a September 27, 2011 report, Dr. H.P. Hogshead, a district medical adviser, stated that
FECA did not permit awards for whole person spinal impairment. He noted, however, that a
schedule award could be granted for extremity impairment resulting from spinal nerve root
deficit. But in the absence of radiculopathy there was no extremity impairment. Dr. Hogshead
rated zero (0) percent impairment of both lower extremities under the A.M.A., Guides (6th ed.
2008).
On October 4, 2011 OWCP requested additional medical evidence in support of his
schedule award claim. On October 25, 2011 Dr. Battersby added an addendum to the report of
Dr. Hogshead. He commented that the medical record clearly showed persistent radicular-type
symptoms and that most back surgery patients had some type of symptoms, as an inherent risk of
spinal surgery. Dr. Battersby noted generally that appellant’s symptoms had improved, but he
still had numbness in his foot and lower extremity pain in the affected nerve distributions. He
noted that appellant could be sent for another rating.
By decision dated November 2, 2011, OWCP denied appellant’s claim for a schedule
award. It found that Dr. Battersby failed to provide clinical findings to support a firm diagnosis
of radiculopathy or provide an impairment rating of the legs under the sixth edition of the
A.M.A., Guides.
Appellant’s counsel requested a hearing which was held on March 12, 2012. He
submitted the results of a January 30, 2012 lower extremity electrodiagnostic study. At the
March 12, 2012 hearing, counsel contended that the recent lower extremity electrodiagnostic
study demonstrated the presence of radiculopathy.6 No additional impairment rating was
provided.
3

OWCP previously granted a schedule award for seven percent impairment of the right upper extremity.

4

Dr. Battersby is a Board-certified orthopedic surgeon.

5

Dr. Battersby’s 33 percent WPI rating was based on a class 4, E impairment under Table 17-4, Lumbar Spine
Regional Grid: Spine Impairments, American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) 571 (6th ed. 2008).
6

At least one aspect to the study was stated to be “consistent with lumbar-sacral radiculopathic type changes.”

2

In a May 30, 2012 decision, an OWCP hearing representative affirmed the November 2,
2011 decision. She noted receipt of the January 30, 2012 lower extremity electrodiagnostic
study, but found that the additional evidence failed to provide any information regarding
permanent impairment.
LEGAL PRECEDENT
Section 8107 of FECA 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.7 FECA,
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 A.M.A., Guides as the appropriate standard for
evaluating schedule losses.8 Effective May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2008).9
No schedule award is payable for a member, function or organ of the body that is not
specified in FECA or the implementing regulations.10 Neither, FECA nor the regulations
provide for the payment of a schedule award for the permanent loss of use of the back/spine or
the body as a whole.11 However, a schedule award is permissible where the employment-related
back condition affects the upper and/or lower extremities.12
The sixth edition of the A.M.A., Guides (2008) provides a specific methodology for
rating spinal nerve extremity impairment.13 It was designed for situations where a particular
jurisdiction, such as FECA, mandated ratings for extremities and precluded ratings for the
spine.14 The impairment is premised on evidence of radiculopathy affecting the upper and/or
lower extremities.15

7

For a total or 100 percent loss of use of a leg, an employee shall receive 288 weeks’ compensation. 5 U.S.C.
§ 8107(c)(2).
8

20 C.F.R. § 10.404.

9

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability
Claims, Chapter 2.808.6a (January 2010).
10

W.C., 59 ECAB 372, 374-75 (2008); Anna V. Burke, 57 ECAB 521, 523-24 (2006).

11

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, supra note 9, Chapter 2.808.6a(3).

13

Federal (FECA) Procedure Manual, Part 3 -- Medical, supra note 9, Chapter 3.700, Exhibit 4.

14

Id.

15

Id.

3

ANALYSIS
Appellant’s surgeon, Dr. Battersby, submitted a September 8, 2011 impairment rating
finding 33 percent whole person impairment of the spine due to lumbar spondylolisthesis.16
Dr. Hogshead correctly noted that FECA did not permit awards for whole person spinal
impairment. He noted that a schedule award could be granted for lower extremity impairment
resulting from spinal nerve root deficit, but in the absence of radiculopathy there was no
extremity impairment. Dr. Hogshead found zero (0) percent impairment of both lower
extremities under the A.M.A., Guides (6th ed. 2008).
On October 4, 2011 OWCP requested that appellant submit additional medical evidence
from his physician in support of his schedule award claim. It provided instructions for his
physician pertaining to the methodology for rating spinal nerve extremity impairment under the
A.M.A., Guides (6th ed. 2008).
On October 25, 2011 Dr. Battersby stated generally that the medical record clearly
showed persistent radicular-type symptoms. He did not refer to any specific physical findings or
examination of appellant or provide an impairment rating of either lower extremity based on the
accepted lumbar condition. Appellant’s counsel submitted the results of a January 30, 2012
lower extremity electrodiagnostic study; but this evidence also failed to comply with OWCP’s
October 4, 2011 request for an impairment rating under the A.M.A., Guides (6th ed. 2008).
The Board finds that appellant failed to submit an impairment rating of his lower
extremities based on the A.M.A., Guides. The Board finds that OWCP properly denied his claim
for a schedule award.
CONCLUSION
Appellant failed to establish that he has a ratable impairment of the lower extremities due
to his employment-related lumbar condition.17

16

Table 17-4, Lumbar Spine Regional Grid: Spine Impairments, A.M.A., Guides 571 (6th ed. 2008).

17

Appellant may request a schedule award or increased schedule award based on evidence of a new exposure or
medical evidence showing progression of an employment-related condition resulting in permanent impairment or
increased impairment.

4

ORDER
IT IS HEREBY ORDERED THAT the May 30, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 4, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.D., Appellant
and
NATIONAL OCEANIC & ATMOSPHERIC
ADMINISTRATION, NATIONAL FISHERIES
SERVICE, ALASKAN OBSERVERS, INC.,
Seattle, WA, Employer
__________________________________________

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

Docket No. 17-0402
Issued: June 12, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 13, 2016 appellant filed a timely appeal from a September 13, 2016 merit
decision and a November 25, 2016 nonmerit 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 to consider the merits of the case.2
ISSUES
The issues are: (1) whether appellant established an injury causally related to the
accepted July 13, 2016 employment incident; and (2) whether OWCP properly denied
appellant’s request for reconsideration of the merits of her claim under 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after the November 25, 2016 decision was issued.
The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision.
Therefore, the Board lacks jurisdiction to review this additional evidence. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On July 28, 2016 appellant, then a 30-year-old ground fish observer who worked aboard
the Northern Leader in the Bering Sea, filed a traumatic injury claim (Form CA-1) alleging that
on July 13, 2016 she performed heavy lifting duties which caused blood clots in her right arm.
By letter dated August 9, 2016, OWCP informed appellant that further factual and
medical evidence was necessary to support her claim. Appellant was afforded 30 days to submit
the additional evidence.
In a July 22, 2016 report, Dr. Michael R. Go, a Board-certified surgeon, related that he
examined appellant for right upper extremity deep vein thrombosis (DVT). He noted that on
July 13, 2016, appellant had right upper extremity redness, pain, and swelling, and was
diagnosed with DVT. Dr. Go indicated that appellant started anticoagulation treatment on
July 18, 2016, with improvement of her symptoms. In a July 26, 2016 cardiovascular
catheterization report, he explained that appellant had undergone right subclavian angiography,
ultrasound guided access, superior vena caval angiogram, and placement of a Lysis catheter. In a
July 27, 2016 report, Dr. Go indicated that he performed a thrombolysis check, a right upper
extremity venogram, and a right subclavian vein angioplasty. He noted that the procedures were
successful and that there was no residual clot. In a separate July 27, 2016 note, Dr. Go certified
that appellant required inpatient services due to DVT requiring thrombolysis. In a discharge
summary dated July 27, 2016, Dr. Go indicated that appellant had a strong family history of
venous thromboembolism, was admitted to the hospital on July 26, 2016, and underwent a
procedure on July 27, 2016 with successful lysis of the clot and balloon dilation of the
subclavian vein stenosis, consistent with thoracic outlet syndrome. The report indicated that
appellant tolerated the procedure well and there were no complications. Appellant was
discharged home.
In a July 27, 2016 x-ray report, Dr. Jason Payne, a Board-certified surgeon, interpreted an
x-ray of appellant’s cervical spine as an unremarkable study.
In an August 1, 2016 report, Sara Sargent, a nurse practitioner, noted that appellant was
treated by Dr. Go. She listed appellant’s diagnoses as brachial plexus disorders (thoracic outlet
syndrome) and acute embolism and thrombosis of deep veins of unspecified upper extremity.
Ms. Sargent noted that, while appellant had not had a prior DVT, her mother had DVT.
In an August 15, 2016 report, Dr. Go related that appellant had a strong family history of
clotting and had experienced her first unprovoked right upper extremity DVT. The report noted
an element of thoracic outlet syndrome, and concluded that it was likely that appellant’s
thrombophilia and the type of manual labor that she performed at work were contributing causes.
Dr. Go noted that first rib resection was planned for August 17, 2016.
In a decision dated September 13, 2016, OWCP denied appellant’s claim. It determined
that, although appellant had established that the employment incident occurred as alleged, and
that she had established a medical diagnosis, it denied her claim because she had not established
causal relationship between the diagnosed medical condition and the accepted employment
incident.

2

On October 2, 2016 appellant requested reconsideration. In support thereof, she
submitted a September 30, 2016 note by Erin R. Zahorujko, a physician assistant for Dr. Go.
Ms. Zahorujko indicated that appellant was seen initially on July 22, 2015 with significant pain,
redness and swelling to the upper right extremity which began on July 13, 2016. She noted that
appellant was diagnosed with DVT and started on anticoagulation on July 18, 2016.
Ms. Zahorujko noted that this occurred while working on a fishing boat with labor duties that
required a significant amount of heavy lifting and overhead activities. She indicated that
appellant was diagnosed with right Paget-Schroetter disease and underwent right upper extremity
venogram with initiation of thrombolysis on July 26, 2016, and ultimately came to the right first
rib resection August 17, 2016. Ms. Zahorujko opined that the original DVT was presumed to
have been provoked by the extensive labor duties of the use of her right upper extremity.
By decision dated November 25, 2016, OWCP denied reconsideration as it determined
that the evidence of record was insufficient to warrant merit review of the September 13, 2016
decision.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 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 timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as
alleged, and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury. 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
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.5
In order to meet his or her burden of proof to establish fact of injury in the performance of duty,
an employee must submit sufficient evidence to establish that he or she actually experienced the
employment injury or exposure at the time, place, and in the manner alleged.6
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.7 The medical evidence required to
3

Supra note 1.

4

Jussara L. Arcanjo, 55 ECAB 281, 283 (2004).

5

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (August 2012).

6

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

7

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

3

establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.8
ANALYSIS -- ISSUE 1
OWCP accepted that appellant had established that the July 13, 2016 employment
incident occurred as alleged on July 13, 2016 and that she had established a medical condition.
However, it denied appellant’s claim as she failed to submit medical evidence in support of
causal relationship between the July 13, 2016 employment incident and her DVT.
The Board finds that the medical evidence of record is insufficient to establish causal
relationship between the accepted employment incident and the accepted medical diagnosis.
Dr. Go initially treated appellant for her DVT, but he did not provide a rationalized
medical explanation as to how appellant’s accepted employment incident, of heavy lifting on
July 13 2016, caused her blood clot condition. In the reports written in July 2016, Dr. Go did not
offer any opinion with regard to causation of appellant’s DVT. Medical reports that do not
provide an opinion on causal relationship are of little probative value.9
In his August 15, 2016 report, Dr. Go noted that appellant had experienced her first
unprovoked right upper extremity DVT. He opined that appellant’s thrombophilia and the type
of manual labor she performed at work were contributing causes. An opinion from a physician
on causal relationship is insufficient to establish the claim if it does not explain how or why the
accepted incident caused or aggravated a diagnosed condition.10 This is especially important in
this case as Dr. Go’s report indicated a family history of clotting. Lacking medical rationale on
the issue of causal relationship, Dr. Go’s report is of limited probative value and thus insufficient
to establish that appellant sustained an employment-related injury causally related to the
accepted July 13, 2016 employment incident.11
The Board further notes that the diagnostic study by Dr. Payne does not establish causal
relationship as he simply interpreted an unremarkable x-ray study of appellant’s cervical spine.
As Dr. Payne never discussed causation nor provided an opinion with regard to a positive
medical diagnosis, his report is of limited probative value.12
8

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

9

See L.M., Docket No. 14-973 (issued August 25, 2014).

10

A.N., Docket No. 17-0061 (issued April 13, 2017).

11

Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB 332 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
12

Id.

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OWCP also received an August 1, 2016 report from a nurse practitioner. Reports by the
nurse practitioner have no probative value as nurses are not considered physicians as defined
under FECA.13
An award of compensation may not be based on surmise, conjecture, speculation, or on
the employee’s own belief of causal relation.14 Without a detailed medical report explaining
how and why appellant’s DVT was caused by the employment incident of July 13, 2016,
appellant has not met her burden of proof.15
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.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,16
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.17 When a claimant fails to meet
one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.18
ANALYSIS -- ISSUE 2
OWCP properly reviewed appellant’s request for reconsideration under the appropriate
criteria for timely filed reconsideration petitions.
In her request for reconsideration, appellant did not show that OWCP erroneously applied
or interpreted a specific point of law, nor did she advance a relevant legal argument not
previously considered by OWCP.
Furthermore, appellant did not submit relevant and pertinent new evidence not previously
considered by OWCP. The underlying issue in this case is whether appellant has submitted
13

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); L.D., 59
ECAB 648 (2008) (nurse practitioners are not considered physicians as defined under FECA). See also W.C.,
Docket No. 15-1280 issued November 13, 2015); R.W., Docket No. 14-1890 (issued February 11, 2015).
14

D.D., 57 ECAB 734 (2006).

15

G.W., Docket No. 16-0032 (issued August 15, 2016).

16

5 U.S.C. § 8128(a).

17

20 C.F.R. § 10.606(b)(3).

18

Id. at § 10.608(b).

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sufficient evidence to establish causal relationship. This is a medical issue. In support of her
reconsideration request, appellant submitted a new note by Dr. Go’s physician assistant.
Physician assistants are not considered physicians as defined under FECA.19 Because this report
has no probative value, it does not constitute relevant and pertinent new evidence.20
Accordingly, as appellant has not met any of the criteria warranting reopening her claim
for further merit review, pursuant to section 8128(a) of FECA and 20 C.F.R. § 10.608, OWCP
properly denied appellant’s request for reconsideration of the merits of her claim.
CONCLUSION
The Board finds that appellant has not established an injury causally related to the
accepted July 13, 2016 employment incident. The Board further finds that OWCP properly
denied appellant’s request for reconsideration of the merits of her claim under 5 U.S.C.
§ 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 25 and September 13, 2016 are affirmed.
Issued: June 12, 2017
Washington, DC

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

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

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board
19

See 5 U.S.C. § 8101(2).

20

R.M., Docket No. 16-1845 (issued March 6, 2017); see also David P. Sawchuk, 57 ECAB 316, 320
n.11 (2006).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Omaha, NE, Employer
__________________________________________

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

Docket No. 11-940
Issued: October 18, 2011

Case Submitted on the Record

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

JURISDICTION
On February 25, 2011 appellant filed a timely appeal from a February 16, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over this nonmerit decision. Because more than 180 days elapsed between the most
recent merit decision dated August 27, 2010 and the filing of this appeal, the Board lacks
jurisdiction to review the merits of this claim.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s claim for merit
review under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
Appellant, then a 41-year-old laborer custodian, filed a claim for traumatic injury alleging
that on February 5, 2010 he sustained amputation of his left index finger when a snow blower
auger came in contact with his finger. OWCP accepted his claim for amputation of the left
finger.
Records from the Immanuel Medical Center dated February 5, 2010 indicate that
appellant was treated for traumatic amputation of the terminal tuft of the distal phlanx of the left
middle finger.
In a medical report dated May 13, 2010, Dr. Jack A. McCarthy, a Board-certified hand
surgeon, stated that appellant had reached maximum medical improvement. Pursuant to the
American Medical Association, Guides to Evaluation of Permanent Impairment (sixth edition);
he calculated that appellant had a 15 percent permanent impairment to his left long finger
secondary to his amputation.
Appellant filed a claim for a schedule award on May 25, 2010.
OWCP’s district medical adviser (DMA) reviewed Dr. McCarthy’s report on August 22,
2010 and concurred that appellant had 15 percent impairment of the left middle finger. It
awarded appellant 4.5 weeks of compensation in a decision dated August 27, 2010 for 15 percent
loss of the left middle finger.
On February 8, 2011 appellant requested reconsideration of the schedule award. In
support of this request, he argued that his finger was completely amputated, that he had
sensitivity over the tip of his finger because he only had three to four millimeters (mm) of nail
bed left, that he had potential nail problems such as infection, and that he felt like a social outcast
and had problems bonding with his family because of his finger amputation. Appellant
submitted no additional evidence in support of his reconsideration request.
On February 16, 2011 OWCP denied merit review on the grounds that appellant did not
show that it erroneously applied or interpreted a point of law, failed to advance a point of law or
fact not previously considered, and had not submitted relevant and pertinent new evidence not
previously considered by OWCP.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2
OWCP’s regulations at 20 C.F.R. § 10.606(b) provide that a claimant may obtain review of the
merits of his or her claim by:
(1) showing that OWCP erroneously applied or interpreted a point of law;

2

Section 8128 of FECA provides: “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).

2

(2) advancing a relevant legal argument not previously considered by OWCP; or
(3) constituting relevant and pertinent evidence not previously considered by
OWCP.
Section 10.608(b) provides that when an application for review of the merits of a claim
does not meet at least one of these three requirements OWCP will deny the application for
review without reviewing the merits of the claim.3
ANALYSIS
In support of his February 8, 2010 request for reconsideration, appellant failed to show
that OWCP erroneously applied or interpreted a point of law and he did not submit any new
evidence not previously considered by OWCP.
Appellant argued that he was entitled to a greater schedule award for the amputation of
his finger as he had potential nail problems, sensitivity over the tip of his finger and because he
felt like an outcast with his family and friends, because of his deformity. The degree of
permanent impairment appellant has sustained is a medical issue. Appellant must submit
medical evidence to support an additional schedule award.4 His own perceptions are not a basis
for a schedule award. The statement appellant submitted on February 8, 2010 did not include
medical evidence; therefore, the statement has no probative value or relevance to the schedule
award decision.
Regarding appellant’s claim of social isolation, unlike a tort action, FECA does not allow
an award for pain and suffering.5 His arguments in support of his request for reconsideration
therefore do not constitute relevant legal arguments, not previously considered.
Appellant did not meet the requirements of 20 C.F.R. § 10.606(b), and accordingly his
request to reopen his case for further reconsideration on its merits must be denied in accordance
with 20 C.F.R. § 10.608(b).
CONCLUSION
The Board finds that the refusal of OWCP properly refund to reopen appellant’s case for
a further review on its merits pursuant to 5 U.S.C. § 8128(a).6

3

20 C.F.R. § 10.608(b).

4

See Annette M. Dent, 44 ECAB 403 (1993).

5

See John Soderman, 6 ECAB 322 (1953).

6

A claimant retains the right to file for a schedule award or increased schedule award, at any time, based on new
exposure or on medical evidence indicating progression of an employment-related condition, resulting in permanent
impairment or increased impairment.

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 16, 2010 is affirmed.
Issued: October 18, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4