United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS LOGISTICS BASE, Albany, GA,
Employer
__________________________________________

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

Docket No. 13-1953
Issued: December 11, 2013

Case Submitted on the Record

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

JURISDICTION
On August 22, 2013 appellant filed a timely appeal from a May 10, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for a
review of the written record and an August 9, 2013 merit decision denying modification of its
termination of his medical 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 and over the May 10, 2013 nonmerit decision.
ISSUES
The issues are: (1) whether OWCP properly denied appellant’s request for a review of
the written record as untimely under 5 U.S.C. § 8124; (2) whether OWCP properly terminated
his authorization for medical benefits effective February 13, 2013 on the grounds that he had no
residuals of his August 6, 2001 employment injury; and (3) whether appellant established the
need for further medical treatment after February 13, 2013 due to his accepted work injury.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. By decision dated December 30, 2009,
the Board affirmed the June 19, August 20 and October 15, 2008 nonmerit decisions denying his
requests for a review of the written record by an OWCP hearing representative and a July 16,
2008 nonmerit decision denying his request for reconsideration as untimely and insufficient to
establish clear evidence of error.2 The facts as set forth in the prior appeal are hereby
incorporated by reference. The facts relevant to the instant appeal are set forth.
OWCP accepted that on August 6, 2001 appellant, then a 46-year-old heavy mobile
mechanic, sustained a lumbar strain in the performance of duty. On April 29, 2002 Dr. J.
Kenneth Burkus, a Board-certified orthopedic surgeon, released appellant to return to work
without low back restrictions.3 He noted that appellant had lumbar spondylosis and stenosis of a
long-standing nature.
On October 5, 2012 OWCP requested updated medical information regarding appellant
from Dr. Jeffrey A. Fried, an attending Board-certified orthopedic surgeon.4 In a report dated
October 10, 2012, Dr. Fried noted that appellant experienced a work injury on August 6, 2001
and “still has lumbar sprain from his back sprain and lumbar strain. In addition, [appellant] was
found to have a spondylolisthesis of the lumbar spine.” He opined that appellant required further
medical treatment and a possible spinal fusion in the future. Dr. Fried stated, “The
spondylolisthesis was more likely than not was a preexisting quiescent condition which was
aggravated and made worse by his injury and his symptoms have not returned to his prior
condition. The spondylolisthesis can contribute to the delayed healing of his lumbar strain.”
OWCP referred appellant to Dr. Douglas Hein, a Board-certified orthopedic surgeon, for
a second opinion examination. In a report dated December 5, 2012, Dr. Hein discussed
appellant’s history of injury on August 6, 2001 and reviewed the medical records. On
examination he found intact strength and sensation of the lower extremities without atrophy and
full thoracolumbar motion. Dr. Hein determined that appellant’s 2001 lumbar strain had “fully
resolved.” He opined that appellant had L4-5 and L5-S1 degenerative changes that antedated the
injury and that the spondylolisthesis developed at L4-5 as a normal progression of the disease
process.

2

Docket No. 09-321 (issued December 30, 2009).

3

In decisions dated August 19, 2002 and January 23, 2003, OWCP denied appellant’s claim for a schedule award.
In a decision dated June 19, 2008, it denied his request for a review of the written record as he had previously
received a review of the written record. On July 16, 2008 OWCP denied appellant’s request for reconsideration of
its January 23, 2003 decision as untimely and insufficient to establish clear evidence of error. In decisions dated
August 20 and October 15, 2008, it denied his requests for a review of the written record. By decision dated
September 21, 2012, OWCP denied appellant’s request for reconsideration of its August 19, 2002 decision as it was
untimely and did not show clear evidence of error.
4

By decision dated November 6, 2012, OWCP denied appellant’s request for further physical therapy due to his
August 6, 2001 work injury. In a decision dated January 31, 2013, an OWCP hearing representative affirmed the
November 6, 2012 decision.

2

On January 10, 2013 OWCP notified appellant of its proposed termination of his
authorization for medical benefits for the accepted lumbar strain. By decision dated February 13,
2013, it terminated his medical benefits. OWCP found that the opinion of Dr. Hein represented
the weight of the medical opinion and established that he had no further residuals of his accepted
lumbar strain.
On April 15, 2013 appellant requested both reconsideration and a review of the written
record. In a decision dated May 10, 2013, OWCP denied his request for a review of the written
record as untimely.
On May 14, 2013 appellant requested reconsideration. He submitted medical evidence
dated 2001 to 2011. In a report dated January 16, 2013, Dr. Fried stated:
“[Appellant] had a work[-]related injury on August 6, 2001, which was a sprain in
the lower back. This has not resolved and he has instability of the back resulting
in spondylolisthesis at L5-S1. [Appellant’s] condition has progressed and he
eventually may need a fusion of the lumbar spine. His sprain in the lumbar spine
has not resolved.”
In a progress report dated January 16, 2013, Dr. Fried diagnosed multiple conditions
including acquired spondylolisthesis, cervical disc displacement, right carpal tunnel syndrome
and right shoulder joint pain.
By decision dated August 9, 2013, OWCP denied modification of its February 13, 2013
decision.
LEGAL PRECEDENT -- ISSUE 1
Section 8124(b) of FECA provides that a claimant for compensation not satisfied with a
decision of the Secretary is entitled, on request made within 30 days after the date of the issuance
of the decision, to a hearing on his or her claim before a representative of the Secretary.5 Section
10.615 of the federal regulations implementing this section of FECA provides that a claimant
shall be afforded a choice of an oral hearing or a review of the written record.6 The request must
be sent within 30 days (as determined by postmark or other carrier’s date marking) of the date of
the decision for which a hearing is sought.7 A claimant is entitled to a hearing or review of the
written record as a matter of right if the request is filed within 30 days.8

5

5 U.S.C. § 8124(b)(1).

6

20 C.F.R. § 10.615.

7

Id. at § 10.616(a).

8

See Leona B. Jacobs, 55 ECAB 753 (2004).

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While a claimant may not be entitled to a hearing or review of the written record as a
matter of right if the request is untimely, OWCP has the discretionary authority to grant the
request and must properly exercise such discretion.9
ANALYSIS -- ISSUE 1
OWCP issued a decision on February 13, 2013 terminating appellant’s entitlement to
medical benefits. Appellant requested a review of the written record by letter dated and
postmarked April 15, 2013. OWCP denied the request as untimely by decision dated
May 10, 2013. As appellant’s request for a review of the written record was dated April 15,
2013, more than 30 days after OWCP issued its February 13, 2013 decision, he was not entitled
to a hearing as a matter of right.
OWCP has the discretionary power to grant a hearing or review of the written record
when a claimant is not entitled to a hearing or review as a matter or right.10 It properly exercised
its discretion by stating that it had considered the matter in relation to the issue involved and
denied appellant’s request for a review of the written record on the basis that the case could be
pursued by submitting additional evidence to OWCP supporting that he had continued residuals
of his August 6, 2001 employment injury with a reconsideration request. The Board has held
that the only limitation on OWCP’s discretionary authority is reasonableness. An abuse of
discretion is generally shown through proof of manifest error, clearly unreasonable exercise of
judgment or actions taken which are contrary to both logic and probable deduction from
established facts.11 The evidence of record does not establish that OWCP committed any action
in connection with its denial of appellant’s request for a review of the written record which could
be found to be an abuse of discretion. For these reasons, it properly denied his request for a
review of the written record as untimely under section 8124 of FECA.
LEGAL PRECEDENT -- ISSUE 2
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.12 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.13 Further, the right to medical benefits for an accepted condition is not limited to
the period of entitlement for disability compensation.14 To terminate authorization for medical
9

20 C.F.R. § 10.616(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the
Written Record, Chapter 2.1601.4(a) (October 2011).
10

Afegalai L. Boone, 53 ECAB 533 (2002).

11

See André Thyratron, 54 ECAB 257 (2002).

12

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

13

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

14

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

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treatment, OWCP must establish that appellant no longer has residuals of an employment-related
condition which require further medical treatment.15
ANALYSIS -- ISSUE 2
The issue is whether OWCP met its burden of proof to terminate appellant’s entitlement
to medical benefits for his accepted lumbar strain.
OWCP accepted that appellant sustained lumbar strain due to an August 6, 2001
employment injury. Appellant was released to return to work on April 29, 2002 without
restrictions. OWCP continued to pay medical benefits.
In response to a request for updated medical information on October 10, 2012 Dr. Fried
discussed appellant’s history of an August 6, 2001 employment injury. He found that appellant
continued to experience a lumbar sprain and strain and spondylolisthesis of the lumbar spine.
Dr. Fried asserted that appellant had spondylolisthesis that was probably a preexisting condition
aggravated by his injury and that could have “delayed healing of his lumbar strain.” He,
however, did not provide findings on examination or explain why appellant continued to
experience lumbar sprain 10 years after his work injury other than to speculate that
spondylolisthesis may have delayed healing. Dr. Fried did not address the reports of appellant’s
previous attending physician, Dr. Burkus, who released appellant to return to unrestricted duty
on April 29, 2002. Medical opinions that are speculative or equivocal in character are of
diminished probative value.16 Further, OWCP has not accepted spondylolisthesis as employment
related. Where appellant claims that a condition not accepted or approved by OWCP was due to
his employment injury, he bears the burden of proof to establish that the condition is causally
related to the employment injury through the submission of rationalized medical evidence.17
Dr. Fried did not provide sufficient rationale for his opinion that the work injury caused an
aggravation of preexisting spondylolisthesis and thus his opinion is of little probative value.18
OWCP referred appellant to Dr. Hein for a second opinion examination. Dr. Hein
determined that appellant had no residuals of his accepted employment injury. In a report dated
December 5, 2012, he reviewed the history of injury and listed detailed findings on physical
examination. Dr. Hein found full strength, motion and sensation of the lower extremities on
examination and no atrophy. He concluded that appellant’s lumbar strain had resolved and that
his spondylolisthesis was a progression of preexisting degenerative disc disease. Dr. Hein
provided a thorough review of the factual and medical background and accurately summarized
the relevant medical evidence. Moreover, he provided detailed findings on examination and
reached conclusions regarding appellant’s condition which comported with his findings.19
15

Id.

16

D.D., 57 ECAB 710 (2006).

17

JaJa K. Asaramo, 55 ECAB 200, 204 (2004).

18

Willa M. Frazier, 55 ECAB 379 (2004); Jimmy H. Duckett, 52 ECAB 332 (2001).

19

See Pamela K. Guesford, supra note 14.

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OWCP, therefore, properly found that Dr. Hein’s opinion represented the weight of the evidence
and established that appellant had no need for further medical treatment as of February 13, 2013.
LEGAL PRECEDENT -- ISSUE 3
Once OWCP met its burden of proof to terminate appellant’s authorization for medical
benefits, the burden shifted to him to establish that he had a need for further medical treatment
after that date related to his accepted injury.20 To establish a causal relationship between the
condition as well as any attendant disability claimed and the employment injury, an employee
must submit rationalized medical evidence based on a complete medical and factual background,
supporting such a causal relationship.21
ANALYSIS -- ISSUE 3
Following OWCP’s termination of his medical benefits, appellant submitted January 16,
2013 reports from Dr. Fried, who reiterated that appellant’s work-related back strain had not
resolved. Dr. Fried stated that appellant had spondylolisthesis at L5-S1 and may in the future
require a fusion. He, however, provided no additional rationale for his stated conclusion that
appellant had further residuals of his accepted condition. Medical conclusions unsupported by
rationale are of diminished probative value.22 As noted, OWCP has not accepted the claim for
spondylolisthesis. Consequently, appellant has not established that he required further medical
treatment for his accepted lumbar strain after February 13, 2013.
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 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for a review of the
written record as untimely under section 8124. The Board further finds that OWCP properly
terminated his authorization for medical benefits effective February 13, 2013 on the grounds that
he had no residuals of his August 6, 2001 employment injury and that he has not established the
need for further medical treatment after February 13, 2013 due to his accepted work injury.

20

Manual Gill, 52 ECAB 282 (2001).

21

Id.

22

Jacquelyn L. Oliver, 48 ECAB 232 (1996).

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ORDER
IT IS HEREBY ORDERED THAT the August 9 and May 10, 2013 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: December 11, 2013
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.N., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Southeastern, PA,
Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1923
Issued: April 17, 2018

Case Submitted on the Record

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

JURISDICTION
On September 12, 2017 appellant, through counsel, filed a timely appeal from a May 18,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has more than 12 percent permanent impairment of her left
upper extremity and 6 percent permanent impairment of her right upper extremity, for which she
previously received schedule awards.
On appeal counsel argues that the impartial medical examiner failed to consider the range
of motion (ROM) method in calculating appellant’s bilateral upper extremity permanent
impairment.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts of the case as presented in the
Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.
On June 13, 2007 appellant, then a 58-year-old clerk, filed an occupational disease claim
(Form CA-2) alleging that she developed bilateral carpal tunnel syndrome and tendinitis due to
repetitive work duties of sweeping mail and picking up magazines and parcels.4 On July 18, 2008
OWCP accepted the claim for bilateral carpal tunnel syndrome and authorized carpal tunnel release
surgery, which were performed on April 24, 2008 for the left wrist and June 4, 2008 for the right
wrist.5 It paid appellant wage-loss compensation on the supplemental rolls commencing April 25,
2008 and on the periodic rolls commencing July 6, 2008.
By decision dated November 18, 2009, OWCP granted appellant a schedule award for two
percent permanent impairment of each upper extremity. By decision dated June 23, 2010, it
granted him a schedule award for an additional six percent permanent impairment of the left arm,
for a total eight percent left upper extremity permanent impairment, and an additional four percent
permanent impairment of the right arm, for a total of six percent right upper extremity permanent
impairment. By decision dated March 5, 2012, OWCP granted appellant a schedule award for an
additional 2 percent permanent impairment of the left arm, for a total of 10 percent the left upper
extremity permanent impairment. Appellant subsequently requested an additional schedule award.
By decision dated May 1, 2013, OWCP denied appellant’s claim for an additional schedule
award. On November 29, 2013 an OWCP hearing representative affirmed the May 12, 2013
decision. By decision dated January 8, 2014, OWCP again denied appellant’s request for an
additional schedule award.
3

Docket No.14-0937 (issued October 20, 2014).

4

Appellant has a prior occupational disease claim (Form CA-2), in which OWCP accepted that she sustained left
shoulder calcific tendinitis with rotator cuff impingement commencing November 1, 2004 due to her repetitive work
duties of sweeping mail and picking up magazines and parcels. OWCP assigned that claim File No. xxxxxx627.
Appellant underwent authorized left shoulder arthroscopic surgery on February 14, 2006. OWCP File No xxxxxx627
has been administratively combined with the present claim, OWCP File No. xxxxxx886, with File No. xxxxx886
serving as the master file.
5

Appellant retired from the employing establishment, effective February 1, 2013.

2

On March 18, 2014 appellant appealed to the Board. By decision dated October 20, 2014,
the Board set aside OWCP’s November 29, 2013 and January 8, 2014 decisions.6 The Board found
that there remained an unresolved conflict in the medical opinion evidence between
Dr. David Weiss, appellant’s treating osteopathic physician, and OWCP’s second opinion
physician, Dr. Smith, a Board-certified orthopedic surgeon. The Board instructed OWCP to refer
appellant to an impartial medical examiner for a reasoned medical opinion with respect to
appellant’s employment-related permanent impairment of the upper extremities under the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides),7 as well as an opinion regarding the proper date of MMI. The Board further
instructed OWCP to issue an appropriate decision after such further development of the evidence
as necessary.
On November 13, 2014 OWCP referred appellant to Dr. Evan Kovalsky, a Board-certified
orthopedic surgeon, to resolve the conflict in the medical opinion.
In a December 18, 2014 report, Dr. Kovalsky diagnosed bilateral carpal tunnel syndrome,
left shoulder calcific tendinitis, and left shoulder impingement, based upon a review of the medical
evidence, statement of accepted facts (SOAF), and physical examination. Using Table 15-5 and
the diagnosis of left shoulder impingement, he found appellant had two percent left shoulder
permanent impairment. Next, Dr. Kovalsky found six percent bilateral upper extremity permanent
impairment based on the diagnosis of bilateral wrist neuropathy compression. He noted his
agreement with Dr. Smith’s impairment rating.
By decision dated March 12, 2015, OWCP granted appellant an additional schedule award
for 2 percent permanent impairment of her left upper extremity for her shoulder condition, for a
total 12 percent left upper extremity permanent impairment.
By decision dated March 31, 2015, OWCP denied appellant’s claim for an additional
schedule award for her bilateral carpal tunnel syndrome. It found that the medical evidence of
record was insufficient to warrant additional upper extremity impairment. OWCP noted that
appellant’s final right upper extremity permanent impairment rating was three percent, which was
less than the six percent previously awarded.
On April 7, 2015 counsel requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review. On May 18, 2015 appellant requested review of the written
record in lieu of an oral hearing.
In a letter dated December 22, 2015, OWCP requested that Dr. Kovalsky provide
clarification regarding the score he used for history citing page 433 of the A.M.A., Guides.

6

Supra note 3.

7

A.M.A., Guides (6th ed. 2009).

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Dr. Kovalsky responded on January 15, 2016 that the necessary rationale had been
provided in his report and he attached the worksheets used in determining appellant’s permanent
impairment.
In a February 23, 2016 report, a district medical adviser (DMA) reviewed Dr. Kovalsky’s
report and the medical evidence of record and determined that appellant had five percent left upper
extremity permanent impairment and three percent right upper extremity permanent impairment.
By decision dated April 5, 2016, OWCP denied appellant’s claim for an additional
schedule award, finding that the evidence of record established that she had 8 percent left upper
extremity permanent impairment, which was less than the 12 percent previously awarded, and 3
percent right upper extremity permanent impairment, which was less than the 6 percent previously
awarded.
In a letter dated April 11, 2016, appellant, through counsel, requested an oral hearing
before a representative of OWCP’s Branch of Hearings and Review. The request was subsequently
converted to a request for review of the written record.
By decision dated August 15, 2016, the hearing representative set aside the April 5, 2016
decision as he found the conflict in the medical opinion evidence regarding appellant’s permanent
impairment had not been resolved. He remanded the case to OWCP to obtain further clarification
from Dr. Kovalsky. If clarification was not provided, OWCP was instructed to refer appellant for
a new impartial medical examination.
On remand OWCP referred appellant to Dr. Richard Mandel, a Board-certified orthopedic
surgeon, to resolve the conflict in the medical opinion.
In a September 28, 2016 report, Dr. Mandel, based upon a review of the medical evidence,
SOAF, and physical examination, calculated four percent left upper extremity permanent
impairment and three percent right upper extremity permanent impairment. A physical
examination revealed limited bilateral shoulder ROM, normal muscle bulk mass and negative
Tinel’s sign. Dr. Mandel used the diagnosis-based method (DBI) to determine appellant’s
permanent impairment for the conditions of bilateral carpal tunnel syndrome and left shoulder
tendinitis. Using Table 15-23 of the A.M.A., Guides, he assigned a grade modifier of 1 for test
findings, a grade modifier of 0 for physical examination findings, which resulted in a three percent
permanent impairment for each upper extremity for carpal tunnel syndrome. Next, Dr. Mandel
used Table 15-5 and assigned a class 1 for her left shoulder condition of calcific tendinitis and
impingement. He assigned a grade modifier of 0 for physical examination and a grade modifier
of 1 for clinical studies based upon a September 7, 2005 magnetic resonance imaging scan.
Applying the net adjustment formula resulted in a minus 1, resulting in a class 0 or grade C,
resulting in one percent left shoulder permanent impairment. Combining the one percent left
shoulder permanent impairment and the three percent permanent impairment for left carpal tunnel,
resulted in four percent left upper extremity permanent impairment.
On October 14, 2016 a DMA reviewed Dr. Mandel’s impairment rating and concurred with
his rating of four percent left upper extremity permanent impairment.
4

By decision dated October 18, 2016, OWCP denied appellant’s claim for an additional
schedule award.
On October 25, 2016 counsel requested an oral hearing before an OWCP hearing
representative, which was held on February 28, 2017.
In a January 10, 2017 report, Dr. Weiss provided an updated impairment rating. ROM of
the left shoulder included 90 degrees elevation, 90 degrees abduction, 65 degrees cross over
adduction, 75 degrees external rotation, and 70 degrees internal rotation. Dr. Weiss noted positive
Hawkins’ impingement sign and O’Brien’s test. He determined that appellant had 9 percent right
upper extremity permanent impairment and 17 percent left upper extremity permanent impairment
using Table 15-7 at 406, Table 15-23 at 449, Table 15-34 at 377, and Table 15-36 at 477 of the
A.M.A., Guides. Dr. Weiss used ROM to determine appellant’s permanent impairment due to
accepted left shoulder condition and the table for entrapment neuropathy to determine appellant’s
permanent impairment for her accepted bilateral carpal tunnel syndrome. Using Table 15-7 at 406
and Table 15-23 at 449 he assigned a grade modifier of two for test findings, a grade modifier of
three for history and physical examination, a functional history adjustment/QuickDASH
(Disabilities of the Arm, Shoulder, and Hand) of 90, resulting in a total of nine percent permanent
impairment of each upper extremity. Using Table 15-34 at 475 Dr. Weiss found a three percent
permanent impairment due to 90 degrees flexion, a three percent permanent impairment due to 90
degrees abduction, and two percent permanent impairment due to 70 degrees internal rotation,
which resulted in a grade modifier of 1 using Table 15-35 at 477. Using Table 15-7 at 406 he
assigned a grade modifier of four based on her symptoms and QuickDASH of 90. Next, Dr. Weiss
used Table 15-36 at 477 to increase appellant’s impairment by 15 percent and net adjustment of 9
percent. Combining appellant’s left shoulder impairment rating and left median nerve impairment
ratings resulted in a total of 17 percent left upper extremity permanent impairment.
By decision dated May 18, 2017, an OWCP hearing representative affirmed the
October 18, 2016 decision denying appellant’s claim for an additional schedule award.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.8 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.9 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. Through its implementing regulations,
OWCP adopted the American Medical Association, Guides to the Evaluation of Permanent
8

See 20 C.F.R. §§ 1.1-1.4.

9

For a complete loss of use of an arm, an employee shall receive 312 weeks of compensation. 5 U.S.C.
§ 8107(c)(1).

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Impairment as the appropriate standard for evaluating schedule award losses.10 As of May 1, 2009,
schedule awards are determined in accordance with the sixth edition of the A.M.A., Guides
(2009).11
The A.M.A., Guides provide a DBI method of evaluation utilizing the World Health
Organization’s International Classification of Functioning, Disability and Health (ICF) for upper
extremity impairments. The evaluator identifies the impairment for the Class of Diagnosis (CDX)
condition, which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE), and Clinical Studies (GMCS).12 The net adjustment formula is
(GMFH-CDX) + (GMPE-CDX).13
The A.M.A., Guides also provide that ROM impairment method is to be used as a standalone rating for upper extremity impairments when other grids direct its use or when no other
diagnosis-based sections are applicable.14 If ROM is used as a stand-alone approach, the total of
motion impairment for all units of function must be calculated. All values for the joint are
measured and added.15 Adjustments for functional history may be made if the evaluator
determines that the resulting impairment does not adequately reflect functional loss and functional
reports are determined to be reliable.16
OWCP issued FECA Bulletin No. 17-06 to explain the use of DBI methodology versus
ROM methodology for rating of upper extremity impairments.17 Regarding the application of
ROM or DBI impairment methodologies in rating permanent impairment of the upper extremities,
FECA Bulletin No. 17-06 provides in pertinent part:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating the
loss of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).

10

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

11

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (February 2013).
12

A.M.A., Guides 385-419; see M.P., Docket No. 13-2087 (issued April 8, 2014).

13

Id.

14

Id. at 461.

15

Id. at 473.

16

Id. at 474.

17

FECA Bulletin No. 17-06. This Bulletin was effective for all decisions issued by OWCP on and after
May 8, 2017.

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“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify: (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rate by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.” (Emphasis in the original.)18
The Bulletin further advises:
“If the rating physician provided an assessment using the ROM method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.”19
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome and left shoulder
calcific tendinitis with rotator cuff impingement. The issue is whether appellant sustained more
than 12 percent permanent impairment of the left upper extremity and 6 percent permanent
impairment of the right upper extremity, for which she previously received schedule awards.
Dr. Mandel evaluated appellant’s permanent impairment under Table 15-5 of the A.M.A.,
Guides, for tendinitis, under the shoulder regional grid. A DMA reviewed Dr. Mandel’s report
and concurred with his impairment rating. Dr. Weiss rated appellant’s permanent impairment of
the left shoulder pursuant to Table 15-34 of the A.M.A., Guides for loss of shoulder ROM.
The Board notes that Table 15-5, the Shoulder Regional Grid, does allow, by asterisk, that
tendinitis be alternatively evaluated by as a ROM impairment.20 Under FECA Bulletin No. 17-06
“If the rating physician provided an assessment using the ROM method and the A.M.A, Guides
allow for use of ROM for the diagnosis in question, the DMA should independently calculate
impairment using both the ROM and DBI methods and identify the higher rating for the [claims
examiner].”
Because Dr. Weiss provided a rating based upon appellant’s loss of ROM which was
allowed (for a diagnosed condition followed by an asterisk) under Table 15-5 of the A.M.A.,
Guides, a DMA should have independently calculated appellant’s impairment rating using both
the ROM and DBI method and identified the higher rating for the claims examiner. If the medical

18

Id.

19

Id.

20

See A.M.A., Guides 402, Table 15-5.

7

evidence of record was insufficient for a DMA to render a rating using the ROM methodology, a
DMA should have advised as to the medical evidence necessary to complete the rating.21
The case will therefore be remanded for further development consistent with OWCP
procedures found in FECA Bulletin No. 17-06. Following this and any other development deemed
necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds this case not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated May 18, 2017 is set aside and the case is remanded for further proceedings
consistent with the above opinion.
Issued: April 17, 2018
Washington, DC

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

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

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

21

Supra note 15.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hazelwood, MO, Employer
__________________________________________

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

Docket No. 09-1620
Issued: May 17, 2010

Case Submitted on the Record

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

JURISDICTION
On June 10, 2009 appellant filed a timely appeal from the June 10, 2008 and February 26,
2009 merit decisions of the Office of Workers’ Compensation Programs denying her
occupational disease claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
injury to her right knee, hip or back in the performance of duty.
FACTUAL HISTORY
On March 4, 2008 appellant, a 54-year-old unassigned regular employee, filed an
occupational disease claim alleging that she sustained a right knee injury and increased disability
as a result of the duties of her light-duty job, to which she was assigned following a prior
traumatic injury claim. She stated that, following her return to full duty on December 5, 2007,
her knee condition worsened as a result of working eight hours per day and engaging in “too

much standing, walking, bending, pushing and pulling.”1 Approximately, one week after
returning to work, appellant experienced a burning sensation in the right knee. On December 26,
2007 her right knee buckled.
Under File No. xxxxxx306, the Office referred appellant to an impartial medical
examiner to resolve a conflict between a second opinion physician and her treating physician,
Dr. Rafat S. Nashed, a Board-certified orthopedic surgeon, as to the degree of her disability and
recommended restrictions. In a June 25, 2007 report, Dr. Peter Mirkin, a Board-certified
orthopedic surgeon, stated that objectively appellant was able to work eight hours a day, with
restrictions, based upon the results of a January 3, 2007 functional capacity evaluation (FCE).2
However, he noted her complaints that working in excess of six hours per day caused unrelenting
pain, which required her to lie down for several hours. Dr. Mirkin advised that, if appellant’s
representations were, in fact true, then she should work six hours a day with restrictions
identified in the FCE. Upon the Office’s request for clarification regarding her permanent
restrictions, Dr. Mirkin completed a work capacity evaluation on November 2, 2007. Dr. Mirkin
found that appellant could work eight hours a day with restrictions, including lifting no more
than 45 pounds and squatting for no more than two hours.
Based on Dr. Mirkin’s work restrictions, the employing establishment offered appellant a
modified position as a clerk, working as a lobby assistant four to six hours a day, dispatching
mail one to two hours a day, working “PC [B]ox” one hour a day and performing administrative
duties one to two hours a day. These tasks involved intermittent standing and walking eight
hours a day, with no lifting over 45 pounds. Appellant accepted the light-duty position and
returned to work on December 5, 2007.
On December 26, 2007 appellant filed a notice of recurrence under File No. xxxxxx306
alleging that she reinjured her right knee while performing her employment duties. In a
December 28, 2007 report, Dr. Nashed listed her symptoms of pain and discomfort in the right
knee, which had been under control but returned after she increased her tour of duty to an eighthour workday on December 5, 2007. On December 26, 2007 appellant’s right knee buckled at
work and “she hurt her right knee, back and right hip area.” Dr. Nashed observed that she was
limping and noted that she demonstrated right hip pain with range of motion. The right knee
examination was negative. Dr. Nashed opined that a six-hour workday was reasonable, in light
of the fact that appellant was able to continue with six-hour workdays for a total of 15 months
without exhibiting difficulties but began experiencing symptoms within three weeks after she
started working an eight-hour workday. He recommended that she remain off work for one
week, then returned to light duty with restrictions, which included no standing or walking more
than two hours per day; sedentary work four hours a day; and no lifting more than 25 pounds.

1

Appellant’s March 22, 2005 traumatic injury claim (File No. xxxxxx306) was accepted for a right knee strain
and right meniscal tear with surgical repair. On January 11, 2006 the Office denied her request to expand the claim
to include reflex sympathetic dystrophy and on February 14, 2006 it refused to expand the claim to include a
consequential right hip condition and lumbar sprain. These claims were combined, as they related to a claimed right
knee condition.
2

Restrictions included lifting no more than 45 pounds occasionally and 25 pounds frequently.

2

On January 25, 2008 Dr. Nashed stated that appellant had experienced problems with her
right knee since undergoing a right knee arthroscopy with partial medial and lateral
meniscectomy on May 24, 2005. Appellant had been “functioning adequately” while working
six hours per day with restrictions of no more than two hours of walking and one and a half
hours of standing. Subsequent to her return to an eight-hour day, she experienced an increase in
pain symptoms. On examination, appellant was unable to squat. In the right knee, she had full
range of motion, with a negative McMurray’s test and positive tenderness medially. Appellant
ambulated with a limp.
In a February 22, 2008 decision in File No. xxxxxx306, the Office denied appellant’s
recurrence claim, finding that the evidence of record did not show a change in the nature of her
accepted condition or demonstrate that the light-duty assignment changed such that it no longer
met the restrictions assessed by Dr. Mirkin. It further found that the evidence failed to establish
that a spontaneous return or increase of disability occurred as a result of her previous injury
without an intervening cause and informed her that allegations that additional work factors
aggravated her preexisting condition would constitute a claim for a new injury.
In a letter dated April 9, 2008, the Office informed appellant that the evidence and
information submitted was insufficient to establish her occupational disease claim. It advised her
to provide a detailed description of the job duties that allegedly caused or aggravated her claimed
condition, as well as a reasoned physician’s report with a diagnosis and an explanation as to how
the identified work activities caused her diagnosed condition.
Appellant submitted an undated statement reflecting that on December 13, 2007 she felt
burning and discomfort due to pain in her right knee, hip and lower back. The pain continued
until December 26, 2007, when her right knee “gave out.” Appellant attributed her condition to
excessive walking, standing, bending, twisting, stooping, pulling, pushing and sitting on a stool
with no back on hard floors for eight hours a day. On April 18, 2008 she stated that her duties
included doing lock-box mail; separating Christmas cards; and assisting customers in the lobby;
preparing dispatch of mail; answering telephones; retrieving any mail or parcel pick-up for
customers if they did not have a money transaction. Appellant was allegedly on her feet from
five and a half to six hours a day.
On April 18, 2008 Dr. Nashed opined that there was a causal connection between
appellant’s right hip and lower back symptoms and her May 24, 2005 right knee surgery, due to
the fact that she aggravated her lower back pain by favoring her right knee. He stated:
“It is a known phenomenon that a joint problem can affect other joints on the
same side. Therefore, it is conceivable that she has aggravated and caused her hip
pain because of favoring her right knee and thereby developed a right hip pain. In
addition also, the same causal relationship can occur resulting in back pain for the
same reason of favoring the right knee.”
In an April 22, 2008 memo, Postmaster James Maher stated that appellant’s work duties
were not excessive and that her position had no physical demands. Appellant served as a lobby
director and was basically “a face” for the employing establishment. Her duties did not require
heavy lifting and was permitted to sit or stand at will as she assisted customers.

3

On April 25, 2008 Dr. Nashed noted that appellant had ongoing right knee problems and
still ambulated with a significant antalgic gait. On examination, it was tender to touch and
“burned” laterally with standing. Range of motion was 10 to 130 degrees of flexion, with pain,
particularly with extension. Right knee x-rays showed narrowing of the medial joint space. On
May 30, 2008 Dr. Nashed noted that appellant still experienced discomfort when extending her
knee and ambulated with a slight limp. Appellant reportedly was able to perform her job duties
with the same restrictions; however, she had to lay in bed for about two hours before she could
continue with any other activities. Dr. Nashed opined that she had reached maximum medical
improvement and released her from his care.
By decision dated June 10, 2008, the Office denied appellant’s claim on the grounds that
the medical evidence of record did not support a diagnosed medical condition that could be
connected to specific work factors. Therefore, appellant had failed to establish fact of injury.
On June 30, 2008 appellant requested an oral hearing. At the December 17, 2008
hearing, she testified that for two and a half years, she worked a six-hour a day job, which
permitted her to sit most of the day. On December 5, 2007 appellant was switched to an eighthour job, which required her to be on her feet most of her shift. She reinjured her knee on
December 26, 2007 when it “gave out.” In her new position, appellant stood for eight hours in a
cold lobby helping customers. Although she was initially given a stool, her postmaster told her
that she had to stand. Appellant’s duties included separating mail, helping people with packages
and opening doors.
Appellant submitted a copy of the second page of Dr. Mirkin’s June 25, 2007 report and
copy of Dr. Nashed’s January 24, 2007 work capacity evaluation reflecting his opinion that she
should be permanently restricted from working more than six hours a day.
By decision dated February 26, 2009, the Office hearing representative affirmed the
June 10, 2008 decision, finding that the evidence failed to establish that appellant had sustained
an injury or exacerbation of a knee, hip or back condition as a result of her employment duties
from December 5 to 26, 2007.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.4 These are the essential

3

5 U.S.C. §§ 8101-8193.

4

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

elements of each and every compensation claim regardless of whether the claim is predicated
upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship, generally, is rationalized medical
opinion 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.6
An award of compensation may not be based on appellant’s belief of causal relationship.
Neither the mere fact that a disease or condition manifests itself during a period of employment
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish a causal relationship.7
ANALYSIS
Appellant alleged that she sustained new injuries to her right knee, hip and back as a
result of employment activities between December 5 and 26, 2007. The evidence supports that
she returned to work in a modified clerk position from December 5 to 26, 2007, working eight
hours a day. Physical requirements of the job included lifting no more than 45 pounds and
intermittent standing and walking.8 The medical evidence of record, however, is insufficient to
establish that appellant’s medical conditions are caused or aggravated by factors of her federal
employment subsequent to her return to full duty on December 5, 2007. Therefore, she has
failed to meet her burden of proof.
Contemporaneous medical evidence of record consisted of reports from appellant’s
treating physician, Dr. Nashed. On December 28, 2007 Dr. Nashed stated that symptoms related
5

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

6

Id.

7

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

8

The Board notes that appellant alleged that she was required to stand during the majority of her shift.
Appellant’s allegation was uncorroborated and was contested by her postmaster, who stated that she was provided a
stool to use at her discretion.

5

to her previously accepted right knee condition reappeared within three weeks after she started
working an eight-hour day. He reported that on December 26, 2007 appellant’s right knee
buckled at work and she hurt her right knee, back and right hip area. Dr. Nashed observed that
she was limping and demonstrated right hip pain with range of motion. The right knee
examination was negative. In light of the fact that appellant was able to continue with six-hour
workdays for 15 months without exhibiting difficulties, but began experiencing symptoms within
3 weeks after she started working an eight-hour workday, Dr. Nashed opined that a six-hour
workday was reasonable.
Dr. Nashed’s report is of reduced probative value on several counts. He did not provide
detailed examination findings or a specific diagnosis. The Board has held that a diagnosis of
pain does not constitute a basis of payment for compensation, as pain is considered to be a
symptom rather than a specific diagnosis.9 Dr. Nashed failed to provide a definitive opinion as
to the cause of appellant’s current condition.10 The fact that a condition manifests itself during a
period of employment does not raise an inference that there is a causal relationship between the
two.11 Although Dr. Nashed implied that appellant’s return to an eight-hour day may have been
related to her symptoms, he did not describe appellant’s job duties or explain the medical process
through which such duties would be competent to cause or contribute to the claimed conditions.
Medical conclusions unsupported by rationale are of little probative value.12
Dr. Nashed’s subsequent reports are also insufficient to establish appellant’s claim. On
January 25, 2008 he stated that while she had been “functioning adequately” while working six
hours a day with restrictions of no more than two hours of walking and one and a half hours of
standing, subsequent to her return to an eight-hour day, she experienced an increase in pain
symptoms. Again, Dr. Nashed failed to provide a specific diagnosis or adequate medical
explanation as to how her particular job duties during the period in question caused or
exacerbated her condition. Therefore, the report is of limited probative value. Similarly, his
April 25 and May 30, 2008 reports do not contain any opinion on causal relationship and,
therefore, are of diminished probative value.
On April 18, 2008 Dr. Nashed opined that there was a causal connection between
appellant’s right hip and lower back symptoms and her May 24, 2005 right knee surgery, due to
the fact that she aggravated her lower back pain by favoring her right knee. His opinion as to
whether she developed right hip and lower back symptoms as a consequence of her accepted
traumatic injury is not relevant to the issue in this case, namely, whether she developed a
diagnosed condition as a result of established employment factors subsequent to
December 5, 2007. As Dr. Nashed did not provide an opinion on the relevant issue, his report is
of limited probative value.
9

Robert Broom, 55 ECAB 339 (2004).

10

The Board has long held that medical evidence which does not offer an opinion regarding the cause of an
employee’s condition is of limited probative value. A.D., 58 ECAB 149 (2006); Michael E. Smith, 50 ECAB
313 (1999).
11

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

12

Willa M. Frazier, 55 ECAB 379 (2004).

6

Appellant expressed her belief that her knee condition was exacerbated by prolonged
standing at work and that her hip and back conditions were caused by conditions of her
employment during the period in question. The Board has held that the mere fact that a
condition manifests itself during a period of employment does not raise an inference that there is
a causal relationship between the two.13 Neither the fact that the condition became apparent
during a period of employment nor the belief that the condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.14 Causal
relationship must be substantiated by reasoned medical opinion evidence, which is appellant’s
responsibility to submit. Therefore, appellant’s belief that her conditions were caused or
aggravated by identified work events is not determinative.
On appeal, appellant contended that the impartial medical examiner’s November 2, 2007
report was based on an incomplete evaluation from the Office’s second opinion physician,
Dr. Sciortino. The issue before the Office is not the adequacy of the impartial medical
examiner’s report, which addressed appellant’s work capacity at that time. Rather, the issue is
whether appellant sustained an injury causally related to conditions of her employment
subsequent to her return to work on December 5, 2007. By virtue of its date, Dr. Mirkin’s
November 2, 2007 report is not relevant to the issue at hand.
The Office advised appellant that it was her responsibility to provide a comprehensive
medical report, which described her symptoms, test results, diagnosis, treatment and the
physician’s opinion, with medical reasons, on the cause of her condition. Appellant failed to do
so. As there is no probative, rationalized medical evidence addressing how her claimed
conditions were caused or aggravated by her employment, she has not met her burden of proof to
establish that she sustained an occupational disease in the performance of duty causally related to
factors of employment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained an injury in the performance of duty, as alleged.

13

See supra note 11.

14

Id.

7

ORDER
IT IS HEREBY ORDERED THAT the February 26, 2009 and June 10, 2008 decisions
of the Office of Workers’ Compensation Programs are affirmed
Issued: May 17, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fresno, CA, Employer
__________________________________________

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

Docket No. 14-1511
Issued: March 2, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 23, 2014 appellant filed a timely appeal from a June 4, 2014 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has established a recurrence of disability from June 22 to
August 23, 2013.
FACTUAL HISTORY
On June 26, 2007 appellant, then a 42-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that he sustained injuries in a motor vehicle accident on June 21,
1

5 U.S.C. § 8101 et seq.

2

Appellant had requested oral argument and the Board issued an order denying the request on February 3, 2015.

2007 while on the performance of duty. OWCP has accepted the following conditions: abrasion
of multiple sites, contusion of left knee, sprain of right hand, closed dislocation of left thumb,
right shoulder rotator cuff tear, right shoulder impingement, right biceps rupture, cervical strain,
cervical radiculopathy, aggravation of cervical degenerative disc disease, and herniated cervical
disc. Appellant worked intermittently and received compensation for total disability on the
periodic rolls commencing November 21, 2010.3
In a report dated March 22, 2011, Dr. Ali Najafi, a Board-certified orthopedic surgeon,
indicated that appellant underwent cervical surgery. The procedure included a cervical
discectomy with partial corpectomy at C5-7, and arthrodesis interbody at C5-7. In a report dated
August 2, 2012, Dr. Najafi provided brief results on examination and diagnosed postoperative
cervical fusion. In a note dated December 18, 2012, Dr. Najafi indicated that appellant should
lift no more than 35 pounds.
OWCP referred appellant for a second opinion examination by Dr. Mojinder Nijjar, a
Board-certified orthopedic surgeon. In a report dated January 31, 2013, Dr. Nijjar provided a
history and results on examination. He opined that appellant could return to his regular full-time
job. As to a 35-pound lifting restriction, Dr. Nijjar stated that appellant had good range of
motion and the lifting restriction was not appropriate.
The employing establishment offered appellant a modified position that included a 35pound lifting restriction.4 Appellant accepted the position and began working on June 15, 2013.
On June 25, 2013 appellant filed a claim for a recurrence of disability commencing
June 21, 2013. In a note dated June 24, 2013, Dr. Najafi reported that appellant was disabled
from June 22 to July 6, 2013. The note stated that appellant was last seen on May 6, 2013. In a
report dated June 28, 2013, Dr. Amarjit Mangat, a preventative medicine specialist, indicated
that appellant stated that he was seen by Dr. Najafi on June 24, 2013 and found to be totally
disabled. He provided results on examination and stated that neck range of motion was about 50
percent. Dr. Mangat diagnosed chronic neck pain and cervical degenerative disc disease.
By letter dated July 26, 2013, OWCP requested that appellant submit additional medical
evidence. It indicated that he should submit a report discussing objective findings and an
explanation as to disability.
In a report dated August 1, 2013, Dr. Najafi stated that appellant had been seen on May 6,
2013, with complaints of worsening neck pain and upper extremity pain compared to the year
prior. He indicated that appellant was seen on June 24, 2013 with complaints of severe neck
pain and right arm pain. According to Dr. Najafi, appellant “stated he experienced severe neck
pain while delivering mail on June 22, 2013 due to the vibration from walking on his route. At
that time, I pulled him off of work until his next office visit on July 9, 2013.” He stated that
3

OWCP issued a schedule award decision dated December 7, 2009 for a three percent right arm permanent
impairment, and a March 24, 2010 decision finding a five percent permanent impairment to the left arm.
4

A vocational rehabilitation counselor stated in a June 5, 2013 report that Dr. Nijjar had imposed a 35-pound
lifting restriction and the job offer should reflect the restriction.

2

appellant continued to have worsening upper neck pain, and the most recent magnetic resonance
imaging (MRI) scan had shown cervical degenerative changes.5 Dr. Najafi recommended that
appellant remain off work until September 9, 2013.
By decision dated September 5, 2013, OWCP denied the claim for a recurrence of
disability commencing June 22, 2013. It found the medical evidence insufficient to establish the
claim.
Appellant requested a hearing before an OWCP hearing representative, which was held
on March 18, 2014. In a report dated March 14, 2014, Dr. Rasheed Amireh, a Board-certified
anesthesiologist, provided results on examination and recommended cervical facet joint
injections.
By decision dated June 4, 2014, the hearing representative affirmed the September 5,
2013 decision. She found that the medical evidence was insufficient to establish the claimed
recurrence of disability commencing June 22, 2013.
LEGAL PRECEDENT
An employee who claims a recurrence of disability due to an accepted employment-related
injury has the burden of establishing by the weight of the substantial, reliable, and probative
evidence that the disability for which he or she claims compensation is causally related to the
accepted injury.6 OWCP’s procedure manual discusses the evidence necessary if recurrent
disability for work is alleged within 90 days of return to duty. It is noted that the focus is on
disability rather than causal relationship of the accepted condition to the work injury.7
The Board has held that if recurrent disability for work is claimed within 90 days or less
from the first return to duty, the attending physician should describe the duties which the
employee cannot perform and the demonstrated objective medical findings that form the basis
for the renewed disability for work.8 When a physician’s statements regarding an employee’s
ability to work consists only of repetition of the employee’s complaints that he or she hurt too
much to work, without objective findings of disability being shown, the physician has not
presented a medical opinion on the issue of disability or a basis for payment of compensation.9
ANALYSIS
In the present case, appellant had returned to a light-duty job offered by the employing
establishment on June 15, 2013 and claimed a recurrence of disability as of June 22, 2013. As
noted above, when the claim for a recurrence is within 90 days of a return to work, the focus is
5

The record indicated that appellant had a cervical MRI scan on June 3, 2013.

6

Robert H. St. Onge, 43 ECAB 1169 (1992); Dennis J. Lasanen, 43 ECAB 549 (1992).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5 (June 2013).

8

See G.P., Docket No. 14-1150 (issued September 15, 2014); R.C., Docket No. 14-201 (issued May 8, 2014).

9

See S.E., Docket No. 14-1125 (issued October 1, 2014).

3

on disability, rather than whether appellant continued to have an employment-related condition.
But as to disability, the medical evidence must provide a description of the job duties appellant
cannot perform and the objective findings that support disability. In addition, the disability must
be related to an accepted employment-related condition.
Attending physician Dr. Najafi indicated that he treated appellant on June 24, 2013, but
the record does not contain a report of that date with physical examination findings or other
relevant evidence. In an August 1, 2013 report, he states that he saw appellant on June 24, 2013
with increased neck and arm pain. A complaint of too much pain to work without more support
does not establish a recurrence of disability. Dr. Najafi did not provide a discussion of objective
medical findings on June 24, 2013 or refer to appellant’s job duties to explain why he felt
appellant could not perform the light-duty job. He noted a June 3, 2013 MRI scan, without
discussing how this related to appellant’s alleged total disability commencing June 22, 2013.
Dr. Mangat treated appellant on June 28, 2013. He noted that appellant reported that he
had seen Dr. Najafi and been found to be disabled, without providing his own opinion as to
disability. Dr. Mangat noted decreased neck range of motion, but he did not discuss appellant’s
job duties or provide an opinion that he was disabled for the light-duty job.
The Board finds the medical evidence in this case insufficient to meet appellant’s burden
of proof to establish a recurrence of disability. Focusing on the issue of disability, the evidence
does not contain an opinion supported by objective findings and discussing specific job duties,
establishing a recurrence of disability commencing June 22, 2013.
On appeal, appellant argues that OWCP failed to properly consider the medical evidence.
The Board has considered the medical evidence of record as of June 4, 2014. For the reasons
noted above, the Board finds that appellant did not meet his burden of proof. Appellant may
submit new evidence or argument with a written request for reconsideration to OWCP within one
year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through
10.607.
CONCLUSION
The Board finds that appellant has not established a recurrence of disability from June 22
to August 23, 2013.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 4, 2014 is affirmed.
Issued: March 2, 2015
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.R., Appellant
and
U.S. POSTAL SERVICE, AVENT FERRY
STATION, Raleigh, NC, Employer
__________________________________________

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

Docket No. 17-0239
Issued: April 12, 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 November 11, 2016 appellant, through counsel, filed a timely appeal from a
September 14, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish a left knee condition
causally related to factors of his federal employment.
1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject
to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 28, 2015 appellant, then a 61-year-old letter carrier, filed an occupational
disease claim (Form CA-2) under File No. xxxxxx697 alleging that medial and lateral meniscus
tears, chondromalacia patella, small joint effusion, patella tendinopathy, and fragmentation of the
tibial tuberosity insertion region of both knees were caused or aggravated by walking up and
down stairs, climbing in and out of a side front door, and pressing on a brake at work. He
became aware of conditions and realized their relationship to his federal employment on
February 5, 2015. Appellant was off work through November 9, 2015.
In an August 20, 2015 narrative statement, appellant again contended that his claimed
conditions occurred while he was performing his work duties. He sought medical treatment and
underwent diagnostic testing. Appellant noted that his first right knee injury occurred on
July 24, 2012.3
Appellant submitted an August 2, 2015 progress note from Scott B. Webster, a physician
assistant. Mr. Webster reviewed medical records, examined appellant, and offered impressions
Appellant also submitted a July 31, 2015 operative report and August 5, 2015 letter from
Dr. Glenn B. Perry, a Board-certified orthopedic surgeon, describing his authorized right knee
surgery under File No. xxxxxx004 and addressing his disability for work through November 9,
2015 due to his surgery.
By letter dated September 14, 2015, OWCP informed appellant of the deficiencies of his
claim and requested that he submit additional medical evidence and respond to its inquiries. It
also requested that the employing establishment respond to his allegations and submit treatment
notes if he was treated at an employing establishment medical facility.
In a June 2, 2015 progress note, Dr. Perry reported appellant’s complaint of bilateral knee
pain, reviewed MRI scan results, and provided findings on physical examination. He provided
an impression of right knee degenerative change, possible mild arthrofibrosis, and possible loose
bodies. Dr. Perry also provided an impression of left knee medial and lateral meniscus tears and
degenerative changes. He opined that appellant’s left knee deterioration and eventual need for
surgery were related to a prior right knee injury since additional strain had been placed on his left
knee. Dr. Perry discussed left knee arthroscopy with possible partial medial and lateral
meniscectomies and debridement/chondroplasty and possible right knee arthroscopic
debridement/chondroplasty with appellant. Appellant also provided a September 16, 2015
progress note from Mr. Webster.

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Prior to the instant claim, appellant filed an occupational disease claim (Form CA-2) under File No. xxxxxx004
alleging that on July 24, 2012 he realized that he had right knee conditions caused or aggravated by his federal
employment based on a magnetic resonance imaging (MRI) scan. OWCP accepted the claim for right quadriceps
tendon rupture, derangement of the posterior horn of the medial meniscus, and traumatic arthropathy of the right
lower leg. It authorized surgical repair of the right quadriceps tendon rupture and right medial meniscus tear which
was performed on August 28, 2012, right knee arthroscopy for degeneration of the right knee joint which was
performed on July 31, 2015, and right total knee arthroplasty which was performed on April 4, 2016.

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By decision dated November 27, 2015, OWCP denied appellant’s occupational disease
claim. It found that the medical evidence of record was insufficient to establish a left knee
condition causally related to the accepted employment factors.
In a December 22, 2015 letter, appellant, through counsel, requested a telephone hearing
with an OWCP hearing representative.
In progress notes received on July 11, 2016 and dated August 28, 2014, February 25 and
November, 5, 2015, and October 5, 2016, Dr. Perry noted appellant’s bilateral knee complaints
and findings on physical and x-ray examination. He provided an impression of right knee pain
most consistent with moderate-to-severe advanced patellofemoral osteoarthritis with a notable
patella baja which could be contributing to appellant’s decreased range of motion and advanced
arthritis. Dr. Perry assessed left knee pain and noted that appellant had medial and lateral tears
with degenerative joint disease of the left knee. He also assessed left knee pain likely secondary
to medial and lateral meniscal tears in the evidence of advanced medial patellofemoral
compartment osteoarthritis. Dr. Perry recommended that appellant consult with a joint
replacement specialist to discuss right total knee arthroplasty. In an addendum to the
February 25, 2015 progress note, he advised that appellant had 10 percent permanent impairment
of the right knee. Dr. Perry noted that appellant commuted three hours each way to his job on a
daily basis which would likely aggravate his current symptoms given the prolonged period in
which the patella would be compressed in the patellofemoral joint space.
In progress notes dated May 7, 2015 to March 7, 2016, Jason A. Diehl, a physician
assistant, reported appellant’s history, listed findings, and offered impressions. Appellant also
provided physical therapy reports.
During the August 1, 2016 telephonic hearing, counsel contended that the medical
evidence of record was sufficient to establish that appellant sustained a left knee condition as a
consequence of his accepted employment-related right knee condition.
By decision dated September 14, 2016, an OWCP hearing representative affirmed the
November 27, 2015 decision. She found that the medical evidence of record was insufficient to
establish that appellant sustained a left knee condition causally related to the accepted
employment factors. The hearing representative doubled the claim files and noted that, if he
believed that he had a consequential injury due to his accepted right knee condition, he should
file a claim under File No. xxxxxx004, the master file.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability and/or specific condition for which compensation is claimed are causally related to the

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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
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable certainty, and must be supported by
medcial rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee.6
ANALYSIS
OWCP accepted as factual that appellant performed the work duties of a letter carrier,
which involved walking up and down stairs, climbing in and out of a side front door, and
pressing a brake. The Board finds, however, that the medical evidence of record is insufficient
to establish that he sustained a left knee condition caused or aggravated by the accepted work
factors.
Dr. Perry’s June 2, 2015 progress note found that appellant had left knee medial and
lateral meniscus tears and degenerative changes. He opined that his left knee condition and need
to undergo surgery were due to his prior accepted employment-related right knee injury because
this injury had placed additional strain on the left knee. While Dr. Perry provided a general
opinion on causal relationship, he did not sufficiently explain how the accepted right knee injury
could cause the diagnosed left knee conditions and need for surgery. Medical reports without
adequate rationale on causal relationship are of diminished probative value and are insufficient to
meet an employee’s burden of proof.7 Dr. Perry’s remaining reports and progress notes
addressed appellant’s right and left knee conditions, July 31, 2015 right knee surgery, and
resultant permanent impairment and disability for work, but did not offer an opinion addressing
whether the diagnosed knee conditions and any resultant disability were causally related to the
established employment factors. Medical evidence that does not offer an opinion regarding the

4

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

5

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

6

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, id.

7

T.C., Docket No. 15-1534 (issued March 1, 2016); Ceferino L. Gonzales, 32 ECAB 1591 (1981).

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cause of an employee’s condition is of limited probative value on the issue of causal
relationship.8
Appellant also submitted reports and progress notes from a series of physician assistants
and physical therapists. However, the reports of physician assistants and physical therapists are
of no probative value as physician assistants and physical therapists are not considered
physicians under FECA.9
Appellant’s belief that, factors of employment caused or aggravated his condition is
insufficient, by itself, to establish causal relationship.10 The issue of causal relationship is a
medical one and must be resolved by probative medical opinion from a physician. The Board
finds that there is insufficient medical evidence of record to establish that appellant’s left knee
condition was caused or aggravated by the established employment factors. Appellant, therefore,
did not meet his burden of proof.
On appeal, counsel contends that once appellant’s claims under OWCP File Nos.
xxxxxx697 and xxxxxx004 were doubled, he should have been allowed to proceed under either
claim and that OWCP’s decision “whipsaws” him such characterization is without merit as the
hearing representative doubled the files and clearly explained that, if he wished, appellant could
pursue a claim for a consequential injury under File No. xxxxxx004.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof to establish a left
knee condition causally related to factors of his federal employment.

8

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006).
9

5 U.S.C. § 8101(2) provides that a physician includes, surgeons, podiatrists, dentists, clinical psychologist,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law.
V.C., Docket No. 16-0642 (issued April 19, 2016); Allen C. Hundley, 53 ECAB 551 (2002). K.W., 59 ECAB 271,
279 (2007); David P. Sawckuk, 57 ECAB 316, 320 n.11 (2006). A report from a physician assistant or certified
nurse practitioner will be considered medical evidence if countersigned by a qualified physician. Federal (FECA)
Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013).
10

20 C.F.R. § 10.115(e); Phillip L. Barnes, 55 ECAB 426, 440 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the September 14, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 12, 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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