United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Princeton, NJ, Employer
__________________________________________

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

Docket No. 14-0559
Issued: July 24, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 14, 2014 appellant, through counsel, filed a timely appeal from an
October 17, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are:
(1) whether OWCP properly terminated appellant’s wage-loss
compensation effective January 5, 2012 as he had no further disability due to his July 27, 2011
work injury; (2) whether appellant has established that he had continuing employment-related
disability after January 5, 2012; and (3) whether he sustained a cervical disc herniation or
cervical radiculopathy due to his July 27, 2011 employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 29, 2011 appellant, then a 57-year-old letter carrier, filed a traumatic injury claim
alleging that on July 27, 2011 he injured the left side of his head when he fell in the performance
of duty. He stopped work on July 28, 2011. OWCP accepted the claim for postconcussion
syndrome, neck sprain, and contusion of the eyelids and periocular area on the left. It paid
appellant compensation for total disability on the short-term rolls beginning September 24, 2011.
In a report dated August 10, 2011, Dr. Hillard C. Sharf, an attending Board-certified
internist and neurologist, obtained a history of appellant falling at work hitting the left side of his
face after he experienced pain in his right foot. He complained of left head pain and neck pain
radiating into the left shoulder. Dr. Sharf diagnosed mild postconcussion syndrome, cervical
strain, and a possible temporomandibular joint condition. He recommended a magnetic
resonance imaging (MRI) scan study of the brain. Dr. Sharf indicated that appellant should
“remain out of work.”
A September 1, 2011 MRI scan study of the brain yielded unremarkable findings.
In a report dated September 8, 2011, Dr. Craig Kimmel, Board-certified in family
practice, discussed appellant’s prior history of a fall at work in 2007 which resulted in tarsal
tunnel syndrome of the right foot. He noted that he saw appellant on July 29, 2011 for a fall he
had when his right foot gave out and he hit his head on a mailbox. Dr. Kimmel related that
appellant “continues to have postconcussion symptoms of headache and stiff neck and memory
loss.” He further diagnosed possible reflex sympathetic dystrophy or complex regional pain
syndrome due to the “original work-related right foot trauma.” Dr. Kimmel opined that
appellant’s right foot condition would cause permanent disability without “aggressive
intervention.”
In a report dated October 11, 2011, Dr. Sharf discussed appellant’s complaints of neck
pain radiating into the right upper extremity, low back pain and right foot pain from a prior
injury and noted appellant’s continuing “complaints referable to a postconcussion syndrome.
Appellant does complain of some inability to concentrate. He also gets headaches and some
vertigo. In addition, appellant has a number of musculoskeletal/orthopedic complaints.”
Dr. Sharf found that he was disabled from his usual employment and referred him for an
orthopedic evaluation.
On November 30, 2011 OWCP referred appellant to Dr. Saeid Alemo, a Board-certified
neurosurgeon, for a second opinion examination. In the accompanying statement of accepted
facts, it noted that he had a prior injury to his right foot, assigned under file number xxxxxx878,
and accepted tarsal tunnel syndrome, a closed fracture of the calcaneus, and plantar fibromatosis.
Appellant returned to his usual employment on April 13, 2009; under file number xxxxxx878.
In a report dated December 17, 2011, Dr. Alemo discussed appellant’s complaints of pain
in his neck, back, right arm, and the right side of his head. On examination he found normal
motion of the upper extremities, symmetrical lower extremity reflexes, and no sensory deficits.
Dr. Alemo advised that appellant’s symptoms of right-sided neck pain radiating into the right
arm were not consistent with the accepted conditions. He found that appellant had recovered

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from his prior work injury of tarsal tunnel syndrome, a closed calcaneus fracture, and plantar
fibromatosis. Dr. Alemo noted that at the time of Dr. Sharf’s August 10, 2011 evaluation,
appellant complained of left head and arm pain rather than right head and arm pain. He stated:
“[Appellant] fell on July 27, 2011 accidentally when he was on duty and sustained
postconcussion syndrome, sprain of the neck, and contusion of the eyelids and
periocular area on the left side.”
“[Appellant’s] preexisting injury to the right foot had nothing to do with this
accident because [he] had a full recovery from the right foot injury and had
returned to work on April 13, 2009 without any restrictions.”
Dr. Alemo advised that appellant had no “objective evidence of postconcussion
syndrome, strain of the neck or contusion of the eyelids and periocular area on the left side.” He
concluded that there was “no medical evidence of any residual disability or deficit secondary to
the fall of July 27, 2011 and [apellant] has had a full recovery from the fall of July 27, 2011.”
Dr. Alemo advised that appellant could resume his usual employment.
By decision dated January 5, 2012, OWCP terminated appellant’s wage-loss
compensation effective that date. On January 5, 2012 it also issued a proposed termination of
medical benefits.
On January 10, 2012 appellant, through counsel, requested an oral hearing before an
OWCP hearing representative.
A November 17, 2011 electrodiagnostic study, received by OWCP on January 17, 2012,
revealed “modest carpal tunnel syndrome on the right.” A January 11, 2012 MRI scan study
showed “[s]mall disc herniations at C3-4 and C5-6 without narrowing of the spinal canal and
neural foramina” and cervical spine straightening.
In a report dated January 26, 2012, Dr. Laura E. Ross, an osteopath, diagnosed cervical
and lumbar sprain/strain and right leg pain. On examination, she found muscle spasms in the
cervical spine and right lumbar spine with a positive straight leg test. Dr. Ross related that MRI
scan studies showed C3-4 and C5-6 disc herniations. She stated, “It does not appear that
Dr. Alemo reviewed the MRI scan [study] of the cervical spine in coming to his conclusions.
There is definitely medical evidence of residuals disability secondary to appellant’s fall on
July 27, 2011, as noted on his clinical examination as well as on his objective testing.”
In a report dated January 26, 2012, Dr. Kimmel evaluated appellant for complex regional
pain syndrome of the right foot and ankle. He noted that appellant was “also getting chronic
neck pain radiating down his right arm after a fall at work causing right cervical radiculopathy.”
Dr. Kimmel stated, “[Appellant] has complex regional pain syndrome with severe pain causing
secondary depression and cognitive problems. This is worsened by his lack of strength and
balance in that right leg. [Appellant] is not safe to work or drive in any capacity.”
In a report dated February 1, 2012, Dr. Kimmel diagnosed complex regional pain
syndrome of the right foot and ankle due to a prior work injury and 2007 surgery. He further
diagnosed progressive hyperesthesia causing loss of judgment, loss of balance, anxiety, and
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depression. Dr. Kimmel stated, “It is my opinion that this condition has completely and totally
made him permanently disabled.”
Following a preliminary review, on March 15, 2012, an OWCP hearing representative
issued a decision finding that the evidence supported OWCP’s termination of wage-loss
compensation benefits but noted that OWCP had not issued a decision regarding the termination
of medical benefits. She found, however, that subsequent to the termination, appellant had
submitted evidence sufficient to warrant further development on the issue of whether he
sustained cervical disc herniations and cervical radiculopathy causally related to the July 27,
2011 work injury.
An April 19, 2012 MRI scan study of the cervical spine showed disc desiccation and a
central protrusion at C5-6 with moderate degenerative changes at C4-5 and a disc bulge at C4-5
and C3-4 without stenosis and a normal cord.
On May 10, 2012 Dr. Alemo reviewed the April 19, 2012 cervical MRI scan study.2 He
stated, “This MRI scan [study] shows that [appellant] has cervical spondylosis that is due to a
degenerative and aging process, unrelated to the injury of July 27, 2011.” In an accompanying
work restriction evaluation, Dr. Alemo indicated that appellant could perform his usual
employment without restrictions.
On May 24, 2012 OWCP requested that Dr. Alemo review the reports of Dr. Ross and
Dr. Kimmel and advise whether appellant sustained cervical disc herniations and radiculopathy
due to his accepted work injury and whether he had any disability from employment.
In a supplemental report dated June 13, 2012, Dr. Alemo summarized the
January 11, 2012 MRI scan study and the January 26, 2012 reports from Dr. Ross and
Dr. Kimmel. He opined that his finding that appellant had no further residuals of his
postconcussion syndrome, neck sprain, and eyelid and periocular area contusion remained
unchanged.
By decision dated July 12, 2012, OWCP found that appellant had not established cervical
disc herniations or radiculopathy due to his July 27, 2011 work injury.
On July 19, 2012 appellant, through counsel, requested an oral hearing. At the hearing,
held on November 28, 2012, he related that he had pain in both extremities, right more than left.
Counsel argued that the record contained a conflict in medical opinion between Dr. Ross and
Dr. Alemo and that Dr. Alemo’s opinion was insufficiently rationalized to constitute the weight
of the evidence.
In a decision dated February 19, 2013, the hearing representative affirmed the July 12,
2012 decision. She found that appellant had not established any employment-related continuing
disability or cervical radiculopathy or that he sustained a disc condition due to his work injury.

2

In a report dated May 1, 2012, Dr. Gary Buck, a Board-certified anesthesiologist, diagnosed lumbar
radiculopathy, cervical radiculopathy, and possible reflex sympathetic dystrophy.

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On May 14, 2013 counsel requested reconsideration. He submitted a January 5, 2013
report from Dr. Ross. Dr. Ross reviewed Dr. Alemo’s report and noted that a January 11, 2012
MRI scan study showed disc herniations at C3-4 and C5-6 rather than degenerative changes. She
stated:
“In addition, the MRI scan [study] dated April 20, 2012 of the cervical spine
shows some slight disc desiccation and the normal sequelae of the disc herniations
in that they resemble disc bulges later on.
“It is clear to me that [appellant] sustained injury to his neck, including disc
herniations at C3-4 and C5-6 with straightening of the normal lordotic curvature
as a direct result of his injury that occurred on July 27, 2011.”
By decision dated May 28, 2013, OWCP denied appellant’s request for reconsideration
after finding that he did not submit evidence or raise an argument sufficient to warrant reopening
the case for further merit review under section 8128.
On August 9, 2013 appellant, through counsel, requested reconsideration based on the
April 17, 2013 report of Dr. Shailen Jalali, a Board-certified anesthesiologist. Dr. Jalali related
that appellant had a history of pain in his neck and right upper extremity due to a 2011
employment injury. He diagnosed cervical radiculitis, cervical disc displacement, cervical facet
disease, and cervical disc degeneration and determined that the pain seemed “radicular in
nature.”
In a report dated August 1, 2013, Dr. Michael R. Plumeri, a clinical psychologist, noted
that appellant injured his neck and shoulder in July 2011 which caused severe pain in his arm.
He related that appellant’s symptoms of depression seemed due to his “inability to work, the
financial stress it has caused and the inability to find relief from the pain.”
By decision dated October 17, 2013, OWCP denied modification of its February 19, 2013
decision. It found that appellant had not submitted sufficient medical evidence to establish a
cervical disc herniation or radiculopathy due to the accepted employment injury. OWCP further
noted that the medical evidence was insufficient to show an emotional condition.
On appeal, counsel argues that OWCP improperly terminated appellant’s compensation
by issuing a proposed termination of compensation and a final decision terminating
compensation on the same date. He further contends that Dr. Alemo’s opinion is not well
reasoned and that a conflict exists between Dr. Alemo and appellant’s physicians. Counsel
additionally maintains that OWCP should develop whether he sustained depression as a result of
his work injury.
LEGAL PRECEDENT -- ISSUE 1
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.3
3

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

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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.4
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained neck sprain, postconcussion syndrome, and
contusion of the eyelids and periocular area on the left as a result of a July 27, 2011 employment
injury. Appellant stopped work on July 28, 2011 and received compensation on the short-term
rolls beginning September 24, 2011.
On August 10, 2011 Dr. Sharf discussed appellant’s complaints of left-sided head and
neck pain radiating into the left upper extremity. He diagnosed mild postcontcussion syndrome,
cervical strain, and a possible temporomandibular joint condition. Dr. Sharf found that appellant
should stay off work. He did not, however, provide any rationale for appellant’s disability
finding. A physician’s opinion on causal relationship between a claimant’s disability and an
employment injury is not dispositive simply because it is rendered by a physician. To be of
probative value, Dr. Sharf must provide rationale for the opinion reached. Where no such
rationale is present, the medical opinion is of diminished probative value.5
In a report dated September 8, 2011, Dr. Kimmel discussed appellant’s history of tarsal
tunnel syndrome after a fall at work in 2007. He diagnosed postconcusison headaches with neck
stiffness and memory loss after a July 2011 work injury. Dr. Kimmel also diagnosed potential
reflex sympathetic dystrophy or complex regional pain syndrome due to a prior right foot injury.
He found that appellant would be disabled due to his right foot condition without medical
intervention. Dr. Kimmel, however, did not address whether appellant sustained disability as a
result of the July 27, 2011 employment injury, accepted for left postconcussion syndrome, neck
sprain, and a left eyelid contusion. Consequently, his opinion is of little probative value.6
On October 11, 2011 Dr. Sharf discussed appellant’s complaints of neck pain radiating
into the right upper extremity, low back pain, and right foot pain from a prior injury. He found
that appellant had continued symptoms of postconcussion syndrome, including vertigo and
headaches, and also orthopedic complaints. Dr. Sharf opined that appellant was disabled from
employment. He did not, however, provide any rationale for appellant’s finding. Medical
conclusions unsupported by rationale are of diminished probative value.7
On November 30, 2011 OWCP referred appellant to Dr. Alemo for a second opinion
examination. In a report dated December 17, 2011, Dr. Alemo noted that appellant had
symptoms of pain in his neck, back, right arm, and the right side of his head, which he found was
not consistent with the accepted conditions. On examination he measured full upper extremity
4

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

5

See Jean Culliton, 337 ECAB 728 (1996).

6

See Carol A. Lyles, 57 ECAB 265 (2005) (whether a particular injury caused an employee’s disability from
employment is a medical issue which must be resolved by competent medical evidence).
7

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

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motion with no loss of sensation. Dr. Alemo found that there was no objective evidence of
postconcussion syndrome, neck strain, or an eyelid contusion. He opined that appellant had
made a complete recovery and could resume work without restrictions.
The Board finds that OWCP met its burden of proof to terminate his compensation
through the opinion of Dr. Alemo, who determined that he had no further disability causally
related to his accepted employment injury. Dr. Alemo reviewed the history of injury and the
evidence of record and further provided detailed findings on physical examination. He explained
that the objective findings on examination did not support appellant’s subjective complaints.
Dr. Alemo 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.8
The remaining evidence of record submitted prior to OWCP’s termination of
compensation is insufficient to show that appellant had further disability due to his employment
injury. On January 26, 2012 Dr. Ross diagnosed cervical and lumbar sprain/strain and right leg
pain. She noted that it did not appear that Dr. Alemo had reviewed the cervical MRI scan study
showing disc herniations and advised that appellant had residuals of his work injury. Dr. Ross
did not address, however, whether appellant had any further disability due to his left
postconcussion syndrome, neck sprain, or a contusion of the eyelids and periocular area;
consequently, her report is of little probative value on this issue.9
In a report dated January 26, 2012, Dr. Kimmel diagnosed complex regional pain
syndrome causing depression and a loss of cognition. He opined that appellant was totally
disabled. On February 1, 2012 Dr. Kimmel diagnosed complex regional pain syndrome of the
right ankle and foot from a 2007 injury. As Dr. Kimmel did not specifically relate any disability
to the July 27, 2011 employment injury, his report is of diminished probative value.
The Board thus finds that the weight of the evidence establishes that appellant had no
employment-related disability effective January 5, 2012, the date that OWCP terminated his
compensation.
On appeal counsel argues that OWCP improperly terminated appellant’s compensation
by issuing a proposed termination of compensation and a final decision terminating
compensation on the same date. OWCP, however, issued a proposed termination of medical
benefits on January 5, 2012 and a decision terminating wage-loss compensation on
January 5, 2012. As appellant was not receiving compensation on the periodic rolls and had not
received compensation for over one year, it did not need to issue a pretermination notice before
issuing its termination decision.10
8

See Pamela K. Guesford, 53 ECAB 727 (2002).

9

See D.G., Docket No. 07-316 (issued October 10, 2007).

10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.4 (February 2013);
see also H.F., Docket No. 14-1407 (issued April 16, 2015).

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LEGAL PRECEDENT -- ISSUE 2
Once OWCP terminates appellant’s compensation benefits, the burden shifts to appellant
to establish that he has continuing disability after that date related to his accepted injury.11 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.12 Causal
relationship is a medical issue and the medical evidence required to establish a causal
relationship is rationalized medical evidence.13
ANALYSIS -- ISSUE 2
Appellant has not submitted any evidence supporting that he was disabled after
January 5, 2012 as a result of his employment-related left postconcussion syndrome, neck sprain,
or contusion of the eyelids and periocular area. In a report dated January 5, 2013, Dr. Ross
found that he had continued problems due to disc herniations as a result of his July 27, 2011
injury. On April 17, 2013 Dr. Jalali diagnosed cervical radiculitis, cervical disc displacement,
cervical facet disease, and cervical disc degeneration. Neither physician addressed whether
appellant had any further disability due to his left postconcussion syndrome, neck sprain or a
contusion of the eyelids and periocular area. As appellant has not submitted medical evidence
supporting that he had any disability after January 5, 2012 as a result of the accepted conditions,
he has not met his burden of proof to establish continuing disability.14
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP on this issue within one year of this merit decision, pursuant to 5
U.S.C. § 8128 and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 3
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.15 The opinion of the
physician must be based on a complete factual and medical background of the claimant16 and
must be one of reasonable medical certainty explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.17

11

Manual Gill, 52 ECAB 282 (2001).

12

Id.

13

Paul Foster, 56 ECAB 208 (2004); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

14

See J.B., Docket No. 13-2098 (issued August 19, 2014).

15

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

16

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

17

Judy C. Rogers, 54 ECAB 693 (2003).

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Section 8123(a) 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.18 The implementing regulations state that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third
physician to make an examination. This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.19
ANALYSIS -- ISSUE 3
The Board finds that a conflict exists between Dr. Alemo and Dr. Ross regarding whether
appellant sustained herniated cervical discs and radiculopathy as a result of his July 27, 2011
employment injury. In a report dated January 26, 2012, Dr. Ross found that an MRI scan study
revealed disc herniations at C3-4 and C5-6. She noted that Dr. Alemo did not review the MRI
scan study in determining that appellant had no residuals of his work injury. In a decision dated
March 15, 2012, the hearing representative determined that OWCP had properly terminated
appellant’s compensation benefits but remanded the case for further development of the evidence
to determine whether he established cervical herniated discs and cervical radiculopathy as a
result of his July 27, 2011 work injury. On May 10, 2012 Dr. Alemo discussed an April 19,
2012 MRI scan study of the cervical spine. He diagnosed spondylosis due to aging and
degeneration unrelated to the July 27, 2011 work injury. On June 13, 2012 Dr. Alemo reviewed
the reports from Dr. Ross and Dr. Kimmel and the January 11, 2011 MRI scan study. He again
found that appellant had no further residuals of his accepted employment injury.
In a report dated January 5, 2013, Dr. Ross disagreed with Dr. Alemo’s finding that
appellant’s condition resulted from degeneration and aging rather than the July 27, 2011
employment injury. She opined that appellant sustained disc herniations at C3-4 and C5-6 and
straightening of the lordotic curvature due to his July 27, 2011 work injury. Dr. Ross advised
that the January 11, 2012 cervical MRI scan study showed disc herniations and that the
April 20, 2012 cervical MRI scan study showed some disc desiccation and the sequelae of disc
herniations.
The Board finds that a conflict exists between Dr. Alemo, OWCP referral physician, and
Dr. Ross, appellant’s attending physician, regarding whether appellant sustained cervical
radiculopathy and cervical disc herniations as a result of his July 27, 2011 work injury
necessitating a referral to an impartial medical examiner pursuant to 5 U.S.C. § 8123(a). Section
8123(a) 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.20 On remand, OWCP should refer appellant to an appropriate
specialist for an impartial medical evaluation. After such further development as it deems
18

5 U.S.C. § 8123(a).

19

20 C.F.R. § 10.321.

20

Supra note 18.

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necessary, it should issue a de novo decision regarding whether he sustained cervical disc
herniations and cervical radiculopathy due to his July 27, 2011 employment injury
On appeal, counsel contends that OWCP should develop whether appellant sustained an
emotional condition due to his employment injury. Where a claimant alleges 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.21 Dr. Plumeri’s opinion that appellant’s depression
might be due to pain is speculative in nature and unsupported by rationale and consequently of
little probative value.22
CONCLUSION
The Board finds that OWCP properly terminated appellant’s wage-loss compensation
effective January 5, 2012 and that he has not established that he had continuing
employment-related disability after January 5, 2012 due to his accepted work injury. The Board
further finds that the case is not in posture for decision regarding whether appellant sustained a
cervical disc herniation or cervical radiculopathy due to his July 27, 2011 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the October 17, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part and the case is
remanded for further proceedings consistent with this opinion of the Board.23
Issued: July 24, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board
21

See Jaja K. Asaramo, 55 ECAB 200 (2004).

22

See D.D., 57 ECAB 710 (2006); Willa M. Frazier, 55 ECAB 379 (2004).

23

Michael E. Groom, Alternate Judge, participated in the preparation of this decision but was no longer a member
of the Board effective December 27, 2014.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Philadelphia, PA,
Employer
__________________________________________

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Appearances:
William E. Shanahan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-1365
Issued: January 17, 2007

Case Submitted on the Record

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

JURISDICTION
On May 30, 2006 appellant filed a timely appeal of December 19, 2005 and April 11,
2006 merit decisions of the Office of Workers’ Compensation Programs terminating her
compensation benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
to review the merits of this case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation for wageloss and medical benefits effective December 19, 2005.
FACTUAL HISTORY
On January 31, 2005 appellant, then a 53-year-old transportation security screener, filed
an occupational disease claim alleging that she sustained swelling in her left leg as a result of an

ankle injury. She noted the constant standing required by her federal employment.
employing establishment controverted the claim.

The

Appellant was treated by Dr. Noreen Lewis, an osteopath. In an attending physician’s
report dated February 24, 2005, Dr. Lewis indicated that she had lower extremity edema in her
right ankle as a result of being on her feet all day in her federal employment. In a note dated
February 22, 2005, he indicated that appellant was unable to return to work until approximately
March 15, 2005. By letter dated April 11, 2005, the Office accepted appellant’s claim for
aggravation of a subchondral cyst, left ankle.
In a medical report dated April 18, 2005, Dr. Joseph Bernstein, a Board-certified
orthopedic surgeon, indicated that in February 2004 appellant sprained her ankle. He stated that
he could not explain the ankle swelling on the basis of an injury and that it appeared to be
cardiovascular in origin or possibly lymphedema. Dr. Bernstein recommended consultation with
a vascular surgeon.
By letter dated April 25, 2005, the Office asked Dr. Lewis to respond to various questions
with regard to appellant. In an attending physician’s report dated April 26, 2005, Dr. Lewis
reiterated that appellant’s left ankle injury was caused and aggravated by her work. He indicated
that she was totally disabled commencing January 20, 2005 and that appellant would be totally
disabled through July 11, 2005.
By letter dated May 4, 2005, the Office referred appellant to Dr. Kevin F. Hanley, a
Board-certified orthopedic surgeon, for a second opinion. In a medical report dated May 26,
2005, Dr. Hanley diagnosed appellant with bilateral ankle swelling of unclear etiology. He noted
that she did have swelling of both lower extremities but had no signs of significant
musculoskeletal disease of the ankle. Dr. Hanley did not believe that appellant was fit for duty
due to the swelling but noted that her condition was not due to her employment. He
recommended further investigation. Dr. Hanley stated that appellant did not have an aggravation
of a subchondral cyst in her left ankle.
In a note dated July 29, 2005, Dr. Lewis stated that he “cannot at this time, agree/disagree
with Dr. Hanley’s second opinion.” He stated that he would confer with his colleague.
In a medical report dated September 21, 2005, Dr. Ira C. Sachs, an osteopath, listed his
impressions as chronic left ankle. A magnetic resonance imaging (MRI) scan revealed
degenerative joint disease with exacerbation of same, left ankle synovitis and bilateral ankle
edema.
The Office found that a conflict existed between Dr. Lewis, appellant’s treating
physician, and Dr. Hanley, the second opinion physician, as to whether appellant had recovered
from the effects of the January 10, 2005 work injury. It referred appellant to Dr. Edward J.
Resnick, a Board-certified orthopedic surgeon, for an impartial medical evaluation. In a medical
report dated October 11, 2005, Dr. Resnick listed his diagnoses as morbid obesity, chronic
edema of both lower extremities and degenerative joint disease (osteoarthritis) of the left ankle
and foot. He found that appellant’s left ankle osteoarthritis was “probably intrinsic, related to

2

her morbid obesity and unrelated to an injury.” Dr. Resnick noted that there was no specific
injury to either lower limb. He opined:
“[T]here are no work injuries sustained on January 10, 2005 or at any other time
leading to [appellant’s] present condition. My opinion is that this is an intrinsic
condition, arising from within the body and not produced by external trauma.
Thus, I consider it to be unrelated to her work.”
Dr. Resnick found that appellant had work limitations, but they were not related to any
work injury or complaint.
On October 25, 2005 the Office issued a notice proposing to terminate appellant’s
compensation and medical benefits. It noted that the weight of the medical evidence established
that her accepted condition of aggravation of subchondral cyst in her left ankle had ceased or was
no longer work related. She no longer had any disability or residuals due to her accepted work
condition.
Appellant submitted an April 8, 2004 report from Dr. Armando A. Mendez, a Boardcertified orthopedic surgeon, who treated her for an improved left ankle sprain that she sustained
on March 17, 2004. She also submitted a February 23, 2005 MRI scan of her left ankle that was
interpreted by Dr. John C. Sabatino, a Board-certified radiologist. It showed edema in the soft
tissues of the left ankle with mild degenerative changes and small osteophytes arising from the
tarsal bones. Dr. Sabatino noted no evidence of tendinitis.
In a December 5, 2005 report, Dr. Resnick responded to additional questions sent by the
Office. He indicated that, after reviewing the additional files, he stood by his earlier opinion.
Dr. Resnick stated:
“I do not feel that [appellant] has any residual impairment due to any work injury
sustained January 10, 2005, because I found no evidence of such an injury having
been sustained. Nevertheless, it is my opinion that [she] has swelling and pain in
the lower limbs and has osteoarthritis of the left ankle. However, it remains my
opinion that these conditions are, as I stated in my earlier report, ‘most probably
intrinsic, related to [appellant’s] morbid obesity and unrelated to any injury.’ I
further stated ‘this is an intrinsic condition, arising from within the body and not
produced by external trauma. Thus, I consider it to be unrelated to [appellant’s]
work.’ I did note physical impairment and limitations but, as I said, I felt that
these were ‘unrelated to any work injury or other work complaint.’”
In an undated attending physician’s report, Dr. Brent Wenerman, an osteopath, indicated
that appellant was totally disabled from January 10 to December 1, 2005 and ongoing due to her
work-related left ankle injury.
In a decision dated December 19, 2005, the Office terminated appellant’s compensation
benefits effective that date.
On December 27, 2005 appellant requested review of the written record.
medical evidence was submitted.
3

No new

In a decision dated April 11, 2006, an Office hearing representative affirmed the
December 19, 2005 decision terminating benefits.
LEGAL PRECEDENT
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.1 It may not terminate compensation without establishing
that disability ceased or that it was no longer related to the employment.2 The right to medical
benefits is not limited to the period of entitlement to disability. To terminate authorization for
medical treatment, the Office must establish that appellant no longer has residuals of an
employment-related condition that requires further medical treatment.3
Section 8123(a) provides in pertinent part: If there is a 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.4 In situations where
there are 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 on a proper factual background, must be
given special weight.5
ANALYSIS
The Office properly found that a conflict arose in medical opinion between Dr. Lewis,
appellant’s treating physician, and Dr. Hanley, the second opinion physician. They disagreed as
to whether appellant had any continuing residuals or disability related to her accepted
aggravation of the subchondral cyst of the left ankle. Accordingly, the Office properly referred
her to Dr. Resnick to resolve the conflict.6
In a report dated October 11, 2005, Dr. Resnick provided a comprehensive review of the
medical evidence and reported his findings on examination. He listed his diagnoses as morbid
obesity, chronic edema of both lower extremities and degenerative joint disease of the left ankle
and foot. Dr. Resnick opined that appellant’s left ankle osteoarthritis was related to her morbid
obesity and unrelated to the injury. He believed that the condition was intrinsic, such as her
morbid obesity, arising from the body and not produced by external trauma and, therefore,
unrelated to appellant’s work. Dr. Resnick further explained in a December 5, 2005
supplemental report that, although he did note physical impairment and limitations, these were
1

Jorge E. Stotmayor, 52 ECAB 105, 106 (2000).

2

Mary A. Lowe, 52 ECAB 223, 224 (2001).

3

Frederick Justiniano, 45 ECAB 491 (1994).

4

5 U.S.C. § 8123(a).

5

See Roger Dingess, 47 ECAB 123 (1995); Nathan L. Harrell, 41 ECAB 401, 407 (1990).

6

See 5 U.S.C. § 8123(a).

4

unrelated to any work injury or other work complaint. Moreover, he noted that there was no
residual impairment, as there was no objective evidence that appellant had sustained an injury.
The Board finds that the Office properly relied on the impartial medical examiner’s
report in determining that appellant’s accepted injury to her left ankle had resolved.
Dr. Resnick’s opinion is sufficiently well rationalized and based upon a proper factual
background. He not only examined appellant, but also reviewed her medical records.
Dr. Resnick explained that any remaining disability was not related to her federal employment.
Accordingly, the Office properly accorded special weight to the impartial medical
examiner’s findings. Therefore, as the weight of the medical evidence establishes that
appellant’s accepted work condition had resolved, the Office properly terminated her wage-loss
compensation and medical benefits with respect to the aggravation of the subchondral cyst in the
left ankle.
Prior to the finalization of the proposed termination, appellant submitted additional
evidence in an attempt to show that she remained disabled due to the accepted employment
injuries. However, these reports are insufficient to overcome the special weight of the evidence
as represented by Dr. Resnick.
Dr. Mendez reported on April 8, 2004 that he was treating appellant for improved left
ankle sprain sustained at work. The Board notes that this condition was not accepted by the
Office as a part of her occupational disease claim. Moreover, Dr. Mendez did not provide any
rationale explaining the nexus between appellant’s employment factors and the diagnosed left
ankle sprain. Dr. Sabatino’s interpretation of a February 23, 2005 MRI scan did not address
causal relationship between the findings and appellant’s employment. Dr. Wenerman provided
no explanation to support his conclusion that appellant had employment-related disability.
There is no medical evidence of sufficient weight to either overcome the special weight
of the reports of Dr. Resnick or of comparable weight to create a conflict therewith. The Board
finds that the Office has met its burden of proof in terminating appellant’s compensation benefits
effective December 19, 2005.
CONCLUSION
The Office met its burden of proof to terminate compensation benefits effective
December 19, 2005.

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 11, 2006 and December 19, 2005 are affirmed.
Issued: January 17, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
M.Z., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Milwaukee, WI, Employer
__________________________________________

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

Docket No. 14-1108
Issued: October 6, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On April 15, 2014 appellant filed a timely appeal from the February 12, 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 more than an eight percent impairment of his right
arm.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that subsequent to OWCP’s February 12, 2014 decision, appellant submitted additional
evidence. The Board has no jurisdiction to review this evidence for the first time on appeal. 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. 20
C.F.R. § 501.2(c); James C. Campbell, 5 ECAB 35 (1952).

FACTUAL HISTORY
On January 4, 2011 appellant, then a 51-year-old letter carrier, filed an occupational
disease claim alleging a lack of mobility and strength in his right thumb after 20 years working
eight hours a day, five to six days a week sorting and delivering mail in the performance of duty.
He did not stop work. On April 21, 2011 OWCP accepted appellant’s claim for right hand joint
pain.
On June 30, 2011 appellant underwent an authorized right thumb carpometacarpal joint
arthroplasty. A July 15, 2011 x-ray of the right thumb, read by Dr. John Weber, a Boardcertified diagnostic radiologist, revealed excellent position of the prosthesis component with no
evidence of loosening. An August 16, 2011 x-ray of the right thumb, read by Dr. Weber,
revealed good position of the prosthesis with no evidence of loosening or instability.
On October 21, 2011 appellant requested a schedule award. By letter dated November 4,
2011, OWCP informed him of the evidence needed to support his claim. It requested that he
submit additional medical evidence within 30 days.
In a March 6, 2012 report, Dr. Eric Newgent, an osteopath Board-certified in sleep and
occupational medicine, noted appellant’s history and treatment. He determined that appellant
reached maximum medical improvement. Dr. Newgent advised that he would refer appellant for
a functional capacity evaluation (FCE) and an examination to determine the percentage of
permanent impairment to his thumb. In a July 27, 2012 report, he diagnosed degenerative joint
disease of the right thumb carpometacarpal joint status post arthroplasty on June 30, 2011, work
related.
In an August 13, 2012 report, Dr. Newgent noted appellant’s history, reviewed a
March 22, 2012 functional capacity evaluation and advised that he returned to regular duty
without restrictions. He last saw appellant on July 22, 2012. Dr. Newgent explained that
appellant had severe degenerative joint disease of his right thumb, carpometacarpal joint and
underwent carpometacarpal joint arthroplasty on June 30, 2011, which was successful.
Appellant had occasional pain but for the most part, it had resolved. Dr. Newgent found that
appellant had some restriction of his range of motion to include a 50 percent decrease in
carpometacarpal flexion on the right as compared to the left and a 30 percent decrease of
metacarpophalangeal joint flexion on the right as compared to the left. He also found some
decrease in his carpometacarpal extension, approximately 50 percent on the right as compared to
the left side and his interphalangeal joint extension was about 50 percent decreased on his right
as compared to the left. Dr. Newgent advised that muscle testing showed about 30 percent to 40
percent decrease in strength on his right as compared to his left. He found that the neurologic
examination was intact and there was no atrophy. Dr. Newgent advised that appellant had
reached maximum medical improvement. He referred to the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (6th ed. 2009) hereinafter
A.M.A., Guides. Dr. Newgent referred to Table 15-2, the regional grid for digit impairments and
determined that appellant had a class 3 impairment.3 He utilized the grade modifier adjustments
and found 26 percent impairment to the right thumb.
3

A.M.A., Guides 393.

2

In a June 17, 2013 report, Dr. David H. Garelick, an OWCP medical adviser, reviewed
the A.M.A., Guides. He determined that appellant reached maximum medical improvement on
June 30, 2012. Dr. Garelick explained that he utilized Table 15-2 and Table 15-12.4 He noted
that Dr. Newgent recommended a 26 percent impairment to the digit under Table 15-2, page 394.
The medical adviser indicated that, according to Table 15-12, this corresponded to a permanent
impairment of nine percent to the right upper extremity.
In a February 12, 2014 decision, OWCP granted appellant a schedule award for 21.96
weeks of compensation for an eight percent permanent impairment of the right arm.5
LEGAL PRECEDENT
The schedule award provision of FECA,6 and its implementing federal regulations,7 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.8 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.9
For decisions issued after May 1, 2009, the sixth edition will be used.10
In addressing upper extremity impairments, the sixth edition requires identifying the
impairment class for the diagnosed condition (CDX), which is then adjusted by grade modifiers
based on Functional History (GMFH), Physical Examination (GMPE) and Clinical Studies
(GMCS).11 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).12
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with OWCP’s medical adviser
providing rationale for the percentage of impairment specified.13
4

Id. at 393, 421.

5

Although OWCP’s decision indicated the left arm, the accepted condition was for pain in the joint of the right
thumb and surgery was authorized to the right thumb. The impairment findings were for the right arm.
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

10

FECA Bulletin No. 09-03 (issued March 15, 2009).

11

A.M.A., Guides 494-531; see J.B., Docket No. 09-2191 (issued May 14, 2010).

12

A.M.A., Guides 521.

13

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).

3

ANALYSIS
Appellant provided an August 13, 2012 report from Dr. Newgent, who rated permanent
impairment to his right thumb using the A.M.A., Guides. Dr. Newgent referred to Table 15-2,
the regional grid for digit impairments to determine that appellant had 26 percent impairment to
his right thumb.14
OWCP properly referred the case to Dr. Garelick, an OWCP medical adviser. On
June 17, 2013 Dr. Garelick utilized the findings provided by Dr. Newgent and agreed with the 26
percent rating to the right thumb. He noted that, according to Table 15-12, this corresponded to
nine percent impairment of the right arm.15 Dr. Garelick properly utilized the A.M.A., Guides to
determine that appellant had an impairment of nine percent of the right upper extremity. The
Board notes that OWCP’s February 12, 2014 decision incorrectly found an eight percent
impairment to the left upper extremity.16 The Board will modify the schedule award to reflect
that the impairment is nine percent to the right upper extremity. On return of the record, OWCP
should award an additional one percent for the right upper extremity.
Appellant has not submitted any other medical evidence conforming with the A.M.A.,
Guides to establish greater impairment.
On appeal, appellant argued that he disagreed with the amount of the award and noted
that the award provided by his physician, Dr. Newgent, was more accurate. He explained that
Dr. Newgent spent several hours examining him and providing findings. As noted, the
physicians of record were in agreement regarding the findings. Dr. Garelick’s merely converted
the findings for the digit to the upper extremity as allowed by the A.M.A., Guides.17 Appellant
also noted that the decision by OWCP was inaccurate. The Board has corrected these
inaccuracies and directed OWCP to award an additional one percent.
CONCLUSION
The Board finds that appellant has nine percent impairment of the right upper extremity.

14

See A.M.A., Guides 394.

15

Id. at 421.

16

Supra note 4.

17

Where the residuals of an injury to a member of the body specified in the schedule extend into an adjoining
area of a member also enumerated in the schedule, such as an injury of a finger into the hand, or a hand into the arm,
the schedule award should be made on the basis of the percentage loss of use of the larger member. George A.
Boyd, 56 ECAB 707 (2005). To the extent that appellant asserts that 26 percent impairment of the thumb is more
beneficial than 9 percent of the arm, the Board notes that under 5 U.S.C. § 8107(c)(1), 312 weeks of compensation is
payable for 100 percent loss of use of the arm, while under section 8107(c)(6), 75 weeks of compensation is payable
for 100 percent loss of use of the thumb. For 9 percent impairment of an arm, 28.08 weeks of compensation is
payable (.09 x 312), while for 26 percent impairment of a thumb, 19.5 weeks of compensation is payable (.26 x 75).
Thus, payment for impairment of the arm is more advantageous to appellant.

4

ORDER
IT IS HEREBY ORDERED THAT the February 12, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: October 6, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
U.S. POSTAL SERVICE, HENDERSON POST
OFFICE, Henderson, NC, Employer
__________________________________________

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Appearances:
Dale Snider, for the appellant
Office of Solicitor, for the Director

Docket No. 08-814
Issued: August 4, 2008

Case Submitted on the Record

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

JURISDICTION
On January 23, 2008 appellant, through her representative, filed a timely appeal of the
Office of Workers’ Compensation Programs’ November 20, 2007 merit decision and a nonmerit
decision dated December 13, 2007. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merit and nonmerit issues of this case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof in establishing that she
sustained a recurrence of disability on September 14, 2007 causally related to her February 2,
2004 employment injury; and (2) whether the Office properly refused to reopen appellant’s case
for further consideration of the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On February 2, 2004 appellant, then a 43-year-old rural carrier, filed a traumatic injury
claim alleging that she developed lower back pain as a result of pulling packages into the front

seat of her vehicle. The Office accepted her claim for lumbar strain on March 15, 2004.
Appellant returned to regular duty on May 26, 2004.
Beginning in February 2006, appellant submitted evidence regarding her current low
back condition. On March 14, 2006 Dr. Stephen M. David, a Board-certified orthopedic
surgeon, noted appellant’s previous work injury and found that a March 10, 2006 magnetic
resonance imaging (MRI) scan revealed facet joint synovial hypertrophy L4-5 consistent with
facet joint arthropathy and spondylolisthesis. He recommended L4-5 epidural injection. In a
letter dated March 31, 2006, the Office requested additional factual and medical evidence from
appellant regarding her current back condition.
Appellant underwent an additional spinal MRI scan on August 29, 2007. In a letter dated
September 25, 2007, the Office informed her that if she believed she had developed a recurrence
of her low back condition she should submit additional medical evidence in support of her claim.
Appellant responded on October 3, 2007 and stated that she had continued to experience pain
since her February 2, 2004 employment injury. She noted that she was currently experiencing
radicular pain in the right leg and attributed her condition to her ongoing employment duties of
standing, bending, lifting and twisting.
In a report dated September 14, 2007, Dr. David noted appellant’s accepted February 2,
2004 employment injury and stated that her diagnosed condition was L4-5 degenerative
spondylolisthesis exacerbated by her work injury. He noted that appellant had recently
developed recurrent symptoms of increased pain. Dr. David found an antalgic gait as well as
tenderness over the right sciatic notch and right posterosuperior iliac spine and limited range of
motion of the lumbar spine. He noted decreased sensation in the L5 nerve root distribution on
the right. Dr. David stated, “She is having exacerbation after the work injury a couple of years
ago. Nerve root compression is significant.” He recommended an epidural injection.
By decision dated November 20, 2007, the Office denied appellant’s claim for recurrence
of disability beginning September 14, 2007. It found that appellant failed to submit sufficient
medical opinion evidence to establish a causal relationship between her diagnosed condition and
her accepted employment injury.
Appellant filed a recurrence of occupational disease on November 29, 2007 alleging that
she continued to perform her regular duties as a rural carrier. She stated that the “continuation of
lifting, twisting, turning, standing and sitting resulted in her current pain and need for surgery.
Appellant alleged her condition was “two discs rubbing together and cyst on spine pressing on
nerve.”
Appellant requested reconsideration of the November 20, 2007 decision on
November 30, 2007.
By decision dated December 13, 2007, the Office declined to reopen appellant’s claim for
consideration of the merits. It noted that appellant had requested reconsideration and submitted a
new claim for occupational disease which was not relevant to the issue of lack of medical
evidence for which her claim for recurrence had been denied. The Office stated, “It should be

2

noted a new claim will be created for the Form CA-2 and it will be adjudicated under the new
claim number.”1
LEGAL PRECEDENT -- ISSUE 1
A recurrence of disability is the inability to work after an employee has returned to work,
caused by a spontaneous change in a medical condition which had resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment which
caused the illness.2 Where an employee claims a recurrence of disability due to an accepted
employment-related injury, he or she has the burden of establishing by the weight of reliable,
probative and substantial evidence that the recurrence of disability is causally related to the
original injury. The burden includes the necessity of furnishing evidence from a qualified
physician who, on the basis of a complete and accurate factual and medical history, concluded
that the condition is causally related to the employment injury. Moreover, sound medical
reasoning must support the physician’s conclusion.3
The medical evidence must demonstrate that the claimed recurrence was caused,
precipitated, accelerated or aggravated by the accepted injury. In this regard, medical evidence
of bridging symptoms between the recurrence of the accepted injury must support the
physician’s conclusion of a causal relationship. 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.4
For each period of disability claimed, a claimant has the burden of proving by a
preponderance of the reliable, probative and substantial evidence that she is disabled for work as
a result of her employment injury. Whether a particular injury caused an employee to be
disabled for employment and the duration of that disability are medical issues which must be
provided by the preponderance of the reliable probative and substantial medical evidence.5
ANALYSIS -- ISSUE 1
Appellant submitted reports from Dr. David, a Board-certified orthopedic surgeon,
addressing her current low back condition. On March 14, 2006 Dr. David reported appellant’s
history of employment injury and diagnosed facet joint arthropathy and spondylolisthesis based
on an MRI scan. He did not offer an explanation of how appellant’s current condition was due to
the accepted February 2, 2004 employment injury. Dr. David did not offer any explanation of
1

As the Office has not issued a final decision addressing appellant’s claim for a new occupational disease dated
November 29, 2007, the Board will not address this issue for the first time on appeal. 20 C.F.R. § 501.2(c).
2

20 C.F.R. § 10.5(x).

3

Ricky S. Storms, 52 ECAB 349 351-52 (2001).

4

Id.

5

Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

3

how the changes in appellant’s diagnosed condition evolved or whether her condition was related
to her employment injury. This report is not sufficient to meet appellant’s burden of proof in
spontaneous change in her injury-related condition nor does it demonstrate that the claimed
recurrence was caused, precipitated, accelerated or aggravated by the accepted injury. Therefore,
this report is not sufficient to meet appellant’s burden of proof.
Dr. David submitted an additional report dated September 14, 2007. He noted that
appellant had symptoms of increased pain and described her accepted employment-related injury
and resulting condition. Dr. David stated, “She is having exacerbation after the work injury a
couple of years ago. Nerve root compression is significant.” While he opined that appellant’s
current condition was an “exacerbation” of her 2004 work injury, he did not offer any
explanation of how he reached that conclusion. Dr. David did not discuss appellant’s allegations
that her current condition was the result of her additional job exposures and did not explain why
he believed that her current condition was a spontaneous worsening of her accepted work-related
condition. Due to these deficiencies, this report is not sufficient to meet appellant’s burden of
proof in establishing a recurrence of disability and the Office properly denied her claim.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,6 the Office’s regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.7 When a claimant fails to meet one of the above standards, the Office
will deny the application for reconsideration without reopening the case for review on the
merits.8
ANALYSIS -- ISSUE 2
In support of her November 30, 2007 request for reconsideration of the Office’s
November 20, 2007 decision denying her claim for a recurrence of disability causally related to
her February 2, 2004 employment injury, appellant submitted a new claim for an occupational
disease. As she has attributed her current condition to additional employment exposures of
lifting, twisting, turning, standing and sitting, this claim form fails to provide relevant new
evidence supporting a claim for a spontaneous recurrence of disability due to the February 2,
2004 employment injury. Instead, as the Office properly noted, this claim form requires
additional development of the alleged occupational disease. An occupational disease or illness
means a condition produced by the work environment over a period longer than a single workday
or shift.9 As claims for a recurrence of disability and a new occupational disease are by
6

5 U.S.C. §§ 8101-8193, § 8128(a).

7

20 C.F.R. § 10.606(b)(2).

8

20 C.F.R. § 10.608(b).

9

20 C.F.R. § 10.5(q).

4

definition mutually exclusive, appellant’s submission of a new occupational disease claim cannot
constitute relevant and pertinent new evidence in support of her claim for a recurrence of
disability due to the February 2, 2004 employment injury.
CONCLUSION
The Board finds that appellant has not submitted the necessary medical opinion evidence
to establish that she sustained a recurrence of disability due to her February 2, 2004 employment
injury in 2006. The Board further finds that the Office properly denied appellant’s request for
reconsideration on the grounds that she failed to submit relevant and pertinent new evidence.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 13 and November 20, 2007 are affirmed.
Issued: August 4, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Northport, NY, Employer
__________________________________________

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

Docket No. 16-1881
Issued: March 17, 2017

Case Submitted on the Record

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

JURISDICTION
On September 22, 2016 appellant, through counsel, filed a timely appeal from a July 29,
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.

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 established more than two percent permanent impairment
of the left upper extremity, for which he previously received a schedule award.
FACTUAL HISTORY
OWCP accepted that on December 10, 2001 appellant, then a 47-year-old medical clerk,
sustained left shoulder, upper arm, and acromioclavicular strains and a neck strain when he
braced a wheelchair to prevent a patient from falling.3 The record also indicates that he had
previously sustained an unspecified trapezial strain in July 1999 when he tried to prevent a
coworker from falling.4
A November 14, 2005 magnetic resonance imaging (MRI) scan of the cervical spine
showed multilevel degenerative disc disease with central canal stenosis and compression at C4-5.
Dr. Edward C. Weissman, an attending Board-certified internist, opined on June 16, 2006 that
the C4-5 stenosis and cord compression contributed to appellant’s left shoulder pain. He found
appellant totally disabled for work.
Appellant resigned from federal employment on July 18, 2006.5
A January 31, 2008 MRI scan of the left shoulder demonstrated mild tendinopathy, a
possible supraspinatus tear, degenerative changes, mild impingement, and mild fraying of the
superior labrum.
On October 21, 2011 appellant claimed a schedule award (Form CA-7). In support of his
claim, he submitted a January 5, 2012 report from Dr. Stuart A. Goodman, an attending Boardcertified neurologist. Dr. Goodman reviewed medical records and provided a history of injury.
He related appellant’s symptoms of chronic neck and left shoulder pain. On examination,
Dr. Goodman observed tenderness and mild spasm of the paracervical muscles and left shoulder,
and difficulty with moving the left arm through full ranges of motion at shoulder level. He
diagnosed residual sprains of the left shoulder and neck with radicular features. Referring to the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent

3

OWCP initially denied the claim by decision dated May 8, 2007. Following additional development, OWCP’s
Branch of Hearings and Review reversed the May 8, 2007 decision on July 27, 2007.
4

Any claim regarding this matter is not before the Board on the present appeal.

5

Following his resignation from federal employment, appellant claimed wage-loss compensation commencing
March 14, 2006. OWCP developed these claims as a recurrence of disability. By decision dated October 31, 2007,
it denied appellant’s claim for recurrence of disability as causal relationship was not established. On June 3, 2010
appellant requested an oral hearing. OWCP denied his request for hearing in a July 7, 2010 decision, as it was made
more than 30 days following the October 31, 2007 decision. In an October 12, 2010 letter, appellant requested
reconsideration. By decision dated October 28, 2010, OWCP denied reconsideration, finding that the request was
untimely filed and failed to demonstrate clear evidence of error.

2

Impairment (hereinafter, A.M.A., Guides), Dr. Goodman found 23 percent impairment of the left
upper extremity due to a class 1 cervical spine sprain according to Table 17-2.6
An OWCP medical adviser reviewed Dr. Goodman’s report on May 19, 2002 and found
that he had misapplied the A.M.A., Guides, as a class 1 cervical sprain would correlate to three
to five percent impairment of the arm according to Table 15-11.7 He calculated three percent
impairment of the left upper extremity using Table 15-5 at page 403.8 The medical adviser
opined that appellant had reached maximum medical improvement (MMI) as of December 7,
2002, one year from the date of injury.
On January 24, 2013 OWCP obtained a supplemental report from Dr. Goodman, who
reiterated that appellant had 23 percent impairment of the left upper extremity due to cervical
spine impairment. An OWCP medical adviser reviewed Dr. Goodman’s new report on
September 21, 2013. The medical adviser opined that as appellant had no objective cervical
radiculopathy, it was inappropriate to rate his impairment using Table 17-2, which pertained only
to impairments caused by cervical spine involvement. The medical adviser found three percent
impairment of the left arm due to the accepted left shoulder sprain.
On August 15, 2014 OWCP obtained a second opinion from Dr. Robert A. Smith, a
Board-certified orthopedic surgeon. Dr. Smith reviewed the medical record and a statement of
accepted facts. He noted that appellant had previously undergone an anterior cervical
discectomy and fusion from C3 to C5 on September 26, 2013, unrelated to the claim. Dr. Smith
noted that a February 12, 2014 postsurgical electromyogram showed cervical radiculopathy, but
that this was not attributable to the accepted injury as there was no evidence of radiculopathy
prior to the surgery. On examination he found no spasm, rigidity, or limited motion in the
cervical spine or left shoulder. Dr. Smith opined that the accepted cervical sprain had resolved
without residuals, but that the left shoulder and acromioclavicular sprain remained active. He
found that appellant had attained MMI regarding the 2001 injuries. Referring to Table 15-5,
page 403, of the A.M.A., Guides, Dr. Smith assessed a class 1 Class of Diagnosis (CDX)
impairment for a painful injury with residual symptoms and inconsistent clinical findings. He
selected a grade modifier for Functional History (GMFH) of 1, a grade modifier for Physical
Examination (GMPE) of 1, and a grade modifier for Clinical Studies (GMCS) of 1. Applying
the net adjustment formula, (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX), or (1-1) + (1-1) +
(1-1), Dr. Smith found a net adjustment of zero, leaving the class 1 CDX at the default grade of
three percent. He opined that appellant had three percent impairment of the left arm due to
residuals of the accepted left shoulder and acromioclavicular sprain.
An OWCP medical adviser reviewed Dr. Smith’s report on November 7, 2014 and
concurred with his findings and calculations with the exception of the GMPE. The medical
adviser opined that appellant had a GMPE of zero as Dr. Smith had not performed proper range
6

Table 17-2, page 564 of the A.M.A., Guides (6th ed. 2009) is titled “Cervical Spine Regional Grid.” This table
rates whole person impairment.
7

Table 15-11, page 420 of the A.M.A., Guides is titled “Impairment Values Calculated From Upper Extremity
Impairment.”
8

Table 15-5, page 403 of the A.M.A., Guides is titled “Shoulder Regional Grid: Upper Extremity Impairments.”

3

of motion testing.9 Therefore, any difficulty with range of motion was not ratable. Applying the
net adjustment formula (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX), or (1-1) + (0-1) + (11) resulted in a net adjustment of -1, lowering the default three percent CDX to two percent. The
medical adviser therefore found two percent impairment of the left upper extremity.
By decision dated September 1, 2015, OWCP issued a schedule award for two percent
impairment of the left upper extremity, based on OWCP’s medical adviser’s review of
Dr. Smith’s opinion.
In a September 21, 2015 letter, counsel requested a telephonic hearing, held on
June 17, 2016. At the hearing, he asserted that new medical evidence established a greater
percentage of permanent impairment. Counsel subsequently provided a May 9, 2016 report from
Dr. Robert W. Macht, a general surgeon. Dr. Macht described the accepted December 7, 2001
injury and related appellant’s symptoms of cervical spine and left shoulder pain and stiffness,
with intermittent paresthesias into the left hand. Appellant completed a QuickDASH
questionnaire with a score of 75. On examination, Dr. Macht noted limited motion of the left
shoulder, with forward elevation at 160 degrees, backwards elevation at 50 degrees, abduction at
150 degrees, adduction at 50 degrees, external rotation at 40 degrees and internal rotation at 80
degrees. He diagnosed a “traumatic injury to left shoulder with tendinitis, tendinopathy and
partial thickness tear.” Dr. Macht opined that the range of motion methodology for assessing
permanent impairment was preferable to the diagnosis-based impairment (DBI) methodology for
assessing permanent impairment. He found that according to Table 15-34,10 appellant had three
percent impairment of the left upper extremity due to loss of forward elevation, three percent for
limited adduction, and two percent impairment for loss of external rotation, totaling eight percent
impairment. Dr. Macht opined that appellant’s QuickDASH score of 75 equaled a grade 3
GMFH. He also assessed a grade 1 modifier for loss of range of motion according to
Table 15-35.11 Dr. Macht explained that appellant had a grade 2 GMFH, according to Table 1536,12 and the “range of motion impairment is multiplied by 10 percent.” He therefore found nine
percent impairment of the left arm.
By decision dated July 29, 2016, an OWCP hearing representative affirmed the
September 1, 2015 decision, finding that Dr. Macht’s opinion was based on an incomplete
medical history. The hearing representative noted that Dr. Macht had not reviewed the medical
record, failed to mention the September 26, 2013 surgery, and he diagnosed conditions that
OWCP had not accepted. Therefore, Dr. Macht’s report was of no probative value in
establishing the percentage of permanent impairment.

9

The medical adviser failed to account for or explain the importance of other physical examination findings in
Dr. Smith’s examination report.
10

Table 15-34, page 475 of the A.M.A., Guides is titled “Shoulder Range of Motion.”

11

Table 15-35, page 477 of the A.M.A., Guides is titled “Range of Motion Grade Modifiers.”

12

Table 15-36, page 477 of the A.M.A., Guides is titled “Shoulder Range of Motion.”

4

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.13 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.14 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 A.M.A., Guides as the appropriate standard for
evaluating schedule losses.15
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).16 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.17
ANALYSIS
The issue on appeal is whether appellant established more than two percent permanent
impairment of the left upper extremity, for which he previously received a schedule award.
The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the DBI or the range of
motion methodology when assessing the extent of permanent impairment for schedule award
13

See 20 C.F.R. §§ 1.1-1.4.

14

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C.
§ 8107(c)(1).
15

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

16

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 and Permanent Disability Claims,
Chapter 2.808.5a (February 2013).
17

Isidoro Rivera, 12 ECAB 348 (1961).

5

purposes.18 The purpose of the use of uniform standards is to ensure consistent results and to
ensure equal justice under the law to all claimants.19 In T.H., the Board concluded that OWCP
physicians are at odds over the proper methodology for rating upper extremity impairment,
having observed attending physicians, evaluating physicians, second opinion physicians,
impartial medical examiners, and district medical advisers use both DBI and range of motion
methodologies interchangeably without any consistent basis. Furthermore, the Board has
observed that physicians interchangeably cite to language in the first printing or the second
printing when justifying use of either range of motion or DBI methodology. Because OWCP’s
own physicians are inconsistent in the application of the A.M.A., Guides, the Board finds that
OWCP can no longer ensure consistent results and equal justice under the law for all claimants.20
In light of the conflicting interpretation by OWCP of the sixth edition with respect to
upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing
regulations and/or internal procedures, to establish a consistent method for rating upper
extremity impairment. In order to ensure consistent results and equal justice under the law for
cases involving upper extremity impairment, the Board will set aside the July 29, 2016 decision.
Following OWCP’s development of a consistent method for calculating permanent impairment
for upper extremities to be applied uniformly, and such other development as may be deemed
necessary, OWCP shall issue a de novo decision on appellant’s claim for an upper extremity
schedule award.
CONCLUSION
The Board finds that this case is not in posture for decision

18

T.H., Docket No. 14-0943 (issued November 25, 2016).

19

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

20

Supra note 18.

6

ORDER
IT IS HEREBY ORDERED THAT the July 29, 2016 decision of the Office of
Workers’ Compensation Programs is set aside, and the case remanded for further action
consistent with this decision.
Issued: March 17, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.W., Appellant
and
DEPARTMENT OF THE NAVY, GREAT
LAKES NAVAL BASE, Great Lakes, IL,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 08-722
Issued: August 7, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 14, 2008 appellant filed an appeal of a June 28, 2007 decision of the Office
of Workers’ Compensation Programs denying her occupational disease claim and an October 18,
2007 decision denying her request for a review of the written record. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether appellant has established that she sustained right hand and
wrist conditions in the performance of duty; and (2) whether the Office properly denied
appellant’s request for a review of the written record.
FACTUAL HISTORY
On February 12, 2007 appellant, then a 50-year-old letter carrier, filed an occupational
disease claim (Form CA-2) asserting that, on or before August 1, 2006, she sustained numbness

and weakness of the fingers on her right hand due to “constant and repetitive use of [her] hands”
while casing and delivering mail. She did not stop work at the time she filed her claim.
In a March 6, 2007 letter, the Office advised appellant of the type of additional evidence
needed to establish her claim. It requested a detailed description of the work factors she alleged
caused the claimed right hand condition. The Office also emphasized the importance of
submitting a rationalized statement from her attending physician explaining how and why her
work duties would cause the claimed conditions.
Appellant submitted an April 17, 2007 report from Dr. Mehdi N. Adham, an attending
Board-certified orthopedic surgeon, who stated that appellant had “carpal tunnel syndrome which
history, physical examination and nerve test [were] all positive.” Dr. Adham opined that the
“cause of [appellant’s] symptoms [was] related to working as a mail carrier.”
By decision dated June 28, 2007,1 the Office denied appellant’s claim on the grounds that
causal relationship was not established. It accepted that appellant’s duties required repetitive use
of the right hand. However, Dr. Adham did not provide a history of injury referencing specific
work factors or explain how her federal duties would cause the diagnosed conditions.
In a letter dated September 20, 2007 and date stamped received by the Office’s Branch of
Hearings and Review on September 27, 2007, appellant requested a review of the written record.
The envelope and postmark of the hearing request are not of record. Appellant submitted
additional evidence.
An April 9, 2007 nerve conduction velocity testing of the right upper extremity showed
sensory and motor abnormalities in the median nerve at the wrist and the ulnar nerve at the wrist
and elbow.
In a July 16, 2007 report, Dr. Adham related appellant’s account of heavy lifting at the
employing establishment, with recent numbness and tingling in the right hand. On examination
of the right hand and wrist, he found positive Tinel’s and Phalen’s signs, a positive Tinel’s sign
at the ulnar nerve, positive flexion test, a tender radial tunnel and a dorsal wrist ganglion.
Dr. Adham diagnosed a right dorsal wrist ganglion, right carpal and radial tunnel syndromes and
right cubital canal syndrome. He opined that the cause of appellant’s “carpal tunnel, cubital
canal, radial tunnel syndrome and ganglion are related to her job accumulative trauma disorder”
due to working 30 years as a letter carrier. Dr. Adham recommended carpal and radial tunnel
surgery with excision of the ganglion.
By decision dated October 18, 2007, the Office denied appellant’s request for a review of
the written record on the grounds that it was not timely filed. It found that appellant’s request for
a hearing was dated September 20, 2007, more than 30 days after issuance of its June 28, 2007
decision. The Office additionally denied appellant’s request on the grounds that the issues
involved could be addressed equally well by requesting reconsideration and submitting new

1

The Office issued two copies of the June 28, 2007 decision, the second with a corrected address. The two
decisions are otherwise identical.

2

evidence establishing that the claimed right hand and wrist conditions were causally related to
factors of her federal employment.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act2 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 filed within the applicable time limitation; that an injury was sustained while in the
performance of duty as alleged; and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.3 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.4
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) 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 is generally 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 medial certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.5
ANALYSIS -- ISSUE 1
The Office accepted that appellant’s work as a letter carrier entailed lifting and repetitive
hand and wrist motion. Also, appellant submitted April 9, 2007 studies confirming the presence
of right carpal and ulnar nerve syndromes and medical reports diagnosing cubital tunnel
syndrome and a dorsal ganglion. To meet her burden of proof, she must establish a causal
relationship between the accepted work factors and the claimed right hand and wrist conditions.

2

5 U.S.C. §§ 8101-8193.

3

Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Joe D. Cameron, 41 ECAB 153 (1989).

4

Alvin V. Gadd, 57 ECAB 172 (2005); Michael E. Smith, 50 ECAB 313 (1999).

5

Michael S. Mina, 57 ECAB 379 (2006); Solomon Polen, 51 ECAB 341 (2000).

3

In support of her claim, appellant submitted April 17 and July 16, 2007 reports from
Dr. Adham, an attending Board-certified orthopedic surgeon, who noted that appellant had
worked as a letter carrier for 30 years and performed heavy lifting. Dr. Adham opined that
appellant’s carpal tunnel, cubital canal and radial tunnel syndromes and dorsal ganglion were
related to “accumulative trauma disorder” sustained while “working as a mail carrier.”
However, he did not provide medical rationale explaining how and why heavy lifting, casing
mail, delivering mail or other specific work tasks would cause any of the diagnosed conditions.
Thus, Dr. Adham’s opinion is insufficient to establish causal relationship in this case.6 The
Board notes that appellant was advised by March 6, 2007 letter of the crucial importance of
submitting rationalized medical evidence in support of her claim. However, appellant did not
submit such evidence. Therefore, she failed to meet her burden of proof.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Act 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 claim before a representative of the Secretary.”7
Sections 10.617 and 10.618 of the federal regulations implementing this section of the Act
provide that a claimant shall be afforded a choice of an oral hearing or a review of the written
record by a representative of the Secretary.8 The Office’s procedures, which require the Office
to exercise its discretion to grant or deny a hearing when the request is untimely or made after
reconsideration, are a proper interpretation of the Act and Board precedent.9
ANALYSIS -- ISSUE 2
The Office denied appellant’s claim by June 28, 2007 decision. Appellant’s letter
requesting a review of the written record was dated September 20, 2007 and stamped received by
the Office’s Branch of Hearings and Review on September 27, 2007. Both these dates are more
than 30 days after the June 28, 2007 decision. Thus, the Office properly found that appellant’s
request for a review of the written record was not timely filed under section 8124(b)(1) of the
Act and that he was not entitled to an examination of the written record as a matter of right.
The Office then exercised its discretion and determined that appellant’s request for a
review of the written record could equally well be addressed by requesting reconsideration and
submitting additional evidence establishing that the claimed right carpal tunnel syndrome was
causally related to her federal employment. As the only limitation on the Office’s authority is
reasonableness, 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 deductions as established.10 The Board finds that there is no evidence of record that the
6

Sedi L. Graham, 57 ECAB 494 (2006).

7

5 U.S.C. § 8124(b)(1).

8

20 C.F.R. §§ 10.616, 10.617.

9

Hubert Jones, Jr., 57 ECAB 467 (2006).

10

Joseph P. Hoffman, 57 ECAB 456 (2006).

4

Office abused its discretion in denying appellant’s request. Thus, the Board finds that the
Office’s denial of appellant’s request for a review of the written record was proper under the law
and the facts of this case.
CONCLUSION
The Board finds that appellant has not established that she sustained right carpal tunnel
syndrome in the performance of duty. The Board further finds that the Office properly denied
appellant’s request for a review of the written record.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 18 and June 28, 2007 are affirmed.
Issued: August 7, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5