United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________

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

Docket No. 11-531
Issued: November 3, 2011

Case Submitted on the Record

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

JURISDICTION
On December 30, 2010 appellant filed a timely appeal of an October 22, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her recurrence
claim. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has established that she sustained a recurrence of total
disability for intermittent periods from July 4 to August 6, 2009 and total disability for the period

1

5 U.S.C. §§ 8101-8193.

September 3 to December 8, 2009 causally related to her accepted employment-related
conditions.
FACTUAL HISTORY
On November 6, 2007 appellant, then a 35-year-old city letter carrier, was descending
stairs when a step crumbled and she caught hold of a rail and twisted her back. OWCP accepted
the claim for aggravation of degenerative disc disease and right ankle sprain. It approved an L34 decompression and fusion, which appellant underwent on June 5, 2008, as well as a recurrence
of May 6, 2008.
On April 21, 2009 Dr. Peter L. Bono, an orthopedic surgeon and appellant’s treating
physician, stated that appellant was capable of returning to work part time with restrictions of no
lifting more than 10 pounds; sitting and standing as tolerated and limited bending for one month.
Thereafter, he opined that appellant would be capable of working full time with restrictions.
Appellant returned to part-time limited-duty work on or about April 27, 2009; however, after she
worked four hours on April 27, 2009, the employing establishment sent her home with no
available work. She returned to part-time limited-duty work on or about July 13, 2009. On
July 14, 2009 appellant reinjured her back. Under claim number xxxxxx509, OWCP accepted a
lumbar contusion and cervical strain. Appellant lost time from work from July 14 to 20, 2009.
She returned to work July 21, 2009 with the same restrictions held under the current claim for
four hours daily. Appellant received compensation for four hours daily from April 27 through
September 25, 2009.
On September 3, 2009 Dr. Eric A. Kovan, a Board-certified physiatrist, provided a
history of the November 6, 2007 injury and subsequent surgery, which he noted was performed
on December 5, 2008. Appellant complained of increased neck and right arm pain. She was
neurologically intact on examination with intact sensation and decreased lumbar extension. An
impression of back pain secondary to fusion postlaminectomy syndrome with radicular pain and
right C6-C7 radiculopathy was provided. Dr. Kovan noted that appellant was off work and
advised lumbar epidurals and repeat electromyogram (EMG) and magnetic resonance imaging
(MRI) testing. In an accompanying form report, he indicated that appellant was “unable to
return to employment at this time” due to back/neck pain. Dr. Kovan also filled out a form
referring appellant for an epidural injection.
On September 4, 2009 appellant filed a Form CA-2a, recurrence of disability claim,
indicating that her physician took her off work on September 3, 2009 due to worsening
symptoms. She also claimed total disability during the period July 4 through September 25,
2009, for a total of 351.85 hours. This consisted of intermittent periods July 4 to 10,2 16 to 20,
2009;3 and August 5 to 6, 2009. The record indicates that appellant performed limited-duty parttime work July 13 and 14, July 21 through 24, July 27 through 31, August 3 and 4, 2009 and, as
noted, received four hours compensation for the period July 4 through September 25, 2009.

2

Appellant claimed eight hours disability on July 4, 7, 8, 9 and 10, 2009.

3

Appellant claimed eight hours disability on July 16, 17 and 20, 2009.

2

In an October 15, 2009 letter, OWCP advised appellant that her claim for wage-loss
compensation for the period July 4 through September 25, 2009 had been processed for a total of
218.54 hours of leave without pay. It indicated that she had been medically released to work part
time four (4) hours per day with restrictions; therefore she was compensated for four hours of
leave without pay instead of the eight hours claimed on dates July 4 through 10, 2009 and
August 4 through 6, 2009. OWCP noted that appellant received continuation of pay under claim
number xxxxx509 for the dates July 15 to 20, 2009. It also noted the deficiencies in her
recurrence claim and advised her of the evidence necessary to support a recurrence claim either
because her limited-duty assignment had changed or her condition worsened.
OWCP received several medical reports. In an October 8, 2009 report, Dr. Kovan noted
that appellant had continued complaints of pain in the neck and arm. He noted that the EMG
was normal and the MRI scan revealed disc changes consistent with C6 radiculopathy.
Examination findings revealed weakness in the right arm. Dr. Kovan diagnosed back pain and
right C6-7 radiculopathy secondary to work injuries. He recommended cervical epidural
injections and follow-up in one month after receiving the shots. Dr. Kovan did not comment on
appellant’s work status. In a November 5, 2009 report, he noted improving right arm radicular
pain. Dr. Kovan stated that appellant was unable to work without restrictions and opined that she
could work a sedentary job. Appellant underwent cervical epidural injections on October 15,
November 3 and 17, 2009.
On December 1, 2009 appellant called OWCP and indicated that the employing
establishment did not have work to accommodate her for four hours daily. She was advised to
submit evidence supporting this.
In his December 3, 2009 report, Dr. Kovan provided the same history of injury, as noted
in prior reports. Examination findings revealed nonfocal regarding strength, reflexes and
sensation. Dr. Kovan opined that there was some minimal weakness in the right arm and that
appellant’s gait improved. He provided the same diagnosis, as noted in previous reports and
released appellant to work with restrictions.
On December 31, 2009 appellant sustained a new injury.
xxxxxx071, OWCP accepted the condition of sciatica.

Under claim number

By decision dated January 13, 2010, OWCP denied compensation for intermittent lost
time for July 4 to August 6, 2009 and total disability beginning September 3, 2009 on the basis
that the medical evidence failed to establish a worsening of the accepted injury-related
conditions.
On February 11, 2010 appellant requested an oral hearing, which was held on
May 25, 2010. She testified that she stopped work September 3 through December 8, 2009 due
to increased pain, tingling and numbness of her arms, legs, shoulders and low back. Appellant’s
attorney noted that Dr. Kovan took appellant off work September 3, 2009 and that she underwent
several epidural injections in October and November 2009, which would have rendered her
totally disabled for at least the day of the procedure. Treatment notes reflecting ongoing care
was received into evidence; however, it did not contain a medical opinion addressing the period
July 2009 through December 2009.

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By decision dated August 25, 2010, an OWCP hearing representative affirmed the
January 13, 2010 decision as the medical evidence failed to establish a recurrence of total
disability for the periods claimed, but modified the prior decision to reflect entitlement to an
additional four hours of compensation for medical treatment received on October 15,
November 3 and 17, 2009.4
On September 16, 2010 appellant requested reconsideration. In support of her request,
duplicative evidence previously of record was submitted along with new evidence from
Dr. Kovan. In a July 23, 2010 report, Dr. Kovan stated that appellant’s pain issue was secondary
to her status post fusion and laminectomy which caused her to have residual effects. He noted
that she had episodes of missing work beginning September 3, 2009, proceeded with several
weeks of two disabilities on July 4 to 10, 2009 and August 4 to 9, 2009. Dr. Kovan opined that
due to appellant’s myofascial issues secondary to her back pain those were appropriate times to
be off work. On September 20, 2010 he noted appellant’s treatment and progress. No discussion
on the period of claimed disability was provided. In a September 22, 2010 report, Dr. Kovan
addressed appellant’s period of disability from September 3 to December 8, 2009. He stated that
the medical evidence indicative of total disability included positive MRI scan with disc
abnormalities of the neck area. Dr. Kovan also stated that appellant had weakness, which he had
noted in his reports, which was consistent with radiculopathy and lumbar abnormalities. Thus,
he recommended that she only do a sedentary job.
By decision dated October 22, 2010, OWCP affirmed the denial of appellant’s recurrence
claim.
LEGAL PRECEDENT
OWCP’s regulations define the term recurrence of disability as follows:
Recurrence of disability means an 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
that caused the illness. This term also means an inability to work that takes place when a lightduty assignment made specifically to accommodate an employee’s physical limitations due to his
or her work-related injury or illness is withdrawn or when the physical requirements of such an
assignment are altered so that they exceed his or her established physical limitations.5 OWCP’s
procedure manual provides that a recurrence of disability also includes worsening of disability
due to an accepted consequential injury.6
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence of
record establishes that he or she can perform the light-duty position, the employee has the burden
4

This was processed under subsidiary claim number xxxxxx509.

5

20 C.F.R. § 10.5(x).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(b) (May 1997).

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to establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and show that he or she cannot perform such light duty. As part of this burden, the
employee must show either a change in the nature and extent of the injury-related condition or a
change in the nature and extent of the light-duty requirements.7 To establish a change in the
nature and extent of the injury-related condition, there must be probative medical evidence of
record. The evidence must include a medical opinion, based on a complete and accurate factual
and medical history, and supported by sound medical reasoning, that the disabling condition is
causally related to employment factors.8
ANALYSIS
Appellant’s claim was accepted for aggravation preexisting degenerative disc disease,
lumbar strain and a right ankle strain. She underwent an authorized lumbar fusion on
June 5, 2008. Appellant’s treating physician Dr. Bono, released appellant to light duty four
hours daily with restrictions on April 21, 2009. Under claim number xxxxxx509, OWCP
accepted the conditions of cervical and lumbar strains due to a July 14, 2009 injury. Appellant
was off work from July 14 to 21, 2009. She returned to her prior light-duty assignment four
hours daily with lifting restrictions. Under claim number xxxxxx071, OWCP accepted sciatica
for a December 31, 2009 injury.9 Appellant claimed intermittent periods of disability for the
period July 4 to August 6, 2009 and for the period September 3 to December 8, 2009. The
record reflects that she performed limited duties four hours daily until she stopped working
entirely on September 3, 2009. Appellant was paid four hours of compensation for each day. On
October 15, 2009 OWCP advised her of the type of medical and factual evidence needed to
establish her claim for a recurrence of disability.
Appellant asserted on December 1, 2009 that the employer could not accommodate her
limited duty four hours daily. However, there is no evidence of file to support this assertion.
Appellant worked limited duty four hours daily for intermittent dates during her claimed period
of disability. Thus, she has not established a change in the nature and extent of her light-duty job
requirements. Appellant must thus provide medical evidence establishing that she was disabled
due to a worsening of her accepted work-related conditions.10
With regard to the period July 4 to August 6, 2009, there is no medical evidence of record
establishing that appellant was disabled from working limited duty during that period due to the
work injury. The record reflects that she sustained a new injury July 14, 2009 and was
compensated until July 21, 2009. Appellant then resumed four hours light duty and then was off
work on August 5 and 6, 2009. As there is no medical evidence establishing that she had

7

Albert C. Brown, 52 ECAB 152 (2000); Mary A. Howard, 45 ECAB 646 (1994); Terry R. Hedman, 38 ECAB
222 (1986).
8

Maurissa Mack, 50 ECAB 498 (1999).

9

Claim numbers xxxxx509 and xxxxx071 have been administratively combined into the current claim, as the
master file.
10

Jackie D. West, 54 ECAB 158 (2002); Terry R. Hedman, 38 ECAB 222 (1986).

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increased disability from July 4 to August 6, 2009 as a result of her work-related conditions, she
is not entitled to additional compensation for time lost from work during that period.
For the period September 3 to December 8, 2009, appellant submitted numerous medical
reports from Dr. Kovan. It is noted that Dr. Bono, the treating physician of record, opined that
her condition had improved since the surgery and that she was capable of working part time with
restrictions to gradually increase to eight hours per day with restrictions. In his September 3,
2009 report, Dr. Kovan noted the history of the November 6, 2007 injury. While he advised that
appellant had radicular pain due to secondary postlaminectomy syndrome, in addition to cervical
radiculopathy, he failed to provide objective findings that her accepted conditions had worsened
to the extent that she could not work in her part-time limited-duty position. Dr. Kovan did not
offer any opinion to explain why appellant was unable to perform her part-time limited-duty
position and the examination findings were generally within normal limits with only decreased
extension of the lumbar spine noted. His October 8, 2009 report did not comment on her work
status. In his November 5, 2009 report, Dr. Kovan opined that appellant was able to work a
sedentary job but failed to provide any details or indicate how such a sedentary position would
differ from her part-time limited-duty position that was provided by the employing
establishment. On July 23, 2010 he opined that her pain issues were secondary to the L3-4
decompression and fusion of June 5, 2008 and that she had residual deficits. While Dr. Kovan
opines that it was appropriate for appellant to be off work due to her myofascial issues secondary
to back pain, he failed to provide any objective findings to explain how her accepted conditions
had worsened. In his September 22, 2010 report, he opined that appellant was totally disabled
from September 3 to December 8, 2009 due to cervical radiculopathy and lumbar pain, stenosis,
which was demonstrated by MRI scan and weakness in the extremities on examination.
However, Dr. Kovan failed to provide a well-rationalized medical explanation as to how this
resulted from a spontaneous material worsening of the accepted conditions. Furthermore, he did
not address how appellant was unable to perform the light duties she was working at the time she
stopped working on September 3, 2009. Thus, Dr. Kovan’s reports are insufficient to establish
that she sustained a material worsening of her accepted work-related conditions. Other reports
submitted by appellant did not address her claimed recurrent disability on or after
September 3, 2009.
Appellant has not met her burden of proof in establishing that there was a change in the
nature or extent of the injury-related condition or a change in the nature and extent of the lightduty requirements which would prohibit her from performing the light-duty position she assumed
after she returned to work.
On appeal, appellant’s counsel argues that OWCP’s decision is contrary to fact and law.
However, the issue is medical in nature. As noted above, appellant did not meet her burden of
proof to submit medical evidence establishing that she was unable to perform her light-duty
position for intermittent periods from July 4 to August 6, 2009 and for the period September 3 to
December 8, 2009 due to a spontaneous change in her accepted conditions.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.

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CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish a recurrence
of disability for the intermittent period July 4 to August 6, 2009 and for the period September 3
to December 8, 2009 causally related to her accepted employment conditions.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 22, 2010 is affirmed.
Issued: November 3, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 09-2045
Issued: May 7, 2010

Case Submitted on the Record

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

JURISDICTION
On August 11, 2009 appellant filed a timely appeal from the March 25, 2009 merit
decision of the Office of Workers’ Compensation Programs, which denied a schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of
the case.
ISSUE
The issue is whether appellant is entitled to a schedule award.
FACTUAL HISTORY
On November 4, 1999 appellant, then a 39-year-old part-time flexible letter carrier, filed
a claim alleging that his disc degeneration, herniated disc and possible bone spur were a result of
the duties of his federal employment, including constant lifting, twisting, bending, stretching,
pushing, pulling and carrying 30 pounds of mail. The Office accepted his claim for a temporary
aggravation of a preexisting, nonindustrial osteophyte at C5-6 and cervical degenerative disc
disease. The record indicates the Office also accepted cervical radiculopathy.

On January 5, 2007 appellant filed a claim for a schedule award. On January 24, 2007
his attending physiatrist, Dr. Jonathan K. Lee, completed a form indicating an 80 percent
impairment of the left upper extremity due to weakness, atrophy, pain or loss of sensation, but, in
periodic progress reports, he found bilateral upper extremity ranges of motion to be 100 percent
of normal with full motor strength and no sensory hypesthesia. Dr. Lee diagnosed cervical
spondylosis, cervical radiculopathy and cervicalgia.
On April 22, 2008 Dr. Bunsri T. Sophon, an orthopedic surgeon and Office referral
physician, provided a second opinion. He reviewed appellant’s history, a statement of accepted
facts and described his findings on physical examination. Dr. Sophon diagnosed cervical disc
disease and status post C5-7 fusion. He noted that appellant complained of constant, sharp,
throbbing and aching pain in his neck and his examination showed restricted range of motion of
the cervical spine. In the upper extremities; however, Dr. Sophon found no neurological
involvement: no pain or discomfort, no weakness and no atrophy.
On March 18, 2009 an Office medical adviser reviewed appellant’s file and noted no
actual upper extremity findings. He found that appellant had no impairment of the left or right
upper extremity.
In a decision dated March 25, 2009, the Office denied appellant’s claim for a schedule
award. Appellant seeks the Board’s review of this decision but expresses no particular
disagreement with it.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act1 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment.2
No schedule award is payable for a member, function or organ of the body not specified
in the Act or in the regulations.3 Because neither the Act nor the regulations provide for the
payment of a schedule award for the permanent loss of use of the back,4 no claimant is entitled to
such an award.5
Amendments to the Act modified the schedule award provisions to provide for an award
for permanent impairment to a member of the body covered by the schedule regardless of
1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404.

3

William Edwin Muir, 27 ECAB 579 (1976).

4

The Act itself specifically excludes the back from the definition of “organ.” 5 U.S.C. § 8101(19).

5

E.g., Timothy J. McGuire, 34 ECAB 189 (1982).

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whether the cause of the impairment originated in a scheduled or nonscheduled member. As the
schedule award provisions of the Act include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.6
ANALYSIS
To support his claim for a schedule award, appellant submitted a January 24, 2007 report
from Dr. Lee, who noted 80 percent impairment of the left upper extremity due to weakness,
atrophy, pain or loss of sensation. Dr. Lee did not explain the basis for this rating. He did not
support this rating with objective findings on examination and he did not show how he calculated
this rating using specific tables or figures in the A.M.A., Guides. Therefore, Dr. Lee’s
impairment rating carries little probative value. Moreover, he thereafter consistently reported
that bilateral upper extremity ranges of motion were 100 percent of normal with full motor
strength and no sensory hypesthesia. Dr. Lee’s reports are not consistent with his prior
description of impairment. Such findings support no impairment of the upper extremities.
Dr. Sophon, the second opinion orthopedic surgeon, confirmed this on April 22, 2008.
His examination revealed no neurological involvement in the upper extremities. Appellant
complained of constant, sharp, throbbing and aching pain in his neck and his examination
showed restricted range of motion of the cervical spine, but no employee may receive a schedule
award for the back or neck or cervical spine. There is no provision for such an award.
The weight of the medical evidence shows no impairment of the upper extremities
resulting from the accepted cervical conditions. The Board finds that appellant is not entitled to
a schedule award, as he has not established permanent impairment. The Board will affirm the
Office’s March 25, 2009 decision denying his schedule award claim.
CONCLUSION
The Board finds that the medical evidence is insufficient to establish that appellant
sustained permanent impairment to his left arm.

6

Rozella L. Skinner, 37 ECAB 398 (1986).

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ORDER
IT IS HEREBY ORDERED THAT the March 25, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 7, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Saginaw, MI, Employer
__________________________________________

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

Docket No. 16-0113
Issued: May 3, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On October 26, 2015 appellant, through counsel, filed a timely appeal from a
September 30, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish an injury on April 2,
2014 in the performance of duty.
FACTUAL HISTORY
On May 20, 2014 appellant, then a 60-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on April 2, 2014 he dislocated his right little finger in the

1

5 U.S.C. § 8101 et seq.

performance of duty. The employing establishment controverted the claim noting that he injured
his finger after he had a seizure and fainted.
Appellant also filed an occupational disease claim (Form CA-2a), assigned file number
xxxxxx590, alleging that he sustained stress causally related to factors of his federal
employment. He related that stress caused a seizure which resulted in the dislocation of his right
finger and experiencing pain in his back, knee, and leg.
In a disability certificate dated April 7, 2014, received in file number xxxxxx590,
Dr. Ali H. Mahmood, a Board-certified surgeon, diagnosed a dislocated right little finger and
found that appellant could not work with his right hand for four weeks.
On May 9, 2014 Dr. Mahmood diagnosed a seizure, a right hand fracture, and low back
and leg pain. He advised that appellant could not drive or operate machinery and would require
medical clearance before returning to work. In a form report dated May 14, 2014, Dr. Mahmood
noted a history of a seizure at work and diagnosed a fracture/dislocation of the right little finger.
In a report dated May 21, 2014, submitted in file number xxxxxx590, Dr. Iftikhar A.
Khan, a Board-certified neurologist, noted that appellant had a history of seizures. He related,
“There was reportedly a seizure at work where he fell and dislocated one of the digit[s] of the
right hand and has a cast on his hand. Dr. Khan verbalized his concern that this event happened
because he was working under stress as there is too much workload and so on.” He noted that
appellant described a history of approximately 20 seizures over the past 15 years. Dr. Khan
found that it was unclear whether the described incidents were seizures or syncopal events. He
recommended an electroencephalogram (EEG) and a tilt-table study.
In a form report dated May 31, 2014, Dr. Ramotsumi Makhene, a Board-certified plastic
surgeon, diagnosed a dislocated right small finger and noted that the injury “happened at work.”
He found that appellant could not perform heavy lifting or use power tools.
By letter dated June 3, 2014, OWCP requested that appellant submit additional
information regarding the cause of his seizure and a detailed medical report addressing the causal
relationship between any diagnosed condition and the identified work incident.
On June 6, 2014 Dr. Mahmood related that on April 2, 2014 appellant “felt overwhelmed
by [his] load of work” and later that day had a seizure, fracturing his right little finger. He
opined that stress could trigger a seizure and was “a contributing factor in [his] seizure on
April 2, 2014.”
In a June 6, 2014 disability certificate, Dr. Makhene diagnosed a dislocated right small
finger and found that appellant was disabled for around six weeks. On June 13, 2014 he
provided work restrictions.
In a June 11, 2014 response to OWCP’s request for additional information, appellant
related that he fell on his way to the water fountain due to a seizure caused by stress.
On June 23, 2014 Dr. Liaqat Zaman, a Board-certified internist, performed a tilt-table test
to determine the etiology of appellant’s history of syncope. He found that the tilt-table test was
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positive and diagnosed neurocardiogenic syncope. Dr. Zaman recommended that appellant drink
ample liquids and lie down if he felt the onset of symptoms of a future syncope.
By decision dated July 17, 2014, OWCP denied appellant’s claim as the evidence of
record did not establish that he was in the performance of duty at the time of the April 2, 2014
incident. It found that he had failed to establish that stress from the employment had caused his
seizure and that there was no evidence that he struck anything when he fell.
On July 17, 2014 OWCP indicated that it had combined the current claim number
xxxxxx809 into file number xxxxxx590, the occupational stress claim.
On August 11, 2014 appellant requested an oral hearing. He submitted the first page of a
medical report dated November 7, 2014 from a cardiologist.
In a report dated September 15, 2014, Dr. Khan advised that appellant had a history of
normal EEGs but almost passed out after a decrease in blood pressure during a tilt-table test. He
related, “Therefore, it seems like he is at risk for syncopal event and it is likely that previously
reported event of suspected seizure, were likely syncopal events.” Dr. Khan noted that one event
“happened when he was aggravated with stress, agitation at work, and therefore that suggest[s]
probably a neurodepressive event.” He found that appellant did not have work restrictions.
In a report dated November 3, 2014, received in file number xxxxxx590, Dr. Khan again
noted that appellant had normal EEG’s and a positive tilt table test. He opined that appellant had
no neurological condition and did not require seizure medication. Dr. Khan referred him to a
cardiologist to determine work restrictions.
One page of a form report from the employing establishment health unit dated
December 19, 2014 was received in the record, but there is no indication as to who provided the
responses.
In a report dated January 7, 2015, received in file number xxxxxx590, Dr. Khan
diagnosed syncopal events and found that appellant should sit down if he felt dizzy. He found no
work restrictions due to a neurological condition.
In a report dated February 4, 2015, received in file number xxxxxx590, Dr. Carrie
Selvaraj, a Board-certified cardiologist, noted that appellant related that he fainted in April and
October after he experienced dizziness. Appellant was “somewhat upset at the time.”
Dr. Selvaraj indicated that a tilt-table test showed vasodepressor syncope. She diagnosed
vasovagal syncope and signed under a paragraph on the form indicating that the work activities
described caused the diagnosis.
By letter dated June 29, 2015, OWCP advised that the denial of appellant’s occupational
disease claim in file number xxxxxx590 was currently scheduled for a hearing. It noted that he
had filed a traumatic injury claim under file number xxxxxx809 identifying identical work
factors and that the claims had been combined.
At the telephone hearing, held on July 14, 2015, appellant related that he experienced
syncope when he was stressed. He attributed his fall to a vasovagal syncope after he did not
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receive help at work and could not keep up with his tasks. Appellant related that no one
witnessed his fall. His counsel advised that there was medical evidence relevant to the claim
contained in file number xxxxxx590. The hearing representative noted that in file number
xxxxxx590 appellant’s supervisor indicated that it was his third or fourth seizure at work.
By decision dated September 30, 2015, an OWCP hearing representative affirmed the
July 17, 2014 decision. She found that appellant had not established that stress due to work
factors caused his seizure on April 2, 2014 and did not show that he fell due to a hazardous
condition or struck an object during to his fall to the ground.
LEGAL PRECEDENT
It is a general rule that where an injury arises in the course of employment, occurs within
the period of employment, at a place where the employee reasonably may be and takes place
while the employee is fulfilling his duties or is engaged in doing something incidental thereto,
the injury is compensable unless it is established to be within an exception to the general rule.
One of the exceptions to the general rule is an idiopathic fall.2
It is a well-settled principle of workers’ compensation law that an injury resulting from
an idiopathic fall where a personal, nonoccupational pathology causes an employee to collapse
and to suffer injury upon striking the immediate supporting surface and there is no intervention
or contribution by any hazard or special condition of employment is not within coverage of
FECA.3 Such an injury does not arise out of a risk connected with the employment and is
therefore not compensable. However, the fact that the cause of a particular fall cannot be
ascertained or that the reason it occurred cannot be explained, does not establish that it was due
to an idiopathic condition. If the record does not establish that the particular fall was due to an
idiopathic condition, it must be considered as merely an unexplained fall, one which is
distinguishable from a fall in which it is definitely proved that a physical condition preexisted
and caused the fall.4
To properly apply the idiopathic fall exception to the premises rule, two elements must be
present: a fall resulting from a personal, nonoccupational pathology and no contribution from
the employment.5 OWCP has the burden of proof to submit medical evidence showing the
existence of a personal, nonoccupational pathology if it chooses to make a finding that a given
fall is idiopathic in nature. The fact that the cause of a particular fall cannot be determined does
not establish that it was due to an idiopathic condition and if the record does not establish a
particular fall was due to an idiopathic condition, it must be considered as merely an unexplained
fall, which is covered under FECA.6
2

Roger Williams, 52 ECAB 468 (2001).

3

See A.B., Docket No. 14-0522 (issued November 9, 2015); Carol A. Lyles, 57 ECAB 265 (2005).

4

See M.M., Docket No. 08-1510 (issued November 25, 2008).

5

N.P., Docket No. 08-1202 (issued May 8, 2009).

6

Jennifer Atkerson, 55 ECAB 317 (2004).

4

ANALYSIS
Appellant alleged that he sustained an injury in the performance of duty when he fell on
April 2, 2014 and dislocated his right little finger. At the time of his fall, he was on the premises
of the employing establishment during his hours of employment. As a general rule, an injury
occurring on the industrial premises during working hours is compensable unless it falls within
an exception to the general rule.7 OWCP determined, however, that appellant’s fall resulted
from an idiopathic condition with no contribution from employment and thus did not occur in the
performance of duty. As discussed, to apply the idiopathic fall exception, the fall must result
from a personal, nonoccupational pathology with no contribution from employment.8
The Board finds that the evidence of record establishes that appellant’s fall on April 2,
2014 resulted from an underlying condition. In a report dated May 21, 2014, Dr. Khan noted
that appellant described a seizure at work following stress and found that he was either having
seizures or syncopal events. He referred appellant for diagnostic testing, noting that he related a
history of 20 seizures over 15 years. A June 23, 2014 tilt-table test was positive for
neurocardiogenic syncopal events. On September 15, 2014 Dr. Khan noted that appellant had
normal EEG’s but a positive tilt-table test. He found that he was at risk for syncope and that
previously reported seizures were actually episodes of syncope. Dr. Khan indicated that one of
appellant’s syncope episodes occurred after stress at work and concluded that it was most likely
“a neurodepressive event.” On February 4, 2015 Dr. Selvaraj noted appellant’s history of
fainting in April and October and diagnosed vasovagal syncope, noting that a tilt-table test was
positive. The weight of the evidence establishes that appellant’s fall was due to a personal,
nonoccupational condition of neuordepressive syncope and thus was idiopathic in nature.
While the evidence shows that appellant has a condition resulting from a personal,
nonoccupational pathology, this is not enough to show that the fall is not compensable. The
idiopathic fall must have occurred with no contribution from employment.9 Appellant did not
allege that he struck any object related to his employment when he fell to the floor. Instead, he
maintained that stress caused his fall because he did not receive assistance performing his job
duties. Appellant asserted that he did not receive help at work but did not submit sufficient
evidence supporting this allegation. Further, the medical evidence is insufficient to show that the
syncope resulted from stress. On April 7, 2014 Dr. Mahmood diagnosed a dislocated right little
finger. On May 9, 2014 he diagnosed a seizure and right hand fracture and found that appellant
could not work. On May 31, 2014 Dr. Makhene diagnosed a dislocated right small finger and
indicated that the injury occurred at work. He addressed the extent of appellant’s disability in
reports dated June 6 and 13, 2014. On November 3, 2014 Dr. Khan indicated that appellant had
normal EEG’s and a positive tilt-table test. He found that appellant did not have a neurological
condition and referred him to a cardiologist. In these reports, the physicians failed to address

7

Dora J. Ward, 43 ECAB 767 (1992).

8

See supra note 5.

9

See G.W., Docket No. 14-593 (issued June 10, 2015).

5

whether appellant’s employment contributed to his fall on April 2, 2014 and thus their opinions
are of little probative value.10
In a report dated May 21, 2014, Dr. Khan discussed appellant’s concern that stress at
work from overwork caused a seizure. He diagnosed a possible seizure or syncope. Dr. Khan,
however, did not attribute the seizure or syncope to stress at work, but instead merely discussed
appellant’s belief. A physician’s report is of little probative value when it is based on a
claimant’s belief rather than the doctor’s independent judgment.11
On June 6, 2014 Dr. Mahmood related that appellant “felt overwhelmed” by his work on
April 2, 2014 and had a seizure that same day. He opined that stress contributed to the seizure
on April 2, 2014. Diagnostic studies, however, reveal that appellant experienced a syncopal
event rather than a seizure, and thus Dr. Mahmood’s report is based on an inaccurate history of
injury.12 He further did not provide any supporting rationale for his conclusion.13
On September 15, 2014 Dr. Khan discussed appellant’s history of syncope events,
including an episode at work that occurred after stress and was likely neurodepressive in origin.
He opined that a syncope at work occurred when appellant was stressed but did not specifically
discuss the events of April 2, 2014 or otherwise explain how stress resulted in syncope, and thus
his opinion is of diminished probative value.
The Board finds that appellant had an idiopathic fall and failed to establish any
intervention or contribution by the employing establishment to bring the fall within the
performance of duty.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained an injury on April 2, 2014 in the performance of duty.

10

S.E., Docket No. 08-2214 (issued May 6, 2009); Conard Hightower, 54 ECAB 796 (2003).

11

Earl David Seale, 49 ECAB 152 (1997).

12

See M.W., 57 ECAB 710 (2006); James A. Wyrick, 31 ECAB 1805 (1980) (medical opinions based on an
incomplete or inaccurate history are of diminished probative value).
13

See G.M., Docket No. 15-1288 (issued September 18, 2015); Jacquelyn L. Oliver, 48 ECAB 232 (1996).

6

ORDER
IT IS HEREBY ORDERED THAT the September 30, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 3, 2016
Washington, DC

Patricia H. Fitzgerald, Deputy 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
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Oakland, CA, Employer
)
___________________________________________ )
J.T., Appellant

Docket No. 10-808
Issued: February 7, 2011

Appearances:
Hank Royal, Esq., for the appellant

Office of Solicitor, for the Director

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 19, 2010 appellant, through his attorney, filed a timely appeal from an Office
of Workers’ Compensation Programs’ schedule award decision dated July 22, 2009. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award decision.
ISSUE
The issue is whether appellant has more than 23 percent impairment of his right and left
upper extremities based on his bilateral shoulder conditions, for which he received schedule
awards.
FACTUAL HISTORY
On May 2, 2000 appellant, then a 50-year-old custodian, filed an occupational disease
claim alleging that he sustained torn rotator cuffs in the right and left shoulders while in the
performance of duty. The Office accepted his claim for bilateral rotator cuff tears. Left shoulder
arthroscopy to repair rotator cuff tear was performed on September 15, 2000. Right shoulder
arthroscopy was performed on January 30, 2001. Appellant received schedule awards for 23
percent impairment to each arm on August 12, 2002 based on lost range of shoulder motion and

distal clavicle resections.1 He underwent additional surgery to the right shoulder to repair a torn
rotator cuff on May 18, 2007. Appellant received wage-loss compensation benefits.
On July 16, 2008 appellant requested an additional schedule award. By letter dated
August 6, 2008, the Office requested that he obtain an assessment of permanent impairment from
his physician based on the American Medical Association, Guides to the Evaluation of
Permanent Impairment, (fifth edition 2001) (A.M.A., Guides).
In a report dated August 27, 2008, Dr. Noah Weiss, a Board-certified orthopedic surgeon
and treating physician, provided range of motion (ROM) measurements for the shoulders which
included flexion of 150 degrees on the right and 155 degrees on the left, extension of 50 degrees
on the right and left, abduction of 160 degrees on the right and 165 degrees on the left, internal
rotation of 70 degrees on the right and 90 degrees on the left and external rotation of 80 degrees
on the right and left. He advised that appellant was permanent and stationary for both shoulders.
In a September 22, 2008 report, Dr. Weiss reviewed appellant’s history of injury and
treatment and utilized the A.M.A., Guides. For shoulder ROM, he referred to Figures 16-38 and
16-46 and determined that appellant had a four percent impairment of the right upper extremity
and a one percent impairment of the left upper extremity.2 Dr. Weiss referred to Table 16-27 and
advised that the shoulder arthroplasty would warrant 10 percent impairment for each upper
extremity.3 He determined that this would result in an 11 percent impairment of the left upper
extremity and a 14 percent impairment of the right upper extremity.4
In a report dated January 10, 2009, an Office medical adviser reviewed the medical
evidence under the A.M.A., Guides.5 For ROM, she referenced figures in the A.M.A., Guides
and determined for the right shoulder that appellant had two percent impairment for loss of
flexion, no impairment for loss of extension, one percent for loss of abduction and no
impairment for loss of adduction6 The Office medical adviser further found that he had one
percent impairment for loss of internal rotation and no impairment for loss of external rotation.7
For the left shoulder, she determined that appellant had one percent impairment for loss of
flexion but no impairment for loss of extension, loss of abduction, loss of adduction, loss of
internal rotation and loss of external rotation. The Office medical adviser referred to Table 161

The record also reflects that appellant received a schedule award for 22 percent impairment of the left arm, due
to a hand or wrist injury, under File No. xxxxxx369, for total impairment of the left arm of 45 percent. File No.
xxxxxx369 is not before the Board on the present appeal.
2

A.M.A., Guides 450-54, 474-79.

3

Id. at 505-06.

4

Dr. Weiss also noted findings for whole person impairment.

5

The Office medical adviser noted that appellant was previously found to have 23 percent impairment of the right
arm and 45 percent impairment of the left arm with 23 percent based on the shoulder injury and the remainder due to
a wrist/hand injury under a separate claim.
6

A.M.A., Guides 476, 477, Figure 16-40, Figure 16-43.

7

Id. at 479, Figure 16-46.

2

27 and determined that appellant had impairment of 10 percent of each arm due to his bilateral
distal clavicle resection.8 She concurred that he had total impairment for the right upper
extremity of 14 percent and 11 percent to the left upper extremity as this did not represent
additional impairment since the previous determination, she recommended there was no basis for
a schedule award. The Office medical adviser determined that appellant reached maximum
medical improvement on August 27, 2008.
In a February 10, 2009 decision, an Office denied appellant’s claim for an additional
schedule award. It found that the medical evidence did not support an increase in work-related
impairment.
On March 9, 2009 appellant requested a review of the written record. In a letter dated
March 19, 2009, he contended that his employment history was incorrect and provided additional
details of his work duties. Appellant contended that the rating from Dr. Weiss supported an
increase in permanent impairment.
By decision dated July 22, 2009, an Office hearing representative affirmed the Office’s
February 10, 2009 decision.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act9 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.10 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice for all claimants under the law, good administrative practice requires the use of
uniform standards applicable to all claimants.11 The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.12
ANALYSIS
Appellant’s claim was accepted bilateral rotator cuff tear. He underwent a left shoulder
arthroscopy on September 15, 2000 and a right shoulder arthroscopy on January 30, 2001 and
May 18, 2007. Based on reports from his treating physician and the Office medical adviser,
appellant was found to have 14 percent impairment of the right upper extremity and 11 percent
of the left upper extremity.

8

Id. at 506.

9

5 U.S.C. §§ 8101-8193.

10

Id. at. § 8107.

11

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

12

A.M.A., Guides (5th ed. 2001); 20 C.F.R. § 10.404.

3

The Board finds that the Office properly determined the impairment to appellant’s right
and left shoulders. Applying Figures 16-40, 16-43 and 16-46 of the fifth edition of the A.M.A.,
Guides13 to the findings of Dr. Weiss, an Office medical adviser properly assigned two percent
impairment for 150 degrees of flexion, zero percent for 50 degrees of extension, one percent for
160 degrees of abduction, zero percent for 40 degrees adduction, zero percent for 80 degrees of
external rotation and one percent for 70 degrees of internal rotation, for a total of four percent
impairment for loss of right shoulder motion. For the left shoulder, the Office medical adviser
assigned one percent impairment for 155 degrees of flexion, zero percent for 50 degrees of
extension, zero percent for 165 degrees of abduction, zero percent for 40 degrees adduction, zero
percent for 80 degrees of external rotation and zero percent for 90 degrees of internal rotation for
a total impairment of one percent for loss of motion in the left arm. Dr. Weiss made the same
impairment findings for loss of ROM.
Under Table 16-27, page 506 of the A.M.A., Guides, Dr. Weiss and the Office medical
adviser determined that appellant had 10 percent upper extremity impairment for the distal
clavicle resections to each shoulder. The Board finds that this was proper under the A.M.A.,
Guides.
Using the Combined Values Chart of the A.M.A., Guides, the right arm rating combined
the 4 percent loss of motion with the 10 percent right distal clavicle resection arthroplasty to total
14 percent impairment of the right upper extremity.14 The 10 percent distal clavicle resection
combined with the 1 percent loss of motion for the left shoulder totaled 11 percent impairment of
the left upper extremity.15
As appellant previously received a schedule award for 23 percent impairment of each
arm, the medical evidence of record does not establish that appellant sustained greater
impairment than that for which he previously received a schedule award.
On appeal, appellant asserts that the schedule award was based on his attending
physician’s report, which included whole person impairment. As noted, Dr. Weiss provided an
impairment rating for each arm and for the whole person and the Office medical adviser based
her calculation on impairment of each arm and not the whole person. While he converted the
individual arm ratings to a whole person rating, the Office does not base schedule award
determinations on whole person impairment. A schedule award is not payable for impairment of
the whole person.16
CONCLUSION
The Board finds that appellant has no more than 23 percent permanent impairment of his
right and left upper extremities based on his accepted shoulder conditions.
13

Id. at 476, 477, 479.

14

Id. at 604.

15

Id.

16

See D.K., 61 ECAB ___ (Docket No. 10-174, issued July 2, 2010).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 22, 2009 is affirmed.
Issued: February 7, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Orlando, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 10-1342
Issued: February 11, 2011

Case Submitted on the Record

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

JURISDICTION
On April 15, 2010 appellant filed a timely appeal from a March 2, 2010 decision of the
Office of Workers’ Compensations Programs denying her request for reconsideration without a
merit review. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this
decision. Because more than 180 days have elapsed between the most recent merit decision of
the Office dated February 19, 2009 to the filing of this appeal, the Board lacks jurisdiction to
review the merits of the case.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration
without a merit review under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 29, 2003 appellant, then a 39-year-old transportation security screener, was
injured when she lifted heavy luggage onto a table. The Office accepted her claim for right

shoulder tendinitis, cervical sprain, lumbar sprain and temporary aggravation of cervical
spondylosis. Appellant stopped working on May 9, 2003, did not return and received
compensation for temporary total disability.
In a December 6, 2007 letter, the Office requested that appellant submit a physician’s
medical report regarding her current condition to determine whether she was entitled to
compensation benefits for continuing disability.
In a December 12, 2007 report, Dr. Rebecca Holdren, an attending physician and a
Board-certified physiatrist, noted that appellant complained of cervical and lumbar pain and right
shoulder symptoms beginning approximately six years prior. She examined appellant’s upper
right extremity and observed limited external rotation of the shoulder, generalized severe
tenderness of the shoulder girdle, generalized moderate tenderness of the proximal upper arm
and generalized severe crepitation. Dr. Holdren reported right upper paraspinal muscle
tenderness and restricted lateral bending of the left posterior head and neck. A July 27, 2004
magnetic resonance imaging (MRI) scan revealed degenerative spondylotic changes involving
the left neural foramen at the C5-6 and C6-7 regions and minimal broad bulging at the T7-8 and
T8-9 discs. Dr. Holdren diagnosed reflex sympathetic dystrophy and rotator cuff syndrome of
the right shoulder and displacement of cervical and thoracic intervertebral discs. She stated that
appellant was not working and remained “totally disabled due to work injury.”
A February 14, 2008 evaluation of appellant’s right shoulder MRI scan from Drs. Irene
Darocha and Joel D. Swartz, a Board-certified diagnostic radiologists, showed mild thickening of
and intermediate signal intensity distally within the supraspinatus muscle tendon, indicative of
tendinosis, and a one-centimeter lesion at the humeral head in the region of the epiphyseal scar
having the appearance of an enchondroma.
In an April 3, 2008 report, Dr. Holdren noted that appellant’s right shoulder pain radiated
down to her arm and wrist and appellant had trouble lifting “even the lightest items.” She
additionally diagnosed drug dependence and commented that a nurse practitioner suggested
supraspinatus tendinosis on March 5, 2008.
In an April 29, 2008 letter, the Office referred appellant for a second opinion examination
to Dr. James Bethea, a Board-certified orthopedic surgeon. In a May 30, 2008 report, Dr. Bethea
detailed that she complained of pain radiating to her right middle, ring and little fingers, a
winged scapula and difficulty lifting with her upper right extremity. Anteroposterior and lateral
x-rays exhibited disc space narrowing at the C5-6 and C6-7 vertebrae, which he opined was
possibly age related. Dr. Bethea also reviewed appellant’s prior MRI scan results. On physical
examination, he noted uncomfortable lateral rotation at the cervical spine and limited flexion,
extension, lateral rotation and lateral bending at the lumbar spine due to pain. Dr. Bethea further
observed discomfort caused by the apprehension maneuver, impingement test and cross body
adduction. He diagnosed cervical and lumbar sprains and right shoulder tendinitis, stating that
appellant’s condition evolved into a chronic pain status “because of her injury at work in 2003”
that was “out of proportion to the pathology seen on the diagnostic imaging.” Dr. Bethea stated
that her condition was not due to a preexisting injury. He concluded that appellant could not
resume her regular position as a transportation security screener, which entailed lifting and

2

prolonged standing, but found her capable of performing sedentary work for a maximum of four
hours a day.
On July 18, 2008 the Office notified appellant that her case would be referred to a referee
physician to resolve a conflict in medical opinion between Dr. Holdren who supported total
disability and Dr. Bethea, who found that she was able to return to restricted duty.
In an October 9, 2008 report, Dr. Holdren reiterated that appellant was permanently
disabled.
In an October 29, 2008 letter, the Office referred appellant for a referee examination to
Dr. John P. Evans, a Board-certified orthopedic surgeon. In a November 24, 2008 report,
Dr. Evans commented that she complained of pain in the right upper extremity, low back and
leg, numbness of the hand and tenderness in the right low back. He reviewed appellants past
x-rays and MRI scans and noted cervical spine disc space narrowing, thoracic disc bulging,
tendinosis of the right biceps tendon and an enchondroma in the right scapula. Dr. Evans
examined her and observed tenderness and limited range of motion (ROM) of the lumbar spine,
pain over the trochanteric bursa and positive supine straight leg raise tests for both legs. In
addition, he observed a slight winging of the right scapula, painful upright passive and active
ROM of the right elbow, global tenderness of the right shoulder, neck, trapezium and humerus
areas and limited passive flexion, abduction and internal rotation of the right shoulder.
Dr. Evans diagnosed chronic right shoulder and neck pain and ongoing narcotic dependence,
opining that the chronic pain syndrome was separate and unrelated to the January 29, 2003
incident. He opined that the accepted conditions had resolved noting that objective findings did
not support the symptoms presented. Dr. Evans found no disability due to the employment
injury and opined that she could perform some work since her narcotic medication allowed her to
carry out some of her activities of daily living.
By notice dated January 8, 2009, the Office proposed to terminate appellant’s
compensation benefits on the grounds that Dr. Evans’ November 24, 2008 report established that
she no longer had residuals of her January 29, 2003 employment injury.
In a letter received by the Office on February 2, 2009, appellant disagreed with the
proposed termination action, contending that she had residuals of her work injury. She attached
January 16, 2009 notes from Dr. Lesle Long, a Board-certified internist, and a pharmacist
regarding her reliance on pain medication and a January 26, 2009 work capacity evaluation from
Dr. Holdren noting that appellant reached maximum medical improvement and recommending a
gradual return to indefinite restricted duty.
By decision dated February 19, 2009, the Office terminated appellant’s compensation
benefits effective February 20, 2009.
Appellant subsequently submitted a May 1, 2008 nurse practitioner’s report signed by
Dr. Holdren. She exhibited stable tenderness of the right upper paraspinal muscle and restricted
rotation of the right shoulder and reached maximum medical improvement.
In a January 13, 2010 report, Dr. Stanley Golovac, a Board-certified anesthesiologist,
reviewed the history of appellant’s cervical, lumbar and right shoulder condition and medical
3

treatment, pointing out Dr. Bethea’s opinion that her current state was secondary to the
January 29, 2003 incident. He reviewed her MRI scans and noted disc bulging, moderate facet
arthrosis and mild spondylosis of the cervical vertebrae, moderate spondylosis of the lumbar
vertebrae and moderate spondylosis, mild disc space narrowing and protrusion of the
lumbosacral joint. Dr. Golovac advised that they did not disclose any significant pathology that
obstructed appellant from working. He further commented that she had good mechanical
function in all peripheral joints, intact push-and-pull movement of the upper and lower
extremities and possible mild myofascial defused pain secondary to inactivity and
deconditioning since 2003. Dr. Golovac recommended that appellant refrain from working until
diagnostic tests confirmed the etiology of her pain.
Appellant also provided a family nurse practitioner’s February 5 and March 5, 2009
notes, a copy of Dr. Holdren’s April 3, 2008 report and Social Security Administration (SSA)
earnings data.
Appellant requested reconsideration on February 10, 2010. She submitted a January 22,
2010 SSA disability benefit application and two factual statements, which detailed her
continuing right shoulder, neck and lower back pain as well as professional and financial
difficulties relating to her new position with the employing establishment after returning to work
on June 3, 2009. Dr. Golovac provided January 7 and 11, 2010 notes stating that appellant did
not reach maximum medical improvement, was incapable of performing regular work and should
be placed on restricted duty until a proper diagnosis was rendered.
By decision dated March 2, 2010, the Office denied appellant’s request for
reconsideration, finding that the evidence submitted was not sufficient to warrant review of the
February 19, 2009 decision.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,1 the Office’s regulations provide that the evidence or
argument submitted by a claimant must either: (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.2 Where the request for reconsideration fails to meet at least one of
these standards, the Office will deny the application for reconsideration without reopening the
case for a review on the merits.3

1

5 U.S.C. § 8128(a). See generally 5 U.S.C. §§ 8101-8193.

2

E.K., 61 ECAB ___ (Docket No. 09-1827, issued April 21, 2010). See 20 C.F.R. § 10.606(b)(2).

3

L.D., 59 ECAB 648 (2008). See id. at § 10.608(b).

4

ANALYSIS
The Office’s February 19, 2009 decision terminated appellant’s medical and wage-loss
benefits on the grounds that Dr. Evans’ November 24, 2008 report established that her accepted
cervical and lumbar sprain and temporary aggravation of cervical spondylosis were resolved and
that her current condition was not related to the January 29, 2003 work injury. Appellant
requested reconsideration on February 10, 2010 and argued that she continued to feel pain in her
right shoulder, neck and lower back and encountered numerous professional and financial
difficulties after returning to work on June 3, 2009. These arguments, however, do not show that
the Office erroneously applied or interpreted a specific point of law or advance a relevant legal
argument not previously considered by the Office.4
Appellant also submitted new medical evidence. In a January 13, 2010 report,
Dr. Golovac evaluated appellant’s injury history and earlier diagnostic examinations, noting that
Dr. Bethea connected the January 29, 2003 incident to her current cervical, lumbar and right
shoulder pain while the MRI scans did not indicate a significant pathology that obstructed her
from working. Dr. Golovac did not address the underlying issue of whether she had any
continuing residuals or disability causally related to the work injury. He merely recommended
that appellant refrain from working until diagnostic tests confirmed the etiology. Dr. Golovac
reiterated that appellant was disabled in his January 7 and 11, 2010 notes. The Board has held
that the submission of evidence which does not address the particular issue involved does not
constitute a basis for reopening a case.5 The underlying issue here is whether appellant sustained
residuals of her January 29, 2003 employment injury. Since Dr. Golovac offered no opinion on
the matter, his records were irrelevant and insufficient to warrant reconsideration.
Neither of Dr. Holdren’s reports constitutes a basis for reopening appellant’s case. The
May 1, 2008 report did not discuss whether the events of January 29, 2003 caused or aggravated
her current condition. The April 3, 2008 report was previously considered as it was of record
before issuance of its February 19, 2009 decision.6
The nurse practitioner’s February 5 and March 5, 2009 notes do not constitute relevant
medical evidence as a nurse practitioner is not a physician as defined under the Act.7
Appellant also submitted several SSA documents to demonstrate her disability status.
The Board has held that findings of disability by the SSA do not establish findings of disability
under the Act for the purposes of receiving workers’ compensation, given that different standards
4

See Charles A. Jackson, 53 ECAB 671 (2002) at n.14; Daniel O’Toole, 1 ECAB 107 (1948) (request for
reconsideration predicated on legal premise should contain at least an assertion of an adequate legal premise having
some reasonable color of validity).
5

Mary Lou Barragy, 46 ECAB 781 (1995).

6

Edward W. Malaniak, 51 ECB 279 (2000) (submission of evidence which repeats or duplicates evidence already
in the case record does not constitute a basis for reopening a case).
7

5 U.S.C. §§ 8101(2); L.D., supra note 3. See also Charley V.B. Harley, 2 ECAB 208, 211 (1949) (medical
opinion, in general, can only be given by a qualified physician).

5

of medical proof are utilized in making these determinations.8 Therefore, these documents are
not relevant to the underlying issue of whether appellant continued to have disability or residuals
of her January 29, 2003 employment injury.
Because appellant did not show that the Office erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered, or submit
relevant and pertinent new evidence, she is not entitled to a review of the merits of her claim.
On appeal, appellant argues that the Office’s decision was contrary to fact and law. As
noted, she did not submit sufficient evidence or argument to warrant reopening of the
February 19, 2009 decision under 20 C.F.R. § 10.606(b)(2).
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s claim for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the March 2, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 11, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8

Daniel Deparini, 44 ECAB 657, 659-60 (1993).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
U.S. POSTAL SERVICE, OAKLAND
PERFORMANCE & DISTRIBUTION CENTER,
Oakland, CA, Employer
__________________________________________

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Appearances:
Hank Royal, for the appellant
Office of Solicitor, for the Director

Docket No. 15-1488
Issued: November 24, 2015

Case Submitted on the Record

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

JURISDICTION
On June 30, 2015 appellant, through her representative, filed a timely appeal from a
January 30, 2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
As more than 180 days elapsed from the last OWCP merit decision of February 4, 2014 to the
filing of this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY

1

5 U.S.C. § 8101 et seq.

On June 26, 2012 appellant, then a 33-year-old mail processing clerk, filed a traumatic
injury claim (Form CA-1) alleging that on June 25, 2012 at 10:20 p.m. she injured her thumb and
wrist while pushing a pie-cart which did not move because of a broken wheel. She noted that her
thumb popped and she felt electricity through her hand. Appellant stated that she informed
Supervisor Garrett Oliver of the injury and went to the hospital. The employing establishment
controverted the claim, noting that the evidence caused them to believe she planned and set up
the injury.
OWCP developed the claim by requesting additional factual and medical evidence from
appellant and additional evidence from the employing establishment regarding the challenge of
her claim. Both appellant and the employing establishment submitted additional evidence.
By decision dated August 13, 2012, OWCP denied appellant’s claim as fact of injury was
not established. It determined that the evidence was not sufficient to establish that the claimed
employment incident occurred as described. This was based on timekeeping records, an
investigation report from the postal inspector general, and sworn statements from coworkers and
supervisors, which refuted appellant’s statements.2
On September 11, 2012 appellant requested an oral hearing before an OWCP’s Branch of
Hearings and Review. A hearing was scheduled for December 12, 2012, but appellant did not
attend. A review of the written record was subsequently conducted by an OWCP hearing
representative. OWCP’s Branch of Hearings and Review requested that appellant and the
employing establishment submit additional evidence or arguments. By decision dated
February 13, 2013, OWCP’s hearing representative affirmed OWCP’s August 13, 2012 decision.
On June 7, 2013 OWCP received appellant’s May 31, 2013 request for reconsideration
along with additional evidence. By decision dated February 4, 2014, it denied modification of its
prior decision. OWCP noted that the evidence on file cast serious doubt about whether the
June 25, 2012 injury occurred.
On December 29, 2014 OWCP received appellant’s December 22, 2014 request for
reconsideration. Appellant’s representative argued that the Board’s August 5, 2014 decision,
pertaining to the August 19, 2012 claim, contained new legal information which was supportive
of the current claim. No new evidence was submitted.
By decision dated January 30, 2015, OWCP denied reconsideration of the February 4,
2014 decision without reviewing the merits of the case.

2

On December 2, 2012 appellant filed a separate traumatic injury claim under a different OWCP file number
alleging that on August 19, 2012 she injured her right thumb and wrist while pushing a pie-cart which did not move
because of a broken wheel. OWCP initially denied that claim on March 13, 2013. Appellant requested a hearing
before the Branch of Hearings and Review. By decision dated September 13, 2013, an OWCP hearing
representative affirmed the denial of the claim. By decision dated August 5, 2014, the Board set aside OWCP’s
September 13, 2013 decision and remanded the case. The Board found that the weight of the factual evidence
established that the incident of August 19, 2012 occurred as alleged and remanded the case for a determination of
whether the medical opinion evidence established that the employment incident caused an injury. Docket No.
14-704 (issued August 5, 2014).

2

LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.4
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
claimant’s application for review must be received within one year of the date of that decision.5
However, a right to reconsideration within one year accompanies any subsequent merit decision
on the issues. This includes any hearing or review of the written record decision, any denial of
modification following reconsideration, any merit decision by the Board, and any merit decision
following action by the Board.6
If the request is timely but fails to meet at least one of the requirements for
reconsideration, OWCP will deny the request for reconsideration without reopening the case for
review on the merits.7
ANALYSIS
OWCP received appellant’s December 22, 2014 reconsideration request on December 29,
2014, which is within one year of the last merit decision dated February 4, 2014. Appellant’s
reconsideration request was therefore timely. The question for determination is whether her
request met at least one of the three standards for obtaining a merit review of her case.
By decision dated February 4, 2014, OWCP affirmed the denial of appellant’s June 25,
2012 injury claim on the basis that the evidence of record was insufficient to establish that the
event occurred as alleged. The decision noted that the record was not consistent with appellant’s
version of events and the medical evidence of June 26, 2012 did not contain references to the
alleged June 25, 2012 injury.
In appellant’s reconsideration request, her representative noted that the Board issued an
August 5, 2014 decision, Docket No. 14-704, pertaining to appellant’s August 19, 2012 injury
claim and that the Board decision contained new legal information which was supportive of the
present claim. However, this information is irrelevant as the Board’s August 5, 2014 decision in
the other claim has no bearing on the present claim. Appellant’s representative did not explain
3

Under section 8128 of FECA, the Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
4

20 C.F.R. § 10.606(b)(3).

5

Id. at § 10.607(a).

6

D.G., 59 ECAB 455 (2008); see also C.J., Docket No. 12-1570 (issued January 16, 2013).

7

20 C.F.R. § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

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how legal argument presented in the Board’s August 5, 2014 decision was relevant to the present
claim. Thus, the Board finds that appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law or advanced a relevant legal argument not previously
considered by OWCP.
Appellant also has not submitted relevant and pertinent new evidence not previously
considered by OWCP. It is noted that the instant claim was for an injury which allegedly
occurred approximately two months prior to the date of injury in appellant’s August 19, 2012
injury claim. Appellant’s reconsideration request nor the Board’s decision in the other claim
addressed the issue of whether appellant established fact of injury regarding the June 25, 2012
alleged employment incident. The Board’s findings regarding the August 19, 2012 injury are
irrelevant, immaterial, and have no bearing on the issue in the current claim. The Board
therefore finds that the arguments and evidence submitted to support appellant’s reconsideration
request do not constitute relevant and pertinent new evidence.
Appellant did not establish that OWCP erroneously applied or interpreted a specific point
of law. She did not advance a relevant legal argument not previously considered by OWCP and
she did not submit relevant and pertinent new evidence not previously considered by OWCP.
Accordingly, as appellant’s reconsideration request did not meet any of the requirements
for reopening her case, the Board finds that OWCP properly denied a merit review. The Board
will affirm OWCP’s January 30, 2015 nonmerit decision.

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CONCLUSION
The Board finds that OWCP properly denied appellant’s request for merit review under
5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the January 30, 2015 decision of the Office of
Workers Compensation Programs is affirmed.
Issued: November 24, 2015
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
SOCIAL SECURITY ADMINISTRATON,
PHILADELPHIA REGION, CENTER FOR
HUMAN RESOURCES, Philadelphia, PA,
Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-816
Issued: December 1, 2010

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 February 1, 2010 appellant filed a timely appeal of a December 18, 2009 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant established that she sustained a recurrence of disability
commencing July 28, 2007 causally related to her accepted employment-related injuries.
FACTUAL HISTORY
This case has previously been before the Board. In an October 13, 2006 decision, the
Board set aside an Office decision and remanded the case for further development regarding

whether appellant had more than 43 percent impairment to her left leg.1 In a November 6, 2008
decision, the Board affirmed the Office’s February 9, 2007 decision which found appellant had
no more than 43 percent impairment of the left leg.2 The Board also affirmed a November 19,
2007 Office decision which found appellant failed to establish that she sustained a recurrence of
disability beginning on July 28, 2007 causally related to her accepted employment-related
injuries. The facts of the case as set forth in the Board’s prior decisions are incorporated herein
by reference. The facts relevant to the present appeal are set forth.
On September 16, 2009 appellant requested reconsideration. Her attorney argued that by
virtue of the large schedule award and associated findings of permanent impairment previously
established as well as the acceptance of the first recurrence in her case, appellant would always
have a degree of disability with the work injury, the subsequent authorized surgery and sequelae.
Counsel stated that hypercoagulability (the propensity to develop thrombosis or blood clots) was
generally a multifactorial disease and that thrombotic events occur when more of the
circumstantial risk factors arise. He stated that the causes for lymphedema also included
traumatic injury and surgery and asserted that whether or not appellant had predisposition or
history of these conditions, the work injury and sequelae exacerbated and permanently
aggravated them. In support of his argument, counsel submitted a medical report from
Dr. Robert Jubelirer, a Board-certified general surgeon.
In the May 11, 2009 report, Dr. Jubelirer noted examining appellant on April 8, 2009 and
provided a history as related by appellant and her attorney. He noted that the recurrence of total
disability commenced July 29, 2007 when symptoms of DVT and cellulitis recurred when
appellant was sitting and that she was out of work for seven months. Dr. Jubelirer listed
examination findings and diagnosed lymphedema of the left leg that resulted from venous
thrombosis following arthroscopic surgery for injuries sustained in a fall at work. He opined that
the fall at work was the turning point in appellant’s condition as the fall led to an aggravation of
her DVT. Dr. Jubelirer noted that, prior to the aggravation of DVT, appellant never had swelling
(lymphedema). He also advised appellant had a propensity to exacerbation of the lymphedema
with open draining sores and cellulitis. Dr. Jubelirer explained that appellant’s DVT injured the
venous valves and normal sequelae of DVT was the development of venous valvular
insufficiency and leg pain and lymphedema. He stated that appellant’s main problem was her
huge, chronically swollen leg. Dr. Jubelirer indicated that this had only been since the fall at
work and was due to DVT, chronic venous insufficiency and lymphedema. He stated that she
remained prone to exacerbations of cellulitis open sores and pain. Appellant was more prone to
developing subsequent episodes of thrombophlebitis that could be triggered by activity.
Dr. Jubelirer noted that such occurrences were not due to the activity but were due to the severity
of her ongoing condition. He stated that, because of the permanent DVT aggravation, appellant
was prone to sequelae of lymphedema, including cellulitis that caused her hospitalization on
1

Docket No. 06-520 (issued October 13, 2006). The Office accepted the claim for contusion to the elbow and
forearm, tenosynovitis of the left foot and ankle, contusion of the left knee, left sprain and strain of the ankle, and
aggravation of preexisting deep venous thrombosis (DVT) resulting in permanent restrictions and authorized all
appropriate objective testing, including a July 21, 2003 arthroscopic surgery to evaluate the cause of appellant’s
ankle swelling and pain.
2

Docket No. 08-834 (issued November 6, 2008).

2

July 29, 2007. Dr. Jubelirer opined that the lymphedema was caused by the traumatic injury and
surgery. Appellant’s work injury and its sequelae exacerbated and permanently aggravated
them. Dr. Jubelirer advised appellant would continue to have episodic flare-ups and be unable to
work during those periods. He opined that the recurrence of her severe symptoms after her
workday on July 28, 2007 was a direct result of the previous permanent aggravation of her DVT
that flared at that time and necessitated her July 29, 2007 hospitalization which did not
sufficiently improve to allow her to return to work until January 14, 2008.
The record also contains a July 10, 2008 report from Dr. Edwin L. Merow, an osteopath,
who indicated that appellant had a recurrence on July 28, 2007 which consisted of cellulitis and
an abscess on her left leg. Dr. Merow stated that appellant had significant ambulatory
dysfunction and edema since her August 2001 work accident and that her condition never
improved. He reviewed appellant’s hospitalizations as well as her medical conditions and
advised her cellulitis progressively worsened because her left leg had acute chronic swelling
(edema). Dr. Merow noted that there were other health issues which could be a contributing
factor. He advised that recurrences of cellulitis and abscesses were caused by severe swelling
that was due to the standing and walking that worsened her condition. Dr. Merow explained that
once appellant was up and walking, gravity created swelling and tremendous discomfort and
pain. He opined that her duties at work, which require standing with little elevation of her left
leg, were attributable to a recurrence of her work-related injury. Dr. Merow also indicated that
her right leg and knee were affected because of the constant pressure placed on the right leg.
By decision dated December 18, 2009, the Office denied modification of its prior
decision.
LEGAL PRECEDENT
A recurrence of disability means an 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
that caused the illness.3 This term also means an inability to work that takes place when a lightduty assignment made specifically to accommodate an employee’s physical limitations due to his
or her work-related injury or illness is withdrawn (except when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties or a reduction-in-force), or when the
physical requirements of such an assignment are altered so that they exceed his or her established
physical limitations.4
When an employee who is disabled from the job she held when injured on account of
employment-related residuals returns to a limited-duty position or the medical evidence of record
establishes that she can perform the limited-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and to show that she cannot perform such limited-duty work. As part of this burden,

3

20 C.F.R. § 10.5(x).

4

Id.

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the employee must show a change in the nature and extent of the injury-related condition or a
change in the nature and extent of the limited-duty job requirements.5
To show a change in the degree of the work-related injury or condition, the claimant must
submit rationalized medical evidence documenting such change and explaining how and why the
accepted injury or condition disabled the claimant for work on and after the date of the alleged
recurrence of disability.6
ANALYSIS
Appellant claimed a recurrence of total disability commencing on July 28, 2007 causally
related to her accepted employment injuries. She has the burden to provide medical evidence
establishing that she sustained a recurrence of disability on July 28, 2007 causally related to her
accepted work-related conditions, which include aggravation of preexisting DVT in the left
lower extremity resulting in permanent restrictions.
In support of her claim, appellant submitted a May 11, 2009 report from Dr. Jubelirer
who diagnosed appellant with lymphedema of the left lower extremity. Dr. Jubelirer opined that
appellant’s lymphedema of the left lower extremity resulted from venous thrombosis following
arthroscopic surgery for injuries sustained in her fall at work. The Board notes that Dr. Jubelirer
did not address the August 27, 2007 venous duplex Doppler of the left leg that indicated no
visible thrombosis. This diminishes the value of Dr. Jubelirer’s opinion on causation.7
Dr. Jubelirer further opined that the fall at work led to the aggravation of her DVT as she never
had swelling (lymphedema) prior to the aggravation of the DVT. However, a physician’s
opinion supporting causal relationship only because a claimant was asymptomatic before an
injury is insufficient to establish causal relationship without supporting rationale.8 While
Dr. Jubelirer explained that a normal sequelae of DVT was the development of venous valvular
insufficiency, lower extremity pain, lymphedema and its sequelae, which included open draining
sores and cellulitis, he also stated appellant was more prone to episodes of thrombophlebitis,
which could be triggered by activity and were due to the severity of her ongoing condition.
Dr. Jubelirer did not adequately explain how or why the recurrence of her symptoms on July 28,
2007 following her workday was caused by the accepted DVT aggravation or the sequelae of
lymphedema, including cellulitis, rather than from thrombophlebitis resulting from her work
activity. This deficiency further lessens the probative value of his opinion.
In a July 10, 2008 report, Dr. Merow opined that appellant’s duties at work which
required standing, with little elevation of her left leg, attributed to a recurrence of her workrelated injury. However, he did not present adequate rationale to show how the July 28, 2007
5

Barry C. Peterson, 52 ECAB 120 (2000); Terry R. Hedman, 38 ECAB 222, 227 (1986).

6

James H. Botts, 50 ECAB 265 (1999).

7

See Arthur N. Meyers, 23 ECAB 111, 113 (1971) (where the Board found a physician’s opinion to be of
diminished probative value where the physician’s opinion in support of causal relationship was based on a history of
injury that was not corroborated by the contemporaneous medical history contained in the case record).
8

Jaja K. Asaramo, 55 ECAB 2000 (2004).

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recurrence, which consisted of cellulitis and an abscess on her left leg, conditions not accepted
by the Office, were causally related to the August 15, 2001 work injury and her accepted
conditions. Dr. Merow stated that appellant had significant ambulatory dysfunction and edema
since her August 2001 work accident and her condition never improved. As previously noted, a
physician’s opinion supporting causal relationship only because a claimant was asymptomatic
before an injury is insufficient to establish causal relationship without supporting rationale.9
Dr. Merow stated appellant’s cellulitis progressively worsened because of her acute chronic
swelling in the left leg and opined that her significant ambulatory dysfunction was due to the
chronic phase of her lymphedema. He explained that recurrences of cellulitis and abscesses
caused by severe swelling which were due to standing and walking that worsened her condition,
but he did not explain how such acute chronic swelling in the left leg was caused or contributed
to by her accepted conditions other than generally attributing such to standing and walking.
Without any explanation or rationale for the conclusion reached, such report is insufficient to
establish causal relationship between appellant’s conditions beginning July 28, 2007 to the
accepted work injury and her accepted conditions.
The Board finds that appellant has not submitted sufficiently rationalized medical
evidence to establish that she was totally disabled beginning July 28, 2007 due to her
employment-related conditions. Furthermore, there is no evidence, nor has appellant alleged,
showing that she experienced a change in the nature and extent of the limited-duty requirements
or was required to perform duties which exceeded her medical restrictions.
On appeal, appellant’s attorney asserts arguments similar to those asserted on
reconsideration before the Office. However, as explained, appellant has not met her burden of
proof to establish her claim for a recurrence of disability.10
CONCLUSION
The Board finds that appellant has failed to establish that she sustained a recurrence of
total disability beginning on July 28, 2007 causally related to her accepted employment-related
injuries.

9

Id.

10

Among appellant’s arguments is that her significant impairment rating supports her recurrence of disability
claim. The Board has held that disability is thus not synonymous with physical impairment, which may or may not
result in an incapacity to earn the wages. Maxine J. Sanders, 46 ECAB 835 (1995).

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated December 18, 2009 is affirmed.
Issued: December 1, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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