United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.E., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, Marion, IL, Employer
__________________________________________

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

Docket No. 21-1058
Issued: March 2, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 6, 2021 appellant, through counsel, filed a timely appeal from a June 2, 2021 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish greater than 29
percent permanent impairment of the left upper extremity, for which he previously received
schedule award compensation.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On September 8, 2003 appellant, then a 41-year-old senior correctional ofﬁcer, filed a
traumatic injury claim (Form CA-1) alleging that on September 6, 2003 he possibly fractured his
left shoulder blade and experienced swelling in his arm when he hit th e corner of a security cabinet
door with his left shoulder while in the performance of duty. He stopped work on the date of
injury. OWCP accepted the claim for complete rotator cuff tear or rupture, other joint derangement
of the left shoulder, sprain of the left shoulder and upper arm, superior glenoid labrum lesion, and
left exostosis, site unspecified. On December 3, 2003 appellant underwent authorized left shoulder
arthroscopic surgery. He returned to full-time, modified-duty work with restrictions, effective
June 8, 2004, until he stopped work on June 24, 2004.4
On August 2, 2004 appellant ﬁled a claim for compensation (Form CA-7) for a schedule
award.
By decision dated June 27, 2005, OWCP granted appellant a schedule award for eight
percent permanent impairment of the left upper extremity. The period of the award ran for 24.96
weeks from December 3, 2004 through May 26, 2005.
In a September 26, 2007 decision, OWCP granted appellant a schedule award for an
additional 10 percent permanent impairment of the left upper extremity, for a total of 18 percent
permanent impairment. The period of the award ran for 31.20 weeks from April 23 through
November 27, 2007.
By decision dated March 19, 2013, OWCP granted appellant a schedule award for an
additional three percent permanent impairment of the left arm, for a total of 21 percent left upper
extremity permanent impairment. The award ran for 9.36 weeks for the period October 26 to
December 30, 2012.
By decision dated August 6, 2018, OWCP expanded the acceptance of appellant’s claim to
include complex regional pain syndrome (CRPS) of the left upper limb.

3

Docket No. 06-2068 (issued April 20, 2007).

4

Appellant retired from the employing establishment effective April 15, 2007.

2

OWCP subsequently received a June 12, 2019 medical report by Dr. John W. Ellis, an
attending Board-certified family practitioner. Dr. Ellis determined that appellant had 16 percent
permanent impairment of the left upper extremity using the diagnosis-based impairment (DBI)
rating method, 45 percent permanent impairment of the left upper extremity using the range of
motion (ROM) rating method, and 80 percent permanent impairment of the left upper extremity
based on the accepted condition of CRPS under the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).5 He
determined that MMI was reached on the date of his evaluation.
On September 15, 2019 Dr. Herbert White, Jr., a Board-certified orthopedic surgeon
serving as an OWCP DMA, reviewed the medical record, including Dr. Ellis’ June 12, 2019
findings. He found that appellant had 13 percent permanent impairment of the left upper extremity
based on CRPS and five percent permanent impairment of the left upper extremity based on a
labral tear using the DBI method, and 36 percent permanent impairment of the left upper extremity
using the ROM method in accordance with the sixth edition of the A.M.A., Guides. Dr. White
determined that the date of MMI was June 12, 2019, the date of Dr. Ellis’ impairment evaluation.
He noted discrepancies in Dr. Ellis’ impairment ratings.
By letter dated October 25, 2019, OWCP requested that Dr. Ellis review Dr. White’s
September 15, 2019 findings. In a November 14, 2019 addendum report, Dr. Ellis disagreed with
the DMA’s 13 percent left upper extremity impairment rating for CRPS and advised that his 80
percent left upper extremity impairment rating for the same condition remained unchanged.
On November 26, 2019 OWCP requested that DMA, Dr. White, review Dr. Ellis’
November 14, 2019 report. In a December 5, 2019 addendum report, the DMA related that
Dr. Ellis did not provide any additional information that would change his impairment rating.
On January 6, 2020 OWCP determined that a conflict in medical opinion existed between
Dr. Ellis and the DMA regarding the extent of appellant’s left upper extremity permanent
impairment. On January 29, 2020 it referred appellant, along with a statement of accepted facts
(SOAF) and the medical record, to Dr. Sunil Dedhia, a Board-certified orthopedic surgeon, for an
impartial medical examination.
In a March 10, 2020 report, Dr. Dedhia on examination of appellant’s left shoulder noted
that there was no evidence of obvious atrophy within the supraspinatus or infraspinatus fossa.
There was tenderness to palpation over the coracoid process, acromioclavicular joint, long head
biceps tendon, posterior capsule. ROM measurements included 90 degrees of flexion, 80 degrees
of abduction, 0 degrees of external rotation, 10 degrees of internal rotation, passive forward
elevation to 100 degrees, and passive adduction to 90 degrees.
Upon gross examination of appellant’s left upper extremity, there was no evidence of
obvious side-to-side upper extremity swelling or edema. There was no appreciable side-to-side
difference in temperature changes throughout the upper arm or forearm and very minimal coolness
was noted over the left hand compared to the right. There was no evidence of obvious hair changes
5

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

3

on the right and left side. There was evidence of curved dystrophic nails on the left side compared
to the right. Skin turgor and texture was fairly symmetric with no evidence of glistening or
nonelastic skin. There was no evidence of obvious changes in the sweat pattern of the left upper
extremity compared to the right. Using Table 15-25 of the sixth edition of the A.M.A., Guides,
Dr. Dedhia assigned a point score of 4 for CRPS, class of diagnosis (CDX), based on his
examination findings. He determined the score of 4 resulted in a class 1 impairment under
Table 15-26. Dr. Dedhia took into account grade modifiers for functional history (GMFH) and
physical examination (GMPE) which resulted in a grade E, 13 percent permanent impairment of
the left upper extremity. He noted that a grade modifier for clinical studies (GMCS) was not
included in his calculations because clinical studies had not been provided to him. Dr. Dedhia
related that appellant had advised that radiographic studies, including a bone scan had been
performed; however, the actual reports and images were not available for his review. Utilizing
Table 15-5, he found that a labrum lesion resulted in a class 1, five percent impairment, with a
range adjustment to grade E based on GMPE and GMFH adjustments. Dr. Dedhia also found a
grade E seven percent impairment, for a full-thickness rotator cuff tear under Table 15-5 based on
GMFH and GMPE findings. He noted that his seven percent impairment rating included all
diagnoses related to appellant’s shoulder condition and was the greater rating based on the DBI
method.
Dr. Dedhia also utilized the ROM method at Table 15-34 to rate permanent impairment of
the left shoulder. He found 3 percent impairment for flexion, 6 percent impairment for abduction,
2 percent impairment for external rotation, 1 percent impairment each for extension and adduction,
and 4 percent impairment for internal rotation, totaling 17 percent permanent impairment of the
left upper extremity. Dr. Dedhia advised that since his 17 percent ROM permanent impairment
rating was greater than the DBI permanent impairment ratings, it was the predominate rating for
appellant’s left shoulder conditions. He determined that appellant had reached MMI.
By letter dated July 10, 2020, OWCP requested that Dr. Dedhia clarify his calculation of
the 17 percent ROM impairment rating as it calculated a 16 percent ROM impairment rating,
whether his 13 percent DBI impairment rating should be added to the 17 percent ROM impairment
rating for a total of 30 percent left upper extremity permanent impairment, and whether his current
total impairment rating considered the 18 percent left upper extremity impairment rating for which
appellant previously received schedule award compensation.
In a September 15, 2020 addendum report, Dr. Dedhia acknowledged that OWCP was
correct in finding that appellant had a 16 percent left shoulder ROM impairment rating. He
therefore found that appellant had 29 percent permanent impairment of the left upper extremity
based on CRPS and shoulder ROM deficits. Dr. Dedhia related that, if appellant had been given
a previous schedule award for 18 percent impairment, then he had an additional 11 percent
permanent impairment. He advised that his 29 percent impairment rating was not in addition to
the 18 percent previously awarded.
OWCP, by decision dated November 12, 2020, granted appellant a schedule award for an
additional 11 percent permanent impairment of the left upper extremity, resulting in a total of 29
percent permanent impairment. The period of the award ran for 34.32 weeks from March 10
through November 5, 2020 and was based on the impartial medical opinion of Dr. Dedhia.

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On November 19, 2020 appellant, through counsel, requested a telephonic hearing before
a representative of OWCP’s Branch of Hearings and Review.
OWCP subsequently received progress notes dated July 3 and August 22, 2018 by
Dr. Alan G. Shepard, a neurologist, who diagnosed Type 1 CRPS of the left upper extremity,
degeneration of the lumbar or lumbosacral intervertebral disc, and hand weakness.
OWCP issued an amended decision dated December 10, 2020, again granting appellant a
schedule award for an additional 11 percent permanent impairment of the left upper extremity, for
a total 29 percent permanent impairment, based on Dr. Dedhia’s impairment rating.
An oral hearing was held on March 18, 2021.
By decision dated June 2, 2021, OWCP’s hearing representative affirmed the
December 10, 2020 decision.
LEGAL PRECEDENT
The schedule award provisions of FECA 6 and its implementing regulations 7 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants.
Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses. 8 As of May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2009).9 The Board has approved the use
by OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes. 10
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).11 In addressing impairment for the upper extremities, the sixth edition of the
A.M.A., Guides requires identifying the impairment class for the diagnosed condition, which is
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

9

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6a (March 2017).
10

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

11

A.M.A., Guides 3, section 1.3, The International Classification of Functioning, Disability and Health (ICF): A
Contemporary Model of Disablement (6 th ed. 2009).

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then adjusted by GMFH, GMPE, and GMCS. 12 Evaluators are directed to provide rationale for
their impairment rating choices, including the choices of diagnosis from regional grids and
calculations of modifier scores.13
Impairment due to CRPS is evaluated under the scheme found in Table 15-26 (Complex
Regional Pain syndrome (UEI)) as well as Table 15-24 and Table 15-25 and the accompanying
relevant text.14 The grade modifier level (ranging from zero to four) are described from the
categories of functional history, clinical studies, and physical examination. The grade modifier
levels are averaged to arrive at the appropriate overall grade modifier level and to identify a class
rating value. If that class number is not supported by the objective diagnostic criteria point, the
highest class specified by those points is selected. The rating for CRPS is a “stand alone”
approach.15
Regarding the application of ROM or DBI impairment methodologies in rating permanent
impairment of the upper extremities, FECA Bulletin No. 17-06 provides:
“As the [A.M.A.,] Guides caution that, if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).”16
FECA provides that, if there is disagreement between an OWCP-designated physician and
the employee’s physician, OWCP shall appoint a third physician who shall make an examination. 17
For a conflict to arise, the opposing physicians’ viewpoints must be of virtually equal weight and
rationale.18 Where OWCP has referred the case to an impartial medical examiner (IME) to resolve
a conflict in the medical evidence, the opinion of such a specialist, if sufficiently well-reasoned
and based upon a proper factual background, must be given special weight. 19
ANALYSIS
The Board finds that this case is not in posture for decision.

12

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

13

D.S., Docket No. 19-0292 (issued June 21, 2019); R.V., Docket No. 10-1827 (issued April 1, 2011).

14

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

15

Id.

16

FECA Bulletin No. 17-06 (May 8, 2017).

17

5 U.S.C. § 8123(a); A.R., Docket No. 18-0632 (issued October 19, 2018).

18

C.H., Docket No. 18-1065 (issued November 29, 2018.

19

W.M., Docket No. 18-0957 (issued October 15, 2018).

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OWCP properly found a conflict in the medical opinion evidence between appellant’s
attending physician, Dr. Ellis and the DMA, Dr. White, regarding the extent of permanent
impairment of the left upper extremity due to his accepted left shoulder injury. It referred
appellant’s case to Dr. Dedhia pursuant to 5 U.S.C. § 8123(a) for an impartial medical examination
in order to resolve the conflict in medical opinion. In his March 10, 2020 report, the IME,
Dr. Dedhia, reviewed appellant’s history of injury and the relevant medical evidence, and provided
physical examination findings. He noted appellant’s accepted conditions of left shoulder,
including rotator cuff tear and left arm CRPS. In evaluating appellant’s permanent impairment
due to CRPS, using the DBI method at Table 15-25 of the sixth edition of the A.M.A., Guides,
Dr. Dedhia assigned a point score of 4 due to his examination findings. He determined that, under
Table 15-26, the CDX for appellant’s CRPS resulted in a class 1 impairment. Dr. Dedhia
considered adjustments for GMFH and GMPE which resulted in a grade E impairment with a
default value of 13 percent permanent impairment. He noted that an adjustment for GMCS was
not applicable as clinical studies had not been provided to him.
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. The claimant has the burden of proof to establish entitlement to compensation. However,
OWCP shares responsibility in the development of the evidence to see that justice is done. 20 Once
it undertakes development of the record, it must do a complete job in procuring medical evidence
that will resolve the relevant issues in the case. 21
In a situation where OWCP secures an opinion from an IME for the purpose of resolving
a conflict in the medical evidence and the opinion from such IME requires clarification or
elaboration, it has the responsibility to secure a supplemental report from the examiner for the
purpose of correcting the defect in the original opinion. 22
The Board finds that while Dr. Dedhia attempted to rate appellant’s permanent impairment
of the left shoulder for CRPS, he clearly noted that appellant’s entire medical record, including all
diagnostic studies, was not provided for his review. He therefore did not apply the GMCS in the
net adjustment formula. OWCP should have referred the entire medical record including all
diagnostic reports and/or studies to Dr. Dedhia, once he noted this discrepancy. 23 On remand it
shall refer appellant’s entire medical record to Dr. Dedhia and request that he provide a
supplemental opinion regarding appellant’s permanent impairment of the left shoulder based upon
his CRPS diagnosis.
The Board also notes that Dr. Dedhia also used the ROM method under Table 15-34 to rate
permanent impairment of appellant’s left shoulder. Dr. Dedhia found 3 percent impairment for
flexion, 6 percent impairment for abduction, 2 percent impairment for external rotation, 1 percent
20

See L.B., Docket No. 19-0432 (issued July 23, 2019); William J. Cantrell, 34 ECAB 1223 (1983).

21

Id.; see also S.A., Docket No. 18-1024 (issued March 12, 2020).

22

J.C., Docket No. 20-0064 (issued September 4, 2020); S.R., Docket No. 17-1118 (issued April 5, 2018); Nancy
Lackner (Jack D. Lackner), 40 ECAB 232, 238 (1988).
23

Id.

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impairment each for extension and adduction, and 4 percent impairment for internal rotation,
totaling 17 percent permanent impairment of the left upper extremity. However, he did not record
or otherwise report that he had taken three independent ROM measurements of appellant’s left
shoulder.24 On remand, OWCP should also request that Dr. Dedhia explain whether three ROM
measurements were taken to evaluate appellant’s left shoulder loss of ROM. Following this and
other such further development, as deemed necessary, it shall issue a de novo decision on
appellant’s schedule award claim.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 2, 2021 decision of the Office of Workers’
Compensation Programs is set aside. The case is remanded to OWCP for further proceedings
consistent with this decision of the Board.
Issued: March 2, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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The Board also notes that the record does not substantiate that Dr. Dedhia was advised by OWCP that three
independent measurements were necessary.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Columbia, SC, Employer
__________________________________________

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

Docket No. 10-2330
Issued: August 2, 2011

Case Submitted on the Record

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

JURISDICTION
On September 20, 2010 appellant filed a timely appeal from Office of Workers’
Compensation Programs’ (OWCP) decisions dated April 9 and July 20, 2010, which denied
modification of prior decisions denying certain conditions as not causally related to her accepted
employment injuries. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish that her right shoulder
and cervical disc condition are causally related to her October 2, 2005 work injury.

1
2

5 U.S.C. § 8101 et seq.

The record contains a May 6, 2010 nonmerit decision. Appellant’s representative did not appeal from this
decision.

FACTUAL HISTORY
OWCP accepted that, on October 2, 2005, appellant, then a 49-year-old registered nurse,
sustained neck sprain/strain and temporary aggravation of cervical disc disease when she pushed
a medication cart down a hallway.3 She received compensation benefits.
Treatment notes dated October 10 and 31, 2005 from Dr. Roger K. Griggs, a Boardcertified family practitioner, advised that appellant was seen for pain and numbness in her right
neck and for shoulder symptoms. Diagnostic testing revealed degenerative joint disease and
facet narrowing. Dr. Griggs stated that appellant was seen for a similar condition in
August 2004. He diagnosed neck pain and strain and advised that her condition was an
aggravation or reinjury of a previous injury. On November 3, 2005 Dr. Griggs placed appellant
off work due to shoulder symptoms. An October 20, 2005 x-ray of the cervical spine showed
degenerative changes at C5-6 and C6-7 and the left neural foramina osteophytic encroachments.
A February 8, 2006 nerve conduction study and electromyogram for the right arm was normal.
On July 12, 2006 OWCP referred appellant to Dr. James Bethea, a Board-certified
orthopedic surgeon, to determine whether her cervical strain had resolved and the extent of any
disability. In a July 28, 2006 report, Dr. Bethea advised that her October 2, 2005 injury
aggravated her preexisting cervical disc disease. In an August 17, 2006 addendum, he advised
that the cervical strain had resolved. Dr. Bethea noted that degenerative disc disease at C5-6 and
C6-7 was confirmed by magnetic resonance imaging (MRI) scan.4 On December 11, 2006 he
listed temporary work restrictions due to her cervical condition. On December 14, 2006
Dr. Bethea noted that the MRI scan showed degenerative disc disease at two levels and opined
that her aggravation should cease in about three months and she could return to normal work
activities.
In a November 2, 2006 letter, appellant asserted that her right shoulder condition was
employment related. On February 3, 2007 she requested that OWCP accept a C5-6 herniated
disc.
In a February 13, 2007 report, Dr. Gajewski discussed the relationship between
appellant’s degenerative disc disease and herniated disc and her work injury. She noted that
appellant had a new finding of a herniated disc at C5-6 which was not present on the initial MRI
scan in 2005; however, it “appears to be related to her degenerative disc disease.” Dr. Gajewski
noted that appellant did not have any trauma in the interim and had received treatment for her
degenerative disc disease but not for the herniated disc. She opined that there was “a
relationship between degenerative disc disease and herniated disc, and most likely her herniated
disc is related to her degenerative disc disease.” Dr. Gajewski placed appellant off work pending
a neurological evaluation.

3

On August 6, 2004 under claim No.xxxxxx957, appellant sustained an injury to her right shoulder and neck
while pushing a medical cart. This claim is not before the Board.
4

An August 16, 2006 MRI scan read by Dr. Stacy Gajewski, a Board-certified family practitioner and treating
physician, revealed a left-sided disc herniation at C5-6.

2

On March 19, 2007 OWCP referred appellant to Dr. Alfred G. Dawson, a Board-certified
orthopedic surgeon, for an impartial medical evaluation to resolve the conflict in opinions
between Dr. Gajewski and Dr. Bethea regarding appellant’s ability to work and the cause of her
herniated disc. In an April 18, 2007 report, Dr. Dawson reviewed appellant’s history and
medical treatment. He diagnosed, neck pain, shoulder pain and cervical disc disease.
Dr. Dawson explained that the aggravation of degeneration of cervical intervertebral disc disease
was consistent with his examination. He stated that the degenerative disc disease was old and
the aggravation was new due to the work injury. Dr. Dawson found that appellant reached
maximum medical improvement with a permanent impairment of the neck due to the cervical
disc disease and aggravation of the neck strain. He opined that the herniated nucleus pulposus
and her shoulder pain were unrelated to the work injury.
In a June 14, 2007 report, Dr. Gajewski noted that appellant had neck and shoulder pain
which worsened after returning to work. She advised that appellant pursue a disability claim
since working worsened her pain. In a July 9, 2007 disability certificate, Dr. Gajewski placed
appellant off work from June 28, 2007 to “indefinitely.” Appellant stopped work on
June 28, 2007.
By decision dated August 13, 2007, OWCP denied appellant’s claim to include a cervical
herniated nucleus pulposus (HNP) or a shoulder condition.
Appellant submitted a December 11, 2006 report from Dr. Gajewski, who advised that
appellant had neck pain stemming from a fall a year and a half prior that initially revealed
degenerative change which “worsened” to disc disease. On January 10, 2007 Dr. Gajewski
noted that appellant had neck and shoulder pain since a 2005 injury and diagnosed cervical disc
pain with neuropathy. In a December 7, 2007 report, Dr. Gajewski asserted that the medical
evidence supported that appellant’s chronic neck and shoulder pain conditions were work
related.
In a January 30, 2008 decision, OWCP affirmed the denial of appellant’s claim for a right
shoulder condition. It allowed appellant an opportunity to provide additional medical evidence
addressing causal relationship of her cervical herniated disc. On February 1, 2008 OWCP
advised appellant of the medical evidence needed. No additional evidence was submitted.
In a March 25, 2008 decision, OWCP denied appellant’s claim for a recurrence of
disability beginning June 28, 2008.
Appellant requested reconsideration on May 27, 2008. In a May 15, 2008 report
Dr. Gajewski opined that “a herniated disc would be a reasonable course for someone having
persistent degenerative changes. It would be medically reasonable to assume that her neck pain
is the result of years of pulling and pushing carts and patients, and therefore would be consistent
with [w]orkers’ [c]omp[ensation].” Regarding the shoulder pain, Dr. Gajewski explained that
the MRI scan revealed the shoulder condition was “indeed a separate problem with the MRI scan
showing bursitis and degenerative changes of the AC joint as well as tendinitis. This would be
consistent with chronic overuse syndrome, which again would be reasonable to assume this is
from years of pulling on carts and patients. She does not have any other risk factors or known
cause, for this type of pain.” Dr. Gajewski opined that both conditions were most likely “from
3

repetitive use from her occupation.” She recommended that appellant “return to an occupation
which does not involve repeated pushing and pulling since both situations are considered
degenerative changes, and she should instead choose an occupation with less physical labor.”
By decision dated July 18, 2008, OWCP denied modification of its prior decisions with
regard to the claimed cervical condition. In an October 7, 2008 decision, OWCP denied
modification of its prior decision with regard to the claimed shoulder condition.
Appellant requested reconsideration. On June 5, 2009 Dr. Gajewski noted that appellant
was off work until June 10, 2007 when she returned to light duty. Thereafter appellant’s
symptoms worsened and she quit work on June 28, 2007. Dr. Gajewski advised that, with the
original injury, appellant had neck and shoulder pain. She advised that the MRI scan revealed
mild arthritis; however, appellant “really had not had too much problem with her shoulder or
neck prior to this injury.” Dr. Gajewski noted that appellant had severe neck and shoulder pain
at the time of the injury but there was more concern about the neck and, thus, the shoulder had
not been evaluated. She indicated that the shoulder symptoms began with her October 2, 2005
injury and were consistent with the actions that appellant was doing at the time. Dr. Gajewski
noted that the shoulder pain injury caused pain into appellant’s neck and resulted in total
disability of the shoulder and neck. Furthermore, when appellant returned to work, the repetitive
action caused both the shoulder and neck to worsen and there was no reason to believe that these
were two separate incidences. Dr. Gajewski explained that “[w]henever someone has a shoulder
injury, the pain does go into the neck, and this may explain why the concern was initially just the
neck. The patient has persistently had shoulder pain with decreased range of motion with poor
healing, all resulting from the above injury.”
On June 15, 2009 OWCP referred appellant for a second opinion examination to
Dr. James A. Loging, a Board-certified orthopedic surgeon, who was asked to address causal
relationship and her work capacity. In an August 12, 2009 report, Dr. Loging noted appellant’s
history and findings. He advised that appellant’s pain had been present since the work injury and
that she had little relief from treatment. Examination revealed limited neck range of motion due
to pain while there was a positive impingement sign for both shoulders. Shoulder range of
motion was full but with pain at the extremes of motion. Dr. Loging advised that it was difficult
to determine why appellant had not recovered from the initial injury. He noted that her
symptoms might not be due to a cervical sprain but to her herniated disc at C5-6. Dr. Loging
opined that appellant’s work-related aggravation of her preexisting cervical disc disease had not
returned to base line. He determined that she had some degree of shoulder pathology and opined
that it was “more medically probable that her neck sprain and aggravation of her cervical
degenerative disease has not resolved at this point and is not likely the result of a natural
progression of her underlying cervical degenerative disc disease, although there would probably
be some natural progression associated with this as well.” Dr. Loging recommended an MRI
scan of the cervical spine and “further treatment of appellant’s shoulders as this is potentially
part of her initial injury as well” as her symptoms “did seem to start during the same time as the
injury.” He stated that she would work full time within restrictions.
By decision dated September 4, 2009, OWCP denied modification of its prior decisions.

4

Thereafter, OWCP received a September 2, 2009 report from Dr. Loging who noted that
appellant’s neck sprain had not resolved due to continuous pain and limited activity with regard
to symptomatology sustained after the injury. Dr. Loging reiterated that it was difficult to say
why she had not recovered since her initial injury noting that “potentially” the neck injury is not
a sprain but her symptoms are a result of her herniated disc at C5-6 and disc osteophyte complex,
as well as potential injury to the shoulders. He noted that her MRI scan was consistent with her
symptomatology, as well as the fact that the injections to the shoulders improved some of her
symptoms. Dr. Loging opined that he did not believe that the work-related aggravation of the
preexisting cervical disc disease had returned to baseline, as she was not symptomatic with this
prior to the injury. He explained that there was no follow up MRI scan since the injury to
evaluate her cervical spine to see if there was improvement in her herniated disc. Dr. Loging
opined that she had some shoulder pathology associated with her injury that was overlapping and
continued to be problematic. He stated that the connection between her work-related injury in
2005 and her current condition was persistent with regard to her neck, shoulder and arm pain.
Dr. Loging explained that it was “simply because her physical examination is unchanged since
that time, as well as her pain distributions.” He opined that it was medically probable that her
neck sprain and aggravation of her cervical degenerative disc disease had “not resolved at this
point and is not likely to result in a natural progression of her underlying cervical degenerative
disease, although there would probably be sonic natural progression associated with this, as
well.” Dr. Loging noted that appellant continued to have residuals which would be chronic pain,
limited strength and mobility from her injury. He opined that appellant was not able to perform
her nurse duties as a nurse due to her symptoms. Dr. Loging recommended a repeat MRI scan to
further examine her cervical spine; and also possibly, further treatment of her shoulders as this
was potentially part of her initial injury as well, since the symptomatology seemed to start during
the time of the injury. He recommended injections to the cervical spine, and shoulders and a
cervical decompression and fusion at the C5-6 level to try to resolve her symptomatology.
Dr. Loging recommended therapy for the shoulders and a possible arthroscopy.
On October 5, 2009 appellant requested reconsideration and submitted additional
evidence. In a September 18, 2009 report, Dr. Bethea examined appellant and provided findings.
He opined “[f]rom my understanding of her injury, it does appear that her shoulder problems are
indeed related to her accident at work in 2005.”
By decision dated December 31, 2009, OWCP denied modification of its prior decisions.
On February 11 and March 12, 2010 appellant requested reconsideration and submitted
additional evidence. In a January 15, 2010 report, Dr. Bethea noted that it appeared that “her
shoulder problem is due to cumulative trauma from her work as an RN.” In a March 8, 2010
report, Dr. Gajewski diagnosed shoulder pain and noted that she agreed that it was due to her
work injury.
In an April 9, 2010 decision, OWCP denied modification of its prior decisions.
On April 29, 2010 appellant requested reconsideration and submitted additional evidence.
In an April 14, 2010 report, Dr. Bethea noted that appellant had pain in both shoulders and her
neck. He examined appellant and opined that “her shoulder problem is due to cumulative trauma
and that she pushed medicine carts as RN for 18 years. It is my opinion that there is a definite
5

causal relationship.” In an April 26, 2010 report, Dr. Bethea noted that appellant could return to
work and provided permanent restrictions for appellant.
In a May 6, 2010 decision, OWCP denied appellant’s request for reconsideration without
further review of the merits of the claim.
On May 14, 2010 appellant requested reconsideration and submitted a May 5, 2010
report from Dr. Bethea who opined that “[p]ushing and shoving a large bulky medication cart has
aggravated the tendinosis, AC arthritis and bursitis in her shoulders.” Dr. Bethea advised that
appellant was not able to work since her injury in October 2005 and that she was in need of
further medical care regarding her shoulders.
By decision dated July 20, 2010, OWCP denied modification of its prior decisions. It
found that the record contained no medical explanation to describe how the October 2, 2005
event caused additional cervical and shoulder conditions.
LEGAL PRECEDENT
When an employee claims that he or she sustained an injury in the performance of duty,
the employee must submit sufficient evidence to establish that he or she experienced a specific
event, incident or exposure occurring at the time, place and in the manner alleged. The
employee must also establish that such event, incident or exposure caused an injury. Once an
employee establishes an injury in the performance of duty, he or she has the burden of proof to
establish that any subsequent medical condition or disability for work, which the employee
claims compensation, is causally related to the accepted injury.5 To meet his or her burden of
proof, an employee must submit a physician’s rationalized medical opinion on the issue of
whether the alleged injury was caused by the employment incident.6 Medical conclusions
unsupported by rationale are of diminished probative value and are insufficient to establish
causal relation.7
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP referred appellant to Dr. Loging to further develop the medical evidence with
regard to the nature of any work-related conditions stemming from her October 2, 2005 work
injury. Dr. Loging provided two reports that generally supported causal relationship between
appellant’s shoulder and neck conditions and the original work injury. He noted that appellant
had some degree of shoulder pathology and opined that it was medically probable that her neck
sprain and aggravation of her cervical degenerative disease were not just the result of a natural
progression of her underlying cervical degenerative disc disease. Dr. Loging opined that the
work-related aggravation of the preexisting cervical disc disease had not returned to baseline,
5

See Leon Thomas, 52 ECAB 202 (2001).

6

See Gary J. Watling, 52 ECAB 278 (2001).

7

Albert C. Brown, 52 ECAB 152 (2000).

6

and she was asymptomatic prior to the injury. He explained that it was “simply because her
physical examination is unchanged since that time, as well as her pain distributions.” Dr. Loging
opined that appellant’s symptoms could be due to her herniated nucleus pulposus at the C5-6
level. He recommended a repeat MRI scan to further examine her cervical spine. Dr. Loging did
not specifically address whether the herniated cervical disc was caused or aggravated by the
October 2, 2005 work injury and he did not provide sufficient rationale to explain why the
shoulder condition was attributable to that injury.8 However, his reports provide some support
for causal relationship and OWCP request clarification or authorize the additional medical
testing that he recommended.
It is well established that proceedings under FECA are not adversarial in nature and,
while the claimant has the burden to establish entitlement to compensation, the Office shares
responsibility in the development of the evidence.9 When OWCP obtains an opinion from a
referral physician, it has the responsibility to obtain an evaluation from the referral physician that
resolves the issue involved in the case.10
Furthermore, other recent reports in the record, while insufficiently rationalized, are
generally supportive of causal relationship. They include reports from Dr. Gajewski, a treating
physician, who opined that the neck and shoulder conditions were work related. Likewise,
Dr. Bethea, previously a second opinion physician, began to treat appellant and provided some
support that appellant’s shoulder condition is employment related.11
As OWCP has a responsibility to obtain an opinion from Dr. Loging that resolves the
issues in this case, the case must be remanded to obtain a supplemental report. OWCP shall
authorize appropriate testing and request that Dr. Loging provide a reasoned opinion regarding
whether appellant has any shoulder condition and cervical condition, including the herniated disc
at C5-6, caused or aggravated by the October 2, 2005 work injury. Following this and any other
further development as deemed necessary, the Office shall issue an appropriate merit decision.
On appeal, appellant’s attorney essentially asserts that the medical evidence establishes
that the additional conditions should be accepted. As explained, the case is not in posture for a
decision as the medical evidence requires further development. Counsel also asserts that
appellant’s recurrence of disability claim should have been accepted. The Board does not have
jurisdiction over this matter as OWCP’s July 20 and April 9, 2010 decisions did not address this
matter.12
8

John F. Glynn, 53 ECAB 562 (2002) (an opinion that a condition is causally related to an employment injury
because the employee was asymptomatic before the injury but symptomatic after it is insufficient, without
supporting rationale, to establish causal relationship).
9

Richard E. Simpson, 55 ECAB 490 (2004).

10

See Richard F. Williams, 55 ECAB 343 (2004); Mae Z. Hackett, 34 ECAB 1421 (1983).

11

Dr. Bethea’s reports appear to relate shoulder conditions to appellant’s employment over a number of years
instead of to the October 2, 2005 work injury. This suggests an occupational disease. See 20 C.F.R. § 10.5(q),
10.5(ee). The record does not indicate that appellant has filed an occupational disease claim regarding this matter.
12

See 20 C.F.R. § 501.2(c).

7

CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the July 20 and April 9, 2010 Office of Workers’
Compensation Programs’ decisions are set aside and remanded.
Issued: August 2, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.A., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, West Palm Beach, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 12-1531
Issued: March 5, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 9, 2012 appellant, through his attorney, filed a timely appeal from an April 25,
2012 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 established that he sustained greater than a two percent
impairment to the right lower extremity.
On appeal, appellant, through counsel, contends that he has established entitlement to an
impairment rating of nine percent of the right lower extremity. In the alternative, counsel
contends that the case should be remanded and referred for a new impartial medical examination.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 16, 2004 appellant, then a 50-year-old biomedical engineering technician,
filed a traumatic injury claim alleging that, on November 12, 2004, while coming out from the
electronic shop, someone called him and as he turned to his right side, he felt a strong pain in his
right knee. On December 27, 2004 OWCP accepted his claim for tear of right medial cartilage
or meniscus of knee. It paid appellant compensation for wage-loss and medical benefits. On
January 26, 2005 appellant underwent a diagnostic and surgical arthroscopy of the right knee
with abrasion chondromalacia of the patellofemoral of the patella and trochlear grove; and a
partial medial meniscectomy of the right knee. He returned to work on March 21, 2005. On
April 28, 2009 OWCP also accepted appellant’s claim for aggravation of degenerative joint
disease.
In a medical report dated July 16, 2007, Dr. David Weiss, appellant’s osteopath, listed
appellant’s diagnoses as: (1) post-traumatic internal derangement to the right knee with a tear of
the medial meniscus; (2) post-traumatic chondromalacia patella to the right knee;
(3) post-traumatic synovitis to the right knee; (4) status post-arthroscopic surgery with abrasion
chondroplasty to the right knee; (5) status post-partial synovectomy to the right knee; (6) status
post-partial medial meniscectomy to the right knee; (7) post-traumatic internal derangement to
the left knee with a tear of the medial meniscus; (8) status post-arthroscopic surgery with
revision of tear of the left medial meniscus; (9) chondromalacia patella of the left knee; and
(10) post-traumatic osteoarthritis of the left knee. Reviewing appellant’s case under the fifth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) he determined that appellant had a 15 percent impairment of the
right lower extremity.
On November 5, 2007 appellant filed a claim for a schedule award.
On November 13, 2007 OWCP referred the report of Dr. Weiss to an OWCP medical
adviser, who determined that appellant failed to improve as expected and was not yet at
maximum medical improvement. The medical adviser suggested a reevaluation by a second
opinion physician to determine current diagnoses and recommend treatment.
On October 23, 2008 OWCP referred appellant to Dr. Daniel Benson, a Board-certified
orthopedic surgeon, for a second opinion. In a November 4, 2008 report, Dr. Benson
recommended a 48 percent impairment of the right lower extremity.
On January 22, 2009 OWCP referred the case to its medical adviser, who reviewed the
case under the fifth edition of the A.M.A., Guides and determined that appellant had a right
lower extremity impairment of two percent. The medical adviser noted errors with Dr. Benson’s
report and indicated that a correct application of the fifth edition of the A.M.A., Guides yielded a
two percent impairment rating for the right lower extremity.
After OWCP accepted appellant’s case for the additional condition of aggravation
degenerative joint disease in April 28, 2009. It referred his case to a different OWCP medical
adviser, who indicated that, based on this additional condition, OWCP was entitled to an

2

additional impairment of five percent of the right lower extremity pursuant to the fifth edition of
the A.M.A., Guides.
On August 17, 2009 OWCP referred appellant to Dr. Robert Sellards, a Board-certified
orthopedic surgeon, for an impartial medical examination. In describing the nature of the
conflict, it asked Dr. Sellards to determine whether appellant had a permanent impairment to his
right lower extremity using the sixth edition of the A.M.A., Guides. In a September 28, 2009
report, Dr. Sellards concluded that appellant had a one percent impairment of the right lower
extremity.
On December 17, 2009 an OWCP medical adviser noted that the referee opinion of
September 28, 2009 was correct in applying the A.M.A., Guides and in calculating permanent
impairment at one percent for the right lower extremity.
On January 12, 2010 OWCP issued a schedule award for one percent impairment of the
right lower extremity.
Appellant requested an oral hearing before an OWCP hearing representative. In a
February 23, 2010 decision, the hearing representative found that the case was not in posture for
decision as it required further development of the medical evidence. Specifically, he found that
Dr. Sellards did not function as a referee examiner because there was no conflict between
appellant’s treating physician and a government-appointed physician. Furthermore, the hearing
representative found that the opinion of Dr. Sellards was not well rationalized and that
clarification of Dr. Sellards’ report was necessary.
By letter dated March 12, 2010, OWCP asked Dr. Sellards, the IME physician, for a
rationalized opinion with regard to appellant’s impairment pursuant to the sixth edition of the
A.M.A., Guides. In an April 15, 2010 report, Dr. Sellards noted that, in applying the sixth
edition of the A.M.A., Guides, the regional grid places appellant’s partial medial meniscectomy
in class 1, mild problem. In addressing the adjustment grid and grade modifiers, he noted that
Functional History (GMFH) of an antalgic limp would equal a grade modifier 1, Physical
Examination (GMPE) of moderate palpatory findings, consistently documented, would equal a
grade modifier 2 and that Clinical Studies (GMCS), which confirmed diagnosis of mild
pathology would equal a grade modifier 1. Accordingly, Dr. Sellards used a class of diagnosis of
1 and grade modifiers for GMFH of 1, for GMPE of 2 and GMCS of 1. He noted that the net
adjustment was (1-1) + (2-1) + (1-1) = 1, which was grade D. Dr. Sellards indicated that the
regional grid identified the impairment rating value for the impairment class as class 1, grade D
or two percent of the right lower extremity.
On June 2, 2010 OWCP noted that appellant’s claim was accepted for tear of medial
meniscus of knee, current right; chondromalacia patellae and osteoarthrosis unspecified.
In a June 8, 2010 report, an OWCP medical adviser indicated that, according to
Dr. Sellards’ report of May 27, 2010, appellant is not at maximum medical improvement of the
right lower extremity. However, in a July 23, 2010 report, the medical adviser noted that the
date of maximum medical improvement was September 28, 2009 and stated that the referee
applied the edition of the A.M.A., Guides correctly.

3

On June 25, 2010 Dr. Weiss updated his July 16, 2007 report to apply the sixth edition of
the A.M.A., Guides and determined that appellant had a nine percent impairment of the right
lower extremity. He determined that appellant was class 1 for left knee primary joint arthritis,
which equaled a seven percent impairment. Dr. Weiss found grade modifiers 2 for functional
history, 2 for physical examination (atrophy) and did not find the modifier for diagnostic testing
to be appropriate. He then made adjustments. (For functional history, 2-1 equals 1; for physical
examination, 2-1 equals 1, for a total net adjustment of 2). With this adjustment, Dr. Weiss
determined that appellant was entitled to an impairment rating of nine percent for the right lower
extremity. He made an identical finding for the left lower extremity.
On July 30, 2010 OWCP issued a schedule award for an additional one percent
impairment of the right leg.
On August 10, 2010 appellant, through counsel, requested a hearing. At a hearing held
on December 7, 2010 appellant’s attorney requested referral of the case to an impartial medical
examiner due to the conflict between the opinion of appellant’s physician, Dr. Weiss, and the
opinion of the medical advisers and Dr. Sellards. He further argued that Dr. Sellards’ report
failed to carry the weight of the evidence.
In a decision dated February 7, 2011, the hearing representative found that a conflict
existed between appellant’s treating physician, Dr. Weiss, and the opinions of Dr. Sellards and
an OWCP medical adviser. Accordingly, he remanded the case for referral for an impartial
medical examination.
On February 28, 2011 OWCP referred appellant to Dr. Bradford Slutsky, an orthopedic
surgeon, for an impartial medical examination. The nature of the conflict was listed as “conflict
of physician opinions with impairment rating.” In a March 21, 2011 report, Dr. Slutsky
indicated that he applied the A.M.A., Guides. He stated that, pursuant to Table 64 of the
impairment rating guide for a partial medial or lateral meniscectomy, appellant would have a one
percent whole person impairment rating. Dr. Slutsky noted that, in addition to the partial
meniscectomy, appellant did have what was described as chondromalacia or an injury to the
articular cartilage. He noted that this could have been preexisting, although there was no history
of any preexisting problems. In order to evaluate an impairment for appellant’s articular
cartilage injury, one option would be to use the Arthritis Impairment on Table 62. Dr. Slutsky
also noted that there were other impairments as mentioned by previous physicians for weakness
and appellant’s abnormal gait. He noted that these were somewhat atypical due to the subjective
nature of these findings. Dr. Slutsky opined that it would be reasonable, since the operative
report describes some significant injury to the articular cartilage, that the patient had areas where
an abrasion arthroplasty was performed, which means that there were isolated areas that were
worn down or injured to the bone. He opined that it would be reasonable to use the cartilage
interval of 2 millimeters (mm) on Table 62, which would give him an eight percent whole person
impairment rating, for a total of nine percent whole person impairment rating when one
incorporated the partial meniscectomy. On April 20, 2011 Dr. Slutsky wrote an addendum. He
noted that he had been asked for an impairment rating from the A.M.A., Guides, that the
impairment rating for the meniscectomy is a 2 percent lower extremity impairment rating and the
impairment rating for the arthritis which was aggravated by the accident is a 20 percent lower
extremity impairment rating, which combined to a 22 percent lower extremity impairment rating.

4

In an April 29, 2011 report, an OWCP medical adviser stated that the report by
Dr. Slutsky of March 21, 2011 and amended on April 20, 2011 was not in agreement with
OWCP requirements. He noted that Dr. Slutsky cited the A.M.A., Guides, Table 62 and Table
64, but that those tables were not a part of the sixth edition of the A.M.A., Guides, which are
mandated by OWCP. The medical adviser also noted that Dr. Slutsky attempted to recognize the
presence of chondromalacia or arthritis in the impairment rating, but did so incorrectly. In prior
OWCP reviews, he noted that it was done correctly in the fifth edition on April 24, 2009 and
correctly in the sixth edition on July 20, 2010.
On May 13, 2011 OWCP referred appellant for a new impartial medical examination to
Dr. Jeffrey Penner, a Board-certified orthopedic surgeon. In a June 7, 2011 report, Dr. Penner
listed his impression as status post right knee arthroscopy with resultant significant right knee
pain. He did not believe that appellant had reached maximum medical improvement based on
subjective complaints, history given by appellant, physical examination and medical records and
tests. Dr. Penner indicated that appellant had a 10 percent impairment of the right lower
extremity, based on his June 7, 2011 examination. In reaching this conclusion, he noted 90
degrees of retained active flexion and retained extension of 10 degrees. Dr. Penner also included
in his calculations four percent for impairment of function due to weakness, atrophy, pain or
discomfort.
On June 27, 2011 an OWCP medical adviser reviewed the case and indicated that
Dr. Penner’s report was not helpful. He noted that Dr. Penner indicated that appellant needed
additional surgery based on pain complaints and stated that appellant had a 10 percent whole
body impairment due to right lower extremity dysfunction, which was not consistent with the
sixth edition of the A.M.A., Guides. The medical adviser recommended further discussion with
the impartial medical examiner concerning OWCP requirements.
By letter dated July 7, 2011, OWCP asked Dr. Penner for clarification. It noted that
impairment must be determined by utilizing the sixth edition of the A.M.A., Guides. No
clarification was provided.
On December 13, 2011 referred to Dr. Michael Leighton, a Board-certified orthopedic
surgeon, for an impartial medical examination. In a January 5, 2012 report, Dr. Leighton
indicated that appellant sustained an injury in November 2004 and subsequently underwent
arthroscopic debridement and partial medial meniscectomy and that at that time it was found that
he had significant osteoarthritic changes of medial femoral condyle and degenerative and
possibly traumatic posterior horn medial meniscus tear of the right knee. He noted that appellant
continued to have some pain on the medial side of the right knee, but did return to full-duty
work. Dr. Leighton opined that, based on the sixth edition of the A.M.A., Guides, Table 16-3
with modifiers, Table 16-5, Table 16-6 and Table 16-7, he would place appellant at a six percent
lower extremity with modifiers of +1, +1 and +1, making him a nine percent lower extremity
impairment rating.
In a March 22, 2012 report, an OWCP medical adviser determined that appellant had a
two percent impairment rating. He indicated that Dr. Leighton did not apply the A.M.A., Guides
correctly as appellant had a partial medial meniscectomy and Dr. Leighton utilized the figures in
the A.M.A., Guides for total medial meniscectomy. The medical adviser stated that, according to

5

Table 16-3 on page 509 of the sixth edition of the A.M.A., Guides, for a meniscal injury, partial
medial meniscectomy class 1, the impairment rating was two percent of the right lower
extremity. The medical adviser then made adjustments of 1 for functional history, 1 for physical
examination and 0 for diagnostic tests. Applying these adjustments, he determined that there
was no net change. (For functional history, 1-1 = 0; for physical examination, 1-1 = 0; there
were 0 adjustments for diagnostic tests.) The medical adviser then concluded that appellant had
a final rating of two percent impairment of the right lower extremity.
On March 27, 2012 OWCP asked Dr. Leighton to comment on the findings by the
medical adviser. Dr. Leighton responded “agree with DMA. Partial 2 mm percent.”
By decision dated April 25, 2012, OWCP denied appellant’s claim for an additional
schedule award.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations2 set forth the
number of weeks of compensation payable to employee sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss shall be determined. The method used in
making such a determination is a matter that rests within the sound discretion of OWCP.3 For
consistent results and to ensure equal justice under the law to all claimants, good administrative
practice necessitates the use of a single set of tables so that there may be uniform standards
applicable to all claimants. An A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.4 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.5
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.6 The implementing regulations state that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third
physician to make an examination.7 In situations where there exist opposing medical reports of
virtually equal weight and rationale and the case is referred to an impartial medical specialist for

2

20 C.F.R. § 10.404.

3

Linda R. Sherman, 56 ECAB 127 (2004); Daniel C. Goings, 37 ECAB 781 (1986).

4

Ronald R. Kraynak, 53 ECAB 130 (2001).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
6

5 U.S.C. § 8123(a).

7

20 C.F.R. § 10.321.

6

the purpose of resolving the conflict, the opinion of such specialist, if sufficiently well
rationalized and based upon a proper factual background, must be given special weight.8
ANALYSIS
OWCP accepted appellant’s claim for tear of the right medial cartilage or meniscus of the
knee; aggravation of degenerative joint disease; tear of the medial meniscus of the knee;
chondromalacia patellae and osteoarthrosis. Appellant underwent an arthroscopy of the right
knee and abrasion chondromalacia of the patellofemoral of the patella and trochlear groove and a
partial medial meniscectomy of the right knee on January 26, 2005. He filed a claim for a
schedule award and OWCP issued a schedule award for a one percent impairment of the right
lower extremity on January 12, 2010. On July 30, 2010 OWCP issued a schedule award for an
additional one percent impairment of the right lower extremity. Appellant contends that he is
entitled to a greater schedule award.
There are a multitude of medical opinions in the record addressing appellant’s
impairment to his right lower extremity. Effective May 1, 2009, the sixth edition of the A.M.A.,
Guides is used to calculate schedule awards.9 The July 16, 2007 report of Dr. Weiss and the
November 4, 2008 report of Dr. Benson are not applicable as these reports applied the fifth
edition of the A.M.A., Guides.
Using the sixth edition, Dr. Weiss, appellant’s treating physician, determined that
appellant had a nine percent impairment of his right lower extremity. Dr. Sellards concluded that
appellant had a two percent impairment of the right lower extremity. The hearing representative,
in the December 7, 2010 decision, properly determined that there was a conflict between the
opinion of Dr. Weiss and the opinions of Dr. Sellards and the medical adviser and ordered
referral to an impartial medical examiner.
The first impartial medical examiner was Dr. Slutsky. In his initial report of March 21,
2011, Dr. Slutsky concluded that appellant had a whole person impairment.10 In his
supplemental report of April 20, 2011 report, he indicated that appellant had a 22 percent
impairment of his right lower extremity. However, Dr. Slutsky did not apply the A.M.A.,
Guides, despite the fact that he mentions them in his April 20, 2011 report. He refers to tables
that do not appear in the A.M.A., Guides. An OWCP medical adviser, in an April 29, 2011
report, noted that Dr. Slutsky did not properly apply the A.M.A., Guides. The Board also notes
that Dr. Slutsky did not apply the sixth edition of the A.M.A., Guides as his discussion and
reference to Table 62 are not applicable to the sixth edition of the A.M.A., Guides. Accordingly,
Dr. Slutsky’s opinions do not resolve the conflict due to the diminished probative value of his

8

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

9

See id.

10

A schedule award for whole person impairment is not allowed under FECA. See also D.A., Docket No. 102172 (issued August 3, 2011); see J.Q., 59 ECAB 366 (2008).

7

reports. Thus, OWCP properly referred appellant to Dr. Penner for an impartial medical
evaluation and impairment rating.11
However, Dr. Penner’s report was also insufficient to resolve the conflict, as noted by an
OWCP medical adviser. He does not reference specific tables or pages of the A.M.A., Guides
and it is not possible to determine how he arrived at his conclusion that appellant had an
impairment rating of 10 percent of the right lower extremity. Although OWCP requested
clarification, Dr. Penner did not respond.
As Dr. Penner did not provide clarification, OWCP properly referred appellant to
Dr. Leighton for an impartial medical examination.12 In a December 13, 2011 report,
Dr. Leighton noted that he applied Table 16-3 on page 509 of the A.M.A., Guides and
determined that appellant had a key factor impairment of six percent. He then modified this by
adding one for each of the three modifiers and determined that appellant had a nine percent
impairment of the right lower extremity. However, when Dr. Leighton’s opinion was referred to
the impartial medical examiner, he noted that Dr. Leighton improperly evaluated appellant under
the criteria for a total meniscectomy whereas appellant had a partial meniscectomy. An OWCP
medical adviser noted that, pursuant to Table 16-3 of the sixth edition of the A.M.A., Guides,
appellant was entitled to a two percent impairment rating for a partial medial meniscectomy. He
then modified this with adjustment of 1 for functional history, 1 for physical examination and 0
for diagnostic testing. After applying the formula (1-1 = 0; 1-1 = 0; 0+0+0 = 0), the medical
adviser determined that appellant had an impairment rating of two percent to his right lower
extremity. OWCP properly referred the medical adviser’s report to Dr. Leighton for a
supplemental opinion,13 who indicated that he agreed with the medical adviser, noting that
appellant did have a partial medial meniscectomy and that he had an impairment of two percent
of the right lower extremity.
The Board finds that appellant had a two percent impairment of his right lower extremity.
It is clear that in Dr. Leighton’s first opinion, he improperly applied the criteria from Table 16-3
for a total meniscectomy whereas appellant had a partial meniscectomy. He agreed in his
subsequent note that his first opinion was in error and that appellant, in fact, had a two percent
impairment of the right lower extremity. Accordingly, contrary to the assertions of appellant’s
attorney, the impartial medical examiner agreed with the medical adviser and clarified his report.
Pursuant to Table 16-3, appellant is entitled to a diagnostic rating of two percent for a partial
medial meniscectomy. There is no change in the rating when the modifiers are applied.
11

When OWCP obtains an opinion from an impartial medical specialist for the purpose of resolving a conflict in
the medical evidence and the specialist’s opinion requires clarification or elaboration, it must secure a supplemental
report from the specialist to correct the defect in his original report. However, when the impartial specialist is
unable to clarify or elaborate on his original report or if his supplemental report is also vague, speculative or lacking
in rationale, OWCP must submit the case record and a detailed statement of accepted facts to a second impartial
specialist for the purpose of obtaining his rationalized medical opinion on the issue. Unless this procedure is carried
out by OWCP, the intent of section 8123(a) will be circumvented when the impartial specialist’s medical report is
insufficient to resolve the conflict of medical evidence. Harold Travis, 30 ECAB 1071 (1979).
12

Id.

13

Id.

8

Accordingly, OWCP properly determined that appellant was entitled to a schedule award of two
percent of the right lower extremity based on the opinion of the impartial medical examiner,
Dr. Leighton, who is accorded the special weight of the medical evidence.
CONCLUSION
The Board finds that appellant has not established that he is entitled to greater than a two
percent impairment of his right lower extremity.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 25, 2012 is affirmed.
Issued: March 5, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Barberton, OH, Employer
__________________________________________

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

Docket No. 12-1330
Issued: January 28, 2013

Case Submitted on the Record

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

JURISDICTION
On June 6, 2012 appellant filed a timely appeal from an April 2, 2012 decision of the
Office of Workers’ Compensation Programs (OWCP) that denied her claim. Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
emotional condition causally related to the accepted employment factor.
On appeal, appellant asserts that her condition is employment related and challenges the
opinion of OWCP’s referral physician.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
This claim has previously been before the Board. In a May 20, 2011 decision, the Board
found that appellant did not establish that events on March 13, 2009 were compensable factors of
employment and that she did not establish that her route was improperly monitored or that she
was harassed by the postmaster.2 The Board, however, found that she established a compensable
factor as she experienced stress in trying to accomplish her regular and specifically assigned
work duties as a letter carrier.3 The law and facts of the previous Board decision are
incorporated herein by reference.
Subsequent to the Board’s May 20, 2011 decision, by letter dated June 17, 2011 OWCP
noted that the last medical report was dated November 12, 2009 and asked that appellant provide
updated medical information. OWCP also referred appellant to Dr. Mark E. Reynolds, a Boardcertified psychiatrist, for a second-opinion evaluation.
In a June 23, 2011 report, David Aronson, Ph.D., a clinical psychologist, advised that he
had received a telephone message. He indicated that he held his last therapy session with
appellant on “November 3, 2011” and that on November 12, 2009 she informed him that she was
doing better and had to discontinue treatment due to distance and cost. Dr. Aronson indicated
that her case was closed at that time by mutual agreement.
In a July 2, 2011 letter, appellant stated that she had been performing volunteer work
since October 2010 with a nursing home, an animal shelter, a food bank and at her church. She
indicated that she had to have rotator cuff surgery on July 5, 2011.
In a July 12, 2011 report, Dr. Reynolds noted his review of the statement of accepted
facts, which described the accepted factor of employment and the medical record. He described
appellant’s report of events at the employing establishment and her symptoms of continued stress
including decreased energy, interests, appetite and self-esteem, lack of motivation, impaired
concentration and increased guilt and need for sleep but that these had decreased over time. The
physician performed mental status examination and diagnosed mood disorder, not otherwise
specified; alcohol abuse, resolved per report; pending right rotator cuff surgery; occupational
difficulty; and a global assessment of function of 60. In answer to specific OWCP questions,
Dr. Reynolds advised that appellant had no condition attributable to the accepted employment
factor, including the diagnosed mood disorder and no condition which precluded her from
working. In a supplementary report dated August 26, 2011, the physician explicitly stated that
completing a regular workday assignment did not accelerate, aggravate or precipitate appellant’s
mood disorder and that she did not meet the criteria for a diagnosis of PTSD.
Additional medical evidence relevant to the claimed condition includes a March 14, 2009
report in which a Dr. Deckert4 advised that appellant was released to return to work on Monday
2

Docket No. 10-1942 (issued May 20, 2011). On appeal, appellant also reference an incident when she witnessed
an employee’s death. This is apparently a December 2008 incident that was discussed in the Board’s May 20, 2011
decision, which noted that she advised that she did not think this event caused her claimed condition.
3

Appellant, a letter carrier, filed an occupational disease claim for depression and post-traumatic stress disorder
(PTSD) on April 1, 2009. She stopped work on March 14, 2009 and did not return.
4

The physician is not further identified.

2

March 23, 2009. On March 24, 2009 Dr. Aronson noted that appellant had recently been
hospitalized in a psychiatric unit. He described her report that she was placed on light duty due
to carpal tunnel syndrome and did fine until a new supervisor began harassing her by giving her
a longer route and making disparaging remarks. Dr. Aronson noted appellant’s symptoms of
crying spells, feelings of helplessness, sleeplessness with bad dreams and difficulties in focus
and concentrating. He diagnosed PTSD and major depression and advised that she could not
work due to the severity of the symptoms which were a result of stress from her supervisor. On
an April 13, 2009 family and medical leave act application, Dr. Aronson advised that appellant
could not focus or concentrate and was unable to work through December 31, 2009. On
April 28, 2009 he informed the employing establishment that she was unable to work due to her
depression and PTSD. On May 12, 2009 Dr. Aronson reiterated his diagnoses and opinion that
appellant could not work in any environment and that, once the conditions were controlled, she
should be reassigned to a less stressful location under a different supervisor. He provided
weekly treatment notes from March 24 to November 3, 2009 in which he described her history,
condition and treatment and was consistent in his opinion that she could not work. Dr. Aronson
indicated that appellant had a past history of obsessive compulsive disorder (OCD) and also
reported problems with family members and that her husband was injured and hospitalized in
October 2009. During much of the period she was living at a second home (cabin) and helping
her husband with his construction business. On October 20, 2009 Dr. Aronson advised that
appellant was permanently disabled from work as a postal worker, indicating that a return to
work there would cause her PTSD to worsen. Appellant’s condition worsened in October 2009
and Dr. Aronson recommended psychiatric treatment. On November 3, 2009 he reported that
she had been drinking more alcohol, opining “I think that drinking plays a strong role in her
deterioration or is an indication that she is starting to deteriorate.” On November 12, 2009
appellant informed Dr. Aronson that she wanted to discontinue treatment due to the expense.
By decision dated September 16, 2011, OWCP denied appellant’s claim that she
sustained an emotional condition causally related to the accepted employment factor of
experiencing stress in trying to complete regularly assigned duties. On September 26, 2011
appellant, through her attorney, timely requested a hearing that was held on January 11, 2012.
At the hearing she testified that she had a breakdown and began seeing Dr. Aronson but no
longer saw him or any therapist and was no longer taking any medication. Appellant indicated
that her attorney had recommended that she return to see Dr. Aronson, but she did not and that
she had retired on disability.
In an April 2, 2012 decision, an OWCP hearing representative affirmed the
September 16, 2011 decision.
LEGAL PRECEDENT
To establish her claim that she sustained an emotional condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that she has an
emotional or stress-related disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to her condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to her stress-related condition.5 If a claimant does implicate a factor of employment,
5

Leslie C. Moore, 52 ECAB 132 (2000).

3

OWCP should then determine whether the evidence of record substantiates that factor.6 When
the matter asserted is a compensable factor of employment and the evidence of record establishes
the truth of the matter asserted, OWCP must base its decision on an analysis of the medical
evidence.7
ANALYSIS
Because appellant has established a compensable factor of employment, that she
experienced stress in trying to accomplish her regular and specifically assigned work duties as a
letter carrier, the medical evidence of record must be analyzed.8
Appellant stopped work in March 2009. While she asserted that she was hospitalized due
to employment-related stress at that time, the record does not contain information regarding this
hospitalization. The earliest medical report is that dated March 14, 2009 from Dr. Deckert who
advised that she was released to return to work on Monday, March 23, 2009. Appellant
thereafter came under the care of Dr. Aronson, a psychologist, who treated her from March to
November 2009. During that period he diagnosed PTSD and major depression and advised that
she could not work due to the severity of her symptoms. While Dr. Aronson generally advised
that appellant’s condition was a result of stress from her supervisor, he did not relate her
condition to the accepted employment factor and noted additional problems during the period of
his treatment including appellant’s OCD diagnosis, her drinking and problems with family
members. Moreover, in November 2009, appellant discontinued care with Dr. Aronson and she
testified at the hearing that she was no longer being treated for any emotional condition. Even
though her former attorney recommended that she be seen again by Dr. Aronson, she chose not
to. As Dr. Aronson failed to address the compensable factor of employment and seemed to
solely rely on appellant’s self-report of the work environment, his opinion is insufficient to meet
appellant’s burden.9
Dr. Reynolds, an OWCP referral physician, provided reports dated July 12 and
August 26, 2011 in which he diagnosed mood disorder and advised that appellant did not meet
the criteria for a diagnosis of PTSD. He found that her work assignments did not accelerate,
aggravate or precipitate the diagnosed mood disorder.
Appellant has the burden of proof to establish that the conditions for which she claims
compensation were caused or adversely affected by her federal employment.10 Part of this
burden includes the necessity of presenting rationalized medical evidence, based on a complete
factual and medical background, establishing a causal relationship. An award of compensation
may not be based upon surmise, conjecture or upon appellant’s belief that there is a relationship
between her medical conditions and her employment. The Board finds that she has not
6

Dennis J. Balogh, 52 ECAB 232 (2001).

7

Id.

8

Id.

9

C.F., Docket No. 08-1102 (issued October 10, 2008).

10

See Calvin E. King, 51 ECAB 394 (2000).

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submitted sufficient probative medical evidence to establish that her emotional condition was
caused by the compensable factor of employment. Appellant therefore failed to discharge her
burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she
sustained an employment-related emotional condition causally related to the accepted
employment factor.
ORDER
IT IS HEREBY ORDERED THAT the April 2, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 28, 2013
Washington, DC

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

Alec J. Koromilas, 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
__________________________________________
H.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ORLANDO VA MEDICAL CENTER,
Orlando, FL, Employer
__________________________________________

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

Docket No. 20-0282
Issued: July 21, 2020

Case Submitted on the Record

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

JURISDICTION
On November 18, 2019 appellant filed a timely appeal from a June 25, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the June 25, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish a lumbar condition
causally related to the accepted March 26, 2019 employment incident.
FACTUAL HISTORY
On April 25, 2019 appellant, then a 43-year-old certified nursing assistant, filed a traumatic
injury claim (Form CA-1) alleging that on March 27, 2019 she experienced back and left leg pain
when caring for patients while in the performance of duty.3 She explained that she slowed her
pace, but kept working, thinking that she would feel better. However, the pain repeatedly returned
and appellant reported that she woke up the next day still in pain. She stopped work on
March 27, 2019.
In a development letter dated May 3, 2019, OWCP informed appellant that the evidence of
record was insufficient to establish her claim. It advised her of the type of factual and medical
evidence necessary to establish her claim and provided a questionnaire for her completion. OWCP
afforded appellant 30 days to submit the necessary evidence.
Appellant subsequently submitted hospital records dated March 28, 2019 by Dr. Eddid
Colon Cruz, a Board certified emergency medicine specialist, who diagnosed sciatica and provided
work restrictions of no heavy lifting and no prolonged standing.
In a prescription note dated May 27, 2019, Dr. Conrado Talampas, a Board-certified
internist, diagnosed left sciatica and referred appellant to physical therapy.
Appellant submitted physical therapy notes dated April 23 to May 29, 2019.
In an undated narrative statement, appellant reiterated the factual history of her claimed
injury.
Appellant submitted a June 18, 2019 response to OWCP’s development questionnaire
indicating that her injury occurred on March 26, 2019 and the immediate effects were pain and
sensation in her left leg. She noted that the pain had worsened to the point where she required
emergency medical attention.
A magnetic resonance imaging (MRI) scan of the lumbar spine dated April 11, 2019
demonstrated moderate chronic spondylo-degenerative changes of the lumbar spine, a small
diffuse annular disc bulge measuring 2 millimeters (mm) at L3-4, a large central and paracentral
subligamentous soft disc herniation of extrusion type with caudal migration for almost 8 mm at
L4-5, and a small central subligamentous soft disc extrusion measuring 3 mm at L5-S1.
In medical reports dated April 2 and 17, and May 23, 2019, Dr. Talampas diagnosed
lumbosacral spondylosis with radiculopathy and indicated that appellant had excruciating pain
3
In a letter dated May 1, 2019, the employing establishment informed OWCP that appellant incorrectly identified
her date of injury on the claim form and noted that the correct date of injury was March 26, 2019.

2

from her left buttock radiating down towards her left leg. He noted that she reported that the pain
began after she tried to bend down and twisted her torso towards her left side. Appellant indicated
that the pain had lasted for the past 7 to 10 days following her emergency room visit. Dr. Talampas
advised appellant to stay off work until her symptoms improved. He further noted that her medical
history included a cervical injury a few years ago.
By decision dated June 25, 2019, OWCP accepted that the March 26, 2019 employment
incident occurred as alleged, but denied appellant’s claim finding that she had not established a
lumbar condition causally related to the accepted employment incident. It therefore found that the
requirements had not been met for establishing an injury under FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.7 The second component is whether the employment incident caused a personal injury.8
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.9 The opinion of the physician must be based on a complete factual
and medical background of the claimant, must be one of reasonable medical certainty, and must
be supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment incident identified by the claimant.10

4
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

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

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

B.P., Docket No. 16-1549 (issued January 18, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

8

M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989).

9

L.F., Docket No. 19-1905 (issued April 10, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10

A.S., Docket No. 19-1955 (issued April 9, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

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ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a lumbar
condition causally related to the accepted March 26, 2019 employment incident.
In medical reports dated April 2 to May 27, 2019, Dr. Talampas noted that appellant
reported experiencing excruciating pain in her left buttock radiating down her left leg after she
tried to bend down and twisted her torso towards her left side. He diagnosed lumbago with sciatica
(left side), intervertebral disc disorders with radiculopathy (lumbar region), and lumbosacral
spondylosis with radiculopathy. However, Dr. Talampas did not provide an opinion on the cause
of appellant’s conditions. Similarly, Dr. Cruz, in his March 28, 2019 report, diagnosed sciatica
and provided work restrictions, but did not address causal relationship. Medical evidence that does
not offer an opinion regarding the cause of an employee’s condition or disability is of no probative
value on the issue of causal relationship.11 As neither physician addressed causal relationship,
their reports are insufficient to meet appellant’s burden of proof.12
Appellant also submitted physical therapy notes in support of her claim. Physical
therapists, however, are not considered “physician[s]” as defined under FECA.13 Consequently,
their findings and/or opinions are of no probative value and will not suffice for purposes of
establishing entitlement to compensation benefits.14
Finally, appellant submitted an April 11, 2019 MRI scan of the lumbar spine. The Board
has held, however, that diagnostic studies standing alone lack probative value on the issue of causal
relationship as they do not address whether the employment incident caused a diagnosed medical
condition.15 This evidence is, therefore, also insufficient to establish appellant’s claim.
As there is no evidence of record that establishes a lumbar condition in connection with
the accepted March 26, 2019 employment incident, the Board finds that appellant has not met her
burden of proof.
On appeal appellant asserts that in order for her to get back to work she had to undergo
multiple treatments, including physical therapy, chiropractic care, and an epidural injection. As
found above, the medical evidence of record is insufficient to establish a medical condition in
11

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

12

T.R., Docket No. 18-1272 (issued February 15, 2019).

13
Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals
such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under
FECA); R.L., Docket No. 19-0440 (issued July 8, 2019) (physical therapists are not considered physicians under
FECA).
14

R.L., id.

15

M.L., Docket No. 18-0153 (issued January 22, 2020).

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connection with the accepted employment incident. Consequently, appellant has not met her
burden of proof to establish her claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a lumbar
condition causally related to the accepted March 26, 2019 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the June 25, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: July 21, 2020
Washington, DC

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

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

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

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