United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
FEDERAL COMMUNICATIONS
COMMISSION (FCC), Oakdale, LA, Employer
__________________________________________

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

Docket No. 16-0422
Issued: October 6, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 4, 2016 appellant, through counsel, filed a timely appeal from an October 22,
2015 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 her burden of proof to establish more than one
percent permanent impairment to her left upper extremity, for which she received a schedule
award.3
FACTUAL HISTORY
On May 8, 2008 appellant, then a 49-year-old senior case manager, filed an occupational
disease claim (Form CA-2) alleging that her trigger finger condition was caused or aggravated by
excessive typing. OWCP accepted the claim for the condition of bilateral trigger finger and paid
appropriate compensation benefits. Appellant underwent right fourth trigger finger release on
the left hand on March 27, 2008 and on the right hand on April 24, 2008 performed by
Dr. Angela Mayeux-Hebert, her treating Board-certified orthopedic surgeon.
On July 2, 2012 counsel submitted a claim for compensation (Form CA-7) requesting
schedule award compensation.
In a July 8, 2011 report, Dr. M. Stephen Wilson, an orthopedic surgeon, noted appellant’s
history of injury and that she underwent fourth trigger finger release on the left hand on
March 27, 2008 and on the right hand on April 24, 2008. He reviewed her medical records and
presented examination findings of chronic changes in left and right ring fingers with pain,
weakness, and intermittent triggering. Dr. Wilson opined that appellant reached maximum
medical improvement (MMI). Utilizing the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment4 (A.M.A., Guides hereinafter), and citing to
tables and figures, he opined that she sustained six percent digit impairment or two percent hand
impairment or two percent upper extremity impairment to both the left and right extremities.
Under Table 15-2, Dr. Wilson found that appellant had class 1 triggering of the ring finger
requiring surgery with a default value of six percent digit impairment. Under Tables 15-7
through 15-9, grade modifiers were assessed as grade 1 for functional history, grade 1 for
physical examination, and nonapplicable for clinical studies. A net adjustment of 0 was found
under the net adjustment formula, (GMFH - CDX)(1-1) + (GMPE - CDX)(1-1) + (GMCS CDX) (N/A), which resulted in six percent impairment to the digit. Dr. Wilson opined that six
percent digit impairment was equivalent to two percent hand impairment or two percent upper
extremity impairment.
On October 20, 2014 an OWCP medical adviser reviewed the record, the statement of
accepted facts (SOAF) and Dr. Wilson’s July 8, 2011 impairment report. He agreed with
Dr. Wilson’s impairment calculations of six percent ring digit for the left and right, but indicated
under Table 15-12, page 421, six percent ring digit equaled one percent upper extremity
impairment, not two percent upper extremity impairment as indicated by Dr. Wilson. The
medical adviser noted that a review of the record indicated that, in a September 15, 2009 report,
3

Based on the evidence of record, the schedule award should have been issued for the right upper extremity, not
the left upper extremity. The Board will treat this as a typographical error on OWCP’s part.
4

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

2

Dr. Mayeux-Hebert indicated that “physical exam[ination] of the left hand shows that the scars
have healed to the point that I can[no]t find them. [Appellant] has no scarring in her palm. She
had no triggering. [Appellant’s] right hand also shows fair grip strength. She does have early
triggering of the right index finger.” The medical adviser opined that Dr. Mayeux-Hebert’s
examination of September 15, 2009 appeared to conflict with Dr. Wilson’s July 8, 2011
examination findings and recommended that appellant undergo a second opinion examination.
Based on the deficiencies noted by OWCP’s medical adviser, OWCP referred appellant
to Dr. Brett Rothaermel, Board-certified in physical medicine and rehabilitation, for a second
opinion impairment rating. In a December 11, 2014 report, Dr. Rothaermel noted the history of
injury, his review of the medical records and the SOAF, and presented examination findings. He
found full range of motion and strength throughout bilateral hands and upper extremities and
indicated that appellant had the normal ability to reach, push, pull, grasp, and perform fine and
gross motor movements. There was also normal muscle bulk and tone throughout the hands.
Dr. Rothaermel opined that she was at MMI. For the right upper extremity, he found diagnostic
classification of digital stenosing tenosynovitis under Table 15-2, page 392, was class 1 with
default value of six percent digit impairment. Under Tables 15-7 through 15-9, grade modifiers
were provided along with an explanation. A grade 2 modifier was provided for Functional
History (GMFH), a grade modifier 0 was provided for Physical Examination (GMPE), and grade
modifier 1 was provided for Clinical Studies (GMCS). A net adjustment of 0 was found under
the net adjustment formula, (GMFH - CDX)(2-1) + (GMPE - CDX)(0-1) + (GMCS - CDX)(1-1),
which resulted in six percent impairment to the right digit.
For the left upper extremity, Dr. Rothaermel found diagnostic classification of digital
stenosing tenosynovitis under Table 15-2, page 392, was class 1 with default value of six percent
digit impairment. Under Tables 15-7 through 15-9, grade modifiers were provided along with an
explanation. A grade modifier for GMFH was not applicable as it was utilized for the right
upper extremity, a grade modifier 0 was assigned for GMPE, and a grade modifier 1 was
assigned for GMCS. A net adjustment of -1 was found under the net adjustment formula,
(GMFH - CDX) (N/A) + (GMPE - CDX)(0-1) + (GMCS - CDX)(1-1), which resulted in five
percent digit impairment.
On February 20, 2015 an OWCP medical adviser reviewed Dr. Rothaermel’s
December 5, 2014 impairment report. He opined that appellant reached MMI on December 5,
2014, the date of Dr. Rothaermel’s evaluation. The medical adviser opined that Dr. Rothaermel
correctly applied the A.M.A., Guides to his impairment findings. He noted, in evaluating
Dr. Rothaermel’s report, that he inverted his findings for the left upper extremity and the right
upper extremity. The medical adviser also related that Dr. Rothaermel did not convert the digit
impairments to upper extremity impairment. Under Table 15-12, page 421, he converted the six
percent right digit impairment to one percent right upper extremity permanent impairment and
the five percent left digit impairment to zero percent left upper extremity permanent
impairment.5

5

The medical adviser mislabeled the left and right extremity findings.

3

By decision dated October 22, 2015, OWCP granted appellant a schedule award for one
percent left upper extremity.6 The award ran 3.12 weeks from December 5 to 26, 2014.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations 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.7 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. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.8
The A.M.A., Guides provide a diagnosis-based method of evaluation utilizing the World
Health Organization’s International Classification of Functioning (ICF), Disability, and Health.9
In determining impairment for the upper extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the upper extremity
to be rated. After the Class of Diagnosis (CDX) is determined for the diagnosed condition
(including identification of a default grade value), the net adjustment formula is applied using the
GMFH, GMPH, and GMCS.10 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX)
+ (GMCS - CDX).11 Under Chapter 2.3, evaluators are directed to provide reasons for their
impairment rating choices, including choices of diagnoses from regional grids and calculations
of modifier scores.12
In the sixth edition, diagnosis-based impairment (DBI) is the primary method of
evaluation for the upper extremity. A grid listing relevant diagnoses is provided for each region
of the upper extremity: the digit region, the wrist region, the elbow region, and the shoulder
region. A regional impairment will be defined by class and grade. The class is determined first
by using the corresponding regional grid. The grade is initially assigned the default value for
that class. This value may be adjusted slightly using nonkey grade modifiers such as GMFH,
6

See supra note 3. The schedule award should have been issued for right upper extremity, not the left upper
extremity.
7

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

8

K.H., Docket No. 09-341 (issued December 30, 2011). For decisions issued after May 1, 2009, the sixth edition
will be applied. B.M., Docket No. 09-2231 (issued May 14, 2010). Federal (FECA) Procedure Manual, Part 2 -Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5a (February 2013); id. at Part 3 -Claims, Schedule Awards Chapter 3.700, Exhibit 1 (January 2010).
9

A.M.A., Guides, supra note 4, section 1.3, The ICF: A Contemporary Model of Disablement.

10

Id. at 385-419.

11

Id. at 411.

12

Id. at 23-28.

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GMPE, and GMCS.13 The sixth edition of the A.M.A., Guides also provides that, under certain
circumstances, range of motion may be selected as an alternative approach in rating impairment.
An impairment rating that is calculated using range of motion may not be combined with a DBI
and stands alone as a rating.14
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.15
Section 8123(a) provides that, if there is a disagreement between the physician making
the examination for the United States and the physician of the employee, the Secretary shall
appoint a third physician who shall make an examination.16 The implementing regulations state
that, if a conflict exists between the medical opinion of the employee’s physician and the medical
opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint
a third physician to make an examination. This is called a referee examination and OWCP will
select a physician who is qualified in the appropriate specialty and who has no prior connection
with the case.17 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 the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationale and based upon
a proper factual background, must be given special weight.18
ANALYSIS
The Board finds that the weight of the medical evidence establishes that appellant has no
more than one percent permanent impairment of her right upper extremity. The Board further
finds that the case is not in posture as to the impairment of the left upper extremity due to a
conflict in the medical opinion evidence.
OWCP accepted that appellant sustained bilateral trigger finger (acquired) conditions.
Section 15.2 of the A.M.A., Guides provide that DBI is the primary method of evaluation for the
upper extremities.19 Table 15-2, Digit Regional Grid, is the appropriate table for use in finger
impairments.20
13

Id. at 387.

14

Id. at 390. The A.M.A., Guides explains that diagnoses in the grid that may be rated using range of motion are
followed by an asterisk.
15

See supra note 8 at Chapter 2.808.6 (February 2013).

16

R.C., Docket No. 12-437 (issued October 23, 2012).

17

20 C.F.R. § 10.321.

18

See supra note 15 at Chapter 2.808.11 (February 2013).

19

A.M.A., Guides 387-90.

20

Id. at 391-94.

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In his July 8, 2011 report, Dr. Wilson presented examination findings of chronic changes
in left and right ring fingers with pain, weakness, and intermittent triggering. He indicated that
appellant reached MMI. Utilizing the sixth edition of the A.M.A., Guides,21 and citing to tables
and figures, Dr. Wilson also opined that appellant sustained impairment to both the right and left
upper extremities. Under Table 15-2, he found that appellant had class 1 triggering of the ring
finger requiring surgery with a default value of six percent digit impairment. Under Tables 15-7
through 15-9, grade modifiers were assessed as grade 1 for GMFH, grade 1 for GMPE, and
nonapplicable for GMCS. A net adjustment of 0 was found under the net adjustment formula,
(GMFH - CDX)(1-1) + (GMPE - CDX)(1-1) + (GMCS - CDX) (N/A), which resulted in six
percent impairment to the digit. An impairment rating for a given digit is converted to an
impairment rating for an upper extremity using Table 15-12 on pages 421 through 423.22 While
Dr. Wilson opined that six percent digit impairment was equivalent to two percent upper
extremity impairment, the Board notes that under Table 15-12, page 421, six percent digit
impairment equals one percent upper extremity impairment. Thus, he opined that appellant had
one percent right upper extremity impairment and one percent left upper extremity impairment.
The medical adviser reviewed Dr. Wilson’s opinion and agreed that appellant had one percent
right and one percent left upper extremity impairment. While he found Dr. Wilson’s 2011
physical examination findings conflicted with a 2009 examination of record, the earlier report is
stale and is therefore not a proper basis to discredit Dr. Wilson’s impairment report.23
In his December 11, 2014 report, Dr. Rothaermel reviewed appellant’s medical record,
the SOAF, and presented examination findings. He properly utilized Table 15-2 in his
impairment analysis. In accordance with Table 15-2, for a diagnosis of digital stenosing
tenosynovitis,24 appellant had class 1 impairment. For the right upper extremity, Dr. Rothaermel
found under Tables 15-7 through 15-9, a grade 2 modifier for GMFH, a grade 0 modifier for
GMPE, and grade 1 modifier for GMCS. A net adjustment of 0 was found under the net
adjustment formula, (GMFH - CDX)(2-1) + (GMPE - CDX)(0-1) + (GMCS - CDX) (1-1), which
resulted in six percent impairment to the right digit. For the left upper extremity, Dr. Rothaermel
found diagnostic classification of digital stenosing tenosynovitis under Table 15-2, page 392,
was class 1 impairment with default value of six percent digit impairment. Under Tables 15-7
through 15-9, he found a grade modifier for GMFH was not applicable as it was utilized for the
right upper extremity, a grade 0 modifier for GMPE, and a grade 1 modifier for GMCS. A net
adjustment of -1 was found under the net adjustment formula, (GMFH - CDX)(N/A) + (GMPE CDX)(0-1) + (GMCS - CDX) (1-1), which resulted in five percent digit impairment. An OWCP
medical adviser agreed with Dr. Rothaermel’s digit impairment calculations and, under Table 1512 converted the digit impairments to upper extremity impairments. For the right ring trigger
finger, six percent digit impairment converts to one percent right upper extremity impairment.
For the left ring finger, five percent digit impairment converts to zero percent left upper
extremity impairment.
21

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

22

Id. at 421-23, Table 15-12. See also R.P., Docket No. 14-0883 (issued August 7, 2014).

23

See A.A., Docket No. 15-0898 (issued July 28, 2015).

24

A.M.A., Guides 392.

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With regard to the right upper extremity, the Board finds that Dr. Wilson, appellant’s
treating physician, and Dr. Rothaermel, an OWCP second opinion physician, both opined that
appellant had one percent right upper extremity impairment. There is no other medical evidence
of record to establish greater than the one percent right upper extremity permanent impairment,
for which she has received a schedule award.25
With regard to the left upper extremity, there exists an unresolved conflict as to whether
appellant established her entitlement to a schedule award between appellant’s treating physicians
and the physician who conducted the second opinion examination for OWCP. Dr. Wilson
opined that she had one percent left upper extremity impairment, while Dr. Rothaermel opined
that she had no left upper extremity impairment. The dispute between the physicians centers on
varying opinions relative to the use of grade modifiers for GMFH and GMPE in the permanent
impairment calculation. If there is disagreement between OWCP’s referral physician and
appellant’s physician, OWCP will appoint a third physician who shall make an examination.26
For a conflict to arise, the opposing physician’s viewpoints must be of virtually equal weight and
rationale.27 The Board finds that the opinion of Dr. Wilson is of equal weight as the opinion of
Dr. Rothaermel. Accordingly, there was an unresolved conflict in the medical evidence.
The Board finds that a conflict exists in the medical evidence with regard to the amount
of appellant’s impairment of her left upper extremity. The Board will remand the case for
referral to an impartial medical specialist for resolution of the conflict in the medical opinion
evidence. After such further development as OWCP deems necessary, it shall issue a de novo
decision.28
CONCLUSION
The Board finds that appellant has failed to establish more than one percent permanent
impairment of the right upper extremity. The Board further finds that this case is not in posture
for decision due to an unresolved conflict in the medical opinion evidence with regard to the left
upper extremity impairment.

25

See L.C., Docket No. 14-1892 (issued February 2, 2015); see also supra note 2.

26

5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008).

27

Darlene R. Kennedy, 57 ECAB 414 (2006).

28

Due to the disposition of this case, appellant’s arguments on appeal will not be addressed.

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ORDER
IT IS HEREBY ORDERED THAT the October 22, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed as modified in part and set aside in part and the
case remanded for further consideration consistent with this opinion.
Issued: October 6, 2016
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.J., Appellant
and
DEPARTMENT OF THE NAVY, NAVAIR
DEPOT, Jacksonville, FL, Employer
__________________________________________

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

Docket No. 08-2549
Issued: July 9, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On September 22, 2008 appellant filed a timely appeal from a July 21, 2008 merit
decision of the Office of Workers’ Compensation Programs denying modification of a
February 27, 2008 merit decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3 the Board has
jurisdiction over the merits of appellant’s claim.
ISSUE
The issue is whether appellant sustained degenerative knee disease and meniscal tears in
the performance of duty on January 5, 2006.
FACTUAL HISTORY
On January 24, 2006 appellant, a 55-year-old paralegal specialist, filed a traumatic injury
claim (Form CA-1) for bruised knees, left shoulder and left hip. She attributed her bruise
injuries to a January 5, 2006 incident when she tripped on a manhole and fell, hitting both her
knees, her left shoulder and left hip as she landed.

By report dated January 18, 2006, Dr. Lawrence Briggs, a Board-certified diagnostic
radiologist, reported that four views of appellant’s knees revealed no evidence of fracture,
dislocation, joint effusion or arthritis. He noted that her knees were normal bilaterally.
In a report dated August 16, 2006, Dr. George Vega, a Board-certified diagnostic
radiologist, reported findings following a magnetic resonance imaging (MRI) scan performed on
appellant’s right and left knees. Regarding the right knee, he noted that, although degeneration
extended into the inferior surface, there was no evidence of surface tear. An MRI scan of the left
knee revealed myxoid degeneration of the lateral meniscus without evidence of surface tear and
mild to moderate degenerative change of the medial and lateral compartments, as well as the
patellofemoral compartment, including chondromalacia patellae. Dr. Vega also noted the
presence of a Baker’s cyst poster medially of the left knee.
After initially denying the claim on March 9, 2007, for insufficient medical evidence, by
August 13, 2007 decision, the Office accepted appellant’s claim for bilateral contusion of the
knee and lower leg.
Dr. Ren-Chang Liu, diagnostic radiologist, in a May 23, 2007 report noted that x-rays,
conducted May 11, 2007, revealed no bone or joint abnormalities. He reported that the boney
architecture was normal and that the articular cortices were smooth and regular. Dr. Liu noted
that there was no evidence of acute or recent fracture or dislocation and no unusual soft tissue
calcifications were shown.
By report dated June 1, 2007, Dr. Ramon A. Perez reported that an MRI scan conducted
May 22, 2007 of appellant’s left knee revealed a complex tear of the posterior horn of the medial
meniscus. He also reported the presence of a popliteal cyst and a moderate amount of joint fluid.
Additionally, Dr. Perez observed mild thinning of the patellar articular cartilage. He suspected
stretching rather than a partial tear of the anterior cruciate ligament. Furthermore, an MRI scan
of the right knee revealed a horizontal tear of the posterior horn of the medial meniscus and type
1 chondromalacia patella changes as well as a small amount of joint fluid collection.
Appellant submitted an October 25, 2007 medical report signed by Dr. Kevin Murphy
who, after reviewing the results from the May 22, 2007 radiological examination, diagnosed
bilateral knee meniscus tear, chondromalacia of the bilateral knee and left Baker’s cyst.
Dr. Murphy reported that the MRI scan of her left knee revealed a complex tear of the posterior
horn of the medial meniscus and a popliteal cyst. An MRI scan of the right knee revealed
horizontal tear of the posterior horn of the medial meniscus and type 1 chondromalacia patella.
X-rays of both knees revealed mild degenerative joint disorder with narrowing of the medial
compartment joint space. Dr. Murphy recommended a left knee scope medial meniscectomy and
chondroplasty.
Appellant disagreed with the Office’s August 13, 2007 decision and on January 9, 2008,
requested reconsideration. She argued that the medical evidence demonstrated the presence of
degenerative changes to her knees as well as meniscal tears and, had she not fallen while in the
performance of duty on January 5, 2006, the bilateral knee medial meniscus tears would not have
occurred.

2

In a medical note dated December 12, 2007, Dr. Murphy reported that, based upon his
examination of appellant on October 25, 2007, radiographs of both knees and an MRI scan of
both knees, her current knee injuries were new and related to her fall on January 5, 2006. He
reported a diagnosis of bilateral knee medial meniscus tears, chondromalacia of the right knee
and popliteal cyst of the left knee.
By decision dated February 27, 2008, the Office denied modification of its August 13,
2007 decision. It found the medical evidence of record insufficient to establish appellant’s claim
because it lacked rationalized medical opinion evidence concerning the causal relationship
between her bilateral knee conditions and her federal employment.
Appellant disagreed with the Office’s February 27, 2008 decision and on May 6, 2008
and again requested reconsideration.
Appellant submitted a March 21, 2008 note signed by Dr. Eric Bonenberger, a Boardcertified orthopedic surgeon, who reported that he treated her for 18 months during which she
never complained of knee pain. Dr. Bonenberger opined that appellant’s current knee condition,
bilateral acute medial meniscal tears, was caused by her January 5, 2006 injury.
In an April 3, 2008 note, Dr. Murphy reported that his clinical findings as well as the
MRI scan images of both her knees were consistent with meniscal tears in the medial aspect of
her knee. He noted that this type of injury was consistent with the mechanism of injury as stated
by appellant. Dr. Murphy opined that there was a high degree of medical certainty that these
meniscal tears occurred as a result of this injury. Finally, he opined that the fact that appellant
may have had a previous surgery as a child for patella tendon issues was irrelevant to the present
situation.
By decision dated July 21, 2008, the Office denied modification of its February 27, 2008
decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.2
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
1

5 U.S.C. §§ 8101-8193.

2

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

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incident at the time, place and in the manner alleged.3 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.4
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.5 The
weight of the medical evidence is determined by its reliability, its probative value, its convincing
quality, the care of analysis manifested and the medical rationale expressed in support of the
physician’s opinion.6
ANALYSIS
The Office accepted appellant’s claim for bilateral contusion of the knee and lower leg.
Appellant disagreed and requested reconsideration asserting that the Office should also accept
her claim for bilateral knee meniscus tear, chondromalacia of the bilateral knee and left Baker’s
cyst because had she not fallen on January 5, 2006 these new conditions would not have
developed.
The Board finds that the evidence does not establish that appellant sustained degenerative
knee disease and meniscal tears in the performance of duty on January 5, 2006. Although she
identified an employment-related event, which she believed caused her newly diagnosed
conditions, she failed to submit any competent rationalized medical evidence establishing that
these conditions were causally related to the accepted injury.
The Board has consistently held that medical reports lacking a rationale on causal
relationship are of diminished probative value.7 A rationalized medical opinion is based on a
complete factual and medical background and is supported by medical rationale.8 As noted
3

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

4

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354,
356-57 (1989).
5

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
6

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing a rationale on causal relationship are
entitled to little probative value). See also, Jimmie H. Duckett, 52 ECAB 332 (2001).
7

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal relationship
have little probative value).
8

Froilan Negron Marrero, 33 ECAB 796 (1982).

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above, rationalized medical opinion evidence is medical evidence that includes a physician’s
rationalized opinion on whether there is a causal relationship between the employee’s diagnosed
condition and employment factors and employment-related events or an accepted condition.
Moreover, a physician’s opinion on the causal relationship between an appellant’s
disability and an employment injury is not dispositive simply because it is rendered by a
physician.9 The opinion of a physician supporting causal relationship must be based on a
complete and accurate medical and factual background, supported with affirmative evidence and
explained by medical rationale.10
In assessing medical evidence, the weight of such evidence is determined by its
reliability, its probative value and its convincing quality. The opportunity for and thoroughness
of examination, the accuracy and completeness of the physician’s knowledge of the facts and
medical history, the care of analysis manifested and the medical rationale expressed in support of
the physician’s opinion are facts, which determine the weight to be given to each individual
report11 and contemporaneous evidence is entitled to greater probative value than later
evidence.12
In his March 21, 2008 note, Dr. Bonenberger opined that since appellant did not
complain of knee pain during the 18 months he treated her present knee condition, bilateral acute
medial meniscal tears, was caused by her January 5, 2006 injury. But his report does not present
findings upon examination or a thorough review of appellant’s medical history.
Dr. Bonenberger’s medical note proffered no rationalized medical opinion concerning a causal
relationship between appellant’s currently diagnosed knee condition and factors of her
employment, an employment-related event or her accepted medical condition, bilateral contusion
of the knee and lower leg. The mere fact that a condition manifests itself or is worsened during a
period of employment does not raise an inference of causal relationship between the two.13
Therefore, Dr. Bonenberger’s note does not satisfy appellant’s burden of proof.
Dr. Murphy, in his April 3, 2008 note, opined that meniscal tears in the medial aspect of
appellant’s knee were consistent with the mechanism of injury as stated by her and, therefore,
that the diagnosed meniscal tears occurred as a result of her January 5, 2006 injury. But his
medical note is of diminished probative value because it too did not proffer a rationalized
medical opinion concerning the causal relationship between these newly diagnosed conditions
and factors of appellant’s employment, an employment-related event or her accepted medical
condition, bilateral contusion of knee and lower leg. As noted above, medical reports lacking a
rationale on causal relationship are of diminished probative value.14 A rationalized medical
9

Jean Culliton, 47 ECAB 728, 735 (1996).

10

Robert Broom, 55 ECAB 339 (2004); Patricia J. Glenn, 53 ECAB (2001).

11

Michael S. Mina, 57 ECAB 379 (2006).

12

S.S., 59 ECAB ____ (Docket No. 07-579, issued January 14, 2008).

13

William Nimitz, Jr., 30 ECAB 567 (1979).

14

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal
relationship have little probative value).

5

opinion is based on a complete factual and medical background and is supported by medical
rationale.15 As previously noted, a physician’s opinion on the causal relationship between
appellant’s disability and an employment injury is not dispositive simply because it is rendered
by a physician.16 Mere repetition of her allegations and analysis does not constitute adequate
medical reasoning to qualify a physician’s opinion as rationalized medical opinion evidence.17
Because Dr. Murphy’s April 3, 2008 note did not present findings upon examination, a complete
medical history or a rationalized medical opinion, it is of diminished probative value and
insufficient to satisfy appellant’s burden of proof.
Finally, the Board notes that these two medical reports were rendered more than two
years after the date of the injury, January 5, 2006. The findings in these reports were
corroborated by the recent medical evidence of record. Thus, in contrast to Dr. Murphy and
Dr. Bonenberger’s reports, Dr. Briggs, Board-certified diagnostic radiologist, in a medical report
dated January 18, 2006, reported that four views of knee revealed no evidence of fracture,
dislocation or joint effusion or arthritis. Similarly, Dr. Vega, Board-certified diagnostic
radiologist, in a report dated August 16, 2006, noted that, although degeneration did extend to
the inferior surface, there was no evidence of surface tear. Dr. Liu, also a diagnostic radiologist,
on May 23, 2007 reported that appellant’s knees were normal and that there was no evidence of
acute or recent fracture or dislocation and no unusual soft tissue calcifications were shown.
The Board has held that contemporaneous evidence is entitled to greater probative value
than later evidence.18 As the findings of Dr. Briggs and Dr. Vega were contemporaneous with
the January 5, 2006 employment-related incident they are entitled to greater probative value.
There is no rationalized medical evidence to explain why the currently diagnosed conditions
would have developed more than a year following the injury, if the conditions were not present
during the weeks and months following injury. Therefore, the Board finds the contemporaneous
medical evidence more convincing and entitled to greater probative value than the medical
reports of Dr. Murphy and Dr. Bonenberger. The absence of contemporaneous evidence of
degenerative knee disease and meniscal tears or of any subsequent bridging symptoms for
months following the January 5, 2006 incident mitigate against the existence of a causal relation
between the January 5, 2006 injury and the newly diagnosed conditions.19
The matter before the Board is a medical issue which can only be resolved by submission
of substantive, pertinent, relevant and probative medical evidence. The Office informed
appellant of the need to submit a physician’s opinion which explained how the claimed condition
was related to the implicated employment factors. Appellant failed to submit any probative
15

Froilan Negron Marrero, 33 ECAB 796 (1982).

16

Jean Culliton, 47 ECAB 728, 735 (1996).

17

Edgar G. Maiscott, 4 ECAB 558 (1952) (holding appellant’s subjective symptoms do not, in the opinion of the
Board, constitute evidence of a sufficiently substantial nature).
18

Conard Hightower, 54 ECAB 796 (2003). See also, Katherine A. Williamson, 33 ECAB 1696 (1982);
Arthur N. Meyers, 23 ECAB 111 (1971) (the Board has consistently held that contemporaneous evidence is entitled
to greater probative value than later evidence).
19

Fred Carmen, 11 ECAB 281 (1960).

6

medical evidence in support of her claim.20 Therefore, the Board finds that appellant has not
established that she sustained degenerative knee disease and meniscal tears in the performance of
duty on January 5, 2006.
CONCLUSION
The Board finds that appellant has not established that she sustained degenerative knee
disease and meniscal tears in the performance of duty on January 5, 2006.
ORDER
IT IS HEREBY ORDERED THAT the July 21, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 9, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

20

Donald W. Wenzel, 56 ECAB 390 (2005); Richard H. Weiss, 47 ECAB 182 (1995).

7


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

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Appearances:
Douglas Sughrue, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-0622
Issued: September 22, 2015

Case Submitted on the Record

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

JURISDICTION
On January 26, 2015 appellant, through counsel, filed a timely appeal of an August 25,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that she sustained
an occupational disease in the performance of duty.
FACTUAL HISTORY
This matter has previously been before the Board.2 On August 4, 2008 appellant, then a
42-year-old letter carrier, filed a Form CA-2, an occupational disease claim, alleging that her
1

5 U.S.C. §§ 8101-8193.

2

Docket No. 11-1749 (issued April 12, 2012).

preexisting pinched nerve developed into five herniated discs as a result of performing her letter
carrier duties. She first became aware of her condition and realized it was causally related to her
employment on December 19, 2006. Appellant did not stop work.
Appellant submitted a July 27, 2007 magnetic resonance imaging (MRI) scan of the
lumbar spine which revealed minimal disc bulging at L4-5, tiny central disc protrusions at
L5-S1, and no disc herniation or nerve root impingement. On August 29, 2007 she was treated
by Dr. Chandler Mann, a Board-certified anesthesiologist, for chronic back pain since 1995.
Appellant reported to Dr. Mann that she was working as a letter carrier and in December she bent
over and felt an acute searing pain in her low back with radiation into her right buttock.
Dr. Mann noted an essentially normal examination and diagnosed lumbar facet dysfunction. In
an October 25, 2007 report, he noted that appellant had right L3-4, L4-5, and L5-S1 facet blocks
and had complete remittance of her pain for two weeks. Dr. Mann noted findings on
examination and diagnosed lumbar facet syndrome and degenerative disc disease of the right L34, L4-5, and L5-S1 facets.
Dr. Leonard Trahan, a Board-certified orthopedic surgeon, administered facet blocks on
November 1, 2007, and diagnosed low back syndrome, facet joint dysfunction. On November 28
and December 10, 2007 he diagnosed lower back syndrome and facet joint dysfunction and
recommended steroid and local injection of the right L3-4, L4-5 and L5-S1 facet joints. A
July 10, 2008 computerized tomography (CT) scan of the of the lumbar spine revealed status
post discogram from L3-S1, no contrast extravasation at L3-4 and L4-5, and probable disc
herniation at L5-S1.
On July 29, 2008 Dr. Stefan Pribil, a Board-certified neurosurgeon, noted that appellant
was status post lumbar surgery and was partially disabled.
On August 22, 2008 OWCP advised appellant of the type of factual and medical evidence
needed to establish her claim.
In a decision dated September 29, 2008, OWCP denied appellant’s claim finding that the
evidence was insufficient to establish which employment factors caused an injury.
On October 6, 2008 appellant requested a review of the written record. She submitted a
September 5, 2007 operative report from Dr. Trahan who performed a diagnostic block for right
L3-4, L4-5, and L5-S1 and diagnosed lower back syndrome with spondylosis and facet joint
dysfunction. On March 20, 2008 Dr. Trahan noted the CT scan showed degenerative disc
disease at L5-S1. On March 21, 2008 he performed radiofrequency ablation of the right L5-S1
facet joint and diagnosed lumbar spondylosis with lower back syndrome. Appellant submitted a
June 2, 2008 report from Dr. Mann who noted appellant’s long history of lumbar degenerative
disc disease, spondylosis, and low back syndrome. Dr. Mann noted that appellant underwent
several diagnostic medical branch blocks at L3-4, L4-5, L5-S1 and radiofrequency ablation of
the right L5-Sl, but her pain recurred. He recommended a diagnostic lumbar discogram at L3-4,
L4-5, and L5-S1.

2

An August 7, 2008 report from Dr. Pribil noted appellant was status post-surgery3 with
minimal pain and spasm in the right leg. In an undated addendum, Dr. Pribil noted that the
discogram CT showed disruption at L5-Sl and L4-5, along with delamination and fragmentation
of the disc at L5-Sl with central extravasation. He recommended a microdiscectomy.
In a decision dated April 8, 2009, an OWCP hearing representative found that appellant
had established the factual element of her claim, but denied the claim because she had not
submitted sufficient medical evidence to establish causal relationship.
On July 13, 2009 appellant requested reconsideration. In a decision dated July 27, 2009,
OWCP denied modification of the prior decision dated April 8, 2009.
On November 7, 2009 appellant again requested reconsideration. She submitted a
June 25, 2009 report from Dr. Curtis Fandrich, an osteopath, who noted her treatment for a
medical condition directly related to her work duties. Appellant reported that her work duties
consisted of repetitive bending, twisting, lifting, and carrying more than 10 pounds daily.
Dr. Fandrich noted that the National Institute of Health and Occupational Safety and Health
Administration studies revealed that these daily activities can result in work-related injuries. A
September 9, 2009 MRI scan of the lumbar spine showed evidence of posterior annular tear at
the L4-5 level, which could result in discogenic pain, a left lateral disc protrusion at this site in
contact with the exiting left L4 dorsal ganglia, postoperative changes at L5-S1, and a disc bulge,
resulting in mild-to-moderate right-sided neural foraminal encroachment.
In a decision dated November 27, 2009, OWCP denied modification of the prior decision
finding the medical evidence insufficient to establish causal relationship to appellant’s
employment duties. On December 9, 2009 appellant requested reconsideration. In a decision
dated December 29, 2009, OWCP denied her request for reconsideration finding that the
evidence submitted was insufficient to warrant a merit review.
On November 22, 2010 appellant requested reconsideration. She submitted a July 7,
2010 report from Dr. Fandrich who first treated her on November 11, 2008 for bilateral lower
back pain radiating down the right leg with numbness, tingling, and weakness. Dr. Fandrich
noted that appellant was status post L5-S1 discectomy in July 2008. Appellant reported working
for the employing establishment for 12 years and that she had been hired with a pinched nerve in
her lower back from a prior lifting injury. Dr. Fandrich diagnosed right low back pain, right
lower extremity radiculopathy, right sciatica, and hamstring somatic dysfunction. Appellant
submitted a December 6, 2010 duty status report from Dr. Michael J. Leahy, a Board-certified
orthopedic surgeon, who diagnosed spinal stenosis and returned appellant to work with
restrictions.
On February 14, 2011 OWCP denied appellant’s request for reconsideration finding that
the evidence submitted was insufficient to warrant a merit review.

3

The record does not contain an operative report regarding the referenced surgery.

3

On July 26, 2011 appellant appealed her claim to the Board.4 In an order dated April 12,
2012, the Board set aside OWCP’s February 14, 2011 decision. The Board noted that it failed to
review Dr. Leahy’s December 6, 2010 report, prior to issuing its February 14, 2011 decision.
The Board remanded the matter so that OWCP could properly consider all evidence submitted at
the time of the February 14, 2011 decision.
In a decision dated August 7, 2012, OWCP noted reviewing the December 6, 2010 report
from Dr. Leahy and denied modification of the decision dated November 27, 2009.
On July 24, 2013 appellant requested reconsideration. She submitted a June 26, 2013
report from Dr. Frank L. Barnes, a Board-certified orthopedic surgeon, who treated her for
radiating lumbar pain. Dr. Barnes noted that appellant was a letter carrier and initially injured
her back in 1996 when she lifted an obese patient. He noted that she was treated with
medications, physical therapy, and a two-level lumbar fusion surgery in 2008. Dr. Barnes noted
that despite surgery appellant’s pain persisted with numbness of her feet. He diagnosed
herniated lumbar disc at L4-5 and L5-SI and a L2-3 herniated disc. Dr. Barnes noted appellant’s
work as a letter carrier required repeated lifting which placed stress on her lumbar spine and
caused the herniated discs and current symptoms. He opined that she could perform sedentary
work with lifting restrictions.
In a decision dated October 2, 2013, OWCP denied modification of the prior decision.
On June 16, 2014 appellant, through counsel, requested reconsideration. In an April 10,
2014 report, Dr. Barnes noted treating her for lumbar pain that radiated to her feet. Appellant
reported working as a letter carrier and initially injuring her back in 1996 when she lifted an
obese patient. She reported reinjuring her back at work December 19, 2006 when she bent over
and got a “pinch in the back.” Dr. Barnes opined that appellant’s work injury aggravated the
1996 injury. He treated her on September 12, 2013 for pain over her entire right lower extremity
and numbness in both feet. Dr. Barnes diagnosed herniated lumbar disc at L4-5, L5-S1, and
L2-3. He opined that appellant’s work as a letter carrier required repeated lifting of 70-pound
objects which placed stress on her lumbar spine and caused a herniated disc and her current
symptoms. Dr. Barnes advised that she could return to sedentary work. He opined that the 2006
injury caused a permanent aggravation and resulted in permanent impairment of appellant’s
lumbar spine.
Appellant also submitted a February 4, 2013 report from Dr. Randolph Evans, a Boardcertified neurologist, who performed an electromyogram (EMG) and nerve conduction studies
which revealed no abnormalities and no evidence of lumbosacral radiculopathy.
In a decision dated August 25, 2014, OWCP denied modification of the prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim. When an employee claims that he or she sustained an
4

See supra note 2.

4

injury in the performance of duty, he or she 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. Appellant must also establish that such event, incident, or exposure caused an
injury.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by claimant. The
medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.6
ANALYSIS
It is undisputed that appellant’s work duties as a letter carrier included repetitive bending,
twisting, turning, walking, and lifting. However, she has not submitted sufficient medical
evidence to establish that her diagnosed conditions are causally related to specific employment
factors.
Appellant submitted reports from Dr. Barnes dated June 26 and September 12, 2013 who
noted she was a letter carrier who initially injured her back in 1996 when lifting an obese patient.
She underwent a two-level lumbar fusion surgery in 2008, but continued to be symptomatic.
Dr. Barnes noted appellant’s work as a carrier which required repeated lifting of up to 70 pounds
which placed stress on her lumbar spine and caused herniated discs and her current symptoms.
He diagnosed herniated lumbar discs at L2-3, L4-5, and L5-SI. Similarly, on April 10, 2014
Dr. Barnes opined that appellant’s 2006 work injury permanently aggravated the original 1996
injury and resulted in permanent impairment of her lumbar spine. The Board finds that, although
he supports causal relationship, he has not provided sufficient medical rationale explaining the
basis of his conclusory opinion regarding the causal relationship between appellant’s lumbar

5

See Walter D. Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB
243, 247 (1967) (traumatic injury). See generally John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton, 40
ECAB 1143 (1989).
6

Solomon Polen, 51 ECAB 341 (2000).

5

condition and the factors of employment.7 Dr. Barnes has not explained the process by which
bending or lifting would have caused the diagnosed disc herniation or other conditions.
Appellant submitted a June 25, 2009 report from Dr. Fandrich who noted treating her for
a medical condition directly related to her work duties. She reported that her work duties
consisted of repetitive bending, twisting, lifting, and carrying more than 10 pounds on a daily
basis. Dr. Fandrich noted that these activities could result in similar injuries to what appellant
experienced. Similarly, in a July 7, 2010 report, he noted appellant’s history of working for the
employing establishment for l2 years. Dr. Fandrich diagnosed right low back pain, right lower
extremity radiculopathy, right sciatica, and hamstring somatic dysfunction. The Board finds that,
although he supported causal relationship, he has not provided medical rationale explaining the
basis of his opinion regarding the causal relationship between appellant’s diagnosed conditions
and factors of employment.8 Dr. Fandrich did not explain how the accepted work activities
would cause or aggravate her diagnosed conditions. Therefore, these reports are insufficient to
meet appellant’s burden to establish appellant’s claim.
Appellant was treated by Dr. Mann on October 25, 2007 and June 2, 2008 for a long
history of lumbar degenerative disc disease, spondylosis, and low back syndrome. She reported
working as a letter carrier and bending over and experiencing acute searing pain in her low back
with radiation into her right buttock. Dr. Mann relates the history of injury reported by appellant
instead of providing his own opinion on causal relationship. He did not otherwise address why
or how particular work activities would cause or aggravate a diagnosed condition.
Consequently, these reports are of limited probative value.
The remainder of the medical evidence, including reports from Drs. Trahan, Pribil, and
Leahy, is also of limited probative value as it does not offer a specific opinion on the causal
relationship between appellant’s job duties and her diagnosed conditions.9
On appeal appellant, through counsel, provides a detailed summary of her injury,
subsequent medical treatment and the procedural process of her claim. She asserts that she
submitted reports from Dr. Barnes dated June 26, 2013 and April 10, 2014 which support that
her work duties permanently aggravated her preexisting condition and caused her disability.
Appellant asserts that Dr. Barnes’ reports provide reliable detail as to appellant’s diagnosed
conditions, her work duties, and how those work duties permanently aggravated her preexisting
1996 disc herniation. As noted above, although Dr. Barnes supported causal relationship, he did
not provide a sufficiently rationalized medical opinion explaining the basis of his conclusory

7

See T.M., 60 ECAB Docket No. 08-975 (issued February 6, 2009) (a medical report is of limited probative value
on the issue of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by
medical rationale).
8

Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
9

A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).

6

opinion regarding the causal relationship between appellant’s lumbar condition and the factors of
employment.10 Therefore, these reports are insufficient to meet appellant’s 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 did not meet her burden of proof to establish that she
sustained an occupational disease in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the August 25, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 22, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10

See T.M., supra note 7.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Brooklyn, NY, Employer
__________________________________________
Appearances:
Thomas Harkins, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 12-635
Issued: October 25, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On June 27, 2012 appellant filed an application for review of the Office of Workers’
Compensation Programs’ (OWCP) August 5, 2011 merit decision denying his recurrence claim.
The appeal was docketed as No. 12-635. After considering the evidence of record, the Board
finds this case is not in posture for a decision.
The present appeal involves appellant’s April 6, 2003 occupational disease claim (No.
xxxxxx989), which was accepted for lumbar strain. Appellant filed a claim for recurrence of
disability as of May 1, 2005, alleging that he experienced disabling pain in his lower back, neck
and shoulders as a result of repetitive work activities. OWCP denied his claim by decision dated
December 13, 2005.
The record indicates that OWCP considered appellant’s recurrence claim in File No.
xxxxxx989 as a new claim for an occupational disease under File No. xxxxxx955. The claim
was denied by decisions dated September 8, 2006 and November 14, 2007. In a decision dated
September 10, 2010, the Board affirmed a January 25, 2010 decision denying reconsideration on
the grounds that the request was untimely and failed to establish clear evidence of error.1

1

Docket No. 10-1886 (issued September 10, 2010).

Appellant subsequently filed another claim for recurrence of disability as of May 23,
2006 in File No. xxxxxx989. The recurrence claim was denied by decisions dated November 9,
2006, May 14 and August 22, 2007. In a decision dated January 14, 2011, the Board set aside
OWCP’s September 18, 2009 decision denying appellant’s reconsideration request as untimely
and failing to establish clear evidence of error and remanded the case for further consideration.2
In its August 5, 2011 decision, in File No. xxxxxx989, OWCP denied modification of its
prior merit decisions. The decision reflects that the claims examiner reviewed the evidence in
the instant case, File No. xxxxxx989, and in File No. xxxxxx955, both of which concern
allegations relating to the same body part. The record in the instant case, however, does not
contain any evidence relating to the development of the prior claim. The Board finds that the
medical evidence contained in File No. xxxxxx955 will necessarily bear directly on appellant’s
claim in File No. xxxxxx989. Because it is essential for the Board to review the medical
evidence contained in File No. xxxxxx955 in order to render a full and fair adjudication of the
present appeal, this case will be remanded for OWCP to consolidate case file numbers
xxxxxx955 and xxxxxx989. Reconstruction of the record will be followed by a de novo decision
on the merits of the claim, in order to protect appellant’s appeal rights.
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
August 5, 2011 decision be set aside and the case remanded for further development consistent
with this order.
Issued: October 25, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

2

Docket No. 10-1120 (issued January 14, 2011).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, St. Louis, MO, Employer
__________________________________________

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

Docket No. 14-667
Issued: May 7, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 3, 2014 appellant filed a timely appeal from a nonmerit August 9, 2013
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration as it was not timely filed and failed to present clear evidence of error. The most
recent merit decision of record is dated January 31, 2012. There is no merit decision within 180
days of February 3, 2014, the date appellant filed her appeal with the Board. Therefore, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board does not have jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and failed to present clear evidence of error.

1

5 U.S.C. § 8101 et seq.

On appeal, counsel asserts that the medical record establishes that she sustained a
respiratory condition due to exposure to mold at work.2
FACTUAL HISTORY
On July 28, 2011 appellant, then a 35-year-old general attorney, filed an occupational
disease claim (Form CA-2) alleging that she sustained upper respiratory infections and
gastrointestinal issues related to “mold poisoning.” She asserted that she was exposed to mold in
areas of Building 25, including her paralegal’s office. Appellant asserted that, when a ceiling in
an unspecified area was replaced on June 25, 2011, allegedly due to mold contamination, her
“symptoms all returned tenfold and [she] realized the stemmed from the prevalent mold.”
In an August 25, 2011 letter, OWCP advised appellant of the additional evidence needed
to establish her claim, including a detailed description of the alleged workplace exposures, the
precise locations of any mold, the length and frequency of her exposures, and “supporting
physical evidence or witness statements” to support her claim. It also requested a statement from
her attending physician explaining the medical reasons why those exposures would cause the
claimed conditions. OWCP afforded appellant 30 days to submit such evidence.
In a September 23, 2011 letter, the employing establishment noted that a mold survey
was conducted “for the office where Regional Counsel is located” and that the “two employees
who filed the claim were allowed to work from home until they were moved to another building
while they are working on replacing the tiles.”
In a September 29, 2011 decision, OWCP denied appellant’s claim. It found that she did
not submit sufficient evidence to establish that she was exposed to mold at work as alleged.
In an October 28, 2011 letter, appellant requested reconsideration. She submitted a
July 27, 2011 industrial hygiene survey showing the presence of mold spores in Building 25,
particularly in Small Conference Room No. 319 and an air vent in Library No. 320. Appellant
also provided the August 1 and 30, 2011 reports of Dr. Kirk A. Nelson, an attending osteopathic
physician, opining that workplace exposure to mold caused allergic asthma. She also submitted
August 1 and 30, 2011 medical history forms, an August 2, 2011 spirometry report and
August 22, 2011 chest x-ray.
By decision dated January 31, 2012, OWCP denied modification, finding that the
additional evidence submitted was insufficient to establish fact of injury. It found that the new
documents did not establish that appellant was exposed to mold at work.
In a January 31, 2013 form, received by OWCP on February 6, 2013, appellant requested
reconsideration, asserting that she developed asthma and reactive airway disease because the
employing establishment knew that mold was present in her work area but unreasonably delayed
abatement procedures. She submitted October 8, 2012, June 26 and August 8, 2013 reports from
2

Appellant submitted new evidence accompanying her request for an appeal. The Board may not consider new
evidence for the first time on appeal that was not before OWCP at the time it issued the final merit decision in the
case. 20 C.F.R. § 501.2(c).

2

Dr. Nelson relating appellant’s account of respiratory issues developing after workplace
exposures to mold in 2011. Dr. Nelson opined that the exposures aggravated appellant’s
extrinsic asthma.
Appellant also submitted a December 23, 2013 employing establishment form approving
her request to telework to avoid mold exposure. She also provided a March 2, 2012 industrial
hygiene report summarizing the July 27, 2011 mold spore report.
By decision dated August 9, 2013, OWCP denied appellant’s request for reconsideration
on the grounds that her request was not timely filed and failed to present clear evidence of error.
It found that her letter was received on February 6, 2013, more than one year after the
January 31, 2012 decision, the final merit decision in the claim. OWCP further found that
Dr. Nelson’s October 8, 2012 report did not address the critical issue of fact of injury, as his
opinion did not establish that appellant was exposed to mold at work.
LEGAL PRECEDENT
Section 8128(a) of FECA3 does not entitle a claimant to a review of an OWCP decision
as a matter of right.4 This section vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation.5 OWCP, through regulations, has imposed
limitations on the exercise of its discretionary authority. One such limitation is that OWCP will
not review a decision denying or terminating a benefit unless the application for review is
received within one year of the date of that decision.6 The Board has found that the imposition
of this one-year time limitation does not constitute an abuse of the discretionary authority
granted OWCP under 5 U.S.C. § 8128(a).7
In those cases where requests for reconsideration are not timely filed, OWCP must
nevertheless undertake a limited review of the case to determine whether there is clear evidence
of error pursuant to the untimely request in accordance with section 10.607(b) of its regulations.8
OWCP regulations state that OWCP will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in OWCP’s regulations, if the claimant’s
request for reconsideration shows “clear evidence of error” on the part of OWCP.9

3

5 U.S.C. § 8128(a).

4

Thankamma Mathews, 44 ECAB 765, 768 (1993).

5

Id.; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990).

6

20 C.F.R. §§ 10.607(a); 10.608(b). The Board has concurred in OWCP’s limitation of its discretionary
authority; see Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).
7

Thankamma Mathews, supra note 4; Jesus D. Sanchez, supra note 5.

8

20 C.F.R. § 10.607(b); Thankamma Mathews, supra note 4.

9

Id. at § 10.607(b).

3

To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.10 The evidence must be positive, precise and explicit and must be
manifest on its face that OWCP committed an error.11 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.12 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.13 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error by OWCP.14 The Board must make an
independent determination of whether a claimant has submitted clear evidence of error on the
part of OWCP such that OWCP abused its discretion in denying merit review in the face of such
evidence.15
ANALYSIS
In its August 9, 2013 decision, OWCP properly determined that appellant failed to file a
timely application for review. It issued its most recent merit decision on January 31, 2012.
Appellant’s reconsideration request was received by OWCP on February 6, 2013, more than one
year after issuance of the January 31, 2012 decision. OWCP denied the request by August 9,
2013 decision on the grounds that it was not timely filed and failed to present clear evidence of
error. As it is now settled that the February 6, 2013 reconsideration request was not timely filed,
it must now be determined whether the request demonstrated clear evidence of error in OWCP’s
January 31, 2012 merit decision.
In her February 6, 2013 letter, appellant asserted that the employing establishment knew
that mold was present in her work area but unreasonably delayed the abatement procedures. The
Board finds that this argument does not raise a substantial question as to whether OWCP’s
January 31, 2012 decision was in error or shift the weight of the evidence in her favor.
Therefore, it is insufficient to establish clear evidence of error.
The October 8, 2012, June 26 and August 13, 2013 reports from Dr. Nelson, an attending
Board-certified orthopedic surgeon, duplicate his August 1 and 31, 2011 reports previously of
record. Similarly, the March 2, 2012 industrial hygiene report summarizes the July 27, 2011
industrial hygiene survey previously of record. The Board has held that evidence that repeats or
duplicates evidence previously submitted is insufficient to prima facie shift the weight of the
evidence in favor of the claimant.16 The term clear evidence of error is intended to represent a
10

Thankamma Mathews, supra note 4.

11

Leona N. Travis, 43 ECAB 227 (1991).

12

Jesus D. Sanchez, supra note 5.

13

Leona N. Travis, supra note 11.

14

Nelson T. Thompson, 43 ECAB 919, 922 (1992).

15

Gregory Griffin, supra note 6.

16

D.E., 59 ECAB 438 (2008).

4

difficult standard. Appellant must present evidence which on its face shows that OWCP made
an error.17
The December 23, 2013 accommodations form does not address the underlying issue of
whether appellant was actually exposed to mold at work in 2011. Evidence which is irrelevant
to the claim does not establish clear evidence of error.18
The Board finds that the additional evidence submitted does not demonstrate clear
evidence of error. Appellant has not provided argument or evidence of sufficient probative value
to shift the weight of the evidence in her favor and raise a substantial question as to the
correctness of OWCP’s January 31, 2012 merit decision. Consequently, OWCP properly denied
appellant’s reconsideration request as her request does not establish clear evidence of error.
On appeal, appellant asserts that the medical evidence is sufficient to establish that
workplace mold exposures caused the claimed respiratory condition. This argument pertains to
the merits of the claim, which are not before the Board on the present appeal.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 9, 2013 is affirmed.
Issued: May 7, 2014
Washington, DC

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

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

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board
17

Annie L. Billingsley, 50 ECAB 210 (1998).

18

Leona N. Travis, supra note 11.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Grand Rapids, MI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-460
Issued: May 28, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 28, 2012 appellant, through her attorney, filed a timely appeal from an
October 5, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her occupational disease 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.2
ISSUE
The issue is whether appellant has established that she developed a back condition
causally related to factors of her federal employment.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the October 5, 2012 OWCP decision, appellant submitted new
evidence. However, the Board is precluded from reviewing evidence which was not before OWCP at the time it
issued its final decision. See 20 C.F.R. § 501.2(c)(1). Appellant may resubmit this evidence, together with a formal
written request for reconsideration to OWCP, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.

FACTUAL HISTORY
On April 14, 2012 appellant, then a 48-year-old mail handler, filed an occupational
disease claim, alleging that she developed a herniated disc and a pinched nerve due to her work
duties such as heavy lifting, twisting and bending.
Along with her claim, appellant also submitted several progress reports dated March 9,
September 28 and November 16, 2011 from Dr. Chadwick A. Furness, a Board-certified family
physician, who related appellant’s history of low back pain and discussed possible surgery.
Appellant also submitted a March 29, 2012 report from Dr. Furness who noted that he
had diagnosed appellant with lumbar disc herniation and that appellant has been seen by
Dr. Steven Klafeta, a Board-certified neurosurgeon, who is planning to do surgery on
April 9, 2012. Dr. Klafeta related that appellant had been off work since March 2, 2012 and
would continue to be off work through the date of surgery.
A January 25, 2012 magnetic resonance imaging (MRI) scan report from Dr. Saima
Ghori, a Board-certified specialist in diagnostic radiology, noted appellant’s “diffuse disc bulge
at L4-5 appears to be abutting the traversing L5 nerve roots bilaterally and exiting right L4 nerve
root.” Also noted were mild multilevel degenerative disc disease and facet arthrosis.
In his March 27, 2012 letter, Dr. Klafeta noted that the MRI scan which showed L4-5
herniated disc with impingement of the L5 nerve root and discussed his plans for appellant’s
surgery.
On May 9, 2012 OWCP advised appellant that additional evidence was necessary to
establish his claim. Appellant was advised that he was required to submit a medical report, with
supporting rationale, explaining how his condition was causally related to his work duties. On
May 29, 2012 OWCP received a May 9, 2012 report from a physician’s assistant who
recommended an MRI scan evaluation.
In a May 22, 2012 progress note, Dr. Klafeta related that appellant had been having back
issues for some time. He noted a worsening of appellant’s lower back conditions and diagnosed
her with herniated disc at L4-5 with impingement of the L5 nerve root. Dr. Klafeta concluded
that appellant would be able to return to work six to eight weeks following surgery.
Appellant also submitted a June 6, 2012 report from Dr. Eric Kozfkay, a Board-certified
physician in physical medicine and rehabilitation, who diagnosed appellant with L4-5 lumbar
disc herniation, bilateral lumbar radiculitis and lumbar spinal stenosis.
In a June 19, 2012 decision, OWCP denied appellant’s claim on the grounds that the
medical evidence did not demonstrate that her claimed conditions were causally related to her
work factors.
On July 27, 2012 appellant requested reconsideration of her case. Along with her
request, she resubmitted medical reports of record. Also submitted was July 20, 2012 progress
note from Dr. Klafeta, who noted appellant’s lumbar disc herniation and stated that the “injury
most likely resulted due to her work.”
2

In a decision dated October 5, 2012, OWCP again denied appellant’s claim, after merit
review, on the grounds that she had failed to establish that her diagnosed conditions are causally
related to her work factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing that the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as
alleged, and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury.4 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.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed, or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is usually rationalized medical
evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.6
Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence, a causal relationship between her claimed conditions and her federal
employment. This burden includes providing medical evidence from a physician who concludes
that the disabling condition is causally related to employment factors and supports that
conclusion with sound medical reasoning.7

3

5 U.S.C. §§ 8101-8193.

4

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

5

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

6

Id.

7

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

3

ANALYSIS
In the instant case, appellant has failed to submit a medical report containing a
rationalized, probative opinion which relates her claimed lumbar disc herniation to factors of her
employment. For this reason, she has not discharged her burden of proof to establish her claim.
While several doctors diagnosed appellant with lumbar disc herniation in their reports,
they did not discuss whether the condition was causally related to her federal work activities. In
this regard, the Board notes that Dr. Furness, Dr. Klafeta and Dr. Kozfkay diagnosed lumbar disc
herniation, while Dr. Ghori diagnosed diffuse disc bulge, multilevel degenerative disc disease
and facet arthrosis. The Board has long held that medical conclusions unsupported by rationale
are of diminished probative value and insufficient to establish causal relationship.8 As such,
these reports are of little probative value.
In his July 20, 2012 report, Dr. Klafeta noted that appellant has had severe back pain and
right leg pain due to a disc herniation in her lower back and asserted that the injury most likely
resulted due to her work. His opinion, however, is of limited probative value. The weight of
medical opinion is determined by the opportunity for and thoroughness of examination, the
accuracy and completeness of physician’s knowledge of the facts of the case, the medical history
provided, the care of analysis manifested and the medical rationale expressed in support of stated
conclusions.9 Dr. Klafeta did not sufficiently describe appellant’s job duties or explain the
medical process through which such duties would have been competent to cause the claimed
conditions. His report did not contain any medical rationale explaining how appellant’s
diagnosed condition was related to factors of employment.10
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor is
the belief that her condition was caused, precipitated or aggravated by her employment sufficient
to establish causal relationship.11 Causal relationship must be established by rationalized
medical opinion evidence and she failed to submit such evidence.
OWCP advised appellant of the evidence required to establish her claim; however, she
failed to submit such evidence. Consequently, appellant has not met her burden of proof in
establishing that her claimed conditions were causally related to her employment.
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.

8

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

9

See Anna C. Leanza, 48 ECAB 115 (1996).

10

William C. Thomas, 45 ECAB 591 (1994).

11

See 5 U.S.C. § 8101(2).

4

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her
diagnosed back condition was sustained in the performance of her federal job duties.
ORDER
IT IS HEREBY ORDERED THAT the October 5, 2012 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: May 28, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5