United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.L., Appellant
and
DEPARTMENT OF THE NAVY,
HEADQUARTERS, Norfolk, VA, Employer
__________________________________________

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

Docket No. 10-328
Issued: March 3, 2011

Case Submitted on the Record

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

JURISDICTION
On November 18, 2009 appellant filed a timely appeal from an August 12, 2009 merit
decision of the Office of Workers’ Compensation Programs terminating her compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s
compensation effective July 11, 2004 on the grounds that she had no residuals of her accepted
employment injury after that date.
FACTUAL HISTORY
On December 14, 1992 appellant, then a 39-year-old administrator, filed a claim alleging
an allergic reaction to allergens in the basement office of Building B where she worked from
August 1991 to December 1992. During this period, the basement was severely flooded on
several occasions and she was exposed to strong smells. Appellant asserted that she developed

medical problems, including respiratory difficulties and extreme fatigue, which she had not
previously experienced. Despite moving to the second floor of the building in 1993, water also
leaked into this work space on several occasions and her symptoms worsened.1
In a March 24, 1992 report, the employing establishment reported the results of
environmental testing carried out in the basement of Building B. It was noted that 13 out of 14
employees who worked in the basement reported poor air quality in the work space, including
excessive heat, odors and lack of air circulation and complained of respiratory symptoms.
Testing for formaldehyde showed results well below the permissible exposure limit of one part
per million (ppm) and concentrations of carbon dioxide were generally between 500 and 800
ppm. Concentrations of carbon dioxide exceeded 800 ppm on several occasions and, although
these results fell within the range where complaints typically occurred, they were below levels
associated with widespread complaints. It was recommended that outdoor ventilation be
increased, existing carpets be removed and replaced and areas which contributed to the flooding
of the office be patched.2
In a December 17, 1997 report, Dr. Frank W. Gruber, an attending Board-certified
emergency medicine physician, diagnosed multiple chemical sensitivities and severe
environmental allergies. These conditions were associated with debilitating headaches, shortness
of breath, inability to think clearly, muscular weakness (especially in her neck) and emotional
lability. Dr. Gruber found that appellant was totally disabled from work.
Environmental testing of appellant’s work space from early 1998 showed that carbon
dioxide levels were within acceptable levels and that the ventilation systems were functioning
appropriately to provide fresh air. Air sample results were below the applicable exposure limits
for formaldehyde, hepane, toluene, petroleum distillates and acetone. No visible growth of
molds/fungi was observed in any area where appellant worked.3 It was noted that Basidiospore,
Penicillium and Aspergillus strains of fungi/mold were identified in appellant’s office on the
second floor of Building B.4
Appellant stopped work in September 1998 and did not return. In January 1999, the
Office accepted that she sustained the condition of multiple chemical sensitivities. Appellant
received compensation for periods of disability.
In a March 22, 1999 report, Dr. Gerald H. Ross, an attending Board-certified
environmental medicine physician, stated that intradermal testing from January 1998 confirmed
1

Appellant indicated that after December 1992 she still had to visit her supervisor in the basement of Building B
on occasion.
2

The presence of a musty odor was noted and it was reported that water still leaked into the work space on rainy
days.
3

In the basement of Building B, visible growth was found after removing vinyl baseboard material.

4

The report from March 17, 1998 indicated that a total of 5560 spores of fungi/mold per cubic meter of air
(including Cladosporium spores) were found in Building A. Several fungi, including Stachybotrys, were found in
the basement of Building B. Appellant indicated that she had to work for a period in Building A while Building B
was being renovated and that she periodically visited the basement of Building B.

2

that appellant had chemical sensitivities to mold, cigarette smoke, formaldehyde, cologne and
orrisroot (an aromatic substance found in many cosmetics). Her symptoms included shortness of
breath, thirst, aching and weakness in her shoulders, emotional instability and difficulty with
concentration and memory. Dr. Ross stated that a single photon emission computerized
tomography scan obtained in January 1999 showed normal results, but asserted that appellant
underwent a “less accurate” form of this test and therefore the results did not rule out
neurotoxicity. He was unable to predict a date for release to unrestricted employment. In several
subsequent reports, Dr. Ross found appellant totally disabled since September 1998 due to workrelated toxic encephalopathy.
In an April 12, 1999 report, Dr. John Ellis, a Board-certified occupational medicine
physician who served as an Office referral physician, noted that appellant reported complaints
such as headaches, fatigue, shoulder discomfort, marked intolerance to odors, shortness of
breath, forgetfulness, confusion, disorientation, loss of balance and emotional instability. On
physical examination, he noted normal findings. Dr. Ellis discussed the condition of multiple
chemical sensitivities and questioned whether appellant had such a condition. He saw little
justification for the diagnoses and disability findings of Dr. Ross or Dr. Gruber and posited that
appellant’s allergies could not be reliably ascribed to her work.5
The Office determined that there was a conflict in the medical opinion between Dr. Ellis
and appellant’s attending physicians regarding her continuing work-related disability. It referred
her to Dr. John C. Schaefer, a Board-certified internist specializing in infectious diseases, for an
impartial medical evaluation and opinion on the matter.
In a September 1, 1999 report, Dr. Schaefer deferred making a diagnosis and
recommended testing for hypersensitivity pneumonitis. He was currently unable to explain why
appellant would continue to experience work-related residuals. In a supplemental report dated
September 22, 1999, Dr. Schaefer stated that the hypersensitivity pneumonitis evaluation he
obtained found positive antibodies to several fungi, including Aureobasidium Pullulans,
Cladosporium Herbarium, Penicillium Notatum and Trichoderma Viride. In addition, there were
antibodies to animal protein (including beef and pork), mixed feathers and pigeon droppings. He
noted that depression needed to be ruled out.
The Office determined that additional evaluation was needed of appellant’s pulmonary
condition. On October 10, 2000 Dr. Eldridge H. Derring, Jr., a Board-certified pulmonologist
who served as an Office referral physician, reported the findings of pulmonary testing he
obtained. He concluded that appellant did not have any significant measurable respiratory
impairment, except for very mild restrictive changes which might be associated with body
habitus. Pulmonary function tests from October 9, 2000 showed normal expiratory flow rates
and very mild reduction in total lung capacity (4.36 liters or 78 percent). Dr. Derring
recommended that appellant not be exposed to areas of air pollution or mold and posited that her
respiratory status was stable.

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Dr. Ellis noted that a psychiatric evaluation from January 1999 showed depression and indicated that “this
should be explored.”

3

Dr. Ernest Bernhardi, Jr., an attending osteopath and Board-certified surgeon, first
examined appellant on January 15, 2001. He noted that she complained of headaches, tension,
severe muscle weakness of the legs, shoulders and neck, and impaired memory and inability to
concentrate. Appellant stated that the symptoms began while working in Norfolk in 1992 and
were thought to be the result of molds, mildew, chemical fumes, cleaning products, fragrances or
other environmental allergens. Dr. Bernhardi described the results of his physical examination
and diagnosed environmental illness and somatic dysfunction of her sacroiliac, lumbar, thoracic,
cervical, sternoclavicular and cranial areas.
In April 2004 the Office referred appellant for a second opinion examination by a Boardcertified pulmonary specialist, Dr. Elizabeth Ann Raitz-Cowboy. In an April 23, 2004 report,
Dr. Raitz-Cowboy stated that appellant reported that she was in perfect health until around 1992
when she moved into a new work setting in Norfolk. She was seen by allergists, some of whom
told her she had allergies and some of whom told her she did not. Appellant indicated that the
allergists provided a large amount of antibiotics and she followed up with Dr. Gruber, a herbalist
and homeopathic physician who was also her boyfriend. Dr. Raitz-Cowboy noted that appellant
had complained that her nurses were wearing perfume when she walked into the office, but
stated that no one in the office wore cologne or perfumes as a matter of policy. Appellant also
complained of muscle fatigue and exhaustion and claimed that Dr. Raitz-Cowboy’s office must
have mold in it.
Dr. Raitz-Cowboy reviewed appellant’s prior medical records and described the contents
of various reports, including those of Dr. Ellis, Dr. Bernhardi, Dr. Schaefer and Dr. Derring. A
laboratory analysis from January 1998 was normal except for slightly increased magnesium and
selenium levels and pointed out that Dr. Schaefer stated that there was no organic basis for
appellant’s complaints. Dr. Raitz-Cowboy described in detail the results of her physical
examination of appellant and indicated that pulmonary function testing performed was
“absolutely within normal limits” and that a chest x-ray was also completely within normal
limits. She did not see any signs of multiple chemical sensitivities and saw nothing to support
the diagnosis of toxic encephalopathy, noting that all heavy metal levels were negative.
Dr. Raitz-Cowboy also found no evidence that appellant suffered from any credible medical or
pulmonary abnormality, noting the completely normal pulmonary function testing performed on
April 23, 2004 and the normal chest x-ray. Dr. Raitz-Cowboy stated that there was one
discussion of perhaps a mild restrictive disease on a set of breathing tests from October 2000 but
contrasted these findings with the more recently obtained normal test findings. She did not have
a copy of the flow loops to state whether or not the tests from 2000 were done by exact
American Thoracic Society (ATS) standards and noted that the testing performed on April 23,
2004 met all ATS criteria. Dr. Raitz-Cowboy was concerned that appellant described the
physician/herbalist who was treating her as a “significant other” which may have altered his
ability to clearly and objectively evaluate her situation. She opined that appellant was able to
work a full eight hours a day without any restrictions and found no organic problem.
In a May 19, 2004 letter, the Office advised appellant that it proposed to terminate her
entitlement to compensation benefits on the basis that the weight of the medical evidence
established that she no longer had any residuals or disability due to her work injury. The Office
cited the opinion of Dr. Raitz-Cowboy as the basis for the proposal and provided her 30 days to
submit additional evidence and argument challenging the proposed action.

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In an undated statement received on June 11, 2004, appellant objected to the proposal to
terminate her compensation benefits. She claimed that there were a number of factual
inaccuracies in the report of Dr. Raitz-Cowboy and indicated that Dr. Gruber was not a herbalist
and that her relationship with him was purely professional. Appellant claimed that Dr. RaitzCowboy did not do any allergy testing and asserted that the day she saw Dr. Raitz-Cowboy was a
good day for her.
In a July 28, 2004 decision, the Office terminated appellant’s compensation benefits,
effective July 11, 2004. It cited the opinion of Dr. Raitz-Cowboy as the basis for this decision.
Additional medical evidence was submitted, including the office notes of Dr. Bernhardi
for the period October 2002 to March 2005. The records noted that appellant was treated on
multiple occasions for complaints of headaches, anxiety, dizziness, and pain in her neck, upper
back, lower back and both shoulders. Dr. Bernhardi stated that his treatment included gentle
osteopathic manipulation of the spinal, clavicular and cranial areas.
In a November 9, 2004 report, Dr. Allan Lieberman, an attending physician Boardcertified in occupational and environmental medicine, indicated that he had reviewed the report
from Dr. Raitz-Cowboy. He stated that she did not review the environmental analysis performed
by the employing establishment “whose findings justified their moving the whole department
from the basement location to what they thought was a safer working environment.”
Dr. Lieberman noted that appellant was but one of 13 workers with complaints consistent with
dampness and mold injury. He asserted that Dr. Raitz-Cowboy failed to recognize the concern
of the engineers about the constant flooding of the basement that saturated the carpets.
Dr. Lieberman noted that specific testing with the individual molds identified in the
environmental analysis provoked many of the symptoms complained about by appellant. He
opined that appellant was injured on the job by chronic exposure to dampness and mold and
stated that the sequelae of her injury were still present. Dr. Lieberman indicated that there was a
clear temporal relationship between the exposures and the onset of appellant’s injury, there was a
strong association with 12 other workers being affected and there were no other alternative
explanations to explain the injuries to 13 out of 14 people working in the damp, moldy basement.
Appellant requested a hearing before an Office hearing representative. At the April 19,
2005 hearing, appellant indicated that even after she moved out of the basement office of
Building B in December 1992, she continued to experience various symptoms. She began
treatment with Dr. Gruber in 1994 and asserted that he was not an herbalist and that she had no
personal relationship with him. Appellant had good days and bad days and her reactions were
caused by exposure to all types of substances, including dry cleaning chemicals and new
carpeting. Her reactions included severe pain in both shoulders, severe headaches, loss of
memory, confusion and breathing difficulties. Appellant testified that she was having a good
day when she saw Dr. Raitz-Cowboy and that she only spent about a half hour with
Dr. Raitz-Cowboy before she was sent to the hospital for pulmonary testing. Appellant’s
counsel stated that she had known appellant since she moved to Norfolk in 1990 and that
appellant’s relationship with Dr. Gruber was strictly professional.
In a June 16, 2005 decision, the Office affirmed the July 28, 2004 decision terminating
appellant’s compensation effective July 11, 2004.

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On August 13, 2005 appellant requested reconsideration of her claim. She submitted an
October 11, 2005 report in which Dr. Lieberman stated that she reported multiple organ and
system dysfunction including upper respiratory symptoms of rhinitis, pharyngitis and sinusitis,
fatigue to somnolence, headaches, casosinia, hypersensitivity pneumonitis and signs and
symptoms of neurotoxicity. He indicated that all of these conditions were capable of being
caused by exposure to dampness and indoor mold. Dr. Lieberman noted that he undertook single
blind allergy testing performed as provocative challenges and found that appellant reacted
objectively by wheeling and subjectively with symptoms to Aspergillus, Cladosporium and
Stachybotrys, all molds identified in her workplaces. He diagnosed work-related multiple
chemical sensitivities and stated:
“The exposure dose was adequate to cause the injuries. The level of mold found
varied between 160-5560 [spores per cubic meters of air]. There are no official
standards at this time for indoor airborne fungi concentrations. However indoor
fungal levels about a range of 150-1000 colony forming units per cubic meter of
air … are considered to be sufficient to cause human health problems.
Additionally, 40 spores [per cubic meter of air] of Stachybotrys were identified in
the basement of building B. This mycotoxin-producing mold is usually not
airborne so the findings of 40 is very significant and indicates the presence of a
reservoir in the working facility.
“The history of medical records indicates that the manifestations of the injuries
persist. The onset of her injuries began after the exposures to dampness and mold
indicating a true cause and effect relationship.
“There is a strong degree of association with 13 of 14 employees also being
symptomatic…. There are no other reasonable causes to explain this workers
injury.”
In a June 21, 2006 decision, the Office affirmed the June 16, 2005 decision finding that
the October 11, 2005 report of Dr. Lieberman was of limited probative value.
In a November 21, 2006 letter, appellant requested reconsideration of her claim. She
asserted that the report of Dr. Raitz-Cowboy was not sufficiently well rationalized to support the
Office’s termination of compensation. In a November 14, 2006 letter, Dr. Lieberman again
expressed his disagreement with the opinion of Dr. Raitz-Cowboy.
In a March 20, 2007 decision, the Office affirmed the June 21, 2006 decision.
In a June 26, 2007 letter, appellant requested reconsideration of her claim and reiterated
that the reports of Dr. Lieberman supported her claim.
In a May 16, 2008 decision, the Office affirmed its March 20, 2007 decision. In a
May 14, 2009 letter, appellant requested reconsideration of her claim and provided further
argument regarding why she felt the medical evidence of record showed that she still had workrelated residuals. In an August 12, 2009 decision, the Office affirmed the May 16, 2008
decision.

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LEGAL PRECEDENT
Under the Federal Employees’ Compensation Act,6 once the Office has accepted a claim
it has the burden of justifying termination or modification of compensation benefits.7 The Office
may not terminate compensation without establishing that the disability ceased or that it was no
longer related to the employment.8 The Office’s burden of proof includes the necessity of
furnishing rationalized medical opinion evidence based on a proper factual and medical
background.9 After termination or modification of compensation benefits, clearly warranted on
the basis of the evidence, the burden for reinstating compensation benefits shifts to appellant. In
order to prevail, appellant must establish by the weight of the reliable, probative and substantial
evidence that he or she had an employment-related disability which continued after termination
of compensation benefits.10
Section 8123(a) of the Act provides in pertinent part: “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.”11 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of the Act, to resolve the conflict in the medical
evidence.12
ANALYSIS
Appellant stopped work in September 1998 and the Office accepted that she sustained the
condition of multiple chemical sensitivities. She claimed that exposure to various allergens in
the workplace since 1991 had caused her condition and environmental studies confirmed the
existence of potential allergens, including molds such as Basidiospore, Penicillium and
Aspergillus. The Office paid compensation for total disability, but terminated appellant’s
compensation effective July 11, 2004 based on the opinion of Dr. Raitz-Cowboy, a Boardcertified pulmonary specialist who served as an Office referral physician.

6

5 U.S.C. §§ 8101-8193.

7

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

8

Id.

9

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

10

Wentworth M. Murray, 7 ECAB 570, 572 (1955).

11

5 U.S.C. § 8123(a).

12

William C. Bush, 40 ECAB 1064, 1075 (1989).

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The Board finds that the well-rationalized April 23, 2004 report of Dr. Raitz-Cowboy
established that appellant ceased to have residuals of her accepted condition effective July 11,
2004 and the Office met its burden of proof to terminate her compensation.13
In her April 23, 2004 report, Dr. Raitz-Cowboy described in detail the results of her
physical examination of appellant and indicated that pulmonary function testing performed was
within normal limits and that a chest x-ray was also within normal limits. She did not see any
signs of multiple chemical sensitivities or anything to support the diagnosis of toxic
encephalopathy, noting that all heavy metal levels were negative. Dr. Raitz-Cowboy stated that
there was one discussion of perhaps a mild restrictive disease on a set of breathing tests from
October 2000 but noted that even these limited results were not reproduced in the more current
test results.
The Board has carefully reviewed the opinion of Dr. Raitz-Cowboy and notes that it has
reliability, probative value and convincing quality with respect to its conclusions regarding the
relevant issue of the present case. Dr. Raitz-Cowboy’s opinion provided a thorough factual and
medical history and accurately summarized the relevant medical evidence. Moreover,
Dr. Raitz-Cowboy provided a proper analysis of the factual and medical history and the findings
on examination, including the results of diagnostic testing, and reached conclusions regarding
appellant’s condition which comported with this analysis.14 Dr. Raitz-Cowboy provided medical
rationale for her opinion by explaining that the findings on physical examination and diagnostic
testing did not show any evidence of the existence of a continuing work-related multiple
chemical sensitivities condition.15
For these reasons, the April 23, 2004 report of Dr. Raitz-Cowboy justified the termination
of appellant’s compensation and the Office properly terminated her compensation effective
July 11, 2004. After this proper termination by the Office, the burden of proof shifted to
appellant to establish entitlement to compensation after July 11, 2004.
13

On appeal, appellant argued that the reports of Dr. Ellis, an occupational medicine specialist, and Dr. Derring, a
pulmonologist, were too old to justify the termination of her compensation. However, the Office did not base its
termination of appellant’s compensation effective July 11, 2004 on the reports of these physicians. Appellant also
argued that the Office should have interpreted the opinion of Dr. Schaefer, an internist specializing in infectious
diseases who served as an impartial medical specialist in 1999, to show that she continued to have work-related
residuals. Dr. Schaefer indicated that a hypersensitivity pneumonitis evaluation from 1999 showed positive
antibodies to several fungi and other allergens, but he did not provide any opinion regarding whether appellant
continued to have residuals of her accepted multiple chemical sensitivities condition. At the time of the referral to
Dr. Raitz-Cowboy, there was no conflict in the medical evidence regarding whether appellant continued to have
residuals of her accepted condition.
14

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

15

Appellant claimed that Dr. Raitz-Cowboy mischaracterized Dr. Gruber, an attending emergency medicine
physician, as an herbalist who had a personal relationship with her. The Board notes that, even though it has not
been shown that Dr. Gruber was an herbalist or had a personal relationship with appellant, Dr. Raitz-Cowboy
reported that appellant provided these facts to her during the history portion of the April 2004 examination.
Dr. Raitz-Cowboy’s opinion that appellant ceased to have work-related residuals was based on the findings on
examination and diagnostic testing rather than on the nature of Dr. Gruber’s practice or his relationship with
appellant. On appeal, appellant asserted that Dr. Raitz-Cowboy did not adequately assess her “biomarkers,” but she
did not adequately explain this assertion and her opinion on medical matters would not have probative value.

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After the termination of her compensation, appellant submitted November 9, 2004 and
October 11, 2005 reports of Dr. Lieberman, an attending physician Board-certified in
occupational and environmental medicine. The Board notes that Dr. Lieberman provided an
opinion that appellant continued to have residuals of the accepted condition of multiple chemical
sensitivities after July 11, 2004. His reports create a conflict in the medical opinion with that of
Dr. Raitz-Cowboy.
In reports of November 9, 2004 and October 11, 2005, Dr. Lieberman noted that specific
testing with the individual molds identified in the environmental analyses of appellant’s
workplace provoked many of the signs and symptoms complained about by appellant. He
opined that appellant was injured on the job by chronic exposure to dampness and mold and
stated that the sequelae of her injury were still present as manifested by multiple chemical
sensitivities. Dr. Lieberman indicated that there was a clear temporal relationship between the
exposures and the onset of appellant’s injury, there was a strong association with 12 other
workers being affected and there were no other alternative explanations to explain the injuries to
13 out of 14 people working in the damp, moldy basement. He posited that the allergens that
appellant was exposed to in the workplace were adequate to cause her to suffer from the accepted
multiple chemical sensitivities condition after July 11, 2004.16 Dr. Lieberman asserted that
Dr. Raitz-Cowboy failed to adequately address these matters.
The Board finds there is a conflict in the medical opinion between Dr. Raitz-Cowboy and
Dr. Lieberman. The case shall be remanded for referral to an impartial medical specialist for an
examination and opinion regarding whether appellant continued to have residuals of the accepted
multiple chemical sensitivities condition after July 11, 2004. After such development as the
Office deems necessary, it shall issue an appropriate decision on appellant’s claim.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation effective July 11, 2004 on the grounds that she had no residuals of her accepted
employment injury after that date. After this proper termination, a conflict in the medical
opinion was created regarding whether appellant had work-related residuals after July 11, 2004
and the case is remanded to the Office for further development.

16

Dr. Lieberman stated that the level of mold found varied between 160-5560 spores per cubic meters of air, a
level sufficient to cause long-term health problems.

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ORDER
IT IS HEREBY ORDERED THAT the August 12, 2009 decision of Office of Workers’
Compensation Programs is affirmed, as modified, to find that the Office met its burden to
terminate appellant’s compensation effective July 11, 2004. There is a conflict in the medical
evidence regarding continuing work-related residuals after July 11, 2004. The case is remanded
to the Office for further proceedings consistent with this decision of the Board.
Issued: March 3, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 17-0698
Issued: July 14, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On February 6, 2017 appellant filed a timely appeal from an October 5, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed between the last merit decision dated March 5, 2015 to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction to review the merits of this case.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of her claim as it was untimely filed and failed to demonstrate clear evidence of error.

1
2

5 U.S.C. § 8101 et seq.

An appeal of OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of the
decision. 20 C.F.R. § 501.3(e).

FACTUAL HISTORY
On September 12, 2014 appellant, then a 62-year-old rural carrier associate, filed a
traumatic injury claim (Form CA-1) alleging that on August 19, 2014 she sustained a right
shoulder injury when she was lifting a large seat for shipping. She first received medical care on
the date of injury. Appellant did not stop work.
In September 23 and October 28, 2014 progress notes, Bonnie Eck, a certified nurse
practitioner (CNP), reported that appellant injured her right shoulder on August 19, 2014 when
she was lifting a package to slide into her car and heard a pop in her shoulder. She diagnosed
right shoulder pain and recommended a magnetic resonance imaging (MRI) scan.
On November 14, 2014 Dr. Jonathan Fish, a Board-certified diagnostic radiologist,
reported that a right shoulder MRI scan revealed rotator cuff tendinosis with no rotator cuff tear
demonstrated, subacromial/subdeltoid bursitis, and chronic arthropathy at the acromioclavicular
joint.
By letter dated February 4, 2015, OWCP notified appellant that her claim was initially
administratively handled to allow medical payments, as her claim appeared to involve a minor
injury resulting in minimal or no lost time from work. However, the merits of her claim had not
been formally considered and her claim had been reopened because the medical bills exceeded
$1,500.00. Appellant was advised that the evidence of record was insufficient to establish her
traumatic injury claim. OWCP provided her a development questionnaire and notified her of the
medical and factual evidence needed in support of her claim. Appellant was afforded 30 days to
submit the necessary evidence.
By letter dated February 16, 2015, appellant responded describing the circumstances
surrounding the August 19, 2014 employment incident and her subsequent medical treatment.
She reported that she first consulted her physician, Ms. Eck, on September 23, 2014.
By decision dated March 5, 2015, OWCP denied appellant’s claim finding that the
evidence of record was insufficient to establish that she sustained an injury because it did not
contain a medical diagnosis in connection with the accepted August 19, 2014 employment
incident. It noted that the medical evidence submitted was from Ms. Eck, a certified nurse
practitioner, who is not considered a qualified physician under FECA.
Following the March 5, 2015 decision, on April 6, 2015, appellant resubmitted the
September 23 and October 28, 2014 progress notes from Ms. Eck which were countersigned by
Dr. Esther Roth, a Doctor of Osteopathic Medicine.
On January 26, 2016 OWCP received a January 16, 2016 letter, wherein appellant
identified her OWCP file number and the March 5, 2015 OWCP decision. She reported that she
received a notice from OWCP informing her that the medical reports were signed by a nurse
practitioner and needed to be countersigned by a physician. Appellant reported that she took the
form to Sanford Bagley Clinic and informed them that it needed to be signed by a physician.
She reported that she had not heard from OWCP since the March 5, 2015 notice and wanted to
have her case resolved. Appellant identified the medical and factual documents she was

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submitting in support of her claim and also referenced inclusion of an appeal request form which
was signed as required for her workers’ compensation claim. She requested that her case be
resolved immediately. Appellant submitted an appeal request form dated January 15, 2016. The
form did not select a specific appeal.
In another appeal request form dated September 12, 2016, received by OWCP on
September 20, 2016, appellant requested reconsideration of the March 5, 2016 OWCP decision
noting that she had previously filed a reconsideration request on January 15, 2016.
An October 28, 2014 Sanford Health Certification of Health Care Provider form was
submitted and countersigned by a physician.
By decision dated October 5, 2016, OWCP denied appellant’s reconsideration request
finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of OWCP’s decision denying or terminating a benefit, a
claimant must file her application for review within one year of the date of that decision.3 The
Board has found that the imposition of the one-year limitation does not constitute an abuse of the
discretionary authority granted OWCP under section 8128(a) of FECA.4
OWCP will reopen a claimant’s case for merit review, notwithstanding the one-year
filing limitation, if the claimant’s application for review demonstrates clear evidence of error on
the part of OWCP in its most recent merit decision. To demonstrate clear evidence of error, a
claimant must submit evidence relevant to the issue decided by OWCP. The evidence must be
positive, precise, and explicit and it must manifest on its face that OWCP committed an error.5
To demonstrate clear evidence of error, the evidence submitted must not only be of
sufficient probative value to create a conflicting medical opinion or establish a clear procedural
error, but must be of sufficient probative value to shift the weight of the evidence in favor of the
claimant and raise a substantial question as to the correctness of OWCP’s decision.6
Evidence that does not raise a substantial question concerning the correctness of OWCP’s
decision is insufficient to establish clear evidence of error.7 It is not enough merely to show that
the evidence could be construed so as to produce a contrary conclusion.8 This entails a limited
review by OWCP of the evidence previously of record and whether the new evidence

3

20 C.F.R. § 10.607(a).

4

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

5

20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).

6

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

7

Jimmy L. Day, 48 ECAB 652 (1997).

8

Id.

3

demonstrates clear error on the part of OWCP.9 The Board makes an independent determination
as to whether a claimant has demonstrated clear evidence of error on the part of OWCP.10
ANALYSIS
In its October 5, 2016 decision, OWCP denied appellant’s request for reconsideration of
the March 5, 2015 decision, finding that it was untimely filed and failed to demonstrate clear
evidence of error. The Board finds, however, that OWCP improperly determined that her
request for reconsideration was untimely filed within the one-year time limitation period set forth
in 20 C.F.R. § 10.607.11
On March 5, 2015 OWCP issued a decision denying appellant’s traumatic injury claim.
Accordingly, appellant had until March 5, 2016 to make a timely request for reconsideration.12
OWCP determined that she submitted a request for reconsideration that was not received until
September 20, 2016. The Board finds, however, that appellant submitted a request for
reconsideration of the March 5, 2015 decision and submitted evidence and argument in support
of her request, within the required one-year time period.13
The record contains a January 16, 2016 letter received on January 26, 2016, from
appellant which was addressed to OWCP, identified her claim number, and noted the March 5,
2015 decision. Appellant informed OWCP that that she received the March 5, 2015 decision
which informed her that the medical reports signed by a nurse practitioner needed to be
countersigned by a physician. She discussed resubmission of the reports after being cosigned by
a physician, noted she had heard nothing from OWCP, and demanded resolution of her claim.
Appellant further noted that she was submitting additional medical and factual evidence in
support of her claim, as well as a signed appeal request form for resolution of her workers’
compensation claim. A signed January 15, 2016 appeal request form was provided which did
not identify a specific appeal requested.
Although appellant’s January 16, 2016 letter does not mention the word reconsideration,
the Board has found that there may be a request for reconsideration in situations where a letter
does not contain the word reconsideration.14 No special form is required as long as the request is
made in writing, identifies the decision and specific issue to be considered, and is accompanied

9

Id.

10

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993).

11

J.L., Docket No. 12-1181 (issued November 1, 2012).

12

OWCP’s procedures were changed effective August 29, 2011. Federal (FECA) Procedure Manual, Part 2 -Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Section 10.607 of the new regulations provide that
the date of the reconsideration request for timeliness purposes was changed from the date the request was mailed to
the date the request was received by OWCP. 20 C.F.R. § 10.607 (2011).
13

D.S., Docket No. 15-1841 (issued June 8, 2016).

14

Jack D. Johnson, 57 ECAB 593 (2006); Vicente P. Taimanglo, 45 ECAB 504 (1994).

4

by relevant and pertinent new evidence not previously considered.15 The word reconsideration
does not need to be stated in the request for it to be considered valid, but sufficient detail should
be provided to discern the decision being contested.16 In this case, appellant explicitly noted that
she wanted a review of her claim and submitted medical evidence from a physician as instructed
in the March 5, 2015 OWCP decision. She identified the date of the March 5, 2015 OWCP
decision, submitted an appeal request form, and specifically addressed the issue of whether her
claim should be accepted by resubmitting the prior medical evidence of record accompanied with
a physician’s signature. Accordingly, the Board finds that appellant’s January 16, 2016 letter,
received by OWCP on January 26, 2016, submitted with the medical reports, constituted a timely
request for reconsideration.17
Thus, appellant filed a request for reconsideration within one year of the March 5, 2015
OWCP decision. The Board finds that OWCP improperly denied her reconsideration request by
applying the legal standard for cases where reconsideration is requested after more than one year
has elapsed. OWCP should have applied the standard reserved for timely reconsideration
requests as set forth in 20 C.F.R. § 10.606(b)(3).18 Since it erroneously reviewed the evidence
submitted in support of appellant’s reconsideration request under the more stringent clear
evidence of error standard, the Board will remand the case for review of this evidence under the
proper standard of review for a timely reconsideration request.19
CONCLUSION
The Board finds that OWCP improperly found that appellant’s request for
reconsideration of OWCP’s March 5, 2015 decision was untimely filed.

15

Id.

16

See M.H., Docket No. 14-1389 (issued October 22, 2014).

17

C.M., Docket No. 11-1988 (issued June 6, 2012).

18

20 C.F.R. § 10.606(b)(3) of OWCP’s regulations provide that an application for reconsideration must be in
writing and set forth arguments and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously considered by OWCP; or
(3) constitutes relevant and pertinent new evidence not previously considered by OWCP.
19

Dewayne C. Davis, Docket No. 94-2346 (issued August 14, 1997).

5

ORDER
IT IS HEREBY ORDERED THAT the October 5, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for action consistent
with this decision.
Issued: July 14, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


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

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

Docket No. 13-774
Issued: July 17, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 13, 2013 appellant filed a timely appeal of an August 23, 2012 Office of
Workers’ Compensation Programs’ (OWCP) merit decision denying his 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 to consider the merits of the case.
ISSUE
The issue is whether appellant has met his burden of proof in establishing that he
developed a back injury due to his employment duties.
FACTUAL HISTORY
On January 17, 2012 appellant, then a 45-year-old postmaster, filed an occupational
disease claim alleging that he developed a back condition due to his federal job duties. He stated
that he first became aware of his condition on April 1, 2011 and related the condition to his
1

5 U.S.C. § 8101 et seq.

employment on that date. In his February 2, 2012 narrative statement, appellant stated that he
developed pain in his middle back, right shoulder and neck while distributing and boxing mail.
He noted that he boxed and distributed mail for 450 Postal Service mailboxes and 380 other
customers. Appellant stated that he moved a rolling container weighing 200 to 400 pounds,
sorted up to 200 pounds of catalogs and magazines and up to 250 parcels per day. He also
distributed up to 2,500 letters into mailboxes. Dr. John Tollerson, an osteopath, diagnosed upper
back pain on January 26, 2012.
In a letter dated February 14, 2012, OWCP requested additional factual and medical
information from appellant. On March 8, 2012 Dr. Camden Kneeland, an anesthesiologist, noted
appellant’s complaints of mid-back pain which began up to two years earlier while working at
the employing establishment. He diagnosed chronic pain, myofascial pain and displacement of
thoracic intervertebral disc without myelopathy. In a report dated March 18, 2012, Dr. Kneeland
diagnosed chronic pain resulting from myofascial pain. He stated, “It is quite possible that
[appellant] suffered a myofascial sprain or strain at work and that this has persisted despite
adequate time for healing. It is rare, but not medically unreasonable, to see chronic myofascial
pain resulting from a nontraumatic event. This pain may persist for years, if not indefinitely. In
my opinion, [appellant’s] current work duties can exacerbate and maintain his chronic pain
state.”
Appellant underwent an magnetic resonance imaging (MRI) scan of his thoracic spine on
March 21, 2012 which demonstrated multiple mid thoracic disc herniations at T2-3, T3-4, T4-5
and T5-6. On April 2, 2012 a physician’s assistant completed a note.
By decision dated April 13, 2012, OWCP found that appellant, a federal employee, filed
a timely claim, that the implicated duties occurred at work and that a medical condition was
diagnosed. However, it found that he had not submitted sufficient medical opinion evidence to
establish a causal relationship between his implicated employment duties and his diagnosed
medical condition.
Appellant requested a review of the written record by an OWCP hearing representative
on May 1, 2012. In a note dated April 24, 2012, Dr. Kneeland stated that appellant’s myofascial
pain resulted from and was exacerbated by his repetitive upper body lifting activities at work.
He stated that repetitive use or overuse of affected muscle could result in myofascial pain.
Dr. Kneeland concluded, “In my opinion, there is little doubt that [appellant’s] pain is related to
his work duties.”
By decision dated August 23, 2012, an OWCP hearing representative found that the
record did not contain the necessary medical opinion evidence to establish a causal relationship
between appellant’s diagnosed thoracic spine pathology and his implicated work factors and that
he therefore failed to meet his burden of proof.

2

LEGAL PRECEDENT
OWCP’s regulations define an occupational disease as “a condition produced by the work
environment over a period longer than a single workday or shift.”2 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 evidence required to establish causal
relationship is rationalized medical opinion evidence, based upon a complete factual and medical
background, showing a causal relationship between the claimed condition and identified factors.
The belief of a claimant that a condition was caused or aggravated by the employment is not
sufficient to establish causal relation.3
ANALYSIS
Appellant has provided factual evidence of the duties of his position of postmaster
including distributing mail. He submitted medical evidence of herniated thoracic discs and a
diagnosis of myofascial pain. Further, appellant submitted a statement from Dr. Kneeland
attributing appellant’s chronic myofascial pain to his employment duties. The Board, however,
finds that appellant has not submitted the necessary medical evidence to establish a causal
relationship between his diagnosed medical conditions and his employment duties to meet his
burden of proof in establishing an occupational disease claim.
The narrative medical reports consist of diagnoses of pain from Dr. Tollerson and
Dr. Kneeland. The Board has held that the mere diagnosis of “pain” does not constitute the basis
for payment of compensation.4 As these reports do not contain the diagnosis of a specific
medical condition, the reports are not sufficiently detailed to meet appellant’s burden of
establishing an occupational disease claim.
Appellant also submitted an MRI scan report including the findings of multiple herniated
disc in his thoracic spine. This report is not sufficient to meet his burden of proof as there is no
history of injury listing his employment duties and no opinion on the causal relationship between
his duties and his diagnosed condition.
Appellant also submitted a report from a physician’s assistant. However, as this note was
not signed by the physician it has no probative value in establishing his claim.5 The reports of a
2

20 C.F.R. § 10.5(q).

3

Lourdes Harris, 45 ECAB 545, 547 (1994).

4

Robert Broome, 55 ECAB 339 (2004).

5

Merton J. Sills, 39 ECAB 572 (1988).

3

physician’s assistant are entitled to no weight as a physician’s assistant is not a “physician” as
defined by section 8101(2) of FECA.6
The Board finds that appellant has not submitted the necessary medical diagnosis and
opinion evidence to meet his burden of proof. Appellant may submit new evidence or argument
with a written request for reconsideration to OWCP within one year of this merit decision,
pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that the medical evidence is not sufficiently detailed and well reasoned
to establish that appellant sustained a diagnosed back condition as a result of his employment
duties and that therefore he has failed to meet his burden of proof in establishing an occupational
disease claim.
ORDER
IT IS HEREBY ORDERED THAT the August 23, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 17, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6

J.M., 58 ECAB 303 (2007).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.K., Appellant
and
DEPARTMENT OF THE ARMY, VERMONT
NATIONAL GUARD, Colchester, VT, Employer
__________________________________________

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

Docket No. 10-577
Issued: January 24, 2011

Case Submitted on the Record

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

JURISDICTION
On December 28, 2009 appellant, through counsel, filed a timely appeal from the
November 24, 2009 merit decision of the Office of Workers’ Compensation Programs, denying
intermittent periods of disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant established intermittent periods of disability from
February 1 through March 28, 2009.
On appeal, appellant, through her attorney, contends that the decision is contrary to fact
and law.
FACTUAL HISTORY
On August 14, 2008 appellant, then a 33-year-old human resources specialist, sustained
an injury to her left knee and right foot while moving furniture. She underwent a left knee
arthroscopy on December 3, 2008. On January 5, 2009 the Office accepted appellant’s claim for

left knee contusion and sprain. On January 9, 2009 appellant was released by Dr. Michael
Barnum, her Board-certified orthopedic surgeon, to work with restrictions four hours a day.
After her return to part-time employment, the Office paid compensation for disability for the
remaining four hours a day.
Appellant continued to have medical treatment and physical therapy. In a March 6, 2009
report, Dr. Barnum indicated that he saw her on that date for follow up. Notes also indicate that
appellant had physical therapy on numerous occasions during this period, including on
February 3 and 6 and March 6, 2009.
On February 13, 2009 appellant filed claims for intermittent periods of disability between
February 1 and March 28, 2009. In addition to requesting compensation for the four hours a day
that she was unable to work, she also requested compensation for an additional two hours on
February 5, 2009 and for an additional four hours (total eight hours a day) on February 3, 6, 9, 10
and 11, 2009. Appellant stated that her knee buckled during her doctor’s visit on February 3,
2009 and that she had an appointment with her doctor and therapy on February 6, 2009. She
noted that on February 9, 10 and 11, 2009 she was awaiting work at an alternate duty location.
Appellant also requested an additional four hours (total eight hours) on February 20, 2009 stating
“inability to be mobile due to knee” and one hour on March 6, 2009 for a doctor’s appointment
and physical therapy. She requested an additional four hours for March 20, 2009 for
“reinjury/relapse.” The Office paid wage loss for about 116 hours of intermittent disability.
By decision dated May 18, 2009, the Office denied appellant’s claim for additional
compensation. For the period February 1 through 14, 2009, it noted that 40 hours were paid and
that there was no entitlement to the additional 22 hours claimed. With regard to the period
February 15 through 28, 2009, the Office noted that 36 hours were paid and that appellant had no
entitlement to the additional 4 hours. From March 15 through 28, 2009, 40 hours were paid and
that there was no entitlement to an additional 4 hours claimed. The Office stated that there was
no medical evidence to establish that she was disabled from work for the remaining hours
claimed.
On June 4, 2009 the employing establishment indicated that it had received appellant’s
request for 13.5 hours of administrative leave from February 9 and 11, 2009. The employing
establishment noted that administrative leave would be granted as she had not been compensated
by the Office. For February 6, 2009 appellant was authorized to use eight hours of leave without
pay as she had a scheduled doctor’s appointment in the morning and a physical therapy
appointment in the afternoon.
On June 2, 2009 appellant requested a telephonic hearing by an Office hearing
representative.
On June 23, 2009 the Office accepted appellant’s claim for reflex sympathetic
dystrophy (RSD).
At the hearing held on September 9, 2009, appellant’s attorney argued that her claim
should be remanded in light of the fact that it recently accepted RSD. Counsel contended that
appellant was going to be discharged from her job when she was discharged from the National

2

Guard due to RSD. He argued that it should be the burden of the employing establishment to
establish that appellant was unable to work.
By decision dated November 24, 2009, an Office hearing representative affirmed the
May 18, 2009 decision.
LEGAL PRECEDENT
The term disability, as used in the Federal Employees’ Compensation Act means
incapacity, because of an employment injury, to earn the wages that the employee was receiving
at the time of the injury.1 In other words, if an employee is unable to perform the required duties
of the job in which she was employed when injured, the employee is disabled.2 Whether a
particular injury caused an employee disability for employment is a medical issue which must be
resolved by competent medical evidence.3
For each period of disability claimed, appellant has the burden of proving by the
preponderance of the reliable, probative and substantial evidence that she is disabled for work as
a result of her employment injury.4 The Board will not require the Office to pay compensation in
the absence of medical evidence directly addressing the particular period of disability for which
compensation is sought. To do so would essentially allow employees to self-certify their
disability and entitlement to compensation.5
Generally, findings on examination are needed to justify a physician’s opinion that an
employee is disabled for work. Appellant’s burden of proving he was disabled on particular
dates requires that he furnish medical evidence from a physician who, on the basis of a complete
and accurate factual and medical history, concludes that the disabling condition is causally
related to the employment injury and supports that conclusion with medical reasoning.6 Where
no such rationale is present, the medical evidence is of diminished probative value.7
Section 8103(a) of the Act provides that an employee may be furnished necessary and
reasonable transportation and expenses incident to the securing of medical services.8 The Board
has interpreted this section to authorize payment for loss of wages incurred while obtaining

1

Patricia A. Keller, 45 ECAB 278, 286 (1993).

2

Id.

3

See Debra A. Kirk-Littleton, 41 ECAB 703 (1990).

4

Fereidoon Kharabi, 52 ECAB 291 (2001); see also David H. Goss, 32 ECAB 24 (1980).

5

Fereidoon Kharabi, id.

6

Ronald E. Eldridge, 53 ECAB 218 (2001).

7

Mary A. Ceglia, 55 ECAB 626 (2004).

8

5 U.S.C. § 8103(a).

3

medical services. Compensation for wage loss may be authorized while obtaining the medical
services and for a reasonable time spent traveling to and from the provider’s location.9
ANALYSIS
The Office accepted appellant’s claim for left knee contusion and left knee sprain. It
subsequently accepted her claim for RSD. After appellant’s left knee arthroscopy on
December 3, 2008, her physician released her to return to work as of January 9, 2009 for four
hours a day at limited duty. From February 1 through March 28, 2009 she was paid
compensation for four hours a day of wage loss. Appellant seeks additional compensation for
other hours of intermittent disability.
Appellant contends wage loss for medical treatment and/or physical therapy on
February 3, 5 and 6 and March 6, 2009. The record reflects that she had an appointment with
Dr. Barnum on March 6, 2009. In a note of that date, Dr. Barnum stated that he saw appellant
for follow-up. There is also a March 6, 2009 note directing physical therapy signed by
Dr. Barnum. The record reflects that appellant had physical therapy on several occasions as
detailed in physical therapy treatment notes on February 3 and 6 and March 6, 2009. Office
procedures provide that wage loss for compensable medical examinations or treatment may be
reimbursed.10 The Board has held that for a routine medical appointment, a maximum of four
hours of compensation is usually allowed.11 Accordingly, the Board finds that appellant is
entitled to four hours of compensation on February 3 and 6, 2009 for attending physical therapy
sessions and one hour of compensation for March 6, 2009 for her doctor’s appointment and
physical therapy session, as she requested.
Regarding appellant’s request for compensation for February 5 and 20 and March 20,
2009, there is no medical evidence to establish that she was disabled on these dates or had
medical appointments related to treatment of her accepted conditions. The Office properly
denied wage-loss compensation for these dates.
With regard to the compensation claimed for the period February 9 through 11, 2009, the
hearing representative noted that the employer provided administrative leave for this time.
Accordingly, this period of time is no longer at issue in this case.
Therefore, the Board finds that appellant has established entitlement to nine hours of
compensation for February 3 and 6 and March 6, 2009. Appellant has not established
entitlement to additional compensation for the remaining dates claimed.

9

Gayle L. Jackson, 57 ECAB 546 (2006).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Computing Compensation, Chapter 2.901.16
(December 1995).
11

William A. Archer, 55 ECAB 674 (2004).

4

CONCLUSION
The Board finds that appellant has established entitlement to four hours of compensation
on February 3 and 6, 2009 and one hour of compensation on March 6, 2009.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 24, 2009 is affirmed, as modified.
Issued: January 24, 2011
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Santa Clarita, CA, Employer
__________________________________________

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

Docket No. 12-952
Issued: January 2, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 29, 2012 appellant filed a timely appeal from a February 14, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) which denied her claim for
disability compensation. 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 her disability for
the period November 9, 2010 to March 29, 2011 was causally related to her employment injury.
FACTUAL HISTORY
On December 8, 2010 appellant, then a 43-year-old distribution clerk, filed an
occupational disease claim (Form CA-2) alleging a left shoulder condition due to factors of her

1

5 U.S.C. § 8101 et seq.

federal employment. OWCP accepted the claim for left bicipital tenosynovitis and other
affections of shoulder region not elsewhere classified, left.
In a March 30, 2011 report, Dr. Pierre Hendricks, a Board-certified orthopedic surgeon,
diagnosed left bicep tendinitis. He noted that appellant was off work for the period
November 17, 2010 to March 29, 2011. Dr. Hendricks released her to return to work with
restrictions on February 16, 2011 and full duty by April 20, 2011.
On June 22, 2011 Dr. Hendricks reiterated his diagnosis and opined that it was causally
related to factors of appellant’s federal employment. He advised that she was totally disabled for
the period January 27 to February 16, 2011 and partially disabled for the periods December 15,
2010 to January 10, 2011 and March 16 to April 14, 2011.
On July 12, 2010 appellant filed a claim for compensation (Form CA-7) for the period
November 9, 2010 to March 29, 2011. She submitted time analysis forms indicating that she
was off work for a total of 518.69 hours during the period claimed and that she worked 8.47
hours on November 9, 2010, 1.31 hours on December 6, 2010, and a total of 93.36 hours in
January 2011.
On August 2, 2011 OWCP requested additional medical evidence establishing disability
for work during the period November 9, 2010 to March 29, 2011 and allotted 30 days for
submission.
Subsequently, appellant submitted reports by Dr. Richard W. Kling, a Board-certified
family medicine physician, who placed her on temporary total disability from November 16
to 28, 2010.
In an August 3, 2011 report, Dr. Hendricks diagnosed left shoulder proximal biceps
tendinitis and opined that appellant was able to continue working with no restrictions.
On August 10, 2011 Dr. Hendricks stated that he began treating appellant on
November 17, 2010 and noted that her job duties included lifting trays of mail repetitively from
waist to shoulder and head levels. Appellant was placed on work restrictions of no work above
shoulder level and no lifting greater than 10 pounds from November 17 to December 17, 2010.
She reported that, when she showed the note to her supervisors, she was told that there was no
modified work available and she was sent home. Dr. Hendricks released appellant to full duty
without restrictions as of January 10, 2011. Later, appellant was retroactively placed on
temporary total disability for the period January 27 to February 16, 2011. She returned to work
with restrictions of no lifting with the left hand greater than 5 pounds for the period February 16
to April 1, 2011 and no lifting greater than 20 pounds for the period March 16 to April 20, 2011.
Dr. Hendricks released appellant to full duty with no restrictions effective April 14, 2011.
On September 21, 2011 Dr. Hendricks opined that appellant developed left shoulder
proximal biceps tendinitis due to an employment-related cumulative trauma injury resulting from
repetitive lifting with the upper extremities as part of her work as a machine operator for the
employing establishment. He found that appellant had reached maximum medical improvement
and had no permanent work restrictions.

2

By decision dated February 14, 2012, OWCP denied appellant’s claim for disability for
the period November 9, 2010 to March 29, 2011 on the grounds that the medical evidence
submitted was not sufficient to support disability due to the employment injury.
LEGAL PRECEDENT
Section 8102(a) of FECA2 sets forth the basis upon which an employee is eligible for
compensation benefits. That section provides: “The United States shall pay compensation as
specified by this subchapter for the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty....” In general the term “disability” under
FECA means “incapacity, because of an employment injury, to earn the wages the employee was
receiving at the time of injury.”3 This meaning, for brevity, is expressed as disability for work.4
For each period of disability claimed, the employee has the burden of proving that he or she was
disabled for work as a result of the accepted employment injury.5 Whether a particular injury
caused an employee to be disabled for employment and the duration of that disability are medical
issues which must be proved by the preponderance of the reliable probative and substantial
medical evidence.6
Disability is not synonymous with physical impairment, which may or may not result in
an incapacity to earn wages. An employee who has a physical impairment causally related to his
or her federal employment, but who nonetheless has the capacity to earn the wages he or she was
receiving at the time of injury, has no disability as that term is used under FECA and is not
entitled to compensation for loss of wage-earning capacity. The Board will not require OWCP to
pay compensation for disability in the absence of any medical evidence directly addressing the
particular period of disability for which compensation is claimed. To do so would essentially
allow employees to self-certify their disability and entitlement to compensation.7
ANALYSIS
The Board finds that appellant has not established that she was disabled for the period
November 9, 2010 to March 29, 2011 causally related to her employment injury. While OWCP
accepted that appellant sustained an employment injury, she bears the burden to establish
through probative medical evidence that she was disabled during the claimed time periods and
that her disability was causally related to her accepted injury.8 The Board finds that appellant
2

5 U.S.C. § 8102(a).

3

20 C.F.R. § 10.5(f). See also William H. Kong, 53 ECAB 394 (2002); Donald Johnson, 44 ECAB 540, 548
(1993); John W. Normand, 39 ECAB 1378 (1988); Gene Collins, 35 ECAB 544 (1984).
4

See Roberta L. Kaaumoana, 54 ECAB 150 (2002).

5

See William A. Archer, 55 ECAB 674 (2004).

6

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

7

Id.

8

See supra notes 6 and 7. See also V.P., Docket No. 09-337 (issued August 4, 2009).

3

submitted insufficient rationalized medical evidence explaining how the employment injury
materially worsened or aggravated her left shoulder condition and caused her to be disabled for
work for the period November 9, 2010 to March 29, 2011.
Dr. Hendricks diagnosed left shoulder proximal biceps tendinitis and opined that the
condition was causally related to an employment-related cumulative trauma injury resulting from
repetitive lifting with the upper extremities as part of appellant’s work as a machine operator for
the employing establishment. On March 30, 2011 he indicated that she was off work for the
period November 17, 2010 to March 29, 2011. Dr. Hendricks released appellant to return to
work with restrictions on February 16, 2011. On June 22, 2011 he indicated that she was totally
disabled for the period January 27 to February 16, 2011 and partially disabled for the periods
December 15, 2010 to January 10, 2011 and March 16 to April 14, 2011.
Although
Dr. Hendricks provided a firm diagnosis and opined that appellant was disabled, he failed to
provide a rationalized medical explanation as to how and why the mechanism of appellant’s
performance of her duties disabled her for work. Thus, appellant has not met her burden of proof
to establish that she was disabled for work due to the employment injury.
Dr. Kling placed appellant on temporary total disability from November 16 to 28, 2010;
but failed to offer any probative medical opinion on why she was disabled on the dates at issue
due to her accepted conditions. His reports are of diminished probative value.9
Appellant has not submitted any rationalized medical evidence establishing that she was
disabled during the period November 9, 2010 to March 29, 2011 causally related to the
employment injury. Thus, she has not met her burden of proof to establish that she is entitled to
compensation for any disability.
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 that she was
disabled for the period November 9, 2010 to March 29, 2011 causally related to her employment
injury.

9

See V.P., supra note 8.

4

ORDER
IT IS HEREBY ORDERED THAT the February 14, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 2, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


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

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)
)
)
)
)

Appearances:
Stephen V. Barszcz, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1055
Issued: December 16, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On April 8, 2015 appellant, through counsel, filed a timely appeal from an October 8,
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 more than 16 percent permanent impairment of his left
lower extremity.
FACTUAL HISTORY
On December 3, 2005 appellant, a 53-year-old custodian, sustained a traumatic injury in
the performance of duty while throwing a bag of trash into a dumpster. An imaging study
obtained three days later revealed a herniated disc eccentric and to the left at L4-5 causing
1

5 U.S.C. § 8101 et seq.

compression of the L5 nerve root. It also revealed multiple levels of degenerative disc disease.
OWCP accepted appellant’s claim for displaced lumbar intervertebral disc, left. On June 29,
2006 appellant underwent a left-sided L4-5 hemilaminectomy and discectomy. A thorough
decompression of the L5 nerve root was felt to be achieved. Appellant also underwent a leftsided L5-S1 far lateral approach to far lateral disc herniation with lateral facetectomy and
foraminotomy. Again it was felt that a thorough decompression of the L5 level had been
achieved.
Appellant later filed a schedule award claim (Form CA-7) and submitted a March 25,
2013 evaluation from Dr. Arthur F. Becan, Jr., an orthopedic surgeon. Dr. Becan noted an
antalgic gait, but made no mention of footwear modifications, orthotics, or the use of a cane or
crutch. He noted posterior midline tenderness and left-sided paravertebral tenderness extending
from L3 to S1, as well as left-sided iliolumbar ligament tenderness. Sitting root sign was
60 degrees on the left, 90 on the right. Straight leg raising in the supine position was 40 on the
left, 80 on the right. Extremes of motion caused low back and left leg pain. There was
hyperesthesia to sensation on the left. Extensor halluces longus strength was graded at 3/5 on the
left, 5/5 on the right. Quadriceps strength was graded 3/5 on the left, 5/5 on the right. Hamstring
and gastrocnemius were graded 5/5 bilaterally. Ankle jerk reflexes were absent on the left, 3+ on
the right.
After reviewing appellant’s medical records, including a number of clinical studies,
Dr. Becan diagnosed chronic post-traumatic lumbosacral strain and sprain, herniated L4-5 and
L5-S1 discs, bulging L3-4 disc, left-sided radiculopathy at L4-S1, status post lumbar
laminectomy and discectomy at L4-5 and L5-S1, postoperative complex regional pain syndrome
(CRPS), failed low back syndrome, and status post interventional pain management with
multiple sympathetic blocks to the lumbosacral spine.
Dr. Becan rated appellant’s left lower extremity impairment using Table 2 of “Rating
Spinal Nerve Extremity Impairment Using the Sixth Edition,” The Guides Newsletter (American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides)
(6th ed. 2009) (July/August 2009). For appellant’s class 1 moderate 3/5 extensor halluces longus
strength, he found 13 percent impairment of the left lower extremity, the highest impairment
rating allowed for the L5 nerve root. Likewise, for appellant’s class 1 moderate 3/5 quadriceps
strength, he found 13 percent impairment of the left lower extremity, the highest impairment
rating allowed for the L4 nerve root. Turning to Table 16-12, page 535 of the A.M.A., Guides
(6th ed. 2009), he found a default four percent impairment of the left lower extremity due to a
mild-to-moderate peripheral sensory deficit CRPS of the sciatic nerve. Dr. Becan adjusted this
to nine percent impairment, the maximum allowed for such an impairment, due to a severe
functional history and very severe clinical studies. Combining the three basic impairments, he
noted that appellant had 31 percent total impairment of the left lower extremity.
An OWCP medical adviser reviewed the impairment evaluation and noted that
Dr. Becan’s calculations were inconsistent with those of other physicians, particularly in regard
to motor strength loss. Using The Guides Newsletter, he found a default three percent lower
extremity impairment for moderate sensory deficit of the L4 and L5 nerve roots and a default
two percent impairment for moderate sensory deficit of the S1 nerve root. The medical adviser
also found a default five percent impairment for mild motor deficit of the L5-S1 nerve root.

2

These spinal nerve root impairments totaled 13 percent. With this, the medical adviser combined
a default four percent impairment for mild-to-moderate peripheral sensory deficit (CRPS,
objectively verified) of the sciatic nerve, for a total left lower extremity impairment of 16
percent.
On June 17, 2013 OWCP issued a schedule award for 16 percent impairment of
appellant’s left lower extremity.
Appellant requested reconsideration and argued that Dr. Becan’s rating had more
probative value than that of the medical adviser, who did not physically examine appellant.
In a decision dated September 26, 2013, OWCP reviewed the merits of appellant’s case
and denied modification of the June 17, 2013 schedule award. It explained that Dr. Becan had
incorrectly applied the A.M.A., Guides, while the medical adviser correctly applied them.
Appellant requested reconsideration. He submitted a November 15, 2013 report from
Dr. Becan, who took issue with several aspects of the medical adviser’s impairment
recommendation. Appellant noted that the medical adviser avoided the use of grade modifiers
and assigned five percent impairment for mild motor deficit of the left L5-S1 nerve roots without
a physical examination to ascertain the degree of muscle weakness and without rating the nerve
roots separately. Based on his evaluation and physical examination, it remained Dr. Becan’s
opinion that appellant suffered a final left lower extremity impairment of 31 percent.
In a decision dated March 5, 2014, OWCP reviewed the merits of appellant’s case and
denied modification of the June 17, 2013 schedule award. It noted that Dr. Becan had examined
appellant 12 days after appellant injured his shoulder and sustained a concussion in a motor
vehicle accident. OWCP added that appellant had been examined in 2011 by Dr. Robert E.
Liebenberg, a Board-certified orthopedic surgeon and impartial medical examiner selected to
resolve a conflict over issues of total disability, who found that appellant had reached maximum
medical improvement. There was, at that time, evidence of some continuing radiculopathy of L5
and perhaps S1. Neurologic examination revealed that strength was intact, while strength testing
revealed some weakness of the knee flexors on the left side compared to the right. Otherwise
strength was intact. Dr. Liebenberg observed no present sign of reflex dystrophy or objective
signs of CRPS.
Appellant again requested reconsideration and submitted a June 27, 2014 report from
Dr. Becan. Dr. Becan reviewed medical records pertaining to the motor vehicle accident on
March 3, 2013 and noted that they made no mention of appellant’s low back. As there was no
evidence that appellant had injured his low back or left lower extremity in the accident,
Dr. Becan opined that neither was affected by the accident. He added that his evaluation and
physical findings would be more accurate as to appellant’s condition than an evaluation
performed by Dr. Liebenberg in 2011.
In a decision dated October 8, 2014, OWCP reviewed the merits of appellant’s case and
denied modification of the June 17, 2013 schedule award.
On appeal, appellant renews his objections and suggests that OWCP should obtain
additional medical opinion evidence in regard to the appropriate impairment rating.
3

LEGAL PRECEDENT
The schedule award provision of FECA2 and the implementing regulations3 set forth the
number of weeks of compensation payable for 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.4
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. OWCP has adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses.5 As of May 1, 2009, the sixth edition of the A.M.A.,
Guides is used to calculate schedule awards.6
Diagnosis-based impairment is the primary method of evaluating the lower limb.
Impairment is determined first by identifying the relevant diagnosis, then by selecting the class
of the impairment (no objective problem, mild problem, moderate problem, severe problem, very
severe problem approaching total function loss). This will provide a default impairment rating,
which can be adjusted slightly up or down based on grade modifiers, such as functional history
and clinical studies.7
ANALYSIS
OWCP accepted that appellant sustained a displaced lumbar intervertebral disc, left, on
December 3, 2005 when he attempted to throw a bag of trash into a dumpster. An imaging study
at that time showed a herniated disc at L4-5 compressing the L5 nerve root, for which appellant
underwent surgical decompression. The question presented is the extent of permanent
impairment the accepted medical condition has caused to appellant’s left lower extremity.
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. The A.M.A., Guides has therefore developed an
approach to rating such impairment in The Guides Newsletter (July/August 2009). OWCP

2

Id. at § 8107.

3

20 C.F.R. § 10.404.

4

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

5

Supra note 3; Ronald R. Kraynak, 53 ECAB 130 (2001).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010).
7

A.M.A., Guides 497.

4

procedures advise that impairment to the upper or lower extremities caused by a spinal injury
should be rated consistent with The Guides Newsletter.8
Dr. Becan, an orthopedic surgeon, referred to The Guides Newsletter when he evaluated
appellant’s impairment. Table 2 provides that moderate motor deficit of the L5 nerve root
equates to 13 percent impairment of the lower extremity. This is the rating Dr. Becan
determined for appellant’s moderate 3/5 strength of the extensor halluces longus, involving the
affected L5 nerve root. Grade modifiers do not matter in this instance, as 13 percent is the
maximum impairment value allowed for an L5 motor deficit.
OWCP’s medical adviser noted, however, that Dr. Becan’s findings with respect to motor
deficits were inconsistent with the findings of other doctors. When Dr. Liebenberg, an
orthopedic surgeon and impartial medical examiner, examined appellant approximately 18
months earlier, appellant’s strength was largely intact, and he was found to have achieved
maximum medical improvement.
As the A.M.A., Guides note, the examiner should consider the patient’s diagnosis, the
reliability of findings on examination, and the results of previous examinations and observations
as recorded in the medical records documenting previous treatment. More objective findings,
such as atrophy, are given greater relative weight over findings that require patient participation,
such as demonstration of active range of motion or strength and reports of tenderness.
Inconsistencies and discrepancies between what is observed, what has been previously reported,
and what is otherwise expected should be noted. Examination findings that differ significantly
from previously recorded observation after the probable date of maximum medical improvement
should be reported. These findings may be excluded from the impairment calculation.9 For
appellant’s moderate 3/5 quadriceps strength, Dr. Becan also found 13 percent impairment of the
left lower extremity, the highest impairment rating allowed for the L4 nerve root. There are two
problems with this rating. Again, Dr. Becan should have attempted to reconcile this finding with
those of Dr. Liebenberg, who found only some weakness of knee flexors on the left compared to
the right (Dr. Becan graded hamstrings 5/5 bilaterally). Moreover, it is not clear from the early
medical records or the June 29, 2006 operative report whether the December 3, 2005 work
incident injured the L4 nerve root. OWCP accepted a single displaced lumbar intervertebral
disc, left, which an imaging study three days after the incident showed to be a herniated disc
eccentric and to the left at the L4-5 level causing compression of the L5 nerve root. Appellant’s
surgery included a procedure to address a far lateral disc herniation at the L5-S1 level, which
again was compressing the L5 nerve root. It did not appear that the L4 nerve root was affected at
that time. OWCP did not accept appellant’s claim for degenerative disc disease at multiple
levels or any additional medical condition that might have subsequently arisen as a result of his
underlying degenerative condition. Dr. Becan did not attempt to establish a causal relationship
between what happened at work on December 3, 2005 and any injury to the L4 spinal nerve root.

8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1.5
(January 2010).
9

A.M.A., Guides 496; see also 24 (consistency).

5

Lastly, Dr. Becan found a default of four percent impairment of the left lower extremity
due to a mild-to-moderate peripheral sensory deficit CRPS of the sciatic nerve, which he
adjusted to nine percent impairment due to a severe functional history and very severe clinical
studies. When Dr. Liebenberg examined appellant a year and a half earlier, he observed no
objective signs of chronic regional pain syndrome. Dr. Becan did not address this finding. Also,
there is no history of an injury or trauma to the left lower extremity. It is therefore not clear why
Dr. Becan would assign nine percent impairment due to a peripheral nerve lesion. Appellant’s
accepted injury was a herniated disc compressing on the L5 spinal nerve root. Impairment
should therefore be rated consistent with The Guides Newsletter on rating spinal nerve extremity
impairment.
CRPS is a particularly challenging diagnosis to rate. CRPS II, the diagnosis previous
known as causalgia, is considered when appropriate signs, and symptoms are present in the
clinical setting of an unambiguous injury to a specific peripheral nerve.10 Again, it does not
appear that when appellant threw a bag of trash into a dumpster on December 3, 2005 that he
sustained an unambiguous injury to a specific peripheral nerve.
Since a subjective complaint of pain is the hallmark of this diagnosis, and since all of the
associated physical signs and radiological findings can be the result of disuse, an extensive
differential diagnosis process is necessary. Differential diagnoses which must be ruled out
include disuse, atrophy, unrecognized general medical problems, somatoform disorders,
factitious disorder, and malingering. A diagnosis of CRPS may be excluded in the presence of
any of these conditions or any other conditions which could account for the presentation. This
exclusion is necessary due to the general lack of scientific validity for the concept of CRPS, and
due to the reported extreme rarity of CRPS. The A.M.A., Guides notes that any of the
differential diagnoses would be far more probable.11
The A.M.A., Guides also notes that scientific findings actually indicated that whenever
this diagnosis is made, it is probably incorrect. The A.M.A., Guides therefore provides that
CRPS may be rated only when certain criteria are met: (1) the diagnosis is confirmed by
objective parameters in Table 16-13; (2) the diagnosis has been present for at least one year, to
assure the accuracy of the diagnosis and to permit adequate time to achieve maximum medical
improvement; (3) the diagnosis has been verified by more than one physician; and (4) a
comprehensive differential diagnostic process, which may include psychological evaluation and
psychological testing, has clearly ruled out all other differential diagnoses.12
Dr. Becan did not follow these protocols when he combined impairment for CRPS with
L5 and L4 spinal nerve root impairments. The Board notes that such a combination is not
allowed. The rating for CRPS is a “stand alone” approach. If impairment is assigned for CRPS,
no additional impairment is assigned for pain from the chapter on pain-related impairment, nor is

10

Id. at 538.

11

Id. at 538-39.

12

Id. at 539.

6

CRPS impairment combined with any other approach for the same extremity from the chapter on
the lower extremities.13
For these reasons, the Board finds that Dr. Becan’s conclusion that appellant has 31
percent total impairment of the left lower extremity, due to a combination of L5 and L4 spinal
nerve root impairment and CRPS impairment, is of little probative value. Dr. Becan’s
impairment rating does not appear to be based on the accepted medical condition or on a proper
application of the A.M.A., Guides.
The rating given by the medical adviser is also not probative. He assigned ratings for the
L4, L5, and S1 spinal nerve roots without explaining how the accepted medical condition
warranted such consideration. The medical adviser did not explain how he graded the sensory
deficits of the L4 and L5 spinal nerve roots as mild or the S1 spinal nerve root as moderate. He
did not explain how he judged the motor deficit of the “L5-S1” spinal nerve root to be mild or
why he gave only one rating for two spinal nerve roots. The medical adviser did not apply grade
modifiers for functional history or clinical studies, as required by The Guides Newsletter, and
like Dr. Becan, he improperly combined the spinal nerve root impairments with CRPS
impairment.
As the medical evidence developed in this case is insufficient to determine appellant’s
permanent impairment for the accepted medical condition, the Board will remand the case for
further development. OWCP shall refer him, together with a statement of accepted facts and his
medical record, to a second-opinion physician for a proper evaluation of impairment. After such
further development as may become necessary, OWCP shall issue an appropriate de novo
decision on appellant’s schedule award claim.
CONCLUSION
The Board finds that this case is not in posture for decision. Further, development of the
medical evidence is warranted.

13

Id. at 540.

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ORDER
IT IS HEREBY ORDERED THAT the October 8, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action.
Issued: December 16, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

8