United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.J., Appellant
and
U.S. POSTAL SERVICE, MORGAN GENERAL
MAIL FACILITY, New York, NY, Employer
__________________________________________

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

Docket No. 13-5
Issued: June 3, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 1, 2012 appellant filed a timely appeal from a September 13, 2012 decision
of the Office of Workers’ Compensation Programs (OWCP) regarding a schedule award.
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 sustained a ratable impairment of the left leg due to an
accepted lumbar injury.
On appeal, appellant asserts that the opinion of Dr. Sounder Eswar, a Board-certified
orthopedic surgeon and an impartial medical examiner, should not be accorded the weight of the
medical evidence as he misstated the facts of her case and did not address the claimed lumbar
nerve root impairment of her left leg.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on or before December 21, 2000 appellant, then a 34-year-old mail
handler, sustained low back derangement and a lumbosacral sprain due to repetitive heavy
lifting, pulling, pushing and reaching at work. She was initially treated by Dr. Sheldon
Manspeizar, a Board-certified orthopedic surgeon, who submitted reports from December 2000
to October 2001 diagnosing lumbar disc space narrowing, an L4-5 disc bulge with hypertrophic
changes at the L4-5 neural foramen and chronic lumbar derangement.2 Appellant was then seen
by Dr. Cheri Durden, an internist, who followed her for lumbar pain from January 2003 to
January 2005.
Dr. Durden opined that the accepted condition caused chronic lumbar
radiculopathy with neural foraminal encroachment. Appellant then sought treatment from
Dr. Olivera Pekovic, an attending physiatrist, who prescribed medication and a transcutaneous
electrical stimulation unit in reports dated through 2006. Dr. Sam Jin Yee, an attending Boardcertified physiatrist, diagnosed an L5-S1 spondylolisthesis on September 15, 2007, and opined
that the accepted conditions caused permanent residuals.
On October 14, 2008 appellant claimed a schedule award. She submitted the
November 8 and December 6, 2008 reports of Dr. Yee, who diagnosed L4-5 and L5-S1
radiculopathy with left sacroiliac joint and piriformis syndrome. Dr. Yee opined that appellant
had reached maximum medical improvement.
OWCP requested that Dr. Yee perform a lower extremity impairment rating utilizing the
fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (hereinafter, the A.M.A., Guides). In a February 14, 2009 report, Dr. Yee found that
appellant had 4+/5 muscle weakness in the left leg due to nerve root impingement, with ankle,
plantar flexion and great toe extension weakness. He submitted a March 19, 2009 MRI scan
report showing bilateral foraminal recess stenosis at L5-S1 with grade 1 spondylolisthesis,
degenerative facet arthritis from L4 to S1 and chronic reactive marrow edema. A March 19,
2009 electromyography and nerve conduction velocity studies showed chronic denervation in the
left L4 and L5 nerve roots. On April 2, 2009 OWCP’s medical adviser reviewed Dr. Yee’s
reports and recommended a second opinion.
On May 27, 2009 OWCP requested that Dr. Yee submit a lower extremity impairment
rating using the sixth edition of the A.M.A., Guides in effect as of May 1, 2009. Dr. Yee
responded on June 5, 2009 that he did not have the sixth edition of the A.M.A., Guides and so
could not perform the requested rating.
On June 24, 2009 OWCP obtained a second opinion from Dr. Mark M. Kramer, a Boardcertified orthopedic surgeon, who reviewed the medical record and statement of accepted facts.
On examination, Dr. Kramer found no objective signs of nerve root impingement. He
determined that appellant did not have any lower extremity impairment related to the accepted
lumbar conditions. In a February 2, 2010 supplemental report, Dr. Kramer stated that, under

2

An October 23, 2002 magnetic resonance imaging (MRI) scan showed an L5-S1 disc bulge impinging on the
descending nerve roots and left proximal neural foramen.

2

Table 16-12 of the A.M.A., Guides,3 she had a class 0 impairment of the sciatic nerve, with no
sensory or motor deficit.
Appellant submitted a February 8, 2010 impairment rating by Dr. John W. Ellis, a Boardcertified family practitioner, who provided a history of injury and treatment and reviewed the
medical records. Dr. Ellis noted that her pain disability questionnaire score was 92 and her
American Association of Orthopedic Surgeons questionnaire scores were 22 for the right leg and
23 for the left leg. On examination, he observed an antalgic gait due to left leg weakness and
absent left knee and ankle reflexes. Dr. Ellis diagnosed left L5-S1 spinal nerve root
impingement causing left leg weakness and left knee derangement, correlating to the MRI scan
reports of record. Referring to Table 16-12, he opined that appellant had 13 percent impairment
of the left lower extremity due to left L5 nerve root impingement and an additional 13 percent
impairment for S1 nerve root impingement. Dr. Ellis combined the two impairments to total 24
percent impairment of the left leg, with additional impairments for a knee condition acquired
after she retired from federal employment in November 2009. In an October 26, 2010
supplemental report, he clarified that appellant had only 23 percent impairment of the left leg due
to left L5 and S1 nerve root impingement according to Table 16-12,4 without any impairment of
the left knee.
OWCP found a conflict of medical opinion between Dr. Kramer, for OWCP and
Dr. Ellis, for appellant. It selected Dr. Eswar as impartial medical examiner. OWCP provided a
statement of accepted facts and a copy of the medical record. Dr. Eswar submitted a June 6,
2011 report reviewing the medical record and statement of accepted facts. On examination, he
noted no paraspinal lumbar spasm, a normal range of lumbar motion, negative straight-leg
raising and normal lower extremity reflexes bilaterally. Dr. Eswar stated that appellant had no
impairment related to the lumbar spine. In an October 5, 2011 supplemental report requested by
OWCP, he stated that she had no muscular atrophy of the lower extremities and walked
normally. Dr. Eswar opined that appellant had no lumbar or left leg impairment. On January 21,
2012 OWCP’s medical adviser reviewed Dr. Eswar’s reports and concurred that appellant had no
ratable impairment of the lower extremities.
By decision dated February 8, 2012, OWCP denied appellant’s schedule award claim,
based on Dr. Eswar’s opinion as impartial medical examiner that she had no objective
abnormalities of the spine or lower extremities.
In a June 14, 2012 letter, appellant requested reconsideration. She contended that
Dr. Ellis’ reports were detailed, well rationalized and based on the proper application of the
A.M.A., Guides, whereas Dr. Eswar’s report did not address whether she had spinal nerve root
impairment affecting the lower extremities. Appellant submitted duplicate copies of Dr. Ellis’
reports.

3

Table 16-12, page 535 of the sixth edition of the A.M.A., Guides is entitled “Peripheral Nerve Impairment -Lower Extremity Impairments.”
4

An October 6, 2010 MRI scan demonstrated an L5-S1 disc herniation with bilateral L5 nerve root compression,
and a T12-S1 disc herniation.

3

By decision dated September 13, 2012, OWCP denied modification, finding that
Dr. Eswar’s report was sufficient to represent the weight of the medical evidence.
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.7
No schedule award is payable for a member, function or organ of the body not specified
in FECA or in the regulations.8 Because neither FECA nor the regulations provide for the
payment of a schedule award for the permanent loss of use of the back,9 no claimant is entitled to
such an award.10 However, in 1966, amendments to FECA modified the schedule award
provision to provide for an award for permanent impairment to a member of the body covered by
the schedule regardless of whether the cause of the impairment originated in a scheduled or
nonscheduled member. As the schedule award provision of FECA includes the extremities, a
claimant may be entitled to a schedule award for permanent impairment to an extremity even
though the cause of the impairment originated in the spine.11
Section 8123(a) of FECA provides that when there is a disagreement between the
physician making the examination for the United States and the physician of the employee, a
third physician shall be appointed to make an examination to resolve the conflict.12 When there
are opposing medical reports of virtually equal weight and rationale, the case must be referred to
an impartial medical specialist, pursuant to section 8123(a), to resolve the conflict in the medical
evidence.13 In situations where there are opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id.; Jacqueline S. Harris, 54 ECAB 139 (2002).

8

Henry B. Floyd, III, 52 ECAB 220 (2001).

9

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

10

Thomas Martinez, 54 ECAB 623 (2003).

11

See Thomas J. Engelhart, 50 ECAB 319 (1999).

12

5 U.S.C. § 8123(a); Robert W. Blaine, 42 ECAB 474 (1991).

13

Delphia Y. Jackson, 55 ECAB 373 (2004).

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factual background, must be given special weight.14 Where the opinion from such examiner
requires clarification or elaboration, OWCP has the responsibility to secure a supplemental
report from the examiner for the purpose of correcting the defect in the original opinion.15
ANALYSIS
OWCP accepted that appellant sustained low back derangement and a lumbosacral strain
on or before December 21, 2000. Appellant remained under treatment for lumbar disc
displacement, disc herniations and nerve root impingement through 2007. She claimed a
schedule award on October 14, 2008. As an attending physician was unable to submit an
impairment rating, OWCP obtained a second opinion report from Dr. Kramer, a Board-certified
orthopedic surgeon, who stated that appellant did not exhibit objective signs of sciatic or other
spinal nerve root impairment. Appellant then submitted February 8 and October 26, 2010 reports
from Dr. Ellis, a Board-certified family practitioner, who found 23 percent impairment of the left
leg due to impingement of the left L5 and S1 nerve roots according to Table 16-12 of the
A.M.A., Guides.
OWCP found a conflict of medical opinion between Dr. Kramer, for OWCP, and
Dr. Ellis, for appellant, regarding the nature and extent of any occupationally-related permanent
impairment. To resolve the conflict, it selected Dr. Eswar, a Board-certified orthopedic surgeon,
as impartial medical examiner. In a June 6, 2011 report, Dr. Eswar stated that based on a
thorough orthopedic examination, appellant had no lumbar impairment and bilaterally normal
lower extremity reflexes indicating that there was no lower extremity impairment attributable to
the lumbar spine. He stated in an October 5, 2011 supplemental report that she had atrophy in
the left leg and no left knee impairment. The Board finds that Dr. Eswar’s opinion is of
sufficient weight to resolve the conflict of medical opinion.
Dr. Eswar was appointed to resolve a conflict of opinion as to whether appellant had any
impairment of the left lower extremity due to accepted lumbar derangement and a lumbar sprain.
He reviewed the medical record and statement of accepted facts, and provided detailed clinical
findings based on a thorough examination. Dr. Eswar found no neurologic or orthopedic
impairment of the left leg. OWCP’s medical adviser reviewed Dr. Eswar’s findings and
concurred that there was no basis on which to find work-related impairment of the legs. The
Board finds that OWCP properly accorded Dr. Eswar’s opinion the weight of the medical
evidence.16 OWCP’s September 13, 2012 decision denying appellant’s schedule award claim is
therefore proper under the law and facts of the case.
On appeal, appellant asserts that Dr. Eswar’s opinion should not be accorded the weight
of the medical evidence as he misstated the facts of her case and did not address lumbar nerve
root impairment. As stated, Dr. Eswar’s opinion is based on the statement of accepted facts and
is of sufficient quality to resolve the conflict of opinion between Dr. Kramer and Dr. Ellis. He
14

Anna M. Delaney, 53 ECAB 384 (2002).

15

Margaret M. Gilmore, 47 ECAB 718 (1996).

16

Supra note 15.

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did not support appellant’s contention that the accepted lumbar injury caused impairment to
either leg.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that she sustained a ratable impairment
of the left lower extremity due to an accepted lumbar injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 13, 2012 is affirmed.
Issued: June 3, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
NORTH TEXAS HEALTH CARE SYSTEM,
Dallas, TX, Employer
__________________________________________

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

Docket No. 08-2273
Issued: June 5, 2009

Case Submitted on the Record

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

JURISDICTION
On August 18, 2008 appellant, through his attorney, filed a timely appeal of the Office of
Workers’ Compensation Programs’ merit decisions dated December 31, 2007 and July 24, 2008
denying his claim for an employment-related emotional condition. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof in establishing that he
developed an emotional condition due to factors of his federal employment; and (2) whether
appellant has met his burden of proof in establishing that he developed an emotional condition
due to his accepted employment injury of right carpal tunnel syndrome.
FACTUAL HISTORY
On December 18, 2006 appellant, then a 25-year-old medical support assistant, alleged
that he developed major depression due to his federal employment. He first realized that his

condition was due to his employment on June 1, 2005. Appellant stated that he did all the work
he could do and that on April 1, 2005 he developed a problem with his neck, shoulders and arms
as well as stress. On the reverse of the form, the employing establishment noted that appellant
was terminated on December 21, 2005.
Appellant also attributed his emotional condition to actions of his supervisors, noting that
he was threatened with absence without leave; his supervisor failed to keep his personal
information confidential; and she lied about an agreement to fax medical records. He stated that
he was required to perform extra work duties which increased his hand pain.
In a letter dated March 1, 2007, the Office requested additional factual and medical
evidence in support of appellant’s emotional condition claim. Appellant submitted a note dated
January 29, 2007 from Dr. Moses Ramos, a Board-certified psychiatrist, who stated that
appellant’s on-the-job injury resulted in termination and depression. Dr. Ramos noted that
appellant continued to experience paranoia and depression. Appellant completed an additional
factual statement and alleged that his supervisor, Shirley Boles, stated that she did not believe
that he was injured. He alleged that she discussed his injury with other employees, that she
repeatedly called him at home “stalking” him and that she subjected him to discrimination based
on his disability.
By decision dated December 31, 2007, the Office denied appellant’s claim for an
emotional condition finding that he failed to substantiate a compensable factor of employment as
causing or contributing to his diagnosed depression.
Appellant, through his attorney, requested an oral hearing on January 18, 2008. He
testified at the oral hearing on April 15, 2008 and attributed his major depression to his accepted
claim for carpal tunnel syndrome, his additional physical conditions of left carpal tunnel,
bilateral cubital tunnel syndrome and radiculopathy C3-7 as well as to actions of his supervisors
regarding the processing of his carpal tunnel claim. Appellant stated that he was instructed not
to file a claim for workers compensation and that his immediate supervisor stated that she
believed that appellant should be able to work.
By decision dated July 24, 2008, the hearing representative affirmed the Office’s
December 31, 2007 decision finding that appellant had not submitted sufficient medical opinion
evidence to establish that he developed depression due to his accepted carpal tunnel syndrome or
to substantiate any other compensable factor of employment as causing or contributing to his
diagnosed condition.
LEGAL PRECEDENT -- ISSUE 1
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related an employee’s employment. There are situations where an injury or an illness
has some connection with the employment but nevertheless does not come within the concept or
coverage of worker’s compensation. Where the disability results from an employee’s emotional
reaction to his regular of specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation

2

Act.1 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or his frustration from not being permitted to work in a
particular environment or to hold a particular position.2
Generally, actions of the employing establishment in administrative or personnel matters
unrelated to the employee’s regular or specially assigned work duties, do not fall within the
coverage of the Act.3 While an administrative or personnel matter will be considered an
employment factor where the evidence discloses error or abuse on the part of the employing
establishment, mere perceptions are insufficient. In determining whether the employing
establishment erred or acted abusively, the Board determines whether the employing
establishment acted reasonably.4 Although the handling of leave requests and attendance matters
and compensation claims are generally related to employment, they are administrative functions
of the employer and not duties of the employee.5
Verbal altercations and difficult relationships with supervisors, when sufficiently detailed
by the claimant and supported by the record, may constitute factors of employment. Although
the Board has recognized the compensability of verbal abuse in certain circumstances this does
not imply that every statement uttered in the workplace will give rise to coverage under the Act.6
For harassment or discrimination to give rise to a compensable disability, there must be
evidence which establishes that the acts alleged or implicated by the employee did, in fact, occur.
Mere perceptions of harassment or discrimination are not compensable under the Act.7 A
claimant must substantiate allegations of harassment or discrimination with probative and
reliable evidence. Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred.8
ANALYSIS -- ISSUE 1
Appellant alleged his supervisor, Mrs. Boles, stated that she did not believe that he was
injured and that she believed he could work. He also stated that she discussed his injury with
other employees, that she repeatedly called him at home “stalking” him and that she subjected
him to discrimination based on his disability. Appellant further stated that Mrs. Boles threatened

1

5 U.S.C. §§ 8101-8193.

2

See Thomas D. McEuen, 41 ECAB 387, 390-91 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler,
28 ECAB 125, 129 (1976).
3

James E. Norris, 52 ECAB 93, 100 (2000).

4

Bonnie Goodman, 50 ECAB 139, 143-44 (1998).

5

David C. Lindsey, Jr., 56 ECAB 263, 270 (2005); James P. Guinan, 51 ECAB 604, 607 (2000).

6

Marguerite J. Toland, 52 ECAB 294 (2001).

7

Reco Roncoglione, 52 ECAB 454, 456 (2001).

8

Penelope C. Owens, 54 ECAB 684, 686 (2003).

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to find him absent without leave, and that she lied about an agreement to fax medical records.
He stated that he was instructed not to file a claim for workers’ compensation.
Appellant attributed his emotional condition to a difficult relationship with his supervisor
alleging that she did not believe him to be totally disabled, that she telephoned him repeatedly at
home, that she improperly discussed his injury with coworkers and that she lied. He has not
submitted any evidence corroborating these allegations and has not established that Mrs. Boles
made any inappropriate statements or actions. Therefore appellant has not established a
compensable factor of employment in this regard.
In his factual statements, appellant attributed his emotional condition to difficulties
processing his occupational disease claim for right carpal tunnel syndrome. Although he has
alleged that he was instructed by a supervisor not to file a claim and that Mrs. Boles hindered the
development of his claim, appellant has not submitted any evidence substantiating his claim.
There is no evidence in the record supporting his allegations of error or abuse in the
administrative function of claim development.
Appellant alleged that Mrs. Boles discriminated against him due to his disability. As
noted, he must establish that discrimination occurred through reliable and probative evidence.
Appellant has submitted no evidence of discrimination such as witness statements to support this
allegation. His perceptions are not sufficient to substantiate this compensable factor of
employment.
For the foregoing reasons, appellant has not established any compensable employment
factors under the Act and, therefore, has not met his burden of proof in establishing that he
sustained an emotional condition in the performance of duty.9
LEGAL PRECEDENT -- ISSUE 2
It is an accepted principle of workers’ compensation law that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause which is attributable to the employee’s own intentional conduct.10
In discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, then a subsequent injury, whether an aggravation of the original
injury or a new and distinct injury, is compensable if it is the direct and natural result of a
compensable primary injury.11
A claimant bears the burden of proof to establish his claim for a consequential injury. As
part of this burden, a claimant must present rationalized medical opinion evidence, based on a

9

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record. See Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).
10

Albert F. Ranieri, 55 ECAB 598, 602 (2004); A. Larson, The Law of Workers’ Compensation § 10.01 (2000).

11

Charles W. Downey, 54 ECAB 421, 422-423 (2003).

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complete factual and medical background, showing causal relationship.12 Causal relationship is
a medical question that can generally be resolved only by rationalized medical opinion
evidence.13 Rationalized medical evidence, is evidence which relates a work incident, work
injury or factors of employment to a claimant’s condition, with stated reasons of a physician.14
The opinion of the physician must be one of reasonable medical certainty and must be supported
by medical rationale explaining the nature of the relationship of the diagnosed condition and the
specific employment factors or employment injury.15
ANALYSIS -- ISSUE 2
Appellant attributed his emotional condition in part to his accepted right carpal tunnel
syndrome. In order to establish that his accepted employment injury caused or contributed to his
diagnosed emotional condition, he must submit medical opinion evidence explaining the causal
relationship between his carpal tunnel syndrome and his depression. The record contains a
report dated January 29, 2007 from Dr. Ramos, a Board-certified psychiatrist, opining that
appellant’s “on-the-job injury” resulted in depression. This report is not sufficient to meet
appellant’s burden of proof as Dr. Ramos did not provide a detailed history of injury describing
appellant’s accepted condition and did not provide medical reasoning explaining how and why
carpal tunnel syndrome caused or contributed to appellant’s depression. As appellant has not
submitted a detailed and well-rationalized medical report in support of his claim.
CONCLUSION
The Board finds that appellant has not substantiated a compensable factor of employment
as causing or contributing to his emotional condition. The Board further finds that he has not
submitted sufficient rationalized medical opinion evidence to establish that he developed an
emotional condition as a consequence of his accepted right carpal tunnel syndrome.

12

Id.

13

Steven S. Saleh, 55 ECAB 169, 172 (2003).

14

Charles W. Downey, supra note 11.

15

Id.

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ORDER
IT IS HEREBY ORDERED THAT the July 24, 2008 decision of the Office of
Workers’ Compensation Programs’ hearing representative and the December 31, 2007 Office
decision are affirmed.
Issued: June 5, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
HUNTINGTON MEDICAL CENTER,
Huntington, WV, Employer
__________________________________________

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

Docket No. 14-1643
Issued: April 9, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 21, 2014 appellant filed a timely appeal of a May 1, 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 the case.
ISSUE
The issue is whether appellant established that she was entitled to disability compensation
for intermittent hours from July 5 to December 18, 2012 when she attended aquatic therapy.
FACTUAL HISTORY
On June 12, 2005 appellant, then a 47-year-old nurse, tripped on a floor mounted door
stop and twisted her knee while in the performance of duty. OWCP accepted her claim for a left
knee medial meniscus tear and medial collateral ligament sprain. Appellant underwent
1

5 U.S.C. §§ 8101-8193.

arthroscopic surgery on October 19, 2005. She returned to light-duty work and received
intermittent wage-loss compensation for periods that she did not work.
Dr. Allen Young, a Board-certified orthopedist, treated appellant beginning July 8, 2005.
He noted the work injury and diagnosed sprain of the knee and leg, dislocation of the patella, and
left knee medial meniscus tear. A left knee magnetic resonance imaging (MRI) scan revealed
grade 2 medial collateral ligament sprain and possible small peripheral tear of the medial
meniscus, and low grade chondromalacia patella. On October 19, 2005 Dr. Charles E.
Giangarra, a Board-certified orthopedist, performed a partial medial meniscectomy and
chondroplasty of the left knee. He diagnosed torn medial meniscus of the left knee and
degenerative joint disease of the left knee.
On September 19, 2005 Dr. Giangarra requested authorization for aquatic therapy from
September 26 to October 26, 2005 and February 10 to March 25, 2006, twice a week. OWCP
authorized the treatment. In requests dated March 28 and October 29, 2008 and September 2,
2009, Dr. Young requested aquatic therapy twice a week from January 8, 2008 to April 29, 2009.
On January 28, 2010 OWCP authorized 21 units of aquatic therapy from January 8 to
March 27, 2008.
Appellant submitted a (Form CA-7), claim for compensation, for leave without pay for
the time that she attended water therapy for the period April 3, 2009 to January 21, 2010 and
January 26 to October 21, 2010. These claims were partially paid.2
Appellant submitted reports from Dr. Young from June 8, 2010 to February 14, 2011,
who diagnosed sprain of other sites of the left knee and leg, and tear of the left knee medial
cartilage or meniscus. Dr. Young noted that she was overweight with mild-to-moderate
tenderness of the left knee medially. He continued appellant’s aqua therapy as it helped her stay
active and continued modified work duties. Dr. Young continued submitting orders for aquatic
therapy twice a week.
Appellant submitted CA-7 forms claiming compensation for intermittent leave without
pay for the periods June 30, 2011 to June 30, 2012 and October 18, 2011 to April 12, 2012.
These claims were partially paid.3
Appellant submitted reports from Dr. Young dated August 14 and November 26, 2012,
who noted findings on physical examination of obesity, and a limp with mild-to-moderate
2

In a March 4, 2011 decision, OWCP granted appellant’s claim for wage-loss compensation incidental to medical
treatment for 2.25 hours on February 9, 2010, 2.5 hours on June 8, 2010, and 2.5 hours on October 4, 2010. It
denied compensation multiple other dates. On September 7, 2011 an OWCP hearing representative affirmed the
March 4, 2011 decision with regard to denying compensation for the dates of February 23 and June 10, 2010, and
reversed the decision and granted compensation for other claimed dates from January 22 to October 21, 2010.
3

On December 4, 2012 OWCP denied appellant’s claim for intermittent wage-loss compensation from June 30,
2011 to June 30, 2012. It noted that it had previously granted compensation for 2.5 hours on September 14, 2011.
On April 2, 2013 an OWCP hearing representative affirmed the December 4, 2012 decision with regard to August 9,
October 11 and 25, November 17, and December 14, 15 and 22, 2011, January 5, May 10 and 17, 2012. The
hearing representative set aside the decision with regard to the other dates and instructed OWCP to request that
Dr. Young submit a report that addressed appellant’s need for aqua therapy for the period June 30, 2011 to
June 30, 2012.

2

tenderness medially. She reported stopping aqua therapy and having increased pain in both
knees. Appellant noted that she changed jobs at the employing establishment and was on her
feet. Dr. Young diagnosed left knee and leg sprain and tear of the medial meniscus of the left
knee. He ordered that appellant return to aqua therapy twice a week for six months. Appellant
submitted orders from Dr. Young dated December 14, 2011 and April 27, 2012 requesting
authorization for aquatic therapy twice a week for six months.
On April 18, 2013 appellant submitted a CA-7 form, claiming 88.5 hours of
compensation for the period July 5 to December 18, 2012. She requested compensation for leave
without pay for two hours per day on July 5, August 14, 28 and 30, October 16, November 27
and December 11, 2012; 2.5 hours for November 26, 2012; and three hours for August 7, 9, 16
and 23, September 4, 6, 11, 20 and 27, October 2, 9, 11, 18, 23, 25 and 30, November 1, 6, 15
and 20, and December 4, 6, 13 and 18, 2012.
In an April 19, 2013 letter, OWCP requested that Dr. Young provide medical rationale as
to why appellant continued to need aqua therapy in relation to her work injury. It requested that
he address whether aqua treatment was medically necessary for her work injury of June 12, 2005
and, if so, asked that he provide rational supporting that opinion with objective findings.
In a letter dated April 23, 2013, OWCP requested that appellant submit medical evidence
establishing partial disability from July 5 to December 18, 2012. It authorized payment for
August 14, 2012 for two hours and November 26, 2012 for 2.5 hours.4
Appellant submitted a March 25, 2013 report from Dr. Young who continued to treat her
for pain and stiffness in the left knee and noted that she was doing poorly. She reported
continuing aqua therapy twice a week which kept her knee loose. Dr. Young noted findings of
obesity, a limp, and mild to moderate tenderness medially. He diagnosed left knee and leg
sprain, and a left medial meniscus tear. Dr. Young continued aqua therapy twice a week for six
months so appellant could remain active and have less pain.
In a May 31, 2013 decision, OWCP denied appellant’s claim for compensation for the
period June 30, 2011 to June 30, 2012. On August 1, 2013 an OWCP hearing representative set
aside the May 31, 2013 decision and remanded the matter for further medical development. The
hearing representative instructed OWCP to refer appellant to a second opinion physician for a
determination of the relationship between her current symptoms and the 2005 work injury, the
need for aqua therapy, the need for surgery, and work restrictions due to the 2005 work injury.
Appellant submitted June 21 and July 22, 2013 reports from Dr. Young, who noted that
appellant reported pain and stiffness in both knees. Dr. Young recommended aqua therapy twice
a week because it kept appellant more functional and active. He noted that findings were
unchanged and he restated his previous diagnoses. Dr. Young noted that, with regard to aqua
therapy, appellant’s knee was bad from the injury and she could not get around well. Weekly,
aqua therapy kept appellant’s knee from stiffening and thus allowed her to continue to function
with her knee condition at work and home. Dr. Young noted that, as the need for therapy was

4

The time allowed on August 14 and November 26, 2012 correspond with dates on which Dr. Young treated
appellant.

3

due to the work injury and this modality kept her functional and able to work, her employing
establishment should pay for the time she was off work to attend the aqua therapy.
In a decision dated August 23, 2013, OWCP denied appellant’s claim for compensation
for the period July 5 to December 18, 2012, but noted that two hours would be paid for
November 27, 2012.5 Appellant requested an oral hearing.6
OWCP referred appellant to Dr. E. Gregory Fisher, a Board-certified orthopedist, for a
second opinion. In a December 4, 2013 report, Dr. Fisher, reviewed her history and examined
her. On examination, appellant was morbidly obese and had a waddled bilateral altered gait.
Left knee examination revealed nontender healed puncture wounds, tenderness on palpation over
the medial and anterior medial side, no pain on the lateral side, and no joint effusion. The knee
was stable with negative anterior and posterior drawer signs. The Lachman’s test was negative,
and no medial or lateral instability on varus or valgus stresses. Range of motion was limited.
Dr. Fisher noted the medial collateral ligament sprain was a soft tissue injury and healed and
resolved within two months of the injury and was not clinically present on examination. He
noted that the tear of the left medial meniscus was treated appropriately by the partial medial
meniscectomy in October 2005 and that there were no clinical findings on examination of a
medial meniscus tear. Dr. Fisher opined that the accepted conditions were no longer present and
resolved. The only residuals of the June 12, 2005 work injury were the healed left knee puncture
wounds. Dr. Fisher opined that appellant was able to perform her full duties based on
examination findings and a review of the statement of accepted facts, job requirements and
obtaining a functional history. He stated that she did not have medical restrictions from the
June 12, 2005 work injury. Dr. Fisher noted that appellant reached maximum medical
improvement in early 2006 after returning to work. There were no treatment recommendations
for the work-related medial meniscus tear and medial collateral ligament sprain of the left knee
since these injuries were no longer clinically present. Dr. Fisher noted that aqua therapy was
prescribed after a meniscectomy for no more than 12 visits in a 12-week period and indicated
that appellant had aqua therapy twice a week for over seven years which was excessive and
patient dependent. He reiterated that no further treatment was necessary for the accepted
conditions as they were no longer present and any treatment for the left knee was due to
nonwork-related conditions. In a work capacity evaluation Dr. Fisher noted that appellant could
work full time subject to restrictions that were not work related.
On February 20, 2014 OWCP issued a notice of proposed termination of compensation
benefits on the grounds that Dr. Fisher’s report dated December 4, 2013 established no residuals
of the work-related employment conditions.7

5

Dr. Young treated appellant on November 27, 2012.

6

On October 31, 2013 appellant claimed intermittent wage-loss compensation from January 2 to
September 26, 2013. On November 12, 2013 OWCP authorized payment for 2.5 hours on March 25 and July 22,
2013 for medical appointments with Dr. Young. In a January 31, 2014 decision, it denied the claim for
compensation for the period January 2 to September 26, 2013. On February 10, 2014 appellant requested an oral
hearing. OWCP issued no decision with respect to the hearing request prior to the filling of the instant appeal.
7

OWCP issued no final decision with respect to this proposal prior to the filling of the instant appeal.

4

In a letter dated March 14, 2014, appellant requested reimbursement for leave without
pay for the time that she attended water therapy. She asserted that the water therapy classes and
pain medications allowed her to work. Appellant also asked that her right knee be included in
her claim as a consequential injury. She submitted reports from Dr. Young dated August 14 and
November 26, 2012 and June 21 and July 22, 2013, all previously of record. Appellant
submitted orders from Dr. Young dated August 14 and November 26, 2012, March 25, July 22
and October 10, 2013 and February 26, 2014, which prescribed aquatic therapy.
Appellant also provided reports from Dr. Young. An April 27, 2012 report from
Dr. Young noted no changes on examination and diagnosed left knee sprain and tear of the
medial meniscus. He continued aqua therapy and regular modified duty. An October 10, 2013
report from Dr. Young restated appellant’s diagnoses and related that she reported continuing
aqua therapy kept her knee loose and avoided more aggressive treatment. He continued aqua
therapy twice a week. On February 26, 2014 Dr. Young noted appellant’s continued issues with
her left knee. Appellant reported being seen by Dr. Fisher who found that her condition had
resolved and that aquatic therapy was not necessary. Dr. Young restated his diagnoses and
advised that, after her left knee surgery, arthritic inflammation set in and was persisting.
Dr. Young did not believe appellant’s weight was the issue and noted that her weight decreased
and she still had pain.
In a March 17, 2014 telephone hearing, appellant indicated that she was not currently
claiming reimbursement for aquatic therapy sessions, rather she was claiming the resulting wage
loss for attending aquatic therapy due to her accepted work-related condition.
In a decision dated May 1, 2014, the hearing representative affirmed OWCP’s decision
dated August 23, 2013.
LEGAL PRECEDENT
Section 8103(a) of FECA states that the United States shall furnish to an employee who
is injured while in the performance of duty the services, appliances, and supplies prescribed or
recommended by a qualified physician, which the Secretary of Labor considers likely to cure,
give relief, reduce the degree or the period of disability, or aid in lessening the amount of the
monthly compensation. The Board has recognized that OWCP has broad discretion in approving
services provided under section 8103, with the only limitation on OWCP’s authority being that
of reasonableness.8
With respect to claimed disability for medical treatment, section 8103 provides for
medical expenses, along with transportation and other expenses incidental to securing medical
care for injuries. However, OWCP’s obligation to pay for medical expenses and other expenses
incidental to obtaining medical care, such as loss of wages, extends only to expenses incurred for
treatment of the effects of any employment-related condition. A claimant has the burden of
proof, which includes the submission of supporting rationalized medical evidence.9

8

Joseph P. Hofmann, 57 ECAB 456 (2006); see 5 U.S.C. § 8103.

9

Carol A. Lyles, 57 ECAB 265 (2005).

5

A claimant has the burden of proving by a preponderance of the evidence that he or she is
disabled for work as a result of an accepted employment injury and submit medical evidence for
each period of disability claimed.10 Whether a particular injury causes an employee to be
disabled for employment and the duration of that disability are medical issues.11 The issue of
whether a particular injury causes disability for work must be resolved by competent medical
evidence.12 To meet this burden, a claimant must submit rationalized medical opinion evidence,
based on a complete factual and medical background, supporting a causal relationship between
the alleged disabling condition, and the accepted injury.13
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify his or her disability and
entitlement to compensation. For each period of disability claimed, the employee has the burden
of establishing that he or she was disabled for work as a result of the accepted employment
injury.14
ANALYSIS
OWCP accepted that appellant sustained employment-related medial meniscus tear of the
left knee and left medial collateral ligament sprain from a June 12, 2005 work injury. Appellant
had arthroscopic surgery on October 19, 2005. She claimed compensation for intermittent
disability and time lost from work due to attending aquatic therapy from July 5 to
December 18, 2012. OWCP did not authorize the underlying aqua therapy treatment. At her
March 17, 2014 hearing, appellant indicated that she was not claiming reimbursement for the
costs of the aquatic therapy. She has the burden to establish through probative medical evidence
that she was disabled during this period or undergoing authorized medical treatment causally
related to her accepted injury.
OWCP referred appellant to Dr. Fisher, who in a December 4, 2013 report, noted that his
examination was essentially normal with tenderness on palpation over the medial side and
anterior medial side of the left knee, and advised that appellant was morbidly obese. Dr. Fisher
opined that the accepted medial collateral ligament sprain was a soft tissue injury that resolved
within two months of the injury and was no longer clinically present. He advised that the left
knee medial meniscus tear was surgically treated by the partial medial meniscectomy in 2005
and that there were no current clinical findings of a medial meniscus tear. Based on this,
Dr. Fisher opined that the accepted conditions had resolved. He noted that the only residuals of
the June 12, 2005 work injury were the healed puncture wounds over the left knee. Dr. Fisher
opined that appellant was able to perform her full duties, did not have medical restrictions from
the June 12, 2005 work injury, and needed no further treatment for the resolved injuries. He
10

See Fereidoon Kharabi, 52 ECAB 291 (2001).

11

Id.

12

See Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

13

C.S., Docket No. 08-2218 (issued August 7, 2009).

14

Sandra D. Pruitt, 57 ECAB 126 (2005).

6

noted that aqua therapy was prescribed after a meniscectomy for no more than 12 visits in a
12-week period; however, the record revealed that appellant had aqua therapy twice a week for
over seven years which he opined was excessive. Dr. Fisher noted that any treatment or
restrictions for the left knee were due to nonwork-related conditions.
Appellant submitted reports from Dr. Young dated June 21 and July 22, 2013, who
treated her for a work-related left knee injury. Dr. Young reported continuing aqua therapy
twice a week, which kept her more functional, active, and reduced pain. He diagnosed left knee
and leg sprain and tear of the medial meniscus. Dr. Young noted that appellant sustained a bad
work-related knee injury, could not get around well, and that aqua therapy weekly helped reduce
stiffening and allowed her to continue functioning at work and home. He opined that the need
for aqua therapy was due to her work-related injury and kept her functional and able to work and
that her employing establishment should pay for the time she is off work. Dr. Young did not,
however, address specific dates for which appellant claimed compensation for the period
July 5 to December 18, 2012 but generally opined that OWCP should pay for the time she was
off to attend water therapy because it was related to her work injury. The issue of whether
appellant’s disability is related to an accepted condition is a medical question which must be
established by a physician who, on the basis of a complete and accurate factual and medical
history, concludes that the disability is causally related to employment factors and supports that
conclusion with sound medical reasoning.15 Dr. Young did not explain the medical reasons why
her disability to attend aqua therapy was attributable to her work injury and reasonably
necessary.
On February 26, 2014 Dr. Young noted appellant’s current status and her examination by
Dr. Fisher. He advised that arthritic inflammation set in after her meniscal repair, was persisting,
and that aqua therapy kept her knee loose. Dr. Young further indicated that appellant’s weight
was not an issue in her disability. He did not specifically address how the claimed work-related
disability from July 5 to December 18, 2012 was causally related to her June 12, 2005
employment injury or address why she would continue to reasonably require aquatic therapy in
view of Dr. Fisher’s opinion that the work-related conditions had resolved and that aquatic
therapy for over seven years was excessive. Therefore, this report is insufficient to meet
appellant’s burden of proof.
OWCP referred appellant to Dr. Fisher for a second opinion examination. Dr. Fisher
directly addressed the aqua therapy indicating that the current aqua therapy was excessive and
that no further treatment was necessary
Other reports from Dr. Young noted appellant’s status and recommended aqua therapy.
However, none of these reports clearly explain why she had any employment-related disability
from July 5 to December 18, 2012 due to the need for a mode of treatment, which OWCP did not
deem reasonably necessary for her condition. Therefore, these reports are insufficient to meet
her burden of proof.

15

Id.

7

CONCLUSION
The Board finds that appellant has not established her claim for compensation for
intermittent disability from July 5 to December 18, 2012 causally related to her accepted work
injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 1, 2014 is affirmed.
Issued: April 9, 2015
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.G., Appellant
and
U.S. POSTAL SERVICE, MADISON POST
OFFICE, Madison, TN, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-1827
Issued: May 15, 2020

Case Submitted on the Record

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

JURISDICTION
On August 29, 2019 appellant, through counsel, filed a timely appeal from a June 26, 2019
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.
ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted September 8, 2018 employment incident.

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.

FACTUAL HISTORY
On September 8, 2018 appellant, then a 60-year-old clerk, filed a traumatic injury claim
(Form CA-1) alleging that on that date she injured her left arm when a magazine binder wrapped
around her feet and caused her to fall while in the performance of duty. On the reverse side of the
claim form, the employing establishment indicated that she was injured in the performance of duty
and stopped work on September 8, 2018.
On September 17, 2018 Dr. Brent Frisbie, a Board-certified radiologist, indicated that an
x-ray of appellant’s left elbow revealed no acute fracture, dislocation, or boney abnormality.
A September 17, 2018 “referral order” from Dr. Clayton MacConnell, Board-certified in
family medicine, diagnosed left elbow joint pain and referred appellant to an orthopedist.
In a September 26, 2018 development letter, OWCP indicated that when appellant’s claim
was received it appeared to be a minor injury that resulted in minimal or no lost time from work
and, based on these criteria and because the employing establishment did not controvert
continuation of pay or challenge the case, payment of a limited amount of medical expenses was
administratively approved. It explained that it reopened the claim for consideration because it
received indication that she did not return to work in a full-time capacity. OWCP related that
additional evidence was required in support of appellant’s claim for benefits. It advised her of the
type of medical evidence necessary to establish her claim. OWCP afforded appellant 30 days to
submit the necessary evidence.
A September 10, 2018 medical report by Dr. MacConnell indicated that appellant
complained of pain upon moving her left elbow and shoulder and presented with her left arm in a
sling. He noted that she fell on her flexed left elbow at work, and that medical records and imaging
indicated that she sustained a left arm contusion and did not have any broken bones.
Dr. MacConnell conducted a physical examination which revealed a reduced range of motion
(ROM) and pain with movement in general and with abduction in particular in appellant’s left
shoulder. He also found posterior tenderness, pain on palpation and extension, and a reduced ROM
in her left elbow. Dr. MacConnell diagnosed an unspecified elbow injury and left shoulder pain
and recommended specific shoulder exercises and advised that appellant stay off work and
continue wearing the sling.
September 17, 2018 medical records signed by Dr. MacConnell indicated that appellant
continued to complain of left elbow pain. He conducted a physical examination which revealed
an improved ROM in her left shoulder and swelling, tenderness over the olecranon process, pain
on palpation, and a reduced ROM in her left elbow. Dr. MacConnell noted that appellant was
unable to fully extend or flex her elbow without pain and that there was evidence of a resolving
bruise in the posterior aspect of her elbow. He diagnosed left shoulder pain and advised that she
remain off work until cleared by an orthopedist.
On October 3, 2018 the employing establishment executed an authorization for
examination and/or treatment (Form CA-16) for appellant’s elbow and arm by Dr. MacConnell.
By decision dated November 1, 2018, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record was insufficient to establish a diagnosed condition in

2

connection with her September 8, 2018 accepted employment incident. It concluded, therefore,
that the requirements had not been met to establish an injury as defined by FECA.
OWCP continued to receive medical evidence. September 8, 2018 emergency room notes
signed by Dr. Heather Barnett, Board-certified in emergency medicine, indicated that appellant
presented with left forearm pain. Dr. Barnett noted pain in appellant’s left elbow with ROM, and
left wrist pain upon rotation. Appellant stated that she stumbled and fell on her left forearm and
right hand, and she noted that she had no history of trauma to her left elbow. Her physical
examination revealed left elbow and left dorsal tenderness and a full ROM of the left arm with
stiffness. Dr. Barnett diagnosed a left forearm contusion.
A September 8, 2018 x-ray of appellant’s left elbow interpreted by Dr. Stuart Caplan, a
Board-certified radiologist, revealed no acute radiographic abnormalities.
In an October 15, 2018 medical report, Dr. MacConnell indicated that appellant
complained of pain along the ulnar side of her left elbow and of the inability to straighten her
elbow. He conducted a physical examination, diagnosed an elbow injury, and indicated that she
should continue to work with restrictions.
In an October 17, 2018 report, Dr. Robert Landsberg, a Board-certified orthopedic
surgeon, indicated that appellant presented with aching pain in her left shoulder and elbow.
Appellant related that on September 8, 2018 while at work she fell on her left elbow and shoulder.
She was taken to the emergency room where it was determined that she sustained left forearm and
elbow bruising. Appellant stated that she originally found it uncomfortable to use her left upper
extremity, including overhead activities, reaching, pushing, and pulling, and though her pain had
slightly improved, she still struggled with these functions. She also stated that using her elbow
exacerbated her pain and that she could not extend it fully. Appellant noted that she had no
previous trauma to her left upper extremity. A physical examination revealed bilateral shoulder
protraction with forward head posture, left elbow extension limited by five degrees with a
semi-rigid endpoint at full extension, full flexion, supination, and pronation, soreness and
apprehension through the entire left elbow arc, and tenderness over the medial epicondyle and
olecranon fossa. Dr. Landsberg diagnosed left elbow pain, stiffness of the left elbow joint, and
medial epicondylitis of the left elbow. He opined that appellant likely had a left shoulder resolving
strain and was concerned that her inability to fully extend her elbow was due to a loose chondral
body.
A November 7, 2018 medical report by Dr. Landsberg, reviewed appellant’s history of
injury and indicated that she complained of continuing stiffness, pain, and dysfunction in her left
elbow. He conducted a physical examination and diagnosed her with left elbow pain and stiffness.
On November 12, 2018 appellant, through counsel, requested a telephonic hearing before
an OWCP hearing representative.
In a December 12, 2018 report, Dr. Landsberg reviewed appellant’s history of injury and
noted that she continued to experience discomfort at the terminal ranges of extension of her left
elbow and still was unable to fully extend her elbow. He conducted a physical examination and
diagnosed left elbow pain and stiffness.

3

A December 14, 2018 magnetic resonance imaging (MRI) scan of appellant’s left elbow
interpreted by Dr. Jeffrey Huggett, a Board-certified radiologist, revealed a chronic appearing
defect in the capitellar articular surface, likely reflecting an osteochondral abnormality. It
additionally revealed associated radiocapitellar osteoarthritis with an elbow joint effusion and
filling defects in the joint posteriorly favored to reflect loose bodies, though synovial
thickening/synovitis were also in the differential.
A January 18, 2019 medical report by Dr. Jason Haslam, Board-certified in orthopedic
surgery, reviewed appellant’s history of injury and noted that she presented with episodic left
elbow pain with certain movements, such as lifting, twisting, and pushing. He conducted a
physical examination, reviewed her left elbow MRI scan, and diagnosed left elbow post-traumatic
osteoarthritis. Dr. Haslam indicated that appellant’s chronic left elbow osteoarthritis was
aggravated by her workplace fall. He further opined that her left elbow osteoarthritis was less than
50 percent related to her work injury.
On April 12, 2019 an OWCP hearing representative conducted an oral hearing. By
decision dated June 26, 2019, the hearing representative modified the November 1, 2018 OWCP
decision, finding that the evidence of record was sufficient to establish a medical diagnosis.
However, OWCP’s hearing representative denied the claim as the evidence of record was
insufficient to establish causal relationship between the diagnosed conditions and the accepted
September 8, 2018 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,4 that an injury was sustained in the performance of duty, as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established.7 Fact of injury
consists of two components that must be considered in conjunction with one another. The first

3

Id.

4
J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
5

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

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

E.M., Docket No. 18-1599 (issued March 7, 2019); T.H., 59 ECAB 388, 393-94 (2008).

4

component is whether the employee actually experienced the employment incident that allegedly
occurred.8 The second component is whether the employment incident caused a personal injury.9
Rationalized medical opinion evidence is required to establish causal relationship. The
opinion of the physician must be based on a complete factual and medical background, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment incident.10
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted September 8, 2018 employment incident.
Medical records signed by Dr. MacConnell indicated that appellant complained of left
elbow pain. He noted that she fell on her flexed left elbow while at work. Dr. MacConnell
reviewed appellant’s previous medical records, conducted physical examinations, and diagnosed
left shoulder pain and an elbow injury. The Board has held that a medical report is of no probative
value if it does not provide a firm diagnosis of a particular medical condition.12 The Board has
also explained that pain is a symptom and not a compensable medical diagnosis.13 Likewise the
term injury does not constitute a firm diagnosis.14 Dr. MacConnell did not provide a specific
diagnosis of a medical condition of the left shoulder or the left elbow.15 His reports are therefore
insufficient to establish appellant’s claim.
Dr. Barnett’s emergency room notes indicated that appellant presented with pain in her left
forearm, left elbow, and left wrist. She noted that appellant stated that appellant stumbled and fell
on her left forearm and right hand, and that she had no history of trauma to her left elbow.
Dr. Barnett conducted a physical examination and diagnosed a left forearm contusion. While she
discussed the September 8, 2018 employment incident, she did not specifically address the cause

8

L.T., Docket No. 18-1603 (issued February 21, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

9

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

10

Dennis M. Mascarenas, 49 ECAB 215 (1997).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013); see
A.S., Docket No. 19-1955 (issued April 9, 2020).
12

See A.R., Docket No. 19-1560 (issued March 2, 2020).

13

T.G., Docket No. 19-0904 (issued November 25, 2019).

14

T.M., Docket No. 19-1283 (issued December 2, 2019).

15

See T.H., Docket No. 19-1891 (issued April 3, 2020).

5

of the diagnosed condition.16 Medical evidence that does not offer an opinion regarding the cause
of an employee’s condition is of no probative value on the issue of causal relationship.17 Thus,
these notes are insufficient to establish appellant’s claim.
Dr. Landsberg’s medical reports indicated that appellant complained of left shoulder pain
and left elbow stiffness, pain, and dysfunction. He reviewed her medical records and noted that
she fell on her left elbow and shoulder while at work. Dr. Landsberg conducted physical
examinations and diagnosed left elbow pain, left elbow stiffness, and left elbow medial
epicondylitis. He opined that appellant likely had a left shoulder resolving strain and was
concerned that her inability to fully extend her elbow was due to a loose chondral body.
Dr. Landsberg failed to address the cause of her left elbow medial epicondylitis. As stated above,
medical evidence that does not offer an opinion regarding the cause of an employee’s condition is
of no probative value on the issue of causal relationship.18
Dr. Haslam reviewed appellant’s history of injury and noted that she presented with left
elbow pain. He conducted a physical examination, reviewed her left elbow MRI scan, and
diagnosed left elbow post-traumatic osteoarthritis. Dr. Haslam indicated that appellant’s diagnosis
was a chronic problem that was aggravated by her workplace fall. He further opined that her left
elbow osteoarthritis was less than 50 percent related to her work injury. An employee is not
required to prove that occupational factors are the sole cause of appellant’s claimed condition.19
If work-related exposures caused, aggravated, or accelerated her condition, appellant is entitled to
compensation.20 While Dr. Haslam suggested that her left elbow osteoarthritis might have been
partially work related, he failed to explain how her work injury aggravated her preexisting left
elbow osteoarthritis. Without explaining physiologically how the accepted employment incident
caused or contributed to the diagnosed condition, Dr. Haslam’s report is of limited probative
value.21
OWCP also received x-rays and an MRI scan of appellant’s left elbow. The Board has
held, however, that reports of diagnostic tests standing alone lack probative value as they do not
provide an opinion on causal relationship between an employment incident and a diagnosed
condition.22

16

See R.K., Docket No. 20-0049 (issued April 10, 2020); L.B., Docket No. 18-0533 (issued August 27, 2018).

17

Id.

18

Supra note 15.

19

See S.T., Docket No. 18-1119 (issued March 6, 2019); S.S., Docket No. 08-2386 (issued June 5, 2008). See also
Willie J. Clements, 43 ECAB 244 (1991).
20

S.T., id.; see also Beth P. Chaput, 37 ECAB 158, 161 (1985).

21

See A.S., Docket No. 19-1955 (issued April 9, 2020).

22

L.F., Docket No. 19-1905 (issued April 10, 2020).

6

As appellant has not submitted rationalized medical evidence establishing causal
relationship between a medical condition and the accepted September 8, 2018 employment
incident, the Board finds that she has not met his burden of proof to establish her claim.23
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted September 8, 2018 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the June 26, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 15, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

23

The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 authorization
may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed.
The form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c); J.G., Docket No.
17-1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Des Moines, IA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Martin Ozga, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-316
Issued: October 10, 2007

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 November 15, 2006 appellant, through counsel, filed a timely appeal from a
September 12, 2006 decision of an Office of Workers’ Compensation Programs’ hearing
representative affirming the termination of his compensation. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this termination appeal.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s compensation
effective December 24, 2005 on the grounds that he no longer had any residuals or disability
causally related to his accepted temporary aggravation of a preexisting back condition; and
(2) whether appellant established that he had any continuing employment-related residuals or
disability after December 24, 2005.
FACTUAL HISTORY
On February 7, 1969 appellant, then a 22-year-old mail hander, filed a traumatic injury
claim alleging that he injured his back on January 30, 1969 when he threw a mailbag onto a mail

truck.1 He returned to his usual job on February 23, 1969. On April 7, 1969 the Office accepted
the claim for a temporary aggravation of a preexisting back condition. The Office placed
appellant on the periodic rolls for temporary total disability beginning January 5, 1973.
On July 20, 1972 appellant filed a traumatic injury claim alleging that in May 1967 he
injured his back when he twisted it trying to throw bags into a trailer as it was about to leave.2
The Office denied this claim as being untimely filed.
On December 11, 1975 the Office issued a loss of wage-earning capacity decision based
upon appellant’s ability to earn wages as a maintenance service dispatcher. By decision dated
October 29, 1977, an Office hearing representative set aside the December 11, 1975 loss of
wage-earning capacity decision on the grounds that appellant continued to be totally disabled.
On April 20, 1978 the Office issued a loss of wage-earning capacity decision and
adjusted appellant’s compensation based upon his actual earnings as a security guard.
By decision dated September 9, 1982, the Office terminated appellant’s wage-loss
compensation and his medical benefits transferred to the Office of Personnel Management. On
January 28, 1983 an Office hearing representative vacated the September 9, 1982 decision.
By decision dated July 18, 1984, the Office found the evidence insufficient to establish
that appellant had any continuing residuals or disability due to his accepted January 30, 1969
employment injury. This decision was set aside and remanded for further development on
October 18, 1984 by an Office hearing representative.
On December 18, 1986 the Office issued a notice of proposed termination of
compensation which was finalized by decision dated January 21, 1987. By decision dated July 8,
1987, an Office hearing representative set aside the January 21, 1987 decision and remanded for
further development of the evidence.
On April 14, 1998 the Office issued a notice of proposed modification of the 1978 loss of
wage-earning capacity based upon appellant’s ability to earn wages as a manager (merchandise).
By decision dated June 29, 1998, the Office modified the April 20, 1978 loss of wage-earning
capacity decision based upon appellant’s ability to earn wages in the selected position of
manager (merchandise). A hearing representative affirmed this decision on March 3, 1999.
On November 20, 2002 Dr. Cassim M. Igram, a treating Board-certified orthopedic
surgeon, noted that appellant had a spinal fusion approximately 31 years ago and that he
sustained a work injury to the lumbar spine following the fusion. He stated that appellant
required a wheelchair accessible van with a lift and a chair lift for his home due to his medical
condition. Appellant related “his symptoms have been somewhat static over the years” but that
he had difficulty getting in and out of his van and sitting down and getting up from chairs. As to

1

The Office assigned file number A10-155050.

2

The Office assigned file number A10-205458. In 1967 appellant underwent a spinal fusion of L4, L5 and S1.

2

his employment injury, he stated that he did not note any new radicular pain as it related to the
work-related incident.
In a February 14, 2003 report, Dr. Charles Denhart, a second opinion Board-certified
orthopedic surgeon, reviewed the medical reports, statement of accepted facts and provided
findings on physical examination. He diagnosed chronic low back pain, L4-5 spondylolisthesis,
diabetes mellitus, L5 vertebral body sacralization, chronic obstructive pulmonary disease, status
post lumbar fusion with possible nonfusion and possible scar formation, hypertension, obesity,
history of cirrhosis of the liver, probable right meralgia paresthetica and status post polio which
affected appellant’s right lower extremity. Dr. Denhart opined that appellant continued to have
residuals from his January 30, 1969 employment injury, which had exacerbated his preexisting
back condition. In response to the Office’s question, he concluded that the purchase of a van and
van lift would be helpful in allowing appellant to “move over longer distances.”
In an April 21, 2003 report, Dr. Douglas M. Cooper, a second opinion Board-certified
orthopedic surgeon, opined that appellant’s accepted employment injury exacerbated a
preexisting condition. However, he was unable to determine whether appellant continued to
have residuals from his employment injury. Dr. Cooper concluded that appellant was capable of
working with restrictions. In a May 28, 2003 supplemental report, he diagnosed chronic low
back pain and degenerative disc disease which were unrelated to the 1969 employment injury.
Dr. Cooper opined that “most likely the lifting and twisting aggravation that he sustained had has
(sic) ceased.” He noted usually a pulled ligament or muscle lasts from two to three months and
that since he had not physically examined appellant back then he could not provide a specific
date when the aggravation had ceased.
On February 11, 2004 the Office referred appellant to Dr. Lonnie R. Mercier, a Boardcertified orthopedic surgeon, to resolve the conflict in the medical opinion evidence between
Dr. Igram, a treating physician, who opined that appellant continued to have residuals from his
employment injury, and Dr. Cooper, an Office referral physician, who opined that appellant no
longer had any residuals due to his 1969 employment injury.
On February 26, 2004 Dr. Mercier reviewed the medical history. On physical
examination he diagnosed status post L4-S1 lumbar fusion, apparent January 30, 1969 lumbar
strain and chronic low back pain syndrome. Dr. Mercier opined that appellant’s chronic low
back pain was more likely related to a preexisting spinal problem than to his January 30, 1969
strain or sprain. He opined that the January 30, 1969 employment injury would have resolved
within two to three months. Dr. Mercier also concluded that any aggravation of a preexisting
back condition caused by the employment injury had resolved. He opined that, while appellant
was disabled due to his chronic pain, the need for a chair lift and wheelchair accessible van was
not due to his accepted January 30, 1969 employment injury.
On March 10, 2004 the Office issued a notice of proposed termination of benefits based
upon Dr. Mercier’s report, which was finalized on April 12, 2004. Appellant disagreed with the
Office decision terminating his benefits and requested an oral hearing before an Office hearing
representative.

3

In a report dated October 18, 2004, Dr. Robert C. Jones, an examining Board-certified
neurosurgeon, based upon a review of the medical opinion evidence concluded that appellant had
sustained a permanent aggravation of his preexisting condition.
By decision dated February 22, 2005, an Office hearing representative set aside the
April 12, 2004 decision terminating appellant’s compensation. He found that Dr. Mercier was
not considered an impartial medical examiner as there was no conflict in the medical opinion
evidence between Drs. Cooper and Igram. Thus, Dr. Mercier was considered a second opinion
and was not entitled to the special weight accorded to an impartial medical examiner. The
hearing representative found an unresolved conflict in the medical opinion evidence between
Dr. Mercier and Drs. Igram and Jones on the issue of whether appellant continued to have any
residuals or disability due to his accepted January 30, 1969 employment injury.
On April 7, 2005 the Office referred appellant to Dr. Charles Taylon, a Board-certified
neurosurgeon, to resolve the conflict in the medical opinion evidence. On May 9, 2005
Dr. Taylon provided a review of appellant’s injury and medical treatment. Following
examination, he concluded that the January 30, 1969 employment injury had resolved. Appellant
related that he did not lift anything heavier than a gallon of milk, “shops in a riding cart,” and
“has not hunted or fished since 1969.” The physical examination showed “significant pain-type
behavior” which was nonorganic in nature. Dr. Taylon reported 90 degrees straight leg raising
bilaterally with tenderness in the lower back at the slightest palpitation, decreased range of
motion and no sensory abnormalities. He noted that the MRI scans revealed degenerative and
postoperative changes in the spine. Dr. Taylon also noted a congenital lesion in the cauda equine
which was unrelated to the 1969 employment injury. He noted that appellant had a lumbar spine
fusion but no evidence of any ongoing acute problem. Dr. Taylon opined that the January 30,
1969 employment injury caused a temporary aggravation of appellant’s preexisting back
condition, which included a diagnosed polyneuropathy, thoracic stenosis with spondylitis and
cervical stenosis. He noted that he could not find any evidence by way of x-ray scan or on
examination to establish that appellant’s condition worsened in 1969. The available information
showed subjective complaints of increased pain. Dr. Taylon concluded that appellant was not at
the point where he required mechanized lifts, vans or wheelchairs. He concluded that the injury
in 1969 temporarily aggravated appellant’s back condition.
On June 16, 2005 the Office requested clarification from Dr. Taylon on the issue of
whether appellant’s 1969 injury was temporary and whether any aggravation of his preexisting
injury had resolved.
In a supplemental report dated September 26, 2005, Dr. Taylon, opined that appellant
continued to suffer residuals related to his 1967 back condition but that the 1969 aggravation
caused by the accepted injury had resolved. He stated that appellant did not currently have
residuals related to the 1969 injury.
On October 25, 2005 the Office issued a notice of proposed termination of benefits.
In a letter dated November 3, 2005, appellant’s counsel disagreed with the proposed
termination and submitted additional evidence. He stated that appellant objected to the
determination that he had not sustained a permanent aggravation based on Dr. Taylon’s report.

4

Counsel also contended that the medical evidence did not support Dr. Taylon’s conclusion that
appellant sustained a temporary aggravation of his preexisting back condition. In an April 27,
2005 report, Dr. Paul Babikian, M.D., diagnosed tremor and generalized weakness secondary to
gait disorder, which he suspected was related to neuropathy secondary to diabetes and possibly
his spine disease. A review of a lumbar magnetic resonance imaging (MRI) scan showed
“previous posterior boney effusion, Grade 1 spondylolisthesis in L4 and L5, neural foramina
narrowing, and mild spinal stenosis.” A cervical MRI scan revealed “cervical lordosis,
degenerative disc disease, and congenitally modest central canal with disc bulge resulting in
central canal stenosis at multiple levels.” Dr. Babikian reported a review of a thoracic MRI scan
revealed “congenital and acquired degenerative spinal stenosis and multilevel bony dominant
neural foramina narrowing.”
On June 23, 2005 Dr. John Piper, a Board-certified neurosurgeon, noted that appellant
had a history of a back injury while working for the post office, which was treated with fusion.
A review of the objective evidence revealed some degenerative disc disease and some degree of
stenosis that was forming in various areas. Appellant noted numbness in his leg but no radicular
pain. Dr. Piper noted that there were no surgical options to offer appellant for his pain and no
active symptoms related to his stenosis. No further treatment was recommended.
In reports dated July 26 and August 24, 2005, Dr. Thomas D. Hansen, M.D., diagnosed
secondary muscle spasm, facet arthritis and lumbar disc degeneration. In a September 14, 2005
report, he diagnosed back pain with paraspinous musculature spasm. Dr. Hansen reported a
history of low back pain but did not address causal relation.
By decision dated November 30, 2005, the Office finalized the termination of appellant’s
compensation benefits effective December 24, 2005.3 The Office found the weight of medical
opinion represented by Dr. Taylor’s impartial medical reports. The reports of Drs. Babikian,
Hansen and Piper were insufficient to create a conflict with Dr. Taylon.
In a letter dated December 7, 2005, appellant requested an oral hearing before an Office
hearing representative. A hearing was held on June 28, 2006 at which appellant was represented
by counsel and testified. Subsequent to the hearing, appellant resubmitted medical evidence for
the period 1967 to 2005, which included copies of the reports by Drs. Babikian, Hansen and
Piper. Appellant also submitted a December 6, 2005 report by Dr. Hansen, who stated, “that the
exacerbation that occurred in 1969 was basically an aggravation of his degenerative disc
disease.” Dr. Hansen disagreed with Dr. Taylon that appellant exhibited significant pain
behavior based upon the physical examination he performed. He opined that appellant required
continued medical treatment for pain and fairly significant paraspinous spasm. With respect to
appellant’s lumbar condition, Dr. Hansen concluded that there was “no focal neurologic deficit”
although appellant had pain complaints and degeneration was seen on diagnostic testing.
By decision dated September 12, 2006, an Office hearing representative affirmed the
termination of appellant’s compensation on the grounds that appellant’s accepted condition had
resolved. The Office hearing representative found the weight of the medical opinion evidence
3

Appellant was restored to the Civil Service Retirement annuity rolls effective December 25, 2005.

5

rested with the opinion of Dr. Taylon, the impartial medical examiner. He also found the
medical evidence submitted at the hearing was insufficient to create a new conflict.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.4 After it has determined that an
employee has disability causally related to his federal employment, the Office may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.5 The Office’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability. To terminate authorization for medical treatment, the Office must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.7
Section 8123(a) of the Federal Employees’ Compensation 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.”8 Where a case is referred to an impartial medical specialist for the purpose of
resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and based on a
proper factual and medical background must be given special weight.9
ANALYSIS -- ISSUE 1
The Board finds that the Office properly determined that there was a conflict in the
medical opinion evidence between Dr. Igram, an attending Board-certified orthopedic surgeon,
and Dr. Mercier an Office referral Board-certified orthopedic surgeon, as to whether appellant
had any continuing residuals or disability causally related to his accepted January 30, 1969
employment injury. The Office accepted appellant’s claim for aggravation of a preexisting back
condition. Dr. Igram opined that appellant continued to have residuals and disability due to the
accepted employment-related conditions and required a wheelchair accessible van and home
chair lift. Dr. Mercier opined that the accepted employment-related conditions had resolved and
a wheelchair accessible van and home chair lift were not warranted.

4

Paul L. Stewart, 54 ECAB 824 (2003).

5

Elsie L. Price, 54 ECAB 734 (2003).

6

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

7

James F. Weikel, 54 ECAB 660 (2003).

8

5 U.S.C. § 8123(a); see also Raymond A. Fondots, 53 ECAB 637 (2002); Rita Lusignan (Henry Lusignan), 45
ECAB 207 (1993).
9

Sharyn D. Bannick, 54 ECAB 537 (2003); Gary R. Sieber, 46 ECAB 215 (1994).

6

The Office referred appellant to Dr. Taylon, selected as the impartial medical specialist.
In a report dated May 9, 2005, Dr. Taylon reported that the physical examination showed
“significant pain-type behavior” which “is nonorganic in nature.” He opined that the temporary
aggravation of the preexisting back condition had resolved. A review of the MRI scans revealed
various changes in the spine, which Dr. Taylon concluded were unrelated to appellant’s 1969
employment injury. Based upon a review of the objective evidence and physical examination,
the physician opined that the January 30, 1969 employment injury caused a temporary
aggravation of appellant’s preexisting back condition, which had resolved. In a September 26,
2005 supplemental report, Dr. Taylon stated that appellant continued to suffer from his 1967
back condition, but had no disability or residuals from his accepted January 30, 1969
employment injury.
The Board finds that Dr. Taylon’s opinion is based on a proper factual and medical
background and is entitled to special weight. He found that appellant no longer had any
residuals or disability causally related to the accepted employment injuries of aggravation of the
preexisting back condition. Dr. Taylon’s conclusion is supported by a thorough examination,
objective evidence and rationale.
Prior to the termination of compensation appellant submitted additional medical evidence
including an April 27, 2005 report by Dr. Babikian, a June 23, 2005 report by Dr. Piper and
reports dated July 26, August 24 and September 14, 2005 by Dr. Hansen. The Board finds that
these reports are insufficient to overcome the weight properly accorded to Dr. Taylon’s opinion.
In an April 27, 2005 report, Dr. Babikian diagnosed tremor and generalized weakness secondary
to gait disorder, which he suspected was “related to neuropathy secondary to diabetes and
possibly his spine disease. He offered no opinion as to the cause of appellant’s condition nor did
he refer to appellant’s 1969 employment injury and, therefore, his report lacks probative value.10
Similarly, Dr. Hansen’s report which diagnosed secondary muscle spasm, facet arthritis and
lumbar disc degeneration in his July 26 and August 24, 2005 reports and back pain with
paraspinous musculature spasm lacks probative value. He did not address whether appellant’s
disability was causally related to his accepted employment injury.11 In his June 23, 2005 report,
Dr. Piper reported that appellant sustained a back injury at the employing establishment which
had been treated by fusion surgery. He diagnosed some degenerative disc disease, stenosis and
paraspinal back area pain. Dr. Piper’s report cannot be considered properly rationalized given
his reliance on an inaccurate employment injury history.12 Thus, these reports are of diminished
probative value and insufficient to create a conflict with the opinion of Dr. Taylon.
On appeal appellant’s attorney contends that since the Office accepted that the
January 30, 1969 injury permanently aggravated a preexisting back condition, the Office is
estopped, based on principles of res judicata from terminating compensation on the grounds that
10

Mary A. Ceglia, 56 ECAB ___ (Docket No. 04-113, issued July 22, 2004).

11

Id.

12

Anna M. Delaney, 53 ECAB 384, 386 (2002) (The factors that comprise the evaluation of medical evidence
include the opportunity for a physical examination and the thoroughness of the examination. Additional factors
include the accuracy and completeness of the physician’s knowledge of the facts and medical history, the care of the
analysis manifested and the medical rationale expressed in support of the physician’s opinion.)

7

his condition had been temporarily aggravated and any temporary aggravation had ceased. This
contention that the Office many not readjudicate an issue which has once been decided has no
merit.13 Just as a claimant is entitled to request review of an Office decision, ad inifinitum, the
Office is also entitled to reconsider and modify or reverse its prior decision where the evidence
warrants such action.14 Thus, the principles of res judicata do not apply to the administration of
the Federal Employees’ Compensation Act.15
LEGAL PRECEDENT -- ISSUE 2
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation shifts to appellant.16 In order to
prevail, appellant must establish by the weight of the reliable, probative and substantial evidence
that he had an employment-related disability, which continued after termination of compensation
benefits.
The medical evidence required to establish a causal relationship is 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
appellant’s diagnosed condition and the implicated employment factors.17 The opinion of the
physician must be based on a complete factual and medical background of appellant, 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 appellant.18
ANALYSIS -- ISSUE 2
The relevant medical evidence regarding continuing employment-related residuals
submitted by appellant after December 24, 2005 consists of a December 7, 2005 report by
Dr. Hansen, who stated that he disagreed with Dr. Taylon that appellant exhibited significant
pain behavior based upon the physical examination he performed. Dr. Hansen, based upon a
review of the medical evidence, concluded that the 1969 injury aggravated his preexisting back
condition. However, he offered no opinion as to whether the aggravation was permanent or
13

See Howard E. Johnston, 40 ECAB 777 (1989).

14

See Bettye F. Wade, 37 ECAB 556 (1986); Patsy Rubio, 37 ECAB 179 (1985); Jimmie D. Brewer, 35 ECAB
197 (1983).
15

See Howard E. Johnston, supra note 12; Bettye F. Wade, supra note 14; Patsy Rubio, supra note 14; Jimmie D.
Brewer, supra note 14 (the Office may modify, terminate or rescind, respectively, compensation benefits which had
been granted). See also John R. Walker, 36 ECAB 267 (1984); Paul Ganelin, 32 ECAB 1119 (1981) (an Office
hearing representative has the authority to reverse or modify a prior decision of the Office); and David Paul Proulx,
36 ECAB 618 (1985) (the Board found that its prior decision in the case was in error).
16

See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Virginia Davis-Banks, 44 ECAB 389 (1993); Joseph M.
Campbell, 34 ECAB 1389 (1983).
17

Kathryn E. Demarsh, 56 ECAB ___ (Docket No. 05-269, issued August 18, 2005).

18

Bobbie F. Cowart, 55 ECAB 746 (2004); Victor J. Woodhams, 41 ECAB 345 (1989).

8

temporary or whether appellant continues to suffer from residuals of his accepted employment
injury, While Dr. Hansen opined that appellant required further medical treatment for his
paraspinous spasm and pain, he provided no opinion attributing this condition to appellant’s
accepted 1969 employment injury. As he provided no opinion as to whether the 1969
employment injury caused a permanent aggravation of appellant’s preexisting condition or
whether he continues to suffer residuals from the accepted 1969 employment injury, his opinion
is insufficient to create a conflict with Dr. Taylon’s opinion. The Board, therefore, finds that,
since appellant submitted insufficient medical evidence to establish that he continued to be
disabled from the accepted employment-related temporary aggravation of preexisting back
condition, he has not met his burden of proof.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation effective
December 24, 2005 on the grounds that he no longer had any residuals or disability causally
related to his accepted employment-related injury. The Board further finds that appellant has
failed to establish that he had any continuing employment-related residuals or disability after
December 24, 2005.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 12, 2006 is affirmed.
Issued: October 10, 2007
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

9