United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
DEPARTMENT OF THE NAVY, MILITARY
SEALIFT COMMAND, Virginia Beach, VA,
Employer
__________________________________________

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

Docket No. 10-815
Issued: November 23, 2010

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 February 1, 2010 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ merit decision dated December 23, 2009. Under 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 recurrence of disability on June 23, 2008
causally related to his accepted right thumb and right shoulder conditions.
FACTUAL HISTORY
On October 15, 2007, appellant, a 54-year-old seaman, was struck in the chest by a
mooring line and knocked to the deck. The Office accepted a heart contusion, closed rib fracture
and multiple contusions of both upper limbs. It subsequently accepted right rotator cuff sprain and
a right radial collateral ligament thumb tear. Appellant received temporary total disability
compensation and was placed on the periodic rolls.

On January 8, 2008 Dr. Richard J. Choi, a surgeon, performed a procedure to repair the
radial collateral ligament tear in appellant’s right thumb. On February 26, 2008 appellant was
released to return to full duty without restrictions. He returned to work on March 29, 2008.
In a June 23, 2008 report, Dr. Choi advised that appellant had recently strained the
metacarpal phalangeal (MP) joint on his right thumb. He stated that the thumb was sore and
swollen. Dr. Choi asserted that the right MP joint was a little more swollen and showed slightly
less motion than the left side, which was normal after surgery. He found no other sensory, motor
or vascular problems, no gross instability and no infection. Dr. Choi instructed appellant to limit
the use of his thumb for a month. He opined that resting the thumb for a month would greatly
improve appellant’s condition.
In a report dated July 1, 2008, Dr. Stephen J. Andriola, an orthopedic surgeon, noted the
history of injury and stated that appellant was currently out of work because he had been
experiencing problems with his right thumb. Appellant noted that his right shoulder had improved
because he had been resting it. On examination, his right thumb was still tight in external rotation
but manifested no significant pain and he showed good radial pulse. Dr. Andriola advised that
appellant had arthritis of the right shoulder which was currently stable but was aggravated by
aggressive activity. He found that appellant could return to work when his right thumb condition
improved, which could take a period of time to completely resolve.
In a July 23, 2008 report, Dr. Choi stated that appellant’s right thumb pain had resolved and
that he wanted to return to full duty. He advised that the thumb showed good mobility and good
strength. Dr. Choi released him to return to full duty.
In an August 11, 2008 report, Dr. Choi noted complaints of right hand pain which he
attributed to some underlying arthritis which was probably aggravated. He advised that appellant
had excellent range of motion in his right hand and opined that it was difficult to pinpoint his pain.
An x-ray showed some underlying arthritis, especially in the basal joint, but showed the thumb in
normal alignment and position. Dr. Choi concluded that appellant had resolving right hand pain
with underlying arthritis; he recommended treatment with ice and Advil.
On February 5, 2009 appellant filed a (Form CA-2a) claim for benefits, alleging a
recurrence of disability on August 25, 2008 causally related to his accepted right thumb and right
shoulder conditions.
By letter dated April 10, 2009, the Office advised appellant that it required additional
factual and medical evidence, including a medical report, to establish that his current disability as
of August 25, 2008 was causally related to his accepted cervical condition.
In a report dated February 3, 2009, received by the Office on May 11, 2009, Dr. Vidya
Kini, Board-certified in physical medicine and rehabilitation, noted that appellant had sustained
injuries to his right shoulder and right thumb in October 2007 and returned to work in
April 2008. He related that appellant experienced increased pain in his right shoulder and right
thumb in June and August 2008. The results of a recent right shoulder x-ray showed spurring of
the inferior humeral head and that x-rays of the right hand did not reveal any significant acute
deformities or fractures requiring surgical intervention. Dr. Kini stated, however, that appellant

2

complained of severe pain in his right shoulder and right hand and thumb, with moderate
weakness in his right upper extremity. He advised that appellant had not been able to return to
work since the acute increase in pain in the right shoulder and hand he experienced in June and
August 2008. Dr. Kini stated that appellant currently had right shoulder and right hand pain,
secondary to reinjury of these areas following his return to work after major, multiple traumas.
Dr. Kini opined that appellant had significant rotator cuff tendinitis, bicipital tendinitis,
and secondary cervicoscapular myofascial pain syndrome, with early disease of the shoulder. He
prescribed a comprehensive physical rehabilitation program to decrease spasm and improve
range of motion strength and endurance. Dr. Kini stated that appellant also had right hand pain
with deformity of the right radial collateral ligament rupture during his initial injury and had
developed osteoarthritis of multiple joints of the right hand, especially the first MP joint. He
believed that appellant’s current complaints of pain and instability in his right upper extremity
were due to recurrent injury that occurred when he returned to upper work in 2008. Dr. Kini
advised that appellant was able to work for a few weeks, after which he reinjured his right
shoulder, right wrist and right hand; he attributed this to his higher predisposition for recurrent
injury, as occurs with other major traumas. He concluded that appellant was totally disabled and
was unlikely to return to his usual job as a seaman. Dr. Kini stated that appellant was currently
precluded from performing any type of work.
In a report dated April 1, 2009, Dr. Kini noted continued complaints of right upper
extremity pain and advised that appellant had only minimal improvement with anti-inflammatory
medication and muscle relaxants. On examination, appellant had 60 percent strength in the right
upper extremity with minimal essential change in his hand. Dr. Kini advised him to continue
with physical therapy.
In report dated December 18, 2007, received by the Office on May 11, 2009,
Dr. Andriola diagnosed a sprained right shoulder with glenohumeral arthritis based on results of
a magnetic resonance imaging (MRI) scan. He stated that appellant’s rotator cuff was intact
except for a minor partial thickness tear and cystic changes around the greater tuberosity as well.
Dr. Andriola recommended that he undergo physical therapy.
By decision dated May 20, 2009, the Office denied appellant’s claim for a recurrence of
disability due to his October 15, 2007 injury. It found that the medical evidence was insufficient
to establish that the claimed disability commencing June 23, 2008 was caused or aggravated by
the accepted conditions.
By letter dated May 28, 2009, appellant’s attorney requested a hearing, which was held
on September 9, 2009.
In a July 15, 2009 report, Dr. Choi stated findings on examination and asserted that
appellant’s chronic pain had not subsided. Appellant had pain with both extension and flexion in
addition to pain on palpation of the MP joint. Dr. Choi opined that due to appellant’s history of
chronic pain he probably would not be able to return to his regular job.
On July 21, 2009 Dr. Andriola stated that appellant had chronic right shoulder pain with
glenohumeral arthritis. He related that when appellant tried to return to work he experienced

3

significant pain in his right shoulder. Dr. Andriola found a good range of motion on examination
although appellant lacked about 5 degrees of forward flexion, 10 degrees of abduction and three
vertebral levels of internal rotation. He advised that appellant had a positive impingement,
positive Hawkins, and pain with external rotation, with no instability. Dr. Andriola indicated
that x-ray results demonstrated persistent glenohumeral arthritis with osteophyte in the humeral
head of sort of moderate severity.
At the hearing, appellant stated that he returned to his job as an able seaman in
April 2008 but was forced to quit in late June 2008 because his job duties caused his right hand
to become swollen and prohibitively painful. He obtained another job but was forced to stop
work in August 2008 due to difficulty gripping with his right hand and using his right arm.
Appellant advised that his right thumb and right arm initially improved and became functional
following the October 2007 injury but he experienced a recurrence of his work-related disability
because his job duties were too strenuous.
By decision dated December 23, 2009, an Office hearing representative affirmed the
May 23, 2009 Office decision.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which has resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.1 A person who claims a recurrence of disability due to an accepted
employment-related injury has the burden of establishing by the weight of the substantial,
reliable and probative evidence that the disability for which she claims compensation is causally
related to the accepted injury. This burden of proof requires that an employee furnish medical
evidence from a physician who, on the basis of a complete and accurate factual and medical
history, concludes that the disabling condition is causally related to the employment injury and
supports that conclusion with sound medical reasoning.2 Where no such rationale is present,
medical evidence is of diminished probative value.3 In order to establish that a claimant’s
alleged recurrence of the condition was caused by the accepted injury, medical evidence of
bridging symptoms between his present condition and the accepted injury must support the
physician’s conclusion of a causal relationship.4

1
2

R.S., 58 ECAB 362 (2007);see also 20 C.F.R. § 10.5(x).
I.J., 59 ECAB 408 (2008) ; Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

3

See Ronald C. Hand, 49 ECAB 113 (1957); Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

4

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

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ANALYSIS
In the instant case, appellant did not submit sufficient evidence providing a rationalized,
opinion relating his recurrence of disability commencing June 23, 2008 to his accepted right
thumb and right shoulder conditions.5 For this reason, he has not established his claim.
Dr. Choi performed January 2008 surgery to repair the radial collateral ligament tear in
appellant’s right thumb and submitted reports dated June 23, July 23 and August 11, 2008. He
indicated that appellant had strained his right MP joint, which had become sore and swollen.
Although the right thumb had diminished range of motion, this was a normal postsurgical
condition; Dr. Choi noted that there were no other sensory, motor or vascular problems, no gross
instability or any infection. He instructed appellant to limit the use of his thumb for a month.
Dr. Choi stated that appellant’s right thumb pain had resolved with good mobility and good
strength and he released him to full duty. On August 11, 2008 he stated that appellant had
developed arthritis in his right hand, as shown by x-ray. However, Dr. Choi advised that the
thumb had resolved, with normal alignment, excellent range of motion and stated that it was
difficult to pinpoint the source of his pain.
On July 1, 2008 Dr. Andriola stated that appellant had recently quit work due to his right
thumb condition, although his right shoulder had shown improvement. He advised that appellant
had no significant pain in his right thumb and had right shoulder arthritis which was currently
stable but was aggravated by aggressive activity. Dr. Andriola stated that appellant could return to
work when his right thumb condition improved.
In reports dated February 3 and April 1, 2009, Dr. Kini stated that appellant had
experienced increased pain in his right shoulder and right thumb in June and August 2008 and
complained of severe pain in his right shoulder and right hand and thumb on examination, with
moderate weakness in his right upper extremity. He opined that appellant had significant rotator
cuff tendinitis, bicipital tendinitis and secondary cervicoscapular myofascial pain syndrome, with
early disease of the shoulder, in addition to right hand pain with deformity of the right radial
collateral ligament rupture and osteoarthritis of multiple joints of the right hand, especially the
first MP joint. Although right shoulder x-rays showed some spurring of the inferior humeral
head, x-rays of the right hand did not reveal any significant, acute deformities or fractures
requiring surgical intervention. Dr. Kini stated that appellant’s right shoulder and hand pain was
secondary to reinjury of these areas following his return to work after major, multiple traumas.
He opined that his complaints of pain and instability in his right upper extremity were due to
recurrent injury that occurred when he returned to work in 2008, as he had a higher
predisposition for recurrent injury. Dr. Kini concluded that appellant was totally disabled. In his
April 1, 2009 report, he stated on examination that appellant had 60 percent strength in the right
upper extremity with minimal essential change in his hand. Dr. Kini noted continued complaints
of right hand, right wrist and right shoulder pain and advised that appellant had shown only
minimal improvement due to treatment with anti-inflammatory medication and muscle relaxants.
5

On February 3, 2009 Form CA-2a appellant stated that he experienced a recurrence of disability on
August 25, 2009. He testified at the hearing that he initially experienced a recurrence of disability on June 23, 2008.
The Board finds that the claimed date for the recurrence of disability in this case is June 23, 2008.

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The opinions of Drs. Choi, Andriola and Kini on causal relationship are of limited
probative value in that they did not provide adequate medical rationale in support of their
conclusions.6 They did not directly address whether appellant’s current right thumb and right
shoulder conditions were causally related to his originally accepted October 15, 2007
employment injury. Medical evidence that does not offer adequate opinion regarding the cause
of an employee’s condition is of limited probative value on the issue of causal relationship.7
Drs. Choi and Kini noted x-ray findings but did not specifically address causal relationship
between the claimed recurrence beginning August 25, 2008 and the October 15, 2007 work
injury. Dr. Choi indicated that appellant had strained his thumb in June 2008, which could
constitute a new injury. Dr. Kini stated that appellant’s right shoulder and hand pain was
secondary to reinjury of these areas following his return to work and opined that his initial work
injury had created a higher predisposition for recurrent injury. However, his opinion is of
limited probative value for the further reason that it is generalized in nature and equivocal in that
he only noted summarily that appellant’s conditions were causally related to the October 15,
2007 employment injury. The December 18, 2007 report from Dr. Andriola is of no value in
establishing his claim as it clearly predates the claimed recurrence.8 Therefore, the reports from
the physicians of record are insufficient as they did not specifically support causal relationship
between appellant’s condition as of June 23, 2008 and the October 15, 2007 work injury.
Following the May 20, 2009 decision, appellant submitted a July 15, 2009 report from
Dr. Choi and a July 21, 2008 report from Dr. Andriola. These reports, however, essentially
reiterated the findings and conclusions stated by these physicians in previously submitted
reports. Dr. Choi reported that appellant had chronic right thumb pain which had not subsided
and would likely prevent his return to his usual job with the employing establishment.
Dr. Andriola indicated that appellant had chronic right shoulder pain with glenohumeral arthritis
based on x-ray results and advised that he experienced right shoulder pain when he attempted to
return to work. He stated that appellant had a positive impingement, positive Hawkins and pain
with external rotation, with no instability. Dr. Andriola opined that he was probably disabled
from his job as an able seaman.
These reports do not constitute sufficient medical evidence demonstrating a causal
connection between appellant’s employment-related condition and his alleged recurrence of
disability. Causal relationship must be established by rationalized medical opinion evidence.
The reports submitted by appellant failed to provide an explanation in support of his claim that
he was disabled as of June 23, 2008. Thus, the reports from these physicians did not establish a
worsening of appellant’s condition. Appellant has failed to meet his burden to establish a
recurrence of a medical condition causally related to his accepted right thumb and right shoulder
conditions. The Board therefore affirms the December 23, 2009 Office decision affirming the
6

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

7

See K.W., 59 ECAB 271 (2007).

8

Appellant submitted several reports from a physical therapist. These reports, however, are of no probative
value, as physical therapists are not considered physicians under the Federal Employees’ Compensation Act and as a
result, they are not competent to provide a medical opinion. Barbara J. Williams, 40 ECAB 649 (1989). A.C., 60
ECAB __ (Docket No. 08-1453, issued November 18, 2008); 5 U.S.C. § 8101(2).

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May 20, 2009 Office decision denying compensation based on a recurrence of his work-related
disability.
CONCLUSION
The Board finds that appellant has not met his burden to establish that he was entitled to
compensation for a recurrence of disability as of June 23, 2008 causally related to his accepted
right thumb and right shoulder conditions.
ORDER
IT IS HEREBY ORDERED THAT the December 23, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 23, 2010
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

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United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
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and
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U.S. POSTAL SERVICE, POST OFFICE,
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Charlotte, NC, Employer
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_________________________________________ )
C.L., Appellant

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

Docket No. 11-68
Issued: August 22, 2011

Case Submitted on the Record

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

JURISDICTION
On October 12, 2010 appellant filed a timely appeal from the June 16, 2010 Office of
Workers’ Compensation Programs’ (OWCP) schedule award decision.1 Pursuant to the Federal
Employees’ Compensation Act2 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he has more than
a 10 percent permanent impairment of his left upper extremity.

1

The record also contains a March 19, 2010 nonmerit decision; however, appellant has not appealed this decision.

2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 29, 2008 appellant, then a 57-year-old distribution clerk, filed a traumatic
injury claim alleging that on August 5, 2008, he sustained a left shoulder condition in the
performance of duty. He was using both hands moving a “flat arc” when he felt a joint pop and
snap with “knife like pain.” Appellant did not stop work. OWCP accepted the claim for a left
shoulder small full-thickness tear of the distal subscapularis tendon. On February 13, 2009
appellant underwent an authorized arthroscopic subacromial decompression of the left shoulder,
arthroscopic distal clavicle excision and mini-open rotator cuff repair.
He received
compensation benefits.3
On August 28, 2009 appellant claimed a schedule award. In an August 5, 2009 report,
Dr. Glenn B. Perry, a Board-certified orthopedic surgeon, advised that appellant had 15 percent
permanent impairment based on minimal weakness and diminished pain. He stated that
appellant could return to work without restrictions. In a letter dated September 28, 2009, OWCP
requested that appellant’s treating physician provide an impairment rating utilizing the American
Medical Association, Guides to the Evaluation of Permanent Impairment, (6th ed. 2009)
(hereinafter, A.M.A., Guides).
In an October 5, 2009 report, Dr. Perry described appellant’s history of injury and
treatment and examined appellant. He referenced the North Carolina Industrial Commission
Guides and opined that appellant had a 15 percent impairment of the left upper extremity.
Dr. Perry advised that appellant reached maximum medical improvement on August 5, 2009. He
noted that appellant had excellent range of motion and only minimal weakness. Additionally,
Dr. Perry advised that appellant’s pain had diminished. He noted that appellant had medial
tenderness with pinching but denied any injury or swelling.
In an October 21, 2009 report, OWCP’s medical adviser noted appellant’s history of
injury and treatment, which included a left shoulder resection of the acromioclavicular (AC)
joint, subacromial decompression and debridement with an excellent result. Appellant had
excellent range of motion and slight weakness and had returned to full duty. The medical
adviser explained that the impairment rating provided by Dr. Perry could not be utilized as it was
based upon North Carolina guidelines while OWCP used the A.M.A., Guides. He referred to
Table 15-5 of the A.M.A., Guides and noted that the principal impairment was a resection of the
AC joint.4 OWCP’s medical adviser assigned a class 1 with a default grade of C, found that the
application of the net adjustment formula yielded no adjustment, and determined that appellant
had 10 percent impairment of the left upper extremity.

3

In an August 17, 2009 decision, OWCP’s hearing representative found that appellant actually sustained two
distinct work injuries. The first injury occurred on August 5, 2008 and resulted in modified duty with no medical
care or lost time work. OWCP’s hearing representative noted that a second injury occurred on September 29, 2008
and occurred while he was moving heavy tubs of mail. She found that the date of injury should be changed to
September 29, 2008.
4

A.M.A., Guides 403.

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In an October 26, 2009 decision, OWCP granted appellant a schedule award for 10
percent permanent impairment of the left upper extremity. The award covered a period of 31.2
weeks from August 5, 2009 to March 11, 2010.
On November 4, 2009 appellant requested reconsideration. In an undated letter, he
asserted that Dr. Perry’s rating was more accurate than that of the medical adviser. In an
October 26, 2009 report, Dr. Perry reiterated that appellant had 15 percent left arm impairment.
In a November 18, 2009 report, OWCP’s medical adviser noted that Dr. Perry listed
appellant’s impairment without explanation as to how the rating was made. He indicated that
Dr. Perry needed to include range of motion measurements of the left shoulder.
In a December 16, 2009 decision, OWCP denied modification of the October 26, 2009
decision.5
On April 1, 2010 appellant requested reconsideration. He submitted a March 16, 2010
report from Dr. Perry who noted that he utilized the A.M.A., Guides (sixth edition). Dr. Perry
provided findings which included forward elevation of 100 degrees of flexion and that equated to
three percent impairment. He advised that extension of 30 degrees equated to one percent
impairment, abduction of 90 degrees equated to three percent impairment, adduction of 20
degrees correlated to one percent impairment, external rotation of 35 degrees equated to two
percent impairment, and internal rotation of 90 degrees correlated to two percent impairment.
Dr. Perry stated that appellant had “one grade” of decreased strength in abduction, internal
rotation, external rotation, and flexion with full strength, in adduction and extension. He
combined the 12 percent for decreased range of motion with four percent for the decreased
strength and opined that appellant had 16 percent left arm impairment. Dr. Perry advised that
appellant reached maximum medical improvement on August 8, 2009.
In an April 9, 2010 report, OWCP’s medical adviser explained that Dr. Perry made a
calculation error in the use of Table 15-34.6 He noted that range of motion measurements stood
alone and that forward elevation of 100 degrees was a three percent impairment, backward
elevation of 30 degrees was one percent impairment, abduction of 90 degrees was a three percent
impairment, adduction of 20 degrees correlated to one percent impairment, internal rotation of 90
degrees represented zero (no) percent impairment, and external rotation of 35 degrees correlated
to two percent impairment. The medical adviser added these values to determine that appellant
had a 10 percent impairment of the left arm. He commented that, while Dr. Perry also noted
impairment for loss of strength, lost range of motion was a stand-alone approach under the
A.M.A., Guides. The medical adviser found the evidence did not support a greater award.
In a June 16, 2010 decision, OWCP denied modification of the prior decisions.

5

On March 11, 2010 appellant requested reconsideration. No additional evidence accompanied his request. In a
March 19, 2010 decision, OWCP denied appellant’s request for reconsideration as the evidence submitted was
immaterial and not sufficient to warrant merit review of the prior decision.
6

A.M.A., Guides 475.

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LEGAL PRECEDENT
The schedule award provision of the Act,7 and its implementing federal regulations,8 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,
the Act 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 for all claimants, the Office has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.9 As of May 1,
2009, the sixth edition of the A.M.A., Guides is used to calculate schedule awards.10
ANALYSIS
In support of his schedule award claim, appellant submitted several reports from
Dr. Perry. In his August 5, October 5 and 26, 2009 reports, Dr. Perry opined that appellant had
15 percent impairment to the left upper extremity. However, he relied upon North Carolina
guidelines as opposed to the A.M.A., Guides. Thus, it was not based or a correct application of
the A.M.A., Guides.11 As these reports did not comport with the A.M.A., Guides, they were
insufficient to establish appellant’s left arm impairment. OWCP properly referred the matter to
OWCP’s medical adviser,12 who used the diagnosis-based method to find that appellant had 10
percent left arm impairment. The medical adviser, on October 21, 2009, referred to Table 15-5,
the shoulder regional grid, and explained that the principal impairment was the resection of the
AC joint.13 He explained that appellant’s impairment for this diagnosis was class 1 with a
default grade of C, which provides 10 percent impairment.14
In his March 16, 2010 report, Dr. Perry noted that he utilized the A.M.A., Guides (sixth
edition), in finding 16 percent impairment. This was comprised of 12 percent for decreased
range of motion and four percent for decreased strength. Although Dr. Perry provided findings

7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

Id. at § 10.404(a).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
11

An opinion which is not based upon the standards adopted by OWCP and approved by the Board as appropriate
for evaluating schedule losses is of little probative value in determining the extent of a claimant’s permanent
impairment. I.F., Docket No. 08-2321 (issued May 21, 2009).
12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
13

A.M.A., Guides 403.

14

The medical adviser applied the net adjustment formula, page 411 of the A.M.A., Guides, to the grade
modifiers to find a zero percent net adjustment.

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for range of motion, he did not clearly identify the specific tables in the A.M.A., Guides and
explain the basis of his calculations. Thus, this report is of limited probative value.
OWCP’s medical adviser in his April 9, 2010 report applied Dr. Perry’s range of motion
findings to the A.M.A., Guides.15 He found that a calculation error had occurred in the use of
Table 15-34.16 The Board notes that Dr. Perry erred in his calculation of the two percent
impairment of the range of motion with regard to internal rotation. Table 15-34 indicates that the
threshold for impairment in this category is less than or equal to 80 degrees. Dr. Perry found a
90 percent internal rotation which is in excess of 80 degrees and awarded 2 percent. As his
clinical findings were over the 80 degree threshold, this was a calculative error.
The Board notes that the other range of motion measurements were properly determined
and include three percent impairment for forward elevation of 100 degrees, one percent
impairment for backward elevation of 30 degrees, three percent impairment for abduction of 90,
one percent impairment for adduction of 20 degrees and two percent impairment for external
rotation of 35 degrees.17 The medical adviser added these values and found 10 percent
impairment of the left arm for lost range of motion. He also explained that Dr. Perry’s inclusion
of four percent impairment for decreased strength was not appropriate under the A.M.A., Guides,
as the range of motion impairment is a stand-alone rating.18 Although the A.M.A., Guides, allow
for functional history adjustments to range of motion impairment,19 Dr. Perry did not indicate
how decreased strength accounted for an additional four percent impairment under these
adjustment provisions in the A.M.A., Guides. Thus, OWCP’s medical adviser properly found
that Dr. Perry’s March 16, 2010 report supported no more than 10 percent left arm impairment
pursuant to the A.M.A., Guides.
The Board finds that there is no medical evidence in conformance with the sixth edition
of the A.M.A., Guides, which establishes that appellant has no more than 10 percent impairment
of the left upper extremity.
On appeal, appellant asserts that his physician’s opinion should be accorded more weight.
However, as noted above, it was not based upon a correct application of the A.M.A., Guides
(sixth edition). The evidence which properly applies the A.M.A., Guides does not support a
greater schedule award. 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.

15

Although Chapter 15 of the A.M.A., Guides, provides that the determination of most arm impairments should
be diagnosis based, Table 15-5, the Shoulder Regional Grid, allows that, for AC joint injury or disease, section 15.7,
Range of Motion Impairment, may be used as a stand alone alternative which is not to be combined with diagnosis
impairment. A.M.A., Guides 387, 403, 405.
16

A.M.A., Guides 475.

17

Id.

18

See supra note 15.

19

A.M.A., Guides 473-77.

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CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he has
more than a 10 percent permanent impairment of his left upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the June 16, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 22, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Diego, CA, Employer
__________________________________________

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)
)
)
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)
)

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

Docket No. 13-1473
Issued: December 17, 2013

Case Submitted on the Record

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

JURISDICTION
On June 7, 2013 appellant filed a timely appeal from the December 13, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she has more than
12 percent permanent impairment of her right arm, for which she received a schedule award.
FACTUAL HISTORY
OWCP accepted that prior to January 3, 2011 appellant, then a 59-year-old letter carrier,
sustained an occupational disease in the form of rotator cuff syndrome of her right shoulder with
allied disorders.
1

5 U.S.C. §§ 8101-8193.

Appellant received treatment for her right arm condition from Dr. Patrick St. Pierre, an
attending Board-certified orthopedic surgeon. In February 2011, Dr. St. Pierre noted that she had
a large rotator cuff tear with osteoarthritis, biceps tendon tear and subacromial impairment.2 On
July 15, 2011 he performed arthroscopic right shoulder surgery, including rotator cuff repair,
biceps tenodesis, subacromial decompression and distal clavicle excision. The procedures were
authorized by OWCP.
In a September 20, 2012 report, Dr. St. Pierre provided a detailed description of
appellant’s medical history and reported the findings of the physical examination of her right
shoulder that he conducted on September 19, 2010.3 On examination, the portal sites of her right
shoulder portal sites were healed. There was no evidence of infection, swelling, warmth,
erythema or ecchymosis. Dr. St. Pierre stated that appellant had full range of motion of her right
elbow, wrist and hand. For the right shoulder, appellant had active forward elevation to
120 degrees, abduction to 120 degrees, external rotation to 10 degrees and internal rotation to
10 degrees. Dr. St. Pierre noted that she had 5/5 internal rotation strength, but only had 4/5
external rotation strength and 3/5 strength of her supraspinatus tendon. Appellant’s sensation
was intact to light touch and distal pulses were intact. Dr. St. Pierre diagnosed partial healing of
a large to massive rotator cuff tear of the right shoulder. Appellant was released to full-time
work on permanent restrictions with no lifting greater more 25 pounds or engaging in overhead
lifting with her right arm.
Dr. St. Pierre provided an impairment rating worksheet that he completed based on his
September 19, 2012 examination findings. His rating was based on Figure 16-38 through Figure
16-46 (range of shoulder motion) on pages 474 through 479 of the fifth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides)
(5th ed. 2001). Dr. St. Pierre determined that appellant had 14 percent permanent impairment of
her right arm.
On December 1, 2012 Dr. Ellen Pichey, a Board-certified occupational medicine
physician serving as an OWCP medical adviser, reviewed Dr. St. Pierre’s report. She concluded
that appellant had 12 percent permanent impairment of her right arm under the standards of the
sixth edition of the A.M.A., Guides. Under Table 15-5 (Shoulder Regional Grid) on page 403,
Dr. Pichey applied a diagnosis-based rating for acromioclavicular joint injury or disease which had
a class 1, default value of 10 percent. She stated that appellant’s functional history modifier fell
under grade modifier 2 per Table 15-7 on page 406; her physical examination modifier was grade
modifier 2 per Table 15-8 on page 408; and her clinical studies fell under grade modifier 4 per
Table 15-9 on page 410. Dr. Pichey applied the net adjustment formula, found on page 411, which
resulted in a modification value of +2. This caused movement two spaces to the right of the
default 10 percent value found in Table 15-5 and resulted in a total right arm impairment of
12 percent.4

2

Dr. St. Pierre first started treating appellant for right shoulder problems in 2009.

3

Dr. St. Pierre noted that clinical studies confirmed a large to massive rotator cuff tear.

4

Dr. Pichey indicated that appellant reached maximum medical improvement on September 19, 2012.

2

Dr. Pichey related that Dr. St. Pierre’s impairment rating was calculated under the
standards of the fifth edition of the A.M.A., Guides, but noted that the sixth edition of the A.M.A.,
Guides, was to be used to determine appellant’s impairment. She pointed out that Dr. St. Pierre
used the range of motion method for impairment rating, but it was not the preferred method as
explained in section 15.2 on pages 461 through 464 of the sixth edition of the A.M.A., Guides.
In a decision dated December 13, 2012, OWCP granted appellant a schedule award for a
12 percent permanent impairment of her right arm. The award ran for 37.44 weeks from
September 19, 2012 to June 8, 2013. The award was based on the impairment rating evaluation
of Dr. Pichey.
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 For OWCP decisions issued on or after
May 1, 2009, the sixth edition of the A.M.A., Guides (6th ed. 2009) is used for evaluating
permanent impairment.8
In determining impairment for the upper extremities under the sixth edition of the
A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the upper
extremity to be rated. With respect to the shoulder, the relevant portion of the arm for the
present case, reference is made to Table 15-5 (Shoulder Regional Grid) beginning on page 401.
After the Class of Diagnosis (CDX) is determined from the Shoulder Regional Grid (including
identification of a default grade value), the Net Adjustment Formula is applied using the grade
modifier for Functional History (GMFH), grade modifier for Physical Examination (GMPE) and
grade modifier for Clinical Studies (GMCS). The Net Adjustment Formula is (GMFH - CDX) +
(GMPE - CDX) + (GMCS - CDX).9 Under Chapter 2.3, evaluators are directed to provide

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404 (1999).

7

Id.

8

See FECA Bulletin No. 9-03 (issued March 15, 2009). For OWCP decisions issued before May 1, 2009, the
fifth edition of the A.M.A., Guides (5th ed. 2001) is used.
9

See A.M.A., Guides (6th ed. 2009) 401-11. Table 15-5 also provides that, if motion loss is present for a claimant
who has undergone a shoulder arthroplasty, impairment may alternatively be assessed using section 15.7 (range of
motion impairment). Such a range of motion impairment stands alone and is not combined with a diagnosis
impairment. Id. at 405, 475-78.

3

reasons for their impairment rating choices, including choices of diagnoses from regional grids
and calculations of modifier scores.10
ANALYSIS
OWCP accepted that appellant sustained rotator cuff syndrome of her right shoulder with
allied disorders. In a decision dated December 13, 2012, it granted her a schedule award for 12
percent permanent impairment of her right arm. The award was based on a December 1, 2012
impairment rating by Dr. Pichey, a Board-certified occupational medicine physician serving as
an OWCP medical adviser. She applied the standards of the sixth edition of the A.M.A., Guides
to the examination findings obtained on September 19, 2012 by Dr. St. Pierre, an attending
Board-certified orthopedic surgeon.
The Board finds that Dr. Pichey properly applied the sixth edition of the A.M.A., Guides
to determine that appellant has a 12 percent permanent impairment of her right arm. Under Table
15-5 on page 403, Dr. Pichey properly applied a diagnosis-based rating for acromioclavicular joint
injury or disease which had a class 1, default value of 10 percent.11 She found that appellant’s
functional history modifier fell under grade modifier 2 per Table 15-7 on page 406 (moderate
problem including pain/symptoms with normal activity); her physical examination modifier was
grade modifier 2 per Table 15-8 on page 408 (moderate problem including instability); and her
clinical studies fell under grade modifier 4 per Table 15-9 on page 410 (very severe problem
confirmed by clinical studies). The Board notes that the grade modifier values derived by
Dr. Pichey were proper given the examination and diagnostic findings of record. Dr. Pichey
properly applied the net adjustment formula which resulted in a modification value of +2.12 This
caused movement two spaces to the right of the default 10 percent value found in Table 15-5 and
resulted in a total right arm impairment of 12 percent.
Dr. St. Pierre provided an impairment rating worksheet in which he calculated that
appellant had 14 percent permanent impairment of her right arm under the standards of the fifth
edition of the A.M.A., Guides. However, this impairment rating cannot be accepted as it was
calculated under the wrong edition of the A.M.A., Guides. Appellant’s schedule award decision
was issued on December 12, 2012. For OWCP decisions issued on or after May 1, 2009, the
sixth edition of the A.M.A., Guides provides the appropriate standards for evaluating permanent
impairment.13 Dr. Pichey’s rating is the only impairment evaluation of record which properly
applies the relevant standards to calculate appellant’s right arm impairment.
On appeal, appellant argued that she should have received additional schedule award
compensation given that her right shoulder condition involved pain, strength loss and motion
limitation, which necessitated significant lifestyle changes. The Board notes, however, that her
10

Id. at 23-28.

11

Dr. Pichey explained that a diagnosis-based rating method was preferred as explained in section 15.2 on pages
461 through 464 of the sixth edition of the A.M.A., Guides.
12

See supra note 9.

13

See supra note 8.

4

right arm impairment was properly calculated by applying the relevant standards for evaluating
such impairments under FECA.
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 did not meet her burden of proof to establish that she has
more than a 12 percent permanent impairment of her right arm, for which she received a
schedule award.
ORDER
IT IS HEREBY ORDERED THAT the December 13, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 17, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


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

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

Docket No. 12-1415
Issued: December 12, 2012

Case Submitted on the Record

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

JURISDICTION
On June 18, 2012 appellant, through her attorney, filed a timely appeal from the Office of
Workers’ Compensation Programs’ (OWCP) merit decision dated May 17, 2012 which denied 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 the case.
ISSUE
The issue is whether appellant established permanent impairment to a scheduled member
under 5 U.S.C. § 8107.
FACTUAL HISTORY
On July 30, 1998 appellant, then a 38-year-old mail handler, sustained a shoulder injury
while unloading bulk mail containers. OWCP accepted her claim for contusion of the left elbow,
neck sprain and right shoulder strain. Appellant did not stop work.
1

5 U.S.C. § 8101 et seq.

Appellant sought treatment from Dr. Sven Jonsson, a Board-certified family practitioner,
from August 4 to 12, 1998. Dr. Jonsson diagnosed contusion/strain of the shoulder and right
elbow. From August 19, 1998 to April 19, 1999, appellant was treated by Dr. Donna L. MetzDunn, a family practitioner, for right shoulder, elbow and arm pain that followed a lifting
incident at work. Dr. Metz-Dunn diagnosed shoulder, elbow and arm and chronic cervical strain
and mild carpal tunnel syndrome. She returned appellant to limited-duty work. A March 29,
1999 magnetic resonance imaging (MRI) scan of the cervical spine revealed no abnormalities. A
May 11, 1999 electromyogram (EMG) revealed no abnormalities.
Appellant was treated by Dr. Michael G. Cassaro, a Board-certified anesthesiologist,
from October 25 to November 11, 1999, for shoulder and arm pain that developed on July 30,
1998 after she pushed a container at work onto a dock and slipped and fell. Dr. Cassaro
diagnosed probable causalgia in the right arm with bilateral brachial plexopathies, bilateral
rotator cuff tendinitis, subacromial bursitis and chronic low back pain with muscle spasms and
L4, L5 radiculitis. From March 8, 2000 to April 2, 2002, he treated her for right brachial
plexopathy with complex regional pain syndrome of the right arm. Dr. Cassaro opined that there
was no other etiology for appellant’s symptoms than the work-related injury of July 30, 1998. In
an April 2, 2002 report, he noted that appellant presented with neck pain, right arm pain, right
leg pain and low back pain. Appellant reported being in an automobile accident on October 20,
2001, where she had injuries to her neck and shoulder for which she underwent physical therapy.
Dr. Cassaro noted findings of antalgic gait and increased pin prick sensation in nondermatomal
and nonperipheral nerve distribution of the right arm. He diagnosed right brachial plexopathy,
reflex sympathetic dystrophy, lumbago and right rotator cuff tendinitis.
On November 6, 2001 Dr. Metz-Dunn diagnosed reflex sympathetic dystrophy in the
absence of other definitive findings. She noted that appellant was treated by several specialists
without a definite diagnoses or visible improvement in her subjective symptoms. Dr. Metz-Dunn
noted that, in view of multiple treatment failures, appellant was referred for pain management. A
May 17, 2001 MRI scan of the cervical spine revealed loss of cervical lordotic curvature with no
evidence of disc bulge or herniation.
On November 7, 2002 appellant filed a Form CA-2a, notice of recurrence of disability,
alleging that she had a recurrence of disability on October 2, 1999 causally related to her workrelated injury. In a letter dated August 12, 2003, OWCP informed appellant that her case was
inactive and had been retired to the federal records center. It asked appellant’s attorney if he
wished to proceed with a recurrence claim or file a new claim. Thereafter, the record was
dormant for several years.
On September 22, 2011 appellant filed a claim for a schedule award. By letter dated
October 31, 2011, OWCP advised appellant that no medical evidence had been submitted in
support of the claim since May 2002. It requested that she submit a report from her physician
which provided an assessment of permanent impairment in accordance with the American
Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed. 2009) (A.M.A.,
Guides).2 No additional evidence was received.
2

A.M.A., Guides (6th ed. 2008).

2

In a decision dated December 6, 2011, OWCP denied appellant’s claim for a schedule
award finding that she failed to submit sufficient medical evidence to establish permanent
impairment causally related to her accepted work-related conditions.
Appellant requested an oral hearing which was held on March 21, 2012. She submitted a
May 11, 2009 EMG and reports from Dr. Garnett Sweeney, a Board-certified orthopedic surgeon
and OWCP referral physician, dated previously of record.3 Appellant submitted reports from
Dr. Cassaro dated March 31 to May 4, 2010. Dr. Cassaro noted not treating her since 2002 and
diagnosed cervical degenerative disc disease, complex regional pain syndrome of the right upper
extremity, hypothyroidism and endocrinopathy. He recommended epidural steroid injections
which were performed on April 6 and May 4, 2010. An MRI scan of the cervical spine dated
April 2, 2010 revealed straightening of the cervical lordosis and annular disc bulges at C4-5,
C5-6 and C6-7.
In a December 15, 2011 impairment rating, Dr. Martin Fritzhand, a Board-certified
physiatrist, noted appellant presented with cervical spine pain that radiated into the right
shoulder, a swollen right hand and painful right elbow with numbness in the right forearm.
Appellant continued with treatment for right elbow contusion, neck sprain and reflex
sympathetic dystrophy as her musculoskeletal distress persisted over the years. Dr. Fritzhand
noted diminished range of motion of the right shoulder and cervical spine, decreased muscle
strength over the right shoulder abductors and rotators and diminished grip strength on the right
with associated sensory loss. Appellant had difficulty using her right upper extremity during the
workday, she was unable to carry heavy objects and could no longer participate in sports.
Dr. Fritzhand found that maximum medical improvement occurred in January 2000. He opined
that appellant had 11 percent impairment of the right arm under the A.M.A., Guides.
Dr. Fritzhand diagnosed neck sprain and assessed impairment under The Guides Newsletter
July/August 2009, and opined that clinical evaluation, history and physical examination revealed
C8 spinal nerve impairment. Pursuant to Table 15-14, appellant had a severity of three for
sensory deficit and a severity of one for mild motor deficit involving the right arm. Under Table
15-7, the grade modifier for functional history was two (QuickDASH of 79.5). Dr. Fritzhand
noted that appellant had a sensory impairment of five percent and motor impairment of five
percent of the right arm. He noted that appellant also sustained a contusion to the right elbow
and forearm. Pursuant to Table 15-7, the grade modifier for functional history was one for one
percent impairment to the right arm for the elbow and forearm contusion. Dr. Fritzhand used the
Combined Values Chart to find a total of 11 percent permanent impairment to the right upper
extremity.
In a May 17, 2012 decision, an OWCP hearing representative affirmed the December 6,
2011 decision. She found that Dr. Fritzhand did not provide a well-reasoned opinion relating
appellant’s current conditions and permanent impairment to her accepted conditions.

3

Dr. Sweeney’s reports indicated that there was no objective evidence of appellant’s accepted conditions. He
also indicated that appellant had bilateral carpal tunnel syndrome which preexisted the 1998 work injury but could
be related to her long-standing repetitive work activities.

3

LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing federal regulations,5 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 for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.6 For decisions issued
after May 1, 2009, the sixth edition of the A.M.A., Guides will be used.7
A schedule award can be paid only for a condition related to an employment injury. The
claimant has the burden of proving that the condition for which a schedule award is sought is
causally related to his or her employment.8
ANALYSIS
OWCP accepted appellant’s claim for contusion to the elbow, neck sprain and right
shoulder strain. On September 22, 2011 appellant filed a claim for a schedule award. OWCP
denied appellant’s claim for a schedule award on the grounds that the medical evidence did not
support that she sustained permanent impairment as a result of the July 30, 1998 work injury.
The Board finds that appellant has not submitted medical evidence to support that her accepted
conditions caused permanent impairment to schedule body member.
Appellant submitted a report from Dr. Fritzhand who treated her for right elbow
contusion, neck sprain and reflex sympathetic dystrophy as musculoskeletal distress. She
reported that in July 1998 while she was offloading a truck her right elbow hit a mail container
injuring her right arm, neck, shoulder and elbow. Dr. Fritzhand noted a diagnosis of neck sprain
and that clinical evaluation and history and physical examination revealed C8 spinal nerve
impairment. He found that appellant sustained 11 percent impairment of the right arm for C8
spinal nerve impairment in accordance with the A.M.A., Guides and The Guides Newsletter.
Although Dr. Fritzhand generally indicated that appellant’s impairment was employment related,
he did provide a fully reasonable explanation of how the accepted conditions caused or
contributed to appellant’s C8 spinal nerve impairment. The Board notes that appellant’s
condition was not accepted for cervical degenerative disc disease or a C8 spinal nerve condition.
Dr. Fritzhand did not adequately explain how these conditions were work related.9 This is
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

7

FECA Bulletin No. 09-03 (issued March 15, 2009).

8

Veronica Williams, 56 ECAB 367 (2005).

9

See Jaja K. Asaramo, 55 ECAB 200 (2004) (where an employee claims that a condition not accepted or
approved by OWCP was due to an employment injury, he or she bears the burden of proof to establish that the
condition is causally related to the employment injury).

4

important because appellant was involved in an automobile accident in 2001 and sustained
injuries to her neck and shoulder. Furthermore, the record does not reflect that she received
medical treatment from early 2002 to early 2010. Dr. Fritzhand did not address the automobile
accident history or how it affected her condition. The Board notes that a medical opinion based
on an incomplete history is of diminished probative value.10
Appellant has the burden of proving that the condition for which a schedule award is
sought is causally related to his or her employment. While preexisting impairments of the body
are to be included,11 the Board has held that where the claimant has not established any
permanent impairment caused by the employment, the claim is not ripe for consideration of any
preexisting impairment.12 OWCP accepted that appellant sustained an elbow contusion, neck
sprain and right shoulder strain as a result of the July 30, 1998 work injury. No physician has
adequately explained how these accepted conditions caused permanent impairment of a
scheduled body member.
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 has permanent impairment of a
scheduled body member causally related to her 1998 work injury.

10

See Cowan Mullins, 8 ECAB 155, 158 (1955).

11

Lela M. Shaw, 51 ECAB 372 (2000).

12

Thomas P. Lavin, 57 ECAB 353 (2006).

5

ORDER
IT IS HEREBY ORDERED THAT May 17, 2012 Office of Workers’ Compensation
Programs’ decision is affirmed.
Issued: December 12, 2012
Washington, DC

Richard J. Daschbach, Chief 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
__________________________________________
B.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Akron, OH, Employer
__________________________________________

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

Docket No. 17-0070
Issued: September 14, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On October 17, 2016 appellant filed a timely appeal from a September 23, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a left arm
condition consequential to her accepted left lower extremity conditions.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances as
presented in the Board’s prior decisions are incorporated herein by reference. The relevant facts
are set forth below.
On October 25, 1996 appellant, then a 37-year-old clerk, filed an occupational disease
claim (Form CA-2) alleging that she had developed a fractured sesamoid bone as a result of
repeated walking on a concrete surface in the performance of duty. By decision dated
November 5, 1996, OWCP accepted her claim for a fractured fibular sesamoid of the left foot.
Appellant was placed on the periodic rolls for workers’ compensation effective
November 8, 1998. On May 19, 1999 OWCP accepted the additional condition of reflex
sympathetic dystrophy (RSD). Appellant retired from federal service effective June 17, 2000.
On April 29, 2009 OWCP granted appellant a schedule award for 80 percent permanent
impairment of her left lower extremity.
In a report dated October 9, 2012, Dr. Jeffrey Dulik, a Board-certified osteopath, noted
that appellant fractured her left wrist as a result of tripping over her grandson on his scooter and
falling on October 7, 2012.
In a report of the same date, Dr. Arsal Ahmad, Board-certified in physical medicine and
rehabilitation, remarked that on October 7, 2012, appellant “was getting something out of the
back seat of her car and fell as she was turning around. The fall was due to weakness of the left
leg. [Appellant] fell onto the arm.” Dr. Ahmad reported that appellant suffered a left radial
ulnar fracture as a result of this fall.
By letter dated January 2, 2013, appellant filed a claim for consequential injury to her left
arm. She noted that “On October 21, 2012, I retrieved some papers from the back seat of my car
closed the door, took 2 steps when my left leg buckled causing me to fall forward onto the
ground.… There were no obstacles or items that caused me to fall. I fell due to the previous
injury to my left foot and leg resulting in weakness, pain, etc….”
On February 11, 2013 OWCP received a Form CA-7, claim for compensation
commencing October 21, 2012. Appellant continued to submit Forms CA-7 for continuing
compensation.
By decision dated March 25, 2013, OWCP denied appellant’s claim for recurrence. It
found that she had not submitted sufficient medical evidence to establish a consequential left arm
injury as a result of the buckling of her left leg on October 21, 2012. OWCP noted that it had not
received a rationalized medical opinion linking her left arm injury to the originally accepted
condition.
On April 5, 2013 appellant requested reconsideration. By decision dated June 25, 2013,
OWCP reviewed the merits of her claim and denied modification of the March 25, 2013
2

Docket No. 16-0352 (issued April 14, 2016); Docket No. 13-0696 (issued April 8, 2013).

2

decision. It noted that appellant’s physician, Dr. Ahmad, had claimed that the consequential
injury occurred on October 7, 2012, whereas appellant claimed it occurred on October 21, 2012.
On July 11, 2013 appellant requested reconsideration of the June 25, 2013 decision.
With her request, she submitted progress notes from Dr. Ali Shakir, Board-certified in pain
medicine, and Dr. Ahmad, dated January 20 through June 28, 2013.
By decision dated July 19, 2013, OWCP denied appellant’s request for reconsideration
without reviewing the merits of her claim.
On August 15, 2013 appellant again requested reconsideration. With her request, she
submitted additional progress notes from Dr. Shakir and Dr. Ahmad, dated August 28 through
November 4, 2013.
In a letter dated September 26, 2013, Dr. Ahmad explained that appellant had RSD, and
that this condition caused her to fall and fracture her left radius and ulna.
On October 28, 2013 OWCP forwarded appellant’s claim to a district medical adviser
(DMA) to resolve the issue of whether she had a consequential condition related to the accepted
employment-related condition.
In a report dated November 4, 2013, the DMA reviewed appellant’s medical records and
concluded that she had not sustained a consequential condition. He noted that the RSD was no
longer used as a diagnosis, having been replaced with complex regional pain syndrome (CRPS).
Nonetheless, the DMA found that the medical records provided established neither RSD nor
CRPS.
By decision dated November 5, 2013, OWCP reviewed the merits of appellant’s claim,
but denied modification of the June 25, 2013 decision.
On January 13, 2014 appellant again requested reconsideration. With her request, she
submitted progress notes from Dr. Dulik and Dr. Ahmad, dating from December 30, 2013
through March 24, 2014.
By decision dated April 21, 2014, OWCP reviewed the merits of appellant’s claim, but
denied modification of the November 5, 2013 decision. It noted that the previous decision had
been made on the basis of all evidence received to that time and not merely the report of the
DMA.
By letter dated June 10, 2014, appellant indicated her election to receive FECA
compensation, rather than OPM retirement benefits at the end of her schedule award. She again
received wage-loss compensation on the periodic rolls commencing August 10, 2014.
On October 6, 2014 appellant again requested reconsideration. With her request, she
submitted progress notes from Dr. Mark Pellegrino, Board-certified in physical medicine and
rehabilitation, and Dr. Ahmad, dating between April 17 and September 26, 2014.

3

By decision dated October 16, 2014, OWCP denied appellant’s request for
reconsideration without reviewing the merits of her case. It noted that she had not provided any
medical reports containing a physician’s opinion on the cause of her claimed consequential
condition.
On December 11, 2014 appellant requested a hearing before an OWCP hearing
representative from a purported decision of November 25, 2014.
On January 7, 2015 the Branch of Hearings and Review responded, noting that there was
no final adverse decision dated November 25, 2014, and that as such appellant’s case was not in
posture for review.
On April 9, 2015 appellant again requested reconsideration of OWCP’s April 21, 2014
decision. With her request, she submitted progress notes from Dr. Ahmad dating from
January 13 through October 13, 2015.
On June 30, 2015 OWCP referred appellant for a second opinion physician in order to
determine whether she continued to suffer residuals from her work-related injury. It sent
Dr. Donald Mann, a Board-certified neurologist, an amended statement of accepted facts (SOAF)
dated March 31, 1998, in which OWCP noted that her claim had been accepted for a fractured
fibula sesamoid of the left foot at the first metatarsal phalangeal joint; surgery to remove the
sesamoid bone; surgery for transection of the deep peroneal nerve with resection of mass of the
third web space with resection of the interdigital web space; RSD; and insertion/removal of a
spinal cord stimulator. In a report dated July 28, 2015, Dr. Mann opined that appellant continued
to suffer RSD as a result of her August 9, 1996 work-related injury and was therefore medically
unable to return to her date-of-injury position. He concluded that her RSD had migrated from
the left foot to the trunk and then, after injury, to her left arm and hand.
By decision dated November 20, 2015, OWCP denied appellant’s request for
reconsideration of the merits of her claim. In this November 20, 2015 decision, it found that the
medical evidence submitted with her request for reconsideration consisted of a report from Jared
Stefanko, an osteopath, dated April 1, 2015, and progress notes pertaining to appellant’s left
shoulder and scapular pain, and left cervical radiculopathy.
On December 18, 2015 appellant appealed to the Board from OWCP’s November 20,
2015 decision.
By decision dated April 14, 2016, the Board set aside the November 20, 2015 decision
and remanded the case to OWCP for further development. The Board found that OWCP had not
analyzed the July 28, 2015 second opinion report of Dr. Mann, or Dr. Ahmad’s progress notes, in
rendering its November 20, 2015 decision.
Appellant continued to submit progress notes from Dr. Ahmad, dated from May 1
through August 9, 2016, in which he diagnosed her condition as RSD.
By merit decision dated September 19, 2016, OWCP expanded appellant’s claim to
include the condition of CRPS affecting the left lower extremity. It noted that it had accepted
her claim for RSD on May 19, 1999, but since that time RSD had been replaced by the diagnosis
4

of CRPS. OWCP further noted that, while it had accepted RSD of “other specified sites” on
May 19, 1999, the medical evidence demonstrated that her RSD was affecting the lower portion
of her left lower extremity and that, as such, her accepted diagnosis for RSD should reflect that
specific site.
By decision dated September 23, 2016, OWCP reviewed the merits of appellant’s claim
and denied modification of the April 21, 2014 decision. It analyzed Dr. Mann’s July 28, 2015
report, noting that he had not included a detailed history of her left arm injury, as the questions
posed to him pertained to her RSD. OWCP observed that the SOAF sent to him was flawed in
that the questions posed to his dealt with less specific conditions than the accepted conditions. It
determined that because Dr. Mann had responded to OWCP’s erroneous questions regarding less
specific conditions, his report could not be found to be based on an accurate factual and medical
history. OWCP further noted that he had concluded, with no rationale, that appellant’s RSD had
migrated to the left upper extremity following an injury in 2012. It also analyzed Dr. Ahmad’s
progress notes, finding that the chief complaint was leg pain, but that he failed to discuss the
reported injury to appellant’s left arm. OWCP found that the medical evidence contained a
conflicting history of injury, namely that Dr. Dulik reported that appellant had tripped over her
grandson on a scooter, whereas Dr. Ahmad reported that she fell due to weakness in her leg, and
because this conflicting history had not been corrected or clarified, she had not met her burden of
proof to establish a consequential injury.
LEGAL PRECEDENT
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.3
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.4
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
complete factual and medical background, showing causal relationship.5 The opinion 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.6

3

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

4

Charles W. Downey, 54 ECAB 421-23 (2003).

5

Id.

6

G.O., Docket No. 16-1113 (issued January 10, 2017).

5

Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.7 The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.8
ANALYSIS
OWCP accepted that appellant sustained a fractured fibular sesamoid of the left foot and
RSD affecting the left lower extremity on October 25, 1996. On January 2, 2013 appellant filed
a claim for a consequential injury to her left arm as a result of her left leg buckling from
weakness. OWCP subsequently denied her claim for consequential injury to her left arm.
The Board finds that OWCP improperly developed the medical evidence in this claim,
because it provided an incorrect SOAF to Dr. Mann, and thereafter denied the claim based on
aspects of his report which were impacted by the incorrect SOAF.
On January 2, 2013 appellant filed a claim for consequential injury to her left arm. She
recalled that “On October 21, 2012, I retrieved some papers from the back seat of my car closed
the door, took 2 steps when my left leg buckled causing me to fall forward onto the ground.…
There were no obstacles or items that caused me to fall. I fell due to the previous injury to my
left foot and leg resulting in weakness, pain, etc….”
On June 30, 2015 OWCP scheduled an appointment with a second opinion physician in
order to determine whether appellant continued to suffer residuals from her work-related injury.
It sent Dr. Mann an amended SOAF dated March 31, 1998, in which OWCP noted that her claim
had been accepted for a fractured fibula sesamoid of the left foot at the first metatarsal
phalangeal joint; surgery to remove the sesamoid bone; surgery for transection of the deep
peroneal nerve with resection of mass of the third web space with resection of the interdigital
web space; RSD; and insertion/removal of a spinal cord stimulator. In a report dated July 28,
2015, Dr. Mann, a Board-certified neurologist, opined that appellant continued to suffer RSD as
a result of her August 9, 1996 work-related injury, and was therefore medically unable to return
to her date-of-injury position. He concluded that her RSD had migrated from the left foot to the
trunk and then, after injury, to her left arm and hand.
OWCP explained on September 19, 2016 that appellant’s claim was updated to reflect
acceptance of CRPS affecting the left lower extremity, which since the initial May 19, 1999
acceptance had replaced the RSD diagnosis.
In its decision dated September 23, 2016, OWCP reviewed the merits of appellant’s
claim and affirmed its prior decision of April 21, 2014. It analyzed Dr. Mann’s July 28, 2015
report, noting that he had not included a detailed history of her left arm injury, as the questions
7

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

6

posed to him pertained to her RSD. OWCP observed that the SOAF sent to him was flawed in
that the questions posed dealt with less specific conditions than the accepted conditions. It
determined that because Dr. Mann had responded to OWCP’s erroneous questions regarding less
specific conditions, his report could not be found to be based on an accurate factual and medical
history.
It is well established that proceedings under FECA are not adversarial in nature, nor is
OWCP a disinterested arbiter. While the claimant has the burden of proof to establish
entitlement to compensation, OWCP shares responsibility in the development of the evidence to
see that justice is done.9 Once OWCP undertakes development of the record, it must do a
complete job in procuring medical evidence that will resolve the relevant issues in the case.10 In
this case, it provided an inaccurate and out-of-date SOAF to the second opinion examiner, then
rejected the second opinion examiner’s report based on incorrect information OWCP itself had
provided to him. As such, OWCP did not do a complete job in procuring medical evidence to
resolve the relevant issues in this case, and the case will be remanded for further development.
On remand, OWCP shall prepare a new SOAF and schedule another second opinion
appointment with Dr. Mann to answer OWCP’s queries based on the new SOAF. After such
further development of the case record as OWCP deems necessary, a de novo decision shall be
issued.
CONCLUSION
The Board finds that this case is not in posture for decision.

9

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

10

See M.E., Docket No. 16-0770 (issued July 26, 2016).

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 23, 2016 is set aside, and the case is remanded for
further action consistent with this opinion.
Issued: September 14, 2017
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINSTRATION,
San Diego, CA, Employer
__________________________________________

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

Docket No. 08-326
Issued: August 14, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 13, 2007 appellant, through her attorney, filed a timely appeal of the
Office of Workers’ Compensation Programs’ merit decision dated September 24, 2007 finding
that she had not established a condition causally related to her federal employment. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof in establishing that she
developed multiple chemical sensitivity or toxic encephalopathy due to exposures to fragrances
in her workplace.
FACTUAL HISTORY
On June 16, 2006 appellant, then a 48-year-old air traffic control specialist, filed an
occupational disease alleging that she developed toxic encephalopathy and multiple chemical
sensitivity due to exposure to a coworker’s cologne beginning on April 20, 2006. She stated that

she became extremely ill on May 11, 2006. In the accompanying statement, appellant alleged
that in February 2006 she found a coworker’s cologne disagreeable and that she began to
develop headaches due to his cologne in April 2006. On May 12, 2006 she developed a
headache, chemical taste in her mouth and tingling in her mouth, tongue and hands after
exposure to a coworker’s cologne. Appellant also noticed spots on her hands, experienced
shortness of breath, dizziness and nausea. She stated that she tripped walking down the stairs as
she left work and that the left side of her body felt strange. Appellant stated that she developed
an aversion to any chemical fragrance over the next several days. She also experienced mental
confusion, arthritis-like symptoms, loss of appetite and difficulty sleeping. Appellant stated that
her symptoms gradually abated and that her physician released her to return to work on
June 2, 2006. She noted that when she initially begun work at the employing establishment in
2005 she developed headaches, which she now believed were due to the perfume that her
supervisor wore.
Dr. Jeoffry Bruce Gordon, a Board-certified family practitioner, diagnosed toxic
encephalopathy on May 19, 2006 and stated that appellant required a fragrance-free
environment. In a report dated June 5, 2006, Dr. Gordon stated, “[Appellant] has an acute and
persistent multisystem clinical syndrome consistent with exposure to a toxic environmental
substance. As is common in cases like this, [appellant] gives a history of prior sensitivity to
various environmental substances which she was able to tolerate and minimize their impact by
repeated avoidance. In this case, because of the circumstances of her work environment this was
not possible. I doubt she has an ordinary allergy, infection, other bodily malfunction or
psychiatric syndrome…. Her diagnosis is toxic encephalopathy or multiple chemical sensitivity
syndrome.” Dr. Gordon opined that appellant’s condition was caused by her work environment,
specifically the cologne worn by her coworker.
In a letter dated June 26, 2006, the Office requested additional factual and medical
evidence in support of appellant’s claim. The employing establishment submitted a statement
from appellant’s coworker, Shawn C. Hagen, noting that on May 12, 2006 his supervisor
informed him that appellant was affected by the cologne he was wearing. Mr. Hagen agreed
voluntarily not to wear that particular cologne in appellant’s presence.
Appellant filed a traumatic injury claim for May 12, 2006, alleging that she developed
headaches and other symptoms following exposure to a coworker’s cologne. She submitted a
statement dated July 22, 2006 and stated that Mr. Hagen began training in February 2006 and
that his cologne impacted her then. Appellant noted that she was only exposed to Mr. Hagen for
brief periods in February 2006 as they were seldom both in the tower at the same time. The
exposures to Mr. Hagen and his cologne extended to 30 to 45 minutes at a time in April 2006.
Appellant stated, “I was scheduled to work with Mr. Hagan three days a week. Trying to avoid
exposure I took annual leave as much as I could, on the days when I was scheduled to work with
him. On the days that I had to work with him, I would ask to change my shift assignment to
minimize our shift overlap and my exposure. I would estimate my exposure to be one to two
days a week, between two and five hours per day, since early April.”
Appellant submitted an additional report from Dr. Gordon dated August 7, 2006
repeating his earlier diagnoses and conclusions. Dr Gordon further noted that he had relied on
testing from the emergency room and a Board-certified neurologist Dr. J. Steven Poceta, which

2

were normal. Dr. Gordon noted that Dr. John Montague, a psychologist, examined appellant and
found no diagnosable psychiatric condition.
By decision dated September 14, 2006, the Office denied appellant’s claim finding that
the medical evidence did not establish that her diagnosed condition of toxic encephalopathy or
multiple chemical sensitivity resulted from her exposure to a coworker’s cologne. Appellant,
through her attorney, requested an oral hearing on September 27, 2006. She submitted medical
records including a report dated May 25, 2006, which stated that appellant sought treatment due
to mental status changes. Dr. Poceta noted that on March 23, 2006 appellant reported symptoms
of confusion and paranoia. Appellant believed that a coworker was attempting to poison her
through toxic cologne and adding toxins to her water bottle. Dr. Poceta opined that appellant’s
condition was likely due to some underlying psychiatric condition or underlying encephalitis. In
a report dated August 11, 2006, he stated that appellant’s electroencephalogram and magnetic
resonance imaging scans were normal. Dr. Poceta diagnosed migraine “probably triggered by a
perfume.”
Dr. Montague, a clinical psychologist, completed a report on June 29, 2006 and described
appellant’s history of injury on May 12, 2006. He also provided a history of appellant’s
interactions with Mr. Hagen noting that he lived with her for a few days when he first began
working at the employing establishment. Dr. Montague stated:
“He moved to San Diego in late September 2005 and she thought that they had an
agreement that he would be there only temporarily while he looked for his own
residence.
Their relationship became increasingly contentious between
September and December 2005 and she came to believe that he ‘had the intent to
use me and move on.’ [Appellant] wanted him to move out and he did not, while
she did not want to be rude or have to put her foot down. He was scheduled to
leave for additional training and the day before he was to leave, she kicked him
out because he was rude to her.”
While Mr. Hagen lived with appellant she informed him that cologne and perfumes bothered her
so he stopped wearing scents. After he returned from training and began working with appellant,
his use of cologne increased. Appellant then asked for a sweatshirt back and he complained to
the union stating that she was embarrassing him and requesting protection from her. She was
instructed not to embarrass Mr. Hagen and he stopped speaking to her. Appellant alleged that his
cologne usage increased. Dr. Montague noted that appellant feared that Mr. Hagen had placed
pesticide in her water when she kicked him out of her apartment and that she feared that he
would take action to cause her to be unable to complete her training. He noted that she later
attributed these statements to her diminished mental capacity at the time. Dr. Montague
concluded that appellant did not have a diagnosable psychiatric condition, but stated that a
conversion disorder was difficult to rule out because of her diagnosis of multiple chemical
sensitivity syndrome. He noted that appellant had a conflicted relationship with Mr. Hagen and
that it was his cologne that triggered her somatic symptoms. Dr. Montague stated, “The
emotional distress that she felt over their relationship and the repressed hostility that I speculate
she had for him might have manifested in physical symptoms, including underpinning or
exacerbating her sensitivity to chemicals particularly the chemicals in his cologne.”

3

Dr. Kaye H. Kilburn, Board-certified in preventative medicine, completed a report on
November 9, 2006 noting appellant’s alleged employment-related exposure to cologne. He
provided the results of testing and diagnosed chemical encephalopathy due to cologne and other
chemicals, chemical intolerance due to cologne and other chemicals, visual impairment for color
and defects and impaired odor perception from cologne and other chemicals. Dr. Kilburn stated,
“A causal connection to cologne and other chemicals is most likely because there are no other
significant exposures and an absence of spontaneous or associated neurological or psychiatric
disease.”
In a report dated November 22, 2006, Dr. Gordon reviewed the medical evidence and
noted appellant’s history of injury. He stated that he ordered a brain single photon emission
computed tomography (SPECT) scan, which revealed decreased radiotracer uptake of the left
temporal lobes and was consistent with a toxic chemical injury to the brain. Dr. Gordon
concluded that appellant had an acute and persistent multisystem clinical syndrome due to
exposure to toxic environmental substances.
Appellant testified at a telephonic hearing on March 30, 2007. She stated that prior to
May 12, 2006 she had “chemical sensitivity” when carpets were installed or the building was
painted. Appellant noted increased symptoms at the end of 2005 including breathing problems
and heart palpitations. She noticed that these symptoms arose when she was present with others
who were wearing cologne or perfume, specifically Mr. Hagen. Appellant stated that she
worked three or four feet from Mr. Hagen. She stated that she believed that Mr. Hagen wore
Axe Body Spray. Appellant described the prior relationship with Mr. Hagen noting that he lived
with her from the end of September to the beginning of December 2005. Following the oral
hearing, she submitted a report dated June 7, 2007 from Dr. Terence M. Davidson, a Boardcertified surgeon of professorial rank, who diagnosed nasal chemical sensitivity and
recommended a fragrance free workplace.

4

The hearing representative issued a decision on July 11, 2007 and remanded the case for
the Office to combine the records and consider the reports of the second opinion physician
scheduled in a separate claim.1 The Office doubled the claims on July 10, 2007.
In a report dated May 11, 2007, Dr. Thomas C. Bruff, Board-certified in preventive
medicine and Office second opinion physician, noted appellant’s history of symptoms beginning
in August 2005. He described appellant’s symptoms on May 12, 2006 and her correlation of
these symptoms to her coworker’s use of scented products. Dr. Bruff provided the results of
appellant’s physical examination and diagnostic testing. He requested additional medical records
to ascertain whether the diagnosed condition of multiple chemical sensitivity had been
established. On August 18, 2007 Dr. Bruff reviewed additional medical reports and concluded
that appellant did not have altered anatomy or physiology that was the basis for her condition of
multiple chemical sensitivity. He stated, “The physical manifestations described by [appellant]
heart palpitations, visual hallucinations and numbness and tingling, are not the result of any odor
or exposure at her place of employment. She uses several devices which she states are helpful.
However, my experience with these products is that there is no physiologic basis for the
improvement with these products. The mask and ozone generator may provide psychologic
benefit, but that is all.” Dr. Bruff opined that appellant did not have a medical condition present
as a result of her employment.
Appellant submitted a grievance filed on July 10, 2006 regarding the excessive use of
fragrance products at the employing establishment.
By decision dated September 24, 2007, the Office denied appellant’s claim for an
occupational disease. It found that the weight of the medical opinion evidence rested with the
opinions of Dr. Bruff and that appellant’s condition was not causally related to cologne exposure
at work.
1

On November 3, 2006 appellant, then a 48-year-old air traffic control specialist, filed a traumatic injury claim
alleging that on October 18, 2006 she developed a throbbing headache, numbness on the side of her body, shortness
of breath and ringing in her ears due to exposure to noxious chemical odors from scented products. By decision
dated December 19, 2006, the Office accepted her claim for temporary aggravation of toxic encephalopathy which
resolved by October 30, 2006. This claim does not contain an adverse decision and the Board will not consider it on
appeal. 20 C.F.R. § 501.2(c).
Appellant filed a second traumatic injury claim for exposure to noxious chemicals on December 15, 2006 alleging
on December 5, 2006 she developed shortness of breath, throbbing headache, numbness on the side of her face,
ringing in her ears and “problems with her right eye.” By decision dated September 6, 2007, the Office denied
appellant’s claim finding that the medical evidence submitted was not sufficient to establish a diagnosed condition.
Appellant, through her attorney, requested a telephonic hearing on the September 6, 2007 decision on
September 15, 2007. The record before the Board does not contain a final decision on this claim as appellant has
requested a telephonic hearing before the Branch of Hearings and Review and the Board will not address the
December 15, 2006 exposure on appeal. 20 C.F.R. § 501.2(c).
Appellant filed a claim for chemical exposure on January 27, 2007 alleging that she was exposed to noxious
chemical odors from scented products. By decision dated September 25, 2007, the Office denied appellant’s claim
finding that she had not established the employment exposure alleged. Appellant, through her attorney, requested a
telephonic hearing on September 29, 2007. The record before the Board does not contain a final decision on this
claim as appellant has requested a telephonic hearing before the Branch of Hearings and Review. Therefore, the
Board will not consider this claim on appeal. 20 C.F.R. § 501.2(c).

5

LEGAL PRECEDENT
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of a disease or condition for which compensation is claimed; (2) a factual
statement identifying the employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical opinion must be one of reasonable medical certainty and must be supported by
medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the claimant.2
The Federal Employees’ Compensation Act provides that, if there is a disagreement
between the physician making the examination for the United States and the physician of the
employee, the Secretary shall appoint a third physician who shall make an examination.3 The
implementing regulation states that, if a conflict exists between the medical opinion of the
employee’s physician and the medical opinion of either a second opinion physician of an Office
medical adviser or consultant, the Office shall appoint a third physician to make an examination.
This is called a referee examination and the Office will select a physician who is qualified in the
appropriate specialty and who has had no prior connection with the case.4
ANALYSIS
Appellant alleged that she developed multiple chemical sensitivity due to exposure to a
coworker’s cologne in the performance of her federal job duties. She submitted medical reports
from several physicians diagnosing multiple chemical sensitivities. Dr. Gordon, a Boardcertified family practitioner, attributed appellant’s multiple chemical sensitivity to her
coworker’s cologne. He referred appellant to Dr. Kilburn, Board-certified in preventive
medicine, who noted appellant’s history of exposure, reviewed her test results and diagnosed
chemical encephalopathy due to cologne. Dr. Gordon stated that a causal connection between
appellant’s diagnosed condition and her employment exposure was likely as there was no
neurological or psychiatric disease. In a report dated November 22, 2006, he noted that
additional test results including a SPECT scan were consistent with a toxic chemical injury to the
brain.
The Office referred appellant for a second opinion evaluation with Dr. Bruff, Boardcertified in preventive medicine. Dr. Bruff determined that, based on his examination and
review of the medical records, appellant did not have the altered anatomy or physiology
necessary for the diagnosis of multiple chemical sensitivity.5
2

Solomon Polen, 51 ECAB 341, 343-44 (2000).

3

5 U.S.C. §§ 8101-8193, 8123.

4

20 C.F.R. § 10.321.

5

It is not clear from the record that Dr. Bruff reviewed the results of the SPECT scan upon which Dr. Gordon
relied in his November 2006 report.

6

The Board finds that there is an unresolved conflict of medical opinion evidence between
Dr. Bruff who found that appellant had no medical condition as a result of her employment
exposures and appellant’s physicians Dr. Gordon and Dr. Kilburn who found as a result of
diagnostic testing that appellant’s condition was multiple chemical sensitivity or toxic
encephalopathy which was due to her employment exposures. Due to the differing opinion
between appellant’s physicians and the Office second opinion physician, this case must be
remanded for referral to an impartial medical specialist. On remand, the Office should refer
appellant, a statement of accepted facts and a list of specific questions to an appropriate Boardcertified physician, to determine whether her diagnosed condition of multiple chemical
sensitivity exists and is due to her accepted employment exposures.
CONCLUSION
The Board finds that the case is not in posture for decision and must be remanded for the
Office to resolve the conflict of medical opinion evidence.
ORDER
IT IS HEREBY ORDERED THAT the September 24, 2007 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further development with this
decision of the Board.
Issued: August 14, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7