United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

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

Docket No. 15-1283
Issued: September 2, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On May 18, 2015 appellant filed a timely appeal of a December 15, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). Since more than 180 days
elapsed from the most recent merit decision dated January 17, 2014 to the filing of this appeal,
the Board lacks jurisdiction to review the merits of the claim, pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was insufficient to warrant merit review of the claim.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 15, 2010 appellant, then a 61-year-old supervisory production controller,
filed a CA-2 (claim for occupational disease or illness) alleging that he sustained “possible
cancer associated with asbestos exposure.” In an accompanying statement, he alleged that he
was exposed to insulation and other sources of asbestos since 1974. Appellant stated that cancer
in his chest and stomach area could have been caused by long-term asbestos exposure.
As part of the development of the medical evidence, appellant was referred for a second
opinion examination by a specialist in pulmonary disease. In a report dated September 1, 2011,
Dr. Robert Cox, a Board-certified internist specializing in pulmonary disease, provided a history
and results on examination. He stated that appellant had a mild-to-moderate obstructive lung
disease, perhaps asthma, but there was no evidence by computerized tomography (CT) scan of
asbestos-related lung disease. Dr. Cox indicated that appellant had carcinoma of the esophagus
and was postsurgery, radiation, and chemotherapy.
By decision dated November 3, 2011, OWCP denied the claim for compensation. It
found that the medical evidence failed to establish a diagnosed condition causally related to
asbestos exposure in his federal employment.
The record indicates that appellant was also referred for a second opinion examination by
Dr. Robert Levenson, an oncologist. In a report dated November 7, 2011, Dr. Levenson opined
that appellant’s adenocarcinoma of the esophagus was not causally related to asbestos exposure.
Appellant continued to submit evidence with respect to treatment for esophageal cancer.
Appellant submitted a request for reconsideration on October 19, 2012. He submitted a
September 2008 medical article on mesothelioma.
In a decision dated November 29, 2012, OWCP reviewed the case on its merits and
denied modification. On October 1, 2013 appellant again requested reconsideration. He stated
that he was submitting an x-ray report, but no medical evidence was received. By decision dated
January 17, 2014, OWCP reviewed the case on its merits and denied modification.
On December 1, 2014 appellant requested reconsideration. He submitted an October 9,
2014 report from Dr. Alan Schonfeld, an osteopath specializing in pulmonary medicine.
Dr. Schonfeld provided a history discussing appellant’s exposure to asbestos in his federal
employment.
He provided results on examination and pulmonary function testing.
Dr. Schonfeld opined that given appellant’s history of significant exposure to asbestos in the
workplace, given an appropriate latency, and given the roentgenographic findings, “I feel with a
reasonable degree of medical certainty that [appellant] is diagnosed as having bilateral asbestosrelated pleural disease.” He concluded that appellant was at increased risk of developing lung
cancer and mesothelioma.
By decision dated December 15, 2014, OWCP denied merit review of the claim. It stated
that the October 9, 2014 report “did not contain information relevant to the issue in this claim.”
According to OWCP, appellant had claimed esophageal cancer due to asbestos exposure, and the

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report submitted discussed only asbestos exposure, with no rationale as to how it caused the
cancer condition.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2
OWCP’s regulations provide that a claimant may obtain review of the merits of the claim by
submitting a written application for reconsideration that sets forth arguments and contains
evidence that either: “(i) shows that OWCP erroneously applied or interpreted a specific point of
law; (ii) advances a relevant legal argument not previously considered by OWCP; or
(iii) constitutes relevant and pertinent evidence not previously considered by OWCP.”3
20 C.F.R. § 10.608(b) states that any application for review that does not meet at least one of the
requirements listed in 20 C.F.R. § 10.606(b)(3) will be denied by OWCP without review of the
merits of the claim.4
ANALYSIS
In the present case, OWCP had denied appellant’s claim for a medical condition casually
related to asbestos exposure in federal employment. The last decision on the merits of the claim
was January 17, 2014. Appellant submitted a request for reconsideration on October 19, 2014.
He did not attempt to show that OWCP erroneously applied or interpreted a specific point of law,
or advance a relevant legal argument not previously considered by OWCP.
Appellant did, however, submit an October 9, 2014 report from Dr. Schonfeld, a
pulmonologist. OWCP finds that this was irrelevant because appellant’s claim was that his
esophageal cancer was related to asbestos exposure. The Board disagrees with OWCP’s finding
in this regard. Appellant’s claim was for an injury resulting from asbestos exposure, including a
possible pulmonary condition. OWCP initially referred appellant for a second opinion
examination by Dr. Cox, a pulmonary specialist. Dr. Cox provided an opinion that appellant did
not have an asbestos-related lung condition.
The October 9, 2014 report constitutes new medical evidence that is relevant to the issue
of whether appellant has an asbestos-related lung condition. This represents relevant and
pertinent evidence not previously considered by OWCP. It is not necessary that the evidence be
sufficient to establish the claim, only that it is new, relevant, and pertinent to the issue
presented.5

2

5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application”).
3

20 C.F.R. § 10.606(b)(3).

4

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

5

See C.L., Docket No. 14-1904 (issued May 18, 2015).

3

The Board finds that appellant met the requirement of 20 C.F.R. § 10.606(b)(3) in this
case. Appellant was therefore entitled to a review of the merits of his claim for compensation.
The case will be remanded to OWCP for a proper decision on the merits.
CONCLUSION
The Board finds that appellant was entitled to a review of the merits of the claim.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 15, 2014 is set aside and the case remanded to OWCP
for action consistent with this decision of the Board.
Issued: September 2, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.G., claiming as widow of D.G., Appellant
and
U.S. AGENCY FOR INTERNATIONAL
DEVELOPMENT, Washington, DC, Employer
__________________________________________

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Docket No. 13-1113
Issued: July 25, 2013

Appearances:
J. Michael Hannon, Esq., for the appellant
Office of Solicitor, for the Director

ORDER GRANTING MOTION TO REVERSE
AND REMAND FOR PAYMENT
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

On April 5, 2013 appellant, through her counsel, filed for review of an October 10, 2012
decision of the Office of Workers’ Compensation Programs (OWCP). The appeal was docketed
as No. 13-1113.
On June 10, 2013 the Director of OWCP submitted a motion to reverse the October 10,
2012 decision and remand the case for payment of compensation. Counsel filed a consent and
joinder to the motion on June 11, 2013.1
The Board, having reviewed the motion, finds that the motion should be granted. The
Director acknowledges that, under the particular facts and circumstances of this case, the
employee’s posting as a Foreign Service Officer for the employing establishment in Kazakhstan
contributed to his death on January 27, 2010. The Director noted Board precedent stating that
where an employee is sent by the employing establishment to a place where adequate medical
facilities are not available or attainable, then disability or death resulting from such inadequacy is

1

The Board notes appellant had requested oral argument before the Board. In view of granting the Director’s
motion to reverse OWCP’s decision and remand the case, the Board will not address the oral argument request.

compensable under FECA.2 Based on the evidence of record, the Board finds that the Director’s
motion should be granted. The case will be remanded to OWCP for payment of compensation in
accord with the Director’s June 10, 2013 motion.
IT IS HEREBY ORDERED THAT the Motion to Reverse and Remand for Payment be
granted.
Issued: July 25, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

2

See Thomas D. Wilson, 33 ECAB 384 (1981); Aileen M. Winters, 16 ECAB 551 (1965).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
U.S. POSTAL SERVICE, AKELEY POST
OFFICE, Akeley, MN, Employer
__________________________________________

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

Docket No. 19-0812
Issued: September 29, 2020

Case Submitted on the Record

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

JURISDICTION
On March 8, 2019 appellant filed a timely appeal from a February 26, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP).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.3

1

Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). By order dated July 20, 2020,
the Board exercised its discretion and denied the request, finding that the arguments on appeal could adequately be
addressed based on the case record. Order Denying Request for Oral Argument, Docket No. 19-0812 (issued
July 20, 2020).
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the February 26, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish right carpal tunnel
syndrome (CTS) causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On January 11, 2019 appellant, then a 38-year-old rural carrier, filed an occupational
disease claim (Form CA-2) alleging that he sustained right-sided CTS causally related to factors
of his federal employment. He indicated that he first became aware of his condition and its
relationship to his federal employment on November 21, 2018. Appellant did not stop work.
In a development letter dated January 22, 2019, OWCP informed appellant that the
evidence of record was insufficient to establish his claim. It advised him of the type of factual and
medical evidence needed and provided a questionnaire for his completion. The questionnaire
requested that appellant describe in detail the employment duties which he believed contributed to
his condition and requested that he provide a physician’s opinion, supported by medical rationale,
as to how those duties caused or aggravated his medical condition. It afforded him 30 days to
submit additional evidence and to respond to its inquiries.
On January 27, 2019 appellant completed the questionnaire. He explained that he had
delivered mail for 12 years out of a right-sided vehicle window, and that he had used his dominant
hand for sorting mail. Appellant alleged that these repetitive motions had aggravated an alreadyweak right arm and wrist. He indicated that he performed the described activities of sorting and
delivering mail for 8 hours per day, 40 hours per week. Appellant noted that he had recently
undergone a right elbow repair. Regarding the development of his condition, he indicated that he
had noticed it intermittently for two years, and that the condition was aggravated by the volume of
mail and delivery with the right hand. Appellant further noted that it had become a daily issue as
of October 2018 with symptoms including numbness of the hand and pain of the wrist. He
explained that steroid injections had allowed him to work through Christmas and that he required
surgery.
In a supplemental statement dated January 11, 2019, received on February 4, 2019,
appellant explained that, on October 2, 2018, he was seen for on-going pain in his wrist, which
required splints and a steroid injection for the diagnosed CTS condition. He alleged that the CTS
was due to repetitive motion in his federal employment.
OWCP also received occupational therapy progress notes dated November 15, 2018,
wherein Ashlee M. Lee, an occupational therapist, described decreased range of motion, strength,
edema, and pain of the right upper extremity. Ms. Lee noted a diagnosis of right cubital tunnel
syndrome and right CTS and a method of injury of overuse. She recommended a right long arm
elbow splint and a right volar wrist splint with nerve glides.
In progress notes dated November 17, 2018, Dr. Tibor T. Warganich, a Board-certified
orthopedic surgeon, indicated that he had examined appellant for complaints of numbness and
tingling in the median nerve distribution of the right upper extremity. He noted that appellant was
right-hand dominant with no significant past medical history. Dr. Warganich indicated that
appellant performed occasional heavy lifting and light construction work at home. He noted a
2

history of right lateral epicondylitis status post-surgery two years prior. On physical examination
of the right upper extremity, Dr. Warganich observed pink and perfused digits with no evidence
of acute compressive neuropathy. He further observed a mild Tinel’s sign bilaterally, more on the
right than the left, and negative compression, Phalen’s, and reverse Phalen’s tests bilaterally. Twopoint discrimination was less than six millimeters in the median and ulnar nerve distributions.
Dr. Warganich noted no thenar or intrinsic atrophy and no Tinel’s sign at the cubital tunnels. He
diagnosed mild intermittent right CTS. Dr. Warganich recommended use of a volar splint and
administered a corticosteroid injection. He opined that he suspected appellant’s CTS was a chronic
condition that may have been exacerbated by work. Dr. Warganich further observed that appellant
did not have any high-vibration tools at work that could be linked the CTS.
In progress notes dated January 5, 2019, Dr. Warganich examined appellant for increasing
symptoms of right-sided CTS despite conservative treatment, along with bilateral medial
epicondylitis. He told appellant that he likely had ongoing and chronic CTS exacerbated by work,
but that he had not worked with high-vibration tools, which were the most widely accepted workrelated cause of CTS. On physical examination of the right upper extremity, Dr. Warganich
observed a positive compression test at 20 seconds in the right carpal tunnel, a mild Tinel’s sign
for bilateral cubital tunnel syndrome, and two-point discrimination at six millimeters in the
bilateral median and ulnar nerve distributions. He noted that an electromyogram (EMG)
demonstrated mild right-sided CTS. Dr. Warganich diagnosed right-sided CTS and recommended
surgery.
In a letter dated January 28, 2019, the employing establishment challenged appellant’s
claim. It contended that based on a January 5, 2019 report by Dr. Warganich, appellant had not
established causal relationship between work factors and his diagnosed right-sided CTS.
In an after visit summary from a physician with an illegible signature, dated January 22,
2019, noted a diagnosis of CTS of the right upper limb and explained that the injury was incurred
from repetitive motions of the wrist while delivering mail. The physician noted that appellant had
undergone an injection and that surgery was scheduled to occur the following week.
In another report from a physician with an illegible signature, dated January 22, 2019, it
was noted that appellant was examined for complaints of right wrist pain. The report described
appellant’s history of injury as repetitive motions from using the wrist to deliver mail. On physical
examination of the right wrist, the physician observed pain over the radial-carpal articulation and
diagnosed CTS of the right upper limb. The physician noted that appellant had surgery on
January 30, 2019 for CTS.
In an after visit summary dated February 19, 2019, Megan Askelson, a certified nurse
practitioner, indicated that appellant was on restricted work duty, due to right carpal tunnel
syndrome. She also noted that appellant had sustained a right wrist injury from repetitive motions
while delivering mail. In a report dated February 21, 2019, Ms. Askelson examined appellant for
complaints of right wrist pain. She described appellant’s history of injury as repetitive motions
from using the wrist to deliver mail. Appellant told Ms. Askelson that he was doing well after
surgery and that his subjective symptoms had ceased to include numbness, but tingling, some
weakness, some range of motion restriction, and minimal pain remained. On physical examination
of the right wrist, Ms. Askelson observed limited range of motion and strength with scarring over
the wrist extensor surface. She diagnosed CTS of the right upper limb, post carpal tunnel release.
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Ms. Askelson recommended work restrictions of occasional lifting of no more than five pounds
with the right wrist.
By decision dated February 26, 2019, OWCP denied appellant’s claim finding that the
medical evidence of record was insufficient to establish that his diagnosed condition was causally
related to the accepted factors of his federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA, that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the identified employment factors.6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.7 The opinion of the physician must be based on a complete factual
and medical background, must be one of reasonable medical certainty, and must be supported by
medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment incident.8
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish right CTS
causally related to the accepted factors of his federal employment.
On November 17, 2018 Dr. Warganich diagnosed mild intermittent right CTS. He opined
that he suspected appellant’s CTS was a chronic condition that may have been exacerbated by
4

Supra note 2.

5
C.K., Docket No. 19-1549 (issued June 30, 2020); R.G., Docket No. 19-0233 (issued July 16, 2019); Elaine
Pendleton, 40 ECAB 1143 (1989).
6

L.D., Docket No. 19-1301 (issued January 29, 2020); S.C., Docket No. 18-1242 (issued March 13, 2019); Victor J.
Woodhams, 41 ECAB 345, 352 (1989).
7

I.J., Docket No. 19-1343 (issued February 26, 2020); T.H., 59 ECAB 388 (2008); Robert G. Morris, 48 ECAB
238 (1996).
8

D.J., Docket No. 19-1301 (issued January 29, 2020).

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work. Dr. Warganich observed that appellant did not have any high-vibration tools at work that
could be linked to the CTS. On January 5, 2019 he opined that appellant likely had ongoing and
chronic CTS exacerbated by work, but again noted that appellant did not work with any highvibration tools, which were the most widely accepted work-related cause of CTS. The Board has
found that, while the opinion of a physician supporting causal relationship need not be one of
absolute medical certainty, it must not be speculative or equivocal. The opinion should be
expressed in terms of a reasonable degree of medical certainty.9 Dr. Warganich’s opinions as to
the cause of appellant’s right wrist CTS was not expressed in terms of a reasonable degree of
medical certainty, instead referring to a suspicion that it was a chronic condition and that it may
have been or likely was exacerbated by his work. The Board thus finds that the medical reports of
Dr. Warganich are not well rationalized and are of limited probative value on the issue of causal
relationship.
Appellant submitted reports and notes from a physician with an illegible signature. The
Board has held that a report bearing an illegible signature lacks proper identification and cannot
be considered probative medical evidence.10 Thus, these reports remain of no probative value and
are insufficient to establish appellant’s claim.
Appellant also submitted treatment records from occupational therapists and from
Ms. Askelson, a nurse practitioner. However, these records do not constitute competent medical
evidence because occupational therapists and nurse practitioners are not considered physicians as
defined under FECA.11 As such, this evidence is of no probative value and is insufficient to meet
appellant’s burden of proof.
As the medical evidence of record is insufficient to establish that appellant’s right CTS was
causally related to the accepted employment factors, the Board finds that appellant has not met his
burden of proof to establish his claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

9

P.W., Docket No. 20-0407 (issued July 17, 2020); Ricky S. Storms, 52 ECAB 349 (2001).

10

C.N., Docket No. 16-1597 (issued August 10, 2017); see A.B., Docket No. 17-0545 (issued June 15, 2017);
Merton J. Sills, 39 ECAB 572, 575 (1988).
11

5 U.S.C. § 8101(2) provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law.
See also 20 C.F.R. § 10.5(t); Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter
2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician
assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA). E.B., Docket
No. 19-1548 (issued July 14, 2020) and R.S., Docket No. 16-1303 (issued December 2, 2016) (an occupational
therapist is not considered a physician under FECA); L.C., Docket No. 16-1717 (issued March 2, 2017) (a nurse
practitioner is not considered a physician under FECA).

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CONCLUSION
The Board finds that appellant has not met his burden of proof to establish right CTS
causally related to the accepted factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the February 26, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 29, 2020
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.V., Appellant
and
DEPARTMENT OF THE ARMY,
INSTALLATION MANAGEMENT
COMMAND, Yuma, AZ, Employer
__________________________________________

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

Docket No. 18-0552
Issued: November 5, 2018

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 January 19, 2018 appellant filed a timely appeal from a January 2, 2018 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 to
consider the merits of this case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish consequential
binaural hearing loss.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the January 2, 2018 decision, OWCP received additional evidence. However, the
Board’s jurisdiction is limited to the evidence that was in the record at the time OWCP issued its final decision. Thus,
the Board is precluded from reviewing this additional evidence for the first time on appeal. See 20 C.F.R.
§ 501.2(c)(1).

FACTUAL HISTORY
On February 17, 2015 appellant, then a 47-year-old supervisory safety and occupational
health manager, filed an occupational disease claim (Form CA-2) alleging that he developed
sinusitis as the result of exposure to mold at his worksite. He noted that he first became aware of
his claimed condition on October 20, 2014, but did not realize its relationship to his federal
employment until February 15, 2015. Appellant did not stop work. OWCP accepted the claim for
acute bronchitis and chronic frontal sinusitis.
In a March 20, 2017 report, Dr. Robert Smythe, a treating physician Board-certified in
internal and bariatic medicines, diagnosed sinusitis and noted that appellant had been a patient
since September 24, 2010. He observed bilateral ear and sinus cavity blockage and severe
swelling. Dr. Smythe attributed appellant’s hearing loss and severe scar tissue to the nasal
blockage and prolonged ear canal swelling. He noted that appellant had reached maximum
medical improvement.
On March 26, 2017 appellant filed a claim for a schedule award (Form CA-7).
On March 30, 2017 OWCP received hearing conservation data containing audiogram
results from September 4, 2007 and March 28, 2017.
In a March 30, 2017 development letter, OWCP informed appellant of the conditions that
had been accepted for his claim. It indicated that hearing loss was not accepted and advised him
of the type of factual and medical evidence necessary to establish a consequential hearing loss
claim. Appellant was provided a questionnaire to complete. OWCP afforded him 30 days to
provide the necessary evidence.
On April 13, 2012 appellant completed and returned the questionnaire sent by OWCP.
By letter dated April 26, 2017, OWCP referred appellant to Dr. Jennifer H. Macewan, a
physician specializing in otolaryngology, for otologic examination and audiological evaluation.
In a May 4, 2017 report, Dr. Macewan diagnosed binaural sensorineural hearing loss,
which she opined was not employment related. In support of this conclusion she noted the canal
swelling, as documented by Dr. Smythe, would cause conductive hearing loss while appellant’s
hearing loss was sensorineural. Therefore, appellant’s hearing loss was not caused by the accepted
work conditions.
By decision dated June 6, 2017, OWCP denied appellant’s request to expand acceptance
of his claim to include a consequential binaural hearing loss. It found Dr. Macewan’s opinion,
that appellant’s hearing loss was not employment related, constituted the weight of the medical
opinion evidence.
On June 13, 2017 appellant requested an oral hearing before an OWCP hearing
representative. A telephonic hearing was held on November 6, 2017.

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In a November 8, 2017 report, Dr. Smythe diagnosed chronic sinusitis and bronchial
infection due to mold exposure at work. He attributed appellant’s hearing impairment to severe
bilateral ear canal scar tissue.
By decision dated January 2, 2018, the hearing representative affirmed the June 6, 2017
decision denying appellant’s claim for a consequential hearing loss. He found Dr. Macewan’s
report constituted the weight of the medical opinion evidence.
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 attributable to the employee’s own intentional conduct.3 The basic rule is that 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 With respect
to consequential injuries, the Board has held that, where an injury is sustained as a consequence
of an impairment residual to an employment injury, the new or second injury, even though
nonemployment related, is deemed, because of the chain of causation to arise out of and in the
course of employment and is compensable.5
A claimant bears the burden of proof to establish a claim for a consequential injury. As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, showing causal relationship. Rationalized medical
evidence is an opinion of reasonable medical certainty supported by sound medical rationale
explaining the nature of the relationship of the diagnosed condition and the specific employment
factors or employment injury.6
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish consequential
binaural hearing loss.
In support of his claim appellant submitted March 20 and November 8, 2017 reports from
Dr. Smythe detailing appellant’s history of injury and provided examination findings. Dr. Smythe
diagnosed sensorineural hearing loss, which he attributed to appellant’s accepted conditions of
chronic sinusitis and bronchial infection, due to mold exposure at work. Although he related
appellant’s hearing loss to scar tissue caused by nasal blockage and ear canal swelling, he did not
3
Albert F. Ranieri, 55 ECAB 598 (2004); Clement Jay After Buffalo, 45 ECAB 707 (1994); John R. Knox, 42
ECAB 193 (1990).
4

S.M., 58 ECAB 166 (2006); Debra L. Dillworth, 57 ECAB 516 (2006); Carlos A. Marrero, 50 ECAB 117 (1998);
A. Larson, The Law of Workers’ Compensation § 10.01 (2005).
5

L.S., Docket No. 08-1270 (issued July 2, 2009); Kathy A. Kelley, 55 ECAB 206 (2004).

6

J.B., Docket No. 14-1474 (issued March 13, 2015).

3

explain how the bilateral ear canal scar tissue caused appellant’s diagnosed bilateral sensorineural
hearing loss. Although, Dr. Smythe provided an affirmative opinion on causal relationship, the
Board finds that he did not provide medical rationale supporting his conclusion that appellant’s
hearing loss was a consequence of his accepted employment injury. A medical report is of limited
probative value when the opinion on causal relationship lacks medical rationale.7
OWCP referred appellant to Dr. Macewan for a second opinion evaluation. In a May 4,
2017 report, Dr. Macewan diagnosed binaural sensorineural hearing loss, which she concluded
was unrelated to appellant’s federal employment. She determined that as appellant’s hearing loss
was sensorineural it was not employment related. Dr. Macewan explained that the canal swelling
Dr. Smythe documented would cause conductive hearing loss and not sensorineural hearing loss.
Thus, appellant’s hearing loss was not caused by the accepted employment factors as it was not
conductive in nature, but rather sensorineural. Dr. Macewan provided examination findings and a
reasoned opinion explaining why appellant’s hearing loss was not a consequence of his accepted
employment injury. As her opinion was based on a proper factual and medical history, and was
supported by medical rationale, it constitutes the weight of the medical evidence.8
The Board finds that the medical evidence of record is insufficient to establish that
consequential binaural hearing loss. Appellant, therefore, has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish consequential
binaural hearing loss.

7

See T.T., Docket No. 17-0471 (issued August 8, 2017); Debra L. Dillworth, 57 ECAB 516 (2006).

8

See L.G., Docket No. 17-1448 (issued December 19, 2017); M.I., Docket No. 16-0759 (issued June 10, 2016).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated January 2, 2018 is affirmed.
Issued: November 5, 2018
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
DEPARTMENT OF THE ARMY, CORPUS
CHRISTIE ARMY DEPOT, Corpus Christi, TX,
Employer
__________________________________________

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

Docket No. 19-0125
Issued: August 16, 2019

Case Submitted on the Record

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

JURISDICTION
On October 22, 2018 appellant filed a timely appeal from an August 28, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.3

1

The August 28, 2018 OWCP decision supersedes an August 27, 2018 duplicative decision.

2

5 U.S.C. § 8101 et seq.

3

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

ISSUE
The issue is whether appellant has met his burden of proof to establish more than four
percent permanent impairment of his right upper extremity, for which he has previously received
a schedule award.
FACTUAL HISTORY
On November 10, 2015 appellant, then a 58-year-old machinist, filed an occupational
disease claim (Form CA-2) alleging that he sustained bilateral arm and hand conditions as a result
of 33 years of performing repetitious tasks involving his arms and hands while in the performance
of duty. He first became aware of his condition and that it was caused or aggravated by his federal
employment on October 13, 2015. OWCP accepted the claim for bilateral wrist sprains, and
bilateral carpal tunnel syndrome. Appellant underwent an authorized May 9, 2016 right carpal
tunnel release and a May 20, 2016 left carpal tunnel release.
On February 10, 2017 appellant filed a claim for a schedule award (Form CA-7).
In support of his claim appellant submitted a September 26, 2016 report by Dr. Charles W.
Kennedy, Jr., a Board-certified orthopedic surgeon, who evaluated appellant and diagnosed
bilateral carpal tunnel syndrome. He opined that appellant reached maximum medical
improvement (MMI) on August 23, 2016 when he was released by his hand surgeon. Under Table
15-21, Peripheral Nerve Impairment, of the sixth edition of the American Medical Association
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),4 Dr. Kennedy opined that
appellant had five percent right upper extremity permanent impairment. He noted that appellant
had some sensory problems, but no motor deficits. A copy of his disability evaluation was
enclosed along with an activities of daily living (ADL) questionnaire, a pain disability
questionnaire, and a QuickDASH form. Physical examination findings of the right and left hand
revealed seven millimeter two-point discrimination, 5/5 measurements for ulna, intrinsic, and
thumb abduction oppositions, and negative Tinel’s and Phalen’s tests.
OWCP forwarded Dr. Kennedy’s impairment report, appellant’s medical record and a
statement of accepted facts to Dr. David J. Slutsky, a Board-certified orthopedic surgeon serving
as an OWCP district medical adviser (DMA). In a March 13, 2017 report, the DMA indicated that
the medical evidence of record lacked sufficient detail for a permanent impairment determination.
In a development letter dated July 14, 2017, OWCP informed appellant that additional
medical evidence was necessary to establish his schedule award claim. It requested that he obtain
further information from Dr. Kennedy regarding the medical documentation referenced in the
DMA’s report. OWCP afforded appellant 30 days to submit the necessary evidence.
In a July 18, 2017 supplemental report, Dr. Kennedy reiterated that appellant reached MMI
on August 23, 2016. He indicated at the time of his September 26, 2016 evaluation, appellant had
full active range of motion, no atrophy, and two-point discrimination of seven millimeters of both
hands. Dr. Kennedy further indicated that appellant had subjective decreased sensitivity of the
4

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

2

thumb, index finger, and long finger. He opined that, under Table 15-21 of the A.M.A., Guides,
appellant had five percent impairment for the right hand as there were some sensory problems, but
no motor deficits. Dr. Kennedy noted that appellant had completed the QuickDASH and the ADL
questionnaire.
In an August 29, 2017 report, the DMA reviewed Dr. Kennedy’s reports of September 26,
2016 and July 18, 2017. He indicated that the date of MMI was August 23, 2016. The DMA
opined that appellant had four percent permanent impairment of the right upper extremity. He
provided an impairment rating utilizing Table 15-23, Entrapment/Compression neuropathy of the
A.M.A., Guides, for the accepted right carpal tunnel syndrome.5 The DMA assigned: a grade
modifier 2 for test findings as there was distal median nerve conduction blockage; a grade modifier
1 for history due to subjective decreased sensation of the thumb, index and middle finger; and a
grade modifier 2 for clinical studies. He found that the grade modifiers totaled 5 and averaged
1.66, which rounded up to a final grade modifier of 2 with a default of 5 percent upper extremity
impairment. The DMA indicated that, as the QuickDASH score of 34 equaled a grade modifier of
1, the default impairment value for the grade was modified one down, which represented four
percent impairment rating. He noted that Dr. Kennedy had not adjusted the final impairment rating
based on the QuickDASH score of 34.
In a March 28, 2018 letter, OWCP requested that appellant have Dr. Kennedy review the
DMA’s findings and provide a narrative report indicating whether he agreed or disagreed with the
DMA’s impairment ratings. A copy of the DMA’s August 29, 2017 report was provided for
Dr. Kennedy’s review.
In an April 3, 2018 addendum report, Dr. Kennedy indicated that he reviewed the DMA’s
August 29, 2017 report and concurred with his assessment.
The DMA reviewed the medical record again on July 18, 2018 and repeated the findings
from his August 29, 2017 permanent impairment report.
By decision dated August 27, 2018, and reissued on August 28, 2018, OWCP granted
appellant a schedule award for four percent permanent impairment of the right upper extremity.6

5

Id. at 449, Table 15-23.

6

The August 28, 2018 schedule award did not formally deny a schedule award for appellant’s left upper extremity.
No final decision has been issued regarding his entitlement to a schedule award for permanent impairment of his left
upper extremity due to his accepted conditions of left wrist strain and carpal tunnel syndrome.

3

The award covered a period of 12.48 weeks from August 23 to November 18, 2016. The weight
of the medical evidence was accorded to the DMA’s report of July 18, 2018.
LEGAL PRECEDENT
The schedule award provisions of FECA7 and its implementing regulations8 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for loss
or loss of use, of scheduled members or functions of the body. FECA, however, does not specify
the manner in which the percentage loss of a member shall be determined. The method used in
making such determination is a matter which rests in the discretion of OWCP. For consistent
results and to ensure equal justice, the Board has authorized the use of a single set of tables so that
there may be uniform standards applicable to all claimants. OWCP evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides, published in 2009.9 The Board has approved the use by OWCP of the A.M.A., Guides for
the purpose of determining the percentage loss of use of a member of the body for schedule award
purposes.10
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text. In
Table 15-23, grade modifier levels (ranging from zero to four) are described for the categories of
test findings, history, and physical findings. The grade modifier levels are averaged to arrive at
the appropriate overall grade modifier level and to identify a default rating value. The default
rating value may be modified up or down based on functional scale, an assessment of impact on
daily living activities (QuickDASH).11
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of impairment in
accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of
impairment specified.12

7

Supra note 2.

8

20 C.F.R. § 10.404.

9

For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides, (6th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6 (March 2017); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards,
Chapter 3.700, Exhibit 1 (January 2010).
10

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

11

J.M., Docket No. 18-1334 (issued March 7, 2019).

12

See supra note 9 at Chapter 2.808.6(d) (March 2017).

4

ANALYSIS
The Board finds that appellant has not met his burden of proof to establish more than four
percent permanent impairment of his right upper extremity, for which he has previously received
a schedule award.
OWCP accepted appellant’s claim for right wrist sprain and carpal tunnel syndrome.
Regarding the accepted condition of right wrist sprain, there is no evidence of record that this
condition caused a permanent impairment pursuant to the A.M.A., Guides. On August 28, 2018
OWCP issued a schedule award for four percent permanent impairment of the right upper
extremity for carpal tunnel syndrome.
Dr. Kennedy found five percent permanent impairment of the right upper extremity based
on the diagnosed carpal tunnel syndrome condition. He related that he had used Table 15-21 to
rate appellant’s permanent impairment. However, Table 15-23 pertains to entrapment/
compression neuropathy impairments. Thus, Dr. Kennedy’s initial rating report is of diminished
probative value as it does not conform to the protocols for rating permanent impairment under the
A.M.A., Guides.13
In July 18, 2018 and August 29, 2017 reports, the DMA used Dr. Kennedy’s examination
findings and the diagnostic testing of record to calculate an impairment rating for permanent
residuals of the right carpal tunnel syndrome. The date of MMI was noted as August 23, 2016,
the date appellant had been released from his hand surgeon. Using Table 15-23 of the A.M.A.,
Guides, the DMA identified a grade modifier 2 for test findings due to distal median nerve
conduction blockage. History was determined to be a grade modifier 1 due to subjective decreased
sensation of the thumb, index and middle finger. Physical findings were determined to be a grade
modifier 2. Per the A.M.A., Guides rating process, for Table 15-23, the DMA added the values of
the grade modifiers: 2 + 1 + 2 = 5. The sum of 5 was then divided by 3 to obtain an average value
for these three modifiers which, when rounded up, equaled 2. This placed appellant in grade 2 as
the final rating category. The DMA noted that, according to Table 15-23, a grade modifier 2 had
a default rating of five percent upper extremity impairment. He modified the default impairment
value down one grade as the QuickDASH score of 34 equaled a grade modifier of 1, and concluded
that appellant had four percent upper right extremity permanent impairment due to carpal tunnel
syndrome. The DMA noted that Dr. Kennedy did not adjust the final impairment rating based on
the QuickDASH score of 34. On April 3, 2018 Dr. Kennedy concurred with the DMA’s
assessment of appellant’s right upper extremity permanent impairment rating.
The Board finds that the DMA properly applied the appropriate tables and grading schemes
of the A.M.A., Guides in determining that appellant had no more than four percent right upper
extremity permanent impairment. Appellant did not submit any additional medical evidence which

13

See D.F., Docket No. 17-1474 (issued January 26, 2018); L.G., Docket No. 14-1786 (issued December 10, 2014);
James Kennedy, Jr., 40 ECAB 620 (1989) (finding that 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).

5

would establish that he has more than four percent permanent impairment of the upper right
extremity, the amount for which he previously received a schedule award.
Appellant may request a schedule award or increased schedule award at any time 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 met his burden of proof to establish more than four
percent permanent impairment of his right upper extremity, for which he has previously received
a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the August 28, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 16, 2019
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.B., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL SHIPYARD, Portsmouth, VA, Employer
__________________________________________

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

Docket No. 07-2148
Issued: May 7, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 20, 2007 appellant filed a timely appeal from the September 26, 2006 and
February 12, 2007 merit decisions of the Office of Workers’ Compensation Programs, which
denied an additional schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to review the merits of the case. The Board also has jurisdiction to review the
Office’s March 19, 2007 nonmerit decision denying reconsideration.1
ISSUES
The issues are: (1) whether appellant has more than a 36 percent impairment of his right
upper extremity; and (2) whether the Office properly denied his March 2, 2007 request for
reconsideration.

1

The Board’s jurisdiction is limited to reviewing the evidence that was before the Office at the time of its final
decision. 20 C.F.R. § 501.2(c). The Board therefore has no jurisdiction to review the June 11, 2007 medical report
appellant submitted on appeal.

FACTUAL HISTORY
On April 3, 1997 appellant, then a 49-year-old rigger, sustained an injury in the
performance of duty when he tripped on a pipe and fell on his right upper extremity. The Office
accepted his claim for right elbow fracture (radial neck fracture).2
On February 6, 1998 appellant sustained another injury in the performance of duty while
picking up slings and putting them on a crane hook. The Office accepted his claim for right
shoulder cuff sprain and authorized surgery. Appellant underwent an arthroscopic partial
bursectomy and anterior acromioplasty of the right shoulder. He later underwent an arthroscopic
debridement, arthroscopic biceps tenotomy, and open biceps tenodesis of the right shoulder.3
On March 12, 2002 Dr. David E. Lannik, appellant’s orthopedic surgeon, reported that
appellant had a 6 percent impairment due to occult shoulder instability, a 10 percent impairment
due to loss of strength associated with biceps rupture and tenodesis procedure, and a 20 percent
impairment due to strength deficit in elbow flexion and extension. The Office medical adviser
reviewed these findings. On September 24, 2002 the Office issued a schedule award for a 36
percent impairment of the right upper extremity.
On May 19, 2006 Dr. Lannik rated the permanent impairment of appellant’s right upper
extremity at 38 percent. He based this rating on an April 26, 2006 functional capacity
evaluation. Dr. Lannik found a 29 percent impairment due to decreased motion, a 5 percent
impairment due to a Grade 2 decrease in tactile sensibility and a 4 percent impairment due to
decreased grip strength.
An Office medical adviser reviewed the range of motion measurements in the functional
capacity evaluation and determined that appellant had a 3 percent impairment of the right upper
extremity due to loss of motion at the elbow and a 14 percent impairment due to loss of motion
at the shoulder, for a total impairment of 17 percent. He disallowed decreased grip strength
because the injury was to the shoulder and the elbow, which “in no way whatsoever” affected or
related to an individual’s grip strength. The medical adviser also disallowed any rating for
weakness because there were no findings on manual muscle testing.
In a decision dated September 26, 2006, the Office denied an additional schedule award.
The Office found that the medical evidence did not establish that appellant had more than a 36
percent impairment of his right upper extremity, for which he previously received an award.
On November 3, 2006 Dr. Lannik explained that grip strength should be included:
“Grip strength is affected by the fact that he has ulnar neuropathy causing
weakness of grasp secondary to cubital tunnel syndrome which is secondary to his
elbow injury. Therefore in my opinion, the impairment relative to the weakness
of grip strength is in fact directly correlated to this elbow injury in that there is
2

OWCP File No. 250504477.

3

OWCP File No. 250520103.

2

ulnar nerve impairment clinically and by nerve testing previously. This certainly
explains his weakness of grasp and its relationship to his elbow injury. Therefore
my [orthopedic] opinion is unchanged from that noted on May 19, 2006.”
The Office medical adviser reported that, if the 4 percent rating for decreased grip
strength were combined with the previously calculated impairment of 17 percent for decreased
motion, the total impairment of the right upper extremity would still not exceed the 36 percent
impairment previously awarded.
On February 12, 2007 the Office reviewed the merits of appellant’s case and denied
modification of its prior decision.
On March 2, 2007 appellant requested reconsideration.
Dr. Lannik’s March 12, 2002 evaluation.

He submitted a copy of

In a decision dated March 19, 2007, the Office denied a merit review of appellant’s case.
The Office found that his request neither raised substantive legal questions nor included new and
relevant evidence.
LEGAL PRECEDENT -- ISSUE 1
Section 8107 of the Federal Employees’ Compensation Act4 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment.5
ANALYSIS -- ISSUE 1
To support his claim for an additional schedule award, appellant submitted a May 19,
2006 report from Dr. Lannik, his orthopedic surgeon, who rated three impairments: a 29 percent
impairment due to decreased motion, a 5 percent impairment due to decreased tactile sensibility
and a four percent impairment due to decreased grip strength. But appellant may not receive a
schedule award for all three.
To avoid duplication, the A.M.A., Guides disallows the combination of certain
impairments.6 Decreased strength, for one, cannot be rated in the presence of decreased motion.7
Dr. Lannik’s finding that appellant has a 29 percent impairment due to decreased motion
necessarily precludes any additional rating for decreased grip strength.

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404. Effective February 1, 2001 the Office began using the A.M.A., Guides (5th ed. 2001).

6

A.M.A., Guides 499.

7

Id. at 508 (emphasis deleted).

3

There is another reason appellant may not receive an additional rating for decreased grip
strength. Dr. Lannik explained in his November 3, 2006 report that appellant had an ulnar
neuropathy or cubital tunnel syndrome secondary to his elbow injury. The A.M.A., Guides
addresses the situation directly: “In compression neuropathies, additional impairment values are
not given for decreased grip strength.”8
The Office, therefore, may not consider impairment due to decreased grip strength. This
leaves appellant with two impairment ratings from Dr. Lannik’s May 19, 2006 report: a 29
percent rating for decreased motion and a 5 percent rating for decreased tactile sensibility.
Dr. Lannik did not explain how he arrived at that latter. The A.M.A., Guides sets forth a
procedure and grading scheme for determining impairment of the upper extremity due to sensory
deficits or pain resulting from peripheral nerve disorders.9 Dr. Lannik noted an ulnar neuropathy
in his November 3, 2006 report, but he did not report what value he used from Table 16-15, page
492 of the A.M.A., Guides, and he did not state what percentage deficit he selected from Table
16-10, page 482. Further, he did not justify a Grade 2 classification of appellant’s sensory
deficit. Appellant’s sensory function, as reflected in the April 26, 2006 functional capacity
evaluation, appears more consistent with a Grade 4 classification, which is less severe.10
Dr. Lannik’s May 19, 2006 report is not sufficient to establish a five percent impairment
due to decreased tactile sensibility. All that remains, then, is the 29 percent impairment for
decreased motion. The Office medical adviser reviewed the range of motion measurements in
the functional capacity evaluation and determined that appellant had no more than a 17 percent
impairment under the A.M.A., Guides. The Board need not perform that exercise because even a
rating of 29 percent for decrease motion will not entitle appellant to additional compensation.
As noted earlier, decreased strength cannot be rated in the presence of decreased motion.
Appellant’s decreased motion not only precludes an additional impairment for decreased grip
strength, it precludes his previous ratings for loss of strength associated with biceps rupture and
tenodesis procedure and for strength deficit in elbow flexion and extension. The A.M.A., Guides

8

Id. at 494.

9

Id. at 482 (Table 16-10).

10

Individuals in Grade 4 have diminished light touch, with fair (6 to 10 millimeters) to good two-point
discrimination, localization of sensory stimuli, and good protective sensibility. Sensory deficit or pain does not
interfere with or prevent activity (for example, appellant’s driving). Individuals in Grade 2, on the other hand, have
decreased protective sensibility, which is defined as a conscious appreciation of pain, temperature or pressure before
tissue damage results from the stimulus. They have diminished hand function. The mislocalization and
overresponse (hyperesthesia or paresthesias, hyperpathia, or allodynia) to sensory stimuli result in decreased
manipulative skills and gripping function and complaints of hand weakness. It is possible to have a gross
appreciation of two-point discrimination (11 to 15 millimeters) at this level. Id. at 483. Abnormal sensations or
moderate pain may prevent some activities. Id. at 482 (Table 16-10).

4

does allow decreased motion to be combined with the previous rating for shoulder instability,11
but combining a 6 percent impairment for shoulder instability with even a 29 percent impairment
for decreased motion yields a total impairment of only 33 percent.12 So assuming, only for the
sake of argument, that Dr. Lannik properly determined the impairment for decreased motion, the
medical evidence does not support that appellant has more than a 36 percent impairment of his
right upper extremity. The Board will affirm the Office’s September 26, 2006 and February 12,
2007 decisions denying an additional schedule award.
LEGAL PRECEDENT -- ISSUE 2
The Federal Employees’ Compensation Act provides that the Office may review an
award for or against payment of compensation at any time on its own motion or upon
application.13 The employee shall exercise this right through a request to the district Office. The
request, along with the supporting statements and evidence, is called the “application for
reconsideration.”14
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.15
An application for reconsideration must be sent within one year of the date of the Office
decision for which review is sought.16 A timely request for reconsideration may be granted if the
Office determines that the employee has presented evidence or argument that meets at least one
of these standards. If reconsideration is granted, the case is reopened and the case is reviewed on
its merits. Where the request is timely but fails to meet at least one of these standards, the Office

11

“Shoulder instability patterns are based on the parameters listed in Table 16-26 and can be classified as occult
instability, instability with a subluxating humeral head, and instability with a dislocating humeral head. The
shoulder representing 60 percent of the upper extremity (Table 16-18), the patterns of occult (10 percent),
subluxating (20 percent), and dislocating (40 percent) instabilities represent upper extremity impairments of 6
percent, 12 percent, and 24 percent, respectively. This value may be combined only with impairments due to
decreased motion (Section 16.4). Pain and decreased muscle strength are not rated separately.” Id. at 504
(emphasis in the original).
12

Id. at 604 (Combined Values Chart).

13

5 U.S.C. § 8128(a).

14

20 C.F.R. § 10.605 (1999).

15

Id. § 10.606.

16

Id. § 10.607(a).

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will deny the application for reconsideration without reopening the case for a review on the
merits.17
ANALYSIS -- ISSUE 2
Appellant filed his March 2, 2007 request for reconsideration within one year of the
Office’s most recent merit decision on February 12, 2007. The request is therefore timely. But it
does not show that the Office erroneously applied or interpreted a specific point of law. Neither
does it advance a relevant legal argument not previously considered by the Office. To support
his request, appellant submitted a copy of Dr. Lannik’s March 12, 2002 evaluation. This is the
same evaluation appellant submitted previously, the same evaluation the Office previously
considered when it issued its September 24, 2002 schedule award. The evidence, therefore, does
not constitute relevant and pertinent new evidence not previously considered by the Office.
Appellant’s March 2, 2007 request for reconsideration does not meet at least one of the
three standards for obtaining a merit review of his case. The Board will therefore affirm the
Office’s March 19, 2007 decision denying that request.
CONCLUSION
The Board finds that the medical evidence is insufficient to establish that appellant has
more than a 36 percent impairment of his right upper extremity. The Board also finds that the
Office properly denied appellant’s March 2, 2007 request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the March 19 and February 12, 2007 and
September 26, 2006 decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: May 7, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
17

Id. § 10.608.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.D., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
CORPS OF ENGINEERS, Vicksburg, MS,
Employer
__________________________________________

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

Docket No. 10-918
Issued: October 26, 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 18, 2010 appellant, through his attorney, filed a timely appeal from a
January 4, 2010 merit decision of the Office of Workers’ Compensation Programs terminating
his compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation effective
July 16, 2009 on the grounds that he had no further disability causally related to his October 4,
2008 employment injury.
FACTUAL HISTORY
On October 10, 2008 appellant, then a 48-year-old deckhand, filed a claim alleging that
on October 4, 2008 he sustained an injury to his left ankle in the performance of duty. The
Office accepted the claim for a closed fracture of the left calcaneus and paid him compensation
for disability beginning November 19, 2008.

Following his work injury, appellant received treatment from Dr. John J. Lochemes, a
Board-certified orthopedic surgeon.1 On March 3, 2009 Dr. Lochemes diagnosed a closed
fracture of the calcaneus and noted that appellant had pain in the lateral peroneal tendon region.
He found that appellant could return to work in two to three weeks. Dr. Lochemes referred him
for daily work conditioning. On April 28, 2009 Dr. Lochemes released appellant to return to his
regular employment. He stated:
“At this point in time, I [have] recommended that we consider observation and
return to work full duty and see how [appellant] does. Risks, benefits and
alternatives discussed, he voiced understanding. If [appellant] has interval
concerns he should call. We went ahead and filled out his questionnaire.
[Appellant’s] pain never goes below level IV. He has had most aspects of his life
affected. [Appellant] will wear the braces indefinitely. I would certainly think
medicals would be kept open for an extended period of time. If [appellant] has
interval concerns he is to call. He is entitled to a rating based on the fracture and
the dysfunction.”
In a work restriction evaluation dated May 8, 2009, Dr. Lochemes found that appellant
could work at his usual employment without limitations beginning April 28, 2009.2
On June 4, 2009 the Office notified appellant that it proposed to terminate his
compensation benefits as the weight of the medical evidence established that he had no further
employment-related disability.
By decision dated July 16, 2009, the Office terminated appellant’s compensation
effective that date.
On July 24, 2009 his attorney requested a telephone hearing. At the hearing, appellant
noted that he might require surgery in the future. He did not return to work with the employing
establishment because his job was seasonal and there was no work currently available.3
Appellant related that he could not perform his work duties. The hearing representative advised
him to have his physician provide a report addressing whether he could work in his usual
employment.
By decision dated January 4, 2010, the hearing representative affirmed the July 16, 2009
decision.

1

Dr. Lochemes referred appellant for a functional capacity evaluation in February 2009. The functional capacity
evaluation revealed that he had the basic ability to perform his usual work but recommended additional physical
therapy.
2

Dr. Lochemes noted that appellant could have to continue to wear a brace.

3

By letter dated June 17, 2009, the employing establishment noted that appellant was a temporary employee who
worked August to November each year.

2

LEGAL PRECEDENT
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. The Office may not terminate
compensation without establishing that the disability ceased or that it was no longer related to the
employment.4 The Office’s burden of proof in terminating compensation includes the necessity
of furnishing rationalized medical opinion evidence based on a proper factual and medical
background.5
ANALYSIS
The Office accepted that appellant sustained a closed fracture of the left calcaneus due to
an October 4, 2008 employment injury. It paid him compensation for total disability beginning
November 19, 2009.
Appellant received treatment following his work injury from Dr. Lochemes. On
March 3, 2009 Dr. Lochemes noted that appellant had continued pain in the area of his lateral
peroneal tendon. He advised that appellant could return to work in two or three weeks and
referred him for work conditioning. Therefore, Dr. Lochemes released him to return to his usual
employment. In a work restriction evaluation dated May 8, 2009, he found that appellant could
perform his usual employment with no listed limitations effective April 28, 2009. As the
attending physician, Dr. Lochemes had a thorough knowledge of appellant’s condition. His
opinion constitutes the weight of the medical evidence. The Office, consequently, properly
relied upon the opinion of the attending physician in terminating appellant’s compensation
effective July 16, 2009.6
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation effective
July 16, 2009 on the grounds that he had no further disability causally related to his October 4,
2008 employment injury.

4

K.H., 58 ECAB 211 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

5

J.M., 58 ECAB 478 (2007); Gewin C. Hawkins, 52 ECAB 242 (2001).

6

Appellant submitted new medical evidence subsequent to the hearing representative’s decision. The Board has
no jurisdiction to review evidence that was not before the Office at the time of its last decision. See 20 C.F.R.
§ 501.2(c). Appellant can submit this evidence to the Office and requested reconsideration under 5 U.S.C. § 8128.

3

ORDER
IT IS HEREBY ORDERED THAT the January 4, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 26, 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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Sarasota, FL, Employer
__________________________________________

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Appearances:
Gordon Reiselt, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-132
Issued: June 11, 2012

Case Submitted on the Record

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

JURISDICTION
On October 18, 2011 appellant, through her attorney, filed a timely appeal from an Office
of Workers’ Compensation Programs’ (OWCP) merit decision dated April 25, 2011. Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained left shoulder and left hip conditions as a
consequence of her accepted right shoulder injury.
FACTUAL HISTORY
On May 11, 2004 appellant, then a 44-year-old baggage screener, injured her right
shoulder while loading checked baggage onto a security carousel. She filed a claim for benefits,
1

5 U.S.C. § 8101 et seq.

which OWCP accepted for right shoulder supraspinatus tear, C6-7 nerve root lesion, right nerve
irritation at C7-8 and depression.
In a report dated February 11, 2009, Dr. Masood Z. Rehmani, a Board-certified
psychiatrist, advised that appellant was experiencing pain in her right hand, right shoulder and left
hip. He stated that she had recently undergone x-ray testing and magnetic resonance imaging
(MRI) scans and an electromyelogram (EMG) which showed a degenerative cervical disc which
was causing pressure on a nerve and radiating the pain.
In an April 8, 2009 report, Dr. Powel A. Crosley, a specialist in pain medicine, stated that
appellant had multiple complaints of left shoulder and left hip pain which she had experienced
since her May 2004 employment injury. He stated that it was possible that these could have been
overuse injuries resulting from her inability to utilize the right side of her body. Dr. Crosley
required authorization to evaluate, treat and diagnose appellant’s condition. He asserted that it was
“within the realm of medical possibility and reason” that these injuries were the result or indirectly
related to her original work-related injury, if supported by diagnostic evidence.
By letter to OWCP dated April 17, 2009, appellant’s attorney requested that the claim be
accepted for consequential left shoulder and left hip conditions.
On April 23, 2009 OWCP requested additional medical evidence in support of appellant’s
claim. It asked her to provide a diagnosis of her conditions and a comprehensive medical report
from a physician, which contained probative medical opinion that her claimed consequential left
shoulder and left hip conditions were causally related to her accepted May 11, 2004 right shoulder
injury.
An x-ray report dated May 27, 2009, noted that appellant’s left shoulder showed a possible
degree of supraspinatus outlet impingement, with clinical correlation required. The study found no
acute fracture, dislocation, bony abnormality or arthropathy changes.
An MRI scan dated May 28, 2009, stated that appellant’s left shoulder showed mild-tomoderate tendinopathy of the distal anterior aspect of the supraspinatus, with minor foci of
interstitial entheseal fissuring, mild impingement, mild hypertrophy of the acromioclavicular joint
and underlying calcific tendinitis.
By decision dated June 12, 2009, OWCP denied appellant’s claim for a consequential
condition, finding that the medical evidence failed to establish that she sustained left shoulder or
left hip conditions due to the May 11, 2004 work injury.
On July 6, 2009 counsel requested an oral hearing, which was held on October 5, 2009.
In a report dated August 10, 2009, Dr. Crosley reiterated his opinion that appellant
required further evaluation and treatment of her left upper and lower extremities. He stated that
her original injury to her right shoulder left her unable to perform her usual job as a baggage
screener and led to other significant, consequential conditions such as depression, anxiety and
left upper extremity overuse injury. Dr. Crosley opined that appellant’s consequential injuries
had not been shown to be a result of any other independent, intervening cause. He cited to
Larsen, The Law of Workers’ Compensation, that when the primary injury was shown to have
2

arisen out of hand in the course of employment every natural consequence that flows from injury
likewise arises out of the employment and that therefore “the subsequent injury … is
compensable if it is the direct and natural result of a compensable primary injury.”2 Relying on
this standard, Dr. Crosley opined that the overuse injury in appellant’s left upper extremity was a
direct consequence of her original work injury.
By decision dated December 16, 2009, OWCP’s hearing representative affirmed the
June 16, 2009 decision.3
By letter dated December 8, 2010, appellant, through her attorney, requested
reconsideration.
In a report dated August 10, 2010, received by OWCP on December 16, 2010, Dr. Gary S.
Shapiro, Board-certified in orthopedic surgery, stated that appellant had been experiencing left
shoulder pain for approximately one year that had increased during the previous two weeks. He
noted her previous history of a right shoulder injury but did not render an opinion as to whether the
accepted right shoulder condition caused or aggravated her left shoulder symptoms. Dr. Shapiro
advised that appellant had positive impingement and abduction signs in the left shoulder but did
not demonstrate any rotator cuff tear. He diagnosed impingement syndrome of the left shoulder
and prescribed physical therapy.
In a report dated August 31, 2010, received by OWCP on December 16, 2010, Dr. Shapiro
stated that appellant continued to have complaints of left shoulder pain. He advised that she
received temporary relief from a cortisone injection but that the pain eventually returned.
Dr. Shapiro scheduled appellant for another MRI scan and discussed the possibility of surgical
intervention.
On September 9, 2010 appellant underwent an MRI scan which showed a small partial
supraspinatas tear in the left shoulder.
In a report dated September 15, 2010, received by OWCP on December 16, 2010,
Dr. Shapiro reviewed the September 9, 2010 MRI scan and provided a diagnosis of impingement
syndrome and partial rotator cuff tear in the left shoulder. He reiterated his previous findings and
conclusions.
By decision dated April 25, 2011, OWCP denied modification of the prior decision.
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
2

See A. Larson, The Law of Workers’ Compensation § 10.01 (November 2000).

3

OWCP’s hearing representative noted that appellant had submitted numerous additional medical reports which
mentioned complaints of right shoulder and cervical pain, but did not discuss the claimed left shoulder and left hip
conditions. He stated that he did not review these reports since they were not pertinent to the conditions for which
appellant had filed the instant claim.

3

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.4 Regarding the
range of compensable consequences of an employment-related injury, Larson notes that, when the
question is whether compensability should be extended to a subsequent injury or aggravation
related in some way to the primary injury, the rules that come into play are essentially based upon
the concepts of direct and natural results and of claimant’s own conduct as an independent
intervening cause. The basic rule is that 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. Thus, once the work-connected character of any condition is
established, the subsequent progression of that condition remains compensable so long as the
worsening is not shown to have been produced by an independent nonindustrial cause.5
A claimant bears the burden of proof to establish a claim for a consequential injury.6 As
part of this burden, he or she must present rationalized medical opinion evidence, based in a
complete factual and medical background, showing causal relationship. Rationalized medical
evidence is evidence, which relates a work incident or factors of employment to a claimant’s
condition, with stated reasons of a physician. 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.7
ANALYSIS
OWCP accepted that on May 11, 2004 appellant sustained an employment-related right
shoulder supraspinatus tear, C6-7 nerve root lesion, right nerve irritation at C7-8 and depression.
The issue is whether she sustained left shoulder and left hip conditions as a consequence of her
accepted right shoulder injury. The Board finds that appellant has not submitted sufficient medical
evidence to establish her claim.
The opinion of a physician supporting causal relationship must be one of reasonable
medical certainty that the condition for which compensation is claimed is causally related to
federal employment and such relationship must be supported with affirmative evidence, explained
by medical rationale and be based upon a complete and accurate medical and factual background
of the claimant.8 The record supports that appellant has a positive MRI scan and x-ray findings of
left shoulder tendinitis, left shoulder impingement syndrome and a partial tear of the left rotator
cuff. However, the medical reports appellant submitted do not sufficiently explain how these
diagnoses arising in 2009 relate to the accepted May 11, 2004 right shoulder injury. Dr. Crosley
stated in a April 8, 2009 report that she had multiple complaints of left shoulder pain which she
had experienced since her May 2004 employment injury. He stated that appellant could have
4

Mary Poller, 55 ECAB 483 (2004).

5

Supra note 2.

6

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

7

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

8

Patricia J. Glenn, 53 ECAB 159 (2001).

4

developed an overuse injury due to her inability to utilize the right side of her body. Dr. Crosley
noted that it was within the realm of possibility that her left shoulder condition was the result of, or
was indirectly related to, her original employment injury. He referred appellant for x-ray tests to
confirm this conditional opinion. X-rays of appellant’s left shoulder taken on May 27, 2009
showed some supraspinatus outlet impingement with no acute fracture, dislocation, bony
abnormality or arthropathy changes. Dr. Crosley reiterated in his August 10, 2009 report that
appellant’s May 11, 2004 right shoulder injury led directly to her left upper extremity overuse
injury and opined that there was a causal relationship between the two conditions as there was no
other, intervening cause.
The reports from Dr. Crosley did not explain how appellant’s left shoulder conditions
were a consequence of her May 11, 2004 employment injury. Dr. Crosley’s opinion on causal
relationship is speculative and of limited probative value in that he did not provide adequate
medical rationale in support of his conclusion.9 He did not describe appellant’s left shoulder
condition in any detail or explain how the May 11, 2004 work injury would have been competent
to cause the claimed consequential condition, first noted in 2009. Dr. Crosley’s opinion is of
limited probative value for the further reason that it was generalized in nature and equivocal on
the issue of causal relation.
Appellant also submitted several reports from Dr. Shapiro, who noted that she had
sustained a right shoulder injury on May 11, 2004 but did not render any opinion as to whether her
left shoulder conditions were a consequence of this injury. In his August 10 and 31, 2010 reports,
Dr. Shapiro noted a history that she had been experiencing pain in her left shoulder for
approximately one year which had worsened in the prior two weeks. He diagnosed impingement
syndrome of the left shoulder and referred her for an MRI scan on September 9, 2010, which
demonstrated a small partial supraspinatas tear in the left shoulder. Dr. Shapiro diagnosed
impingement syndrome and partial rotator cuff tear in the left shoulder in his September 15, 2010
report. He did not provide medical rationale explaining how these diagnoses were the result of
appellant’s accepted right shoulder injury. Dr. Shapiro did not attribute the development of her left
shoulder condition to the accepted May 11, 2004 right shoulder injury. His reports are therefore
insufficient to establish appellant’s claim for a consequential left shoulder condition.
Appellant did not submit sufficient medical evidence to establish that her claimed left hip
condition was causally related to the May 11, 2004 work injury. Dr. Rehmani stated in his
February 11, 2009 report that she was experiencing a lot of pain in her left hip but did not indicate
whether these complaints were attributable to her accepted right shoulder injury. Dr. Crosley
related in his April 8, 2009 report that appellant had complained of left hip pain since her
May 2004 employment injury and stated that it was possible she could have sustained overuse
injuries from her inability to utilize her right side. He opined that it was possible she could have
developed this injury, perhaps indirectly, as a result of to her original work-related injury.
Dr. Crosley stated in his August 10, 2009 report that appellant required further evaluation and
treatment of her left lower extremity injury. He opined that she had developed consequential
injuries causally related to the May 11, 2004 work injury because they had not been shown to be
a result of any other independent, intervening cause attributable to her own intentional conduct.
9

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

5

The reports from Drs. Rehmani and Crosley did not provide any rationalized, probative
medical opinion sufficient to establish that appellant’s claimed left hip condition was causally
related to her accepted May 11, 2004 right shoulder injury. They did not explain how
physiologically the left hip condition would be caused by appellant’s right shoulder injury. The
opinion of these physicians on causal relationship is of limited probative value in that they did
not provide adequate medical rationale in support of their conclusions.10 Moreover, their
opinions are of limited probative value for the further reason that they are generalized in nature
and equivocal in that they only noted summarily that appellant’s claimed left hip condition was
causally related to the accepted May 11, 2004 right shoulder injury. Appellant has not submitted
sufficient medical evidence to establish that her left hip condition is a consequence of her accepted
right shoulder injury.11
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor the
belief that her condition was caused, precipitated or aggravated by her employment is sufficient to
establish causal relationship.12 Causal relationship must be established by rationalized medical
opinion evidence and she failed to submit such evidence.
OWCP advised appellant of the evidence required to establish her claim; however, she
failed to submit such evidence. Appellant did not provide a medical opinion which describes or
explains the medical process through which she would have developed left shoulder and left hip
conditions as a consequence of the May 11, 2004 employment injury. OWCP properly denied
her claim for compensation.
CONCLUSION
The Board finds that appellant has not met her burden to establish that her left shoulder
and left hip conditions are a consequence of the accepted right shoulder injury.

10

Id.

11

See Conard Hightower, 54 ECAB 796 (2003).

12

Id.

6

ORDER
IT IS HEREBY ORDERED THAT the April 25, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 11, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

7