United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Iron Mountain, MI, Employer
__________________________________________

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

Docket No. 13-1440
Issued: January 23, 2014

Case Submitted on the Record

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

JURISDICTION
On June 4, 2013 appellant filed a timely appeal from a May 7, 2013 merit decision of the
Office of Workers’ Compensation Programs (OWCP) which denied his claim for an
employment-related injury. 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 his burden of proof to establish an injury in the
performance of duty on December 20, 2012.
On appeal, appellant contests the denial of his claim and contends that he was in good
shape with no neck, shoulder or arm pain prior to the fall. He requested that his medical bills be
covered.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 11, 2013 appellant, then a 57-year-old supervisory diagnostic radiologist,
filed a traumatic injury claim alleging that on December 20, 2012 he slipped under a parked car
and bruised his right thumb, elbow and shoulder. He did not stop work. The employing
establishment noted that it was initially a no lost time or medical expense claim. In an incident
report, the employing establishment noted that on December 20, 2012 at approximately 4:32
p.m. appellant was walking in the parking lot on his way to his car when he slipped and fell,
landing on his right arm/thumb. Appellant was able to continue home but noted soreness of the
right lower arm and thumb.
Appellant submitted a January 16, 2013 report of emergency treatment wherein a nurse
practitioner indicated that appellant sustained a back strain. A magnetic resonance imaging
(MRI) scan of the lumbar spine obtained on February 8, 2013 was read by Dr. Marc J. Miller, a
Board-certified diagnostic radiologist, as showing moderate degenerative arthritic change with
no abnormal motion on flexion or extension. The MRI scan of the cervical spine was interpreted
by Dr. Miller as showing degenerative arthritic change, no subluxation on flexion or extension.
In a report from the Neuroscience Group dated February 18, 2013, a nurse practitioner diagnosed
pain of the cervical spine with radicular pain on the right.
In an April 24, 2013 report, Dr. Philip A. Yazbak, a Board-certified neurosurgeon, noted
that appellant was seen in his office by his nurse practitioner on February 14, 2013. He
subsequently saw appellant on March 18, 2013. Appellant reported that his injury had occurred
on December 20, 2012 and that his complaints had to do with neck right scapular and radiating
right arm pain. Dr. Yazbak diagnosed right upper extremity radiculopathy due to preexistent
spondylosis, brought on by the injury of December 20, 2012. He noted that appellant was placed
on oral steroids and referred for physical therapy with the possibility of cervical traction.
Dr. Yazbak noted that, as of his March 18, 2013 visit, things had improved and it was
recommended that appellant continue with neck exercises, start home cervical traction and
continue anti-inflammatories.
In a decision dated May 7, 2013, OWCP denied appellant’s claim. It accepted the
December 20, 2012 incident at work but found that the medical evidence failed to establish a
cervical or right upper extremity related to the fall that date.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of the FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury. 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.2

2

Jussara L. Arcanjo, 55 ECAB 281, 283 (2004).

2

In order to determine whether an employee sustained an injury in the performance of
duty, OWCP begins with an analysis of whether fact of injury has been established. Fact of
injury consists of two components, which must be considered in conjunction with one another.
The first component is whether the employee actually experienced the employment incident or
exposure, which is alleged to have occurred.3 The second component is whether the employment
incident caused a personal injury and generally can be established only by medical evidence.4
The medical evidence required to establish causal relationship is usually rationalized
medical evidence. Rationalized medical evidence includes a physician’s rationalized opinion on
the issue of whether there is a causal relationship between the claimant’s diagnosed condition
and the implicated employment factors. The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.5
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that he
sustained an injury on December 20, 2012. The medical evidence of record is insufficient to
support his claim.
OWCP accepted that appellant experienced the employment incident of
December 20, 2012, when he slipped and fell. It denied appellant’s claim finding that he failed
to submit sufficient medical evidence to establish that his cervical or right upper extremity
condition was causally related to the accepted employment incident. Appellant submitted an
emergency treatment note dated January 13, 2013 and a medical report by the Neuroscience
Group. Neither document is considered as probative medical evidence as they were signed by a
nurse practitioner. As a nurse practitioner is not a “physician” as defined under FECA. The
reports do not constitute probative medical evidence countersigned by a physician.6
Dr. Miller interpreted appellant’s MRI scans, but he did not offer any opinion as to the
causal relationship between appellant’s diagnosed moderate degenerative arthritic changes and
the employment incident of December 20, 2012. The April 24, 2013 report of Dr. Yazbak is also
insufficient to establish appellant’s claim. He noted that appellant reported that his injury
occurred on December 20, 2012, but provided no explanation of the mechanism of the injury.7
He did not provide a description of how the incident occurred or that it happened during
appellant’s work. There is no other medical evidence in the record to support that appellant
sustained a cervical or right upper extremity condition causally related to the accepted
employment incident. As appellant failed to submit medical evidence to establish a causal
3

See Elaine Pendleton, 40 ECAB 1143 (1989); see also Federal (FECA) Procedure Manual, Part 2 -- Claims,
Fact of Injury, Chapter 2.803(2)(a) (June 1995).
4

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

5

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

6

See 5 U.S.C. § 8101(2); A.A., Docket No. 13-1425 (issued September 25, 2013).

7

See J.R., Docket No. 13-575 (issued August 20, 2013).

3

relationship between his federal employment and a diagnosed medical condition, OWCP
properly denied his claim.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that the condition was caused by his employment is sufficient to
establish causal relationship.8
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an injury in the performance of duty on December 20, 2012, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 7, 2013 is affirmed.
Issued: January 23, 2014
Washington, DC

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

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

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

8

D.I., 59 ECAB 158 (2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

4


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

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

Docket No. 11-105
Issued: September 15, 2011

Case Submitted on the Record

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

JURISDICTION
On October 19, 2010 appellant filed a timely appeal from an August 30, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act (FECA)1 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 met her burden of proof to establish that she sustained an
occupational disease in the performance of duty.
FACTUAL HISTORY
On August 11, 2008 appellant, then a 41-year-old rural carrier associate, filed an
occupational disease claim alleging that she sustained left arm numbness as well as neck and

1

5 U.S.C. § 8101 et seq.

shoulder pain due to continuous reaching and lifting on the job.2 She became aware of her
condition on May 8, 2008 and realized its relationship to her employment on May 15, 2008.
Appellant stopped work on July 1, 2008 and did not return.
OWCP informed appellant in an August 13, 2008 letter of the medical evidence needed
to establish her claim.
In May 13, 2008 emergency department records, Dr. John R. Temple Jr., a surgeon, noted
that appellant complained of work-related left arm pain radiating from the trapezius to the hand
and diagnosed radicular pain. Medical notes dated May 21 and June 14, 2008 from Dr. Darrel
Wells, a family practitioner, excused her from work from May 20 to 24 and June 9 to 16, 2008
due to illness. Dr. Wells advised in a July 30, 2008 note that appellant was being treated for a
cervical condition and could not fulfill her job duties.
In a September 2, 2008 note, Dr. Todd R. Custer, a chiropractor, related that appellant
sustained left arm, neck and shoulder symptoms on May 8, 2008 due to her job and was unable
to work for two months. Appellant denied having any preexisting condition.
By decision dated September 16, 2008, OWCP denied appellant’s claim, finding the
medical evidence insufficient to establish that her accepted employment activity caused or
contributed to a claimed condition.
Appellant requested a review of the written record on October 16, 2008. She explained
in an undated statement that her employment entailed six to eight hours of repetitive reaching
and lifting each workday. By May 8, 2008 appellant had sharp, burning pain in her left arm,
neck and shoulders and occasional left arm numbness.
In a September 2, 2008 report, Dr. Custer stated that appellant presented with intense left
arm, neck and shoulder pain, scapular muscle spasms and left arm numbness. Appellant’s
symptoms arose on May 8, 2008 after an on-the-job accident and prevented her from working.
On examination, she had limited cervical range of motion (ROM), a positive left-sided
Spurling’s test and left cervical paraspinal muscle, left suboccipital muscle and bilateral levator
scapulae hypertonicity. X-rays demonstrated mild spondylosis, decreasing disc space and
anterior lipping and spurring of the C5-C6. Dr. Custer diagnosed cervical disc disorder and
radiculitis and advised that appellant’s injury was not due to a work-related accident. He stated
in a September 2, 2008 duty status report that she was a rural carrier and her left arm, neck and
shoulder injury resulted from repetitive reaching. Dr. Custer advised that appellant was able to
return to full-time duty.
A November 21, 2008 note from Dr. Wells diagnosed left cervical radiculopathy and
opined that appellant “should not be doing any work activity which involves lifting, pushing,
pulling or sorting.” He added that the length of this restriction was “indeterminate.”

2

The record contains medical evidence documenting chest symptoms. This condition is not presently before the
Board.

2

In a February 20, 2009 decision, an OWCP hearing representative affirmed the
September 16, 2008 decision.
Appellant requested reconsideration on April 24, 2009. She provided a March 12, 2009
report from Dr. Pamela D. Wilson, an anesthesiologist, who advised that appellant presented
with neck, shoulder, head and left arm pain since May 2008 and related that driving a mail truck
and lifting, reaching and inserting mail into slots approximately 500 times a day aggravated her
symptoms. On examination, Dr. Wilson observed tenderness and spasms on palpation of the left
trapezius and levator scapulae muscles and forward head carriage. In addition, an October 14,
2008 magnetic resonance imaging (MRI) scan exhibited significant C5-C6 spondylotic changes.
Dr. Wilson diagnosed cervical radiculitis, facet arthropathy and myofascial pain syndrome.3
April 24, 2009 functional capacity evaluation from Dr. Custer recapped that appellant
was working for the employing agency when she developed neck and left arm pain on
May 8, 2008. After conducting a series of tests, he concluded that, while appellant demonstrated
symptoms with activity, including a left-sided cervicoscapular musculature myospasm and
hypertonicity, limited cervical ROM and headaches, she was able to tolerate frequent bending,
twisting, lifting of items less than 35 pounds, occasional lifting of items up to 75 pounds and
other physical demands of her work. In a June 22, 2009 status report, Dr. Custer released
appellant to unrestricted duty effective June 29, 2009.
In a July 13, 2009 decision, OWCP denied modification of the February 20, 2009
decision.
Appellant requested reconsideration on November 17, 2009 and submitted additional
medical evidence. In a March 23, 2009 report from Dr. Custer, she complained of intermittent
left hand, shoulder and neck pain. On examination, he observed limited cervical ROM and left
cervical paraspinal muscle, left suboccipital muscle and bilateral levator scapulae hypertonicity.
An MRI scan film showed bulging of the C4-C5 disc and a protrusion herniation at C5-C6.
Dr. Custer diagnosed cervical disc disorder without myelopathy, a C5-C6 disc herniation and a
C6 nerve root compression. He opined in an October 6, 2009 report that, “in all medical
probability,” appellant’s “injuries were directly caused” by her mail delivery duties. Dr. Custer
noted that cervical disc injuries were typically caused by repetitive lifting or neck leaning
activities as performed by her at work.4
In a July 3, 2009 report, Dr. David W. Strausser, an orthopedic surgeon, noted that
appellant was six weeks pregnant and experienced left upper extremity pain and cervicalgia since
“May.” On examination, he observed left trapezial tenderness. Based on a cervical MRI scan,
Dr. Strausser diagnosed herniated nucleus pulposus of the C4-C5 and C5-C6 and left foraminal
stenosis of the C5-C6.

3

Subsequent medical records from Dr. Wilson for the period March 27 to October 3, 2009 essentially reiterated
these findings.
4

Appellant also submitted Dr. Custer’s reports for the period June 22 to July 23, 2009, which repeated the content
found in his earlier reports.

3

In a January 20, 2010 decision, OWCP denied modification of the July 13, 2009 decision.
On January 26, 2010 it reissued the January 20, 2010 decision.
Appellant requested reconsideration on May 24, 2010 and submitted additional evidence.
In an undated report, Dr. Wilson reviewed the history of injury and prior radiological results and
concluded that appellant’s condition directly resulted from the execution of her daily job duties
over time. She noted an insidious onset of symptoms since January 2008 that became unbearable
on May 8, 2008. Dr. Wilson noted appellant’s findings and MRI scan results that were
significant for C4-5 and C5-6 spondylitic changes “likely caused by repetitive movements (e.g.,
sorting mail at shoulder height) which has produced moderate compromise of the cervical neural
foramens.” She explained:
“[Appellant]’s job duties as a rural mail carrier which requires driving, lifting,
carrying, sorting, pushing, pulling, reaching and casing mail, driving and/or
operative vibrating equipment, repetitive neck rotation and left arm extension
with reaching to case and deliver mail hundreds of times a day has directly
contributed to the development of her cervical spondylotic changes and ensuing
cervical nerve root compromise producing compression of the nerve roots causing
her symptoms.”
By decision dated August 30, 2010, OWCP denied modification of the January 26, 2010
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period, that an injury was sustained in the performance of duty as alleged and that any
disabilities and/or specific conditions for which compensation is claimed are causally related to
the employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.7 To establish fact of injury in an
occupational disease claim, an employee 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 employment factors identified by the employee.8
5

Elaine Pendleton, 40 ECAB 1143 (1989).

6

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

7

See S.P., 59 ECAB 184, 188 (2007).

8

Roy L. Humphrey, 57 ECAB 238, 241 (2005); see R.R., Docket No. 08-2010 (issued April 3, 2009).

4

Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background, 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.9
ANALYSIS
The Board finds that the case is not in posture for decision.
An employee who claims benefits under FECA has the burden of establishing by the
weight of reliable, probative and substantial evidence that the condition for which compensation
is sought is causally related to a specific employment incident or work factors. As part of this
burden, the employee must present rationalized medical opinion evidence based on a complete
and accurate factual and medical background. However, it is well established that proceedings
under FECA are not adversarial in nature and OWCP is not a disinterested arbiter. While an
employee has the burden to establish entitlement to compensation, OWCP shares responsibility
in the development of the evidence and has the obligation to see that justice is done.10
The evidence supports that appellant’s duties entailed repetitive lifting, reaching, sorting,
casing, pushing, pulling and driving. Chiropractic reports from Dr. Custer noted that she
sustained left arm, shoulder and neck symptoms due to repetitive reaching, lifting and leaning
activities at work. He diagnosed cervical disc disorder, C5-C6 disc herniation, C6 nerve root
compression and radiculitis. As defined under FECA, however, a “physician” includes a
chiropractor only to the extent that his reimbursable services are limited to treatment consisting
of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist.11
Since Dr. Custer did not diagnose spinal subluxation based on x-ray, he is not a physician for
FECA purposes and his opinion cannot constitute probative medical evidence.12
Reports from Drs. Strausser, Temple and Wells did not address the cause of appellant’s
condition. Because medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship,13 these
records are insufficient to establish the claim.
9

I.J., 59 ECAB 408 (2008); Woodhams, supra note 6.

10

William J. Cantrell, 34 ECAB 1233 (1983) E.J., Docket No. 09-1481 (issued February 19, 2010).

11

5 U.S.C. § 8101(2); Merton J. Sills, 39 ECAB 572, 575 (1988). Subluxation means an incomplete dislocation,
off-centering, misalignment, fixation, or abnormal spacing of the vertebrae which must be demonstrable on any
x-ray film to an individual trained in the reading of x-rays. 20 C.F.R. § 10.5(bb).
12

See Gloria J. McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (medical
opinion, in general, can only be given by a qualified physician).
13

J.F., Docket No. 09-1061 (issued November 17, 2009); S.E., Docket No. 08-2214 (issued May 6, 2009).

5

Dr. Wilson’s reports, although insufficiently rationalized to meet appellant’s burden of
proof, are sufficient to require further medical development by OWCP. Her undated report
stated that appellant’s cervical condition resulted from daily job activities over time, such as
repetitive lifting, reaching, sorting, casing, pushing, pulling and driving. Dr. Wilson opined that
sorting mail at shoulder height produced moderate compromise of the cervical neural foramens.
Although she did not provide detailed rationale to explain the basis of her opinion, her opinion is
sufficient to require further development of the medical record.14 Dr. Wilson obtained a
consistent history of the injury, reviewed prior diagnostic records, conducted a physical
examination, diagnosed cervical radiculitis, facet arthropathy and myofascial pain syndrome and
rendered an opinion that was consistent with her findings.
On remand, OWCP should prepare a statement of accepted facts and develop the medical
evidence by referring appellant to an appropriate Board-certified specialist for a rationalized
medical opinion regarding whether appellant’s employment duties caused or aggravated a left
arm, shoulder or neck condition. After conducting such further development as it may find
necessary, OWCP shall issue an appropriate merit decision.
CONCLUSION
The Board finds that the case is not in posture for decision and must be remanded for
further development of the record.

14

See John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

6

ORDER
IT IS HEREBY ORDERED THAT the August 30, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: September 15, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Milwaukee, WI, Employer
__________________________________________

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

Docket No. 11-655
Issued: September 21, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 19, 2011 appellant filed a timely appeal from a July 28, 2010 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly found an overpayment of $932.57 was
created from May 9 to June 5, 2010; and (2) whether it properly found appellant at fault in
creating the overpayment.
FACTUAL HISTORY
The case was before the Board on a prior appeal. OWCP accepted that on November 18,
1994 appellant sustained a right ankle sprain, low back sprain, lumbar and thoracic subluxations
1

5 U.S.C. § 8101 et seq.

at T8, T11, L4 and L5 and posterior annular tears L4-5 and L5-S1. The Board reversed a
July 30, 2003 termination of compensation for refusal of suitable work under 5 U.S.C.
§ 8106(c)(2), finding the medical evidence did not establish the offered position as suitable.2
Appellant continued to receive compensation for wage loss. She periodically completed Form
EN1032 questionnaires regarding employment activity and receipt of other benefits. In a
EN1032 signed on March 3, 2010, appellant indicated that she had earnings as a babysitter of
approximately $500.00 a week.
On June 2, 2010 OWCP received evidence regarding an investigation by the Office of the
Inspector General (OIG) for the employing establishment and the Social Security Administration
(SSA). In a report dated August 5, 2009, the SSA’s OIG reported that appellant admitted she
began babysitting in July 2006 and currently earned $500.00 a week, with an additional $50.00 if
she stayed overnight. The record contains a May 27, 2010 report from the employing
establishment’s OIG summarizing the results of the investigation. According to the court
documents of record, an information was filed in U.S. District Court charging that on or about
March 5, 2007 appellant knowingly made false statements on an EN1032 regarding her
self-employment.3 In a plea agreement signed by appellant on April 12, 2010, and signed by a
U.S. Attorney on May 5, 2010, she acknowledged she was guilty of the offenses charged. The
guilty pleas were entered on May 25, 2010.
OWCP initially issued a preliminary determination of an overpayment dated June 3,
2010, finding an overpayment of $2,486.86 had occurred from May 5 to June 5, 2010. In a
preliminary determination dated June 18, 2010, it found the overpayment was $932.57 from
May 25 to June 5, 2010. The calculation provided stated that appellant was paid $2,176.00 from
May 9 to June 5, 2010 and should have been paid $932.57 from May 9 to 25, 2010.
In an amended preliminary determination dated June 28, 2010, OWCP again found the
overpayment was $932.57 from May 25 to June 5, 2010. The calculation provided in the
accompanying memorandum indicated that for the period May 9 to June 5, 2010 appellant was
paid $2,176.00, but she should have received $1,243.43 for the period May 9 to 25, 2010. In
explaining its decision OWCP stated that on May 5, 2010 appellant pled guilty in open court to
having earnings of approximately $500.00 a week since 2006. It also made a preliminary finding
that appellant was at fault in creating the overpayment, as she had accepted compensation to
which she was not entitled. The cover letter stated, “According to [regulations], a claimant is not
entitled to compensation once he/she files a pleading in court.”
In a decision dated July 28, 2010, OWCP finalized its determination as to a $932.57
overpayment of compensation and its finding of fault.

2

Docket No. 05-82 (issued April 12, 2005).

3

Appellant was also charged with making false statements on an SSA benefit form.

2

LEGAL PRECEDENT -- ISSUE 1
It is a well-established principle that OWCP must make proper findings of fact and a
statement of reasons in its final decisions.4 When OWCP fails to properly explain its findings,
the case will be remanded for a appropriate decision.5
ANALYSIS
In this case OWCP found an overpayment of $932.57 occurred from May 25 to
June 5, 2010. It issued three different preliminary determinations regarding the overpayment. It
appears that OWCP has made a finding that appellant was not entitled to compensation after
May 25, 2010 as a result of a guilty plea entered on that date. There is, however, no
identification as to the specific regulations involved, no attempt to quote or summarize the
specific language of the regulations and no attempt to explain how the specific facts in this case
are relevant to the regulations. Appellant was provided only with the general assertion that there
was a regulation with respect to the filing of a “pleading in court” that would prohibit entitlement
to compensation.
The case will be remanded to OWCP for a proper decision with complete findings of fact
and a statement of reasons on the issue presented. After such further development as is deemed
necessary, OWCP should issue an appropriate decision.
In view of the Board’s holding, the issue of fault will not be addressed in detail. The
Board notes that OWCP provided no clear explanation as to what specific evidence of record
established that appellant knew or should have known the June 5, 2010 payment was incorrect.
CONCLUSION
The Board finds that OWCP did not provide an appropriate decision with findings of fact
and a statement of reasons on the issues presented.

4

See Arietta K. Cooper, 5 ECAB 11 (1952); 20 C.F.R. § 10.126.

5

See T.B., Docket No. 10-1570 (issued June 28, 2011).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 28, 2010 is set aside. The case is remanded for further action
consistent with this decision of the Board.
Issued: September 21, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, 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.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hopewell Junction, NY, Employer
__________________________________________

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Appearances:
Paul Kalker, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-0866
Issued: November 23, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 9, 2015 appellant, through counsel, filed a timely appeal from September 23,
2014 and February 4, 2015 merit decisions 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 established lateral epicondylitis of her right elbow in the
performance of duty on December 2, 2013.
On appeal, counsel contends that the medical evidence firmly supports that appellant
suffered from lateral epicondylitis causally related to the December 2, 2013 accepted incident of
employment. He argued that OWCP had improperly adopted an adversarial posture and placed
on appellant an unreasonably high burden of proof, requiring her to establish causal relationship
beyond all reasonable doubt.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 12, 2013 appellant, then a 50-year-old rural carrier, filed a traumatic injury
claim alleging that on December 2, 2013, she was reaching to place a large bundle of mail in the
mailbox when she suffered a sharp pain in her right elbow. The employing establishment
controverted the claim.
Appellant submitted a December 3, 2013 report from Alan Glickman, a nurse
practitioner, at Anderson Medical Center, which diagnosed unspecified (uns.)
synovitis/tenosynovitis, and found that appellant, could return to work on December 6, 2013
without restrictions.
In a December 23, 2013 report, Dr. Adam Rubinstein, a Board-certified internist, with
Hudson Valley Primary Care, assessed appellant with lateral epicondylitis, and indicated that he
treated her with a Celestone injection.
On December 27, 2013 OWCP advised appellant that the evidence she had submitted to
date was insufficient to establish her claim. Appellant was advised that she should submit
further evidence to establish that she actually experienced the alleged incident, as well as a
medical report from a qualified physician which substantiated that her diagnosed condition was
caused or aggravated by the December 2, 2013 employment incident.
By decision dated January 31, 2014, OWCP denied appellant’s claim, finding that she
had not established that the incident occurred as alleged. It noted that, even if she had
established that the event occurred as alleged, she also had failed to submit medical evidence to
establish that the diagnosed medical condition of lateral epicondylitis was causally related to the
alleged work incident.
On March 11, 2014 OWCP received additional evidence. In a December 3, 2013 duty
status report, Mr. Glickman found appellant able to return to unrestricted duty as of
December 6, 2013. He diagnosed unspecified synovitis/tenosynovitis, and noted that the injury
occurred when she delivered mail to a mailbox. In a different duty status report of the same date,
Mr. Glickman found that appellant had increased pain in her right elbow which he believed was
aggravated by her employment, diagnosed tendinitis, and opined that she was totally disabled
from December 3 to 6, 2013, after which she could resume regular work.
Appellant submitted return to work notes from Dr. Rubinstein. In the note from a visit on
December 23, 2013, Dr. Rubinstein indicated that appellant would be able to return to work on
December 30, 2013. On January 22, 2014 he advised that she was to remain off work until
further notice.
In a January 22, 2014 report, Dr. Rubinstein noted that he saw appellant for a follow up.
He diagnosed joint and forearm pain. Dr. Rubinstein noted other medical conditions of asthma,
plantar fascial fibromatosis, nevus, nonneoplastic, encounter for long-term (current) use of other
medications, cerebrovascual accident, and migraine headache.
In a January 24, 2014 report, Dr. Joseph Antonio, a Board-certified diagnostic
radiologist, interpreted a magnetic resonance imaging (MRI) scan of that date as evidencing a
2

tiny osteochondral lesion of the distal articular surface of the lateral humeral epicondyle slightly
posteriorly. He noted that the MRI scan was otherwise unremarkable.
In February 6 and 25, 2014 reports, Dr. David DiMarco, a Board-certified surgeon, noted
that he saw appellant with regard to a December 2, 2013 employment incident. Appellant
advised him that, while delivering mail, she had straightened her arm out to put mail in a box and
it started to hurt. Dr. DiMarco noted that Naproxen and physical therapy had not helped. He
conducted a physical examination and reviewed appellant’s medical history. Dr. DiMarco noted
joint pain, localized in the elbow, and listed his impression as lateral epicondylitis right elbow
with underlying synovitis and possible chondral lesion capitellum. He stated that given
appellant’s history to be correct, her ongoing symptoms were definitely related to the accident of
December 2, 2013 while at work. Dr. DiMarco requested authorization for an arthroscopic
debridement right elbow and open release right lateral epicondylitis.
On February 28, 2014 appellant requested a review of the written record by an OWCP
hearing representative.
By decision dated September 23, 2014, the hearing representative found that appellant
established that the incident occurred as alleged. However, she denied appellant’s claim as
appellant had failed to establish that her diagnosed medical condition, right elbow lateral
epicondylitis, was caused or aggravated by the accepted incident.
By letter dated October 31, 2014, appellant’s newly appointed counsel requested
reconsideration. He contended that the reports of Dr. DiMarco clearly established a causal
relationship between appellant’s injury-related condition of lateral epicondylitis and the
employment event of December 2, 2013. Counsel asked that OWCP vacate the January 31 and
September 23, 2014 decisions, and award wage loss and other compensation to appellant.
New medical evidence received by OWCP in support of appellant’s reconsideration
request included a September 7, 2014 report wherein Dr. DiMarco summarized his treatment of
appellant. Dr. DiMarco noted that appellant was first seen in his office on February 6, 2014,
with a primary complaint of pain in the right elbow. He noted that the problem began on
December 2, 2013 when she was delivering mail, straightened out her arm to put mail in a box,
and experienced elbow pain. Dr. DiMarco noted that, prior to presentation at his office,
appellant had been on oral anti-inflammatories including Naprosyn, attended formal physical
therapy, and received cortisone injections, all without relief. He diagnosed lateral epicondylitis
of the right elbow with underlying synovitis and possible chondral lesion to the capitellum. In
support of this diagnosis, Dr. DiMarco noted that his examination was remarkable for right upper
extremity at the elbow/forearm, noting tenderness to palpatation in the area of the common
extensor mass at the lateral epicondylar area, and tenderness into the radial gutter. He also
reviewed appellant’s MRI scan of January 24, 2014, and noted that it did reveal an
osteochrondral lesion to the capitellum consistent with lateral column overloading. Dr. DiMarco
further noted that the MRI scan revealed some synovitis in the joint, but no obvious tear to the
common extensor. He indicated that appellant failed to respond to conservative management,
and that his findings were consistent with the history provided of the December 2, 2013 injury,
including overpowering the extensor mechanism to the right elbow, and the chondral damage to
the radial capitellar articulation and subsequent development of the lateral epicondylitis.

3

Dr. DiMarco then concluded, “Therefore, there was definitely a causal relationship between the
accident of record and her symptoms.” He further noted that appellant returned to his office on
February 25, 2014. Dr. DiMarco explained that she failed to respond to conservative treatment,
and noted that her examination again revealed sensitivity to the lateral epicondylar region of the
elbow, that was further exacerbated by resisted dorsiflexion to the wrist. He noted that appellant
was unable to even pick up five pounds with her dominant right hand. Therefore, Dr. DiMarco
repeated his request for authorization for an arthroscopy of the right elbow with open release of
lateral epicondylitis. He submitted a subsequent progress report discussing his examination of
appellant on September 30, 2014, wherein he again noted lateral epicondylitis of the elbow and
noted that she remained incapable of returning to work.
By decision dated February 4, 2015, OWCP evaluated the evidence on the merits, but
denied modification of its September 23, 2014 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged,
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury. 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.2
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.3
In order to meet his or her burden of proof to establish the fact that he or she sustained an injury
in the performance of duty, an employee must submit sufficient evidence to establish that he or
she actually experienced the employment injury or exposure at the time, place, and in the manner
alleged.4
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.5 The medical evidence required to
establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
2

Jussara L. Arcanjo, 55 ECAB 281, 283 (2004).

3

See Elaine Pendleton, 40 ECAB 1143 (1989).

4

Linda S. Jackson, 49 ECAB 486 (1998).

5

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

4

the implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.6
ANALYSIS
OWCP accepted that an incident had occurred in the course of appellant’s federal
employment on December 2, 2013, when reaching to place a large bundle of mail in the mailbox,
and suffered a sharp pain in her right elbow. It denied her claim, however, as the medical
evidence failed to establish causal relationship between the diagnosed condition and the accepted
incident. The Board finds that appellant has not established lateral epicondylitis of the right
elbow due to her employment.
The Board finds that the February 6, 25, and September 7, 2014 reports from
Dr. DiMarco are not sufficient to establish causal relationship. Dr. DiMarco discussed
appellant’s medical history and his findings on examination. He diagnosed lateral epicondylitis
to the right elbow with underlying synovitis and possible chondral lesion to the capitellum.
Dr. DiMarco supported this diagnosis by noting that appellant’s examination was at the
elbow/forearm, was tender to palpation in the area of the common extensor mass at the lateral
epicondylar area and into the radial gutter. He also noted that her MRI scan showed an
osteochondral lesion to the capitellum consistent with lateral column overloading and also noted
some synovitis in the joint. Dr. DiMarco opined that findings on examination were consistent
with the history provided of the December 2, 2013 injury, including overpowering the extensor
mechanism to the right elbow, including the chondral damage to the radial capitellar articulation
and subsequent development of lateral epicondylitis. He concluded that there was definitely a
causal relationship between the accident of record and appellant’s symptoms. Although
Dr. DiMarco’s opinion generally supported causal relationship between her accepted
employment incident and her diagnosed condition, he did not provide sufficient rationale
explaining this conclusion. His opinion is largely based on appellant’s opinion as to what caused
her injury rather than by his independent analysis of the cause of the condition. Dr. DiMarco did
not explain the process by which appellant’s employment incident caused or contributed to the
diagnosed condition or state why such condition could not have been caused by nonwork
factors.7 A mere conclusion without the necessary rationale explaining how and why the
physician believes that a claimant’s accepted incident resulted in the diagnosed condition is not
sufficient to meet appellant’s burden of proof.8
With regard to the other medical evidence submitted by appellant, the Board notes that
the report from Dr. Rubinstein assessed appellant with lateral epicondylitis, but also does not
discuss its relationship to appellant’s accepted employment incident. Dr. Antonio interpreted
appellant’s MRI scan as evincing a tiny osteochondral lesion of the distal articular surface of the
6

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

7

See J.S., Docket No. 14-818 (issued August 7, 2014).

8

G.M., Docket No. 14-2057 (issued May 12, 2015).

5

lateral humeral epicondyle slightly posteriorly, but also makes no statement with regard to causal
relationship. In order for a physician to establish causal relationship, his opinion must accurately
describe appellant’s work duties and medically explain the pathophysiological process by which
these duties would have caused or aggravated her condition.9 As the reports of Drs. Rubinstein
and Antonio do not discuss the causal relationship between appellant’s employment incident and
his medical diagnoses, these reports are insufficient to meet her burden on proof. The Board
further notes that reports by Mr. Glickman have no probative medical value as a nurse
practitioner is not a physician as defined under FECA.10
The Board finds that the medical evidence does not establish right elbow lateral
epicondylitis was the result of the accepted employment incident. The medical reports failed to
provide sufficient medical rationale explaining how the conditions were caused or aggravated by
the accepted incident of December 2, 2013.
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 established lateral epicondylitis to her right elbow
in the performance of duty on December 2, 2013, as alleged.

9

Solomon Polen, 51 ECAB 341 (2000) (rationalized medical evidence must relate specific employment factors
identified by the claimant to the claimant’s condition, with stated reasons by a physician). See also G.G., Docket
No 15-234 (issued April 9, 2015).
10

The term physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors,
and osteopathic practitioners within the scope of their practice as defined by State law. 5 U.S.C. § 8102(2); L.D., 59
ECAB 648 (2008) (a nurse practitioner is not a physician as defined under FECA).

6

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 4, 2015 and September 4, 2014 are affirmed.11
Issued: November 23, 2015
Washington, DC

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

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

11

James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective November 16, 2015.

7


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

)
)
)
)
)
)
)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1394
Issued: August 5, 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 4, 2012 appellant filed a timely appeal from the February 27, 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 his burden of proof to establish that he has more than
a four percent permanent impairment of his left arm or a two percent permanent impairment of
his right leg, for which he received schedule awards.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
OWCP accepted that on June 21, 2003 appellant, then a 45-year-old mail handler,
sustained a right knee sprain, left wrist sprain and lumbar strain due to a fall at work. He
returned to limited duty in February 2004 and full duty in April 2004.2
In a July 15, 2004 report, Dr. Nicholas Diamond, an attending osteopath, detailed
appellant’s complaints and findings on examination, including the existence of 4/5 strength in his
right quadriceps and extensor hallucis longus. He noted that appellant had diminished left grip
strength and limited motion of his left second and third fingers. Dr. Diamond found that
appellant had 25 percent permanent impairment of his left arm and 17 percent permanent
impairment of his right leg under the fifth edition of the American Medical Association, Guides
to the Evaluation of Permanent Impairment (5th ed. 2001). The file was referred to Dr. Arnold T.
Berman, an OWCP medical adviser. On October 13, 2004 Dr. Berman opined that the medical
evidence established that appellant had two percent permanent impairment of his left arm and
two percent impairment of his right leg.3 On November 17, 2004 appellant filed a claim for a
schedule award.
In a January 31, 2005 decision, OWCP granted appellant a schedule award for a two
percent permanent impairment of his left arm and a two percent permanent impairment of his
right leg. It based its award on the October 13, 2004 report of Dr. Berman.
In an October 26, 2005 decision, an OWCP hearing representative determined that there
was a conflict in the medical opinion between Dr. Diamond and Dr. Berman regarding the extent
of appellant’s permanent impairment. He set aside the January 31, 2005 decision and remanded
the case for referral of appellant to an impartial medical specialist for evaluation of this issue.
On remand, OWCP referred appellant to Dr. Edward J. Resnick, a Board-certified
orthopedic surgeon, for an impartial medical examination. On December 20, 2005 Dr. Resnick
reported that, upon examination, appellant exhibited no synovial thickening or effusion in either
knee and that range of motion was 0 to 120 degrees in both knees. He noted that appellant had
full range of motion in both hands and that motor power was normal in his left arm.
Neurological testing of the arms and legs was normal. Dr. Resnick found that appellant had no
residual impairment of his arms or legs, noting the lack of any findings of restricted range of
motion, decrease of strength, atrophy or sensory changes. Regarding appellant’s complaints, he
noted, “I have described the man’s subjective complaint[s]. In my opinion, in the absence of
objective findings, these cause no physical impairment.”

2

Appellant had a prior work injury on October 17, 2002 that was accepted under another claim for trigger finger
of his left second and third fingers and sprains/strains of his left hand and his left third and fourth fingers. He had
trigger finger release surgery on June 23, 2003 that OWCP authorized. Under this claim, appellant received a
schedule award on April 15, 2005 for a two percent impairment of his left arm
3

Dr. Berman indicated that there was no objective evidence of weakness in appellant’s right leg, but noted that he
had a right leg impairment of two percent due to right leg pain. He found full range of motion in appellant’s left
hand and fingers, but found that he had a left arm impairment of two percent due to left hand pain.

2

On April 7, 2006 Dr. Morley Slutsky, a Board-certified occupational medicine physician
and an OWCP medical adviser, agreed with Dr. Resnick that appellant did not have any
permanent impairment of his arms or legs.
In an April 12, 2006 decision, OWCP found that appellant was not entitled to receive any
additional schedule award compensation for his left arm or right leg, basing its determination on
the opinion of Dr. Resnick.
Appellant requested a hearing before an OWCP hearing representative. At the hearing
held on August 16, 2006, counsel argued that Dr. Resnick was improperly selected under the
computerized system for selecting impartial medical specialists.
In an October 30, 2006 decision, OWCP’s hearing representative affirmed the August 16,
2006 decision, finding that the selection of Dr. Resnick was proper. In a July 2, 2008 decision,
OWCP affirmed its October 30, 2006 decision.
In a February 17, 2009 decision, OWCP’s hearing representative found that appellant was
not entitled to additional schedule award compensation with respect to his right leg. She
determined that there was a conflict in the medical evidence regarding his left arm impairment
and that he should be referred back to Dr. Resnick for a new examination and additional
evaluation.
In accordance with the February 17, 2009 decision, OWCP attempted to refer appellant to
Dr. Resnick for further evaluation. Dr. Resnick advised, however, that he no longer performed
permanent impairment evaluations. OWCP referred appellant to Dr. Howard Stein, a Boardcertified orthopedic surgeon, for an impartial medical examination and evaluation of his
impairment.
In a June 30, 2009 report, Dr. Stein determined that appellant had a six percent permanent
impairment of his left arm under the standards of the fifth edition of the A.M.A., Guides due to
range-of-motion deficits in the third and fourth fingers of his left hand. On October 9, 2009
Dr. Slutsky determined that appellant did not have any permanent impairment of his left arm
because it had not been shown that the limited finger motion of his left hand was related to the
accepted work injuries.
OWCP asked Dr. Stein to provide a supplemental assessment of appellant’s left arm
impairment under the standards of the sixth edition of the A.M.A., Guides. In a January 5, 2010
report, Dr. Stein determined that, under the sixth edition, appellant had a six percent permanent
impairment of his left arm based on hand pain and limited finger motion. On January 22, 2010
Dr. Craig M. Uejo, a Board-certified orthopedic surgeon serving as an OWCP medical adviser,
stated that appellant had a two percent permanent impairment of his left arm under the standards of
the sixth edition. He noted that appellant’s impairment rating should depend on the sixth edition
diagnosis-based impairment rather than loss of range of motion.
OWCP requested that Dr. Stein provide additional clarification of his January 5, 2010
report. On May 14, 2011 Dr. Stein stated that there was no evidence that appellant had residuals of
his accepted left wrist sprain or trigger finger and noted, “If this is true, then the two percent
disability of the hand based only on diagnosis may not be correct. The patient will still have a two
3

percent impairment rating if we eliminate the pain as being caused by the residuals of the injury
since I found no objective cause of pain, then the loss of motion can be used as two percent
impairment of the upper extremity.” On May 25, 2011 Dr. Slutsky reiterated that appellant did not
have permanent impairment of his left arm.
In a June 16, 2010 decision, OWCP determined that appellant did not have more than a
four percent permanent impairment of his left arm or a two percent permanent impairment of his
right leg, for which he received schedule awards.
In a September 8, 2010 decision,4 the Board set aside OWCP’s February 17, 2009
decision on the basis that the opinion of Dr. Resnick required clarification regarding appellant’s
right leg impairment. The Board noted that, if Dr. Resnick was unwilling or unable to clarify his
opinion, the case should be referred to another appropriate impartial specialist. Because
Dr. Resnick no longer performed permanent impairment evaluations, OWCP referred appellant
to Dr. Andrew Collier, a Board-certified orthopedic surgeon, for examination and evaluation of
his right leg impairment.
In an October 1, 2010 order,5 the Board set aside its September 8, 2010 decision on its
own motion to further consider whether OWCP properly followed its procedures in selecting
Dr. Resnick, the impartial medical specialist.
In a November 9, 2010 report, Dr. Collier determined that, under the standards of the
sixth edition of the A.M.A., Guides, appellant had a 10 percent permanent impairment of his
right leg due to range-of-motion deficits of the right knee.
In a December 28, 2010 decision, OWCP set aside its June 16, 2010 decision finding that
that Dr. Stein had not provided a rationalized opinion on appellant’s impairment despite being
provided an opportunity to clarify his opinion. It remanded the case for referral to a new impartial
specialist in order to evaluate appellant’s permanent impairment.
OWCP referred appellant to Dr. William H. Simon, a Board-certified orthopedic surgeon,
for an impartial medical examination.6
In a July 26, 2011 report, Dr. Simon found that appellant did not have any permanent
impairment of his left arm and right leg. He provided an extensive history of appellant’s medical
problems, including his accepted work injuries. Dr. Simon noted that range-of-motion testing of
the knees was taken three times and all these movements were the same. Appellant could flex
from 0 to 120 degrees on the right and left and there was no instability or effusion in either knee.
4

Docket No. 09-1769 (issued September 8, 2010).

5

Docket No. 09-1769 (issued October 1, 2010).

6

The record contains a July 7, 2011 ME023 iFECS report, produced under the Medical Management Application
system, stating that an impartial medical examination was scheduled with Dr. Simon. The record also contains
bypass screen shots for other Board-certified orthopedic surgeons, including Dr. Mark Rekant, who was bypassed
because he only specialized in hand injuries, Dr. Scott Rushton, who was bypassed because he was too busy to
schedule any appointments at that time and Drs. Joseph Jelen, Herbert Stein and Stuart Trager, who were bypassed
because they did not perform impairment evaluations.

4

Deep tendon reflexes about the knees and ankles were hypo-reactive but symmetrical and
sensation was intact to pinprick in both lower extremities. Dr. Simon stated that wrist range of
motion was performed three times and was equal on each time with palm flexion being 60
degrees and dorsiflexion being 90 degrees on the right and left. Power was normal on flexion
and extension. Ulnar deviation on both sides (done three times) was 45 degrees and radial
deviation on both sides (done three times) was 25 degrees. Dr. Simon indicated that range-ofmotion testing of the digits of the hands was performed. The metacarpophalangeal (MP) joints
were measured at 0 degrees extension to flexion of 90 degrees three times in both hands and the
interphalangeal (IP) joints were measured at 0 degrees extension and 90 degrees of flexion three
times in both hands. Testing of the distal interphalangeal (DIP) joints of the fingers and the IP
joint of the thumbs in both hands was performed three times and measured 0 to 45 degrees of
flexion. Dr. Simon noted that appellant could make a tight fist in both hands and that grip
strength was good on the right and left. Examination of the spine to palpation showed no areas
of tenderness in the mid line or to the right or left of the mid line. Dr. Simon found that all of
appellant’s work-related conditions had resolved, noting that he did not have any objective
findings confirming the existence of these conditions. He opined that appellant did not have any
permanent impairment of his left arm or right leg under the sixth edition of the A.M.A., Guides.
Regarding the A.M.A., Guides, Dr. Simon stated:
“Using the Digit Regional Grid, Table 15-2, for sprain/strain of the 3rd and 4th
fingers of the left hand came up with class 0. Class 0 is not ratable for
impairment, there were no adjustment modifiers since they are not required with
class 0, therefore the residual impairment of the 3rd and 4th fingers is 0.
“Using the Wrist Grid, Table 15-3 on page 395, indicates that a wrist sprain is a
class 0 which is non-ratable and again adjustments are not required for class 0.
This is equivalent to 0 permanent impairment for wrist sprain.
“Utilizing the Knee Regional Grid, Table 16-3, page 509, for strain of the knee
gives a class 0. Adjustments are not required for class 0. The impairment of the
lower extremity or a strain/sprain is 0 percent permanent impairment.
“Using the Lumbar Spine Regional Grid on page 570, [Table] 17-4, for
sprain/strain gives a class 0, again with class 0 adjustment is not required.
“There were no peripheral nerve injuries and therefore no impairment of the lower
extremities is given for the lumbar spine sprain and strain. Since there were no
peripheral nerve injuries I did not have to use the findings in [The Guides
Newsletter, “Rating Spinal Nerve Extremity Impairment Using the Sixth Edition”
(July/August 2009)] to determine any permanent impairment due to any injury of
the lumbar spine.”
On August 7, 2011 Dr. Slutsky agreed with Dr. Simon that appellant did not have any
permanent impairment of his left arm or right leg.
In an August 22, 2011 decision, OWCP denied appellant’s claim for additional schedule
award compensation. It found that the opinion of Dr. Simon, the impartial specialist, was well

5

rationalized and established that appellant did not have permanent impairment related to his
accepted conditions.
In a September 27, 2011 decision, the Board set aside OWCP’s February 17, 2009
decision and found that Dr. Resnick had been improperly selected as an impartial medical
specialist. The Board determined that OWCP had not complied with its selection procedures.7
In an October 6, 2011 decision, OWCP affirmed its August 22, 2011 schedule award
decision.
Appellant requested a review of the written record. He submitted an updated
November 28, 2011 report from Dr. Diamond who took his examination findings from July 15,
2004 and applied the standards of the sixth edition of the A.M.A., Guides. Dr. Diamond found
that appellant had a nine percent permanent impairment of his right leg.
In a February 27, 2012 decision, OWCP affirmed its October 6, 2011 decision denying
appellant’s claim for additional schedule award compensation. It found that the opinion of
Dr. Simon established that appellant was not entitled to additional compensation.
LEGAL PRECEDENT
Under FECA, Congress has provided that when there is disagreement between the
physician on the part of the United States and that of the employee, the Secretary shall appoint a
third physician who shall make an examination.8 The Board has noted that the appointment of a
referee physician under this section is mandatory in cases where there is such disagreement and
that failure of OWCP to properly appoint a medical referee may constitute reversible error.9
In cases arising under section 8123(a), the Board has long recognized the discretion of
the Director to appoint physicians to examine claimants under FECA in the adjudication of
claims.10 FECA does not specify how the appointment of a medical referee is to be
accomplished. Moreover, it is silent as to the qualifications of the physicians to be considered.11
The implementing federal regulations, citing to the Board’s decision in James P. Roberts,
provide that development of the claim is appropriate when a conflict arises between medical
opinions of virtually equal weight.12
Congress did not address the manner by which an impartial medical referee is to be
selected. Rather, this was left to the expertise of the Director in administering the compensation
7

Docket No. 09-1769.

8

5 U.S.C. § 8123(a).

9

Tony F. Chilefone, 3 ECAB 67 (1949).

10

See William C. Gregory, 4 ECAB 6 (1950).

11

See Melvina Jackson, 38 ECAB 443 (1987).

12

20 C.F.R. § 10.321(a); James P. Roberts, 31 ECAB 1010 (1980).

6

program created under FECA.13 It is an established principle, however, that FECA is a remedial
statute and should be broadly construed in favor of the employee to effectuate its purpose and not
in derogation of an employee’s rights.14 The primary rule of statutory construction is to give
effect to legislative intent and, in arriving at intent; it is well settled that the words in a statute
should be construed according to their common usage.15
Under the Federal (FECA) Procedure Manual, the Director has exercised discretion to
implement practices pertaining to the selection of the impartial medical referee. Unlike second
opinion physicians, the selection of referee physicians is made from a strict rotational system.16
OWCP will select a physician who is qualified in the appropriate medical specialty and who has
no prior connection with the case.17 Physicians who may not serve as impartial specialists
include those employed by, under contract to or regularly associated with federal agencies;18
physicians previously connected with the claim or claimant or physicians in partnership with
those already so connected19 and physicians who have acted as a medical consultant to OWCP.20
The fact that a physician has conducted second opinion examinations in connection with FECA
claims does not eliminate that individual from serving as an impartial referee in a case in which
he or she has no prior involvement.21
In turn, the Director has delegated authority to each district OWCP for selection of the
referee physician by use of the Medical Management Application within the Integrated Federal
Employees’ Compensation Systems (iFECS).22 This application contains the names of
physicians who are Board-certified in over 30 medical specialties for use as referees within
appropriate geographical areas.23 The Medical Management Application in iFECS replaces the
prior Physician Directory System (PDS) method of appointment.24 It provides for a rotation
among physicians from the American Board of Medical Specialties, including the medical

13

See, e.g., Harry D. Butler, 43 ECAB 859, 866 (1992) (The Director delegated discretion in determining the
manner by which permanent impairment is evaluated for schedule award purposes).
14

Stephen R. Lubin, 43 ECAB 564, 569 (1992), citing Erin J. Belue, 13 ECAB 88 (1961) and Samuel Berlin, 4
ECAB 39 (1950).
15

Erin J. Belue, id. See also Sutherland Stat. Const. § 65.03, 239-40 (4th ed. 1986).

16

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4(b) (July 2011).

17

Id. at Chapter 3.500.4(b)(1).

18

Id. at Chapter 3.500.4(b)(3)(a).

19

Id. at Chapter 3.500.4(b)(3)(b).

20

Id. at Chapter 3.500.4(b)(3)(c).

21

See note to id.

22

Id. at Chapter 3.500.4(b)(6).

23

Id. at Chapter 3.500.4(b)(6)(a).

24

Id. at Chapter 3.500.5.

7

boards of the American Medical Association, and those physicians Board-certified with the
American Osteopathic Association.25
Selection of the referee physician is made through use of the application by a medical
scheduler. The claims examiner may not dictate the physician to serve as the referee examiner.26
The medical scheduler imputes the claim number into the application, from which the claimant’s
home zip code is loaded.27 The scheduler chooses the type of examination to be performed
(second opinion or impartial referee) and the applicable medical specialty.28 The next physician
in the roster appears on the screen and remains until an appointment is scheduled or the
physician is bypassed. If the physician agrees to the appointment, the date and time are entered
into the application. Upon entry of the appointment information, the application prompts the
medical scheduler to prepare a Form ME023, appointment notification report for imaging into
the case file.29 Once an appointment with a medical referee is scheduled the claimant and any
authorized representative is to be notified.30
A physician selected by OWCP to serve as an impartial medical specialist should be one
wholly free to make a completely independent evaluation and judgment. The procedures
contemplate that the impartial medical specialists will be selected on a strict rotating basis in
order to negate any appearance that preferential treatment exists between OWCP and a particular
physician.31 OWCP has an obligation to verify that it selected an impartial medical specialist in
a fair and unbiased manner. It maintains records for this very purpose.32
The schedule award provision of FECA33 and its implementing regulations34 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
25

Id. at Chapter 3.500.5(a).

26

Id. at Chapter 3.500.5(b).

27

Id. at Chapter 3.500.5(c).

28

Id. The roster of physicians is not made visible to the medical scheduler under the application. The medical
scheduler may update information pertaining to whether the selected physician can schedule an appointment in a
timely manner and, if not, will enter an appropriate bypass code. Id. at Chapter 3.500.5(e-f). Upon entry of a
bypass code, the Medical Management Application will present the next physician based on specialty and zip code.
29

Id. at Chapter 3.500.5(g). The ME023 serves as documentary evidence that the referee appointment was
scheduled through the Medical Management Application rotational system. Should an issue arise concerning the
selection of the referee specialist, a copy of the ME023 may be reproduced and copied for the case record.
30

Id. at Chapter 3.500.4(d). Notice should include the existence of a conflict in the medical evidence under
section 8123; the name and address of the referee physician with date and time of appointment; a warning of
suspension of benefits under section 8123(d) and information on how to claim travel expenses.
31

Raymond J. Brown, 52 ECAB 192 (2001).

32

M.A., Docket No. 07-1344 (issued February 19, 2008).

33

5 U.S.C. § 8107.

34

20 C.F.R. § 10.404 (1999).

8

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.35 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.36
In determining impairment for the upper and lower extremities under the sixth edition of
the A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the
upper and lower extremities to be rated. Reference is made to tables relating to the parts of the
body involved, including in the present case, Table 15-2 (Digit Regional Grid), Table 15-3 (Wrist
Regional Grid) and Table 16-3 (Knee Regional Grid).37 After the Class of Diagnosis (CDX) is
determined from the relevant grid, 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).38 Under Chapter 2.3, evaluators are directed to provide reasons
for their impairment rating choices, including choices of diagnoses from regional grids and
calculations of modifier scores.39
It is well established that in determining the amount of a schedule award for a member of
the body that sustained an employment-related permanent impairment, preexisting impairments of
the body are to be included.40 However, when a claimant does not demonstrate any permanent
impairment caused by the accepted exposure, the claim is not ripe for consideration of any
preexisting impairment.41 The Board has held that an impairment rating that is not based on
reasonably current examination findings is of reduced probative value.42

35

Id.

36

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.
37

See A.M.A., Guides (6th ed. 2009) 391, 395, 509, Table 15-2, Table 15-3 and Table 16-3.

38

Id. at 515-22.

39

Id. at 23-28.

40

See Dale B. Larson, 41 ECAB 481, 490 (1990); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.3(a)(3) (January 2010). This portion of OWCP procedure provides that the impairment rating
of a given scheduled member should include “any preexisting permanent impairment of the same member or function.”
41

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

42

See W.M., Docket No. 12-773 (issued March 29, 2013) (where the Board found that a physician’s 2010
impairment opinion, seeking to update a prior report based on 2004 findings, constituted stale medical evidence);
P.S., Docket No. 12-649 (issued February 14, 2013) (the Board found a physician’s impairment opinion of reduced
probative value where the physician relied on three year old findings to update his impairment rating).

9

ANALYSIS
OWCP accepted that on October 17, 2002 appellant sustained trigger finger of his left
second and third fingers and sprains/strains of his left hand and his left third and fourth fingers.
It also accepted that on June 21, 2003 he sustained a right knee sprain, left wrist sprain and
lumbar strain. Appellant received schedule awards for a total left arm impairment of four
percent and a schedule award for a total right leg impairment of two percent, but he later claimed
entitlement to additional schedule award compensation.
OWCP properly determined that there was a conflict in the medical evidence regarding
the extent of appellant’s left arm and right leg impairment and referred appellant to Dr. Simon, a
Board-certified orthopedic surgeon, for an impartial medical examination and opinion on the
extent of his permanent impairment.43 In a July 26, 2011 report, Dr. Simon determined that
appellant had no permanent impairment of his left arm and right leg.
Before OWCP and on appeal, counsel contends that Dr. Simon was not properly selected
as the impartial medical specialist and, therefore, OWCP improperly relied on his report in
making its schedule award determination. It has an obligation to verify that it selected Dr. Simon
in a fair and unbiased manner and it maintains records for this very purpose.44 The record
contains a July 7, 2011 ME023 iFECS report, produced under the Medical Management
Application system, stating that an impartial medical examination was scheduled with
Dr. Simon. The record also contains bypass screen shots for other physicians, including
Dr. Rekant, who was bypassed because he only specialized in hand injuries, Dr. Rushton, who
was bypassed because he was too busy to schedule any appointments at that time and Drs. Jelen,
Stein and Trager, who were bypassed because they did not perform impairment evaluations.
The Board finds that OWCP presented documentation which provided valid reasons for
bypassing physicians and that it properly utilized its Medical Management Application system in
selecting Dr. Simon as the impartial medical examiner. The Board has placed great importance
on the appearance as well as the fact of impartiality and only if the selection procedures which
were designed to achieve this result are scrupulously followed may the selected physician carry
the special weight accorded to an impartial specialist.45 As OWCP has met its affirmative
obligation to establish that it properly followed its selection procedures, the Board finds that
counsel’s argument is not substantiated.46

43

The conflict was created between Dr. Diamond, an attending osteopath, and an OWCP medical adviser.

44

See supra note 32.

45

See N.C., Docket No. 12-1718 (issued April 11, 2013); T.T., Docket No. 12-1358 (issued April 11, 2013); P.B.,
Docket No. 12-1393 (issued December 18, 2012).
46

It should be noted that, in a September 27, 2011 decision, the Board found that Dr. Resnick, a Board-certified
orthopedic surgeon who previously served as an impartial medical specialist, was not properly selected through the
rotational system to serve in that capacity.

10

The Board finds that the July 26, 2011 report of Dr. Simon establishes that appellant did
not sustain permanent impairment under the sixth edition of the A.M.A., Guides. OWCP
properly denied appellant’s claim for additional compensation.
In a July 26, 2011 report, Dr. Simon found that appellant did not have any permanent
impairment of his left arm or right leg under the standards of the sixth edition of the A.M.A.,
Guides. He provided an extensive history of appellant’s medical problems, including appellant’s
accepted injuries and noted ranges of motion for his extremities, including his digits, wrists and
knees. Dr. Simon found that appellant’s work-related conditions had resolved by explaining that
he did not have any objective findings that confirmed these conditions. He noted that, using the
Digit Regional Grid of Table 15-2 on page 391, appellant’s sprain/strain of the 3rd and 4th fingers
of the left hand fell under class 0. This class 0 finding was not ratable for impairment and there
were no applicable adjustment modifiers under class 0. Dr. Simon thus concluded that the
residual impairment of the 3rd and 4th fingers was zero percent. Using the Wrist Grid of Table
15-3 on page 395, he indicated that appellant’s wrist sprain fell under class 0 which was not
ratable and did not require adjustments modifiers. Therefore, there was a zero permanent
impairment for wrist sprain. Utilizing the Knee Regional Grid of Table 16-3 on page 509,
appellant’s right knee strain fell under class 0. Dr. Simon noted that adjustments were not
required for class 0 and that the impairment of the right leg due to strain/sprain was zero percent.
He further properly noted that there were no accepted peripheral nerve injuries and therefore no
impairment of the lower extremities for peripheral nerve injuries.47
Before OWCP and on appeal, counsel argued that a November 28, 2011 report of
Dr. Diamond showed that appellant had nine percent permanent impairment of his right leg.
However, the Board finds that this report constitutes stale medical evidence because
Dr. Diamond took his examination findings from July 2004 and applied the standards of the sixth
edition of the A.M.A., Guides more than seven years later.48 On appeal, counsel also argued that
appellant had a preexisting right S1 radiculopathy (evidenced by diagnostic testing from
September 2003) which should have been taken into account by Dr. Simon. However, when a
claimant does not demonstrate any permanent impairment caused by the accepted exposure, the
claim is not ripe for consideration of any preexisting impairment.49
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.

47

Moreover, on August 7, 2011, Dr. Slutsky, a Board-certified occupational medicine physician serving as an
OWCP medical adviser, stated that he agreed with Dr. Simon that appellant did not have any permanent impairment
of his left arm and right leg.
48

See supra note 42.

49

See supra note 41. On appeal, counsel argued that OWCP should have accepted the impairment rating of
Dr. Collier, a Board-certified orthopedic surgeon. However, the opinion of Dr. Simon constituted the most recent,
well-rationalized impairment rating of record by an impartial specialist. Dr. Collier did not provide a rationalized
medical opinion explaining how the observed right leg deficits were related to a continuing accepted work injury.

11

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he has
more than a four percent permanent impairment of his left arm and a two percent permanent
impairment of his right leg, for which he received schedule awards.
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 27, 2012 is affirmed.
Issued: August 5, 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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.K., Appellant
and
U.S. POSTAL SERVICE, BAINBRIDGE
ISLAND STATION, Bainbridge Island, WA,
Employer
__________________________________________
Appearances:
John E. Goodwin, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 10-1421
Issued: May 25, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On April 28, 2010 appellant, through her attorney, filed a timely appeal of an April 26,
2010 decision of the Office of Workers’ Compensation Programs which terminated her wageloss compensation on the grounds that she no longer had any disability causally related to her
March 7, 2002 employment-related injuries.1 Citing William A. Couch,2 appellant’s attorney
contends on appeal that the Office erred in failing to consider new evidence, an April 19, 2010
letter, submitted by appellant and received by the Office three days prior to the issuance of the
April 26, 2010 termination decision. In the April 19, 2010 letter, appellant disagreed with the
Office’s March 24, 2010 notice of proposed termination of her compensation benefits,
contending that the February 20, 2009 medical report of Dr. Peter Wolff, a Board-certified
surgeon and an Office referral physician, was insufficient to constitute the weight of the medical
opinion evidence. Appellant further contended that she was physically incapable of returning to
her regular work duties as a rural mail carrier. As the Office failed to consider this evidence,
1

In the April 26, 2010 decision, the Office advised appellant that she was still entitled to medical benefits for the
accepted conditions which included left lower extremity superficial venus thrombosis and aggravation of left side
plantar fasciitis.
2

41 ECAB 548 (1990) (the Office did not consider new evidence received four days prior to the date its decision
was issued).

counsel contends that the April 26, 2010 decision should be reversed and the case remanded to
the Office to fully consider the evidence which was properly submitted by appellant prior to the
issuance of the termination decision.
The Board has duly considered the matter and finds that this case is not in posture for
decision. The Board notes that when the Office issued its termination decision on April 26, 2010
it found that appellant failed to submit any evidence or argument in response to its March 24,
2010 notice of proposed termination. However, on April 23, 2010 the Office received
appellant’s April 19, 2010 letter disagreeing with its proposed action.
The Board’s jurisdiction of a case is limited to reviewing that evidence which is before
the Office at the time of its final decision.3 Since the Board’s decisions are final as to the subject
matter appealed,4 it is crucial that all evidence which was properly submitted to the Office prior
to the time of issuance of its final decision be addressed.5 Board precedent requires the Office to
review all evidence submitted by a claimant and received by the Office prior to the issuance of
its final decision, including evidence received on the date of the decision.6 This is particularly
important in this appeal where, as noted above, appellant submitted evidence contending that she
continued to be totally disabled for work due to her accepted employment-related conditions, but
there is no indication that this was considered by the Office before issuing its final decision. As
the Office did not consider the evidence that it received on April 23, 2010 in reaching its
April 26, 2010 decision, the Board cannot review such evidence for the first time on appeal.7
The Board finds that the case must be remanded for the Office to consider appellant’s April 19,
2010 letter.8 Following this and such other development as deemed necessary, the Office shall
issue an appropriate merit decision.

3

20 C.F.R. § 501.2(c)(1).

4

Id. at § 501.6(d).

5

William A. Couch, supra note 2; see also Linda Johnson, 45 ECAB 439 (1994) (applying Couch where the
Office did not consider a medical report received on the date of issuance of its decision).
6

Id.

7

Supra note 3.

8

The Board notes that appellant filed a timely request for oral argument, explaining the need to address the
evidence of record before the Board. As the case is not in posture for a decision, the Board finds that oral argument
is unnecessary in this instance. Consequently, the Board, in its discretion, denies appellant’s request for oral
argument. See 20 C.F.R. § 501.5(a), (b).

2

IT IS HEREBY ORDERED THAT the April 26, 2010 decision of the Office of
Workers’ Compensation Programs be set aside and the case is remanded to the Office for further
proceedings consistent with this order of the Board.
Issued: May 25, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.D., Appellant
and
U.S. POSTAL SERVICE, OZONE PARK
ANNEX, Jamaica, NY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 20-0830
Issued: October 26, 2020

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge

On February 18, 2020 appellant filed a timely appeal from a January 29, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate
Boards assigned the appeal Docket No. 20-0830.
On November 12, 2019 appellant, then a 41-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she sustained severe bilateral wrist pain causally related
to general factors of her federal employment. She indicated that she first became aware of her
condition on November 13, 2017 and of its relationship to her federal employment on
December 27, 2017. On the reverse side of the claim form a supervisor noted that appellant had
been working a limited-duty, modified position for three hours per day under work restrictions
provided under OWCP File No. xxxxxx383, which was accepted for left wrist sprain and left wrist
de Quervain’s disease. The supervisor explained that appellant had also filed a notice of recurrence
(Form CA-2a), under OWCP File No. xxxxxx383.
Appellant stopped work on
December 27, 2017.
In an undated statement, appellant explained that on June 30, 2008 she suffered a workrelated injury. She noted that she had been diagnosed with chronic de Quervain’s tenosynovitis,
which had worsened in December 2017 as it had spread to her right hand and wrist. Appellant
explained that she was disabled from work due to her diagnosed conditions. She attributed her

conditions to factors of her federal employment including, but not limited to, casing and delivering
mail parcels.
A memorandum to file dated November 14, 2019 listed appellant’s other OWCP claims.1
In a letter dated November 11, 2019, Dr. Yehuda E. Kleinman, Board-certified in
orthopedic surgery and sports medicine, indicated that appellant had been under his care since
2010 and had not been able to work since December 27, 2017 due to a June 30, 2008 work-related
injury. He explained that appellant’s right wrist became symptomatic secondary to this workrelated injury, as she experienced constant left wrist pain, and compensated for it with her right
hand. Dr. Kleinman concluded that, due to a worsening condition of the left wrist and developing
right wrist dysfunction, appellant was unable to work. He opined that appellant’s bilateral
de Quervain’s tenosynovitis was caused by factors of her federal employment including repetitive
movement and use of both hands. In a report dated December 18, 2019, Dr. Kleinman explained
that appellant’s development of right hand de Quervain’s tenosynovitis was consistent with
overuse of the right hand secondary to her chronic left wrist and hand problems and was causally
related to her work-related left wrist injury.
In a statement dated January 5, 2020, appellant alleged that her claimed condition
developed due to over-compensation for constant left wrist pain with reliance on her right hand,
which she first noticed on November 13, 2017.
In a report dated January 8, 2020, Dr. Kleinman opined within a reasonable degree of
medical certainty that appellant’s right wrist symptoms were secondary to overuse of her right
wrist due to her work-related left wrist injury and disuse; therefore, appellant’s right wrist
symptoms and condition were causally related to her work-related left wrist injury.
By decision dated January 29, 2020, OWCP accepted that the work events occurred as
appellant had alleged. However, it denied her claim, finding that the medical evidence of record
was insufficient to establish causal relationship between those tasks and her diagnosed right
de Quervain’s tenosynovitis due to overuse of the right hand stemming from a work-related injury
to the left.
The Board has duly considered the matter and concludes that this case is not in posture for
decision. OWCP’s procedures provide that cases should be administratively combined when
correct adjudication of the issues depends on frequent cross-referencing between files.2 For
example, if a new injury case is reported for an employee who previously filed an injury claim for
a similar condition or the same part of the body, doubling is required.3 Appellant has alleged that
her current de Quervain’s tenosynovitis of the right hand and wrist is a consequential injury related
1

Under File No. xxxxxx383, OWCP accepted a traumatic injury claim (Form CA-1) for wrist sprain/strain due to
an incident on June 30, 2008, and paid appellant compensation on the periodic rolls for loss of wage-earning capacity.
2

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance & Management, Chapter 2.400.8(c)
(February 2000).
3
Id.; Order Remanding Case, D.C., Docket No. 19-0100 (issued June 3, 2019); Order Remanding Case, K.T.,
Docket No. 17-0432 (issued August 17, 2018).

2

to her accepted left wrist condition(s) under OWCP File No. xxxxxx383. Additionally, the Board
notes that her November 13, 2019 Form CA-2 under the current claim references bilateral wrist
pain. As appellant has alleged a consequential injury to her right hand and wrist, as well as
continued occupational injury to her left wrist and the medical records of the two files have not
been combined as required by OWCP procedures, this case must be remanded.4
The Board therefore finds that for a full and fair adjudication of appellant’s pending appeal
of the denial of her November 13, 2019 occupational disease claim, the case file shall be returned
to OWCP to administratively combine OWCP File Nos. xxxxxx540 and xxxxxx383 and any other
claim files which are relevant to the development of the present claim. Following this and other
such further development as it deems necessary, OWCP shall issue a de novo decision.
IT IS HEREBY ORDERED THAT the January 29, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: October 26, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

4

See W.W., Docket No. 19-0884 (issued June 16, 2020).

3