United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., claiming as widow of L.H., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
SHIPYARD, Long Beach, CA, Employer
__________________________________________

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Appearances:
Sally LaMacchia, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1467
Issued: November 6, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 4, 2013 appellant, through her attorney, filed a timely appeal from the January 9
and May 16, 2013 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 the employee’s death on May 23, 2009 was causally related to
factors of his federal employment.
FACTUAL HISTORY
This is the second appeal before the Board. The employee injured his back in the
performance of duty on November 25, 1981. OWCP accepted a claim for thoracic strain and
lumbar muscle spasm with right leg radiculitis. The employee stopped work in 1982.
1

5 U.S.C. § 8101 et seq.

In a December 15, 2008 report, Dr. Kesho N. Hurria, a specialist in orthopedic surgery,
stated that the employee was experiencing persistent low back derangement, radiculopathy to
both lower extremities, numbness in both legs, coronary artery disease, diabetes and difficulty in
walking. He noted that the employee’s thoracic sprain, lumbar sprain and radiculopathy to both
lower extremities had become worse due to aging since his last examination. Dr. Hurria opined
that these were permanent conditions. He advised that the employee had a pacemaker and was,
therefore, unable to undergo a new magnetic resonance imaging (MRI) scan or x-ray testing.
Dr. Hurria opined that the employee’s condition was the result of the November 25, 1981 injury
and had become worse.
The employee died on June 9, 2009. The certificate of death listed the causes of death as
cardiopulmonary arrest and coronary artery disease, with diabetes mellitus a contributing factor.
In a June 2, 2010 report, Dr. Hurria stated that the effects of chronic hypertension were one of
the leading risk factors for heart attack, stroke, heart failure and aneurysm. He advised that the
constant stress on the cardiovascular system by increased blood pressure caused the heart to
pump constantly and work harder to push blood through the system. Dr. Hurria stated that the
employee was a chronic pain sufferer with high blood pressure; this caused increased sensitivity
to pain which frequently resulted in even higher blood pressure. He stated that the 1981 work
injury led to a chronic pain syndrome which caused a chronic cardiac hypertension, which led to
chronic edema to the lower extremities, causing decreased circulation to the heart muscle. This
caused hypertrophy to the heart that eventually led to the employee’s coronary heart attack and
coronary bypass surgery in 2009. Dr. Hurria stated that the employee’s hypertension and low
back pain continued until his death on May 23, 2009. He opined that the 1981 work injury
resulted in chronic hypertension, leading to coronary artery disease that led to his fatal
cardiopulmonary arrest on May 23, 2009.
On June 15, 2010 appellant filed a Form CA-5 claim for death benefits, alleging that her
husband’s death was causally related to his accepted employment injury.
In a May 22, 2009 hospital report/discharge summary, received by OWCP on August 17,
2010, Dr. Kenneth Shapiro, Board-certified in internal medicine, stated that appellant was
admitted on May 16, 2009, with a diagnosis of congestive heart failure. The discharge diagnosis
was also congestive heart failure, with severe ischemic cardiomyopathy, anasarca, chronic and
acute renal failure, diabetes, lower extremity ulcers infected with methicillin resistant
staphylococus aureus and status post coronary artery bypass grafting.
In a January 6, 2011 report, Dr. Ellen Pichey, an OWCP medical adviser, reviewed
Dr. Hurria’s June 2, 2010 report and disagreed with his opinion. She noted that the employee
was 81 years of age, had a triple bypass and pacemaker, diabetes, hypertension and a family
history of cardiac disease.2 Dr. Pichey stated that it was not reasonable to conclude that his death
was a consequence of thoracic and lumbar sprains and radiculitis from 30 years prior.

2

On appeal appellant’s attorney asserts that Dr. Pichey erred in stating that the employee died at the age of 81 and
that he had a family history of cardiac disease. The Board notes that the employee died at age 79, as stated above.
With regard to his family history of cardiac disease, it is noted that counsel states in the appeal to the Board that the
employee’s father died of a heart attack at age 64.

2

In a decision dated March 29, 2011, OWCP denied appellant’s claim, finding that the
evidence failed to establish that the employee’s death was due to factors of his federal
employment. By decision dated November 14, 2011, an OWCP hearing representative affirmed
the March 29, 2011 decision.
In a September 20, 2012 decision,3 the Board set aside OWCP’s decisions, finding an
unresolved conflict in medical opinion between Dr. Hurria and Dr. Pichey regarding whether the
employee’s death was causally related to his accepted conditions. The Board remanded the case
for referral to an appropriate impartial medical specialist to resolve the outstanding conflict in the
medical evidence.
The case was referred to Dr. Ram K. Setty, a Board-certified cardiologist. In a
November 9, 2012 report, he listed the risk factors for coronary artery disease and hypertension
as family history of coronary artery disease, diabetes mellitis, hypertension, cigarette smoking
and dyslipidemia. Dr. Setty stated that the more risk factors a patient had the higher the chance
of coronary artery disease. With regard to whether chronic pain could produce hypertension, he
advised that the available medical data indicated that acute pain from any reason, including
anxiety, could raise blood pressure. The fact that the employee was treated for both back pain
and hypertension, and the fact that he did not have hypertension before experiencing back pain,
indicated that hypertension may have been caused by his back pain. Dr. Setty also indicated that
hypertension may have contributed in small part to his developing coronary artery disease. He
stated, however, that it was not the sole cause, as the employee had two major risk factors,
diabetes and a family history of coronary artery disease.
Regarding the issue of whether back pain could produce coronary artery disease,
Dr. Setty stated that this was “flimsy ground,” especially as the employee was being treated for
back pain as well as hypertension. The employee had a recorded blood pressure of 130/90 in
1996, which he classified as mild hypertension with a low comorbidity rate. Dr. Setty reiterated
that developing hypertension due to chronic back pain alone was difficult to accept when a
patient was being treated for both back pain and hypertension, and that the employee’s coronary
artery disease was associated with major, “heavyweight” risk factors like his family history of
coronary artery disease and diabetes. He concluded that mild, treated hypertension was hard to
accept as the sole cause of coronary artery disease, though it might have played a minor role.
By decision dated January 9, 2013, OWCP denied the claim for death benefits. It found
that Dr. Setty’s impartial medical opinion represented the weight of the medical evidence.
On January 24, 2013 appellant requested a review of the written record.
By decision dated May 16, 2013, an OWCP hearing representative affirmed the
January 9, 2013 decision.

3

Docket No. 12-861 (issued September 20, 2012).

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LEGAL PRECEDENT
Appellant has the burden of proving by the weight of the reliable, probative and
substantial evidence that the employee’s death was causally related to his federal employment.
This burden includes the necessity of furnishing medical opinion evidence of a cause and effect
relationship based on a proper factual and medical background.4
The medical evidence required to establish a causal relationship, generally, is rationalized
medical opinion evidence.5 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 the implicated employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant,6 must be one of reasonable medical certainty,7 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.8
It is not necessary to provide a significant contribution of employment factors for the
purpose of establishing causal relationship.9
Once OWCP starts to procure a medical opinion, it must do a complete job.10
ANALYSIS
The Board finds that the case is not in posture for decision.
On appeal, appellant’s attorney argues that OWCP erred in finding that the employee’s
death due to coronary artery disease was not causally related to his work-related 1981 back
injury based on Dr. Setty’s impartial medical report. Counsel notes that Dr. Setty indicated that
hypertension, produced by chronic back pain, may have contributed in small part to the
development of the employee’s coronary artery disease, although it was not the sole cause. She
asserts that the Board has held that where the medical evidence indicates a work factor
contributed in any way to the employee’s condition, the condition is compensable.
In the present case, there was a conflict in the medical evidence between Dr. Pichey,
OWCP’s referral physician, and Dr. Hurria, the employee’s physician, as to whether the
4

Kathy Marshall (James Marshall), 45 ECAB 827, 832 (1994); Timothy Forsyth (James Forsyth), 41 ECAB 467,
470 (1990).
5

See Naomi A. Lilly, 10 ECAB 560, 572-573 (1959).

6

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

7

See Morris Scanlon, 11 ECAB 384, 385 (1960).

8

See William E. Enright, 31 ECAB 426, 430 (1980).

9

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

10

See Beth P. Chaput, 37 ECAB 158 (1985); William N. Saathoff, 8 ECAB 769 (1956).

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employee’s death was causally related to his 1981 work injury. Dr. Hurria, the employee’s
treating physician, opined that the 1981 work injury resulted in chronic hypertension, leading to
coronary artery disease that led to his fatal cardiopulmonary arrest on May 23, 2009. In contrast,
Dr. Pichey, OWCP’s referral physician, opined that, due to the employee’s advanced age, his
long personal and family history of coronary artery disease, it was not reasonable to conclude
that his 2009 death was causally related to thoracic and lumbar sprains and radiculitis in 1981.
When such conflicts in medical opinion arise, 5 U.S.C. § 8123(a) requires OWCP to appoint a
third or “referee” physician, also known as an “impartial medical examiner.” Where there exists
a conflict of medical opinion and the case is referred to an impartial specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based
upon a proper factual background, is entitled to special weight.11 However, when OWCP
secures an opinion from an impartial medical specialist and the opinion of the specialist requires
clarification or elaboration, it has the responsibility to secure a supplemental report from the
specialist for the purpose of correcting the defect in the original report.
Dr. Setty stated in his November 9, 2012 report that developing hypertension due to
chronic back pain alone was difficult to accept when a patient was being treated for both back
pain and hypertension, and that a mild, treated hypertension was hard to accept as the sole cause
of his coronary artery disease, especially in light of the fact that it was linked to major risk
factors like a family history of heart disease and diabetes. He indicated that hypertension caused
by chronic pain might have played at least a minor role in the development of the coronary artery
disease which resulted in the employee’s death.
The Board finds that Dr. Setty’s opinion is insufficient to resolve the conflict in medical
evidence, as his opinion requires clarification as to whether appellant’s death was due, in any
part, to his accepted condition. Accordingly, OWCP’s January 9, 2013 decision is hereby set
aside and remanded for further development. On remand, it should request that Dr. Setty submit
a report clarifying his opinion as to the outstanding issue of whether the employee’s death was
causally related to his 1981 work injury. After such development as it deems necessary, OWCP
shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision. The decision dated
January 9, 2013 is therefore set aside and the case is remanded to OWCP for further action
consistent with this decision of the Board.

11

Regina T. Pellecchia, 53 ECAB 155 (2001).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 16 and January 9, 2013 are set aside and remanded.
Issued: November 6, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 15-0916
Issued: July 13, 2016

Case Submitted on the Record

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

JURISDICTION
On March 18, 2015 appellant, through counsel, filed a timely appeal from a December 5,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to reduce appellant’s compensation
benefits based on its finding that she had the capacity to earn wages in the selected position of
information clerk.
FACTUAL HISTORY
On January 18, 2003 appellant, then a 55-year-old letter carrier, sustained right wrist and
right knee injuries when she exited her delivery vehicle and slipped on ice. On February 28,
1

5 U.S.C. § 8101 et seq.

2003 the claim was accepted for right knee and right wrist sprain. It assigned the claim File No.
xxxxxx924.
Dr. Brian Walsh, an attending osteopathic physician Board-certified in family practice,
followed appellant beginning on January 27, 2003. He diagnosed a right wrist sprain, right knee
sprain, and torn right medial meniscus. 2 Dr. Walsh obtained a magnetic resonance imaging
(MRI) scan of the right knee, demonstrating a posterior horn tear with medial compartment
osteoarthritis. On March 31, 2003 Dr. Donald F. Leatherwood, an attending Board-certified
orthopedic surgeon, performed an arthroscopic medial meniscectomy, shaving of multiple
meniscal tears, chondroplasty, removal of loose bodies, and partial synovectomy. OWCP
authorized the procedure. Appellant remained off work following the procedure.
Appellant continued under treatment for right knee osteoarthritis, including physical
therapy and a series of Synvisc injections. On January 30, 2004 Dr. John R. Duda, an attending
Board-certified orthopedic surgeon, performed an authorized total right knee arthroplasty and
partial synovectomy.
In late 2004, appellant returned briefly to a sedentary job at the employing establishment.
She sustained a recurrence of disability on October 5, 2004 and remained off work. Appellant
received wage-loss compensation.
On May 5, 2006 Dr. Walsh noted permanent restrictions of sitting eight hours, standing
two hours, walking four hours, lifting up to 20 pounds, and no climbing steps. Appellant
accepted a full-time position at the employing establishment on June 19, 2006, working as a
modified carrier technician. The position required standing up to four hours, driving, walking
and writing up to two hours, and clerical duties for up to five hours a work shift. The starting
salary was $945.15 a week.
By decision dated June 19, 2006, OWCP terminated appellant’s wage-loss compensation
benefits as her actual earnings as a modified letter carrier exceeded the current wages of her dateof-injury position. Appellant continued working as a modified carrier technician through
October 2008.
Appellant filed another traumatic injury claim alleging that on October 2, 2008 she
sustained injury to her left knee when a cart fell on her. OWCP accepted the claim for left knee
sprain/strain, and aggravation of degenerative joint disease. It assigned the claim File No.
xxxxxx392.3
Appellant was followed for the left knee injury by Dr. Seth D. Krum, an attending
osteopathic physician Board-certified in orthopedic surgery. On January 13, 2010 Dr. Krum
performed a total left knee arthroplasty with synovectomy, and a right patellar revision
arthroplasty, authorized by OWCP. OWCP expanded the claim to accept localized secondary
2

Dr. Walsh noted that appellant had previously injured her right knee and low back in a 1998 motor vehicle
accident, but had fully recovered prior to the January 18, 2003 incident.
3

On or about April 8, 2013 OWCP doubled File No. xxxxxx392 with the present claim, File No. xxxxxx924.

2

osteoarthritis of the right lower leg. Appellant remained off work following surgery. She
received compensation on the periodic rolls.
In reports from February to April 2010, Dr. Krum opined that physical therapy
aggravated appellant’s degenerative lumbar disc disease, causing bilateral L4-5 radiculopathy.
He administered a series of injections.
On November 4, 2010 the employing establishment offered appellant a modified carrier
position, working fulltime casing mail. The job required two hours of standing, bending, simple
grasping, and fine manipulation. Appellant returned to work for two hours a day casing mail on
November 20, 2010 under File No. xxxxxx392. She continued working through April 14, 2011
with intermittent absences, then stopped work. Appellant returned to total disability.4
Effective March 16, 2011, OWCP expanded File No. xxxxxx392 to accept a temporary
aggravation of L4-5 lumbosacral intervertebral disc disease.
On April 29, 2011 OWCP obtained a second opinion from Dr. Robert A. Smith, a Boardcertified orthopedic surgeon. Dr. Smith noted that appellant believed a lumbar injury had been
accepted, but the statement of accepted facts (SOAF) did not list a lumbar injury or condition.
He opined that, regarding the right knee, appellant could perform full-time sedentary to lightduty work, with permanent restrictions. Dr. Smith diagnosed age-related lumbar degenerative
disc disease, noting that the SOAF did not list an accepted lumbar injury or condition.
On May 9, 2011 appellant claimed a recurrence of disability (Form CA-2a) in File No.
xxxxxx392, commencing April 14, 2011, as casing mail for two hours a day caused back and
knee pain.5
Dr. Krum performed a right total knee arthroscopic synovectomy on October 4, 2011,
authorized by OWCP.6 OWCP accepted a recurrence of total disability commencing
October 4, 2011. Appellant received compensation for six hours a day.
In a December 14, 2011 report, an OWCP medical adviser opined that the change in gait
pattern due to knee replacement had not aggravated appellant’s lumbar disc disease. He

4

Following additional development, appellant received compensation for six hours a day under File No.
xxxxxx924 and two hours a day under File No. xxxxxx392.
5

By decision dated May 13, 2011, OWCP denied appellant’s claim for a consequential aggravation of a lumbar
condition and for a recurrence of disability commencing April 15, 2011.
6

By decision dated November 30, 2011, it denied authorization of the October 4, 2011 procedure. In a
December 12, 2011 letter, counsel requested a hearing. On March 8, 2012 an OWCP hearing representative set
aside the November 30, 2011 decision, finding that the case was not in posture for a hearing pending a requested
second opinion. OWCP obtained a second opinion from Dr. Steven J. Valentino, a Board-certified orthopedic
surgeon, who opined on April 10, 2012 that the October 4, 2011 surgery was directly related to the accepted injury.
On June 12, 2012 it authorized the October 4, 2011 right knee arthroscopy as related to the January 18, 2003 right
knee injury.

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therefore found that OWCP should not change the accepted temporary aggravation of lumbar
disc disease accepted under File No. xxxxxx392 to a permanent aggravation.7
Dr. Krum explained in a January 16, 2012 letter that postsurgical ileitis following the
January 13, 2010 bilateral knee procedure delayed appellant’s rehabilitation, causing core
weakness that aggravated preexisting lumbar stenosis and caused bilateral lumbar radiculopathy.
On March 13, 2012 OWCP obtained a second opinion from Dr. Valentino, regarding the
extent of the accepted right knee condition. Dr. Valentino opined that the accepted January 18,
2003 knee injury had resolved without residuals, asserting that the knee replacement was due to
idiopathic degenerative arthritis and not any work incident. He checked a box indicating that
appellant had reached maximum medical improvement. Dr. Valentino noted that appellant did
not require any work restrictions due to the accepted right knee injury. He released appellant to
full-time light-duty work.
In an August 2, 2012 report, Dr. Krum noted that he disagreed significantly with
Dr. Valentino’s finding that appellant could perform full-time light-duty work as he had “a
difficult time with any periods of sitting or standing.” Appellant continued to require periodic
aspiration of the right knee and lumbar epidural injections.
On March 6, 2013 OWCP found a conflict of medical opinion between Dr. Krum, for
appellant, and Dr. Valentino, for the government, regarding appellant’s work capacity. To
resolve the conflict, it selected Dr. Stanley Askin, a Board-certified orthopedic surgeon, as the
impartial medical specialist. OWCP included a March 7, 2013 ME023 form. It advised
Dr. Askin that, in addition to the right knee sprain, right wrist sprain, and aggravation of right
knee osteoarthritis accepted under File No. xxxxxx924, OWCP had previously accepted other
claims for a left knee sprain, aggravation of degenerative joint disease of the left knee, and
aggravation of the L4-5 disc.
Dr. Walsh provided a work capacity evaluation (Form OWCP-5) dated March 11, 2013
finding appellant totally and permanently disabled for work due to constant severe pain, limited
mobility, recurrent fluid accumulation in the right knee, and medication side effects.
Dr. Askin provided a March 28, 2013 report reviewing the SOAF and the medical record.
He noted that appellant ambulated with a cane and walked with a limp. On examination
Dr. Askin found surgical scars on both knees, a slight effusion in the left knee with full motion,
restricted motion and effusion in the right knee, slight laxity in the right knee, and symmetrical
reflexes of the knees and ankles. He opined that appellant had continuing right knee problems
due to particulate synovitis. Dr. Askin commented that appellant’s lumbar symptoms were due
solely to age and that narcotic medications were not helpful or necessary. He found appellant
was able to perform full-time, sedentary work with permanent restrictions limiting walking,
standing, and climbing to one hour, and lifting to 10 pounds.

7

In a December 21, 2011 report, Dr. Douglas C. Sutton, an attending Board-certified orthopedic surgeon, noted
that imaging studies showed “fairly severe disc space collapse at L4-5” with moderate central canal stenosis and
moderate-to-severe lateral recess stenosis.

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In an April 9, 2013 letter, counsel requested that OWCP verify that Dr. Askin was
properly selected by providing the bypass screen captures and Form ME023. On April 9, 2013
OWCP imaged screen captures from Dr. Askin’s selection process into the case record,
documenting that OWCP bypassed one physician who evaluated only hand conditions, one
physician who could not be reached and did not have an answering machine, and one physician
who no longer practiced locally.
On July 11, 2013 Dr. Walsh restricted appellant from driving due to medication side
effects.
As Dr. Askin opined that appellant could perform sedentary duty, OWCP referred
appellant for vocational rehabilitation.
Appellant met with a vocational rehabilitation counselor on July 22, 2013. The counselor
noted that, although appellant had graduated from high school, he had never learned to type and
had no computer skills. Appellant worked for 15 years operating an envelope making machine,
then for 21 years at the employing establishment. On September 23, 2013 the counselor
performed a labor market survey of job opportunities in appellant’s commuting area, and
identified the positions of telephone sales representative (DOT No. 299.357-014) or information
clerk (DOT No. 237.367-022) as reemployment goals. Both jobs were at the sedentary level,
requiring occasional lifting up to 10 pounds, occasional reaching, no stooping, kneeling,
crouching, or climbing. Both positions required specific vocational preparation three to six
months, which appellant met through her work history. On September 24, 2013 it approved the
vocational rehabilitation counselor’s plan to place appellant with a new employer as an
information clerk (Department of Labor, Dictionary of Occupational Titles (DOT) Code
237.367-022) or telephone sales representative (DOT No. 299.357.015). From October to
December 2013, the counselor provided appellant job leads for 13 entry level positions in her
commuting area. Appellant submitted job search logs.
On January 26, 2014 the counselor confirmed that entry level information clerk jobs
remained readily available in appellant’s commuting area, with wages of $574.00 a week.
By notice dated March 14, 2014, OWCP advised appellant that it proposed to reduce her
compensation benefits based on her projected earnings of $574.00 a week in the selected position
of information clerk. It found that the information clerk position was suitable work, within
appellant’s vocational abilities and the work restrictions provided by Dr. Askin. OWCP allowed
30 days for appellant to submit evidence and argument as to why the selected position was not
suitable.
Counsel responded by March 21, 2014 letter, contending that appellant’s physicians did
not support that appellant was able to return to work as an information clerk. He provided a
March 31, 2014 report from Dr. Walsh finding appellant totally and permanently disabled as the
accepted right knee condition and surgery prevented her from sitting or standing for prolonged
periods, and prescription medications prevented her from driving to or from work. Counsel
asserted that there was a conflict of medical opinion evidence between Dr. Askin and Dr. Walsh
regarding appellant’s work capacity.

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By decision dated May 15, 2014, OWCP finalized the March 14, 2014 notice, reducing
appellant’s compensation, effective June 1, 2014, based on her ability to earn $574.00 a week in
the selected position of information clerk. It affirmed that the position was within her vocational
and medical capacities.
Counsel disagreed and, in a May 20, 2014 letter, requested a hearing. He submitted a
March 27, 2014 letter from Dr. Walsh finding appellant totally and permanently disabled due to
sequelae of her right knee injury and arthroplasty. Dr. Walsh noted that appellant was not able to
sit or stand for prolonged periods, and could not drive due to medication side effects.
On September 23, 2014 the employing establishment offered appellant a position as a
modified carrier technician for four hours a day, five days a week, with annual wages of
$59,654.00. The listed duties involved making and answering telephone calls, light data entry,
and clerical duties. The job required intermittent sitting, standing, grasping, and pushing/pulling.
In a September 26, 2014 report, Dr. Walsh observed chronic swelling in the right knee
that interfered with appellant’s ability to stand and walk. He reviewed the employing
establishment’s job offer and opined that appellant was not “capable of consistently performing
this job.” Appellant would require frequent, unscheduled breaks and the ability to change
positions freely. Dr. Walsh found appellant “completely and permanently disabled.”
On October 3, 2014 appellant accepted the employing establishment’s September 23,
2014 offer of a modified carrier technician position. She returned to work on approximately
October 6, 2014.
At the hearing, held October 20, 2014, appellant explained that she had returned to work
in the modified carrier technician position approximately two weeks earlier, as the employing
establishment had warned that refusing the offer would negatively affect her compensation
benefits. She noted difficulties with transportation, as she could not drive due to stiffness and
swelling in her right knee. Appellant added that narcotic medication for knee and back pain
interfered with her concentration and impaired her ability to process telephone calls at work. She
contended that she could not sit for four hours a day. Counsel contended that OWCP failed to
provide Dr. Askin medical records from File No. xxxxxx392 regarding the accepted back injury.
By decision dated December 5, 2014, an OWCP hearing representative affirmed the
May 15, 2014 decision, finding that the selected position of information clerk properly
represented appellant’s wage-earning capacity, based on Dr. Askin’s opinion as the weight of the
medical evidence.8

8

On February 4, 2016 OWCP denied appellant’s request to modify the May 15, 2014 wage-earning capacity
decision. However, the Board acquired jurisdiction over this appeal on March 18, 2015. Therefore, the February 4,
2016 OWCP decision is null and void. The Board and OWCP may not have concurrent jurisdiction over the same
issues in a case. See Russell E. Lerman, 43 ECAB 770 (1992); Douglas E. Billings, 41 ECAB 880 (1990).

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LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.9 An injured employee who is either unable to return to
the position held at the time of injury or unable to earn equivalent wages, but who is not totally
disabled for all gainful employment, is entitled to compensation computed on loss of wageearning capacity.10 A wage-earning capacity decision is a determination that a specific amount
of earnings, either actual earnings or earnings from a selected position, represents a claimant’s
ability to earn wages. Compensation payments are based on the wage-earning capacity
determination.11
Section 8115 of FECA and OWCP regulations provide that wage-earning capacity is
determined by the actual wages received by an employee if the earnings fairly and reasonably
represent his or her wage-earning capacity. If the actual earnings do not fairly and reasonably
represent wage-earning capacity or the employee has no actual earnings, the wage-earning
capacity is determined with due regard to the nature of the injury, the degree of physical
impairment, the employee’s usual employment, age, qualifications for other employment, the
availability of suitable employment, and other factors or circumstances which may affect his or
her wage-earning capacity in the disabled condition.12
OWCP must initially determine a claimant’s medical condition and work restrictions
before selecting an appropriate position that reflects his or her wage-earning capacity. The
medical evidence upon which OWCP relies must provide a detailed description of the
condition.13 Additionally, the Board has held that a wage-earning capacity determination must
be based on a reasonably current medical evaluation.14 When OWCP makes a medical
determination of partial disability and of specific work restrictions, it may refer the employee’s
case to a vocational rehabilitation counselor authorized by OWCP for selection of a position
listed in the Department of Labor, Dictionary of Occupational Titles or otherwise available in the
open market, that fits that employee’s capabilities with regard to his or her physical limitations,
education, age, and prior experience. Once this selection is made, a determination of wage rate
and availability in the open labor market should be made through contact with the state
employment service or other applicable service.15 Finally, application of the principles set forth

9

James M. Frasher, 53 ECAB 794 (2002).

10

20 C.F.R. §§ 10.402, 10.403; John D. Jackson, 55 ECAB 465 (2004).

11

See Sharon C. Clement, 55 ECAB 552 (2004).

12

5 U.S.C. § 8115; 20 C.F.R. § 10.520; John D. Jackson, supra note 9.

13

William H. Woods, 51 ECAB 619 (2000).

14

John D. Jackson, supra note 9.

15

Supra note 11

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in Albert C. Shadrick,16 as codified in section 10.403 of OWCP regulations,17 will result in the
percentage of the employee’s loss of wage-earning capacity.18
In determining an employee’s wage-earning capacity based on a position deemed
suitable, but not actually held, OWCP must consider the degree of physical impairment,
including impairments resulting from both injury-related and preexisting conditions, but not
impairments resulting from postinjury or subsequently acquired conditions. Any incapacity to
perform the duties of the selected position resulting from subsequently acquired conditions is
immaterial to the loss of wage-earning capacity that can be attributed to the accepted
employment injury and for which appellant may receive compensation.19
Section 8123(a) of FECA provides that when there is a disagreement between the
physician making the examination for the United States and the physician of the employee, a
third physician shall be appointed to make an examination to resolve the conflict.20 When there
are opposing medical reports of virtually equal weight and rationale, the case must be referred to
an impartial medical specialist, pursuant to section 8123(a), to resolve the conflict in the medical
evidence.21 In situations where there are opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual background, must be given special weight.22
ANALYSIS
OWCP accepted that appellant sustained a right wrist sprain and right knee sprain
necessitating total right knee arthroplasty under the present claim, File No. xxxxxx924. The
record before the Board also demonstrates that OWCP accepted a left knee sprain/strain,
aggravation of degenerative joint disease, and a temporary aggravation of L4-5 intervertebral
disc disease under File No. xxxxxx392. Appellant received compensation for total disability
beginning April 14, 2011. OWCP reduced her compensation effective May 15, 2014 based on
its determination that the full-time position of information clerk represented her wage-earning
capacity. It found that the opinions of Dr. Askin, a Board-certified orthopedic surgeon and
impartial medical examiner, represented the weight of the evidence and established that appellant
had the capacity to work as an information clerk.

16

5 ECAB 376 (1953).

17

20 C.F.R. § 10.403.

18

Sharon C. Clement, supra note 10.

19

R.M., Docket No. 15-0368 (issued August 24, 2015); John D. Jackson, supra note 9.

20

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

21

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

22

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

8

To be an appropriate position for a wage-earning capacity determination under section
8115(a), the position must be medically and vocationally suitable.23 The Board finds, however,
that the case is not in posture for a decision regarding the medical suitability of the information
clerk position.
In finding the job medically suitable, OWCP relied on Dr. Askin’s March 28, 2013
report, finding appellant able to perform full-time sedentary work, with walking, standing, and
climbing limited to one hour. Subsequent to this opinion, appellant submitted new, relevant
reports from Dr. Walsh, appellant’s treating physician. Dr. Walsh opined in March 11, 2013 and
March 31, 2014 reports that appellant remained totally disabled due to the accepted right knee
condition. Following issuance of the May 15, 2014 decision reducing appellant’s compensation,
Dr. Walsh further opined in a March 27, 2014 letter that the accepted right knee condition
prevented appellant from sitting or standing for prolonged periods. He reiterated in a further
September 26, 2014 report that appellant was permanently and totally disabled.
OWCP did not provide Dr. Askin with the new medical reports received from Dr. Walsh.
The Board finds that Dr. Askin should be given the opportunity to review these reports and
provide a supplemental report as to the suitability of the offered position. Once OWCP
undertakes development of the record, it has the responsibility to do so in a proper manner.24
Following this and any other development deemed necessary, OWCP shall issue a de novo
decision in the case.
On appeal counsel contends that OWCP should utilize appellant’s actual wages as a
modified carrier technician to determine her wage-earning capacity, and not the selected
information clerk position. As the wage-earning capacity determination is not in posture for
decision, it is premature to address this argument.
Additionally, counsel argues that there is insufficient evidence that OWCP properly
selected Dr. Askin as the impartial medical examiner, as there were no screen captures of record
documenting his selection. The Board notes, however, that OWCP provided screen captures on
April 9, 2013 describing the reasons that OWCP bypassed three physicians prior to Dr. Askin’s
selection. Counsel also contends that Dr. Askin’s opinion cannot carry the weight of the medical
evidence as he was not informed of the accepted back and left knee conditions under File No.
xxxxxx392. The Board notes, however, that OWCP advised Dr. Askin of the accepted left knee
and lumbar conditions, and that Dr. Askin addressed them in his report.
CONCLUSION
The Board finds that the case is not in posture for a decision.

23

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on a
Constructed Position, Chapter 2.816 (June 2013).
24

See Melvin James, 55 ECAB 406 (2004).

9

ORDER
IT IS HEREBY ORDERED THAT the December 5, 2014 decision of the Office of
Workers’ Compensation Programs is set aside, and the case remanded for additional
development consistent with this decision and order.
Issued: July 13, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pompano, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Joanne Marie Wright, for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1977
Issued: January 29, 2019

Case Submitted on the Record

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

JURISDICTION
On September 25, 2017 appellant, through his representative, filed a timely appeal from an
April 21, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). No
contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that following the April 21, 2017 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant met his burden of proof to establish a diagnosed medical
condition causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On September 28, 2015 appellant, then a 66-year-old modified letter carrier, filed an
occupational disease claim (Form CA-2), alleging that he sustained an aggravation of his cervical
disc degeneration, sciatica, thoracic, and lumbar conditions in the performance of duty. He
indicated that he first became aware of his claimed conditions on June 25, 2015 and realized their
relation to his federal employment on September 4, 2015, the date that he stopped work.
In a September 27, 2015 statement, appellant explained that he had been working for
several years within his restrictions pertaining to a May 2004 motor vehicle accident.4 In
June 2015 his supervisor requested clarification of his medical restrictions. Appellant’s treating
physician, Dr. Alan Gruskin, Board-certified in physical medicine and rehabilitation, restricted
him to driving for no more than one hour a day in a vehicle with power steering, and adjustable
wheel and lumbar support. Appellant explained that, on June 11, 2015, the employing
establishment offered him a limited-duty job, which he accepted under protest because he believed
the job offer was in conflict with his driving restrictions and because it did not list all of the physical
requirements and hours of the duties he would be required to perform. He explained that he
reported for work from June 15 through 25, 2015, but by June 25, 2015, he could no longer make
the drive due to the exacerbation of his May 29, 2004 accepted injury. Appellant noted that he
filed claims for compensation (CA-7 forms) for the period June 29 to August 7, 2015 under OWCP
File No. No. xxxxxx428, which OWCP denied. He was then advised to file a new occupational
disease claim as he was informed that it was a new injury because he had identified new
occupational factors of spending two hours driving to/from his home.
Appellant provided medical reports from Dr. Gruskin from June 11 to August 5, 2015. In
a June 4, 2015 report, Dr. Gruskin noted that appellant complained of cervical disc degeneration
which began due to a May 26, 2004 workers’ compensation injury. Appellant indicated to him
that it was of severe intensity and was aggravated by movement from walking and prolonged
sitting. Dr. Gruskin also noted that appellant had complaints of numbness which he attributed to
movement from walking and prolonged sitting. He diagnosed low back pain, cervical disc
degeneration, and numbness. In a duty status report of even date, Dr. Gruskin diagnosed a
herniated disc and noted that appellant should be working indoors for 8 hours per day with a 15minute break every 2 hours and to change positions. In a June 11, 2015 report, he noted that
appellant related that the employing establishment offered him a job within a 50-mile radius.
Dr. Gruskin explained that this did not meet his medical restriction because appellant could drive
“at most, one hour per day, total.” He diagnosed low back pain, cervical disc degeneration and
numbness. Dr. Gruskin treated appellant on June 22, 2015.

4
Appellant has a prior claim concerning a May 29, 2004 employment-related motor vehicle accident that OWCP
accepted for cervical and lumbar strains, and displaced cervical intervertebral disc at C6-7. By decision dated
December 1, 2005, OWCP reduced his entitlement to wage-loss compensation to zero, as his actual earnings in a
modified letter carrier position fairly and reasonably represented his wage-earning capacity.

2

In a June 25, 2015 report, Dr. Gruskin explained that he was clarifying his earlier duty
status reports. He indicated that the main issue for appellant was that he could not work outside
delivering mail without worsening his orthopedic condition. Dr. Gruskin noted that appellant
suffered from degenerative disc disease of the cervical, thoracic and lumbar spine and had cervical
disc herniation which continued worsening over time. He opined that appellant reached maximum
medical improvement from his work-related motor vehicle accident on August 20, 2005.
Dr. Gruskin explained, however, that the accident aggravated appellant’s spine pathology and
subsequently led to specific work restrictions. He noted that working outdoors for appellant did
not just mean tolerating Florida temperatures and humidity, it also meant repetitive lifting of heavy
mailbags or boxes and repetitive exit and entry of his mail truck. Dr. Gruskin noted that all of
these activities exacerbated his spine condition and made his condition worse. He explained that
with regard to appellant’s ability to drive, he was allowed to drive to and from work; however, the
maximum he could drive was 30 minutes each way. Dr. Gruskin noted that anything above this
level would exacerbate his condition. He completed a duty status report (Form CA-17) on July 7,
2015 and indicated that appellant could work for 8 hours indoors, with 15-minute breaks and a
maximum driving time of 1 hour per day, total. Dr. Gruskin also completed a report dated July 7,
2015 and filled in exacerbation of low back pain, and new leg pains, in increased activity. He saw
appellant on August 6 and September 27, 2015 and repeated his prior opinions and diagnoses.
Dr. Gruskin continued to treat appellant.
By development letter dated November 13, 2015, OWCP informed appellant that
additional evidence was needed to establish his occupational disease claim. It advised him of the
type of factual and medical evidence needed and provided a questionnaire for his completion.
OWCP afforded appellant 30 days to submit additional evidence.
In an August 10, 2015 report, Dr. Gruskin further opined that the May 29, 2004 workrelated motor vehicle accident produced an aggravation of underlying degenerative joint disease
of the spine, and that working outdoors would substantially worsen his underlying problems as the
high Florida ambient temperature and humidity could exacerbate his arthritis pain and stiffness.
He explained that delivering mail also meant repetitive lifting of heavy mailbags or boxes and
repetitive exit and entry of the mail truck, which would exacerbate his spinal condition. Regarding
driving, Dr. Gruskin explained that appellant was initially able to drive up to one to three hours a
day. However, in the last few months, this was revised to a maximum of one hour per day.5
Dr. Gruskin indicated that these requirements would accommodate appellant’s current work
restrictions. Furthermore, he explained that appellant was offered a new job, which required at
least two to four hours a day of driving from his home to work, depending upon the time of day
and traffic conditions. Dr. Gruskin indicated that the extended time sitting behind the wheel
exacerbated his original spinal pathology and the aggravation sustained in the May 29, 2014 workrelated motor vehicle accident. He noted that it was not a new injury due to traveling to or from,
or working in Miami.
In a September 15, 2015 report, Dr. Gruskin reported that appellant had not begun his new
job because of the long drive and his anticipation of the travel. He explained that appellant was
not taking pain medications while driving as he was concerned about any cognitive impairment
5
Dr. Gruskin explained that the vehicle he is asked to drive should have a multi-position power seat, power lumbar
support, adjustable pedals and adjustable steering wheel.

3

and he did not have approval for therapy. Dr. Gruskin examined appellant and diagnosed lower
back pain and cervical disc degeneration.
In a December 8, 2015 report, Dr. Gruskin noted that there was no change in appellant’s
symptoms or functional status. He noted that appellant was receiving greater than a 72-hour supply
of controlled medication and that he failed other conservative measures.
In a December 11, 2015 statement, appellant noted that he performed the June 11, 2015,
limited-duty job offer over the period June 15 through 24, 2015 and his preexisting condition under
claim OWCP File No. xxxxxx428 was aggravated because he was required to drive to and from
work for up to two hours each way along with having to sit for eight hours per day. He noted that
he performed these duties over the period June 15 to 24, 2015 for up to four hours driving each
day and eight hours of sitting each day. Appellant noted that Dr. Gruskin confirmed that the
commute and the duties of the new job over the two-week period, without breaks, caused the
objective findings of palpable muscle spasms, muscle tenderness and tightened and shortened soft
tissue/ligaments tendons and joint capsules.
In a letter dated March 9, 2016, an employing establishment health and resource
management specialist, noted that according to www.MapQuest.com, the trip from appellant’s
residence to the Miami Processing and Distribution Center, was approximately 42.5 miles each
way, or approximately 45 minutes each way, based on the traffic conditions at that time. She noted
that appellant actually performed the duties of the job offer from June 15 through 25, 2015 from
8:00 a.m. to 5:00 p.m. Furthermore, the employing establishment indicated that he was allowed a
1 hour lunch every day and two 15-minute breaks every day.
By decision dated March 31, 2016, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that the described employment factors occurred as
alleged. It further found that he did not submit any medical evidence containing a firm medical
diagnosis in connection with the claimed work factors or events.
On May 24, 2016 appellant, through his representative, requested reconsideration and
submitted additional evidence.
In an April 17, 2016 statement, appellant indicated that, on Monday, June 15, 2015, he had
to start his work assignment in Miami, after driving for approximately two hours. He explained
that he could not take his medication until he was at his new station since they were pain and
muscle relaxers and he could not take them while or before driving. Appellant advised that in his
old job, he was casing mail two to four hours a day, constantly changing positions, walking to the
hot case to return miss-sent mail and pick up new letters and flats to be cased. He indicated that
his old job had him changing positions all the time. However, the new job required sitting all day,
which was inflaming his pinched and herniated discs and creating leg numbness. Appellant
advised that the static neck position created radiating pain that would give him severe, blinding
headaches. He explained that after the training, it would be the same sitting for eight hours a day.
Appellant noted that he performed the modified job until June 25, 2015.
In a May 11, 2016 report, Dr. Gruskin indicated that he was clarifying the duty status report
for appellant who was his patient for many years. He explained that the main issue for appellant
was that he could not work outside to deliver the mail without worsening his orthopedic conditions.

4

Dr. Gruskin advised that appellant has been and could continue to safely work indoors, for eight
hours per day, five days per week in his capacity. He explained that appellant had been doing this
for over 40 years. Dr. Gruskin explained that appellant suffered from degenerative disc disease of
the cervical, thoracic, and lumber spines and cervical disc herniation. He explained that appellant
reached maximum medical improvement (MMI) from his May 29, 2004 work-related motor
vehicle accident on August 30, 2005 and that it aggravated his premorbid spine pathology and
subsequently led to his specific work restrictions. Dr. Gruskin indicated that appellant was
allowed to drive to and from work for a maximum of 30 minutes each way, or a total of 1 hour per
day. He also added that any vehicle that appellant was asked to drive, should have a multiple
position power seat, power lumbar adjustment adjustable pedals, and an adjustable steering wheel.
Dr. Gruskin advised that these requirements accommodated his current work restrictions.
Dr. Gruskin further explained that the June 2015 job offer required appellant to sit for two
hours each way in traffic to get to work and from his home. He also explained that the new job
required that he sit in one position for eight hours per day and that appellant could not readily
change positions, nor could he get up and walk around, sit, stand, or attempt to lie down in this
new job. Dr. Gruskin explained that it was counter to his continuing medical restrictions of
changing positions as needed throughout the day. He explained that prolonged sitting was the
worst position for patients with spinal pathology and disc herniation. However, despite appellant’s
attempt to perform the new job in Miami, he could not, due to the prolonged sitting and remaining
in one position, which exacerbated his prior orthopedic issue, including increased neck and low
back pain, radiating arm and leg pain, reduced spinal range of motion, and episodic numbness, and
muscle spasm. Dr. Gruskin opined that “this change in job location and description violates
[appellant’s] clearly documented medically necessary work restrictions....”
By decision dated September 21, 2016, OWCP modified the March 31, 2016 initial denial
of appellant’s claim to find that he had established that the employment factors occurred as alleged.
However, the claim remained denied as the medical evidence of record was insufficient to establish
diagnosed conditions causally related to the accepted work factors.
On January 23, 2017 appellant, through his representative, requested reconsideration and
submitted additional evidence.
In a December 30, 2016 report, Dr. Gruskin explained that the sitting that appellant was
required to do while traveling to and from the workplace in Miami caused an increase in intradiscal pressure. He explained that many studies showed that this pressure was up to five times
greater than standing or lying down. Dr. Gruskin indicated that leaning forward while driving also
served to increase this pressure. He advised that appellant had degenerative disc disease as
documented by prior imaging. Dr. Gruskin explained that some of these imaging findings were
commensurate with normal aging; “however, tears in the fibers of the discs from the work-related
motor vehicle accident (of May 29, 2004) further compromised the integrity of this ‘natural shock
absorption system.’” He also explained that during sitting, the neck straightened and the pelvis
rotated backwards. Dr. Gruskin related that this flattened the cervical and lumbar region, which
produced added pressure on the axial components. He noted that the use of a cervical collar,
adjustable power seat, or ergonomic back support, would not significantly reduce intra-discal
pressure when seated.

5

By decision dated April 21, 2017, OWCP modified the September 21, 2016 decision to
find that appellant had not established a firm medical diagnosis causally related to the accepted
employment factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the essential
elements of his or her claim including the fact that the individual is an “employee of the United
States” within the meaning 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 or specific condition for which compensation is claimed is causally related to the
employment injury.6 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.7
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the presence
or existence of the disease or condition for which compensation is claimed; (2) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or occurrence
of the disease or condition; and (3) medical evidence establishing that the employment factors
identified by the claimant were the proximate cause of the condition for which compensation is
claimed or, stated differently, medical evidence establishing that the diagnosed condition is causally
related to the employment factors identified by the claimant.
Causal relationship is a medical issue and the evidence required to establish causal
relationship, generally, is rationalized medical evidence.8 This consists of a physician’s rationalized
opinion on the issue of whether there is causal relationship between the claimant’s diagnosed
condition and the implicated employment factors.9 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.10
ANALYSIS
The Board finds the case not in posture for decision.
It is undisputed that appellant had to drive more than 50 miles each way to his new lightduty position in Miami. In a December 30, 2016 report, Dr. Gruskin explained that the sitting that
appellant was required to do while traveling to and from the June 2015 modified job caused an
increase in intra-discal pressure. He explained that this pressure was up to five times greater than
6

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

7

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

8

Elizabeth Stanislav, 49 ECAB 540, 541 (1998).

9

Duane B. Harris, 49 ECAB 170, 173 (1997).

10

Id.

6

standing or lying down and that leaning forward while driving also served to increase this pressure.
Dr. Gruskin advised that appellant had degenerative disc disease as documented by prior imaging.
He explained that some of these imaging findings were commensurate with normal aging;
“however, tears in the fibers of the discs from the work-related motor vehicle accident further
compromised the integrity of this ‘natural shock absorption system.’” Dr. Gruskin also explained
that during sitting, the neck straightened and the pelvis rotated backwards. He related that this
flattened the cervical and lumbar region, which produced added pressure on the axial components.
Dr. Gruskin noted that the use of a cervical collar, adjustable power seat, or ergonomic back
support, would not significantly reduce intra-discal pressure when seated. The Board finds that,
although his opinion is not sufficiently rationalized to meet appellant’s burden of proof to establish
his claim, it is sufficient to require further development of the case by OWCP.11
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. The claimant has the burden of proof to establish entitlement to compensation; however,
OWCP shares responsibility in the development of the evidence to see that justice is done.12 Once
OWCP undertakes development of the record, it must do a complete job in procuring medical
evidence that will resolve the relevant issues in the case.13
Therefore, the Board finds that the case must be remanded to OWCP. On remand, OWCP
shall prepare an updated statement of accepted facts concerning appellant’s working conditions
and refer the matter to an appropriate medical specialist, consistent with OWCP procedures, to
determine whether appellant’s employment duties including driving to and from the new position
in Miami, caused or aggravated his previously accepted medical conditions. Following this, and
any other further development as deemed necessary, OWCP shall issue a de novo decision.14
CONCLUSION
The Board finds that this case is not in posture for decision.

11

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

12

William J. Cantrell, 34 ECAB 1223 (1983).

13

Richard F. Williams, 55 ECAB 343, 346 (2004).

14

On remand OWCP should combine OWCP File Nos. xxxxxx952 and xxxxxx428.

7

ORDER
IT IS HEREBY ORDERED THAT the April 21, 2017 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further action consistent with
this decision.
Issued: January 29, 2019
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Dallas, TX, Employer
)
___________________________________________ )
H.C., Appellant

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

Docket No. 07-1959
Issued: August 12, 2008

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 July 18, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ June 5, 2007 schedule award decision. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award determination.
ISSUE
The issue is whether appellant has established that she has more than 24 percent
impairment of the right upper extremity, for which she received a schedule award.
FACTUAL HISTORY
This case was previously on appeal before the Board. In a decision dated September 24,
1999, the Board found that the Office did not meet its burden of proof to terminate appellant’s
compensation effective March 3, 1996.1 The Board reversed the Office’s decisions dated
February 27, April 23 and August 6, 1996. The facts of the case, as set forth in the prior
decision, are incorporated by reference.
1

Docket No. 97-352 (issued September 24, 1999).

The Office continued to develop the claim and on October 10, 2002 appellant received a
schedule award of 24 percent to the right upper extremity.
On January 31, 2007 the Office received appellant’s claim for an increased schedule
award.
By letter dated February 5, 2007, the Office requested that appellant’s treating physician,
Dr. Samuel Bierner, Board-certified in physical medicine and rehabilitation, provide an
impairment rating. The Office advised the physician to utilize the American Medical
Association, Guides to the Evaluation of Permanent Impairment, (5th ed. 2001) (hereinafter
A.M.A., Guides) and provide an opinion regarding the extent of any impairment with an
explanation of how the calculation was derived.
In an April 10, 2007 report, Dr. Bierner noted using the A.M.A., Guides and referred to
Figure 16-34,2 regarding loss of range of motion for the right shoulder. He found flexion of 155
degrees which represented an impairment of two percent, and extension of 50 degrees which did
not represent any impairment. For adduction, Dr. Bierner indicated that appellant had 55 degrees
or zero percent impairment and 160 degrees of abduction or one percent impairment. He noted
that there was no loss of motion to the wrists or elbows in either arm. Dr. Bierner also rated 10
percent impairment for loss of grip strength utilizing Table 16-32.3 He combined the loss of
range of motion with the grip strength loss to find appellant had an impairment of 13 percent to
the right arm.4
On May 1, 2007 the Office requested that the Office medical adviser review the
impairment rating.
In a May 10, 2007 report, the Office medical adviser utilized the A.M.A., Guides and
noted appellant’s history of injury and treatment. He advised that appellant had accepted
conditions of right ganglion cyst, bilateral carpal tunnel syndrome, depressive disorder, other
afflictions of the right shoulder, and disorder of bursa/tendons in the shoulder region. The Office
medical adviser indicated that appellant reached maximum medical improvement on March 27,
2007, the date of Dr. Bierner’s evaluation. He noted that grip strength loss could “not be utilized
when there was a less than maximal effort provided by the examinee.” The Office medical
adviser referred to Figures 16-40, 16-43 and 16-46 on pages 476-79. For the right shoulder,
flexion of 155 degrees was an impairment of two percent. The Office medical adviser found that
appellant had 50 degrees of extension, or zero percent impairment; 160 degrees of abduction; or
one percent impairment; 55 degrees of adduction, or zero percent impairment; and 80 degrees of
internal and external flexion or zero percent impairment. He added the loss of motion values to
total three percent. The Office medical adviser noted that appellant had already received a
schedule award for 24 percent impairment to the right upper extremity for loss of shoulder
motion and motor and sensory deficits. He determined that appellant had no additional
impairment beyond that for which she was previously rated.
2

A.M.A., Guides 472.

3

Id. at 509.

4

Dr. Bierner also noted that appellant had an impairment of 10 percent to the left upper extremity. Matters
pertaining to the left arm are not before the Board on this appeal.

2

By decision dated June 5, 2007, the Office denied appellant’s claim for an additional
schedule award. It found that the medical evidence did not support any increase in the
impairment for which she had previously been rated.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act5 sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.6 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice for all claimants under the law, good administrative practice requires the use of
uniform standards applicable to all claimants.7 The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.8
ANALYSIS
The medical evidence of record does not establish that appellant is entitled to an
increased schedule award. She previously received a schedule award for a 24 percent
impairment of her right upper extremity for her work-related conditions. Appellant requested an
increase in her schedule award on January 31, 2007. By letter dated February 5, 2007, the Office
requested that appellant’s physician, Dr. Bierner, submit a report addressing her condition and
providing an updated impairment rating.
In an April 10, 2007 report, Dr. Bierner utilized the A.M.A., Guides and referred to
Figure 16-34 and Table 16-32.9 He found that appellant had 10 percent impairment for grip
strength utilizing Table 16-32.10 However, the Board notes that the A.M.A., Guides provide that
decreased strength cannot be rated in the presence of decreased motion, painful conditions,
deformities or absence of parts that prevent effective application of maximum force.11
Dr. Bierner did not provide any explanation as to why the grip strength rating was appropriate in
light of the loss of motion he described as set forth in the A.M.A., Guides. Thus, it was improper
to rate grip strength in the presence of the loss of motion. Dr. Bierner’s finding that appellant
had 10 percent impairment due to loss of grip strength cannot be utilized.
The Board also notes that both Dr. Bierner and the Office medical adviser utilized the
same values for loss of range of motion and correctly determined that appellant had three percent

5

5 U.S.C. §§ 8101-8193.

6

Id. at § 8107.

7

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

8

20 C.F.R. § 10.404.

9

A.M.A., Guides 509.

10

Id. at 472, 509.

11

See A.M.A., Guides 508, section 16.8a.

3

impairment to the right upper extremity. Utilizing Figure 16-40,12 flexion of 155 degrees
represents two percent impairment. Appellant had 50 degrees of extension, or zero percent
impairment. Utilizing Figure 16-4313 for abduction and adduction, 160 degrees of abduction was
equal to one percent impairment and 55 degrees of adduction was equal to zero percent
impairment. Utilizing Figure 16-4614 for internal and external rotation of the shoulder, 80
degrees of internal and external flexion represents zero percent impairment. Both Dr. Bierner
and the Office medical adviser added the loss of motion values to equal three percent impairment
of the right shoulder. As appellant had previously been rated with 24 percent impairment to the
right upper extremity, the most recent 3 percent impairment rating for the right upper extremity
does not represent any increase in the extent of impairment due to her accepted conditions.
CONCLUSION
The Board finds that appellant has not established that she has more than 24 percent
impairment of the right upper extremity, for which she received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 5, 2007 is affirmed.
Issued: August 12, 2008
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

12

A.M.A., Guides 476.

13

Id. at Guides 477.

14

Id. at Guides 479.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.W., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, West Sacramento, CA,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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)
)
)
)
)
)
)
)

Docket No. 10-1041
Issued: March 15, 2011

Case Submitted on the Record

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

JURISDICTION
On March 5, 2010 appellant filed a timely appeal from the October 23, 2009 and
February 4, 2010 schedule award decisions of the Office of Workers’ Compensation Programs.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
claim.
ISSUE
The issue is whether appellant has more than six percent impairment to her left lower
extremity.
FACTUAL HISTORY
On July 28, 2005 appellant, then a 50-year-old mail handler, injured her left foot when
her ankle gave out while she was walking. The Office accepted her claim for plantar fasciitis,
left Achilles bursitis and tendinitis of the left foot and ankle. On June 12, 2007 appellant filed a
claim for a schedule award.

On July 28, 2005 x-rays of the left ankle and foot revealed no injury or abnormality. A
November 6, 2006 magnetic resonance imaging (MRI) scan revealed possible mild Achilles
tendinopathy and an osteochondral defect involving the talar dome.
In a May 30, 2007 permanent and stationary report, Dr. Carla I. Docharty, a podiatrist,
reviewed the medical history and provided findings on physical examination. Subjective
symptoms included slight to moderate pain with standing and/or walking for six hours. Constant
moderate pain continued for the remainder of the workday even with self-imposed restrictions of
increased sitting. Dr. Docharty diagnosed resolved left foot plantar fasciitis, resolved left ankle
Achilles tendinitis and an osteochondral defect of the left ankle. Lower extremity muscle
strength was normal. The neurological examination was normal. There was tenderness with
palpation over the medial aspect of the left ankle, deltoid ligament area and deep inside the left
ankle consistent with osteochondral defect. There was pain with direct dorsal pressure from the
heel through the ankle. Bilateral ankle joints had no edema, laxity or instability. Drawer sign
was negative. Bilateral range of motion testing revealed ankle dorsiflexion of 15/15 degrees,
plantar flexion of 50/50 degrees, inversion of 35/35 degrees and eversion of 15/15 degrees.
There was no heel tenderness plantarly or with lateral compression. There was no tarsal tunnel
referred pain or pain to palpation of the Achilles tendon insertion. The midtarsal joint had no
motion restriction or pain. There was no pain to the sinus tarsi, midtarsal joints or peroneal
tendons with palpation or range of motion testing. The peripheral vascular examination was
normal. Appellant could perform regular work without restrictions.
On September 9, 2007 Dr. Leonard A. Simpson, an Office medical adviser, reviewed the
medical records and found that appellant had six percent left leg impairment due to Grade 3
sensory deficit or pain of the L5 and S1 nerve roots based on Table 16-10 at page 482 and Table
17-37 at page 552. The maximum Grade 3 sensory deficit of 60 percent was multiplied by the 5
percent maximum impairment for the L5 peroneal nerve root to rate 3 percent impairment. The
60 percent sensory deficit was also multiplied by 5 percent for the S1 peroneal nerve root to rate
3 percent impairment under of the fifth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (the A.M.A., Guides). There was no decreased range
of motion or motor impairment.
By decision dated October 25, 2007, the Office granted appellant a schedule award based
on six percent left lower extremity impairment for 17.28 weeks, from January 31 to
May 31, 2007.1
An October 7, 2008 MRI scan of appellant’s left ankle revealed osteochondral defect in
the talar dome surrounded by a large amount of edema consistent with osteochondritis dissecans.
Post-traumatic osteochondral defect or degenerative osteochondral changes could have the same
appearance.
On January 20, 2009 a physician found five percent impairment to appellant’s left leg due
to sensory deficit and muscle weakness.
1

The Federal Employees’ Compensation Act provides for 288 weeks of compensation for 100 percent loss or loss
of use of the lower extremity. 5 U.S.C. § 8107(c)(2). Multiplying 288 weeks by six percent equals 17.28 weeks of
compensation.

2

On January 31, 2009 Dr. Simpson noted that the January 20, 2009 report found five
percent left lower extremity impairment which was less than the six percent previously awarded
to appellant. He found no medical evidence establishing additional impairment.
On March 6, 2009 Dr. Allen Hassan, a family practitioner, stated that appellant had left
ankle range of motion impairment, including 25 percent dorsiflexion impairment, 40 percent
plantar flexion impairment, 30 percent impairment, each, for inversion and eversion. He opined
that the October 7, 2008 MRI scan supported greater impairment than Dr. Simpson found.
Dr. Hassan stated that she had constant left ankle pain from standing eight hours a day at work.
He found 3 percent impairment for to left ankle pain based on the A.M.A., Guides and, based on
the 2008 edition of Federal Veterans Laws, Rules and Regulations, 20 percent veterans disability
for a moderately severe foot injury and 30 percent disability for irritable colon syndrome caused
by pain medications taken for the left ankle pain.
By decisions dated February 10 and July 16, 2009, the Office denied appellant’s claim for
an additional schedule award.
Appellant requested reconsideration. She asserted that she should be granted an
additional schedule award because she was unable to work for several months due to chronic
ankle pain and used sick and annual leave. In an August 3, 2009 note, Dr. Sara Dahle, a
podiatrist, stated that appellant had chronic left ankle pain following unsuccessful conservative
treatment. She noted that an October 7, 2008 MRI scan revealed post-traumatic talar dome
osteochondral lesion and edema. Appellant submitted a computer disc with MRI scan views of
her left ankle.
By decision dated October 23, 2009, the Office denied modification of the July 16, 2009
decisions.
Appellant requested reconsideration.
By decision dated February 4, 2010, the Office denied modification of the October 23,
2009 decision.
LEGAL PRECEDENT
The schedule award provision of the Act2 and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, the Act does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

3

all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.4
ANALYSIS
Appellant sustained plantar fasciitis, left Achilles bursitis and tendinitis of the left foot
and ankle on July 28, 2005 while in the performance of duty. The Office granted her a schedule
award based on six percent impairment of the left lower extremity.
The Board finds that the medical evidence does not establish that appellant has more than
six percent left leg impairment. On May 30, 2007 Dr. Docharty reviewed the medical history,
provided findings on physical examination and diagnosed resolved left foot plantar fasciitis,
resolved left ankle Achilles tendinitis and an osteochondral defect of the left ankle. Subjective
symptoms included slight to moderate pain with standing and/or walking for six hours. Lower
extremity muscle strength was normal. The neurological examination was normal. There was
no ankle joint edema, laxity or instability. Ankle range of motion testing was normal. The
peripheral vascular examination was normal.
Dr. Simpson reviewed the medical records and found that appellant had six percent left
lower extremity impairment. The rating was based on sensory loss of the L5 and S1 nerve roots,
for which a maximum of five percent impairment is allowed. Dr. Simpson found Grade 3
sensory deficit or pain based on Table 16-10 at page 482. He multiplied the maximum Grade 3
sensory deficit of 60 percent by the 5 percent maximum impairment for the L5 peroneal nerve
root and for the S1 peroneal nerve root to find 3 percent sensory impairment of each nerve under
the fifth edition of the A.M.A., Guides. There was no decreased range of motion or motor
impairment.5 Dr. Simpson added the sensory loss to total six percent.
Appellant contended that she should be granted an additional schedule award because she
was unable to work for several months due to chronic ankle pain and had to use sick and annual
leave. A schedule award is compensation for permanent impairment to a member or function of
the body.6 Compensation for lost wages due to the inability to work is a form of compensation
based on loss in wage-earning capacity. A schedule award is not based on time lost from work.
The fact that she was unable to work for a period of time does not establish additional
impairment to her left leg.
On March 6, 2009 Dr. Hassan stated that appellant had left ankle range of motion
impairment, including 25 percent dorsiflexion impairment, 40 percent plantar flexion
impairment, 30 percent impairment, each, for inversion and eversion. However he provided no
4

Id.

5

See Federal (FECA) Procedural Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002) (after obtaining all necessary medical evidence, the file should be routed to an
Office medical adviser for an opinion concerning the nature and percentage of impairment in accordance with the
A.M.A., Guides, with the medical adviser providing rationale for the percentage of impairment specified, especially
when there is more than one evaluation of the impairment present).
6

See 5 U.S.C. § 8107; see also Orlando Vivens, 42 ECAB 303 (1991).

4

range of motion measurements to support such a finding of range of motion impairment.
Dr. Hassan opined that the October 7, 2008 MRI scan supported greater impairment than
Dr. Simpson found, but did not explain how the MRI scan established greater than the six
percent left leg impairment rated based on sensory nerve loss at L5 and S1. He found three
percent impairment due to left ankle pain based on the A.M.A., Guides but did not explain his
finding with reference to relevant tables. Dr. Hassan found 20 percent veterans disability for a
moderately severe foot injury and 30 percent disability for irritable colon syndrome caused by
pain medications taken for the left ankle pain based on the 2008 edition of Federal Veterans
Laws, Rules and Regulation. The laws and regulations of the Department of Veterans Affairs
are not determinative to a claim for a schedule award under the Act. The determination of an
employee’s right or remedies under other statutory authority does not establish entitlement to
benefits under the Act.7 Due to these deficiencies, Dr. Hassan’s report fails to establish that
appellant has more than six percent left leg impairment.
Dr. Dahle stated that appellant had chronic left ankle pain following unsuccessful
conservative treatment. She noted that an October 7, 2008 MRI scan revealed post-traumatic
talar dome osteochondral lesion and edema. Dr. Dahle did not address the issue of impairment.
Her report does not establish that appellant has more than six percent left lower extremity
impairment.
Regarding the computer disc with MRI scan views of appellant’s left ankle, there is no
accompanying medical report explaining how the MRI scan findings establish additional left
lower extremity impairment.
Appellant failed to establish that she has greater than six percent left lower extremity
impairment for which she received a schedule award. The Office properly denied her claim for
an additional schedule award.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she had
more than six percent impairment to her left lower extremity.

7

H.S., 58 ECAB 554 (2007).

5

ORDER
IT IS HEREBY ORDERED THAT the February 4, 2010 and October 23, 2009
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: March 15, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

6