United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bellmawr, NJ, Employer
__________________________________________

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

Docket No. 10-2174
Issued: July 15, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 24, 2010 appellant, through her representative, filed a timely appeal from the
June 16, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP), which
affirmed her schedule award. Pursuant to the Federal Employees’ Compensation Act1 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 applied the correct edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment.
FACTUAL HISTORY
On June 5, 2007 appellant, then a 47-year-old postal clerk, filed a claim for workers’
compensation benefits alleging that her right elbow pain was a result of her federal employment.
She reportedly keyed mail, did a lot of lifting with her right arm and was constantly bending at
1

5 U.S.C. § 8101 et seq.

the elbows, which left her with pain for the last month. OWCP accepted her claim for right
cubital tunnel syndrome.
On January 5, 2009 OWCP received appellant’s December 29, 2008 schedule award
claim. Appellant submitted an August 6, 2008 evaluation from Dr. Arthur Becan, an orthopedic
surgeon. She complained of right elbow pain and stiffness, which waxed and waned, as well as
numbness and tingling and swelling in her right elbow. Semmes-Weinstein monofilament
testing revealed diminished light touch sensibility involving the ulnar nerve distribution of the
right forearm and hand.
Dr. Becan diagnosed, among other things, chronic right ulnar neuropathy and chronic
medial epicondylitis of the right elbow. Noting a grade 2 sensory deficit of the right ulnar nerve,
he found a total right upper extremity impairment of six percent, citing Table 16-10 and Table
16-15 of the fifth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides).2
On March 23, 2009 OWCP medical adviser observed that Dr. Becan’s grading of the
sensory loss seemed incorrect. He noted that the maximum ulnar nerve sensory loss below the
mid-forearm was 35 percent, and that grade 2 could be as much as 80 percent: “How did he get
[six percent]?” OWCP medical adviser also noted that the reported two-point discrimination
represented a zero percent loss: “This would really be a normal sensation for the ulnar nerve
[and] not a [g]rade [2] [l]oss.” OWCP medical adviser concluded that Dr. Becan had to explain
how he determined a six percent impairment for ulnar nerve loss.
On June 15, 2009 OWCP asked Dr. Becan to evaluate appellant’s right upper extremity
impairment using the sixth edition of the A.M.A., Guides. On December 15, 2009 it received his
October 8, 2009 report. Based on his previous findings, Dr. Becan found that appellant fit into
the moderate category of impairment for sensory only peripheral nerve injury, and therefore had
a three percent impairment of her right upper extremity.3 OWCP’s medical adviser reviewed his
evaluation and reported that it seemed correct.
On February 25, 2010 OWCP issued a schedule award for a three percent impairment of
appellant’s right upper extremity. On June 16, 2010 OWCP’s hearing representative affirmed.
On appeal, appellant’s representative argues that OWCP’s delay in adjudicating the claim
deprived appellant of a protected interest in property without due process of law. He reasoned
that, had the delay not occurred, appellant would have been provided a decision under the fifth
edition of the A.M.A., Guides.

2

A.M.A. Guides (5th ed. 2001).

3

Id. at Table 15-18 (6th ed. 2009).

2

LEGAL PRECEDENT
Section 8107 of FECA4 authorizes the payment of schedule awards for the loss or loss of
use of specified members, organs or functions of the body. Such loss or loss of use is known as
permanent impairment. OWCP evaluates the degree of permanent impairment according to the
standards set forth in the specified edition of the A.M.A., Guides.5 As of May 1, 2009, any
decision regarding a schedule award must be based on the sixth edition.6
ANALYSIS
Appellant’s representative does not contest the percentage of impairment awarded on
February 25, 2010. He contests OWCP’s delay in issuing a decision and the resulting
application of the sixth edition of the A.M.A. Guides. OWCP procedures are clear: As of
May 1, 2009, any decision regarding a schedule award must be based on the sixth edition.
OWCP correctly followed its procedures.
Appellant asserts that she has property right in a schedule award benefit under the fifth
edition of the A.M.A., Guides and a protected property interest cannot be deprived without due
process, citing Goldberg v. Kelly, 397 U.S. 254 (1970) and Mathew v. Eldridge, 424 U.S.
319 (1976). These cases held only that a claimant who was in receipt of benefits (in Goldberg
public assistance and in Mathews Social Security benefits) could not be terminated without due
process. Appellant had received no schedule award under the fifth edition.
In Harry D. Butler,7 the Board noted that Congress delegated authority to the Director
regarding the specific methods by which permanent impairment is to be rated. Pursuant to this
authority, the Director adopted the A.M.A., Guides as a uniform standard applicable to all
claimants and the Board has concurred in the adoption.8 On March 15, 2009 the Director
exercised authority to advise that as of May 1, 2009 all schedule award decisions of the Office
should reflect use of the sixth edition of the A.M.A., Guides.9 The applicable date of the sixth
edition is as of the schedule award decision reached. It is not determined by either the date of
maximum medical improvement or when the claim for such award was filed
The Board finds that OWCP did not deprive appellant of an established property interest.
Consistent with its procedures, OWCP applied the correct edition of the A.M.A., Guides and
found on February 25, 2010 that appellant was entitled to benefits for a three percent impairment
4

Appellant also complained of left shoulder pain and stiffness and popping.

5

20 C.F.R. § 10.404.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter
2.0808.6.a (January 2010).
7

43 ECAB 859 (1992).

8

Id. at 866.

9

FECA Bulletin No. 09-03 (issued March 15, 2009). FECA Bulletin was incorporated in the Federal (FECA)
Procedure Manual, supra note 6, Chapter 2.808.6(a) (January 2010).

3

of her right upper extremity.10 The Board will therefore affirm OWCP’s June 16, 2010 decision
affirming appellant’s schedule award.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that OWCP applied the correct edition of the A.M.A., Guides.
ORDER
IT IS HEREBY ORDERED THAT the June 16, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 15, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10

A moderate sensory-only deficit of a peripheral nerve represents a three percent impairment of the upper
extremity. A.M.A., Guides 429 (6th ed. 2009) (Table 15-18). OWCP medical adviser incorrectly stated that the
maximum ulnar nerve sensory loss below the mid-forearm was 35 percent. It is seven percent. A.M.A., Guides 492
(5th ed. 2001) (Table 16-15). So the maximum grade 2 sensory deficit of 80 percent would have produced the 6
percent impairment Dr. Becan reported. A.M.A., Guides 482 (Table 16-10). Semmes-Weinstein monofilament
testing revealed only diminished light touch, indicative of a lower-grade sensory deficit. This inconsistency
diminished the probative value of Dr. Becan’s impairment rating under the fifth edition.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Denver, CO, Employer
__________________________________________

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Appearances:
Bernard Humbles, for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1729
Issued: May 12, 2017

Case Submitted on the Record

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

JURISDICTION
On August 15, 2016 appellant, through her representative, filed a timely appeal from a
May 12, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).2

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

Appellant also filed a timely request for oral argument in this case, pursuant to 20 C.F.R. § 501.5(b). After
exercising its discretion, by order dated March 1, 2017, the Board denied appellant’s request for oral argument as
oral argument would further delay issuance of a Board decision and not serve a useful purpose. Order Denying
Request for Oral Argument, Docket No. 16-1729 (issued March 1, 2017).

Pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.4
ISSUE
The issue is whether appellant met her burden of proof to establish a right shoulder injury
causally related to her accepted factors of her federal employment.
FACTUAL HISTORY
On October 9, 2015 appellant, then a 52-year-old nursing assistant, filed a traumatic
injury claim (Form CA-1) alleging that on March 1, 2015 she sustained cumulative trauma from
repositioning a patient. She stopped work and first received medical care on March 1, 2015.
By letter dated October 28, 2015, OWCP informed appellant that the evidence of record
was insufficient to support her claim. Appellant was advised of the factual and medical evidence
needed and afforded 30 days to respond. OWCP provided a questionnaire for completion and
requested she submit a response in order to substantiate the factual basis of her claim. It also
noted that it was not clear if appellant was filing an occupational disease or traumatic injury and
requested clarification on her claim. Appellant did not respond and no further evidence was
received.
By decision dated December 2, 2015, OWCP denied appellant’s claim finding that the
evidence of record failed to establish fact of injury to support that the injury or event occurred as
alleged. It noted that she failed to submit any evidence in support of her claim and did not
respond to OWCP’s October 28, 2015 questionnaire.
On December 7, 2015 appellant requested review of the written record before an OWCP
hearing representative.
In an April 19, 2016 narrative statement, appellant responded to OWCP’s questionnaire
and described her employment duties as a nursing assistant. She explained that she was claiming
an occupational disease claim as her work in a nursing home for over 10 years consisted of very
hard physical work. Appellant reported that her duties involved handling geriatric patients and
was often pushing, pulling, lifting, and turning patients over a period of time. She reported that
she initially filed the workers’ compensation claim incorrectly because the new nurse manager in
her unit was not aware of the process. Appellant noted that she continued to have pain in her
shoulder and a magnetic resonance imaging (MRI) scan revealed a rotator cuff tear requiring her
to undergo surgery. She explained that the operation further revealed bursitis, a previously
diagnosed condition. Appellant reported that she had no prior issues with her right shoulder and
continued to experience a great deal of pain radiating down her arm.
3

5 U.S.C. § 8101 et seq.

4

The Board notes that appellant submitted additional evidence after OWCP rendered its May 12, 2016 decision.
The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision
and therefore, this additional evidence cannot be considered on appeal. 20 C.F.R. § 501.2(c)(1); Dennis E. Maddy,
47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952).

2

In support of her claim, appellant submitted Kaiser Permanente Past Visit Information
Summaries dated April 9 through October 5, 2015 documenting treatment for right shoulder
pain, bilateral tendinitis of the rotator cuff, nontraumatic right rotator cuff tear, and impingement
syndrome of the right shoulder.
In treatment notes dated January 26 through February 17, 2016, Jillian Ramer and
Douglas Clark, licensed physical therapists, documented treatment for appellant’s right shoulder.
In an August 15, 2015 diagnostic report, Dr. Margarita Sevilla, Board-certified in family
medicine, reported that a right shoulder MRI scan revealed high grade partial bursal-sided tear of
the supraspinatus tendon and mild rotator cuff tendinosis.
In a November 16, 2015 Family and Medical Leave Act (FMLA) health care provider
form, Dr. Tyler Skaife, a Board-certified orthopedic surgeon, reported that he began treating
appellant on September 10, 2015. He provided a diagnosis of right rotator cuff tear and reported
that surgery was scheduled for January 19, 2016. Dr. Skaife explained that appellant would be
unable to perform any kind of work during her postoperative period and would likely be
incapacitated until April 12, 2016.
In a January 19, 2016 operative report, Dr. Skaife performed a right shoulder arthroscopy
with rotator cuff repair and subacromial decompression. Postoperative examinations dated
February 3 and 25, 2016 revealed normal findings.
By letter dated April 13, 2016, Dr. Skaife reported that appellant was initially examined
by Dr. Sevilla on April 14, 2015. He reported that the pain appellant complained of for years
was exacerbated in March 2015 from lifting patients and other care duties at work, reporting no
discrete fall or trauma. Dr. Skaife provided findings on physical examination and review of
diagnostic testing. He noted that a March 26, 2015 x-ray of the right shoulder revealed no
fracture or dislocation. A July 23 and an August 12, 2015 MRI scan of the right shoulder
revealed near full-thickness tear of anterior and mid supraspinatus on the bursal side of the
tendon, as well as increased fluid signal within the subacromial space with an inferior facing
osteophyte of the anterolateral acromion. Dr. Skaife diagnosed high grade partial thickness
bursal-sided rotator cuff tear and subacromial impingement. He noted that after appellant was
unresponsive to conservative measures she underwent surgery on January 19, 2016 for
arthroscopic rotator cuff repair and subacromial decompression. Dr. Skaife reported that his
most recent follow up revealed that she was improving her range of motion, but was not back to
her preoperative baseline. He concluded that appellant’s job duties involved patient care
activities with lifting of patients, repetitive motion, and overhead motion which could aggravate
a preexisting rotator cuff disease/pathology and subacromial impingement.
By decision dated May 12, 2016, OWCP’s hearing representative affirmed the
December 2, 2015 decision, as modified, finding that the evidence of record failed to establish
that her diagnosed conditions were causally related to her accepted federal employment factors.

3

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 of FECA, that the claim was filed within the applicable
time limitation, that an injury was sustained while 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.5 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.6
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 which is alleged to have occurred.7 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, 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
To establish a causal relationship between the condition, as well as any attendant
disability claimed, and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.9 The opinion of the physician must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant. This
medical opinion must include an accurate history of the employee’s employment injury and must
explain how the condition is related to the injury. The weight of medical evidence is determined
by its reliability, its probative value, its convincing quality, the care of analysis manifested, and
the medical rationale expressed in support of the physician’s opinion.10

5

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

6

Michael E. Smith, 50 ECAB 313 (1999).

7

Elaine Pendleton, supra note 5.

8

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

9

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

10

James Mack, 43 ECAB 321 (1991).

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ANALYSIS
OWCP accepted that as part of her employment duties appellant engaged in repetitive
activities of pushing, pulling, lifting, and turning patients in her employment duties as a nursing
assistant as alleged. It denied her claim, however, because the evidence of record failed to
establish a causal relationship between those activities and her right shoulder injury. The Board
finds that the medical evidence of record is insufficient to establish that appellant developed a
right shoulder rotator cuff tear and subacromial impingement causally related to factors of her
federal employment as a nursing assistant.
In support of her claim, appellant submitted treatment and operative reports dated
November 16, 2015 through April 13, 2016 from Dr. Skaife, her treating physician. Dr. Skaife
diagnosed right rotator cuff tear and subacromial decompression for which he performed a right
shoulder arthroscopy on January 19, 2016. The Board finds that the reports of Dr. Skaife are not
well rationalized and insufficient to establish appellant’s occupational disease claim.
Dr. Skaife explained that appellant’s job duties involved patient care activities with
lifting of patients, repetitive motion, and overhead motion, which could aggravate a preexisting
rotator cuff disease/pathology and subacromial impingement. The Board notes that Dr. Skaife’s
opinion on causation is speculative as he notes that appellant’s employment duties could
aggravate her preexisting condition without a firm conclusion that these duties did in fact cause
or aggravate her injury.11 To be of probative value, a physician’s opinion on causal relationship
should be one of reasonable medical certainty.12 Furthermore, he attributes appellant’s rotator
cuff disease and subacromial impingement to a preexisting condition. Dr. Skaife reported that
appellant complained of pain for years which was exacerbated in March 2015. However, he
failed to provide a detailed medical history of her preexisting conditions or prior injuries related
to the pain in her right shoulder. Moreover, Dr. Skaife failed to discuss whether her preexisting
injury had progressed beyond what might be expected from the natural progression of that
condition.13 It is unclear if appellant’s diagnosed conditions were caused or aggravated by her
occupational employment duties, or were due to a preexisting condition, or to degenerative
changes. A well-rationalized opinion is particularly warranted when there is a history of a
preexisting condition.14
While Dr. Skaife did have some knowledge of appellant’s employment duties, he failed
to detail the number of hours per day spent performing each task and the frequency of the
physical movements which appellant attributes to her injury. His statement on causation failed
to provide a sufficient explanation as to the mechanism of injury pertaining to this occupational
disease claim as alleged by appellant, namely, how repetitive pushing, pulling, lifting, and
turning patients would cause or aggravate her right shoulder injury.15 Without explaining how
11

See Michael R. Shaffer, 55 ECAB 339 (2004).

12

See Beverly R. Jones, 55 ECAB 411 (2004).

13

R.E., Docket No. 14-868 (issued September 24, 2014).

14

T.M., Docket No. 08-975 (issued February 6, 2009); Michael S. Mina, 57 ECAB 379 (2006).

15

S.W., Docket 08-2538 (issued May 21, 2009).

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physiologically the movements involved in appellant’s employment duties caused or contributed
to her diagnosed conditions, his opinion on causal relationship is equivocal in nature and of
limited probative value.16
The remaining medical evidence of record is also insufficient to establish appellant’s
claim. Dr. Sevilla’s August 15, 2015 diagnostic report only interpreted imaging studies related
to the right shoulder and provided no opinion on the cause of appellant’s injury.17 Without any
mention of the repetitive employment duties, and any discussing causal relationship, his report is
of limited probative value.18
The physical therapy reports documenting treatment of appellant’s right shoulder are also
insufficient to establish her claim. A physical therapist is not considered a physician as defined
under FECA, and his opinion is of no probative value.19
The Board notes that if work-related exposures caused, aggravated, or accelerated
appellant’s condition, she is entitled to compensation.20 However, an award of compensation
may not be based on surmise, conjecture, speculation, or on the employee’s own belief of causal
relation.21 Appellant’s honest belief that her occupational employment duties caused her medical
injury is not in question, but that belief, however sincerely held, does not constitute the medical
evidence necessary to establish causal relationship.22 As such, appellant has failed to meet her
burden of proof.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish a right
shoulder injury causally related to factors of her federal employment.

16

See L.M., Docket No. 14-973 (issued August 25, 2014); R.G., Docket No. 14-113 (issued April 25, 2014);
K.M., Docket No. 13-1459 (issued December 5, 2013); A.J., Docket No. 12-548 (issued November 16, 2012).
17

D.H., Docket No. 11-1739 (issued April 18, 2012).

18

S.Y., Docket No. 11-1816 (issued March 16, 2012).

19

5 U.S.C. § 8102(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. Roy L. Humphrey, supra note 8. See F.G., Docket No. 16-1482 (issued January 25, 2017) (physical
therapists); see also V.W., Docket No. 16-1444 (issued March 14, 2017) (physical therapists).
20

See Beth P. Chaput, 37 ECAB 158, 161 (1985); S.S., Docket No. 08-2386 (issued June 5, 2008).

21

D.D., 57 ECAB 734 (2006).

22

See B.H., Docket No. 16-1553 (issued March 27, 2017).

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ORDER
IT IS HEREBY ORDERED THAT the May 12, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 12, 2017
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
ARCHITECT OF THE CAPITOL,
Washington, DC, Employer
__________________________________________

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Appearances:
Stephen D. Scavuzzo, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-651
Issued: August 5, 2014

Case Submitted on the Record

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

JURISDICTION
On January 15, 2014 appellant, through counsel, filed a timely appeal of a July 22, 2013,
decision of the Office of Workers’ Compensation Programs (OWCP) denying his claim for
compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant sustained an aggravation of an employment-related back
injury causally related to factors of his federal employment.
On appeal, appellant’s counsel contended that appellant produced enough evidence
showing a relationship between the claimed condition and the identified work factor. He
contended that finding otherwise completely ignores the report of appellant’s treating physician
who provided a rationalized medical opinion about the relationship and noted that there was no
contradicting medical evidence.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 23, 2012 appellant, then a 62-year-old painter decorator, filed an occupational
disease claim alleging that, as a result of his federal duties, he suffered from pseudoarthrosis,
spinal fusion failure, lumbar disc herniation, chronic disc pain syndrome and degenerative
piriformic syndrome. He alleged that he had a spinal fusion L5-S1 in 1993 and returned to work,
but that he reinjured his back when lifting a heavy partition at work on November 14, 2007.2
Appellant indicated that stress on his back was a factor in the failure of his fusion.
In a July 15, 2011 report, Dr. Robert L. Lyles, a pain management specialist who is
Board-certified in anesthesiology and critical care medicine, completed a certification of health
care provider for the Family and Medical Leave Act (FMLA) indicating that he treated appellant
on multiple specific dates from January 10, 2008 through June 21, 2011, and that appellant had
chronic pain syndrome, degenerative disc disease, lumbar disc herniation, piriformic syndrome
and pseudoarthrosis. He placed restrictions on appellant, indicating that he was unable to twist,
stand on a ladder, lift more than 10 pounds, stand for long periods of time, walk longer than ½
mile in a day, bend, kneel or climb. Dr. Lyles noted that pain and symptoms related to
appellant’s condition are constantly causing impairment in activities of daily living and job
functions.
On July 14, 2011 Dr. Leonid Selya, a Board-certified orthopedic surgeon, also completed
a certification of health care provider under the FMLA, and indicated that appellant had chronic
L5-S1 pseudoarthrosis and that he was disabled and unable to walk, sit, stand, bend or climb. He
indicated that appellant will receive a revision spinal fusion.
By letter dated November 15, 2012, OWCP asked that appellant submit further evidence
in support of his claim. In response, appellant submitted an undated and unsigned statement
indicating that his outside activities have been curtailed drastically to minimal family visits, as
his physical impairment restricts travel and sitting for prolonged periods. He noted that his
inability to bend, kneel and sit in one position too long limits most of his activities.
In response to OWCP’s letter, appellant submitted a January 31, 2008 report wherein
Dr. Selya noted that around 1994 appellant underwent an uneventful L5-S1 fusion of the
treatment of a low back injury sustained at work. He indicated that, at that time, the injury was
recognized by workmen’s compensation, and appellant was compensated for his injury.
Dr. Selya stated that appellant recovered and was able to return to productive employment, but
was treated for occasional episodes of low back discomfort and was seen on as per needed basis.
However, he noted that appellant’s condition deteriorated on November 14, 2007 when he lifted
a heavy partition at work and that, since that time, appellant has had intermittent occasional low
back pain which became chronic severe narcotic dependent agonizing discomfort. Dr. Selya
noted that at that time he evaluated appellant and confirmed the diagnosis of decompensation of
pseudoarthrosis and discussed surgery, but he elected nonsurgical treatment and was referred to
chronic pain management. He noted that appellant undergoes multiple injections, pain
management and narcotic management. Dr. Selya noted that appellant’s case was a classic
2

The record reveals that, under OWCP File No. xxxxxx184, OWCP accepted appellant’s claim for an
aggravation of a preexisting, nonwork-related lumbar sprain.

2

example of decompensation of pseudoarthosis secondary to trauma. In a June 2, 2011 note, he
stated that appellant suffers from pseudoarthrosis at L5-S1 after unilateral fusion in 1994.
Dr. Selya indicated that appellant will consider surgery after he recovers from his bypass
surgery.
In a February 5, 2008 report, Dr. Lyles indicated that appellant’s had recurrence of
lumbar injury that per patient history was caused or aggravated by employment activity.
In a decision dated December 20, 2012, OWCP denied appellant’s claim, as it found that
the evidence is insufficient to establish that the event occurred as alleged, noting that appellant
had not provided sufficient medical evidence to establish what ongoing work activities caused or
contributed to his injury.
On January 19, 2013 appellant requested an oral hearing before an OWCP hearing
representative. However, on April 29, 2013, appellant’s attorney elected to proceed with a
review of the written record.
In a March 16, 2007 report, Dr. Selya indicated that clinically and radiologically
appellant suffers with L5-S1 pseudoarthrosis and that he recommended surgery.
Appellant also submitted a May 24, 2013 statement wherein he indicated that the
November 14, 2007 traumatic injury resulted in a four months’ absence. He noted that during
that time he was under the care of Dr. Selya who advised revision of spinal surgical procedure
and revisions of fusion front to back, but that he opted for nonsurgical chronic pain management
with Dr. Lyles. Appellant noted that he returned to work in April 2008. He stated that the work
load resulted in long periods of standing seven hours daily, lifting loading and uploading trucks,
receiving materials and sorting inventory. Appellant alleged that not one specific incident but an
accumulation of daily strenuous activities culminated into agonizing discomfort and in May 2011
he could no longer endure it and yielded to the prospect of disability.
By decision dated July 22, 2013, an OWCP hearing representative affirmed OWCP’s
December 20, 2012 decision. The hearing representative noted that OWCP previously accepted
that appellant’s November 2007 work event resulted in an aggravation of appellant’s preexisting
strain, however there was no discussion or rationalized medical opinion explaining that the
claimant’s condition was made worse or aggravated as a result of performing his duties after the
November 2007 traumatic injury or upon his return to work in April 2008.
LEGAL PRECEDENT
An employee seeking compensation under FECA3 has the burden of establishing the
essential elements of his claim by the weight of the reliable, probative and substantial evidence,4
including that he is an “employee” within the meaning of FECA5 and that he filed his claim
3

5 U.S.C. §§ 8101-8193.

4

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

5

See M.H., 59 ECAB 461 (2008); see 5 U.S.C. § 8101(1).

3

within the applicable time limitation.6 The employee must also establish that he sustained an
injury in the performance of duty as alleged and that his disability for work, if any, was causally
related to the employment injury.7 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated on a traumatic injury or an
occupational disease.8
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, 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.9
Causal relationship is a medical issue10 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,11 must be one of reasonable medical certainty,12
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.13
Under FECA, when employment factors cause an aggravation of an underlying physical
condition, the employee is entitled to compensation for the periods of disability related to the
aggravation.14
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that he
sustained an injury caused or aggravated by the duties of his federal employment. Although
appellant established employment factors and a medical diagnosis, he did not submit medical
evidence that established that his medical condition was causally related to long periods of
6

R.C., 59 ECAB 427 (2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954); see 5 U.S.C. § 8122.

7

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

8

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

9

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

10

Mary J. Briggs, 37 ECAB 578 (1986).

11

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

12

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

13

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

14

Raymond W. Behrens, 50 ECAB 221, 222 (1999); James L. Hearn, 29 ECAB 278, 287 (1978).

4

standing, lifting loading and uploading trucks, receiving materials and sorting inventory. In a
variety of reports, Dr. Lyles listed multiple physical problems, including chronic pain syndrome,
degenerative disc disease, lumbar disc herniation, piriformic syndrome and pseudoarthrosis
caused by an accumulation of daily strenuous activities. However, there was no discussion or
rationalized medical opinion explaining a causal connection between his work duties and the
claimant’s condition.
Dr. Selya found L5 pseudoarthrosis, but never discussed the specific employment
activities that caused or aggravated his back condition. He noted that appellant injured his low
back sometime in 1994 which required surgical treatment, that he was diagnosed with
pseudoarthrosis, and that the injury in November 2007 resulted in decompensated
pseudoarthrosis. However, Dr. Selya did not discuss how appellant’s specific activities of work
after his return to work in April 2008 caused or aggravated his medical condition.
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 his condition was caused by his employment is sufficient to
establish causal relationship.15 As appellant did not submit a rationalized medical opinion
establishing a causal relationship between his accepted employment activities and a diagnosed
medical condition, he did not meet his burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that he sustained an aggravation of a back
injury causally related to factors of his federal employment.

15

Walter D. Morehead, 31 ECAB 188 (1986).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 22, 2013 is affirmed.
Issued: August 5, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.D., Appellant
and
U.S. POSTAL SERVICE, REDONDO BEACH
POST OFFICE, Redondo Beach, CA, Employer
__________________________________________

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

Docket No. 06-1910
Issued: March 23, 2007

Case Submitted on the Record

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

JURISDICTION
On August 16, 2006 appellant filed a timely appeal from a June 19, 2006 merit decision
of the Office of Workers’ Compensation Programs, finding that he did not sustain an injury
while in the performance of duty. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that he sustained an injury while in the
performance of duty.

FACTUAL HISTORY
On March 7, 2005 appellant, then a 59-year-old sales and services associate, filed a
Form CA-2 claim for an occupational disease.1 On November 22, 2004 he first realized that the
pain in his shoulders was caused by factors of his federal employment. In an accompanying
narrative statement dated March 7, 2005, appellant provided a history of his employment
beginning July 1, 1989. He described his work duties which included heavy lifting and workrelated injuries. Appellant contended that he was required to work outside his prescribed
physical restrictions.
Appellant submitted a January 27, 2005 medical report from Dr. I. Grant Orlin, a general
practitioner, who noted appellant’s employment history, including his work duties which
required heavy lifting and reported findings on physical examination. Dr. Orlin diagnosed
bilateral shoulder tendinitis with subacromial spur formation, acromioclavicular (AC) arthritis
and impingement syndrome with industrial acceleration. He opined that the physical
requirements of appellant’s work duties since 1989, which included heavy-duty lifting, pushing
and pulling, caused the acceleration of his arthritis. Dr. Orlin concluded that, since there was no
other history obtained regarding outside hobbies, sports activities or other nonindustrial injuries
that may have contributed to appellant’s arthritis, it was medically reasonable and historically
probable to infer that a causal relationship existed between the diagnosed conditions and
appellant’s employment.
In a February 2, 2005 report, Dr. James C. Thomas, Jr., a Board-certified orthopedic
surgeon, noted appellant’s employment history which included work duties that involved heavy
lifting, pushing and pulling. He reported findings on physical examination and diagnosed
chronic bilateral subacromial bursitis and impingement syndrome secondary to subacromial
spurring and AC joint hypertrophy bilaterally. Dr. Thomas opined that appellant’s shoulder
injuries were related to 14½ years of repetitive distribution of mail at or above shoulder level,
resulting in increased stress to the AC joint and causing the development of subacromial bone
spurs as repetitive trauma ensued with the repetitive work activity at or above shoulder level.
By letter dated March 22, 2005, the Office addressed the additional factual and medical
evidence appellant needed to submit to establish his claim. In a letter of the same date, the
Office requested that the employing establishment respond to the evidence submitted by
appellant.

1

Prior to the instant claim, appellant filed a Form CA-2 claim on January 5, 2004. He alleged that he sustained
injuries to his left upper extremity, hand and lower extremities that were caused by his federal employment.
The Office, by decisions dated April 13 and October 28, 2004, found that appellant did not sustain an injury while in
the performance of duty. In a decision dated June 13, 2006, the Office denied his May 30, 2006 request for
reconsideration on the grounds that it was untimely and failed to establish clear evidence of error. By decision dated
October 26, 2006, the Board affirmed the Office’s June 13, 2006 decision. Docket No. 06-1605 (issued
October 26, 2006).

2

In a letter dated March 8, 2005 and received by the Office on March 28, 2005, the
employing establishment controverted appellant’s claim. It described his work duties and
disputed his contention that he was required to perform heavy lifting, pushing and pulling. The
employing establishment denied that appellant was required to work outside his physical
restrictions.
In an April 12, 2005 letter, appellant further described the development of his shoulder
condition and his work duties. He first sought medical treatment for his shoulder condition in
October 2004 and diagnosed with bilateral tendinitis and tenosynovitis in the shoulders.
Appellant noted his treatment by Dr. Orlin. His work duties included repetitive motion of his
right hand, reaching above his head, deep bending, standing for long periods of time, heavy
lifting and keyboarding.
Duty status reports dated February 25 and March 24, 2005, from physicians whose
signatures were illegible indicated that appellant had bilateral shoulder problems and released
him to return to limited-duty work on the date of the report, respectively.
By decision dated June 2, 2005, the Office found that appellant did not sustain an injury
while in the performance of duty. The factual evidence failed to establish his work duties. The
Office found that the accuracy of appellant’s description of his work duties was unclear based on
the employing establishment’s description of his work duties. The Office further found that the
medical evidence of record failed to provide a rationalized opinion establishing a causal
relationship between appellant’s shoulder conditions and his employment.
In a letter dated June 30, 2005, appellant requested an oral hearing before an Office
hearing representative. At a December 14, 2005 hearing, he submitted statements from his
coworkers, which indicated that he performed heavy-duty work. In a March 8, 2005 letter,
appellant further described his work duties involving pitching mail and unloading cages.
In a July 15, 2005 report, Dr. Orlin stated that appellant’s stressful physical work duties
which involved pushing up to 700 pounds, repetitive and cumulative trauma six hours a day for
several years, frequent extension and reaching above the shoulders, lifting tubs of mail weighing
20 to 30 pounds repetitively added stress to his shoulders. He opined that there was no other
preexisting history of injury, accidents, recreational activities or problems resulting in treatment
for degenerative disease or arthritis. Dr. Orlin stated that, if appellant had preexisting
osteoarthritis, particularly at his age, then it would seem more likely that his condition was
accelerated by his work activities at the employing establishment. He further stated that, if
appellant had not worked at the employing establishment, then he would not have had this
amount of problems and symptoms. Dr. Orlin’s August 26, 2005 report reiterated the diagnoses
and opinion regarding causal relation set forth in his January 27, 2005 report.
In a September 7, 2005 report, Dr. Thomas stated that appellant sustained bilateral
shoulder impingement syndrome, shoulder disorders of the bursa and tendons and arthritis and
tendinitis of the shoulder.
By decision dated March 21, 2006, an Office hearing representative set aside the June 2,
2005 decision and remanded the case for further development of the medical evidence. The

3

hearing representative found the evidence of record sufficient to establish that appellant
performed strenuous physical work duties from 1989 to 1997, which included unloading heavy
containers of mail from trucks, dumping sacks of mail weighing up to 70 pounds, pitching
parcels into gurneys and taking trays of letters and tubs of flats to the carrier area. He found that
the medical opinions of Drs. Orlin and Thomas, that appellant’s bilateral shoulder conditions
were causally related to his work duties, were not based on a fully accurate history or sufficiently
rationalized, but they were uncontroverted. On remand, the hearing representative instructed the
Office to refer appellant, together with a statement of accepted facts and the case record, to a
Board-certified orthopedic surgeon for a second opinion medical examination.
By letter dated May 17, 2006, the Office referred appellant to Dr. H. Harlan Bleecker, a
Board-certified orthopedic surgeon, for a second opinion medical examination. In a June 6, 2006
report, Dr. Bleecker reviewed the statement of accepted facts and appellant’s medical records.
He provided a history of his medical, social and family background. Dr. Bleecker reported
limited range of motion of the neck and full internal and external rotation, both actively and
passively of the shoulders. Appellant had positive Phalen’s test and Tinel’s sign results in both
wrists and normal range of motion of the fingers. Dr. Bleecker reported findings on motor and
sensory examination. He diagnosed right C6-7 radiculopathy, bilateral carpal tunnel syndrome
and bilateral AC degenerative arthritis. Dr. Bleecker stated that the diagnoses were due to
nonindustrial, degenerative preexisting conditions including degenerative disc disease of the
cervical spine and degenerative AC arthritis. Based on his objective neurological findings the
limitation of motion of shoulder abduction and elevation was a voluntary inhibition in view of
the fact that appellant had full internal and external rotation that was done easily both actively
and passively. Dr. Bleecker opined that his shoulder complaints related to bilateral posterior
trapezil which referred from the neck and were manifestations of the underlying degenerative
condition. He also opined that appellant’s shoulder symptoms appeared to be secondary to the
degenerative disease in the cervical spine with C6-7 radiculopathy and bilateral carpal tunnel
syndrome. Dr. Bleecker stated that the prognosis was somewhat poor as appellant had
degenerative changes that would continue to progress. He related that surgical intervention was
not necessary for any work-related conditions and provided appellant’s physical limitations. In
an accompanying work capacity evaluation (Form OWCP-5c), he stated that appellant was
unable to perform his usual job but that he could work eight hours per day within specified
physical restrictions.
By decision dated June 19, 2006, the Office found that appellant did not sustain an injury
while in the performance of duty based on Dr. Bleecker’s June 6, 2006 medical report.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his claim including the fact that the individual is
an “employee of the United States” within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability and/or specific condition for which
2

5 U.S.C. §§ 8101-8193.

4

compensation is claimed are causally related to the employment injury.3 These are the essential
elements of each compensation claim regardless of whether the claim is predicated upon a
traumatic injury or an occupational disease.4
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.
The medical evidence required to establish a causal relationship is rationalized medical opinion
evidence. Rationalized medical opinion evidence is medical evidence, which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between 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 Office referred appellant and the medical evidence of record to Dr. Bleecker, a
Board-certified orthopedic surgeon, for a second on whether appellant sustained an injury
causally related to factors of his federal employment. In a report dated June 6, 2006,
Dr. Bleecker reported limited range of motion of the neck, full range of motion of the shoulders
both actively and passively and fingers and positive Phalen’s and Tinel’s sign results. He
diagnosed right C6-7 radiculopathy, bilateral carpal tunnel syndrome and bilateral AC
degenerative arthritis. Dr. Bleecker opined that appellant’s degenerative disc disease of the
cervical spine and degenerative AC arthritis were preexisting nonindustrial conditions. Based on
his objective neurological findings, he stated that the limitation of motion of the shoulder
abduction and elevation was voluntary inhibition in view of the fact that appellant had full
internal and external rotation that was done easily both actively and passively. Dr. Bleecker
further stated that his shoulder complaints were manifestations of the underlying degenerative
condition and that his shoulder symptoms were secondary to his C6-7 radiculopathy and bilateral
carpal tunnel syndrome. He completed a Form OWCP-5c, which indicated that appellant could
work eight hours per day with physical restrictions.

3

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

See Delores C. Ellyett, 41 ECAB 992, 994 (1990); Ruthie M. Evans, 41 ECAB 416, 423-25 (1990).

5

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

5

The Board finds that Dr. Bleecker’s report is detailed, well rationalized and based upon a
complete and accurate history. While he reported a limited range of motion, he did not attribute
it to the accepted factors of appellant’s federal employment in his capacity as a sales and services
associate. Dr. Bleecker’s opinion represents the weight of the medical evidence in finding that
appellant did not sustain an injury causally related to factors of his federal employment.
The medical evidence submitted by appellant in support of his claim is insufficient to
overcome the weight accorded to Dr. Bleecker’s report. Dr. Orlin’s January 27, July 15 and
August 26, 2005 reports found that the physical requirements of appellant’s work duties which
included heavy-duty lifting, pushing and pulling, repetitive reaching above the shoulders caused
the acceleration of his bilateral shoulder tendinitis with subacromial spur formation, AC arthritis
and impingement syndrome. He stated that there was no other history of hobbies, sports or
recreational activities and nonindustrial or industrial injuries that may have contributed to
appellant’s arthritis. The Board has held that an opinion that a condition is causally related to an
employment injury merely because the employee was asymptomatic before an incident but
symptomatic after it is insufficient, without supporting rationale, to establish causal relation.6
Dr. Orlin did not provide sufficient rationale explaining how appellant’s bilateral shoulder
tendinitis or arthritis with impingement were caused or contributed to by his employment duties.
The Board finds that Dr. Orlin’s opinion is not sufficient to establish appellant’s claim.
Dr. Thomas’ February 2, 2005 report stated that appellant’s work duties involved heavy
lifting, pushing and pulling. He made the same diagnoses as reported by Dr. Orlin. Dr. Thomas
opined that appellant’s conditions were caused by 14½ years of repetitive distribution of mail at
or above shoulder level. However, he did provide any medical rationale explaining how the
onset of the diagnosed conditions was caused to appellant’s work duties over the stated period of
time. Dr. Thomas’ February 2, 2005 opinion is insufficient to establish appellant’s claim. In a
September 7, 2005 report, Dr. Thomas noted that appellant sustained bilateral shoulder
impingement syndrome, shoulder disorders of the bursa and tendons and arthritis and tendinitis
of the shoulder. He did not address the issue of whether the diagnosed conditions were caused
by factors of appellant’s employment. The Board finds that Dr. Thomas’ September 7, 2005
report is insufficient to establish appellant’s claim.
The February 25 and March 24, 2005 reports from physicians whose signatures are
illegible have no probative value because the authors cannot be identified as a physician.7 As the
reports lack proper identification, they do not constitute probative medical evidence sufficient to
establish appellant’s burden of proof.8
The Board, therefore, finds that the reports of Drs. Orlin and Thomas and physicians
whose signatures are illegible are not of such probative value that they are sufficient to overcome
the weight accorded to Dr. Bleecker’s June 6, 2006 report. Because appellant has not submitted
6

John F. Glynn, 53 ECAB 562 (2002).

7

Ricky S. Storms, 52 ECAB 349 (2001).

8

Vickey C. Randall, 51 ECAB 357 (2000); Merton J. Sills, 39 ECAB 572 (1988) (Reports not signed by a
physician lack probative value).

6

sufficiently rationalized medical evidence establishing that he sustained an injury while in the
performance of duty, he has failed to meet his burden of proof.
CONCLUSION
The Board finds that appellant has failed to establish that he sustained an injury while in
the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the June 19, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 23, 2007
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.P., Appellant
and
TENNESSEE VALLEY AUTHORITY, FOSSIL
PLANT, New Johnsonville, TN, Employer
__________________________________________

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

Docket No. 11-1648
Issued: March 1, 2012

Case Submitted on the Record

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

JURISDICTION
On July 6, 2011 appellant filed a timely appeal from a March 8, 2011 merit decision of
the Office of Workers’ Compensation Programs (OWCP) denying a schedule award. Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant was entitled to a hearing aid for his accepted hearing loss.
FACTUAL HISTORY
On November 8, 2010 appellant, then a 62-year-old fossil mechanical technician, filed an
occupational disease claim alleging that he sustained hearing loss as a result of daily exposure to
loud noise generated by turbines, boiler feed water pumps, pulverizers and induced draught fans.

1

5 U.S.C. § 8101 et seq.

He became aware of his condition and realized its relationship to his employment on
February 1, 1995.
OWCP received several audiometric records. A March 21, 1974 audiogram exhibited the
following decibel (dBA) losses at 500, 1,000, 2,000 and 3,000 Hertz (Hz): 55, 45, 40 and 35 for
the right ear and -5, -5, -5 and -5 for the left ear. At the same frequency levels, a February 1,
1995 audiogram showed dBA losses of 80, 75, 70 and 80 for the right ear and 15, 10, 15 and 15
for the left ear while a June 22, 2010 audiogram noted losses of 65, 65, 70 and 55 for the right
ear and 20, 15, 5 and 25 for the left ear.
A January 25, 2011 statement of accepted facts detailed that appellant worked for the
employing establishment since 1974 as a laborer, deckhand, machinist apprentice and machinist.
Appellant was routinely exposed to noise produced by jackhammers, steam leaks, motor boats,
turbines, boiler feed water pumps, pulverizers, induced draught fans and air-pressurized impact
wrenches, chipping guns, needle scalers and grinders. He wore hearing protection throughout his
career.
OWCP referred appellant for a second opinion examination to Dr. Phillip B. Klapper, a
Board-certified otolaryngologist. In a February 15, 2011 report, Dr. Klapper reviewed the case
record and pointed out that appellant had normal hearing in his left ear and severe hearing loss in
his right ear before he began his federal employment. Weber and Rinne tuning fork tests
confirmed deficits on the right side. An audiogram obtained on February 15, 2011 exhibited the
following dBA losses at 500, 1,000, 2,000 and 3,000 Hz: 90, 75, 70 and 75 for the right ear and
30, 20, 15 and 35 for the left ear. Dr. Klapper diagnosed left-sided sensorineural hearing loss
due to industrial noise exposure and right-sided conductive hearing loss due to otosclerosis. He
recommended hearing amplification for the left ear.
OWCP’s medical adviser reviewed Dr. Klapper’s report on February 22, 2011 and agreed
that appellant’s left-sided hearing loss was the result of occupational noise exposure. Applying
the standard provided by the American Medical Association, Guides to the Evaluation of
Permanent Impairment2 (hereinafter A.M.A., Guides) to the February 15, 2011 audiogram, he
determined that appellant sustained a nonratable monaural impairment. The medical adviser
noted that a hearing aid should not be authorized and identified February 15, 2011 as the date of
maximum medical improvement.
On March 8, 2011 appellant’s claim was accepted by OWCP for left monaural hearing
impairment and denied for right monaural hearing impairment. OWCP further denied a schedule
award on the grounds that the condition was not ratable and found that the weight of the medical
evidence did not support authorization of a hearing aid.
LEGAL PRECEDENT
While OWCP is obligated to pay for treatment of employment-related conditions, the
employee has the burden of establishing that the expenditure is incurred for treatment of the

2

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

2

effects of an employment-related injury or condition.3 Following medical evaluation of a claim,
if the hearing loss is determined to be nonratable for schedule award purposes, other benefits
such as hearing aids may still be payable if any employment-related hearing loss exists.4
ANALYSIS
Appellant contends on appeal only that he is entitled to a hearing aid for his accepted left
ear hearing loss. He does not dispute OWCP’s findings that he was not entitled to a schedule
award for his nonratable left monaural hearing impairment and that he did not sustain a workrelated right monaural hearing impairment.
The Board finds that OWCP properly denied appellant’s request for a hearing aid. As
noted, hearing aids and other medical benefits may still be payable if an employment-related
hearing loss exists. OWCP is obligated to pay for medical treatment of a work-related injury but
the employee has the burden of establishing that the expenditure is incurred for treatment of the
effects of such injury. Proof of causal relationship must include supporting rationalized medical
evidence.5 In the present case, appellant did not meet his burden. In the February 15, 2011
report, Dr. Klapper recommended hearing amplification for the left ear. Nevertheless, this brief
comment did not offer a clear, rationalized explanation of how hearing aids were medically
necessary due to the accepted condition.6 Furthermore, OWCP’s medical adviser specifically
opined that a hearing aid was not warranted. In the absence of rationalized medical opinion
evidence, appellant did not meet his burden of proof to demonstrate entitlement to hearing
amplification.
Appellant may request a schedule award based on evidence of a new exposure or medical
evidence showing progression of an employment-related condition resulting in permanent
impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not sustain a ratable hearing impairment entitling him
to a schedule award. The Board also finds that he was not entitled to hearing aids.

3

Kennett O. Collins, Jr., 55 ECAB 649, 654 (2004).

4

See F.D., Docket No. 10-1175 (issued January 4, 2011); Federal (FECA) Procedure Manual, Part 3 -- Medical,
Medical Services and Supplies, Chapter 3.400.3(d)(2).
5

See Charlie A. Penney, Docket No. 04-1432 (issued October 5, 2004).

6

J.Y., Docket No. 11-971 (issued November 17, 2011).

3

ORDER
IT IS HEREBY ORDERED THAT the March 8, 2011 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: March 1, 2012
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Toledo, OH, Employer
__________________________________________

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

Docket No. 14-518
Issued: August 4, 2014

Case Submitted on the Record

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

JURISDICTION
On January 8, 2014 appellant filed a timely appeal from an October 10, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a three percent impairment of each upper
extremity for which she received schedule awards.
FACTUAL HISTORY
On March 27, 2009 appellant, then a 46-year-old letter carrier, filed an occupational
disease claim alleging that she developed bilateral carpal tunnel syndrome as a result of

1

5 U.S.C. § 8101 et seq.

repetitively grasping and holding bundles of letters in her hands in the performance of duty. She
worked limited duty. OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome.
On September 9, 2009 appellant stopped work and underwent left carpal tunnel release
surgery. On December 9, 2009 she underwent right carpal tunnel release surgery. Appellant
returned to work part time on March 4, 2010 and to work full time on August 10, 2010. On
May 27, 2011 she underwent left carpal tunnel revision surgery. Appellant received disability
compensation. On October 3, 2011 she returned to work part time with restrictions and received
compensation for intermittent disability and medical appointments.
In a March 28, 2012 report, Dr. Martin C. Skie, a Board-certified orthopedic surgeon
with a subspecialty in hand surgery, related that appellant had persisting symptoms of bilateral
carpal tunnel syndrome. He noted that she had carpal tunnel release surgeries on the right and
left hand. Upon examination, Dr. Skie observed a full range of motion of all appellant’s digits
and no swelling or erythema. He reported positive Tinel’s percussion over the median nerve at
her wrist. Dr. Skie recommended that appellant continue work with restrictions. In an attached
work restrictions note, he restricted her to no lifting greater than 20 pounds, no prolonged sorting
and frequent stretching of digits.
On April 9 and November 5, 2012 appellant filed schedule award claims.
By letter dated December 7, 2012, OWCP advised appellant that the evidence submitted
was insufficient to establish her claim. It informed her of the medical evidence required to
establish permanent impairment based on her accepted bilateral carpal tunnel syndrome.
In a March 5, 2013 report, Dr. Skie noted appellant’s diagnosis of bilateral carpal tunnel
syndrome and her history of carpal tunnel release surgeries. He related her complaints that her
symptoms and pain had returned and worsened. Dr. Skie stated that the onset of appellant’s hand
symptoms was directly related to the injury. He reviewed her history and conducted an
examination. Dr. Skie observed no swelling of the wrist and hand and no ecchymosis or
erythema. Tinel’s sign of the wrist was positive.
On May 8, 2013 OWCP referred appellant, together with the statement of accepted facts
and the medical record, to Dr. Manhal Ghanma, a Board-certified orthopedic surgeon, for a
second opinion examination. In a June 3, 2013 report, Dr. Ghanma reviewed her medical record
and the statement of accepted facts. He described appellant’s medical history and noted that a
June 13, 2011 electromyography (EMG) study of the right upper extremity demonstrated
evidence of mild right carpal tunnel syndrome. Dr. Ghanma reported a QuickDASH score of 58
of the right upper extremity and 63 of the left upper extremity. On examination, he observed full
range of motion of the right wrist and good finger abduction and adduction bilaterally.
Dr. Ghanma also reported a five millimeter (mm) two-point discrimination in the fingers of the
right hand and five mm two-point discrimination in the fingers of the left hand. He stated that
appellant’s right carpal tunnel syndrome had not resolved as the June 13, 2011 diagnostic report
revealed evidence of mild carpal tunnel syndrome. Dr. Ghanma reported that there was
insufficient evidence to support left carpal tunnel syndrome. He noted that appellant had
subjective complaints consistent with left carpal tunnel syndrome even though she underwent

2

carpal tunnel revision surgery. Dr. Ghanma found that she could continue to work without
restrictions. He reported a date of maximum medical improvement of July 19, 2011.
Utilizing the sixth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (A.M.A., Guides), Dr. Ghanma opined that appellant had three percent
impairment to both upper extremities. For right carpal tunnel syndrome, he determined that she
had a class 1 diagnosis for carpal tunnel syndrome according to Table 15-23.2 Dr. Ghanma noted
grade modifiers 1 for test findings, history and physical examination findings. He stated that for
a QuickDASH score of 58 the A.M.A., Guides recommended increasing impairment from the
default setting of two to three percent right upper extremity impairment. Dr. Ghanma related
that similar results were obtained when rating impairment for left carpal tunnel syndrome. He
found that appellant had a default impairment of two percent. Based on the QuickDASH score
of 63 for the left, appellant’s rating increased to three percent upper extremity impairment for the
left upper extremity.
On June 27, 2013 OWCP referred the medical record to Dr. Morley Slutsky, Boardcertified in occupational medicine and a medical adviser for review. In a July 2, 2013 report,
Dr. Slutsky agreed with Dr. Ghanma’s ratings that appellant had three percent impairment of the
right and left upper extremities. Utilizing Table 15-23 of the sixth edition of the A.M.A.,
Guides, for each upper extremity, he reported a grade modifier 1 for history, 1 for test findings
based on nerve diagnostic testing and 0 for physical findings based on significant objective
sensory and motor findings. Dr. Slutsky also noted a QuickDASH score of 58 and 63 percent,
which was moderate. He determined that the average of the three grade modifiers rounded to the
nearest integer equaled 1, which provided a default rating of two percent. Dr. Slutsky increased
the rating by 1 for appellant’s QuickDASH score for a final upper extremity impairment of three
percent for each upper extremity. He noted a date of maximum medical improvement of June 3,
2013, the date of Dr. Ghanma’s second opinion report.
In a September 3, 2013 report, Dr. Skie noted appellant’s complaints of bilateral hand
pain, cramping and spasms beginning February 20, 2009 and her history of bilateral carpal tunnel
release surgery and left carpal tunnel revision surgery. He reviewed her history and conducted
an examination. Dr. Skie diagnosed chronic bilateral carpal tunnel syndrome and recommended
an EMG and nerve conduction velocity study (NCV) examination. He did not address
permanent impairment.
In a September 13, 2013 report, Dr. Tallat Rizk, Board-certified in physical medicine and
rehabilitation, reviewed appellant’s history and noted her complaints of chronic bilateral carpal
tunnel syndrome. He provided EMG/NCV test findings of the right and left upper extremities
and opined that she had very mild carpal tunnel syndrome on both sides.
On October 10, 2013 OWCP granted appellant schedule awards for three percent
impairment of the right and left upper extremities. It advised her that a schedule award was not
payable concurrently with wage-loss compensation for the same injury. Because appellant
received disability compensation through September 3, 2013, the starting date of her schedule
award was adjusted to September 4, 2013.
2

A.M.A., Guides 449.

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LEGAL PRECEDENT
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. FECA,
however, does not specify the manner in which the percentage of loss of a member shall be
determined. The method used in making such a determination is a matter that rests within the
sound discretion of OWCP.3 For consistent results and to ensure equal justice, the Board has
authorized the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by OWCP as the appropriate standard for
evaluating schedule losses.4 Effective May 1, 2009, OWCP adopted the sixth edition of the
A.M.A., Guides as the appropriate edition for all awards issued after that date.5
The sixth edition of the A.M.A., Guides provide a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).6 In determining impairment for the upper extremities under the sixth edition
of the A.M.A., Guides, an evaluator identifies the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE) and Clinical Studies (GMCS).7 The net adjustment formula is
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).8
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.9 In
Table 15-23, grade modifier levels (ranging from 0 to 4) are described for the categories test
findings, history and physical findings. The grade modifiers are averaged to arrive at the
appropriate overall grade modifier level and to identify a default rating value. The default rating
value may be modified up or down by one percent based on functional scale, an assessment of
impact on daily living activities.10
ANALYSIS
OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome. On April 9 and
November 5, 2013 appellant filed a claim for a schedule award. The Board finds that the
3

Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986).

4

R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB 143 (2000); see also 20 C.F.R. § 10.404.

5

Federal (FECA) Procedure Manual, Part 3 -- Claims, Schedule Awards, Chapter 3.700, Exhibit 1
(January 9, 2010).
6

A.M.A., Guides 3, 6 (6th ed. 2008).

7

Id. at 383-419.

8

Id. at 411.

9

Id. at 449, Table 15-23.

10

A survey completed by a given claimant, known by the name QuickDASH, may be used to determine the
function scale score. A.M.A., Guides 448-49. See C.P., Docket No. 13-1293 (issued November 20, 2013).

4

medical evidence of record establishes no more than three percent impairment for her right and
left upper extremity.
In support of her claim, appellant submitted various reports by Drs. Skie and Rizk
regarding her treatment for bilateral carpal tunnel syndrome. They related her complaints of
hand pain, tingling and cramping and provided findings on examination. Neither physician,
however, provided any impairment rating of appellant’s accepted bilateral carpal tunnel
syndrome. Accordingly, these reports are insufficient to establish her schedule award claim.
OWCP referred appellant to Dr. Ghanma for a second opinion examination. In a May 8,
2013 report, Dr. Ghanma reviewed her history of injury and conducted an examination. He
opined that appellant had a three percent impairment of each upper extremity. Dr. Ghanma
utilized Table 15-23 of the sixth edition of the A.M.A., Guides to determine that she had class 1
diagnosis and grade modifiers 1 for test findings, history and physical examination for her right
carpal tunnel syndrome. He noted that, for a QuickDASH score of 58, the A.M.A., Guides
recommended increasing impairment from two to three percent right upper extremity
impairment. Dr. Ghanma provided similar results for appellant’s left carpal tunnel syndrome and
noted a QuickDASH score of 63, which also increased her impairment rating to three percent
impairment for the left upper extremity.
In a July 2, 2013 report, Dr. Slutsky, the district medical adviser, reviewed the record.
He agreed with Dr. Ghanma’s rating of three percent impairment to each upper extremity.
Utilizing Table 15-23 of the sixth edition of the A.M.A., Guides, Dr. Slutsky reported a grade
modifier 1 for history, 1 for test findings based on nerve diagnostic testing and 0 for physical
findings based on significant objective sensory and motor findings. He also noted a QuickDASH
score of 58 and 63 percent. Dr. Slutsky determined that the average of the three grade modifiers
rounded to the nearest integer equaled 1, which provided a default rating of two percent. He
increased the rating by 1 for appellant’s QuickDASH score for a final upper extremity
impairment of three percent for each upper extremity. Dr. Slutsky noted a date of maximum
medical improvement of June 3, 2013, the date of Dr. Ghanma’s second opinion report.
The Board finds that the medical evidence establishes that appellant has a three percent
impairment of each upper extremity. The medical adviser properly applied the sixth edition of
the A.M.A., Guides to Dr. Ghanma’s clinical findings. Dr. Slutsky reviewed the medical
evidence and determined that appellant had three percent impairment of each upper extremity.
His rating is in accordance with the protocols pertaining to upper extremity impairment
determinations and represents the weight of medical opinion. Appellant did not submit any
medical evidence that establishes greater impairment.
On appeal, appellant requests that the date of her schedule award be changed to June 4,
2013, the date of maximum medical improvement, instead of September 4, 2013. The period
covered by a schedule award generally commences on the date that the employee reaches
maximum medical improvement from the residuals of the employment injury.11 The Board has
also noted a reluctance to find a date of maximum improvement, which is retroactive to the
11

Adela Hernandez-Piris, 35 ECAB 839 (1984).

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award, as retroactive awards often result in payment of less compensation benefits.12 As OWCP
explained, a schedule award is payable consecutively to but not concurrently with wage loss for
the same injury.13 Appellant received disability compensation for a medical appointment on
September 3, 2013. Accordingly, the Board finds that OWCP properly commenced the schedule
award as of September 4, 2013.14
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that she sustained more than a three
percent impairment of each upper extremity.

12

See C.W., Docket No. 13-1501 (issued November 15, 2013).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.4(a)(3) (February 2013).
14

The Board also notes that the effective date of the pay rate was May 26, 2011 and the effective date of the last
cost-of-living adjustment increase to the pay rate was March 1, 2013.

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ORDER
IT IS HEREBY ORDERED THAT the October 10, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 4, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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