United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.H., Appellant
and
DEPARTMENT OF THE ARMY, ANNISTON
ARMY DEPOT, Anniston, AL, Employer
__________________________________________

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

Docket No. 09-1389
Issued: March 16, 2010

Case Submitted on the Record

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

JURISDICTION
On April 5, 2009 appellant filed a timely appeal from the June 13, 2008 and January 8,
2009 merit decisions of the Office of Workers’ Compensation Programs, denying his recurrence
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this appeal.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
recurrence of his medical condition on or subsequent to April 10, 2008 that was causally related
to his accepted injury.
FACTUAL HISTORY
On July 30, 2007 appellant, a 54-year-old firefighter, filed a traumatic injury claim
alleging that he strained his upper back and experienced pain in his right shoulder blade, down
his upper spine on July 28, 2007, while lifting a 100-pound block. He did not stop working.
Appellant’s claim was administratively accepted but not fully developed by the Office.

Appellant was treated by Dr. David E. Wade, a chiropractor. The record contains
Dr. Wade’s physician’s notes and appointment slips for the period August 2 through
January 3, 2008. On September 4, 2007 appellant was released to return to work with no
restrictions. On August 21, 2007 Dr. Wade noted right shoulder pain to the mid back when
lifting.
The record contains an October 5, 2007 clinic pass, which reflected that appellant was
treated for back pain related to a work injury that occurred on that date.
Appellant submitted a November 21, 2007 report from Dr. Thomas A.S. Wilson, Jr., a
Board-certified neurological surgeon, who stated that appellant had sustained a series of injuries
to his thoracic and lumbar spine over the previous 18 months. Noting that his original injury
occurred on July 7, 2007, Dr. Wilson indicated that appellant had experienced an acute “tearing”
of his mid back on October 16, 2007 while picking up a 100-pound basket. Dr. Wilson reported
the results of a magnetic resonance imaging (MRI) scan performed prior to appellant’s “most
recent injury.” The MRI scan revealed disc protrusion at T11-12; degenerative changes at L5,
with questionable slight listhesis at L4/5 and evidence of rotary scoliosis.
Appellant submitted a January 3, 2008 report from Dr. Pete McManus, a chiropractor,
reflecting the results of computerized mechanical isometric muscle testing with torque curves.
Testing included arm, floor and leg lifts, representing critical job tasks. Based upon the results
of the testing, Dr. McManus recommended that appellant be limited to lifting 20 pounds
occasionally and 5 pounds continuously and that he be permitted to alternate between sitting and
standing. The record contains a February 26, 2008 report of a computerized tomography scan of
the thoracic spine reflecting a T11-12 left-sided disc bulge into the foramen.
On March 5, 2008 Dr. Wilson discussed the results of appellant’s thoracic study, which
revealed diffuse degenerative changes, but no significant disc herniation or nerve root
encroachment. He stated that he did not see anything further that could be done for appellant’s
thoracic disease, “as it represente[d] a strain in the setting of diffuse degenerative arthritis.”
Dr. Wilson recommended trying some facet joint blocks with respect to appellant’s lumbar
disease.
On April 28, 2008 appellant submitted a notice of recurrence (Form CA-2a) as of
April 10, 2008 requesting medical treatment only. He stated that he had never completely
recovered from his original July 28, 2007 injury and that his current symptoms were identical to
those he experienced at that time.
In a statement dated April 10, 2008, appellant indicated that he had been experiencing
pain in his neck, back and shoulder on April 9, 2008. While working with his hands and arms on
April 10, 2008, he felt a sharp pain, starting at the base of his neck, going up behind his head and
down to the right shoulder. Appellant stated that his mid back continued to hurt and throb. In an
undated statement, he indicated that working in an uncomfortable chair for 10 to 12 hours per
day, six days per week, aggravated his back condition.
In addition to previously submitted medical notes, appellant submitted notes dated
July 30, 2007 from Dr. Wade, who stated that appellant had sustained an injury at work on

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July 28, 2007 while lifting boxes in an awkward position. Dr. Wade noted that appellant had
shoulder and mid-back pain, as well as decreased range of motion. He diagnosed cervical strain.
In an April 22, 2008 report, Dr. Wade indicated that appellant wanted to reopen his claim
to have his back “looked at.” Appellant reported right-sided pain, tingling and numbness.
Dr. Wade reported decreased range of motion in the right shoulder, neck and upper back. In a
separate report of the same date, he provided a history of injury, stating that appellant felt a strain
in his right shoulder, mid back and neck on July 28, 2007 while lifting an object at work.
Dr. Wade indicated that appellant’s neck, shoulder and arm pain had progressively increased
since the July 28, 2007 incident. On examination, he found “spasm from segmental fraction
(motion asymmetry), palpable tenderness along the right cervical thoracic region.” Dr. Wade
diagnosed cervical subluxation, mechanical and right shoulder spasm, indicating by placing a
checkmark in the “yes” box that the diagnosed condition was caused by employment activity.
He noted a disc herniation a T12, diagnosed by MRI scan, which had occurred at work in
May 2006. Dr. Wade stated that he had released appellant from treatment related to his original
July 28, 2007 injury on November 28, 2007. On the date of examination, he was experiencing
pain, which was exacerbated by shoulder and arm movements.
The record contains a report of a July 30, 2007 radiograph of the cervical spine reflecting
rotational malposition and an August 21, 2007 electromyogram report.
In a letter dated May 7, 2008, the Office informed appellant that the evidence submitted
was insufficient to establish that he had experienced a traumatic injury on July 28, 2007 and that
even if the Office accepted that he experienced a compensable injury, the evidence was
insufficient to establish that his current condition was causally related to that injury. It advised
him to submit a physician’s narrative report with a diagnosis, test results and a rationalized
opinion explaining how his current condition was related to the July 28, 2007 incident.1
Appellant was specifically asked whether he had sustained any intervening injuries to his mid
back since July 28, 2007; whether he sustained a new back injury on October 16, 2007 and why
he was seen in the base clinic on January 3, 2008.
In an undated statement, appellant indicated that he had no intervening injuries since
July 28, 2007; that no medical physician had told him that the October 16, 2007 injury was
related to his current condition; that he was unaware of any injury or new claim on January 3,
2008 and that he was enduring the same symptoms he experienced following the July 28, 2007
injury.
By decision dated June 13, 2008, the Office denied appellant’s claim on the grounds that
the medical evidence was insufficient to show that his claimed medical condition was due to the
established work-related event. It stated that the medical evidence did not contain an x-ray with
a diagnosed spinal subluxation.

1

The Office informed appellant that, at the time his initial claim was received, it appeared to be a minor injury,
with no time lost and, therefore, payment of a minimal amount of medical expenses was approved. Since a
recurrence claim had been submitted, the Office planned to develop the claim to determine whether appellant had
experienced a work-related injury on July 28, 2007.

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The record contains a January 3, 2008 clinic pass reflecting that appellant was seen in the
clinic for back pain due to a job-related injury, which allegedly occurred on that date. The
record also contains appointment slips from Dr. Wade from September 17 through December 18,
2007 and chiropractic notes from May 17, 2004 through April 21, 2008.
In a May 13, 2008 report, Dr. Wade provided a history of appellant’s back condition,
stating that he had experienced continuing back pain since May 19, 2006 “while swinging a
hammer and causing a strain injury while at work.” In November 2006, appellant reinjured his
back while straining to rise from a low chair, resulting in radiating symptoms into the groin, with
anterior thigh pain. He injured his upper back, neck on the job on July 27, 2007, causing
vertebral subluxation. An October 4, 2007 MRI scan revealed a small herniation at T12, which
Dr. Wade opined was due to the May 19, 2006 injury. He opined that appellant’s symptoms of
stiffness and various pains related to the T11-12 disc region and the original injury and were
complicated by the progressive, degenerative condition of his spine. On April 22, 2008 appellant
reported that he sustained an aggravation of his upper back subluxation injury while bending
over at his workstation. Dr. Wade opined that the degenerative nature of appellant’s spine,
coupled with the disc damage from the May 19, 2006 injury, caused antalgic changes in motion
and progressive stiffness, with resulting further decreases in motion.
On July 11, 2008 appellant requested an oral hearing, which was later converted to a
review of the written record.
Appellant submitted a September 30, 2008 report from Dr. Tamara Ann McIntosh, a
Board-certified family practitioner, who noted that she had been appellant’s primary care
physician since September 2002. Dr. McIntosh related the history of injury, as reported by
appellant. On May 18, 2006 appellant felt a sudden sharp pain in his mid back while swinging a
sledgehammer at work. On November 16, 2006 he experienced a sudden pain in his low back
when he strained to get out of a chair. A myelogram of the thoracic spine dated February 26,
2008 showed a T11-12 left-sided disc bulge into the foramen and multiple level osteophytes. An
October 4, 2007 MRI scan revealed moderate to severe facet degenerative changes and mild
degenerative bulging discs in his lumbar spine. Dr. McIntosh opined that the May 16 and
November 16, 2006 injuries directly caused the T11-12 disc herniation and exacerbation of
degenerative disc disease in both the thoracic and lumbar spine. Due to appellant’s current
condition, he would be unable to perform the duties of his position. Dr. McIntosh noted that
appellant had never complained to her about his back until well after the injury and she had no
notations of back pain in her records until October 9, 2007, when she received copies of lumbar
and thoracic spine MRI scan performed by his chiropractor.
On October 31, 2008 Dr. McIntosh reported that in July 2007 appellant injured his upper
back, neck and shoulder while picking up a heavy breechblock, noting that he was standing in an
awkward position when trying to move it. Later, when he went home, he had pain in his neck
and shoulders over the next several days. Dr. McIntosh stated that, according to his
neurosurgeon, Dr. Wilson, appellant had diffuse degenerative arthritis in his neck, which was
“likely aggravated by the injury noted above.” She indicated that he also had work-related
injuries and pain due to a T11-12 disc herniation, with exacerbation of degenerative disc disease
in both the thoracic and lumbar spine.

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In an October 27, 2008 report, Dr. Wilson stated that appellant was experiencing neck
and back pain due to a July 2007 work injury. He noted that a cervical MRI scan revealed
diffuse degenerative arthritis, but no significant disc herniation or spinal cord depression. A
thoracic study demonstrated similar diffuse nonsurgical degenerative changes.
By decision dated January 8, 2009, an Office hearing representative affirmed in part and
reversed in part, the Office’s June 13, 2008 decision. The representative found that the medical
evidence established that appellant had sustained a traumatic injury in the performance of duty
and that his claim should be accepted for cervical subluxation, resolved no later than
November 28, 2007, when he was discharged by Dr. Wade. The hearing representative denied
appellant’s recurrence claim, on the grounds that the evidence failed to establish that his ongoing
spine condition was causally related to the accepted incident.
LEGAL PRECEDENT
Appellant has the burden of establishing that he sustained a recurrence of a medical
condition2 that is causally related to his accepted employment injury. To meet his burden, he
must furnish medical evidence from a physician who, on the basis of a complete and accurate
factual and medical history, concludes that the condition is causally related to the employment
injury and supports that conclusion with sound medical rationale.3 Where no such rationale is
present, the medical evidence is of diminished probative value.4
Office regulations define a recurrence of medical condition as the documented need for
further medical treatment after release from treatment of the accepted condition when there is no
work stoppage. Continued treatment for the original condition is not considered a renewed need
for medical care, nor is examination without treatment.5
The Office’s procedure manual provides that, after 90 days of release from medical care
(based on the physician’s statement or instruction to return PRN (as needed) or computed by the
claims examiner from the date of last examination), a claimant is responsible for submitting an
attending physician’s report which contains a description of the objective findings and supports
causal relationship between the claimant’s current condition and the previously accepted work
injury.6

2

“Recurrence of medical condition” means a documented need for further medical treatment after release from
treatment for the accepted condition or injury when there is no accompanying work stoppage. Continuous treatment
for the original condition or injury is not considered a need for further medical treatment after release from
treatment, nor is an examination without treatment. 20 C.F.R. § 10.5(y) (2002).
3

Ronald A. Eldridge, 53 ECAB 218 (2001).

4

Mary A. Ceglia, 55 ECAB 626 (2004); Albert C. Brown, 52 ECAB 152 (2000).

5

20 C.F.R. § 10.5(y).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5(b) (September 2003).

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ANALYSIS
Appellant has not met his burden of proof to establish that he sustained a recurrence of a
medical condition on or subsequent to April 10, 2008. The Office hearing representative
directed the Office to accept appellant’s July 30, 2007 traumatic injury claim for cervical
subluxation, which it determined had resolved by November 28, 2007. Appellant has alleged
that, on April 10, 2008, he felt a sharp pain, starting at the base of his neck, going up behind his
head and down to the right shoulder. He asserted that he never completely recovered from his
original July 28, 2007 injury and that his current symptoms were identical to those he
experienced at that time. However, appellant has failed to produce any rationalized medical
opinion evidence establishing that he required further medical treatment for a continuing
employment-related condition.
The record reflects that Dr. Wade discharged appellant from treatment related to his
original July 28, 2007 injury on November 28, 2007. There is no evidence of record that
appellant was treated for the accepted cervical subluxation after November 28, 2007. Although
appellant was treated for other diagnosed neck, shoulder and spinal conditions subsequent to his
discharge by Dr. Wade, he has failed to establish that these conditions were causally related to
the July 28, 2007 incident.7 He had the burden of submitting sufficient medical evidence to
document the need for further medical treatment.8 Appellant did not submit the evidence
required and thus failed to establish a need for continuing medical treatment.9
Dr. Wade’s reports do not establish that appellant’s current spinal and shoulder
conditions were causally related to the accepted employment injury. On April 22, 2008 he
reported decreased range of motion in the right shoulder, neck and upper back. Dr. Wade
provided a history of injury, stating that appellant felt a strain in his right shoulder, mid back and
neck on July 28, 2007 while lifting an object at work. On examination, he found “spasm from
segmental fraction (motion asymmetry), palpable tenderness along the right cervical thoracic
region.” Dr. Wade diagnosed cervical subluxation, mechanical and right shoulder spasm and
noted a disc herniation at T12, diagnosed by MRI scan, which had occurred at work in
May 2006. He stated that he had released appellant from treatment related to her original
July 28, 2007 injury on November 28, 2007. On the date of Dr. Wade’s examination, appellant
was experiencing pain, which Dr. Wade stated was exacerbated by shoulder and arm movements.
He indicated by placing a checkmark in the “yes” box that the diagnosed condition was caused
by employment activity. The Board has found that a report that addresses causal relationship
with a checkmark, without a medical rationale, is of diminished probative value and is
insufficient to establish causal relationship.10 Dr. Wade did not explain how or why appellant
would be experiencing pain and spasms related to his July 28, 2007 injury, particularly, since he
had been discharged from treatment four months earlier. Moreover, it is unclear whether
Dr. Wade’s diagnosis of cervical subluxation was current or whether it referred to the original
7

Id.

8

Supra note 5.

9

See J.F., 58 ECAB 124 (2006).

10

See Calvin E. King, Jr., 51 ECAB 394 (2000); see also Frederick E. Howard, Jr., 41 ECAB 843 (1990).

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diagnosis, prior to his discharge. The Board notes that the term “physician” under the Federal
Employees’ Compensation Act includes chiropractors only to the extent that their reimbursable
services are limited to treatment consisting of manual manipulation of the spine to correct a
subluxation as demonstrated by x-ray to exist.11 Although the Office correctly accepted
Dr. Wade as a “physician” under the Act for the purpose of diagnosing and treating a
subluxation, his opinion regarding the diagnosis or cause of any other conditions is of limited
probative value.
On May 13, 2008 Dr. Wade stated that appellant had experienced continuing back pain
since May 19, 2006 while swinging a hammer and causing a herniated disc. He noted that
appellant had reinjured his back in November 2006 and July 27, 2007, causing vertebral
subluxation. Dr. Wade opined that the degenerative nature of appellant’s spine, coupled with the
disc damage from the May 19, 2006 injury, caused antalgic changes in motion and progressive
stiffness, with resulting further decreases in motion. As he did not relate appellant’s current
condition to the July 28, 2007 injury or the accepted cervical subluxation, his report does not
support appellant’s claim.
Dr. Wilson’s reports are insufficient to establish a causal relationship between the
accepted injury and appellant’s current condition. On November 21, 2007 he stated that
appellant had sustained a series of injuries to his thoracic and lumbar spine over the previous 18
months. Noting that appellant’s original injury occurred on July 7, 2007, Dr. Wilson indicated
that appellant had experienced an acute “tearing” of his mid back on October 16, 2007 while
picking up a 100-pound basket. Dr. Wilson reported that an MRI scan revealed disc protrusion
at T11-12; degenerative changes at L5, with questionable slight listhesis at L4/5 and evidence of
rotary scoliosis. On March 5, 2008 he discussed the results of appellant’s thoracic study, which
revealed diffuse degenerative changes, but no significant disc herniation or nerve root
encroachment. Dr. Wilson stated that he did not see anything further that could be done for
appellant’s thoracic disease, “as it represente[d] a strain in the setting of diffuse degenerative
arthritis.” As neither report contains an opinion as to the cause of appellant’s condition, they are
of limited probative value.12 On October 27, 2008 Dr. Wilson stated that appellant was
experiencing neck and back pain due to a July 2007 work injury. He noted that a cervical MRI
scan revealed diffuse degenerative arthritis, but no significant disc herniation or spinal cord
depression. A thoracic study demonstrated similar diffuse nonsurgical degenerative changes.
Although Dr. Wilson stated that appellant’s neck and back pain was due to “a July 2007 work
injury,” he did not provide a history of injury or explain how the accepted incident could be
responsible for his current condition. Moreover, he did not offer a diagnosis, which he
11

A medical report may not be considered as probative medical evidence if there is no indication that the person
completing the report qualifies as a physician under section 8101(2) of the Act, which provides: “(2) ‘physician’
includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic
practitioners within the scope of their practice as defined by State law. The term ‘physician’ includes chiropractors
only to the extent that their reimbursable services are limited to treatment consisting of manual manipulation of the
spine to correct a subluxation as demonstrated by x-ray to exist and subject to regulation by the secretary.” See
Merton J. Sills, 39 ECAB 572 (1988).
12

The Board has long held that medical evidence which does not offer an opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship. A.D., 58 ECAB 149 (2006);
Michael E. Smith, 50 ECAB 313 (1999).

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definitively relates to the accepted injury, rather than to a previous or intervening injury.13
Accordingly, Dr. Wilson’s reports are of diminished probative value.
Dr. McManus’ reports lack probative value on several counts. Neither report contains
examination findings; nor is there any indication that he ever examined appellant’s neck or spine.
In fact, he acknowledged that he was unaware of his back condition until October 9, 2007, when
she received copies of lumbar and thoracic spine MRI scans. Dr. McManus’ opinion that
appellant’s degenerative arthritis was “likely aggravated” by the July 2007 injury is speculative
at best and is unsupported by rationalized medical evidence explaining the nature of the
relationship between appellant’s spine and shoulder conditions and the accepted injury.14
The remaining medical of evidence, which includes reports of MRI scans, x-rays and
other reports, which do not contain an opinion as to the cause of appellant’s condition, are of
diminished probative value and are insufficient to establish his claim.15
On appeal, appellant contends that the Office confused the issues and medical evidence to
the point that it lost track of his injuries. The Board finds his contentions to be unsubstantiated
and, for the reasons stated, affirms the Office’s January 8, 2009 decision.
The Board finds that the evidence submitted was insufficient to establish that appellant
sustained a recurrence of a medical condition, as it failed to establish that his current spine and
shoulder conditions were causally related to the accepted July 28, 2007 incident.16
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a recurrence of a medical condition that was causally related to his accepted injury.
13

The Board notes that the record is replete with evidence that appellant sustained intervening injuries between
July 28, 2007 and April 10, 2008, any of which might be responsible for his current condition. For example, an
October 5, 2007 clinic pass reflects that appellant was treated for back pain related to a work injury that occurred on
that date. A January 3, 2008 clinic pass reflects that he was seen in the clinic for back pain due to a job-related
injury, which allegedly occurred on that date. In his own statement, appellant indicated that, while working with his
hands and arms on April 10, 2008, he felt a sharp pain, starting at the base of his neck, going up behind his head and
down to the right shoulder. Dr. Wilson stated that appellant had experienced an acute “tearing” of his mid back on
October 16, 2007 while picking up a 100-pound basket.
14

While the medical opinion of a physician supporting causal relationship does not have to reduce the cause or
etiology of a disease or condition to an absolute certainty, neither can such opinion be speculative or equivocal. The
opinion of a physician supporting causal relationship must be one of reasonable medical certainty that the condition
for which compensation is claimed is causally related to federal employment and such relationship must be
supported with affirmative evidence, explained by medical rationale and be based upon a complete and accurate
medical and factual background of the claimant. See Thomas A. Faber, 50 ECAB 566 (1999); Samuel Senkow,
50 ECAB 370 (1999).
15

See Mary E. Marshall, 56 ECAB 420 (2005).

16

The Board notes that the Office hearing representative addressed the issue of a recurrence of disability, rather
than a recurrence of a medical condition. However, appellant’s CA-2a form clearly states that he was seeking
medical treatment only.

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ORDER
IT IS HEREBY ORDERED THAT the January 8, 2009 and June 13, 2008 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: March 16, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
DEPARTMENT OF THE ARMY, CORPS OF
ENGINEERS, Pittsburgh, PA, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1857
Issued: February 26, 2013

Case Submitted on the Record

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

JURISDICTION
On September 6, 2012 appellant, through his attorney, filed a timely appeal from a
June 7, 2012 schedule award 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 established that he sustained greater than a 17 percent
impairment to the left lower extremity.
On appeal, appellant, through counsel, contends that OWCP erroneously discredited the
impairment rating conducted on behalf of appellant by crediting an examination conducted over
seven years ago and that the current evaluation was more accurate. He also argued in the
alternative that a second opinion examination should be obtained as recommended by an OWCP
medical adviser.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 15, 2002 appellant, then a 44-year-old tow boat pilot, filed a traumatic injury
claim alleging that, on August 14, 2002, while landing a pump, he became entangled in a coil of
cable on the barge deck and fell, thereby sustaining a fracture to his lower leg above the ankle.
On August 15, 2002 he underwent an open reduction-internal fixation left tibia and fibula.
OWCP accepted appellant’s claim for fractures in left tibia and fibula with postoperative
infection. On January 13, 2005 it had surgery to remove the hardware in the left tibia and fibula.
Appellant’s claim for a recurrence on January 13, 2005 was accepted by OWCP on
March 28, 2005.
In a March 22, 2012 report, Dr. Michael J. Platto, a Board-certified physiatrist, conducted
an impairment rating evaluation pursuant to the American Medical Association, Guides to the
Evaluation of Permanent Impairment (6th ed. 2009). He indicated that two models could be used
to perform this evaluation. Dr. Platto stated that, in Table 16-2, the closest diagnosis would be
fracture dislocation of the tibia extra articular on page 502. However, he concluded that his
diagnosis did not fit because appellant not only had a fracture of the tibia, but also of the fibula
and there is a diagnosis listed in Table 16-2 which includes a comminuted distal tibia fibular
fracture. Dr. Platto then noted that, according to page 543, the Range of Motion Impairment
Model is to be used as a stand alone rating when other grids refer one to this section or no other
diagnosis-based sections of this chapter are applicable for impairment rating of condition. He
believed that this was the appropriate way to evaluate appellant’s impairment and therefore used
the range of motion model. Dr. Platto found that appellant had 20 degrees flexion contracture of
the left ankle of neutral, which according to Table 16-22, page 549, would be a severe 30 percent
lower extremity impairment. He also noted that according to Table 16-20, page 549, hind foot
motion impairment inversion of 11 degrees would be a mild two percent lower extremity
impairment. Accordingly, Dr. Platto found that appellant had a 32 percent left lower extremity
impairment rating. He then applied the grade modifiers and determined that they would not alter
his finding. Dr. Platto noted that, in terms of Functional History Adjustment Table 16-6 at page
516 of the A.M.A., Guides, appellant had a mild problem antalgic limp with asymmetric
shortened stance, which corrects with footwear modifications and orthodics, which appellant
does wear. He indicated that this would be a grade modifier 1. In the case of functional history,
Dr. Platto determined that grade adjustment was actually less than the range of motion ICF class,
so no additional impairment was given. Therefore, he concluded that the impairment rating
remained at 32 percent of the left lower extremity.
On April 5, 2012 appellant filed a claim for a schedule award.
On April 10, 2012 OWCP asked its medical adviser to evaluate appellant’s claim with
regard to impairment to the left lower extremity. An OWCP medical adviser responded in a
report dated April 19, 2012. He also noted that the method of calculation could be based on
diagnosis of fractured tibia, which would be appropriate by utilizing Table 16-2, page 502. The
medical adviser noted that the fibula is considered part and parcel of the tibial fracture and
therefore does not require a separate calculation. Accordingly, he indicated that Dr. Platto’s
description of the diagnosis was not appropriate. The medical adviser further noted that
Dr. Platto’s examination was not consistent with the examination of the treating surgeons. He
stated that Dr. Platto’s calculation was based on a 20-degree flexion contracture which was

2

calculated as part of ankle range of motion. The medical adviser found that if appellant had a
20-degree flexion contracture as well as other contractures, he would be nonambulatory and this
would not be consistent with an ambulating patient. He concluded that there were two
alternatives. One could utilize the standard calculation utilizing the diagnosis with moderate
motion deficit or mild motion deficit as defined by the A.M.A., Guides or alternatively, a second
opinion should be obtained prior to consideration of awarding a schedule award because the
range of motions proposed by Dr. Platto did not appear to be consistent with the treating
physician’s examination or with the clinical circumstances and functional levels described. The
medical adviser noted that in the operative note the fracture was described as extra-articular but
low to the joint which means it is not an intra-articular pylong fracture. Therefore, he concluded
that the diagnosis of tibial fracture as listed on page 502 would be the optimal diagnostic
category and not the intra-articular pylong fracture which would not be the diagnosis according
to the operative note described. The medical adviser then calculated appellant’s impairment as
follows. Utilizing page 502, Table 16-2, he found that appellant’s tibial fracture diagnosis class
2, moderate-to-severe deficit on range of motion and/or moderate malignment, class, 1 equaled a
19 percent impairment, default value grade C, with a range of 14 to 25 percent. Utilizing the
adjustment grid or grade modifiers, the medical adviser found that, for Functional History,
appellant had a mild problem with antalgic limp, which corrects with footwear modification for a
grade modifier 1; for Physical Examination Adjustment, Table 16-7 on p. 517, he noted a
moderate motion loss, for grade 2. For Clinical Studies Adjustment, Table 16-8 on page 518, the
medical adviser found a grade modifier 1. Utilizing the net adjustment formula, he noted that the
net adjustment was minus 1. Therefore, utilizing Table 16-2, class 2, the grade is moved from
grade C to grade B for a 17 percent impairment. The medical adviser therefore concluded that
appellant should receive a schedule award for a 17 percent impairment of the left lower
extremity.
On June 7, 2012 OWCP issued a schedule award for a 17 percent lower extremity
impairment.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations2 set forth the
number of weeks of compensation payable to employee 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 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 under the law to all claimants, good administrative
practice necessitates the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The A.M.A., Guides has been adopted by the implementing

2

20 C.F.R. § 10.404.

3

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

3

regulations as the appropriate standard for evaluating schedule losses.4 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.5
The sixth edition requires identifying the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on GMFH, GMPE and GMCS.6 The
net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).7 The sixth
edition of the A.M.A., Guides also provides that range of motion may be selected as an
alternative approach in rating impairment under certain circumstances. A rating that is
calculated using range of motion may not be combined with a diagnosis-based impairment and
stands alone as a rating.8
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the percentage of
impairment using the A.M.A., Guides.9
Section 8123(a) provides that, if there is a disagreement between the physician making
the examination for the United States and the physician of the employee, the Secretary shall
appoint a third physician who shall make an examination.10
ANALYSIS
The Board finds that this case is not in posture for decision.
The sixth edition of the A.M.A., Guides states that diagnosis-based impairment is the
primary method of evaluation for the upper limb and method of choice for calculating
impairment.11 On the other hand, range-of-motion based impairment may be used as a standalone rating when other grids refer the evaluator to this method or when no other diagnosis-based

4

Ronald R. Kraynak, 53 ECAB 130 (2001).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
6

A.M.A., Guides 494-531.

7

Id. at 521.

8

L.B., Docket No. 12-910 (issued October 5, 2012).

9

Federal (FECA) Procedure Manual, supra note 5 at Chapter 2.808.6(d) (August 2002).

10

R.C., Docket No. 12-437 (issued October 23, 2012).

11

A.M.A., Guides, 387, 461.

4

sections are applicable for impairment rating of a condition.12 A range of motion impairment
stands alone and is not combined with diagnosis impairment.13
Both Dr. Platto and the medical adviser contend that there are two ways to determine
appellant’s impairment rating. The medical adviser opined that the best way was by utilizing
Table 16-2. There is a conflict between he and Dr. Platto with regard to the best way to calculate
impairment under this table. Dr. Platto reported that there was a category for fracture of the
tibia, but that this was not appropriate because appellant’s diagnoses included a comminuted
distal fibular fracture. Accordingly, he determined that using this table was not the best way to
evaluate appellant’s impairment and evaluated appellant based on range of motion. The medical
adviser disagreed and opined that applying Table 16-2 was the best way to determine appellant’s
impairment. He noted that the fibula was considered part and parcel of the tibial fracture and
therefore did not require a separate calculation. Therefore, the Board finds that a conflict in
medical opinion exists between Dr. Platto and the medical adviser with regard to the best method
by which to rate appellant’s left lower extremity impairment. The Board has long held that an
OWCP medical adviser may create a conflict in medical opinion with an examining physician.14
Accordingly, the Board remands this case for referral of appellant to an impartial medical
examiner to resolve the conflict between Dr. Platto and the medical adviser with regard to the
proper way to evaluate appellant’s impairment.
With regard to range of motion findings, both physicians appear to indicate that this may
be a possible way to evaluate appellant’s impairment. However, the medical adviser finds that
Dr. Platto’s findings are in conflict with prior examinations. Furthermore, he indicated that if
appellant had a 20-degree flexion contracture, he would not be ambulatory. The medical adviser
recommended a second opinion because the range of motions proposed by Dr. Platto did not
appear to be consistent with earlier reports. He did not examine appellant. Accordingly, remand
is also necessary so that a new physician can conduct an examination and make findings on
physical examination with regard to appellant’s range of motion.
CONCLUSION
The Board finds that this case is not in posture for decision.

12

Id. at 461. See also id. at 387 (“[r]ange of motion is used primarily as a physical examination adjustment factor
and only to determine actual impairment values when a grid permits its use as an option ...”). (Emphasis omitted.)
13

Id. at 405.

14

T.S., Docket No. 08-470 (issued September 24, 2008).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 7, 2012 is set aside and the case is remanded for further
proceedings consistent with this opinion.
Issued: February 26, 2013
Washington, DC

Patricia Howard Fitzgerald, 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
__________________________________________
T.D., 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. 10-2280
Issued: August 16, 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 September 10, 2010 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) June 3, 2010 merit decision denying her occupational disease
claim. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
injury in the performance of duty.
On appeal, counsel argues that the case must be remanded for further development. He
contends that the second opinion physician based his report, upon which the June 3, 2010
decision was based, upon an inaccurate and biased statement of accepted facts.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case was previously before the Board. On May 1, 2007 appellant filed an appeal of
OWCP’s November 8, 2006 decision denying her occupational disease claim. In an order dated
October 3, 2007, the Board remanded the case to OWCP for consolidation of File
Nos. xxxxxx530, xxxxxx154, and xxxxxx860 and a de novo decision on the merits of the claim.2
In a September 16, 2009 decision, the Board set aside OWCP’s November 1, 2007 and May 6,
2008 merit decisions denying her occupational disease claim and remanded the case for further
development of the medical evidence.3 The facts and law contained in the Board’s prior
decisions are incorporated herein by reference. The relevant facts are set forth below.
On December 12, 2005 appellant had filed an occupational disease claim alleging an
aggravation of ulnar nerve damage, carpal tunnel syndrome and complex regional pain syndrome
of her upper extremities due to employment activities. She alleged that her employment position
required her to open heavy doors and repeatedly exposed her to drafty and cold conditions.
In the September 16, 2009 decision, the Board set aside OWCP’s November 1, 2007 and
May 6, 2008 merit decisions denying her occupational disease claim and remanded the case for
further development of the medical evidence. The Board instructed OWCP to prepare a
statement of accepted facts (SOAF) that included a detailed employment history, job descriptions
for each position held, specific functions performed by appellant in each position, and the
restrictions imposed by her treating physicians. OWCP was advised to submit the SOAF to
appellant’s treating physician, or to a second opinion examiner, in order to obtain a rationalized
opinion as to whether her current conditions were causally related to factors of her employment,
either directly or through aggravation, precipitation or acceleration.
The record contains an October 23, 2009 report from Dr. Hanley, who served as second
opinion examiner in File No. xxxxxx741, which was accepted for aggravation of right lateral
epicondylitis. The purpose of the evaluation was to obtain an opinion on whether appellant had
residuals from her May 21, 2008 injury and whether she could return to her date-of-injury job.
Dr. Hanley described the results of his physical examination as follows:
“PHYSICAL EXAMINATION:
In any case, [appellant’s] physical
examination is difficult. She comes to the appointment wearing extensive
2

Docket No. 07-1422 (issued October 3, 2007).

3

Docket No. 08-2147 (issued September 16, 2009). Appellant’s March 26, 1985 traumatic injury claim was
accepted for cervical and left shoulder strain and cubital palsey of the left elbow. (File No. xxxxxx154). OWCP
denied her claim for a recurrence of disability as of January 17, 2005 in a March 7, 2005 decision, which was
affirmed by the Office of Hearings and Review on November 7, 2005. In a May 1, 2007 decision, the Board
affirmed the denial of the recurrence claim. Docket No. 06-1087 (issued May 1, 2007). On September 12, 2003
appellant filed a separate occupational disease claim alleging that she developed right hand, elbow and arm
conditions due to repetitive work activities. Her claim was accepted for lateral epicondylitis of the right elbow.
(File No. xxxxxx860) Appellant’s October 14, 2004 traumatic injury claim alleging that she injured her back and
shoulder while opening a stuck door was denied on January 20, 2005. (File No. xxxxxx142) File Nos. xxxxxx530,
xxxxxx142, xxxxxx154, and xxxxxx860 have been consolidated, with File No. xxxxxx154 serving as the master
file.

2

trappings of disability. [Appellant] has bilateral elbow pads covered by a strip
of stockinette. She has a large, cumbersome appearing brace on the left wrist.
The right ring finger and the left middle finger have a tube of neoprene and
they are held in an extended position. The obvious perceived discomfort on
the part of the patient makes it difficult to do anything more than simply
identify the soreness in the lateral elbow since that is the point of concern for
this exam[ination].”
Dr. Hanley diagnosed “perceived upper extremity discomfort, bilateral, severe.” He
opined that she no longer had residuals of the accepted injury.
OWCP prepared a statement of accepted facts dated October 29, 2009. The SOAF
reflected that appellant filed a timely notice of occupational injury for an aggravation of ulnar
nerve damage, carpal tunnel syndrome and complex regional pain syndrome of her upper
extremities, which she attributed to exposure to cold in her work environment over several years
(October 2003 to January 2005).
Appellant’s work assignment from October 2003 until July 2004 was described as a:
“limited-duty assignment for 4 hours per day, which “consisted of checking
vehicles at the Truck Terminal Annex or Processing & Distribution Center
platforms to insure that their wheels were properly chocked (stabilized). The
position required little use of either arm, and no repetitive activities of the
arms. It did involve spending some time in areas that were chilly during the
winter. The claimant performed this position until July 2004.”
Part-time duties as of July 2004 were described as requiring walking through the building
to observe whether employees and visitors were properly wearing and showing their
identification badges and occasionally delivering light items to offices in the building. The
SOAF indicated that appellant “was only required to go through swinging, unsealed, rubber
doors to the dock two to three times per week and the doors were so easy to open that a slight
draft would open them. This position required little or no use of the upper extremities.”
On October 29, 2009 OWCP referred appellant, together with the statement of accepted
facts, to Dr. Hanley for another second opinion evaluation. Dr. Hanley was asked to determine if
appellant sustained an upper extremity condition, or aggravation of a condition, as a result of her
federal employment (restricted-duty position for four hours per day) from October 2003 to
January 2005 as a result of “limited exposure to cold.” If an aggravation was sustained, he was
to explain, with detailed reasoning, whether it was temporary or permanent. Dr. Hanley was
instructed to rely exclusively on the October 29, 2009 SOAF in forming his opinion, which was
to be supported with rationale.
In a November 30, 2009 report, Dr. Hanley indicated that he had reviewed the
October 29, 2009 SOAF. He stated that he did not perform an evaluation of appellant, as he
examined her in October 2009 and felt that another examination was unnecessary. Dr. Hanley
stated that there was no reason to believe that exposure to cold for a brief period of time would
have led to a change in appellant’s condition. He indicated that “cold can cause injuries” when

3

low enough to damage the nerves, as in frost bite. Dr. Hanley stated that weather change and
damp, cold periods can cause people with degenerative disease or other musculoskeletal
problems to have increased symptomology. He stated:
“There is no reason to believe that[,] if [appellant] did have an aggravation, it
was anything but temporary and lasted only for the period of time with the cold
exposure. No permanent injury occurred, no acceleration of her condition
occurred and there is no reason to believe that any complaints referable to cold
exposure in that time frame [from October 2003 to January 2005] should be
considered an industrial injury.”
By decision dated December 21, 2009, OWCP denied appellant’s claim on the grounds
that the medical evidence did not establish a causal relationship between appellant’s work
activities and her claimed condition.
On December 30, 2009 appellant, through counsel, requested an oral hearing.
At an April 19, 2010 hearing, counsel argued that OWCP had failed to follow the Board’s
instructions to develop the evidence regarding appellant’s job duties between October 2003 and
January 2005. He contended that the statement of accepted facts was inaccurate and leading,
noting that portions were highlighted. As Dr. Hanley’s report was based on an inaccurate SOAF,
it could not constitute the weight of the medical evidence. Counsel requested that the case be
remanded for compliance with the Board’s September 16, 2009 decision.
Appellant submitted a February 16, 2008 statement from Coworker Brian Ulrich, who
indicated that in order to access the receiving docks, he was required to pass through two heavy
black rubber swinging doors. On numerous occasions, Mr. Ulrich observed appellant pass
through those doors. He also witnessed appellant attempting to open an inside door, which had
become “stuck.”
In a letter dated May 2, 2010, appellant stated that she submitted grievances to both her
supervisor, Gerald Gribling, and the union shop steward, but never received responses or copies
of my grievances from either one. One of the resolutions to her grievance was the removal and
replacement of the black rubber industrial doors with lightweight, plastic doors in early 2007.
In a June 3, 2010 decision, OWCP’s hearing representative affirmed the December 21,
2009 decision. He found that Dr. Hanley’s report was well rationalized and based upon a correct
statement of employment factors, as identified in the SOAF. Therefore, the hearing
representative’s opinion was accorded the weight of the medical evidence.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of her claim including the fact that the individual is an employee of the United States
within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged,
and that any disability and/or specific condition for which compensation is claimed are causally

4

related to the employment injury.4 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.5
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 causal relationship, generally, 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.6
The Board has final authority to determine questions of law and fact. Its determinations
are binding upon OWCP and must, of necessity, be so accepted and acted upon by the Director.
Otherwise, there could be no finality of decisions and the whole procedure would be nullified
and questions would remain moot.7
OWCP procedures provide that in the preparation of a statement of accepted facts, the
use of vague or generic terms such as “light,” “heavy,” “undue,” “severe,” “irregular” and
“abnormal” are to be avoided, since they are subject to great differences of interpretation.8
ANALYSIS
The Board finds that this case is not in posture for a decision.
In its September 16, 2009 decision, the Board instructed OWCP to submit a newlyprepared SOAF to appellant’s treating physician, or to a second opinion examiner, in order to
obtain a rationalized opinion as to whether her current conditions were causally related to factors
of her employment. The SOAF was to include a detailed employment history, job descriptions
4

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

5

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

6

Id.

7

See Paul Raymond Kuyoth, 27 ECAB 498, 503-04 (1976); Anthony Greco, 3 ECAB 84, 85 (1949).

8

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Statements of Accepted Facts, Chapter 2.809.4.a(4)
(September 2009).

5

for each position held, specific functions performed by appellant in each position, and the
restrictions imposed by appellant’s treating physicians. On remand, OWCP prepared a SOAF,
which it submitted to Dr. Hanley with instructions to rely exclusively on its content in forming
his opinion. The Board finds that OWCP did not prepare the SOAF in accordance with the
Board’s instructions.
The SOAF did not contain a detailed employment history, job descriptions for each
position held, or the restrictions imposed by appellant’s treating physicians. Although OWCP
identified some specific functions performed by appellant in some positions, its description of
those functions was both selective and subjective, and consisted of vague and generic terms.
Appellant’s work assignment from October 2003 until July 2004 was described as requiring
“little” use of either arm and spending “some” time in “chilly areas” during the winter. The
description of part-time duties as of July 2004 included “occasionally” delivering light items to
offices in the building. The SOAF indicated that appellant “was only required to go through
swinging, unsealed, rubber doors to the dock two to three times per week and the doors were so
easy to open that a slight draft would open them.” The terminology used to describe appellant’s
job duties and employment environment was not specific, but rather was vague and highly
suggestive of a desired response. OWCP procedures provide that vague or generic terms are to
be avoided, since they are subject to great differences of interpretation.9
The record does not reflect that OWCP engaged in any additional discovery in an attempt
to obtain the information requested by the Board. Rather, it relied on information provided by
the employing establishment in a February 24, 2006 letter. As noted above, the Board has final
authority to determine questions of law and fact. Its determinations are binding upon OWCP and
must, of necessity, be so accepted and acted upon by the Director of OWCP.10 The Board finds
that OWCP failed to develop the evidence or to prepare a proper SOAF as directed.
As Dr. Hanley’s October 29, 2009 report was based upon an insufficient SOAF, it cannot
represent the weight of the medical evidence.
For the reasons stated herein, the case will be set aside and remanded to OWCP for
further development in accordance with the Board’s September 16, 2009 decision.
CONCLUSION
The Board finds that this case is not in posture for decision as to whether appellant
sustained an injury in the performance of duty.

9

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Statements of Accepted Facts, Chapter 2.809.4.a(4)
(September 2009) (vague or generic terms such as light, heavy, undue, severe, irregular and abnormal are to be
avoided, since they are subject to great differences of interpretation).
10

See Paul Raymond Kuyoth, 27 ECAB 498, 503-04 (1976), Anthony Greco, supra note 7. See also Frank W.
White, 42 ECAB 693 (1991) (Board’s order in a prior appeal imposed an obligation on the Director to take particular
actions as directed).

6

ORDER
IT IS HEREBY ORDERED THAT the June 3, 2010 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further development consistent
with this decision.
Issued: August 16, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Channahon, IL, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1736
Issued: March 13, 2019

Case Submitted on the Record

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

JURISDICTION
On September 17, 2018 appellant, through counsel, filed a timely appeal from an
August 10, 2018 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.

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a back condition
causally related to the accepted September 21, 2017 employment incident.
FACTUAL HISTORY
On September 25, 2017 appellant, then a 41-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on September 21, 2017 she strained her lower back while on her
route at work. She stopped work on September 26, 2017 and has not returned.
OWCP subsequently received a test form report dated September 26, 2017 from
Dr. Rebecca C. Kuo, an attending Board-certified orthopedic surgeon, who provided appellant’s
diagnoses of other intervertebral disc displacement, lumbar region, low back pain, and
radiculopathy, lumbar region. In a referral slip dated September 26, 2017, Dr. Kuo ordered
physical therapy, three times a week for four weeks and again noted her diagnosis of intervertebral
disc displacement, lumbar region.
In an October 11, 2017 statement, appellant described the September 21, 2017 incident
when, around 2:00 p.m., she finished her route, which involved delivering mail and a great deal of
packages, including a very heavy package. She tried to exit her mail truck, but was unable to do
so and experienced excruciating pain in her lower back that went down to her leg.
Appellant submitted a lumbar spine magnetic resonance imaging (MRI) scan report dated
September 25, 2017 from Dr. Biren M. Patel, a Board-certified diagnostic radiologist. Dr. Patel
provided an impression of left posterolateral annular tears at L2-3 and L3-4 with small foraminal
disc protrusions causing mild left foraminal stenosis.
In a September 26, 2017 letter, Dr. Kuo advised that appellant had been under her care and
that appellant was unable to return to work until released. In an attending physician’s report (Form
CA-20) dated September 28, 2017 and a duty status report (Form CA-17) dated September 28,
2017, she noted the date of injury as September 20, 20173 and September 21, 2017, respectively.
In the Form CA-20 report and Part B of an authorization for examination and/or treatment (Form
CA-16), an attending physician’s report dated September 28, 2017, Dr. Kuo responded “not
applicable” when asked what history of the employment injury or disease did the employee give
to her. In the Form CA-17 report, she related a history of injury that appellant was picking up
boxes/packages which affected her lumbar region. In these reports, Dr. Kuo reiterated her
diagnosis of intervertebral disc displacement, lumbar region and advised that appellant was totally
disabled from work from September 21 to approximately December 14, 2017. In the Form CA20 report, she did not respond to the question of whether the diagnosed condition was caused or
aggravated by the described employment activity. In the Form CA-17 report, Dr. Kuo advised that
the diagnosed condition was due to injury. In the Form CA-16 attending physician’s report, she

3

Dr. Kuo inadvertently listed the date of injury as September 20, 2017 rather than September 21, 2017 in her
September 28, 2017 Form CA-17 report and later submitted reports discussed infra, as she accurately described the
incident, which was subsequently accepted as work related by OWCP.

2

checked a box marked “yes” indicating that appellant’s diagnosis of intervertebral disc
displacement, lumbar region was caused or aggravated by the described employment activity.
OWCP, by development letter dated October 16, 2017, informed appellant that, initially,
her claim was administratively handled to allow payment of a limited amount of medical expenses
as it appeared to be for a minor injury that resulted in minimal or no lost time from work and
continuation of pay was not controverted by the employing establishment. However, appellant’s
claim was now being reopened for adjudication because she had not returned to work in a fulltime capacity. OWCP requested that she respond to a questionnaire describing the immediate
effects of her injury, history of any other injury, and medical treatment received, and the weight
of the package involved in the employment incident. It also requested that appellant submit a
medical report from her attending physician which included a diagnosis, history of the injury,
examination findings, and a rationalized opinion explaining how the employment incident caused
or aggravated her medical condition.
OWCP received additional medical evidence from Dr. Kuo. Dr. Kuo, in a partial report
dated November 2, 2017, indicated that she examined appellant on October 12, 2017 and the
examination was grossly unchanged from the last time. She advised that appellant had an annular
tear and slight herniation at L3-4 for which she recommended an injection. In a referral slip dated
November 2, 2017, Dr. Kuo ordered physical therapy, three times a week for four weeks and again
noted her diagnosis of other intervertebral disc displacement, lumbar region. Subsequently,
physical therapy notes were received.
OWCP also received a progress note dated October 31, 2017 from Trisha E. Durham, a
certified family nurse practitioner, in which she assessed annular tear of the lumbar disc, lumbar
disc herniation with radiculopathy, lumbar foraminal stenosis, low back pain, and myofascial pain.
On November 9, 2017 appellant responded to OWCP’s development questionnaire. She
related that she was sore between the date of injury and the date she first received medical attention.
Appellant’s condition progressively worsened and she sought treatment in the emergency room.
She indicated that the package weighed approximately 68 pounds.
Appellant submitted complete reports dated November 2, 2017, completed by Shara
DuPree4 and Dr. Kuo, which indicated that appellant was examined on September 26 and
October 12, 2017 for follow-up of her severe low back pain which began on September 20, 2017.
She worked as a mail carrier and she had pain after lifting many heavy boxes. Findings on physical
examination were reported. A lumbar spine MRI scan demonstrated a left neural foraminal annular
tear and protrusion causing mild compression in the left neural foramen. The MRI scan also
revealed mild bilateral facet arthropathy at L4-5 with some mild disc bulge causing mild neural
foraminal stenosis. Dr. Kuo assessed left leg radiculopathy, likely L3 radiculopathy secondary to
the foraminal herniation/annular tear at L3-4. She opined that, given the fact that the remaining
disc actually looked fairly healthy, the annular tear was acute in nature and more likely than not
the etiology of appellant’s symptoms. Dr. Kuo also opined that appellant’s symptoms were more
likely than not related to her work-related activities. She recommended a left L3-4 epidural steroid
injection and advised that, if everything failed, appellant may be a candidate for a left L3-4
4

The Board notes that Ms. Dupree’s professional qualifications are not contained in the case record.

3

discectomy. Dr. Kuo advised that appellant would remain off work. In a referral slip dated
November 2, 2017, she again ordered physical therapy, three times a week for four weeks and
diagnosed other intervertebral disc displacement, lumbar region.
On November 24, 2017 appellant filed a claim for compensation (Form CA-7) for leave
used for the period November 6 to 24, 2017.
In support of her claim, appellant submitted a Form CA-17 report dated November 21,
2017 signed by Dr. Kuo who opined that appellant’s diagnosed condition of intervertebral disc
displacement, lumbar region was due to her September 21, 2017 injury and that she had been
advised to not return to work.
By decision dated November 30, 2017, OWCP denied appellant’s traumatic injury claim
and claim for compensation, finding that the medical evidence of record was insufficient to
establish that her diagnosed medical condition was causally related to the accepted September 21,
2017 employment incident. It determined that Dr. Kuo’s opinion on causal relationship was
equivocal.
OWCP thereafter received a November 6, 2017 progress note from Dr. Farooq A. Khan,
Board-certified in anesthesiology and pain medicine. Dr. Khan examined appellant and diagnosed
annular tear of the lumbar disc, lumbar disc herniation with radiculopathy, lumbar foraminal
stenosis, low back pain, and myofascial pain. He performed a lumbar transforaminal steroid
epidural injection.
On December 15, 2017 appellant, through counsel, requested a telephonic hearing before
an OWCP hearing representative from the November 30, 2017 decision.
OWCP subsequently received an unsigned Form CA-17 report dated December 12, 2017.
The report noted clinical findings of intervertebral disc degeneration and that the diagnosed
condition was due to a September 20, 2017 injury. The report also noted that appellant had been
advised to not return to work.
A Form CA-17 report dated January 2, 2018 with an illegible signature noted a history of
injury that on September 20, 2017 appellant lifted boxes, twisted, and felt pain. The report
provided clinical findings of intervertebral disc degeneration and indicated that the diagnosed
condition was due to injury.
In an undated Form CA-17 report, Dr. Kuo noted that appellant had been examined on
February 15, 2018. She reiterated her opinion that appellant’s condition of intervertebral disc
displacement was due to a September 21, 2017 injury. Dr. Kuo also reiterated that she had been
advised to not return to work. In a February 15, 2018 report, she noted appellant’s history of injury
and physical examination and MRI scan test findings during her initial evaluation on
September 26, 2017. Dr. Kuo referenced her prior opinion that appellant’s left neural foraminal
annular tear and protrusion causing mild compression of the left neural foramen was acute in nature
and more likely than not the etiology of her symptoms. She maintained that given her symptoms
started at work on September 20, 2017 she believed that her symptoms which returned at work
were more likely than not the etiology of her symptoms. Given the fact that appellant had not
sought assistance or care for back pain or had a history of back pain, Dr. Kuo did not believe that
4

she had a significant preexisting condition. She related that the only condition noted on the MRI
scan was bilateral facet arthropathy at L4-5, which was not the level she questioned. Dr. Kuo
further related that, even if the annular tear and herniation or disc bulge at L3-4 were preexisting,
they would have been deﬁnitely aggravated by bending, twisting, and lifting at work. She indicated
that appellant was being scheduled for surgery at L2-3 and L3-4, left-sided hemi laminectomies
and partial facetectomy as she was not doing well despite attempted epidural steroid injections and
physical therapy. Dr. Kuo concluded that it was more likely than not that the work-related injury
on September 20, 2017 caused the MRI scan findings and appellant’s symptoms leading to the
need for surgery.
Dr. Khan, in a December 4, 2017 progress note, again reiterated his diagnoses of annular
tear of the lumbar disc, lumbar disc herniation with radiculopathy, lumbar foraminal stenosis, low
back pain, and myofascial pain. He performed another lumbar transforaminal steroid epidural
injection.
In a February 28, 2018 operative report, Dr. Kuo performed lumbar spine surgery. By
decision dated August 10, 2018, an OWCP hearing representative affirmed the November 30,
2017 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 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.6 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.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged.
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.8

5

Supra note 2.

6

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

7

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

8
John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined, respectively).

5

To establish 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 sufficient to establish such causal relationship.9 Rationalized medical opinion
evidence is required to establish causal relationship. The opinion of the physician must be based
on a complete factual and medical background, must be one of reasonable medical certainty, and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a back condition
causally related to the accepted September 21, 2017 employment incident.
Appellant submitted a series of reports from her attending physician, Dr. Kuo, in support
of her claim.11 In Form CA-17 reports dated September 28 and November 21, 2017 and an undated
Form CA-17 report, Dr. Kuo diagnosed intervertebral disc displacement, lumbar region, and
advised that the diagnosed condition was due to an injury on September 21, 2017. She also advised
that appellant could not return to work. However, Dr. Kuo did not offer medical rationale
explaining how the accepted employment incident caused the diagnosed condition and resultant
disability.12 She did not explain how the mechanism of injury would have physiologically caused
the diagnosed condition.13 Thus, Dr. Kuo’s reports are insufficient to establish appellant’s burden
of proof.
Dr. Kuo, in a Form CA-16 attending physician’s report dated September 28, 2017, again
diagnosed intervertebral disc displacement, lumbar region. She checked a box marked “yes”
indicating that the diagnosed condition was caused or aggravated by a described employment
activity. Dr. Kuo removed appellant from work from September 21 through approximately
December 14, 2017. The Board has held that a report that addresses causal relationship with a
checkmark, without medical rationale explaining how the employment incident caused or
aggravated the diagnosed condition, is of diminished probative value and insufficient to establish

9

K.V., Docket No. 18-0723 (issued November 9, 2018).

10

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, supra note 7.

11
The Board notes that it appears that the employing establishment issued appellant a signed authorization for
examination and/or treatment (Form CA-16) authorizing treatment with Dr. Kuo. The Board has held that where an
employing establishment properly executes a CA-16 form, which authorizes medical treatment as a result of an
employee’s claim for an employment-related injury, it creates a contractual obligation which does not involve the
employee directly to pay the cost of the examination or treatment regardless of the action taken on the claim. See 20
C.F.R. §§ 10.300, 10.304; R.W., Docket No. 18-0894 (issued December 4, 2018).
12

See C.F., Docket No. 18-1156 (issued January 22, 2019); T.M., Docket No. 08-0975 (issued February 6, 2009)
(a medical report is of limited probative value on the issue of causal relationship if it contains a conclusion regarding
causal relationship which is unsupported by medical rationale).
13

See C.F., id.; R.R., Docket No. 16-1901 (issued April 17, 2017).

6

causal relationship.14 Dr. Kuo failed to describe the employment activity that caused or aggravated
the diagnosed condition as she responded “not applicable” when asked what history of the
employment injury or disease did appellant give to her. Moreover, she also failed to offer medical
rationale explaining how appellant’s diagnosed lumbar condition and disability status were caused
or aggravated by delivering mail and heavy packages on September 21, 2017. Thus, the Board
finds that Dr. Kuo’s report is insufficient to establish appellant’s burden of proof.15
Dr. Kuo’s November 2, 2017 and February 15, 2018 reports diagnosed left leg
radiculopathy and L3 radiculopathy secondary to a foraminal herniation/annular tear at L3-4. She
opined that it was more likely than not that the September 21, 2017 employment incident, which
involved bending, twisting, and lifting, caused the diagnosed conditions and the need to perform
left-sided hemi laminectomies and a partial facetectomy at L2-3 and L3-4. The Board has held
that medical opinions that are speculative or equivocal in character are of diminished probative
value.16 Further, while Dr. Kuo noted that appellant had no back pain or preexisting back condition
prior to the accepted work injury, an opinion that a condition is causally related to an incident
because the employee was asymptomatic before the injury is insufficient, without adequate
rationale, to establish causal relationship.17 For these reasons, the Board finds that her report is
insufficient to meet appellant’s burden of proof.
Dr. Kuo’s remaining reports are also insufficient to meet appellant’s burden of proof.
Within these additional reports, she again diagnosed lumbar conditions and addressed appellant’s
medical treatment. However, Dr. Kuo failed to provide an opinion concluding that the accepted
September 21, 2017 employment incident caused or aggravated appellant’s diagnosed back
conditions and medical treatment. Thus, these reports are of no probative value on the issue of
causal relationship.18
Dr. Patel’s September 25, 2017 diagnostic test report addressed appellant’s lumbar
conditions, but failed to offer a medical opinion addressing whether the diagnosed conditions were
caused or aggravated by the September 21, 2017 employment incident. The Board has held that
reports of diagnostic tests lack probative value as they do not provide an opinion on causal
relationship between appellant’s employment incident and a diagnosed condition.19

14

See S.G., Docket No. 18-0209 (issued October 4, 2018); R.A., Docket No. 17-1472 (issued December 6, 2017);
Sedi L. Graham, 57 ECAB 494 (2006); Deborah L. Beatty, 54 ECAB 340 (2003).
15

M.C., Docket No. 18-0361 (issued August 15, 2018).

16

See D.R., Docket No. 17-0971 (issued October 5, 2017); D.D., 57 ECAB 734, 738 (2006); Kathy A. Kelley, 55
ECAB 206 (2004).
17

See F.H., Docket No. 18-1238 (issued January 18, 2019); J.R., Docket No. 18-0206 (issued October 15, 2018).

18

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018) (medical
evidence which does not offer an opinion regarding the cause of an employee’s condition is of no probative value on
the issue of causal relationship).
19

See C.F., supra note 13; S.G., Docket No. 17-1054 (issued September 14, 2017).

7

Similarly, Dr. Khan’s November 6, 2017 progress note also fails to establish appellant’s
claim as he diagnosed annular tear of the lumbar disc, lumbar disc herniation with radiculopathy,
lumbar foraminal stenosis, low back pain, and myofascial pain, but did not opine as to the causal
relationship of the diagnosed conditions and the September 21, 2017 employment incident.20
The October 31, 2017 progress note signed by Ms. Durham, a certified family nurse
practitioner, and November 7 and 10, 2017 daily notes and progress note signed by appellant’s
physical therapists have no probative medical value. Neither a nurse practitioner nor a physical
therapist is considered a “physician” as defined under FECA.21 As such, this evidence is also
insufficient to meet appellant’s burden of proof.
The record contains an unsigned Form CA-17 report dated December 12, 2017 and Form
CA-17 report dated January 2, 2018 with an illegible signature diagnosed intervertebral disc
degeneration due to a September 20, 2017 injury. The Board has held that unsigned reports and
reports that bear illegible signatures cannot be considered probative medical evidence because they
lack proper identification.22 Thus, these reports are of no probative value.
The fact that a condition manifests itself during a period of employment is insufficient to
establish causal relationship.23 Temporal relationship alone will not suffice. Entitlement to FECA
benefits may not be based on surmise, conjecture, speculation, or on the employee’s own belief of
a causal relationship.24 The Board finds that the record lacks rationalized medical evidence
establishing causal relationship between the September 21, 2017 employment incident and her
diagnosed lumbar conditions.25 Thus, appellant has not met her burden of proof.26
On appeal, counsel contends that OWCP’s August 10, 2018 decision is contrary to fact and
law. For the foregoing reasons, the Board finds that the medical evidence of record is insufficient
to establish that appellant sustained a back condition causally related to the accepted September 21,
2017 employment incident.

20

See supra note 18.

21
5 U.S.C. § 8101(2) provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law.
See 5 U.S.C. § 8102(2); M.M., Docket No. 16-1617 (issued January 24, 2017); David P. Sawchuk, 57 ECAB 316, 320
n.11 (2006) (lay individuals such as nurses, physician assistants and physical therapists are not competent to render a
medical opinion under FECA). See also Gloria J. McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB
208, 211 (1949) (a medical issue such as causal relationship can only be resolved through the submission of probative
medical evidence from a physician).
22

See D.S., Docket No. 18-0280 (issued June 12, 2018); R.M., 59 ECAB 690 (2008); D.D., 57 ECAB 734 (2006);
Richard J. Charot, 43 ECAB 357 (1991).
23

Daniel O. Vasquez, 57 ECAB 559 (2006).

24

D.D., supra note 22.

25

See J.S., Docket No. 17-0507 (issued August 11, 2017).

26

K.L., Docket No. 18-1029 (issued January 9, 2019).

8

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a back condition
causally related to the accepted September 21, 2017 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the August 10, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 13, 2019
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Birmingham, AL,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 12-1137
Issued: October 19, 2012

Case Submitted on the Record

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

JURISDICTION
On April 30, 2012 appellant, through his representative, filed a timely appeal from the
March 23, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which denied modification of his 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 this case.
ISSUE
The issue is whether OWCP properly identified the date of maximum medical
improvement.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 2, 2007 appellant, a 30-year-old transportation security screener, filed an
occupational injury claim alleging that he sustained a low back and right shoulder strain in the
performance of duty while loading and unloading a detection unit. OWCP accepted his claim for
right rotator cuff sprain, traumatic arthropathy of the right shoulder region and degeneration of
L4-5 and L5-S1 discs. On September 4, 2007 appellant underwent an arthroscopic subacromial
decompression. He returned to full-time light duty on October 25, 2007.
Dr. Richard Steinfeld, a Board-certified orthopedic surgeon and OWCP referral
physician, examined appellant on September 19, 2011. He noted that, following surgery and
physical therapy, appellant had no significant changes over time. Using the fifth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment,
Dr. Steinfeld calculated a 16 percent right upper extremity impairment due to loss of motion.
OWCP asked Dr. Steinfeld to recalculate the impairment using the applicable sixth
edition of the A.M.A., Guides. On November 9, 2011 Dr. Steinfeld explained that the
impairment was 14 percent using Table 15-34, page 475 of the sixth edition.
OWCP’s medical adviser confirmed Dr. Steinfeld’s calculation and noted the date of
maximum medical improvement to be November 9, 2011.
On December 8, 2011 OWCP issued a schedule award for a 14 percent impairment of
appellant’s right upper extremity, entitling him to 43.68 weeks of compensation. The period of
the award began November 9, 2011.
Appellant, through his representative, requested reconsideration. The representative
argued that the date of maximum medical improvement should be November 30, 2009.
In a March 23, 2012 decision, OWCP reviewed the merits of appellant’s case and denied
modification of his schedule award. It explained that November 9, 2011 was the date of the
medical report that provided the calculation of his impairment under the sixth edition. OWCP
reviewed a November 30, 2009 medical report from Dr. Dewey H. Jones, III, the attending
Board-certified orthopedic surgeon, but found that the report contained no discussion of
maximum medical improvement.
LEGAL PRECEDENT
FECA authorizes the payment of schedule awards for the loss or loss of use of specified
members, organs or functions of the body.2 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.3
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404. For impairment ratings calculated on and after May 1, 2009, OWCP should advise any
physician evaluating permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.0808.6.a (January 2010).

2

Only permanent impairment may be rated according to the A.M.A., Guides, and only
after the status of maximum medical improvement is determined. Impairment should not be
considered permanent until a reasonable time has passed for the healing or recovery to occur.
This will depend on the nature of underlying pathology, as the optimal duration for recovery may
vary considerably from days to months. The clinical findings must indicate that September 19,
2011 for the person to have reached maximum medical improvement.4
The period covered by a schedule award commences on the date that the employee
reaches maximum medical improvement from the residuals of the injury. The question of when
maximum medical improvement has been reached is a factual one which depends upon the
medical findings in the record. The determination of such date is to be made in each case upon
the basis of the medical evidence in that case.5 The date of maximum medical improvement is
usually considered to be the date of the medical examination that determined the extent of the
impairment.6
ANALYSIS
Appellant does not dispute the impairment rating he received. He contests the date the
schedule award began. The Board will therefore review whether OWCP properly determined the
date of maximum medical improvement.
On November 30, 2009 Dr. Jones, the attending orthopedic surgeon, addressed whether
appellant’s work activities caused or aggravated any or all of the medical findings regarding his
low back. He did not discuss maximum medical improvement. Dr. Jones gave no indication that
a reasonable time had passed for healing or recovery such that appellant’s low back condition
had now stabilized and was not expected to improve further. The Board therefore finds that this
medical report is immaterial to the issue of maximum medical improvement. OWCP properly
rejected the representative’s argument that the date of maximum medical improvement should be
November 30, 2009.
OWCP instead used November 9, 2011 as the date of maximum medical improvement.
That was the date Dr. Steinfeld, the referral orthopedist, recalculated appellant’s impairment
using the sixth edition of the A.M.A., Guides. It does not appear that he reexamined appellant on
that date. It appears that Dr. Steinfeld simply applied the sixth edition to the findings he made on
September 19, 2011. That was the date he examined appellant for the purpose of evaluating
permanent impairment.
As the Board noted earlier, the date of maximum medical improvement is usually
considered to be the date of the medical examination that determined the extent of the
impairment. That date was September 19, 2011. Further, it was on September 19, 2011 that
Dr. Steinfeld reported appellant had no significant changes over time following surgery and
4

A.M.A., Guides (6th ed. 2009); see Orlando Vivens, 42 ECAB 303 (1991) (a schedule award is not payable until
maximum medical improvement -- meaning that the physical condition of the injured member of the body has
stabilized and will not improve further -- has been reached).
5

Marie J. Born, 27 ECAB 623 (1976).

6

E.g., Richard Larry Enders, 48 ECAB 184 at n.12 (1996) (date of the audiologic examination).

3

physical therapy, an indication that the condition had stabilized. For this reason, the Board will
modify OWCP’s March 23, 2012 decision to find that appellant reached maximum medical
improvement by September 19, 2011 and that the period of his schedule award should begin that
date.7
CONCLUSION
The Board finds that OWCP improperly identified the date of maximum medical
improvement. The date of maximum medical improvement is the date Dr. Steinfeld examined
appellant for the purpose of evaluating permanent impairment, not the date he recalculated the
rating under the sixth edition.
ORDER
IT IS HEREBY ORDERED THAT the March 23, 2012 decision of the Office of
Workers’ Compensation Programs is modified to find maximum medical improvement on
September 19, 2011 and is affirmed as modified.
Issued: October 19, 2012
Washington, DC

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

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

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

7

Regardless of whether the award begins to run on September 19 or November 9, 2011, appellant is entitled to no
more than 43.68 weeks of compensation for the permanent impairment of his right upper extremity.

4