United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
STATION, Jacksonville, FL, Employer
__________________________________________

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

Docket No. 14-583
Issued: October 8, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 10, 2014 appellant filed a timely appeal from an October 21, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his occupational
disease claim and a November 12, 2013 nonmerit decision denying his request for
reconsideration. 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.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish hearing loss in
the performance of duty; and (2) whether OWCP properly denied his request for further merit
review under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 13, 2013 appellant, then a 59-year-old aircraft worker, filed an occupational
disease claim (Form CA-2) alleging that he developed bilateral hearing loss and tinnitus as a
result of noise exposure from his federal employment. He reported that he was exposed to noise
from jet engines, pneumatic tools, diesel engines, rivet guns and shop noise. Appellant first
became aware of his condition on April 17, 2013 and of its relationship to his employment on
April 23, 2013.
In support of his claim, appellant submitted hearing conservation data and audiograms
dated November 21, 2001 to May 1, 2013. His November 21, 2001 reference audiogram
revealed the following decibel (dB) losses at 500, 1,000, 2,000 and 3,000 hertz (Hz): 25, 25, 20
and 30 for the right ear and 25, 20, 15 and 50 for the left ear. A position description for an
aircraft worker was submitted along with an employment history noting appellant’s employment
as an aircraft worker from January 2, 2002 to the present.
By letter dated May 24, 2013, OWCP requested additional factual and medical evidence
from appellant, including information regarding his employment history, when he related his
hearing loss to conditions of employment and all nonoccupational exposure to noise. It also
requested that he provide medical documentation pertaining to any prior treatment he received
for ear or hearing problems.
Appellant responded to OWCP’s questionnaire in an undated narrative statement. He
reported that he first noticed his hearing loss in April 2001 due to ringing in his ears and had no
prior hearing problems. Appellant further stated that he served in the U.S. Navy from 1973 to
1993 and worked for the Federal Government in 2000 and again from January 2002 to the
present. He reported that he worked 40 hours per week and that hearing protection was provided
by mickey mouse ears.
In a May 29, 2013 memorandum, the employing establishment reported that appellant
was employed as an aircraft worker from January 2, 2002 to the present. It noted that past
dosimetry results for the range of jobs performed by him averaged 79 to 85 dB per hour. The
employing establishment also noted that sound level readings for an aircraft worker could reach
upwards of 120 dB.
The employing establishment referred appellant on May 15, 2013 to the Naval Air
Station Hospital for evaluation of appellant’s hearing loss. In a May 22, 2013 medical report,
received by OWCP on August 19, 2013, Dr. Karen M. Allstadt, a physician specializing in
occupational medicine at the Naval Hospital, reported that audiometric testing performed that
same date revealed the following dB losses at 500, 1,000, 2,000 and 3,000 Hz: 20, 20, 15 and 40
for the right ear and 10, 10, 30 and 60 for the left ear. Dr. Allstadt reviewed appellant’s
employment history, exposure to work-related noise and prior audiograms dating back to
November 21, 2001. She diagnosed asymmetrical sensorineural hearing loss and tinnitus, noting
that his current audiogram indicated mild to moderately-severe high frequency sensorineural
hearing loss in the left ear and mild-to-moderate high frequency sensorineural hearing loss in the
right ear. When comparing the current audiometric findings to those at the beginning of
appellant’s employment, Dr. Allstadt noted that the degree of sensorineural hearing loss was in

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excess of what would normally be predicated on the basis of presbycusis. She further stated that,
due to various operations and equipment, appellant could be exposed to noise ranging from 79 to
120 dB, which was sufficient in intensity to cause a change in his hearing. Dr. Allstadt opined
that his sensorineural hearing loss and tinnitus were due to his federal occupational noise
exposure. She explained that even though appellant had hearing loss prior to his federal
employment, his hearing in the high frequencies gradually declined on composite audiometric
history. This decline was bilateral which was typically expected in occupational noise exposure.
In a September 10, 2013 statement of accepted facts (SOAF), OWCP provided a
summary of appellant’s nonfederal employment noting that he served in the Navy from 1973 to
1993 and was employed as a maintenance and construction worker at various private sector jobs
with limited noise exposure. Appellant wore earplugs and mickey mouse ears from 1998 to
2001. It further noted in the year 2000, he worked at the employing establishment and was
exposed to noise from aircraft engines and pneumatic tools and was provided double hearing
protection. Appellant returned to federal employment in January 2002 where he is employed as
an aircraft worker and exposed to noise ranging from 79 to 120 dB. Hearing protection was
provided.
OWCP referred appellant and the case record to Dr. Michael Loper, a Board-certified
otolaryngologist, for a second opinion evaluation on September 26, 2013. It provided an SOAF
addressing appellant’s federal work duties as an aircraft worker and the types of employmentrelated noise he was exposed to. Dr. Loper noted a variation in the SOAF because appellant
reported that his federal employment began in the year 2000. Audiometric testing performed
that same date revealed the following dB losses at 500, 1,000, 2,000 and 3,000 Hz: 20, 25, 15
and 45 for the right ear and 20, 20, 35 and 65 for the left ear. Dr. Loper reported that appellant’s
November 2001 audiogram revealed moderate high frequency loss in the left ear and mild high
frequency loss in the right ear. In comparing the September 26, 2013 audiogram to the reference
audiogram in 2001, he opined that appellant’s hearing loss was not in excess of what would
normally be predicated on the basis of presbycusis because the change in his hearing was only 15
to 20 dB. Dr. Loper further noted that appellant’s workplace exposure was sufficient as to
intensity and duration to cause his sensorineural hearing loss, but that the hearing loss in question
was not caused by employment-related noise exposure because he had preexisting asymmetrical
hearing loss.
By decision dated October 21, 2013, OWCP denied appellant’s claim on the grounds that
the medical evidence did not support that his hearing loss was causally related to workplace
noise exposure.
On October 29, 2013 appellant requested reconsideration of OWCP’s decision arguing
that his tinnitus was not addressed.
By decision dated November 12, 2013, OWCP denied appellant’s request for
reconsideration finding that he neither raised substantive legal questions nor included new and
relevant evidence.

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LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was 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.2 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or occupational disease.3
Appellant has the burden of establishing by weight of the reliable, probative and
substantial evidence that his hearing loss condition was causally related to noise exposure in his
federal employment.4 Neither the condition becoming apparent during a period of employment,
nor the belief of the employee that the hearing loss was causally related to noise exposure in
federal employment, is sufficient to establish causal relationship.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;6 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;7 and (3) medical evidence establishing 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.8
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence. The opinion of the physician must be based on a complete factual and
medical background of the employee, must be one of reasonable 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 employee.9

2

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

3

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

4

Stanley K. Takahaski, 35 ECAB 1065 (1984).

5

See John W. Butler, 39 ECAB 852, 858 (1988).

6

Michael R. Shaffer, 55 ECAB 386 (2004).

7

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

8

Beverly A. Spencer, 55 ECAB 501 (2004).

9

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

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Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter. While the claimant has the burden to establish his or her claim, OWCP also has a
responsibility in the development of the evidence.10
ANALYSIS -- ISSUE 1
It is not disputed that appellant was exposed to hazardous employment-related noise as an
aircraft worker. The issue is whether appellant established that he sustained employment-related
hearing loss due to noise exposure during his federal employment. The Board finds that this case
is not in posture for decision.
The employing establishment referred appellant on May 15, 2013 to the Naval Air
Station Hospital for evaluation of his hearing loss. In a May 22, 2013 medical report,
Dr. Allstadt, the employing establishment physician, reviewed appellant’s employment history,
exposure to work-related noise and prior audiograms dating back to November 21, 2001. She
diagnosed asymmetrical sensorineural hearing loss and tinnitus, which she opined was caused by
his work-related federal noise exposure. Dr. Allstadt noted that the noise exposure was sufficient
as to intensity and duration to cause the loss in question and opined that appellant’s hearing loss
was in excess of what would be predicated on the basis of presbycusis. While she noted that he
had bilateral hearing loss at the start of his federal employment in 2001, she argued that his
hearing loss was caused by his federal employment because his hearing in the high frequencies
gradually declined on composite audiometric history. This decline was bilateral which was
typically expected in occupational noise exposure. Dr. Allstadt’s report properly followed the
procedure manual guidelines pertaining to testing and examination of hearing loss claims.11
OWCP properly followed its procedures and referred appellant for audiological testing
and a second opinion examination by Dr. Loper, a Board-certified otolaryngologist.12
In a September 26, 2013 second opinion report, Dr. Loper diagnosed sensorineural
hearing loss, which he opined was not caused by occupational noise exposure. He noted that
appellant had preexisting asymmetrical hearing loss and the change in his hearing over the past
12 years was no worse than presbycusis. Dr. Loper further noted that appellant’s workplace
exposure was sufficient as to intensity and duration to cause his sensorineural hearing loss, but
that the hearing loss in question was not caused by employment-related noise exposure because
he had preexisting asymmetrical hearing loss. He stated that the change in appellant’s hearing
from 2001 to the present was no more than 15 to 20 dB, establishing that his hearing loss was no
worse than expected due to presbycusis. Dr. Loper also followed procedure manual guidelines
pertaining to audiological testing and medical examination for hearing loss cases.13

10

See Claudia A. Dixon, 47 ECAB 168 (1995).

11

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter
2.600.8.a (October 1990).
12

Id., Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(b) (January 2013).

13

Supra note 11.

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The Board finds, however, that Dr. Loper’s report is not sufficient on the issue of causal
relationship. Though he diagnosed bilateral sensorineural hearing loss due to presbycusis,
Dr. Loper also found appellant’s workplace exposure sufficient as to intensity and duration to
have caused the loss in question. His opinion regarding the cause of appellant’s hearing loss is
equivocal in nature and, thus, of little probative value.14 Though Dr. Loper reviewed the case
record, he failed to address Dr. Allstadt’s report who found that appellant’s hearing loss was
caused by his occupational noise exposure. Furthermore, while he provided an explanation as to
why appellant’s hearing loss was due to presbycusis, he failed to explain what affect, if any, the
occupational noise exposure had on appellant’s hearing loss.15 The Board has consistently held
that a medical opinion not fortified by rationale is of limited probative value.16
It is well established that proceedings under FECA are not adversarial in nature and while
the claimant has the burden to establish entitlement to compensation, OWCP shares the
responsibility in the development of the evidence.17 When OWCP selects a physician for an
opinion on causal relationship, it has an obligation to secure, if necessary, clarification of the
physician’s report and to have a proper evaluation made.18 Because it referred appellant to a
second opinion physician, it has the responsibility to obtain a report that will resolve the issue of
whether his hearing loss was caused by his federal employment.19 Because Dr. Loper’s opinion
is equivocal and does not provide a rationalized opinion on the cause of appellant’s hearing loss,
OWCP should not have relied upon his opinion as a basis for denying appellant’s claim for
compensation.20
Accordingly, OWCP did not properly discharge its responsibilities in developing the
record and the case will be remanded to OWCP for further development of the evidence.21 On
remand, it should ask Dr. Loper to clarify his opinion on whether appellant’s hearing loss was
caused or contributed to by the established work-related noise exposure.22 Following this and
any other further development deemed necessary, OWCP shall issue an appropriate merit
decision on appellant’s occupational disease claim.23
14

D.F., Docket No. 09-1080 (issued December 7, 2009); Michael R. Shaffer, 55 ECAB 386 (2004).

15

M.H., Docket No. 12-733 (issued September 5, 2012).

16

A.D., 58 ECAB 149 (2006).

17

P.K., Docket No. 08-2551 (issued June 2, 2009).

18

Alva L. Brothers, Jr., 32 ECAB 812 (1981).

19

See Ramon K. Farrin, Jr., 39 ECAB 736 (1988).

20

See also W.C., Docket No. 14-633 (issued June 19, 2014).

21

S.E., Docket 08-2243 (issued July 20, 2009).

22

When a medical evaluation is made at its request, OWCP has the responsibility of obtaining a proper
evaluation. Leonard Gray, 25 ECAB 147, 151 (1974).
23

Given the disposition of the first issue as this case is not in posture for decision, the second nonmerit issue is
moot.

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CONCLUSION
The Board finds that the case is not in posture for decision as to whether appellant
developed sensorineural hearing loss in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the November 12 and October 21, 2013 decisions
of the Office of Workers’ Compensation Programs are set aside. The case is remanded for
further proceedings consistent with this opinion.
Issued: October 8, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, 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
__________________________________________
M.D., Appellant
and
DEPARTMENT OF THE NAVY, MILITARY
SEALIFT COMMAND, MILITARY OCEAN
TERMINAL, Bayonne, NJ, Employer
__________________________________________

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

Docket No. 13-503
Issued: September 19, 2013

Case Submitted on the Record

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

JURISDICTION
On January 2, 2013 appellant, through her attorney, filed a timely appeal from a
September 21, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP)
affirming a prior 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 appellant has greater than 13 percent impairment of the left upper
extremity, for which she received a schedule award.
On appeal, counsel asserts that OWCP did not utilize the proper procedures in selecting
an impartial medical examiner. He also argues that the impartial medical examiner failed to
perform Semmes-Weinstein monofilament testing, provide complete measurements for range of
1

5 U.S.C. § 8101 et seq.

motion or explain why he excluded a preexisting left elbow condition from his impairment
rating.
FACTUAL HISTORY
OWCP accepted that on June 2, 1993 appellant, then a 33-year-old purchasing agent,
sustained a right elbow contusion and C6-7 disc herniation without myelopathy when she slipped
and fell on a waxed floor.2 On February 15, 1994 Dr. A.A. Steinberger, an attending Boardcertified neurosurgeon of professorial rank, performed a left hemilaminectomy and laminotomy
of C5 and C7, left foraminotomy at C5-6 and C6-7 and excision of extruded disc on the left at
C6-7. He opined that the procedures were medically necessary to address severe, unremitting
left-sided cervical radiculopathy with radiation into the left arm. Based on an OWCP medical
adviser’s February 4, 1997 report, OWCP approved the procedure.3 By decision dated
October 20, 2009, OWCP granted appellant a schedule award for $3,500.00 for disfigurement
due to the surgical scar.4 Appellant continued to seek medical treatment through 2009 for
continued neck pain with left-sided radicular symptoms.
OWCP conducted additional development on the issue of permanent impairment. On
November 5, 2009 it obtained a second opinion from Dr. Andrew M. Hutter, a Board-certified
orthopedic surgeon, who opined that appellant had no ratable impairment of the left upper
extremity, noting that her symptoms were out of proportion to her clinical findings. Dr. Hutter
noted in a December 17, 2009 supplemental report that appellant had no neurologic, motor or
reflex deficits on clinical examination. In a December 28, 2009 report, an OWCP medical
adviser concurred that appellant had no ratable impairment of the left upper extremity. By
decision dated January 14, 2010, OWCP denied appellant’s schedule award claim on the grounds
that the medical evidence did not establish impairment of a scheduled member of the body.
In a February 5, 2010 letter, appellant, through counsel, requested a hearing which was
held on May 17, 2010. At the hearing, appellant described difficulties with activities of daily
living and an inability to type due to loss of sensation in her left hand. She contended that
Dr. Hutter did not perform a thorough examination. Counsel asserted that the opinion of
Dr. Nicholas Diamond, an attending osteopathic physician, which rated 23 percent impairment to
the left arm, should be accorded the weight of the medical evidence.

2

OWCP initially denied the claim for a C6-7 disc herniation on January 4, 1995. Following further development,
it issued a January 27, 1997 decision expanding the claim to include C6-7 disc herniation.
3

Appellant declined a transfer to Norfolk, Virginia, and was separated from the employing establishment
effective December 12, 1997.
4

On August 1, 2004 appellant claimed a schedule award for disfigurement of the back of her neck due to the
surgical scar from the February 15, 1994 procedure. Following additional development, OWCP advised her by
August 7, 2009 letter of the evidence needed to establish her claim. In an October 7, 2009 report, an OWCP medical
adviser opined that appellant’s surgical scar had reached maximum medical improvement. Appellant had a scar at
the midline posterior neck from C2 to C7, which the adviser opined warranted the maximum $3,500.00 schedule
award for disfigurement.

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Following the hearing, counsel submitted appellant’s May 16, 2010 statement describing
functional difficulties she attributed to the sequelae of the accepted injuries. Appellant also
provided a March 20, 2010 electromyography (EMG) and nerve conduction velocity (NCV)
study demonstrating left-sided C5-6 radiculopathy.
Counsel also submitted Dr. Diamond’s April 21, 2010 report reviewing appellant’s
history of injury and treatment. He noted a pain questionnaire score of 118, indicating a “severe
pain disability.” On examination of the left upper extremity, Dr. Diamond found decreased
sensation in the C6 and C7 dermatomes, decreased range of left elbow motion, loss of grip and
pinch strength, decreased sensibility at 3.61 milligrams with Semmes-Weinstein monofilament
testing, 8 millimeters two-point discrimination and deep tendon reflexes at 2+/4. He diagnosed
postsurgical status and C5-6 radiculopathy. Referring to the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter, A.M.A.,
Guides), Dr. Diamond found a class 1 diagnosis-based-impairment (CDX) for sensory deficit of
the left C6 axillary nerve root, equaling a one percent impairment. He found a grade modifier
for Functional History (GMFH) of three percent due to a pain questionnaire score of 118
according to Table 15-7,5 and a grade modifier for Clinical Studies (GMCS) of three percent
according to Table 15-9 for EMG, NCV and magnetic resonance imaging (MRI) scan studies.6
Applying the net adjustment formula of (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX)
resulted in a modifier of 4, for a one percent impairment of the left arm. Dr. Diamond also found
a class 1 sensory deficit for the left C7 radial nerve root, with a GMFH of 3 and GMCS of 3,
equaling a one percent impairment of the left arm. He also found a 17 percent impairment of the
left upper extremity due to a class 2 3/5 motor strength deficit of left elbow supination.
Dr. Diamond combined these impairments to equal 25 percent impairment of the left upper
extremity.
By August 10, 2010 decision, an OWCP hearing representative vacated the January 14,
2010 decision. The hearing representative found a conflict in medical opinion between
Dr. Diamond, for appellant, and Dr. Hutter, for OWCP, regarding the extent of permanent
impairment.
To resolve the conflict, OWCP selected Dr. Michael Gordon, a Board-certified
orthopedic surgeon, as impartial medical examiner. It included screen captures demonstrating its
use of the Physicians Directory System (PDS) to select Dr. Gordon.
Dr. Gordon submitted an October 29, 2010 report regarding his findings on an October 5,
2010 examination. He reviewed the medical record and provided a statement of accepted facts.
On examination of the left upper extremity, Dr. Gordon found a positive Spurling’s test on the
left, zero degrees carrying angle of the left elbow with significant loss of supination, no atrophy,
mild biceps weakness in the C6 enervation, mild weakness in the left wrist in the C7 and C8
nerve root distributions, left elbow supination limited to 20 degrees, diminished grip strength that
5

Table 15-7, page 406 of the sixth edition of the A.M.A., Guides is entitled “Functional History Adjustment:
Upper Extremities.”
6

Table 15-9, page 410 of the sixth edition of the A.M.A., Guides is entitled “Clinical Studies Adjustment: Upper
Extremities.”

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did not fit a verifiable bell curve pattern and two-point discrimination testing within normal
limits. He diagnosed a contusion of the right elbow, herniated C6-7 disc and C6 radiculopathy.
Dr. Gordon noted that the medical evidence indicated that appellant attained maximum medical
improvement in August 1994. He opined that appellant had voluntary restriction of left shoulder
motion as there was no atrophy in the shoulder girdle indicating objectively restricted motion.
Referring to the sixth edition of the A.M.A., Guides, Dr. Gordon found a class 1 mild motor
deficit with no sensory deficit according to Table 15-20,7 equaling nine percent impairment of
the left arm and a GMFH of 3 according to Table 15-7. Using the net adjustment formula
resulted in a grade modifier of +1, for a total 10 percent impairment of the left upper extremity.
Dr. Gordon explained that limitation of left elbow supination could not be rated as a stand-alone
impairment under the grading rubric of Table 15-20.
On November 29, 2010 an OWCP medical adviser reviewed Dr. Gordon’s report and
concurred with his clinical findings; but found that Dr. Gordon did not properly use the net
modifier table. The medical adviser found a grade modifier of +2, raising the default value of 9
percent to a 13 percent impairment of the left upper extremity.
By decision dated December 22, 2010, OWCP granted appellant a schedule award for a
13 percent permanent impairment of the left upper extremity, based on Dr. Gordon’s opinion as
reviewed by OWCP’s medical adviser. The period of the award ran from August 19, 1994 to
May 29, 1995, equaling a one-time payment of $14,280.94.
Appellant disagreed with the amount of the schedule award.8 Through counsel, she
requested an oral hearing. In support of her claim, appellant submitted a March 31, 2011
impairment rating from Dr. Diamond, reiterating his April 21, 2010 opinion that appellant had a
25 percent impairment of the left upper extremity according to the sixth edition of the A.M.A.,
Guides. Dr. Diamond asserted that Dr. Gordon did not perform appropriate or adequate testing
and misapplied the A.M.A., Guides.
At the hearing, held April 13, 2011, counsel asserted that Dr. Gordon’s opinion could not
represent the weight of the medical evidence as he performed inadequate testing and misapplied
the A.M.A., Guides. He asserted that OWCP should accord the weight of the medical evidence
to Dr. Diamond. Following the hearing, counsel submitted a February 17, 2010 report from
Dr. Gordon Donald, an attending Board-certified orthopedic surgeon, diagnosing chronic
cervical radiculitis.
By decision dated July 5, 2011, an OWCP hearing representative vacated the
December 22, 2010 decision and remanded the case to OWCP for additional medical
development. The hearing representative directed that OWCP request a supplemental report

7

Table 15-20, page 434 of the sixth edition of the A.M.A., Guides is entitled “Brachial Plexus Impairment:
Upper Extremity Impairments.”
8

Appellant provided an April 11, 2011 statement reviewing her history of medical treatment and the processing
of her compensation claims.

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from Dr. Gordon reviewing Dr. Diamond’s impairment rating, then forward the supplemental
report to an OWCP medical adviser for review.9
On remand of the case, OWCP obtained an August 8, 2011 supplemental report from
Dr. Gordon, explaining that the loss of supination in the left elbow was completely unrelated to
cervical radiculopathy as the loss was equal in both active and passive motion. If the loss were
neuromuscular, there would have been a difference between the loss of active and passive
motion. Dr. Gordon opined that the restricted left elbow motion was either congenital or due to a
pediatric supracondylar fracture.
An OWCP medical adviser reviewed Dr. Gordon’s supplemental report on October 13,
2011 and found that it created a new conflict of opinion with Dr. Diamond regarding the nature
and extent of the left elbow impairment. To resolve the conflict, OWCP selected Dr. Robert
Dennis, a Board-certified orthopedic surgeon, as impartial medical examiner. OWCP included
four print screens and a PDS referral form documenting the selection of Dr. Dennis.
Dr. Dennis submitted a December 19, 2011 report providing a detailed review of the
medical record and statement of accepted facts. On examination, he observed restriction of left
elbow extension to 20 degrees. Dr. Dennis opined that this limitation was unrelated to the
accepted 1993 injuries, as the bony stops objectively present indicated a congenital fracture. He
therefore “removed any and all considerations of any left elbow abnormality from the
permanency determinations.” Dr. Dennis found no reproducible sensory deficits on
monofilament testing, inconsistent grip strength results, slightly diminished left biceps reflexes
consistent with surgical history. He noted that electrodiagnostic studies demonstrated cervical
radiculopathy. Regarding the percentage of permanent impairment, Dr. Dennis concurred with
OWCP’s medical adviser’s November 29, 2010 finding of 13 percent impairment of the left arm.
On February 29, 2012 an OWCP medical adviser not previously associated with appellant’s
claim concurred with Dr. Dennis’ findings and impairment rating.
By decision dated March 14, 2012, OWCP denied appellant’s claim for an augmented
schedule award on the grounds that the medical evidence did not establish that she sustained
greater than the 13 percent impairment of the left upper extremity for which she received a
schedule award.
In a March 20, 2012 letter, appellant requested a hearing, held by video link on
July 13, 2012. Prior to the hearing, she submitted February 9 and July 11, 2012 statements
reviewing the history of injury and treatment. Appellant asserted that the June 2, 1993 work
injury caused restricted motion of the left elbow. At the hearing, counsel asserted that OWCP
did not properly document its selection of Dr. Dennis as an impartial medical examiner, that
Dr. Dennis failed to perform Semmes-Weinstein monofilament testing, and failed to mention the
cervical radiculopathy demonstrable on the March 23, 2010 EMG study. Counsel also argued
9

In a July 14, 2011 letter, counsel requested to participate in the selection of a new impartial medical examiner if
OWCP determined that Dr. Gordon could no longer serve. He asserted that such participation would help assure a
truly impartial evaluation. By August 17, 2011 decision, OWCP denied counsel’s request as he did not provide
sufficient reason to participate in selecting an impartial medical examiner. The August 17, 2011 decision is not
before the Board on the present appeal.

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that Dr. Dennis failed to provide detailed measurements from his clinical testing and failed to
consider a preexisting left elbow condition.
Following the hearing, appellant submitted a July 12, 2012 letter from Dr. Diamond
expressing his disagreement with Dr. Dennis’ December 19, 2011 impairment rating.
Dr. Diamond asserted that Dr. Dennis did not fully describe his findings of muscle weakness or
their relationship to cervical radiculopathy. He asserted that his April 21, 2010 impairment
rating remained unchanged.
By decision dated and finalized on September 21, 2012, an OWCP hearing representative
affirmed OWCP’s March 14, 2012 decision. The hearing representative found that OWCP used
and documented the appropriate procedures in selecting Dr. Dennis and properly relied on his
opinion as the weight of the medical evidence. The hearing representative noted that Dr. Dennis
provided detailed findings on sensory testing, explaining that appellant’s results were too
inconsistent to be considered reliable. Also, Dr. Dennis explained that he excluded the
congenital condition as it was not ratable under the A.M.A., Guides’ motor loss or peripheral
nerve impairment rubrics.
LEGAL PRECEDENT
The schedule award provisions of FECA10 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. FECA, however,
does not specify the manner in which the percentage loss of a member shall be determined. The
method used in making such determination is a mater which rests in the sound discretion of the
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The A.M.A.,
Guides has been adopted by OWCP as a standard for evaluation of schedule losses and the Board
has concurred in such adoption.11 For schedule awards after May 1, 2009, the impairment is
evaluated under the sixth edition of the A.M.A., Guides, published in 2008.12
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).13 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition (CDX), which is then adjusted by grade modifiers based on GMFH,
Physical Examination (GMPE) and GMCS.14 The net adjustment formula is (GMFH-CDX) +
(GMPE-CDX) + (GMCS-CDX).
10

5 U.S.C. § 8107.

11

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

12

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).
13

A.M.A., Guides 3 (6th ed. 2008), Section 1.3, “The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.”
14

A.M.A., Guides 494-531 (6th ed. 2008).

6

Section 8123 of FECA provides that, if there is 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.15 In situations where there exist
opposing medical reports of virtually equal weight and rationale and the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based upon a proper factual background, must be
given special weight.16
When OWCP secures an opinion from an impartial medical examiner for the purpose of
resolving a conflict in the medical evidence and the opinion from such examiner requires
clarification or elaboration, OWCP has the responsibility to secure a supplemental report from
the examiner for the purpose of correcting the defect in the original opinion.17 If the specialist is
unwilling or unable to clarify or elaborate on his or her opinion as requested, the case should be
referred to another appropriate impartial medical specialist.18
ANALYSIS
Appellant claimed a schedule award for left upper extremity impairment due to an
accepted June 2, 1993 C6-7 herniation. OWCP obtained a second opinion from Dr. Hutter, a
Board-certified orthopedic surgeon, who opined on November 5, 2009 that appellant had no
ratable impairment of the left arm. It denied the schedule award claim by decision dated
January 14, 2010.
Following a May 17, 2010 hearing, counsel submitted an April 21, 2010 impairment
rating from Dr. Diamond, an attending osteopathic physician, finding severe restriction of left
elbow motion. OWCP issued an August 10, 2010 decision vacating the January 14, 2010
determination due to a conflict between Dr. Diamond and Dr. Hutter. It selected Dr. Gordon, a
Board-certified orthopedic surgeon, as impartial medical examiner. Dr. Gordon opined on
October 29, 2010 that appellant had 10 percent impairment of the left arm due to cervical nerve
root involvement. He also noted severely restricted left elbow motion not attributable to a nerve
root injury and therefore not included in the impairment rating. Dr. Gordon opined that the
restriction was due to a remote supracondylar fracture. An OWCP medical adviser corrected
Dr. Gordon’s mathematical error in applying the grade modifiers to arrive at a 13 percent
impairment of the left upper extremity, for which OWCP issued a schedule award on
December 22, 2010.
Following an April 13, 2011 hearing and submission of additional reports from
Dr. Diamond, OWCP vacated the December 22, 2010 schedule award on July 5, 2011 and
remanding the case for additional development. This development resulted in the emergence of

15

5 U.S.C. § 8123; see Charles S. Hamilton, 52 ECAB 110 (2000).

16

Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

17

Harry T. Mosier, 49 ECAB 688 (1998).

18

Guiseppe Aversa, 55 ECAB 164 (2003).

7

a conflict of medical opinion between Dr. Gordon and Dr. Diamond.
Dr. Dennis, a Board-certified orthopedic surgeon, to resolve it.

OWCP selected

The Board has placed great importance on the appearance as well as the fact of
impartiality and only if the selection procedures which were designed to achieve this result are
scrupulously followed may the selected physician carry the special weight accorded to an
impartial specialist.19 The record contains four print screens and a PDS referral form
documenting the selection of Dr. Dennis. The Board finds that these documents establish that
OWCP properly followed the appropriate procedures in selecting Dr. Dennis as impartial
medical examiner. As OWCP has met its affirmative obligation to establish that it properly
followed its selection procedures, the Board finds that counsel’s argument is not substantiated.20
Dr. Dennis submitted an extensive December 19, 2011 report concurring with the 13
percent impairment rating proffered by OWCP’s medical adviser. Regarding the left elbow,
Dr. Dennis opined that this limitation was unrelated to the accepted 1993 injuries, as it was
apparently a congenital fracture. He therefore “removed any and all considerations of any left
elbow abnormality from the permanency determinations.”
OWCP denied an augmented schedule award by March 14, 2012 decision. Following a
July 13, 2012 hearing, it affirmed the March 14, 2012 decision on September 21, 2012. The
Board finds, however, that the case is not in posture for a decision.
Although OWCP did not accept a left elbow injury or condition, the observed restricted
motion could be included in an impairment rating if it was established as a preexisting condition.
It is well established that, in determining entitlement to a schedule award, preexisting
impairment to the scheduled member is to be included.21 Dr. Gordon opined on October 29,
2010 that the restricted motion was due to a childhood supracondylar fracture. Dr. Dennis noted
on December 19, 2011 that the bony nature of the restriction demonstrated a congenital
supracondylar fracture. Both physicians therefore attributed the restriction of left elbow motion
to congenital or childhood events that occurred prior to June 2, 1993. These opinions therefore
establish the left elbow condition as preexisting. Despite this, Dr. Gordon and Dr. Dennis both
failed to include it in their impairment ratings. The case will be remanded to OWCP to obtain a
supplemental report from Dr. Dennis addressing the left elbow condition in the impairment
rating, or explaining why it should be omitted from the impairment rating.22 Following this and
all other necessary development, OWCP will issue an appropriate decision in the case.
On appeal, counsel asserts that OWCP did not utilize the proper procedures in selecting
an impartial medical examiner. As noted, the Board finds that the print screens and referral form
establish that OWCP properly utilized the PDS in selecting Dr. Dennis. Counsel also asserts that
Dr. Dennis did not conduct appropriate testing or address the left elbow condition. The case will
19

B.N., Docket No. 12-1394 (issued August 5, 2013).

20

Id.

21

Michael C. Milner, 53 ECAB 446, 450 (2002).

22

Harry T. Mosier, 49 ECAB 688 (1998).

8

be remanded to OWCP for further development to determine the appropriate percentage of
permanent impairment.
CONCLUSION
The Board finds that the case is not in posture for a decision. The case will be remanded
to OWCP for appropriate development regarding the percentage of left upper extremity
impairment attributable to her left elbow condition.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 21, 2012 is set aside and the case remanded to OWCP
for additional development consistent with this decision and order.
Issued: September 19, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

9


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

)
)
)
)
)
)
)
)

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

Docket No. 19-0282
Issued: August 2, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On November 19, 2018 appellant, through counsel, filed a timely appeal from a
September 25, 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.3

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

5 U.S.C. § 8101 et seq.

The Board notes that following the September 25, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish more than
two percent permanent impairment of her left lower extremity, for which she previously received
a schedule award; and (2) whether she has met her burden of proof to establish more than 16
percent permanent impairment of her left upper extremity, for which she previously received a
schedule award.
FACTUAL HISTORY
On September 5, 2003 appellant, then a 40-year-old mail clerk, filed a traumatic injury
claim (Form CA-1) alleging that she hurt her hands and knees when she slipped and fell by the
water cooler on that day while in the performance of duty. OWCP initially accepted the claim for
left wrist strain, left shoulder strain, left ankle strain, and bilateral wrist tendinitis. It subsequently
expanded acceptance of the claim to include left knee meniscus tear, cervical disc bulge at C4-5,
bilateral wrist strain, complete rotator cuff rupture of the right shoulder, and temporary
degenerative lumbar disc disease. Appellant underwent OWCP-approved left shoulder surgery in
October 2007 and left knee surgery in July 2008.4 She retired effective March 8, 2011.
On August 5, 2016 appellant filed a claim for a schedule award (Form CA-7). In an
August 5, 2016 report, Dr. Samy F. Bishai, an orthopedic surgeon, provided a history of injury and
physical examination findings. He indicated that appellant had reached maximum medical
improvement (MMI) for her left shoulder and left knee injuries on August 3, 2016,5 but had not
reached MMI for her neck and back conditions. Dr. Bishai used the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),6 to
rate appellant’s left shoulder and left knee impairments. For the left shoulder, he used the range
of motion (ROM) methodology and found, under Table 15-34, page 475, that appellant had 24
percent left upper extremity impairment. For the left knee, Dr. Bisahi also used the ROM
methodology and calculated, under Table 16-23, page 549, that appellant had 20 percent left lower
extremity permanent impairment. He provided his impairment calculations within his report.
On December 7, 2016 Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving
as an OWCP district medical adviser (DMA), reviewed Dr. Bishai’s permanent impairment rating
along with the medical evidence of record. He questioned Dr. Bishai’s findings, noting that prior
treatment reports had not indicated the objective evidence cited in Dr. Bishai’s report. The DMA
further noted that Dr. Bishai relied on ROM impairment ratings for both the left shoulder and left
knee, but it was his opinion that the A.M.A., Guides preference was for use of the diagnosis-based
impairment (DBI) methodology whenever possible. He recommended that OWCP have appellant
undergo a second opinion evaluation.
OWCP referred appellant to Dr. Peter J. Millheiser, a Board-certified orthopedic surgeon,
for a second opinion evaluation. In a January 17, 2017 report, Dr. Millheiser reviewed a statement
4
Appellant also underwent L5-S1 disc surgery in March 2011 and May 2012 (revision), but there is no indication
whether these procedures were authorized by OWCP.
5

This appears to be a typographical error as Dr. Bishai examined appellant on August 5, 2016.

6

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

2

of accepted facts (SOAF) as well as the medical evidence, and conducted a physical examination.
He diagnosed meniscal tear left knee, cervical spine sprain, bilateral wrist sprains with tendinitis,
medial meniscus tear left knee, and complete rotator cuff tear of left shoulder. For the left shoulder,
Dr. Millheiser noted a restriction of motion with abduction and flexion to 90 degrees, external
rotation of 30 degrees, and internal rotation of 80 degrees. He also found positive O’Brien and
impingement tests. Findings for the right shoulder were not provided. Dr. Millheiser found the
right wrist unremarkable. For the left wrist, he noted dorsiflexion of 60 degrees, volar flexion of
50 degrees, radial deviation of 5 degrees, and ulnar deviation of 10 degrees. Hypesthesia and
positive Tinel’s were noted. In a January 17, 2017 addendum report, Dr. Millheiser discussed
multiple shoulder and lumbar magnetic resonance imaging (MRI) studies and noted cervical
examination findings. Under the A.M.A., Guides, he calculated a combined 23 percent permanent
impairment of the left upper extremity using the ROM methodology, noting that he did not have
appellant’s operative report. This was comprised of 14 percent impairment for the left shoulder
and 10 percent for the left wrist. Dr. Millheiser also calculated 2 percent left lower extremity
impairment for the left medial meniscectomy and 0 percent impairment for the left lower extremity
due to the ankle injury using the DBI methodology. He provided examination findings on which
he based his impairment calculations and cited to tables within the A.M.A., Guides.
In a March 7, 2017 impairment report, Dr. Millheiser opined, under the ROM
methodology, that appellant had 10.5 percent impairment for the left shoulder and 10 percent
impairment for the left wrist. He also found two percent lower extremity impairment for the left
knee injury. Dr. Millheiser advised that MMI was reached in 2009 for the left shoulder and left
knee injuries, but that MMI had not been reached for the lumbar spine. He provided examination
findings on which he based his impairment calculations and cited to tables within the A.M.A.,
Guides.
In a March 14, 2017 report, the DMA reviewed the medical evidence of record along with
Dr. Millheiser’s permanent impairment reports. Using the DBI methodology for the left knee, he
found, under Table 16-3, page 509, the knee regional grid, that appellant’s partial medial
meniscectomy was class of diagnosis (CDX) of 1 with default grade C impairment value of two
percent. Under Table 16-6, Table 16-7, and Table 16-8 of the A.M.A., Guides, the DMA found a
grade modifier clinical studies (GMCS) of 1, a grade modifier physical examination (GMPE) of
0, and that a grade modifier functional history (GMFH) was not applicable. He applied the net
adjustment formula and determined that (GMPE – CDX)(0-1) + (GMCS – CDX)(1-1) resulted in
a net adjustment of -1, which moved the default value grade C to a grade B or two percent
impairment.
The DMA opined that Dr. Millheiser correctly used Table 15-34 as a stand-alone ROM
rating as Table 15-5, Shoulder Regional Grid, allowed Table 15-34 to be used as a stand-alone
impairment rating when normal motion was not present, which was the case at hand. Using ROM
methodology for the left upper extremity, he calculated a combined left upper extremity permanent
impairment of 16 percent, advising that Dr. Millheiser had not correctly determined appellant’s
shoulder and wrist impairments. For the left shoulder, the DMA found under Table 15-34, page
475, that flexion of 90 degrees equaled three percent impairment; extension within normal limits
(WNL) equaled zero percent impairment; abduction of 90 degrees equaled three percent
impairment; adduction WNL equaled zero percent impairment; internal rotation of 80 degrees
equaled zero percent impairment; and external rotation of 30 degrees equaled two percent
impairment, for a combined eight percent left shoulder permanent impairment. Under Table 153

35, page 477, he found a grade modifier of 1 and indicated that there was no further adjustment.
For left wrist loss of motion, under Table 15-32, page 473, the DMA found that flexion 50 degrees
equaled three percent impairment; extension 60 degrees equaled zero percent impairment; radial
deviation 5 degrees equaled two percent impairment7 and ulnar deviation 10 degrees equaled four
percent impairment, for a nine percent total wrist impairment. Using the Combined Values Chart,
page 604, he combined the 8 percent shoulder impairment with the 9 percent wrist impairment for
a combined left upper extremity permanent impairment of 16 percent. The DMA opined that MMI
occurred on March 7, 2017, the date of Dr. Millheiser’s permanent impairment evaluation.
By decision dated April 14, 2017, OWCP granted appellant a schedule award for 2 percent
left lower extremity permanent impairment and 16 percent left upper extremity permanent
impairment. The date of MMI was noted to be March 7, 2017. The award ran for 55.68 weeks for
the period March 7, 2017 to March 31, 2018.
On April 26, 2017 appellant, through counsel, requested a telephonic hearing, which was
held on October 12, 2017. No new evidence pertaining to permanent impairment was received.
By decision dated January 5, 2018, an OWCP hearing representative affirmed OWCP’s
April 14, 2017, but modified the date of MMI to January 17, 2017, the date of Dr. Millheiser’s
permanent impairment evaluation. She found that there was no conflict in medical opinion
between the impairment ratings of Dr. Bishai and Dr. Millheiser.
In a revised decision dated January 18, 2018, OWCP reissued appellant’s schedule award
for 2 percent permanent impairment of the left lower extremity impairment and 16 percent
permanent impairment of the left upper extremity. The award ran for 55.68 weeks for the period
March 7, 2017 to March 31, 2018. The date of MMI was found to be January 17, 2017.8
On January 23, 2018 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative, which was held on July 12, 2018. No additional evidence
pertaining to permanent impairment was received.
By decision dated September 25, 2018, an OWCP hearing representative affirmed the
January 18, 2018 schedule award decision.
LEGAL PRECEDENT -- ISSUE 1
Under section 8107 of FECA9 and section 10.404 of OWCP’s implementing regulations,10
schedule awards are payable for permanent impairment of specified body members, functions, or
organs. FECA, however, does not specify the manner in which the percentage of impairment shall
7
Under Table 13-32, wrist range of motion, a radial deviation 0 degrees equals four percent impairment and a radial
deviation 10 degrees equals two percent impairment. As there is no category for a radial deviation five percent, the
DMA provided two percent impairment.
8
As the date of MMI was January 17, 2017, the Board finds that it is harmless error for the period of the schedule
award to begin on March 3, 2017. See G.G., Docket No. 12-1106 (issued November 2, 2012).
9

5 U.S.C. § 8107.

10

20 C.F.R. § 10.404.

4

be determined. For consistent results and to ensure equal justice under the law for all claimants,
OWCP has adopted the A.M.A., Guides as the uniform standard applicable to all claimants.11 As
of May 1, 2009, the sixth edition is used to calculate schedule awards.12
The sixth edition of the A.M.A., Guides provides a DBI method of evaluation utilizing the
World Health Organization’s International Classification of Functioning, Disability, and Health
(ICF).13 In addressing lower extremity impairments, the sixth edition requires identification of the
impairment class of the CDX, which is then adjusted by grade modifiers based on GMFH, GMPE,
and GMCS.14 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).15
Under Chapter 2.3, evaluators are directed to provide reasons for their impairment rating choices,
including choices of diagnoses from regional grids and calculations of modifier scores. Section
16.2a of the A.M.A., Guides, provides that, if the class selected is defined by physical examination
findings or clinical studies results, these same findings may not be used as grade modifiers to adjust
the rating.16
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed through a DMA for an opinion concerning the nature and percentage of
permanent impairment in accordance with the A.M.A., Guides, with a DMA providing rationale
for the percentage of impairment specified.17
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish more than two
percent permanent impairment of her left lower extremity, for which she previously received a
schedule award.
To determine the permanent impairment of appellant’s left knee, both Dr. Millheiser and
the DMA identified a CDX of 1 for a partial medial meniscectomy repair under Table 16-3 on
page 509 of the A.M.A., Guides, which yielded a default (C) value of two percent. The DMA then
applied grade modification procedures of the A.MA., Guides to the physical findings provided by
Dr. Millheiser and found, under Table 16-6, Table 16-7, and Table 16-8 of the A.M.A., Guides,
GMCS of 1; GMPE of 0; and excluded GMFH. The net adjustment formula (GMPE – CDX)(0-1)
11

Id. at § 10.404(a).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Exhibit 4
(January 2010).
13

A.M.A., Guides (6th ed. 2009), page 3, Section 1.3, The International Classification of Functioning, Disability,
and Health (ICF): A Contemporary Model of Disablement.
14

Id. at 493-553

15

Id. at 521.

16

Id. at 500.

17
See Federal (FECA) Procedure Manual, supra note 12 at Chapter 2.808.6(f) (March 2017). See also F.K., Docket
No. 18-1700 (issued May 9, 2019); C.K., Docket No. 09-2371 (issued August 18, 2010); Frantz Ghassan, 57 ECAB
414 (2006).

5

+ (GMCS – CDX)(1-1) resulted in a net adjustment of -1, which moved the default (C) value a
grade B or two percent impairment. It is therefore found that appellant has no more than two
percent permanent impairment of the left lower extremity.
On appeal counsel contends that a conflict in medical opinion existed between Dr. Bishai
and Dr. Millheiser with regards to appellant’s permanent impairment. The DMA initially reviewed
Dr. Bishai’s August 2016 report and found that the physical findings on which Dr. Bishai based
his impairment ratings were not supported by the record. As the findings on which Dr. Bishai
based his impairment assessment were not supported by the record, his impairment rating is of
little probative value and is thus insufficient to cause a conflict in the medical opinion evidence.18
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
Under the sixth edition, for upper extremity impairments the evaluator identifies the
impairment for the CDX, which is then adjusted by grade modifiersbased on GMFH, GMPE, and
GMCS. The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX). The
grade modifiers are used on the net adjustment formula described above to calculate a net
adjustment. The final impairment grade is determined by adjusting the grade up or down the
default value C, by the calculated net adjustment.19 OWCP procedures provide that, after obtaining
all necessary medical evidence, the file should be routed to a DMA for an opinion concerning the
nature and percentage of impairment in accordance with the A.M.A., Guides, with the DMA
providing rationale for the percentage of permanent impairment specified.20
The A.M.A., Guides also provide that the ROM impairment method is to be used as a
stand-alone rating for upper extremity impairments when other grids direct its use or when no other
diagnosis-based sections are applicable.21 If ROM is used as a stand-alone approach, the total of
motion impairment for all units of function must be calculated. All values for the joint are
measured and added.22 Adjustments for functional history may be made if the evaluator
determines that the resulting impairment does not adequately reflect functional loss and functional
reports are determined to be reliable.23

18

See D.A., Docket No. 18-0779 (issued December 12, 2018); Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

19

See A.M.A., Guides 387.

20

See J.B., Docket No. 18-1509 (issued May 2, 2019); P.R., Docket No. 18-0022 (issued April 9, 2018); Federal
(FECA) Procedure Manual, supra note 12 at Chapter 2.808.6f (March 2017).
21

A.M.A., Guides 461.

22

Id. at 473.

23

Id. at 474.

6

Regarding the application of ROM or DBI impairment methodologies in rating permanent
impairment of the upper extremities, FECA Bulletin No. 17-06 provides, in part:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify: (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.” (Emphasis in the original.)24
The Bulletin further advises:
“If the rating physician provided an assessment using the ROM method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.”25
ANALYSIS -- ISSUE 2
The Board finds that the case is not in posture for decision as to whether appellant has more
than 16 percent permanent impairment of the left upper extremity, for which she previously
received a schedule award.
The Board finds that OWCP has not properly developed the evidence with regard to left
upper extremity permanent impairment. The DMA utilized Dr. Millheiser’s physical examination
findings to determine that appellant had 16 percent permanent impairment of the left upper
extremity based upon the ROM methodology. However, Dr. Millheiser’s reports are of diminished
probative value as the record does not establish that he provided three ROM measurements as
required by the A.M.A., Guides.26 Accordingly, the DMA cannot use Dr. Millheiser’s ROM
findings to rate appellant’s left shoulder or left wrist permanent impairment.
The Board also finds that the DMA did not rate appellant’s left shoulder or left wrist under
the DBI method as required by FECA Bulletin No. 17-06. This additional step is required so that

24
FECA Bulletin No. 17-06 (issued May 8, 2017). See also L.G., Docket No. 18-0519 (issued March 8, 2019);
D.F., Docket No. 17-1474 (issued January 23, 2018); D.B., Docket No. 17-1526 (issued April 6, 2018).
25

Id.

26

A.M.A., Guides 464.

7

a determination can be made as to which methodology resulted in the highest rating of permanent
impairment.
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter.
While the claimant has the responsibility to establish entitlement to compensation,
OWCP shares responsibility in the development of the evidence. It has the obligation to see that
justice is done.28 Accordingly, once OWCP undertakes to develop the medical evidence further,
it has the responsibility to do so in a manner that will resolve the relevant issues in the case.29
27

The complete case record, including surgical reports and diagnostic test results, shall be
forwarded, along with an updated SOAF, to Dr. Millheiser for a supplemental report regarding
appellant’s left upper extremity permanent impairment utilizing both the ROM and DBI methods.
Following this and any other such further development as may be deemed necessary, OWCP shall
issue a de novo decision regarding appellant’s schedule award claim for left upper extremity
impairment in accordance with the A.M.A., Guides and FECA Bulletin No. 17-06.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish more than two
percent permanent impairment of her left lower extremity, for which she previously received a
schedule award. The Board further finds that the case is not in posture for decision as to whether
she had established more than 16 percent permanent impairment of her left upper extremity, for
which she previously received a schedule award.

27
See L.G., Docket No. 18-0519 (issued March 8, 2019); T.C., Docket No. 17-1906 (issued May 25, 2018); Melvin
James, 55 ECAB 406 (2004).
28

See L.G., id.; Richard E. Simpson, 55 ECAB 490 (2004).

29

See L.G., supra note 27; B.A., Docket No. 17-1360 (issued January 10, 2018).

8

ORDER
IT IS HEREBY ORDERED THAT the September 25, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part and the case is remanded
for further development consistent with this decision of the Board.
Issued: August 2, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS BENEFITS ADMINISTRATION,
Baltimore, MD, Employer
__________________________________________

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Appearances:
Stephen Larkin, for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0317
Issued: August 11, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 1, 2021 appellant, through her representative, filed a timely appeal from a
July 15, 2020 merit decision and a December 9, 2020 nonmerit decision of the Office of Workers’
Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act2

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.

(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.3
ISSUE
The issues are: (1) whether appellant has met her burden of proof to establish a traumatic
injury in the performance of duty on July 26, 2019, as alleged; and (2) whether OWCP properly
denied appellant’s request for reconsideration of the merits of her claim pursuant to 5 U.S.C.
§ 8128(a).
FACTUAL HISTORY
On November 26, 2019 appellant, then a 68-year-old claims assistant, filed a traumatic
injury claim (Form CA-1) alleging that on July 26, 2019 at 1:05 p.m. she sustained an injury while
in the performance of duty. She explained that she stepped off of an elevator that was several
inches above floor level and landed hard on her feet, causing her to experience pain in her lower
back, legs, and right buttock; muscle weakness in her right leg; a tingling sensation in her left arm
and fingers; and back stiffness. On the reverse side of the claim form the employing establishment
acknowledged that appellant was in the performance of duty when her injury occurred. It also
indicated that its knowledge of the facts concerning her injury comported with the statement she
provided. Appellant did not stop work.
In a development letter dated December 30, 2019, OWCP informed appellant of the
deficiencies of her claim. It advised her of the type of factual and medical evidence necessary to
establish her claim and provided a questionnaire for her completion. OWCP afforded appellant
30 days to provide the necessary information.
In a January 28, 2020 medical report, Dr. Eric Weisbrot, Board-certified in family
medicine, evaluated appellant for back pain she had experienced for over six months. He
recounted that her symptoms began on July 26, 2019 at work when she stepped off of an elevator
that had stopped higher than the actual floor. Appellant’s foot fell approximately 6 to 12 inches
and she landed hard on her right leg. She asserted that she experienced immediate pain in her
lower back and that she sent an e-mail to her supervisor in order to inform him that she injured
herself due to the issue with the elevator. Appellant continued working until her condition
deteriorated and she visited her doctor in November 2019. A subsequent November 7, 2019
magnetic resonance imaging (MRI) scan of her lumbar spine revealed multiple degenerative
changes with disc bulges at L2-3 and L3-4, which caused neural foraminal encroachment and L3-4
anterolisthesis. At that point, appellant requested to file an injury claim with her supervisors.
Dr. Weisbrot reviewed appellant’s history of injury, including a 1976 back injury caused by a slip
and fall. On evaluation he diagnosed a sprain of the ligaments of the lumbar spine, other
intervertebral disc degeneration of the lumbar spine, lumbar intervertebral disc disorder with
3

The Board notes that, following the December 9, 2020 decision, OWCP received additional evidence on appeal.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

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radiculopathy and a low back strain. Dr. Weisbrot opined, within a reasonable degree of medical
certainty, that appellant’s conditions were causally related to her claimed July 26, 2019
employment injury.
In an attached narrative medical report, Dr. Weisbrot opined that the July 26, 2019
employment incident directly caused appellant’s injury. He explained that, when she stepped off
of the elevator and her leg fell approximately 6 to 12 inches, the resulting impact sent a shock up
her leg and into her back. Because appellant was unaware the elevator stopped so high, she was
unprepared to step down, which left her muscles unprepared for the drop. The unexpected drop
caused her back to move and twist in an uncontrolled manner. Dr. Weisbrot explained that the
sudden movement caused the various muscles of appellant’s back and body to quickly tighten as
a reflex. When the sudden jolt and impact was added to her tightened muscles, it caused her
already-tightened lower back muscles and tendons to strain and her ligaments to sprain.
Dr. Weisbrot further explained that, when appellant landed hard on her right leg, it would have
caused an axial compression of the lumbar discs and joints, as the force of the weight of her body
were transmitted up her right leg and into her lumbar discs to absorb the pressure. These
compressive forces would have irritated her lumbar discs and caused them to bulge while also
irritating and inflating the joints, resulting in neuritis/neuropathy or radiculitis/radiculopathy.
Dr. Weisbrot indicated that the November 7, 2019 MRI scan of her lumbar spine confirmed these
opinions. He reasoned that, although the July 26, 2019 employment incident did not cause her
degenerative changes, the fact that it was present would have caused a greater chance in her
developing the injuries that she did. Dr. Weisbrot explained that the presence of degenerative
changes demonstrated that appellant’s ligaments were not as strong as healthy ligaments and
changed the mechanics of her joint, making her more susceptible to further injury. Using this
reasoning, he opined that the July 26, 2019 employment incident also exacerbated her degenerative
spinal condition. Dr. Weisbrot further explained that the degenerative damage to appellant’s
lumbar spine did not initially cause pain and that once the effected joints were irritated she began
to experience her symptoms.
By decision dated February 3, 2020, OWCP accepted that the July 26, 2019 employment
incident occurred as alleged, but denied appellant’s claim, finding that the medical evidence of
record was insufficient to establish causal relationship between her diagnosed lumbar conditions
and the accepted July 26, 2019 employment incident.
On February 11, 2020 appellant, through her representative, requested an oral hearing
before a representative of OWCP’s Branch of Hearings and Review.
In a February 24, 2020 response to OWCP’s development questionnaire, appellant
recounted the events of the July 26, 2019 employment incident, indicating that she stepped off of
the elevator while it was approximately one to two feet above the floor level and experienced pain
in her lower back after she came down hard on her feet. She then immediately e-mailed her
supervisor to inform him of her injury. Appellant explained that she waited for his response until
she was given a Form CA-1 by the employing establishment on November 25, 2019. She then
described her subsequent medical treatment and asserted that she did not have any similar
disabilities or symptoms prior to her injury.

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On February 26, 2020 Dr. Dimitrios Kostopoulos, a physical therapist, performed an
electromyography (EMG) scan, demonstrating evidence of chronic axonal pathology affecting the
S1 nerve root level bilaterally.
In medical reports dated from February 25 to May 20, 2020, Dr. Weisbrot indicated that
appellant had been attending physical therapy to treat symptoms related to her lumbar conditions.
On examination he diagnosed a sprain of the ligaments of the lumbar spine, other intervertebral
disc degeneration of the lumbar spine, lumbar intervertebral disc disorder with radiculopathy, and
a low back strain. Dr. Weisbrot recommended that appellant continue her physical therapy
treatment.
In a telephonic hearing held on June 2, 2020, appellant explained the events of the July 26,
2019 employment incident where she injured her back after stepping off of an elevator and
dropping approximately one to two feet. She testified that, following her injury, she immediately
e-mailed her supervisor to inform him of what had occurred. Appellant then recounted her
subsequent history of treatment and periodic use of leave. She indicated that she had previously
injured her back 20 years prior and that injury had resolved after a week or two of treatment.
Appellant asserted that she had no other injuries prior to the accepted July 26, 2019 employment
incident. She also noted that the reason she did not stop work was because she would not have
been paid for the days she missed and that the reason she did not receive medical treatment until
January 2020 was because she was waiting for her supervisor to respond so that she could have a
better idea of what she was supposed to do.
In a June 3, 2020 narrative medical report, Dr. Weisbrot provided an update of appellant’s
condition and again opined that her lumbar conditions were caused by the accepted July 26, 2019
employment incident in which she stepped off an elevator and dropped approximately one to two
feet. He indicated that she underwent a February 26, 2020 EMG scan that found evidence of a
chronic axonal pathology affecting the S1 nerve root bilaterally. Dr. Weisbrot concluded that this
finding was evidence that appellant’s nerve was irritated and caused her radiculopathy. He further
included a copy of his initial January 28, 2020 narrative report.
By decision dated July 15, 2020, OWCP’s hearing representative affirmed, as modified,
the February 3, 2020 decision, finding that the evidence of record was insufficient to establish that
the injury and/or events occurred as appellant described. He noted that she delayed several months
in seeking medical attention and providing written notice to the employing establishment,
continued to work, and failed to provide a consistent history of the employment injury. The
hearing representative concluded, therefore, that the requirements had not been met to establish an
injury as defined by FECA.
OWCP continued to receive evidence. In medical reports dated June 17 to September 9,
2020, Dr. Weisbrot diagnosed a sprain of the ligaments of the lumbar spine, other intervertebral
disc degeneration of the lumbar spine, lumbar intervertebral disc disorder with radiculopathy and
a low back strain. He recommended that appellant continue physical therapy treatment.
On December 6, 2020 appellant, through her representative, requested reconsideration of
OWCP’s July 15, 2020 decision.

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Appellant attached a November 30, 2020 letter wherein she again explained the events of
the alleged July 26, 2019 employment incident in which an elevator stopped short of floor level
and caused her to land hard on two feet. She clarified that she erroneously provided the incorrect
wording for the height where the elevator stopped and asked that her updated description of the
incident be considered instead of the one she initially submitted.
By decision dated December 9, 2020, OWCP denied appellant’s request for
reconsideration of the merits of her claim, finding that the evidence submitted was insufficient to
warrant review of its July 15, 2020 decision.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,5 that an injury was sustained in the performance of duty, as
alleged, and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.6 These are the essential elements of each and every
compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.8 Fact
of injury consists of two components that must be considered in conjunction with one another.
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.9 Second, the employee
must submit sufficient evidence to establish that the employment incident caused a personal
injury.10
An injury does not have to be confirmed by eyewitnesses in order to establish the fact that
an employee sustained an injury in the performance of duty, but the employee’s statements must
be consistent with the surrounding facts and circumstances and his or her subsequent course of

4

Supra note 2.

5

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7
R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

E.M., Docket No. 18-1599 (issued March 7, 2019); T.H., 59 ECAB 388, 393-94 (2008).

9

L.T., Docket No. 18-1603 (issued February 21, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

10

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

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action.11 The employee has not met his or her burden of proof to establish the occurrence of an
injury when there are inconsistencies in the evidence that cast serious doubt upon the validity of
the claim. Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s
statements in determining whether a prima facie case has been established.12 An employee’s
statements alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence.13
ANALYSIS -- ISSUE 1
The Board finds that appellant has met her burden of proof to establish an employment
incident in the performance of duty on July 26, 2019, as alleged.
The evidence of record consistently indicates, on July 26, 2019, appellant exited an
elevator which, unbeknownst to her, had stopped above floor level, causing her to step down hard
on her feet. Appellant asserted that, immediately following the July 26, 2019 employment
incident, she sent an e-mail to her supervisor informing him of the incident and her resulting injury.
The employing establishment acknowledged that appellant was in the performance of duty when
her injury occurred. It also indicated that its knowledge of the facts concerning appellant’s injury
comported with the statement she provided. Further, the history of the employment incident as
reported by Dr. Weisbrot was consistent with appellant’s account. The injuries appellant claimed
are consistent with the facts and circumstances she set forth, her course of action, and the medical
evidence she submitted. The Board, thus, finds that appellant has met her burden of proof to
establish an employment incident in the performance of duty on July 26, 2019, as alleged.
As appellant has established that the July 26, 2019 employment incident occurred as
alleged, the question becomes whether this incident caused a personal injury. 14 Thus, the Board
will set aside OWCP’s July 15, 2020 decision and remand the case for consideration of the medical
evidence. Following this and other such further development as deemed necessary, OWCP shall
issue a de novo decision addressing whether appellant has met her burden of proof to establish
causal relationship.15
CONCLUSION
The Board finds that appellant has met her burden of proof to establish an employment
incident in the performance of duty on July 26, 2019, as alleged.

11

M.F., Docket No. 18-1162 (issued April 9, 2019); Charles B. Ward, 38 ECAB 667, 67-71 (1987).

12

Betty J. Smith, 54 ECAB 174 (2002); L.D., Docket No. 16-0199 (issued March 8, 2016).

13

See M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67 (2007).

14

See B.S., Docket No. 19-0524 (issued August 8, 2019); Willie J. Clements, 43 ECAB 244 (1991).

15

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

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ORDER
IT IS HEREBY ORDERED THAT the July 15, 2020 decision of the Office of Workers’
Compensation Programs is reversed. The December 9, 2020 decision is set aside as moot. The
case is remanded for further proceedings consistent with this decision of the Board.
Issued: August 11, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ATLANTA VETERANS ADMINISTRATION
MEDICAL CENTER, Decatur, GA, Employer
__________________________________________

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

Docket No. 07-1713
Issued: December 7, 2007

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 June 12, 2007 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs dated November 22, 2006 which denied his claim. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he developed a
methicillin-resistant staphylococcus aureus (MRSA) infection causally related to his federal
employment.
FACTUAL HISTORY
On October 31, 2005 appellant, then a 53-year-old respiratory therapy technician, filed a
Form CA-2, occupational disease claim, alleging that exposure to MRSA during his federal
employment caused a left thigh condition. He had stopped work on September 18, 2005. By
letter dated November 9, 2005, the Office informed appellant of the type of evidence needed to

support his claim. This was to include a medical report that included a medical history, a
description of symptoms, and a firm diagnosis of the condition with an explanation of the
medical etiology of the infection. In a November 11, 2005 response, appellant provided a list of
areas in the employing establishment where he worked from July 14 to September 2, 2005 that
he considered to be high risk for MRSA infection. He stated that on September 6, 2005 he
noticed a small lump on his left thigh that gradually enlarged and became so painful that he
could not walk. On September 18, 2005 appellant went to the emergency room and had surgery.
A blood culture demonstrated MRSA. Appellant also provided laboratory test results including a
culture that demonstrated a heavy growth of MRSA. On September 18, 2005 Dr. Lynn J.
Hyland, a Board-certified surgeon, performed incision, drainage and debridement of spreading
infection of the left anterior thigh. On September 21, 2005 she performed further debridement.
A November 30, 2005 memorandum provides that appellant was informed by telephone
of the need for a medical opinion on causal relationship. By decision dated December 22, 2005,
the Office denied the claim on the grounds that the medical evidence did not establish that the
diagnosed condition was caused by the claimed employment factors. On November 9, 2006
appellant requested reconsideration and submitted reports from Dr. Hyland dated December 1
and 7, 2005 in which she advised that appellant had been under her care since September 18,
2005 for a spreading MRSA infection of his left anteromedial thigh that required surgery.
Dr. Hyland opined that appellant should remain off work until released to return to work by the
employing establishment, who was currently following his care.
By decision dated
November 22, 2006, the Office denied modification of the December 22, 2005 decision.1
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. Regardless of whether
the asserted claim involves traumatic injury or occupational disease, an employee must satisfy
this burden of proof.3
Office regulations, at 20 C.F.R. § 10.5(q) define an occupational disease as a condition
produced by the work environment over a period longer than a single workday or shift.4 To
1

On a form request dated June 4, 2007, appellant requested both reconsideration and an oral hearing with the
Office. He mailed his appeal to the Board on June 6, 2007. The Office and the Board may not have simultaneous
jurisdiction over the same issue in the same case. Following the docketing of an appeal with the Board, the Office
does not retain jurisdiction to render a further decision regarding a case on appeal until after the Board relinquishes
its jurisdiction. Any decision rendered by the Office on the same issues for which an appeal is filed is null and void.
Jacqueline S. Harris, 54 ECAB 139 (2002).
2

5 U.S.C. §§ 8101-8193.

3

Gary J. Watling, 52 ECAB 278 (2001).

4

20 C.F.R. § 10.5(q); see Ellen L. Noble, 55 ECAB 530 (2004).

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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 diagnosed
condition is causally related to the employment factors identified by the claimant. The medical
opinion must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.5
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical evidence.6 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical 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.7 Neither the mere fact
that a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.8
ANALYSIS
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an MRSA infection caused by his federal employment. Appellant identified areas of
the employing establishment that he considered high risk for infection, and the medical evidence
of record including a laboratory culture study, establishes that he had an MRSA infection in his
left thigh that required surgery on September 18 and 21, 2005. His attending general surgeon,
Dr. Hyland, provided reports dated December 1 and 7, 2005 which noted that appellant had been
under her care since September 18, 2005 for a spreading MRSA infection of the left
anteromedial thigh. She, however, did not provide a cause of appellant’s MRSA infection.
Medical evidence that does not offer any opinion regarding the cause of an employee’s condition
is of limited probative value on the issue of causal relationship.9
In order to establish entitlement, a claimant must provide a physician’s opinion that is
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
5

Solomon Polen, 51 ECAB 341 (2000).

6

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

7

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

8

Dennis M. Mascarenas, 49 ECAB 215 (1997).

9

Willie M. Miller, 53 ECAB 697 (2002).

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relationship between the diagnosed condition and the specific employment factors identified by
the claimant.10 Because appellant did not submit a reasoned medical opinion explaining how
employment factors caused his MRSA infection, he did not establish the critical element of
causal relationship.11
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an MRSA infection causally related to factors of his federal employment.12
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 22, 2006 be affirmed.
Issued: December 7, 2007
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

10

Leslie C. Moore, supra note 7.

11

See John W. Montoya, 54 ECAB 306 (2003).

12

The Board notes that appellant submitted evidence with his appeal to the Board. The Board cannot consider
this evidence, however, as its review of the case is limited to the evidence of record which was before the Office at
the time of its final decision. 20 C.F.R. § 501.2(c); see Steven S. Saleh, 55 ECAB 169 (2003).

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