United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.N., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
OFFICE OF INFORMATION &
TECHNOLOGY, Philadelphia, PA, Employer
__________________________________________

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Appearances:
Richard A. Daniels, for the appellant
Office of Solicitor, for the Director

Docket No. 15-0574
Issued: March 29, 2016

Case Submitted on the Record

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

JURISDICTION
On January 15, 2015 appellant, through his representative, filed a timely appeal of a
November 30, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established more than three percent left lower extremity
permanent impairment for which he received a schedule award.
FACTUAL HISTORY
On June 25, 2010 appellant, then a 62-year-old computer specialist, filed a traumatic
injury claim alleging that on June 23, 2010 he injured his lower back and left leg. He claimed
1

5 U.S.C. § 8101 et seq.

that he fell to the floor when trying to sit in his chair plugging in the monitor for his computer.
OWCP accepted the claim for lumbar intervertebral disc displacement without myelopathy.
Appellant stopped work on June 29, 2010. He received compensation benefits on the periodic
rolls from August 7, 2010 through August 2, 2011.
By letter dated January 13, 2013, appellant’s representative advised OWCP that he had
submitted a Form CA-7, claim for schedule award, to the employing establishment on
December 7, 2012. He requested the status of the claim.
In a report dated October 22, 2012, Dr. Arthur Becan, an orthopedic surgeon, reviewed
the medical evidence and diagnosed L4-5 herniated disc, left-sided L5 and S1 radiculopathy,
chronic post-traumatic lumbosacral sprain and strain, and status post interventional pain
management. Upon examination, appellant complained of daily and constant lumbar spine pain
and stiffness and that the pain was aggravated by his duties as a computer specialist. Dr. Becan
found that an examination of appellant’s lumbar spine revealed L3-S1 posterior midline
tenderness and bilateral paravertebral muscle spasm and tenderness. He also noted left side
iliolumbar ligamentous and sacroiliac joint tenderness. Dr. Becan reported a 28 centimeter
gastrocnemius circumference. Range of lumbar motion was 50/80 degrees forward flexion and
20/30 degrees backward, right lateral, and left lateral extension.
Using the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides), Dr. Becan placed appellant in class 1 for severe left
L5 nerve root sensory deficit using Table 2 of the July/August 2009 The Guides Newsletter. He
assigned a grade modifier 1 for Functional History (GMFH) using Table 17-6, page 575, and a
grade modifier 4 for Clinical Studies (GMCS), using Table 17-9, page 581. Using the net
adjustment formula of (GMFH - Class of Diagnosis (CDX)) + (GMPE - CDX) + (GMCS CDX), Dr. Becan found that resulted in a net grade modifier of 3, equaling a six percent
impairment of the left lower extremity.
Next, Dr. Becan assigned appellant in class IV/V motor strength deficit for left
gastrocnemius or left S1 nerve root using Table 2 of the July/August 2009 The Guides
Newsletter. He assigned a grade modifier 1 for functional history and a grade modifier 4 for
clinical studies. Using the net adjustment formula it resulted in a net grade modifier 3, equaling
a five percent impairment of the left lower extremity. Dr. Becan then combined the impairment
rating to find an 11 percent combined impairment of the left lower extremity. He determined
that appellant had reached maximum medical improvement as of October 22, 2012.
On May 14, 2013 an OWCP medical adviser reviewed the medical record. He
determined that the date of maximum medical improvement was October 22, 2012. On review
of Dr. Becan’s October 22, 2012 report, the OWCP medical adviser opined that Dr. Becan
erroneously recommended an 11 percent combined impairment rating. In support of this
opinion, he noted that no significant sensory loss had been reported by appellant’s treating
physicians. Thus, the medical adviser determined that Dr. Becan’s sensory deficit findings were
inconsistent with the majority of physicians of record. If there was further controversy on this
issue, referral to a second opinion physician was recommended. Utilizing the sixth edition of the
A.M.A., Guides, Table 16-11 on page 533, the medical adviser determined appellant’s sensory
severity was zero. Using Table 2 of the July/August 2009 The Guides Newsletter, pages 5-6 he

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placed appellant in a class 0 for no sensory deficit resulting in a zero percent lower extremity
impairment. Using Table 16-11, page 533 the medical adviser assigned grade 1 for 4/5 motor
strength of the left S1 distribution. Using Table 2 of the July/August 2009 The Guides
Newsletter, page 5-6, he placed appellant in a class 1 for mild strength deficit with a default
grade C or three percent left lower extremity. The medical adviser stated that no sensory deficit
resulted in a zero percent lower extremity impairment. He assigned a grade modifier 0 for
functional history and a grade modifier 2 for clinical studies. Using the net adjustment formula
resulted in a net grade modifier 0, equaling a final grade of C or three percent impairment of the
left lower extremity.
By decision dated May 15, 2013, OWCP granted appellant a schedule award for three
percent permanent impairment of the left lower extremity. The award ran for 8.64 weeks for the
period October 22 through December 21, 2012.
On May 28, 2013 appellant’s representative requested an oral hearing before an OWCP
hearing representative.
By decision dated August 16, 2013, an OWCP hearing representative set aside the
May 13, 2013 schedule award decision and remanded the claim for a second opinion evaluation
to resolve the discrepancy on motor or sensory loss between Dr. Becan and the numerous prior
reports from appellant’s treating physicians.
On November 20, 2013 OWCP referred appellant to Dr. Noubar A. Didizian, a Boardcertified orthopedic surgeon for an impairment rating of appellant’s lower extremities.2 In a
January 3, 2014 report, Dr. Didizian concluded that appellant had a zero percent left lower
extremity impairment. He stated that appellant “did not have true radicular complaints,” but
rather intermittent pain from his back to the posterior thigh. A physical examination revealed no
sciatic notch or greater trochanter trigger points, negative straight leg raising, no L5 or S1
dermatome findings, and alternating gait. Range of motion included 40 degrees rotation, 10
degrees extension, 70 degrees left straight leg raising, and 90 degres right straight leg raising.
Using Table 16-11, page 533 Dr. Didizian found a zero percent lower extremity sensory
impairment as appellant had no sensory changes. Next, he found a zero percent left lower
extremity motor impairment using the Table 16-11, page 533 as appellant had no weakness of
the L3-5 and S1 dermatones, a zero severity, normal criteria and normal grade 5/5. Dr. Didizian
also found a zero percent left lower extremity impairment using Table 2 of the July/August 2009
The Guides Newsletter, page 5-6. He noted a default classification of grade C which equaled a
three percent impairment, but found a zero percent left lower extremity impairment due to the
intact motor examination, and no applicable GMCS modifier. Dr. Didizian concluded that grade
modifiers were inapplicable as there wa no impairment and appellant’s final left lower extremity
impairment was zero percent, based upon intact motor and sensory examinations and no
evidence of radiculopathy.
2

OWCP had previously referred appellant for a second opinion evaluation, to determine whether he sustained a
permanent impairment due to his accepted employment injury permanent impairment evaluation using the sixth
edition of the A.M.A., Guides. In an October 1, 2013 report, Dr. Didizian examined appellant’s upper extremities
and concluded that he did not sustain any upper extremity injury.

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In a January 29, 2014 report, an OWCP medical adviser reviewed and concurred with
Dr. Didizian’s opinion that appellant was not entitled to an additional schedule award. He noted
that Dr. Becan’s finding of severe left L5 distribution sensory deficits was inconsisent with the
findings of no signficant sensory loss by appellant’s treating physicians.
By decision dated January 30, 2014, OWCP denied appellant’s claim for an additional
schedule award. It found that the medical evidence did not establish a “permanent, measurable,
scheduled impairment and, thus, he was not entitled to a schedule award for left lower extremity
impairment.
In a February 5, 2014 letter, appellant’s representative requested a telephonic hearing
before an OWCP hearing representative, which was held on August 6, 2014.
By decision dated November 30, 2014, an OWCP hearing representative affirmed the
January 30, 2014 decision denying appellant’s request for an additional schedule award.
LEGAL PRECEDENT
Under section 8107 of FECA3 and section 10.404 of the implementing federal
regulations,4 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 be determined. For consistent results and to ensure equal justice under the law
for all claimants, good administrative practice necessitates the use of a single set of tables so that
there may be uniform standards applicable to all claimants. The A.M.A., Guides has been
adopted by the implementing regulations as the appropriate standard for evaluating schedule
losses.5
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. Recognizing that certain jurisdictions, such as
federal claims under FECA, mandate ratings for extremities and preclude ratings for the spine,
the A.M.A., Guides has offered an approach to rating spinal nerve impairments consistent with
sixth edition methodology.6 For peripheral nerve impairments to the upper or lower extremities
resulting from spinal injuries, OWCP procedures provide that The Guides Newsletter, Rating
Spinal Nerve Extremity Impairment using the sixth edition (July/August 2009) is to be applied as
provided in section 3.700 of its procedures. Specifically, it will address lower extremity
impairments originating in the spine through Table 16-11 19 and upper extremity impairment
originating in the spine through Table 15-14.7
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

D.J., 59 ECAB 620 (2008); Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

6

FECA Transmittal No. 10-04 (issued January 9, 2010); Federal (FECA) Procedure Manual, Part 3 -- Medical,
Schedule Awards, Chapter 3.700, at Exhibit 4 (January 2010).
7

A.M.A., Guides 533, Table 16-11. See E.M., Docket No. 14-178 (issued September 28, 2015).

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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).8 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition, which is then adjusted by grade modifiers based on GMFH, GMPE, and
GMCS.9 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).10
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed through an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with an OWCP medical
adviser providing rationale for the percentage of impairment specified.11
ANALYSIS
The Board finds that appellant has not established more than three percent left lower
extremity impairment for which he had previously received a schedule award.
On October 22, 2012 Dr. Becan, the examining physician, diagnosed L4-5 herniated disc,
left-sided L5 and S1 radiculopathy, chronic post-traumatic lumbosacral sprain and strain, and
status post interventional pain management. He determined that appellant had an 11 percent
impairment of the left lower extremity due to sensory and motor strength deficits. In reaching
this determination, Dr. Becan placed appellant in class 1 for severe left L5 nerve root sensory
deficit using Table 2 of the July/August 2009 The Guides Newsletter. He assigned a grade
modifier 1 for GMFH using Table 17-6, page 575, and a grade modifier 4 for GMCS, using
Table 17-9, page 581. Using the net adjustment formula of (GMFH - CDX) + (GMPE - CDX) +
(GMCS - CDX), Dr. Becan found a net grade modifier 3, equaling a six percent impairment of
the left lower extremity. Next, he assigned appellant in class 4/5 motor strength deficit for left
gastrocnemius or left S1 nerve root using Table 2 of the July/August 2009 The Guides
Newsletter. Dr. Becan assigned a grade modifier 1 for GMFH using and a grade modifier 4 for
GMCS. Using the net adjustment formula of (GMFH - CDX) + (GMPE - CDX) + (GMCS CDX), he found that (1-1) + (4-1) resulted in a net grade modifier 3, equaling a five percent
impairment of the left lower extremity. Dr. Becan then combined the impairment rating to find
an 11 percent combined impairment of the left lower extremity.
OWCP referred the medical evidence to an OWCP medical adviser, who disagreed with
Dr. Becan’s impairment rating because Dr. Becan’s sensory loss findings were inconsistent with
the medical evidence of record. As instructed by OWCP hearing representative OWCP referred
appellant to Dr. Didizian for a second opinion evaluation. In a January 3, 2014 report,
8

A.M.A., Guides (6th ed. 2009), page 3, section 1.3, The ICF, Disability and Health: A Contemporary Model of
Disablement.
9

Id. at page 383-419.

10

Id. at page 411.

11

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (January 2010). See C.K., Docket No. 09-2371 (issued August 18, 2010); Frantz Ghassan,
57 ECAB 349 (2006).

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Dr. Didizian found that appellant had no impairment of his left lower extremity as there were no
sensory or motor deficits due to the accepted lumbar condition, and no findings of radiculopathy.
OWCP then referred the medical evidence to an OWCP medical adviser, who agreed with
Dr. Didizian’s determination that appellant had no left lower extremity impairment on
January 29, 2014.
The Board finds that Dr. Becan’s report is of diminished probative value as his findings
were inconsistent with the findings of the other physicians of record. Thus, the Board finds that
the weight of the evidence rests with the well-reasoned reports of Dr. Didizian and OWCP
medical adviser’s second opinion who advised that appellant had no sensory or motor deficits,
and no finding of radiculopathy resulting in a zero percent left lower extremity impairment.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that he is entitled to greater than three
percent left lower extremity impairment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 30, 2014 is affirmed.12
Issued: March 29, 2016
Washington, DC

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

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

12

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.S., Appellant
and
DEPARTMENT OF THE TREASURY,
BUREAU OF THE FISCAL SERVICE,
Parkersburg, WV, Employer
__________________________________________

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

Docket No. 16-0344
Issued: April 4, 2016

Case Submitted on the Record

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

JURISDICTION
On December 16, 2015 appellant filed a timely appeal from a November 17, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he has reached
maximum medical improvement (MMI) regarding his accepted conditions, warranting a
schedule award pursuant to 5 U.S.C. § 8107.
On appeal, appellant contends that his doctor and OWCP’s second opinion physician
agreed that he had reached MMI in 2013 and requests reconsideration of his claim for a schedule
award.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 24, 2011 appellant, a 61-year-old mail clerk, filed an occupational disease
claim (Form CA-2) alleging that he developed osteoarthritis of the basal joint of both hands due
to factors of his federal employment, including heavy lifting, twisting, and repetitive motions.
OWCP accepted the claim for bilateral aggravation of localized primary osteoarthritis of the
hands. Appellant returned to a light-duty position as an office automation clerk and then filed a
claim for a recurrence of disability (Form CA-2a). OWCP accepted that appellant sustained a
recurrence of disability on June 15, 2011 and expanded acceptance of the claim to include
bilateral lateral epicondylitis.2 Appellant was placed on the periodic rolls and received
appropriate compensation benefits.
OWCP referred appellant to Dr. David K. Halley, a Board-certified orthopedic surgeon,
for a second opinion evaluation to determine the nature and extent of his employment-related
conditions. In his October 25, 2013 report, Dr. Halley reviewed a statement of accepted facts,
appellant’s medical history, and conducted a physical examination. He found appellant’s right
hand was very tender at the base of his thumb and thumb opposition for both hands was three
centimeters. Dr. Halley further found that appellant had weakness on pinch and grip strength
and related a history of dropping things, having weakness, and not being able to do routine things
that he used to do, such as drive a car, write a letter, or work with a keyboard. Regarding his
right elbow, appellant had some mild discomfort on palpation of the lateral epicondylar region,
but stress testing was negative for the diagnosis of lateral epicondylitis. Dr. Halley concluded
that appellant continued to suffer residuals of his work-related conditions and opined that he was
totally disabled for work. He noted that a functional capacity evaluation dated March 5, 2013
demonstrated that appellant could not even work in a sedentary position. In an October 25, 2013
work capacity evaluation, Dr. Halley checked a box “yes” indicating that appellant had reached
MMI.
On December 22, 2014 appellant filed a claim for a schedule award (Form CA-7).
In a December 29, 2014 letter, OWCP advised appellant of the evidence needed to
establish his claim, including a physician’s opinion that he had reached a fixed and stable state,
known as MMI, and an evaluation of any permanent impairment utilizing the sixth edition of the
A.M.A., Guides. It afforded him 30 days to submit this evidence.
Subsequently, appellant submitted a January 8, 2015 report from Dr. Rafid Kakel, a
Board-certified occupational medicine specialist, who opined that appellant was totally disabled.
He also resubmitted the October 25, 2013 work capacity evaluation from Dr. Halley who
checked a box “yes” indicating that appellant had reached MMI.
In a June 13, 2013 report, Dr. Stephen E. Popper, a Board-certified occupational
medicine specialist, noted that appellant was being seen for a routine clinic follow-up of a
workplace injury. Appellant complained of ongoing weakness in both hands and elbows.
2

On February 28, 2013 appellant filed a claim for wage-loss compensation (Form CA-7) for the period
January 30 to February 4, 2013. By decisions dated May 3, 2013 and February 24, 2014, OWCP denied the claim
finding that the evidence was insufficient to establish that he was totally disabled for the period claimed.

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Dr. Popper diagnosed bilateral lateral epicondylitis and bilateral localized primary osteoarthritis
of the hand. He reviewed a functional capacity evaluation and found that appellant was not able
to perform sedentary work. Dr. Popper opined that appellant had no other treatment options and
concluded that he had reached MMI. Later in the report, he also stated that appellant was not at
MMI at the current time.
In a report dated August 30, 2013, Dr. Popper reiterated his opinion that appellant had
reached MMI and was totally disabled. He asserted that he had previously determined that
appellant had reached MMI during an office visit on June 13, 2013. Dr. Popper found that
appellant continued to suffer residuals of his accepted conditions and advised that his permanent
restrictions precluded him from performing his position as an office automation clerk.
By decision dated January 29, 2015, OWCP denied appellant’s schedule award claim
finding that no medical evidence had been received.
On February 17, 2015 appellant requested an oral hearing before the Branch of Hearings
and Review and submitted diagnostic studies dated May 9 and 10, 2012 and physical therapy
notes dated August 23 and September 18, 2013. He further submitted reports dated January 8
and June 8, 2015 from Dr. Kakel who diagnosed lateral epicondylitis and localized, primary
osteoarthritis of the hand.
A telephonic hearing was held before an OWCP hearing representative on
September 8, 2015. Appellant testified that Dr. Popper determined that he had reached MMI on
June 13, 2013.
By decision dated November 17, 2015, the OWCP hearing representative denied
appellant’s schedule award claim, finding that the medical evidence of record was insufficient to
establish that his accepted conditions had reached MMI.
LEGAL PRECEDENT
FECA authorizes the payment of schedule awards for the loss or loss of use of specified
members, organs, or functions of the body.3 Such loss or loss of use is known as permanent
impairment. OWCP evaluates the degree of permanent impairment according to the standards
set forth in the sixth edition of the A.M.A., Guides.4
Permanent impairment may only be rated according to the A.M.A., Guides and only after
MMI has been achieved. Impairment should not be considered permanent until a reasonable
time has passed for the healing or recovery to occur. This will depend on the nature of
underlying pathology, as the optimal duration for recovery may vary considerably from days to

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404. For impairment ratings calculated on and after May 1, 2009, OWCP should advise any
physician evaluating permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5.a (February 2013).

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months. The clinical findings must indicate that the medical condition is static and well
stabilized for the person to have reached MMI.5
A preliminary element for considering a schedule award is establishing that the claimant
has attained MMI.6 The A.M.A., Guides explain that impairment should not be considered
permanent until the clinical findings indicate that the medical condition is static and well
stabilized. The A.M.A., Guides note that an individual’s condition is dynamic. MMI refers to a
date from which further recovery or deterioration is not anticipated, although over time there
may be some expected change. Once impairment has reached MMI, a permanent impairment
rating may be performed.7
The period covered by a schedule award commences on the date that the employee
reaches MMI from the residuals of the injury. The question of when MMI has been reached is a
factual one that depends upon the medical findings in the record. The determination of such date
is to be made in each case upon the basis of the medical evidence in that case.8 The date of MMI
is usually considered to be the date of the medical examination that determined the extent of the
impairment.9
ANALYSIS
OWCP accepted that appellant developed bilateral aggravation of localized primary
osteoarthritis of the hands and bilateral lateral epicondylitis due to factors of his federal
employment. On December 22, 2014 appellant filed a claim for a schedule award. In a
November 17, 2015 decision, an OWCP hearing representative denied appellant’s schedule
award claim, finding that the medical evidence of record was insufficient to establish that his
accepted conditions had reached MMI. On appeal, appellant contends that his treating physician
and OWCP’s second opinion physician agreed that he had reached MMI in 2013.
The Board finds that this case is not in posture for decision.
Appellant bears the burden of proof to establish his entitlement to a schedule award and
the element of MMI is a requirement for granting a schedule award.10 In D.S.,11 the claimant’s
treating physician provided the only report in the record containing an impairment rating and
5

A.M.A., Guides 24 (6th ed. 2009); see Orlando Vivens, 42 ECAB 303 (1991) (a schedule award is not payable
until MMI -- meaning that the physical condition of the injured member of the body has stabilized and will not
improve further -- has been reached).
6

See J.D., Docket No. 12-481 (issued November 17, 2012).

7

A.M.A., Guides 20, Table 201 (6th ed. 2009); Orlando Vivens, supra note 5.

8

See D.S., Docket No. 15-1244 (issued August 24, 2015).

9

Id. See also Richard Larry Enders, 48 ECAB 184 at n.12 (1996) (where, for example, the date of MMI was the
date of the audiological examination).
10

See supra note 8.

11

Id.

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evaluation and he opined that appellant was not at MMI. In A.T.,12 the treating physician
indicated in earlier reports that the employee had reached MMI, but his most recent medical
report did not support a finding of MMI. In both cases, the Board found that OWCP properly
determined that the medical evidence of record did not establish MMI.
The instant case is distinguishable from these, however, because appellant’s treating
physician, Dr. Popper, opined that appellant had reached MMI on June 13, 2013. Although there
was a slight discrepancy in his June 13, 2013 report regarding MMI, the Board finds that
Dr. Popper clarified his opinion in his most recent report, dated August 30, 2013, which
supported a finding of MMI. He reiterated his opinion that appellant had reached MMI and
asserted that he had previously determined that appellant had reached MMI on June 13, 2013.
Moreover, the record also contains an October 25, 2013 report from OWCP’s second opinion
physician, Dr. Halley, who checked a box “yes” indicating that appellant had reached MMI.
The Board finds that the reports of Drs. Popper and Halley are consistent in finding that
appellant had reached MMI in 2013. These reports are not contradicted by any substantial
medical or factual evidence of record.13
It is well established that proceedings under FECA are not adversarial in nature and while
the claimant has the burden of establishing entitlement to compensation, OWCP shares
responsibility in the development of the evidence to see that justice is done.14
On remand, OWCP should develop the evidence and refer appellant, together with the
case record and a statement of accepted facts, to an appropriate specialist for an examination to
determine the extent and degree of any employment-related permanent impairment. After such
further development as it deems necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

12

Docket No. 13-1908 (issued May 23, 2014).

13

See E.J., Docket No. 09-1481 (issued February 19, 2010).

14

See Phillip L. Barnes, 55 ECAB 426 (2004); Virginia Richard (Lionel F. Richard), 53 ECAB 430 (2002).

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ORDER
IT IS HEREBY ORDERED THAT the November 17, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision of the Board.
Issued: April 4, 2016
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
U.S. POSTAL SERVICE, SOUTHEASTERN
POSTAL & DISTRIBUTION FACILITY,
Southeastern, PA, Employer
__________________________________________

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

Docket No. 09-1017
Issued: January 5, 2010

Case Submitted on the Record

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

JURISDICTION
On March 9, 2009 appellant filed a timely appeal from a December 17, 2008 decision of
the Office of Workers’ Compensation Programs denying a schedule award increase. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has established that she sustained greater than a 10 percent
impairment of the right upper extremity, for which she received a schedule award.
On appeal, appellant asserts that the opinion of Dr. James N. Nutt, III, an impartial
medical examiner, was insufficient to represent the weight of the medical evidence. She
contends that he did not provide new findings on examination, failed to include adduction
measurements, mischaracterized appellant’s surgical history and used improper methods to
assess the percentage of permanent impairment.

FACTUAL HISTORY
This is the third appeal before the Board in this case. By decision issued January 17,
2008, the Board set aside a January 8, 2007 decision of the Office denying a schedule award
increase. The Board found that Dr. Nutt, a Board-certified orthopedic surgeon and impartial
medical examiner, failed to provide range of motion measurements for adduction, flexion and
extension of the right shoulder. The Board remanded the case to the Office to obtain a
supplemental report from Dr. Nutt. The law and the facts of the case as set forth in the prior
decision are hereby incorporated by reference.
1

In a February 26, 2008 letter, the Office requested a supplemental report from Dr. Nutt
listing “range of motion measurements regarding adduction, flexion and extension of the right
shoulder.” It emphasized that the American Medical Association, “Guides to the Evaluation of
Permanent Impairment” (hereinafter, “A.M.A. Guides”) provided that these ranges of motion
must be assessed when evaluating shoulder impairment. The Office provided an updated
statement of accepted facts and the medical record.
In a March 3, 2008 report, Dr. Nutt explained that he did not measure shoulder adduction
during his October 13, 2005 examination because appellant’s arm “was comfortably at her side
at rest.” He stated that she had “no loss of range of motion compared to her left side” and no
“actual loss of motion based on [his] and a consensus of the other examiners’ examinations.”
Dr. Nutt assessed a one percent impairment due to pain causing a functional loss of abduction,
“estimated from Figure 16-43, page 477.”2
On May 6, 2008 the Office referred Dr. Nutt’s March 3, 2008 report to an Office medical
adviser for calculation of a schedule award. In a May 17, 2008 report, an Office medical adviser
found that appellant had reached maximum medical improvement as of Dr. Nutt’s evaluation on
March 17, 2006. The medical adviser concurred with Dr. Nutt that she underwent an
acromioplasty and not a distal clavicle resection. He noted that Dr. David Weiss, an attending
osteopathic physician, erred in his August 1, 2000 report by assessing a 10 percent upper
extremity impairment for right shoulder surgery although the A.M.A., Guides did not “rate an
acromioplasty.” The medical adviser concurred with Dr. Nutt’s assessment of full range of
motion. He opined that appellant did not have any impairment due to pain. The medical adviser
concluded that she had no more than a 10 percent impairment of the right upper extremity.
By decision dated May 29, 2008, the Office denied an additional schedule award. It
found that Dr. Nutt’s opinion established that appellant did not sustain more than a 10 percent
impairment of the right upper extremity, for which she received a schedule award. The Office
stated that because Dr. Nutt “felt that there was full range of motion” in the right upper
extremity, “there was no need to provide range of motion measurements regarding abduction,
flexion and extension of the right shoulder.”

1

Docket No. 07-1672 (issued January 17, 2008).

2

Figure 16-43, page 477 of the fifth edition of the A.M.A., Guides is entitled, “Pie Chart of Upper Extremity
Motion Impairments Due to Lack of Abduction and Adduction of Shoulder.”

2

In a June 3, 2008 letter, appellant requested an oral hearing, held October 27, 2008 by
teleconference. At the hearing, appellant’s attorney requested a review of the written record in
lieu of the hearing.
By decision dated and finalized December 17, 2008, the Office affirmed the May 29,
2008 decision, finding that appellant had not established that she sustained more than a
10 percent impairment of the right upper extremity. It found that the weight of the medical
evidence rested with Dr. Nutt, who properly applied the A.M.A., Guides to the clinical findings.
LEGAL PRECEDENT
The schedule award provisions of the Federal Employees’ Compensation Act3 provide for
compensation to employees sustaining impairment from loss or loss of use of specified members of
the body. The Act, 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 Office. 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 the Office as a standard for
evaluation of schedule losses and the Board has concurred in such adoption.4
The standards for evaluation the permanent impairment of an extremity under the
A.M.A., Guides are based on loss of range of motion, together with all factors that prevent a limb
from functioning normally, such as pain, sensory deficit and loss of strength. All of the factors
should be considered together in evaluating the degree of permanent impairment.5 Chapter 16 of
the fifth edition of the A.M.A., Guides provides a detailed grading scheme and procedures for
determining impairments of the upper extremities due to pain, discomfort, restricted motion, loss
of sensation or loss of strength.6 Chapter 16 specifies that flexion, extension, abduction,
adduction internal rotation and external rotation are all to be considered in evaluating
impairments of shoulder motion.7 The A.M.A., Guides provides specific grading schemes for
rating upper extremity impairments due to restricted motion, including a lack of flexion and
extension of the shoulder.8
Section 8123 of the Act provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
3

5 U.S.C. §§ 8101-8193.

4

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

5

See Paul A. Toms, 28 ECAB 403 (1987).

6

A.M.A. Guides, Chapter 16, “The Upper Extremities,” pp. 433-521 (5th ed. 2001).

7

A.M.A. Guides, Chapter 16, “The Upper Extremities,” p. 474, paragraph 16.4i, “Shoulder Motion Impairment.”

8

Figure 16-40, page 476 of the A.M.A., Guides is entitled “Pie Chart of Upper Extremity Motion Impairments
Due to Lack of Flexion and Extension of Shoulder.” Supra note 2. Figure 16-46, page 479 of the A.M.A., Guides is
entitled “Pie Chart of Upper Extremity Motion Impairments Due to Lack of Internal and External Rotation of
Shoulder.”

3

shall appoint a third physician, who shall make an examination.9 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.10 However, in a situation where the Office 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, it has the responsibility to
secure a supplemental report from the examiner for the purpose of correcting the defect in the
original opinion.11
ANALYSIS
The Office accepted that appellant sustained bicipital tendinitis of the right shoulder and
a right rotator cuff tear, requiring surgery on February 19, 1999. Pursuant to the first appeal, the
Board found a conflict of medical evidence between an Office medical adviser and Dr. Weiss, an
attending osteopath, regarding the percentage of permanent impairment. On remand of the case,
the Office obtained an impartial medical opinion from Dr. Nutt, a Board-certified orthopedic
surgeon. Based on Dr. Nutt’s opinion, the Office awarded appellant a schedule award for a 10
percent impairment to the right upper extremity. Pursuant to the second appeal, the Board
remanded the case to obtain a supplemental report from Dr. Nutt, with specific measurements for
right shoulder motion. Dr. Nutt submitted a March 3, 2008 addendum explaining why he did not
provide complete range of motion measurements.
By decisions issued May 29 and
December 17, 2008, the Office found that appellant had not established more than a 10 percent
impairment of the right upper extremity, based on Dr. Nutt’s opinion as the weight of the
medical evidence. The Board finds, however, that his opinion is insufficient to resolve the
conflict of medical opinion in this case.
The A.M.A., Guides provides that adduction, flexion and extension of the shoulder must
be assessed when evaluating range of motion.12 The Office explained this to Dr. Nutt in its
February 26, 2008 letter requesting a supplemental report. Yet, Dr. Nutt did not provide these
measurements. In his March 3, 2008 report, he admitted that he did not measure shoulder
adduction during his October 13, 2005 examination. Dr. Nutt provided two reasons for this
omission. First, a visual inspection revealed no apparent loss of adduction. However, the
A.M.A., Guides requires that actual measurements be obtained.13 Merely, visualizing the
affected limb is insufficient. Second, Dr. Nutt found that appellant had “no loss of range of
motion compared to her left side.” However, the A.M.A. Guides does not recognize comparing
one limb to another as a valid method for assessing range of motion. As Dr. Nutt failed to
provide complete range of motion measurements for the upper extremities, the Board cannot
9

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

10

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

11

Margaret M. Gilmore, 47 ECAB 718 (1996).

12

Supra note 7.

13

Id.

4

fully visualize the extent of appellant’s impairment due to the accepted conditions.14
Additionally, he estimated a one percent impairment for functional loss of abduction due to pain.
The speculative nature of this opinion further diminishes its probative quality.15 Due to these
deficiencies, the Board finds that the Office’s reliance on Dr. Nutt’s opinion was improper.
As stated, if an impartial medical specialist is unable to clarify his opinion as requested,
the case should be referred to another appropriate impartial medical specialist.16 Dr. Nutt was
unable to clarify his report as requested. The case will be remanded to the Office for
appointment of a new impartial medical examiner to resolve the still outstanding conflict of
medical opinion between Dr. Weiss and an Office medical adviser. Following this and any other
development deemed necessary, the Office shall issue an appropriate decision in the case.
On appeal, appellant asserts that Dr. Nutt’s opinion could not represent the weight of the
medical evidence as he did not provide complete range of motion measurements, misstated her
surgical history and used nonstandard methods to assess range of motion. As stated, the Board
finds that Dr. Nutt’s opinion was incomplete and speculative. Therefore, it was insufficient to
resolve the conflict of medical opinion. On remand of the case, the Office will appoint a new
impartial medical examiner.
CONCLUSION
The Board finds that the case is not in posture for a decision as there is a conflict of
medical opinion. The case will be remanded to the Office for further development.

14

A.L., 60 ECAB ___ (Docket No. 08-1730, issued March 16, 2009).

15

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

16

Guiseppe Aversa, 55 ECAB 164 (2003).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 17, 2008 is set aside and the case remanded for further
development consistent with this decision.
Issued: January 5, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________

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Appearances:
Steve Burt, for the appellant
Office of Solicitor, for the Director

Docket No. 11-1439
Issued: February 15, 2012

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 June 1, 2011 appellant, through her representative, filed a timely appeal from the
April 26, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which affirmed the termination of her compensation and denied a consequential injury. Pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to review the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly terminated appellant’s compensation; and
(2) whether the August 7, 1996 work injury caused a consequential back or hip injury.
FACTUAL HISTORY
On August 7, 1996 appellant, then a 35-year-old letter carrier, sustained an injury in the
performance of duty when she stepped down onto a loose step and felt a sharp pain. She
1

5 U.S.C. § 8101 et seq.

described the nature of her injury as “left ankle, lower middle back and shoulder.” OWCP
accepted appellant’s claim for left ankle tendinitis. Appellant did not stop work. Beginning
October 24, 2009, the employing establishment reduced her hours under the National
Reassessment Process.
On March 11, 2008 Dr. Michael J. Geoghegan, an orthopedic surgeon and OWCP
second-opinion physician, found that appellant’s left ankle condition had resolved. Appellant’s
clinical examination showed no findings of left ankle tendinitis. Based on Dr. Geoghegan’s
findings and record review, her left foot symptoms were secondary to left hip arthritis. On
April 16, 2010 Dr. Michael E. Holda, another orthopedic surgeon and OWCP second-opinion
physician, agreed. There was no evidence of ongoing tendinitis in the left ankle. Appellant’s
examination was normal. Dr. Holda found that the degenerative condition of her left hip was
unrelated to the 1996 work injury.
Dr. Laran Lerner, appellant’s attending physiatrist, found that objective medical testing
showed that appellant had an “ongoing injury and problems relating to her left ankle.” On
examination, she found tenderness to palpation over the left ankle and pain and tenderness to the
end ranges of left ankle motion. A May 20, 2010 magnetic resonance imaging (MRI) scan
showed objective abnormality and ongoing injury to the left ankle, sequelae of a sprain of the
lateral/collateral complex. It also showed severe bilateral hip osteoarthritis. Dr. Lerner found
that appellant’s chronic left ankle injury and resulting altered gait either caused or aggravated her
left hip pathology, as well as a lumbosacral radiculopathy presenting as intermittent low back
pain.
To resolve this conflict, OWCP referred appellant, together with the medical record and a
statement of accepted facts, to Dr. Emmanuel N. Obianwu, a Board-certified orthopedic surgeon.
On September 16, 2010 Dr. Obianwu reviewed the statement of accepted facts and appellant’s
medical history. He described what happened on August 7, 1996, the treatment she received and
her current complaints. Dr. Obianwu reviewed the reports of Drs. Geoghegan, Holda and Lerner
and the MRI scans of the left ankle and hips. He noted that the May 20, 2010 MRI scan of the
left ankle showed mild insertional Achilles tendinitis without tear, mild plantar surface calcaneal
spurring and reactive stress edema. There was mild posterior tibialis and peroneus longus
tendinosis and mild thickening of the calcaneofibular ligament. The MRI scan of the hips
showed severe bilateral hip osteoarthritis.
On physical examination, Dr. Obianwu found no swelling around the left ankle. There
was no lateral instability. The anterior drawer test was negative. The circumference was the
same on both sides with equal range of motion in both ankles. Gross movements were identical
on both sides, though appellant complained of pain on passive motion on the left. She was able
to walk on her heels without difficulty and walk on her toes with minimal difficulty on the left.
The distal pulses were adequate. Appellant had good strength of eversion and inversion in the
left foot and ankle. There was no tenderness elicited over the intact Achilles tendon. There were
no sensory abnormalities in the foot, ankle or lower extremity.
Dr. Obianwu diagnosed: resolved soft-tissue injury of the left ankle; MRI scan findings
of tendinitis of all the tendons in the left ankle; severe degenerative arthritis in the left hip and
mild age-related lumbar disc disease.

2

Dr. Obianwu concluded that the condition of left ankle tendinosis clinically did not
remain and had resolved. This was consistent, he noted, with the findings of Dr. Geoghegan in
2008 and Dr. Holda in 2010, and it would be reasonable to state that the condition no longer
existed at the time of Dr. Holda’s examination. Dr. Obianwu found that the low back and left
hip problems were not related to the August 7, 1996 work incident. A careful review of the
medical records, especially those of Dr. Lerner, showed no complaint of low back pain until
about 2000. The left hip pathology was typically degenerative. Dr. Obianwu noted degenerative
changes on the right side as well, an age-related and genetically programmed condition. He
could not identify any active injuries from the August 7, 1996 accident, and as he could not find
any residuals of that accident, he could not attribute any of her problems to it.
On September 28, 2010 OWCP terminated appellant’s compensation for the August 7,
1996 work injury.
Appellant’s representative questioned Dr. Obianwu’s competence and submitted two
online patient ratings. He argued that the actual examination was not thorough and that the
Dr. Obianwu’s report was very poorly rationalized.
In a decision dated April 26, 2011, OWCP’s hearing representative affirmed the
termination of compensation for the accepted medical condition. The hearing representative
found that Dr. Obianwu provided a probative and sufficiently rationalized opinion based on his
examination findings.
On appeal, counsel argues that Dr. Obianwu’s opinion is not entitled to special weight.
He cites a major contradiction between the MRI scan showing tendinitis of all tendons in the left
ankle and the doctor’s conclusion that appellant did not have a left heel tendinitis diagnosis.
Counsel cited as precedent James R. Driscoll.2
LEGAL PRECEDENT -- ISSUE 1
The United States shall pay compensation for the disability of an employee resulting
from personal injury sustained while in the performance of duty.3 Once OWCP accepts a claim,
it has the burden of proof to justify termination or modification of compensation benefits.4 After
it has determined that a claimant has disability causally related to federal employment, OWCP
may not terminate compensation without establishing that the disability has ceased or that it is no
longer related to the employment.5
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
2

50 ECAB 146 (1998).

3

5 U.S.C. § 8102(a).

4

Harold S. McGough, 36 ECAB 332 (1984).

5

Vivien L. Minor, 37 ECAB 541 (1986); David Lee Dawley, 30 ECAB 530 (1979); Anna M. Blaine, 26 ECAB
351 (1975).

3

make an examination.6 When 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.7
ANALYSIS -- ISSUE 1
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation for the accepted condition of left ankle tendinitis. Having properly referred
appellant to an impartial medical specialist to resolve a conflict in the matter, pursuant to 5
U.S.C. § 8123(a), the issue becomes whether the opinion of Dr. Obianwu, the Board-certified
orthopedic surgeon selected to resolve the conflict, is entitled to special weight.
OWCP provided Dr. Obianwu with a statement of accepted facts and appellant’s medical
record so he could base his opinion on a proper factual and medical history. Dr. Obianwu
reviewed both. He noted that the May 20, 2010 MRI scan of the left ankle showed mild
insertional Achilles tendinitis without tear and mild posterior tibialis and peroneus longus
tendinosis. Dr. Obianwu’s clinical examination of appellant, however, was quite benign. Of
particular note, there was no tenderness over the Achilles tendon, and appellant had good
strength on inversion and eversion of the left ankle. Also, she was able to walk on her heels
without difficulty, and she was able to walk on her toes with only minimal difficulty on the left.
There was no swelling or instability and gross movements were identical on both sides.
Dr. Obianwu concluded that the soft-tissue injury appellant sustained on August 7, 1996
had resolved on a clinical basis. This is entirely consistent with his findings on physical
examination. Although the MRI scan showed mild insertional Achilles tendinitis, there was no
tenderness over the Achilles tendon. Although the MRI scan showed mild posterior tibialis and
peroneus longus tendinosis, inversion and eversion of the left ankle were strong. What
Dr. Obianwu observed was that any detection of tendinitis on the imaging study was not
manifesting itself in any meaningful way on physical examination. The Board finds no
contradiction in his diagnosis of tendinitis from the 2010 MRI scan and his conclusion that the
soft-tissue injury sustained in 1996 had resolved.
The Board finds that Dr. Obianwu’s opinion is based on a proper factual and medical
history and is sufficiently well rationalized that it must be accorded special weight in resolving
the conflict that arose between the attending physician and OWCP’s second-opinion physicians
on the issue of termination. As Dr. Obianwu’s opinion constitutes the special weight of the
medical evidence, the Board finds that OWCP has met its burden of proof to justify the
termination of compensation for appellant’s 1996 left ankle tendinitis. The Board will affirm the
April 26, 2011 decision on the issue of termination.

6

5 U.S.C. § 8123(a).

7

Carl Epstein, 38 ECAB 539 (1987); James P. Roberts, 31 ECAB 1010 (1980).

4

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
It is an accepted principle of workers’ compensation law that when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent, intervening cause attributable to the employee’s own intentional conduct.8
The claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that her condition was caused or adversely affected by her employment.9
When OWCP secures an opinion from an impartial medical specialist for the purpose of
resolving a conflict in the medical evidence and the opinion from the specialist requires
clarification or elaboration, it has the responsibility to secure a supplemental report from the
specialist for the purpose of correcting a defect in the original report. When the impartial
medical specialist’s statement of clarification or elaboration is not forthcoming or if the specialist
is unable to clarify or elaborate on the original report or if the specialist’s supplemental report is
also vague, speculative or lacks rationale, OWCP must submit the case record together with a
detailed statement of accepted facts to a second impartial specialist for a rationalized medical
opinion on the issue in question.10 Unless this procedure is carried out by OWCP, the intent of
section 8123(a) of the will be circumvented when the impartial specialist’s medical report is
insufficient to resolve the conflict of medical evidence.11
ANALYSIS -- ISSUE 2
A conflict also arose on whether appellant’s 1996 left ankle tendinitis caused or
aggravated a low back or left hip pathology. Dr. Obianwu found that her low back problems
were unrelated to the August 7, 1996 incident. His review of the medical records, especially
those of Dr. Lerner, the attending physiatrist, showed no complaint of low back pain until about
2000. Dr. Obianwu noted limitation in flexion of the thoracolumbar spine with normal lateral
bending. There was no paraspinous muscle spasm elicited or atrophy in any of the muscle
groups of the lumbar spine. He noted that diagnostic testing revealed severe bilateral hip
osteoarthritis.
Dr. Obianwu found that appellant’s hip problems were not related to the August 7, 1996
employment injury because the pathology was typically degenerative in nature and unrelated to
the accepted injury. Appellant also had degenerative changes on the right, an age-related and
8

John R. Knox, 42 ECAB 193 (1990); Lee A. Holle, 7 ECAB 448 (1955).

9

Pamela R. Rice, 38 ECAB 838, 841 (1987).

10

See Nathan L. Harrell, 41 ECAB 402 (1990).

11

Harold Travis, 30 ECAB 1071 (1979).

5

genetically programmed condition. The Board finds that the opinion of Dr. Obianwu, the
impartial specialist, is entitled to special weight as it is based on a thorough examination of
appellant and the medical records.
On appeal, appellant’s representative cites James R. Driscoll, in which the Board found
that the opinion of an impartial medical specialist was not entitled to special weight because he
did not base his opinion on a complete and accurate factual background. The impartial medical
specialist in that case had misstated that memory problems began around May 1991. In fact, the
memory problem was noted in records from June and July 1989. The impartial medical
specialist thus failed to explain the employee’s job performance problems prior to 1991. This is
not analogous to the present case. Dr. Obianwu did not misstate the facts; he properly noted the
findings of tendinitis from the May 20, 2010 MRI scan.
The impartial medical specialist in Driscoll also relied on certain statements made by
another physician but did not explain the discrepancy between his conclusion and that reached by
the other physician. Here, Dr. Obianwu noted the findings of the second-opinion physicians, and
his conclusion was the same. Driscoll is distinguishable and not applicable to the present case.
It does not support a different result. As for the argument that Dr. Obianwu was incompetent,
online patient ratings and lay opinion are not probative. He is a Board-certified orthopedic
surgeon in good standing, who, conducted a thorough examination of both appellant and her
record.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s compensation. The Board
also finds that appellant did not establish a consequential back injury.

6

ORDER
IT IS HEREBY ORDERED THAT the April 26, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 15, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.A., Appellant
and
DEPARTMENT OF THE AIR FORCE,
HICKHAM AIR FORCE BASE, HI, Employer
__________________________________________

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

Docket No. 08-605
Issued: October 7, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 2, 2007 appellant filed a timely appeal from October 16 and November 2,
2007 merit decisions of the Office of Workers’ Compensation Programs that granted him a
schedule award for two percent monaural impairment of the left ear. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award issue.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he has more
than two percent monaural impairment in the left ear, for which he received a schedule award,
and that he had a ratable hearing impairment in the right ear.
FACTUAL HISTORY
On April 26, 2007 appellant, then a 61-year-old fuel distribution system worker, filed an
occupational disease claim stating that he developed binaural hearing loss in the performance of
duty. He noted that he first realized his condition on April 10, 2007. Appellant did not stop
work. In an April 23, 2007 statement, he explained that he had worked for the employing

establishment since 1980 and had been exposed to aircraft noise. Appellant stated that, although
he wore hearing protection, it was insufficient to prevent his noise exposure. The employing
establishment provided personnel records, noise survey results and audiometric testing data. The
evidence submitted established that appellant worked for the employing establishment since
1980 and was exposed to noise from various sources, specifically from aircraft.
On August 3, 2007 the Office referred appellant to Dr. Meredith Pang, a Board-certified
otolaryngologist, for a second opinion to determine the cause and extent of his claimed hearing
loss. In an August 23, 2007 report, Dr. Pang noted appellant’s history of noise exposure in
federal civilian employment. She explained that appellant was exposed to loud noises from
aircraft while working at the employing establishment and that, although he wore hearing
protection, it was inadequate. Dr. Pang also noted that appellant had prior noise exposure while
in military service and later in federal civilian employment as a laborer. She performed a
physical examination and diagnosed left mild low and bilateral moderate-severe high frequency
sensorineural hearing loss. Dr. Pang opined that appellant’s workplace noise exposure was
sufficient in severity and duration to cause his hearing loss. An audiogram conducted on her
behalf reflected testing at the 500, 1,000, 2,000 and 3,000 cycles per second (cps) levels and
showed the following decibel losses: 15, 20, 20 and 50 in the right ear and 20, 20 30 and 25 in
the left ear. Dr. Pang concluded that appellant had 1.9 percent hearing impairment in the right
ear and 0 percent hearing impairment in the left ear.
By decision dated September 4, 2007, the Office accepted appellant’s claim for noiseinduced hearing loss. On the same day it requested an opinion from the Office medical adviser
concerning appellant’s impairment for schedule award purposes.
In a September 24, 2007 report, the Office medical adviser noted Dr. Pang’s diagnosis of
bilateral high frequency hearing loss, consistent in part with hearing loss due to noise exposure.
He determined that appellant’s hearing impairment was caused by his federal employment.
Applying the standards set forth in the American Medical Association, Guides to the Evaluation
of Permanent Impairment, fifth edition1 (A.M.A., Guides), the medical adviser concluded that
appellant had 1.9 percent monaural hearing impairment in the right ear, rounded to 2 percent, and
0 percent monaural hearing impairment in the left ear, for a total of 2.2 percent binaural hearing
impairment. He recommended that the Office grant appellant a schedule award and concluded
that hearing aids were indicated.
By decision dated October 16, 2007, the Office denied appellant’s schedule award claim
for the left ear.
In a November 2, 2007 decision, the Office granted appellant a schedule award for two
percent monaural hearing impairment in the left ear.2

1

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

2

The Board notes that, while the decision stated that appellant’s schedule award for two percent monaural
impairment of the left ear, this is a typographical error as the record reflects that appellant’s ratable hearing loss was
in the right ear rather than the left ear.

2

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulation4 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.5
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.6 Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at
each frequency are added up and averaged.7 Then the “fence” of 25 decibels is deducted
because, as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in
the ability to hear everyday speech under everyday conditions.8 The remaining amount is
multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss.9 The binaural
loss is determined by calculating the loss in each ear using the formula for monaural loss; the
lesser loss is multiplied by five, than added to the greater loss, and the total is divided by six to
arrive at the amount of the binaural hearing loss.10 The Board has concurred in the Office’s
adoption of this standard for evaluating hearing loss.11
ANALYSIS
The Office medical adviser applied the Office’s standard procedures, detailed above, to
the August 23, 2007 audiometric findings obtained on Dr. Pang’s behalf. Appellant’s August 23,
2007 audiogram tested decibel losses at the 500, 1,000, 2,000 and 3,000 cps levels and recorded
decibel losses of 15, 20, 20 and 50 respectively for the right ear. The total decibel loss in the
right ear is 105 decibels.12 When divided by 4, the result is an average hearing loss of 26.25
3

5 U.S.C. § 8107

4

20 C.F.R. § 10.404 (2002).

5

Id. See B.C., 58 ECAB ___ (Docket No. 06-925, issued October 13, 2006).

6

A.M.A. Guides 250 (5th ed. 2001).

7

Id.

8

Id.

9

Id.

10

Id.

11

Donald E. Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying prior decision), Docket No.
01-1570 (issued August 13, 2002).
12

The Board notes that in his June 8, 2007 calculations, the Office medical adviser added incorrectly to determine
that appellant’s total loss was 85 decibels, which yielded no ratable monaural hearing loss for the right ear.

3

decibels. The average loss of 26.25 decibels is reduced by the “fence” of 25 decibels to equal
1.25 decibels, which when multiplied by the established factor of 1.5, results in a 1.875 percent
monaural hearing loss, rounded up to 2 percent monaural hearing loss for the right ear.
Testing for the left ear at the frequencies of 500, 1,000, 2,000 and 3,000 cps revealed
decibel losses of 20, 20, 30 and 25 decibels respectively, for a total decibel loss of 95 decibels.
When divided by 4, the result is an average hearing loss of 23.75 decibels. The average loss of
23.75 decibels is reduced by the “fence” of 25 decibels, to equal 0 decibels and, accordingly, no
monaural hearing loss for the left ear.
Although the Office medical adviser stated that appellant had 2.2 percent binaural
hearing loss, this was error as the formula for binaural hearing loss, noted above, as applied to
the findings obtained for Dr. Pang results in no binaural hearing loss. The zero percent monaural
hearing loss for the left ear, when multiplied by five (as it is the lesser loss), yielded a product of
zero. The zero was then added to the 1.9 percent hearing loss for the right ear.13 The 1.9 percent
was then divided by six, in order to calculate a binaural hearing loss of 0.32 percent, which is
rounded to 0 percent. Thus, the Board finds that the Office medical adviser incorrectly
calculated appellant’s bilateral hearing loss at 2.2 percent. Therefore, appellant’s impairment for
monaural hearing loss in his right ear is greater than his impairment for binaural hearing loss,
and the Office properly granted him a schedule award based on monaural impairment.
The Board finds that the evidence establishes that appellant has no ratable hearing loss in
his left ear and that he has two percent impairment of his right ear for which he was granted a
schedule award.
CONCLUSION
The Board finds that appellant has no more than two percent hearing loss in his right ear,
for which he received a schedule award. The Office’s November 2, 2007 decision is modified to
reflect that appellant’s ratable hearing loss is in his right ear. The Board further finds that
appellant has no ratable hearing loss in his left ear.

13

Percentages should not be rounded until the final percent for award purposes is obtained.
Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4(b)(2)(b) (March 1994).

4

Federal (FECA)

ORDER
IT IS HEREBY ORDERED THAT the October 16, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed and the November 2, 2007 decision is affirmed as
modified.
Issued: October 7, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.L., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, GEORGE
WASHINGTON MEMORIAL PARKWAY,
McLean, VA, Employer
__________________________________________

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

Docket No. 09-1921
Issued: June 28, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 22, 2009 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ merit decision dated June 15, 2009 which denied modification of a
decision denying his claim for an occupational disease. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has met his burden of proof in establishing that he
sustained an occupational disease in the performance of duty.
FACTUAL HISTORY
This is the second appeal in the present case.1 In a decision dated November 14, 2005,
the Board reversed the Office decision dated November 16, 2004 and remanded the case for
1

Docket No. 05-369 (issued November 14, 2005).

appropriate development and adjudication of the claims.2 The Board found that appellant timely
filed his claim for an occupational disease. The facts and circumstances of the case up to that
point are set forth in the Board’s prior decision and incorporated herein by reference.3
There was evidence submitted in the prior appeal that is relevant to the current appeal.
Appellant submitted reports dated November 7, 1991 to June 26, 2002 from Dr. Charles R.
Ubelhart, a Board-certified internist, who noted a history of appellant’s neck condition which
began after he fell from a trampoline when he was 16 years old. He reported that his symptoms
worsened in the summer of 1991. In reports dated November 7 and November 21, 1991,
Dr. Ubelhart opined that appellant’s C3-4 cervical condition was related to his old injury. He
diagnosed C4 neuropathy, old post-traumatic injury and C5-6 herniated disc. Dr. Ubelhart
recommended an anterior cervical discectomy at C5-6.
Appellant submitted various medical reports from Dr. Andrew V. Panagos, a Boardcertified physiatrist, who treated appellant from October 18, 1994 to May 7, 1996, for neck pain
commencing when he fell off a trampoline as a child. He had a cervical fusion at C3-4 and C5-6
in December 1991 that was unsuccessful. Appellant had a C3-6 fusion in December 1994 that
relieved his arm pain. On February 27, 2002 Dr. Panagos diagnosed chronic pain syndrome
produced by the initial failure of the cervical fusions and secondary abscesses due to trigger
point injections. He expected no recovery beyond this point and advised that appellant’s cervical
spine condition was stable. In an April 10, 2002 attending physician’s report, Dr. Panagos noted
that appellant sustained a cervical injury after falling from a trampoline in 1975 and a subsequent
injury during air travel. He diagnosed chronic pain syndrome, multilevel cervical fusion and
radiculopathy. Dr. Panagos checked a box “yes” that appellant’s condition was caused or
aggravated by an employment activity, noting air travel in 1991.
Appellant was also treated by Dr. Alexandros D. Powers, a Board-certified neurologist,
from October 18, 1994 to June 6, 2002, for continued neck pain. Dr. Powers diagnosed cervical
disc disease with failed fusion and compensatory hypermobility at intervening C4-5 level. In an
attending physician’s report dated April 24, 2002, he diagnosed cervical disc disorder and noted
with a checkmark “yes” that appellant’s condition was caused or aggravated by an employment
activity. Similarly, in reports dated June 6 and July 8, 2002, Dr. Powers noted that appellant
sustained two neck injuries in the 1970’s which left him with mild cervical discomfort.
Appellant reported subsequently sustaining a cervical spine injury on a work-related trip on
July 26, 1991. Dr. Powers noted that in December 1991 appellant underwent an anterior cervical
discectomy and fusion which failed. He diagnosed probable failed fusion at C5-6 and
recommended a corpectomy and spinal reconstruction. Dr. Powers opined that appellant’s
clinical history suggested that the events of July 1991 were causally related to the cervical spine
symptoms that led to the initial recommendation of surgery and additional treatments.
2

On March 23, 2002 appellant, then a 43-year-old former supervisory community planner, filed an occupational
disease claim for aggravation of his upper back, shoulders, head and neck conditions. He also alleged a workrelated aggravation of his bilateral knee and leg conditions. Appellant stopped work on October 22, 2001.
3

Appellant also alleged that he developed hearing loss due to workplace noise exposure. The Office developed
his hearing loss claim. However, it has not issued a final decision on this matter such that it is not before the Board
in the current appeal. See 20 C.F.R. § 501.2(c).

2

In a decision dated June 6, 2006, the Office denied appellant’s claim for compensation
for upper back, shoulders, head, neck, bilateral knees, legs, ankles, hands and finger conditions
on the grounds that appellant failed to establish that the claimed medical conditions were related
to the established work-related events.
On May 31, 2007 appellant requested reconsideration. He submitted a May 25, 2007
report from Dr. Powers, who noted a history of appellant’s trampoline injury and his subsequent
treatment for cervical injuries. Appellant reported that, in August 1991, he experienced
excessive stress while on temporary duty which aggravated and permanently worsened his mild
neck injury of 1973. Dr. Powers opined that increased physical activities such as lifting weights,
repetitive movements of the head, neck and upper body, would increase appellant’s cervical pain.
Appellant further opined that occupational exposure to these types of forces would cause
symptomology related to the vertebral column. In a March 13, 2008 report, Dr. Powers noted
appellant underwent a multilevel cervical spine fusion which resulted in permanent
biomechanical changes in his neck. He opined that medical literature showed that these disc
changes would more likely than not be aggravated, worsened and accelerated by appellant’s
work duties. Appellant also submitted a January 5, 2008 report from Dr. Panagos who treated
appellant since March 1999 for severe, chronic cervical pain related to degenerative disc disease
that resulted in multiple cervical surgeries. Dr. Panagos opined that appellant reached maximum
medical improvement. He advised that appellant’s condition made it medically impossible for
him to work in his chosen profession due to increasing pain and cervical disc degeneration
associated with working over a drafting board, working in the field and traversing outdoor areas.
In a decision dated June 15, 2009, the Office denied modification of the June 6, 2006
decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act 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 the injury was
sustained in the performance of duty as alleged, and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury. These are the
essential elements of each and every compensation claim regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
4

Gary J. Watling, 52 ECAB 357 (2001).

3

diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.5
ANALYSIS
It is not disputed that appellant’s duties as a supervisory community planner included
keyboarding, leaning over a drafting board, carrying items, air travel, riding public
transportation, rotating his head and neck, walking and climbing and crouching to view field
sites, manholes and building structures. It is also not disputed that appellant has been diagnosed
with C4 neuropathy, C5-6 herniated disc, chronic pain syndrome, multilevel cervical fusion,
radiculopathy, compensatory hypermobility at intervening C4-5 level, cervical disc disorder,
failed fusion at C5-6 and degenerative disc disease. Appellant has not submitted sufficient
medical evidence, though, to establish that his diagnosed cervical conditions and degenerative
disc disease were causally related to specific employment factors or conditions. He did not
submit a rationalized medical report from a physician addressing how specific employment
factors may have caused or aggravated his claimed conditions.
Appellant submitted reports from Dr. Ubelhart, from November 7, 1991 to June 26, 2002,
who noted a history of appellant’s neck pain commencing when he was 16 years old and fell
from a trampoline and noted that his symptoms worsened in the summer of 1991. In reports
dated November 7 and 21, 1991, Dr. Ubelhart diagnosed C4 neuropathy, old post-traumatic
injury and C5-6 herniated disc and opined that appellant’s C3-4 condition was related to his old
injury. His reports are insufficient to establish the claim as the physician appears to attribute
appellant’s cervical condition to a trampoline injury which occurred when appellant was 16 and
not his work duties. In none of the reports, did Dr. Ubelhart specifically address whether
appellant’s employment activities had caused or aggravated a diagnosed medical condition.6
Appellant submitted various reports from Dr. Panagos who noted treating appellant since
1994 for neck pain that started when he fell off a trampoline as a child. On February 27, 2002
Dr. Panagos diagnosed chronic pain syndrome due to the failure of the cervical fusions and
secondary abscesses from trigger point injections. These reports are insufficient to establish the
claim as they did not address whether appellant’s employment activities had caused or
aggravated a diagnosed medical condition.7 Additionally, Dr. Panagos appeared to attribute
5

Solomon Polen, 51 ECAB 341 (2000).

6

A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).
7

Id.

4

appellant’s condition to a childhood injury and not work activities. Similarly, in an April 10,
2002 attending physician’s report he noted a history of appellant’s trampoline injury in 1975 and
subsequent neck injury during air travel. Dr. Panagos diagnosed chronic pain syndrome,
multilevel cervical fusion and radiculopathy and noted with a checkmark “yes” that appellant’s
condition was caused or aggravated by an employment activity. However, the Board has held
that an opinion on causal relationship which consists only of a physician checking “yes” to a
medical form report question on whether the claimant’s condition was related to the history
given is of little probative value. Without any explanation or rationale for the conclusion
reached, such report is insufficient to establish causal relationship.8 Likewise, a January 5, 2008
report from Dr. Panagos noted appellant’s diagnoses and disability status but did not specifically
address how particular aspects of appellant’s employment would have caused or aggravated any
diagnosed medical condition.
Reports from Dr. Powers are also insufficient to establish appellant’s claim. Reports
from October 18, 1994 to June 6, 2002 diagnosed appellant’s condition but did not address
whether his employment caused or aggravated a diagnosed condition. In an April 24, 2002
attending physician’s report, Dr. Powers diagnosed cervical disc disorder and noted with a
checkmark “yes” that appellant’s condition was caused or aggravated by an employment activity.
However, as noted, an opinion on causal relationship which consists only of a physician
checking “yes” to a medical form report question on whether the claimant’s condition was
related to the history given is of little probative value and insufficient to establish causal
relationship. Other reports from Dr. Powers dated June 6 and July 8, 2002 noted appellant’s
neck injuries in the 1970’s that left him with mild cervical discomfort. He also related that
appellant reported a subsequent cervical spine injury on a work-related trip on July 26, 1991.
Dr. Powers opined that appellant’s clinical history suggested the events of July 1991 were
causally related to the cervical spine symptoms that led to his surgery and subsequent treatment.
While these reports provide some support for causal relationship, they are insufficient to
establish the claimed cervical condition was causally related to his employment duties.
Dr. Powers, at best, provides only vague support for causal relationship by noting that
appellant’s clinical history “suggests the events of July 1991” were causally related to his
cervical spine symptoms. He provided no medical reasoning to support his opinion on causal
relationship and there are no contemporaneous medical reports supporting such a relationship.9
Additionally, Dr. Powers did not clearly address how nonemployment factors, such as
appellant’s childhood neck injury, might have affected his current cervical condition. Therefore,
his reports are insufficient to meet appellant’s burden of proof.
Likewise, a May 25, 2007 report from Dr. Powers noted a history of appellant’s
trampoline injury and his reported neck stress during temporary duty in August 1991.
Dr. Powers opined that work duties involved lifting weights, repetitive movements of the head,
neck and upper body increased appellant’s cervical symptomology. He did not provide medical
rationale explaining how any particular work duties performed during a particular period would
cause or aggravate appellant’s neck condition nor did he explain why the neck condition would
8

Lucrecia M. Nielson, 41 ECAB 583, 594 (1991).

9

The Board notes that Dr. Ubelhart’s more contemporaneous reports from 1991 do not implicate employment
factors as a cause or contributor to appellant’s condition.

5

not be the sole result of the childhood neck injury. In a March 13, 2008 report, Dr. Powers noted
appellant underwent a multilevel cervical spine fusion which resulted in permanent
biomechanical changes in his neck. He opined that medical literature showed that these disc
changes are more likely than not aggravated, worsened and accelerated by appellant’s work
duties. This report is insufficient to establish the claimed cervical condition as he did not
provide sufficient medical rationale in which he explained the reasons behind his conclusion nor
did he explain how particular medical literature applied to appellant’s specific situation.10
Consequently, the medical evidence is insufficient to establish a causal relationship
between specific factors or conditions of employment and the diagnosed medical conditions.
On appeal, appellant’s asserts that his condition was employment related and the Office
failed to thoroughly evaluate the record. The record reveals that the Office performed a thorough
analysis of appellant’s medical records, specifically reviewing reports from appellant’s treating
physician’s Drs. Ubelhart, Panagos and Powers from November 7, 1991 to March 13, 2008.
Appellant further asserts that he submitted statements from his supervisors and himself which
supported causal relationship, however, causal relationship is a medical issue and it generally
must be established by reasoned or rationalized medical evidence.11 The Board notes that
appellant’s claim has been denied because he failed to provide sufficient medical evidence
explaining the reasons particular factors or conditions of his employment caused or aggravated
any of his diagnosed medical conditions.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
developed an employment-related injury in the performance of duty.

10

See D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007) (newspaper clippings, medical texts
and excerpts from publications are of no evidentiary value in establishing the necessary causal relationship as they
are of general application and are not determinative of whether the specific condition claimed was causally related to
the particular employment injury involved).
11

See M.D., 59 ECAB ___ (Docket No. 07-908, issued November 19, 2007).

6

ORDER
IT IS HEREBY ORDERED THAT the June 15, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 28, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
U.S. POSTAL SERVICE, PARKLAWN
STATION, Milwaukee, WI, Employer
__________________________________________

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

Docket No. 15-196
Issued: March 23, 2015

Case Submitted on the Record

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

JURISDICTION
On November 5, 2014 appellant filed a timely appeal from a September 19, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether carrying a mailbag aggravated appellant’s right hip osteoarthritis on
January 15, 2014, as alleged.
FACTUAL HISTORY
On January 17, 2014 appellant, a 43-year-old city carrier, filed a traumatic injury claim
alleging that he sustained a hip injury in the performance of duty on January 15, 2014. He stated
on the claim form, “Just walking with mailbag and hip went out on me.”
1

5 U.S.C. § 8101 et seq.

Dr. Daniel J. Thompson, Board-certified in internal medicine, related appellant’s history
of present illness and noted that x-rays demonstrated severe degenerative arthritis of the right hip
with near total loss of the joint space in the superior portion of the joint. He noted that these
findings were consistent with the type of pain appellant was having. Dr. Thompson completed
an attending physician’s form report. With an affirmative mark, he indicated that appellant’s
condition was aggravated by carrying a mailbag at work.
OWCP denied appellant’s claim on March 10, 2014. It found that the work activity
occurred as alleged but that the medical evidence did not provide a well-reasoned explanation of
how the work activity caused the diagnosed osteoarthritis. OWCP noted that osteoarthritis
develops over time due to many factors, including the natural progression of age.
Dr. Thompson completed another attending physician’s form report. He indicated again
that appellant’s right hip condition was aggravated by walking the distance appellant walked
with the weight that he carried.
Appellant requested reconsideration of OWCP’s March 10, 2014 decision.
Dr. Ankur N. Patel, Board-certified in internal medicine, noted that appellant was
suffering from severe pain in the right hip due to carrying a heavy bag of mail. He had severe
degenerative joint disease of the right hip joint and now had a problem with walking and
balance. Until surgery was performed, Dr. Patel found that appellant should be on light duty.
In a decision dated September 19, 2014, OWCP reviewed the merits of appellant’s claim
and denied modification of its prior decision. It found that the medical evidence did not present
a rationalized statement supported by findings on examination and objective test results
explaining how the diagnosed condition of severe osteoarthritis was the result of the incident on
January 15, 2014.2
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.3 An employee seeking benefits under FECA
has the burden of proof to establish the essential elements of his or her claim. When an
employee claims that he or she sustained an injury in the performance of duty, he or she must
submit sufficient evidence to establish that he or she experienced a specific event, incident or
exposure occurring at the time, place, and in the manner alleged. He or she must also establish
that such event, incident or exposure caused an injury.4

2

On April 16, 2014 appellant filed an occupational disease claim alleging that his right hip condition was the
result of walking and carrying mail. As OWCP has not issued a final decision on this claim it is not before the
Board on this appeal. See 20 C.F.R. § 501.2(c).
3

5 U.S.C. § 8102(a).

4

John J. Carlone, 41 ECAB 354 (1989).

2

Causal relationship is a medical issue,5 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the claimant,6 must be
one of reasonable medical certainty,7 and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the established incident or factor
of employment.8
ANALYSIS
OWCP accepts that appellant carried a mailbag in the course of his employment as a city
carrier. Appellant has thus met his burden of proof to establish a specific event, incident or
exposure occurring at the time, place, and in the manner alleged. The question is whether this
employment activity aggravated the severe osteoarthritis found in his right hip.
The medical opinion evidence is supportive of appellant’s claim, yet the evidence is not
sufficient for appellant to have met his burden of proof. Dr. Thompson, the attending internist,
completed two form reports indicating with an affirmative mark that appellant’s right hip
condition was aggravated by carrying a mailbag over some distance at work. The Board has
held, however, that when a physician’s opinion on causal relationship consists only of checking
“yes” to a form question, that opinion has little probative value and is insufficient to establish
causal relationship.9 Appellant’s burden includes the necessity of furnishing an affirmative
opinion from a physician who supports his conclusion with sound medical reasoning. As
Dr. Thompson did no more than check “yes” to a form question, his opinion on causal relationship
is of little probative value and insufficient to discharge appellant’s burden of proof.
Dr. Patel, another internist, noted that appellant had severe degenerative joint disease of
the right hip joint and was suffering from severe pain due to carrying a heavy bag of mail.
Although this is also supportive of appellant’s claim, Dr. Patel offered no more medical rationale
than Dr. Thompson did in his form reports. The mere fact that a condition manifests itself or
worsens during a period of federal employment raises no inference of causal relationship between
the two.10 There must be a medically sound and rational basis for finding a work-related
aggravation of the condition. Otherwise, opinions supporting causal relationship must be regarded
as speculative.
As Dr. Thompson and Dr. Patel did not offer sound medical reasoning to support their
opinions that carrying a heavy mailbag aggravated appellant’s right hip osteoarthritis, the Board
5

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

6

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

7

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

8

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

9

E.g., Lillian M. Jones, 34 ECAB 379 (1982).

10

Steven R. Piper, 39 ECAB 312 (1987).

3

finds that appellant has not met his burden to establish the critical element of causal relationship.
The Board will, therefore, affirm OWCP’s September 19, 2014 decision.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that the medical opinion evidence lacks sufficient rationale to establish
that carrying a mailbag aggravated appellant’s right hip osteoarthritis on January 15, 2014, as
alleged.
ORDER
IT IS HEREBY ORDERED THAT the September 19, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 23, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

4