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

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

Docket No. 12-1571
Issued: January 25, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 16, 2012 appellant filed a timely appeal from the June 26, 2012 merit decision of
the Office of Workers’ Compensation Programs (OWCP) terminating her compensation.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective January 27, 2012 on the grounds that she had no
residuals of her February 17, 2009 work injury after that date.
FACTUAL HISTORY
OWCP accepted that on February 17, 2009 appellant, then a 42-year-old distribution
clerk, sustained an acute lumbosacral strain and aggravation of bulging discs at L4-5 and L5-S1
1

5 U.S.C. §§ 8101-8193.

due to carrying and setting a box down on the floor at work.2 She stopped work on February 17,
2009 and received compensation for total disability.
Appellant received treatment for her back condition from Dr. Charles J. Kistler, an
attending osteopath and Board-certified family practitioner. In an April 19, 2010 report,
Dr. Kistler diagnosed acute lumbar sprain/strain and aggravation of fibromyalgia at L5 and
indicated that her February 17, 2009 injury caused total disability from February 17 to
August 11, 2010. In an August 12, 2010 report, he stated that appellant’s February 17, 2009
injury caused her to be totally disabled from February 17, 2009 to December 11, 2010.
OWCP referred appellant to Dr. David K. Halley, a Board-certified orthopedic surgeon,
for an examination and opinion regarding whether she had continuing residuals of her
February 17, 2009 work injury.
In a September 3, 2010 report, Dr. Halley provided a history of appellant’s injury and
findings on examination. He indicated that straight leg testing was normal and that she did not
exhibit any spasms in her back. Sensory testing in appellant’s legs elicited normal responses.
Dr. Halley found that the accepted conditions of acute lumbosacral strain and aggravation of
bulging discs at L4-5 and L5-S1 had resolved. He indicated that appellant was medically
capable of returning to her date-of-injury job without restrictions.
A copy of Dr. Halley’s report was forwarded to Dr. Kistler for review and comment. On
October 13, 2010 Dr. Kistler provided an opinion that appellant remained totally disabled from
work. He discussed diagnostic testing of record showing bulging lumbar discs and stated that,
although the lumbar strain did not keep her from working, the aggravated bulging discs at L4-5
and L5-S1 required continuation of physical therapy and further diagnostic evaluation.
Dr. Kistler posited that maximum medical improvement had not been reached.
Due to a conflict in the medical opinion evidence between Dr. Kistler and Dr. Halley
regarding work-related residuals, OWCP referred appellant to Dr. Ralph G. Rohner, a Boardcertified orthopedic surgeon, for an impartial medical examination and opinion regarding
whether she had residuals of her February 17, 2009 work injury.3
In a March 8, 2011 report, Dr. Rohner described appellant’s medical history, including
the treatment of her February 17, 2009 injury and reported his findings on physical examination.
He indicated that on examination she had a blunted affect and avoided direct eye contact.
Dr. Rohner reported that there was no shift in appellant’s position and that her gait was slow and
deliberate but not antalgic. He indicated that her spine was straight and that her pelvis was level.
Appellant had normal ankle reflexes and normal findings on sensory examination of her legs.
Dr. Rohner summarized the reports of attending physicians and noted that she reported
complaints of back pain with essentially every visit and was prescribed medication. Although
attending physicians referred to lumbar fibromyalgia and lumbosacral strain, he was unable to
2

While setting the box down on the floor, appellant felt something pull in her back and dropped the box.

3

Dr. Rohner was provided with surveillance tapes, obtained by the employing establishment, which showed
appellant engaging in activities such as shopping.

2

find any true physical examination findings. Dr. Rohner summarized the surveillance videos
which he indicated showed appellant shopping while carrying bags that were not of great size.4
He indicated that, based on a review of her complete case file and the physical examination
findings, she had degenerative lumbar joint disease and degenerative lumbar disc disease which
were preexisting conditions. Dr. Rohner indicated that the preexisting nature of these conditions
was supported by the diagnostic testing of record. He opined that there were no objective
findings of the accepted conditions of acute lumbosacral strain and an aggravation of bulging
discs at L4-5 and L5-S1 and posited that appellant’s continuing problems were due to her
preexisting conditions. Concerning appellant’s ability to work, Dr. Rohner stated that she was
deconditioned because she had not worked for two years and posited that it would be improper to
send her back to work without therapy and a reconditioning program. He indicated that therapy
and reconditioning were needed due to appellant’s preexisting conditions rather than her
accepted work injuries.
On March 23, 2011 OWCP requested an addendum report from Dr. Rohner specifying
the frequency and duration of the physical therapy and reconditioning programs he
recommended. On March 25, 2011 Dr. Rohner indicated that appellant be referred to a facility
providing these programs and noted that, when the evaluation was completed, the facility would
need to provide such details. After completing the programs, a final evaluation would be needed
to address the permanency of any restrictions.
By letter dated April 11, 2011, OWCP informed appellant that she was being referred for
vocational rehabilitation services to assist in providing the recommended therapy and
reconditioning services.
On September 20, 2011 OWCP forwarded copies of all documentation received since
March 25, 2011 for Dr. Rohner to review. It requested an addendum report which addressed if
and when appellant could return to work and the necessity of continuing the therapy and
reconditioning programs. Dr. Rohner responded that he would have to reexamine appellant
before providing a response and the reexamination took place on October 17, 2011.
In an October 17, 2011 report, Dr. Rohner indicated that appellant had undergone two
separate programs of therapy. He noted that during the present examination she was more alert
and faced the examiner more directly compared to the previous examination. Dr. Rohner noted
that, upon review of the new evidence provided and based on the physical examination findings
compared to appellant’s previous examination, there appeared to be little change in her
condition. He noted that, during the course of her therapy, she increased her range of motion to
an almost normal level only to revert back to the level found during each of his examinations.
Dr. Rohner recommended that appellant continue with physical therapy through the end of the
year and progressively increase its difficulty. He stated that a functional capacity evaluation was
definitely needed to establish what she could achieve. Dr. Rohner again opined that appellant’s
inability to work was due to deconditioning and preexisting conditions rather than the accepted
work injuries.
4

According to Dr. Rohner, the videos did not show any antalgic gait, facial evidence of pain or hesitancy in
movements. They showed appellant entering and exiting motor vehicles without any apparent difficulty and raising
and lowering the tailgate of her vehicle without any apparent difficulty.

3

In a November 7, 2011 report, Dr. Kistler updated his assessment of appellant’s condition
since beginning the physical therapy program. He diagnosed lumbosacral strain and aggravation
of bulging discs at L4-5 and L5-S1, conditions which he felt were extremely symptomatic.
Dr. Kistler summarized appellant’s progression through physical therapy, but posited that she
was not ready for a functional capacity evaluation yet because she was not at maximum medical
improvement. He expressed disagreement with Dr. Rohner’s opinion regarding the cause and
seriousness of appellant’s medical condition. Dr. Kistler indicated that appellant could not
engage in any type of progressive return to work without first completing the therapy and work
conditioning programs.
In a December 16, 2011 letter, OWCP advised appellant that it proposed to terminate her
wage-loss compensation and medical benefits because she ceased to have residuals of her
February 17, 2009 work injury. It indicated that it based this proposed action on the opinion of
Dr. Rohner, the impartial medical specialist. OWCP provided appellant 30 days to submit
evidence and argument challenging the proposed termination.
In response to the proposed termination, OWCP received a letter from appellant
disagreeing with its proposed action. Appellant also submitted treatment notes from Dr. Kistler,
dated between December 2011 and January 2012.
In a January 23, 2012 decision, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective January 28, 2012 on the grounds that she had no residuals of her
February 17, 2009 work injury after that date.
Appellant disagreed with the decision and requested an oral hearing before an OWCP
hearing representative. At the hearing held on April 11, 2012, she was represented by counsel
and Dr. Kistler testified on her behalf. Dr. Kistler indicated that appellant’s herniated discs were
directly and proximately related to the February 17, 2009 injury she sustained at work and
posited that the condition had not resolved. He stated that, no matter how successfully her
therapy proceeded, she was never going to be able to return to the full range of her job duties.
Appellant testified that she continued to suffer from the effects of the accepted work injury.
Subsequent to the hearing, OWCP received statements from appellant dated January 10
and May 23, 2012 and medical reports from Dr. Kistler dated from February 2011 to
January 2012.
In a June 26, 2012 decision, OWCP’s hearing representative affirmed OWCP’s
January 23, 2012 termination decision. She found that the weight of the medical opinion
evidence regarding appellant’s lack of work-related residuals continued to rest with the opinion
of Dr. Rohner.
LEGAL PRECEDENT
Under FECA, once OWCP has accepted a claim it has the burden of justifying
termination or modification of compensation benefits.5 OWCP may not terminate compensation
5

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

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without establishing that the disability ceased or that it was no longer related to the employment.6
OWCP’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.7
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”8 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.9
OWCP frequently provides videotape investigative evidence created or supplied by the
employing establishment.
Under certain circumstances, videotape evidence may be of value to a physician offering
an opinion regarding a claimant’s medical condition. It may reflect on the patient’s reliability as
a historian or on the actual ranges of motion, lifting or other physical activities the claimant may
perform. However, a videotape may be incorrect or misleading to a physician if there are errors,
such as the identity of individual recorded on the videotape or whether certain activities were
facilitated by the use of medication. OWCP has the responsibility to make the claimant aware
that it is providing videotape evidence to a medical expert. If the claimant requests a copy of the
videotape, one should be made available and the employee given a reasonable opportunity to
offer any comment or explanation regarding the accuracy of the recording.10
ANALYSIS
OWCP properly determined that there was a conflict in the medical opinion between
Dr. Kistler, an attending osteopath and Board-certified family practitioner and Dr. Halley, a
Board-certified orthopedic surgeon acting as an OWCP referral physician, on the issue of
whether appellant continued to have residuals of the February 17, 2009 employment injury. In
order to resolve the conflict, it properly referred appellant, pursuant to section 8123(a) of FECA,
to Dr. Rohner, a Board-certified orthopedic surgeon, for an impartial medical examination and an
opinion on the matter.11
6

Id.

7

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

8

5 U.S.C. § 8123(a).

9

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

10

J.M. 58 ECAB 478 (2007), F.S. Docket No. 11-863 (issued September 26, 2012).

11

See supra note 8 and accompanying text. In several reports dated in mid 2010, Dr. Kistler stated that
appellant’s February 17, 2009 work injury caused her to be totally disabled beginning February 17, 2009 and
continuing. In contrast, Dr. Halley indicated on September 3, 2010 that appellant had no residuals of the
February 17, 2009 work injury.

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The Board finds that the weight of the medical evidence is represented by the thorough,
well-rationalized opinion of Dr. Rohner, the impartial specialist, selected to resolve the conflict
in the medical opinion.12 The March 8, 25 and October 17, 2011 reports of Dr. Rohner establish
that appellant had no disability due to her February 17, 2009 work injury after January 27, 2012.
In his reports, Dr. Rohner provided a detailed description of appellant’s medical history
and reported his findings on physical examination. He indicated that her spine was straight and
that her pelvis was level. Appellant had normal ankle reflexes and normal findings on sensory
examination of her legs. Although attending physicians referred to lumbar fibromyalgia and
lumbosacral strain, Dr. Rohner was unable to find any true physical examination findings. He
indicated that, based on a review of appellant’s complete case file and the physical examination
findings, she had degenerative lumbar joint disease and degenerative lumbar disc disease which
were preexisting conditions. Dr. Rohner indicated that the preexisting nature of these conditions
were supported by the diagnostic testing of record. He opined that there were no objective
findings of the accepted conditions of acute lumbosacral strain and an aggravation of bulging
discs at L4-5 and L5-S1 and posited that appellant’s continuing problems were due to her
preexisting conditions.
The Board has carefully reviewed the opinion of Dr. Rohner and notes that it has
reliability, probative value and convincing quality with respect to its conclusions regarding the
relevant issue of the present case. Dr. Rohner provided a thorough factual and medical history
and accurately summarized the relevant medical evidence.13 He provided medical rationale for
his opinion by explaining that he could find no objective evidence on examination of appellant’s
February 17, 2009 work injuries. Moreover, Dr. Rohner explained that her continuing problems
were related to her preexisting conditions, including degenerative lumbar joint disease and
degenerative lumbar disc disease. Appellant’s need for physical therapy and reconditioning were
due to these nonwork conditions. The Board notes that Dr. Rohner reviewed surveillance videos
of appellant’s activities outside of work, but there is no evidence that he mischaracterized the
content of the videos or was unduly influenced by the videos in rendering his opinion. Appellant
has not raised an objection to Dr. Rohner’s report based on the doctor’s exposure to the video
evidence. She has not sought any particular relief in this appeal based on him having viewed the
video. The record is silent on whether appellant knew of the existence of the video evidence.
Appellant submitted a number of reports, including a November 7, 2011 report and
numerous treatment notes, in which Dr. Kistler indicated that she continued to have disabling
residuals of her February 17, 2009 work injuries. Dr. Kistler provided a similar opinion at the
April 11, 2012 hearing before an OWCP hearing representative. However, as Dr. Kistler was on
one side of the conflict, his additional evidence is essentially duplicative of his prior stated
opinion and is insufficient to give rise to a new conflict.14

12

See supra note 9 and accompanying text.

13

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

14

See Richard O’Brien, 53 ECAB 234 (2001).

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For these reasons, OWCP properly terminated appellant’s compensation effective
January 27, 2012. 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 OWCP met its burden of proof to terminate appellant’s
compensation effective January 27, 2012 on the grounds that she had no residuals of her
February 17, 2009 work injury after that date.
ORDER
IT IS HEREBY ORDERED THAT the June 26, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 25, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Diego, CA, Employer
__________________________________________

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

Docket No. 21-0136
Issued: March 28, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 2, 2020 appellant filed a timely appeal from an October 8, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). 1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case. 3
1
On November 2, 2020 appellant also filed an appeal from a purported October 1, 2020 decision of OWCP.
However, the October 1, 2020 document is a proposed termination notice rather than a final decision of OWCP. The
only final adverse decision over which the Board may exercise jurisdiction is the October 8, 2020 merit decision. See
20 C.F.R. §§ 501.2(c) and 501.3.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the October 8, 2020 decision, appellant submitted additional evidence to OWCP
and on appeal to the Board. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is
limited to the evidence in the case record that was before OWCP at the time of its f inal decision. Evidence not before
OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is
precluded from reviewing this additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
FACTUAL HISTORY
This case has previously been before the Board. 4 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On April 24, 2013 appellant, then a 31-year-old automation clerk, filed a traumatic injury
claim (Form CA-1) alleging that on April 14, 2013 she sustained an injury to her neck and back
area when she engaged in reaching and lifting duties while in the performance of duty.5 She
stopped work on April 22, 2013. OWCP accepted that appellant sustained aggravation of
preexisting cervical spondylosis and paid appellant wage-loss compensation for disability from
work commencing April 22, 2013 on the supplemental rolls and commencing December 15, 2013
on the periodic rolls.
On January 15, 2015 appellant filed a claim for compensation (Form CA-7) for a schedule
award due to her accepted April 14, 2013 employment injury. In support of her claim, she
submitted an October 28, 2014 report in which Dr. Jonathan Nissanoff, a Board-certified
orthopedic surgeon, determined that she had a 30 percent “combined whole person impairment
rating.”
By decision dated March 11, 2015, OWCP denied appellant’s claim for a schedule award.
By decision dated October 22, 2015, OWCP denied modification of the March 11, 2015
decision. On April 7, 2016 appellant requested reconsideration and submitted additional evidence.
By decision dated April 14, 2016, OWCP denied her request for reconsideration of the merits of
her claim pursuant to 5 U.S.C. § 8128(a).

4

Docket No. 15-1437 (issued May 9, 2016).

5

Based on the description of injury, appellant’s claim was converted to an occupational disease claim (Form CA-2)
because the employment activities occurred over a period longer than one workday or shift. A traumatic injury refers
to injury caused by a specific event or incident or series of incidents occurring within a single workday or work shift,
whereas an occupational disease refers to an injury produced by employment over a period longer than a single workday
or shift. 20 C.F.R. §§ 10.5(q), (ee), respectively; R.V., Docket No. 18-1037 (issued March 26, 2019); Brady L. Fowler,
44 ECAB 343, 351 (1992).

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Appellant also appealed to the Board and, by decision dated May 9, 2016, 6 the Board
affirmed the decision. 7
In a July 25, 2018 report, Dr. Kamshad Raiszadeh, a Board-certified orthopedic surgeon,
determined that appellant had zero percent permanent impairment of the upper extremities
stemming from the cervical spine. He noted that, although an electromyogram/nerve conduction
velocity (EMG/NCV) study suggested mild carpal tunnel syndrome and an ulnar condition, there
was no frank neurologic evidence of either condition upon which to rate a diagnosis-based
impairment. Dr. Raiszadeh referenced symptoms of pain in appellant’s wrists and found one
percent permanent impairment of each upper extremity due to the reported symptoms by utilizing
Table 15-2 (Wrist Regional Guide) on page 395 of the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).8
In an October 22, 2018 report, Dr. David M. Kupfer, a Board-certified orthopedic surgeon,
indicated that appellant had a history of bilateral carpal tunnel syndrome and left ulnar neuropathy.
A February 15, 2019 EMG/NCV study found no sensory or motor findings emanating from the
cervical spine. The study revealed mild findings in the ulnar and median nerves.
On April 17, 2019 OWCP referred appellant’s medical record to Dr. Herbert White, a
Board-certified orthopedic surgeon serving as an OWCP district medical adviser (DMA). It
requested an opinion on permanent impairment utilizing The Guides Newsletter, Rating Spinal
Nerve Extremity Impairment Using the Sixth Edition (July/August 2009) (The Guides Newsletter),
which is a supplemental publication of the sixth edition of the A.M.A., Guides. In an April 22,
2019 report, Dr. White discussed the diagnostic testing of record and opined that there was no
evidence of compression of the cervical spine. He concluded that, under The Guides Newsletter,
there was no spinal nerve root abnormality that would result in a ratable upper extremity
impairment.
On May 7, 2019 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and series of questions, for a second opinion examination and evaluation with Dr. Jon P.
Kelly, a Board-certified orthopedic surgeon. It requested an opinion on permanent impairment
utilizing The Guides Newsletter. In a July 17, 2019 report, Dr. Kelly discussed appellant’s factual
and medical history and reported the findings of the physical examination he conducted on that
date. He noted atypical and equivocal medical findings without regard to any true ulnar or carpal
tunnel condition. Dr. Kelly reported that appellant exhibited normal upper extremity sensory and
motor findings. 9 He indicated that she had subjective complaints of possible radicular symptoms
of the upper extremities, but advised that the diagnostic testing of record, including a magnetic
6

Supra note 4.

7

Appellant also appealed January 2 and 27 and June 8, 2015 merit decisions of OWCP, which the Board affirmed
in its May 9, 2016 decision, but the subject matters of these decisions are not currently before the Board.
8

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

9

Dr. Kelly indicated that appellant had reached maximum medical improvement (MMI) by the date of his
examination.

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resonance imaging (MRI) scan of the cervical spine, did not demonstrate evidence of neural
impingement. Dr. Kelly determined that, therefore, appellant did not have a ratable permanent
impairment of the upper extremities under the sixth edition of the A.M.A., Guides and The Guides
Newsletter.
On August 28, 2019 OWCP again referred appellant’s case to Dr. White in his capacity as
a DMA. In a September 10, 2019 report, Dr. White found that she did not have a ratable permanent
impairment of the upper extremities. He expressed his agreement with the conclusions of
Dr. Kelly.
By decision dated September 16, 2019, OWCP denied appellant’s schedule award claim,
finding that she did not meet her burden of proof to establish permanent impairment of a scheduled
member or function of the body.
On October 14, 2019 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review. During the hearing, held on February 12, 2020, she
argued that she had permanent impairment of her upper extremities due to bilateral carpal tunnel
syndrome and a cubital tunnel condition.
Appellant submitted additional medical evidence, including September 19 and 30, 2019
reports from Dr. Kupfer who diagnosed cervical disc disorder with radiculopathy, history of
bilateral carpal tunnel syndrome, and left ulnar radiculopathy at the cubital tunnel with intermittent
ulnar nerve subluxation.
By decision dated April 28, 2020, OWCP’s hearing representative affirmed the
September 16, 2019 decision, finding that appellant failed to establish an upper extremity
impairment emanating from the cervical spine.
On July 10, 2020 appellant requested reconsideration of the April 28, 2020 decision.
Appellant submitted additional medical evidence, including May 19 and June 4, 2020
reports from Dr. Enass Rickards, a Board-certified orthopedic surgeon. In these reports,
Dr. Rickards diagnosed bilateral carpal tunnel syndrome and left ulnar nerve lesion. A June 1,
2020 EMG/NCV study showed a left ulnar neuropathy with conduction block between the elbow
and wrist.
On July 16, 2000 OWCP referred appellant, along with an updated SOAF and a series of
questions, for a second opinion examination and evaluation with Dr. William P. Curran, a Boardcertified orthopedic surgeon. It requested that he provide an opinion on whether she continued to
have residuals of her accepted April 22, 2013 employment injury.
In a September 1, 2020 report, Dr. Curran discussed appellant’s factual and medical history
and reported the findings of the physical examination he conducted on that date. He noted that the
cervical compression test he conducted was negative and that she did not exhibit spasms in her
cervical spine. The Phalen’s test was positive in both wrists. Dr. Curran diagnosed, inter alia,
cervical strain, and clinical and electrical evidence of left cubital tunnel syndrome. He opined that

4

the June 1, 2020 EMG/NCV study of appellant’s upper extremities was negative for bilateral
carpal tunnel syndrome and he found no objective findings of the accepted condition of cervical
spondylosis. Dr. Curran noted that the most recent cervical MRI scan, dated March 8, 2019, was
entirely within normal limits. He found evidence of a left cubital tunnel syndrome, which caused
numbness, tingling, and weakness of digits four and five of the left hand , but indicated that this
was a nonindustrial condition. Dr. Curran advised that appellant had reached MMI.
By decision dated October 8, 2020, OWCP denied modification of the April 28, 2020
decision.
LEGAL PRECEDENT
The schedule award provisions of FECA 10 and its implementing regulations11 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, FECA 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, OWCP has adopted the A.M.A., Guides as
the uniform standard applicable to all claimants. 12 As of May 1, 2009, the sixth edition of the
A.M.A., Guides is used to calculate schedule awards. 13
Neither FECA nor its implementing regulations provide for the payment of a schedule
award for the permanent loss of use of the back/spine or the body as a whole. 14 However, a
schedule award is permissible where the employment-related spinal condition affects the upper
and/or lower extremities. 15 The sixth edition of the A.M.A., Guides (2009) provides a specific
methodology for rating spinal nerve extremity impairment in The Guides Newsletter, which is a
supplemental publication of the sixth edition of the A.M.A., Guides. It was designed for situations
where a particular jurisdiction, such as FECA, mandated ratings for extremities and precluded
ratings for the spine. The FECA-approved methodology is premised on evidence of radiculopathy
affecting the upper and/or lower extremities. The appropriate tables for rating spinal nerve
extremity impairment are incorporated in the Federal (FECA) Procedure Manual. 16

10

5 U.S.C. § 8107.

11

20 C.F.R. § 10.404.

12

Id. See also T.T., Docket No. 18-1622 (issued May 14, 2019).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5a (March 2017); id. at Chapter 3.700.2 and Exhibit 1 (January 2010).
14

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see A.G., Docket No. 18-0815 (issued January 24, 2019);
Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).
15

Supra note 13 at Chapter 2.808.5c(3) (March 2017).

16

Supra note 13 at Chapter 3.700, Exhibit 4 (January 2010).

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ANALYSIS
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
In his July 17, 2019 report, Dr. Kelly discussed appellant’s factual and medical history and
reported the findings of the physical examination he conducted on that date. He noted atypical
and equivocal medical findings without regard to any true ulnar o r carpal tunnel condition.
Dr. Kelly reported that appellant exhibited normal upper extremity sensory and motor findings.
He indicated that she had subjective complaints of possible radicular symptoms of the upper
extremities, but advised that the diagnostic testing of record, including an MRI scan of the cervical
spine, did not demonstrate evidence of neural impingement. Dr. Kelly determined that, therefore,
appellant did not have a ratable permanent impairment of the upper extremities under the sixth
edition of the A.M.A., Guides. Moreover, Dr. White, a DMA, found in a September 10, 2019
report that she did not have a ratable permanent impairment of the upper extremities. Dr. White
expressed his agreement with the conclusions of Dr. Kelly.17
Appellant has not submitted probative medical evidence establishing ratable permanent
impairment of the upper extremities. The Board has held that an opinion on permanent impairment
is of little probative value if it is not derived in accordance with the standards adopted by OWCP
and approved by the Board as appropriate for evaluating schedule losses. 18
Appellant submitted a July 25, 2018 report from Dr. Raiszadeh who referenced symptoms
of pain in her wrists and found one percent permanent impairment of each upper extremity due to
the reported symptoms by utilizing Table 15-2 on page 395 of the sixth edition of the A.M.A.,
Guides.19 However, OWCP has not accepted an employment-related wrist condition. Moreover,
Dr. Raiszadeh’s report is of little probative value because he has not adequately explained how the
employment-related conditions resulted in a ratable impairment under the A.M.A., Guides.20 In
addition, he acknowledged in the same report that appellant had zero percent permanent
impairment of the upper extremities stemming from her cervical spine. Dr. Raiszadeh also noted
that, although an EMG/NCV study suggested mild carpal tunnel syndrome and an ulnar co ndition,
there was no frank neurologic evidence of either condition upon which to rate a diagnosis -based
impairment. The Board notes that neither of these conditions has been accepted by OWCP.
The Board finds that OWCP properly relied on the opinion of Dr. Kelly, an OWCP referral
physician, in denying appellant’s schedule award claim. Dr. Kelly’s comprehensive and well-

17
The Board notes that Dr. Curran, an OWCP referral physician, indicated in a September 1, 2020 report that he
found no objective findings of the accepted condition of cervical spondylosis. OWCP did not ask him to comment on
permanent impairment.
18

See N.A., Docket No. 19-0248 (issued May 17, 2019); James Kennedy, Jr., 40 ECAB 620, 626 (1989).

19

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

20

See supra note 19.

6

rationalized July 17, 2019 report constitutes the most recent assessment of her upper extremity
impairment and represents the weight of the medical evidence with respect to the matter.
Appellant may request a schedule award at any time based on evidence of a new exposure
or medical evidence showing progression of an employment-related condition resulting in
permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the October 8, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 28, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


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

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

Docket No. 07-1420
Issued: November 8, 2007

Case Submitted on the Record

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

JURISDICTION
On May 1, 2007 appellant filed a timely appeal from the April 18, 2007 decision of the
Office of Workers’ Compensation Programs terminating her wage-loss compensation for
refusing an offer of suitable work. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation benefits
effective April 18, 2007 on the grounds that she refused an offer of suitable work.
FACTUAL HISTORY
On May 21, 2005 appellant injured her arm and back while lifting a tray of mail. She
was disabled from work until August 1, 2004, when she returned to a light-duty position for four
hours per day, every other day. On September 23, 2005 the Office accepted appellant’s claim for
sprain of the cervical spine and upper left arm. On November 7, 2005 she began working five
hours per day, five days per week.

On May 17, 2006 the Office referred appellant to Dr. Perry Eagle, a Board-certified
orthopedic surgeon, for a second opinion examination. On June 14, 2006 Dr. Eagle conducted a
review of the medical history and a physical examination. He noted that a functional capacity
examination report dated May 10, 2006 concluded that appellant was capable of medium work
activities. Dr. Eagle found that appellant could rotate her head 75 degrees in both directions, flex
to 45 degrees, extend to 40 degrees and laterally tilt to 25 degrees. He noted no pain, muscle
spasms or guarding in the neck during active range of motion. Dr. Eagle stated that appellant
had mild alternating contraction and relaxation of the deltoid, bicep, tricep, wrist dorsiflexor and
hand muscles in the left arm, but no weakness. He reported that she complained of decreased
sensation and tingling on her left hand and fingers. Dr. Eagle stated that x-rays taken in his
office revealed that appellant’s cervical spine was within normal limits and gave no evidence of
osteophytosis, fracture, subluxation or misalignment. He noted that a July 2004 magnetic
resonance imaging (MRI) scan was reported as negative, but that a June 2005 MRI scan was
reported as showing disc bulging at C3-4 and less extensively at C4-5, mild hypertrophic
spurring and possible mild foraminal narrowing at C3-4 through C5-6.
Dr. Eagle found that there were no objective physical or diagnostic findings that indicated
permanent physical impairment or physical limitations. He found that appellant could work in
her normal position for eight hours a day, but that she should work under restrictions for six
months. Dr. Eagle based the restrictions on appellant’s subjective complaints of pain, noting that
some people with cervical sprain may continue to have some subjective complaints. He stated
that appellant was limited to four hours of pushing 30 pounds, pulling 50 pounds, and lifting 25
pounds.
On June 29, 2006 the Office asked appellant’s treating physician, Dr. Kathleen Sempeles,
a family practitioner, to comment on Dr. Eagle’s report. On July 14, 2006 Dr. Sempeles stated
that she did not agree with Dr. Eagle’s recommendations that appellant could work eight hours a
day for five days in a row. She indicated that appellant continued to experience significant
chronic pain despite several kinds of treatment. Dr. Sempeles explained that, because appellant
experienced severe pain after working consecutive days or many hours in one day, she was only
able to work five hours per day, four days a week. She also stated that appellant should be
restricted to lifting 15 to 25 pounds on an intermittent basis and 15 pounds on a continuous basis.
Dr. Sempeles noted that her recommendations were based on the functional capacity evaluation
conducted in May 2006.
On September 29, 2006 Dr. Sempeles updated appellant’s restrictions to five hours of
work per day, five days per week. She stated that appellant’s condition was aggravated by
pushing, pulling and overhead work, especially when done continuously. Dr. Sempeles stated
that appellant was limited to 15 pounds of weight.
The Office found that there was a conflict of medical opinion between Dr. Eagle and
Dr. Sempeles over the extent of appellant’s physical limitations. On November 3, 2006
appellant was referred to Dr. Thomas Green, a Board-certified orthopedic surgeon, selected as
the impartial medical specialist. In a report dated November 20, 2006, Dr. Green found that the
problematic aspects of appellant’s regular-duty position were reaching down into a container to
collect mail and lifting packages or bags of up to 70 pounds. He reviewed appellant’s medical
history and noted that she required ongoing treatment to deal with her pain. On physical

2

examination, Dr. Green found that appellant had full cervical range of motion in rotation,
flexion, extension and side bending. He noted a subtle tightness in the muscles on left rotation of
the neck that would be difficult to measure. Dr. Green stated that there was also tightness in the
trapezius muscles, but no spasm or loss of strength. He found normal reflexes and sensation in
both upper extremities. He noted diminished strength of 4/5 in the left shoulder girdle, related
primarily to the arm muscles.
Based on his physical examination, Dr. Green diagnosed chronic cervical strain and
found that it was directly correlated to her employment injury by medical history. He stated that
there was “reason to believe” that appellant had a stable mild neuritis in the shoulder that
accounted for her slight weakness in abducting, flexing and extending her left shoulder.
Dr. Green found that her MRI reports indicated that she had degenerative disc disease with a
slight posterior disc protrusion at C3-4. Because he knew of no preexisting problems or
impairments that would account for the three diagnoses he made, he found that all of these
conditions were related to her accepted employment injury. Dr. Green stated that appellant had
reached maximum medical improvement and should continue to be treated conservatively to
relieve her ongoing pain. After reviewing appellant’s job description, he recommended against
lifting more than 20 pounds. Because of her short stature and the stress of bending forward with,
he opined that she should not gather mail from a deep container that would require forward
bending. Dr. Green stated that appellant was “probably better suited to a sit-down job of sorting
mail.” On a work capacity evaluation form dated December 28, 2006, Dr. Green stated that
appellant was able to work eight hours per day with restrictions against reaching down, bending
or stooping for more than two hours, and lifting 15 pounds for more than half of an hour. He
found that she was able to sit, stand and walk for eight hours a day.
On January 18, 2007 the Office notified the employing establishment of Dr. Green’s
restrictions. It inquired as to whether modified duty was available to meet appellant’s work
restrictions.
On January 25, 2007 appellant contended that she was unable to work eight hours per
day. She provided a report from Dr. Sempeles and a May 2006 functional capacity evaluation
report that indicated she was capable of working only four to six hours per day. In the functional
capacity evaluation report, the occupational rehabilitations specialists found that appellant could
perform at the medium level, but lacked the stamina to perform her job for eight hours per day.
On February 2, 2007 the employing establishment offered appellant the modified position
of distribution markup clerk. It noted physical restrictions against bending or stooping for more
than two hours and lifting 15 pounds for more than one and a half hours. The duties included
four to eight hours of manually sorting mail from a utility cart while sitting or standing, four to
eight hours of sorting parcels weighing less than 15 pounds while standing, verifying mail while
sitting as needed, counting and scanning mail while sitting as needed, and various administrative
duties while sitting and standing as assigned. The employing establishment requested a
suitability determination on this position.
On February 10, 2007 appellant declined the offered limited-duty position. She stated
that her physician had not released her to eight hours a day of work and, when she sorted flats for
two hours the previous day, her back was in a great deal of pain.

3

On February 16, 2007 the Office discussed appellant’s sorting duties with the employing
establishment. The Office determined that appellant would not be required to bend or stoop to
retrieve mail from a utility cart, which can stand or tilt to be accessed from a seated position. By
notice dated February 16, 2007, the Office found the offered position to be suitable. The Office
advised appellant that she had 30 days to either accept the position or provide an explanation for
refusing it. It also informed her that her compensation could be terminated for her refusal to
accept the position.
On February 20, 2007 Dr. Sempeles stated that appellant could increase her work hours
to six hours per day, five days per week, with half of the hours to be completed while sitting.
She stated that, if appellant’s pain syndrome worsened, she would need to return to a four-hourper-day schedule.
On March 12, 2007 appellant informed the Office that she could not accept the offered
position because she could not work eight hours a day. She stated that since she began working
six hours per day on February 21, 2007 she had experienced an increase in back pain and that her
face and arm had started to feel numb again. Appellant reported that she had been standing
during most of her working hours and when she was able to sit, the chair did not have a back.
She requested that she be given a chair with a back and that the position be altered to six hours
per day, rather than eight.
By notice dated March 20, 2007, the Office found that appellant’s statements, the
functional capacity evaluation and reports from Dr. Sempeles were not sufficient to establish that
the offered position was not suitable to appellant’s condition. The Office stated that no further
reasons for refusal would be accepted and that, if she did not accept the offered job within 15
days, her entitlement to wage loss and schedule award benefits could be terminated. Appellant
did not accept the position.
By decision dated April 18, 2007, the Office terminated appellant’s wage-loss
compensation benefits based on her refusal to accept suitable work. The Office found that the
opinion of Dr. Green, the impartial medical specialist, carried the weight of the medical opinion
evidence because his examination was thorough, unequivocal and based on relevant evidence.
As the impartial medical examiner, Dr. Green’s opinion was entitled to special weight.
LEGAL PRECEDENT
Section 8106(c)(2) of the Federal Employees’ Compensation Act provides in pertinent
part: “A partially disabled employee who ... (2) refuses or neglects to work after suitable work is
offered ... is not entitled to compensation.”1 However, to justify such termination, the Office
must show that the work offered was suitable and must inform appellant of the consequences of
refusal to accept such employment.2 Before compensation can be terminated, the Office has the
burden of demonstrating that the employee can work, setting forth specific restrictions, if any, on
1

5 U.S.C. § 8106(c)(2).

2

See John E. Lemker, 45 ECAB 258, 263 (1993).

4

the employee’s ability to work. The Office must also establish that a position has been offered
within the employee’s work restrictions, setting for the specific job requirements of the position.3
An employee who refuses or neglects to work after suitable work has been offered to him has the
burden of showing that such refusal to work was justified.4
Section 8123(a) of the Act states: “If there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.”5 When there are opposing
reports of virtually equal weight and rationale, the case must be referred to an impartial medical
specialist, pursuant to section 8123(a) of the Act, to resolve the conflict in the medical evidence.6
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.7
ANALYSIS
The Office accepted that appellant sustained strains to her cervical spine and upper left
arm and paid appropriate compensation for periods of disability. The Office terminated
appellant’s wage-loss compensation effective April 18, 2007 on the grounds that she refused an
offer of suitable work. The Board finds that the Office met its burden of establishing that the
work offered was suitable and that appellant failed to show that her refusal to accept the job offer
was reasonable or justified.
In order to resolve the conflict of medical opinion evidence between appellant’s treating
physician and the second opinion physician regarding appropriate work restrictions, the Office
referred appellant to Dr. Green, a Board-certified orthopedic surgeon, who reviewed appellant’s
medical records and conducted a thorough physical examination. He found that appellant had
full cervical range of motion in rotation, flexion, extension and side bending, though she did
have muscle tightness on the left side of her neck and the trapezius area. Appellant had normal
reflexes and sensation in both upper extremities, but diminished strength in the left shoulder
girdle, related primarily to the arm muscles. Based on his physical examination and the medical
history, Dr. Green diagnosed chronic cervical strain, mild neuritis in the shoulder and
degenerative disc disease with a slight posterior disc protrusion at C3-4. He found that all of
these conditions were related to appellant’s accepted employment injury. Dr. Green stated that
appellant had reached maximum medical improvement and should continue to be treated
conservatively to relieve her ongoing pain.

3

Linda Hilton, 52 ECAB 476, 481 (2001).

4

20 C.F.R. § 10.124; see Catherine G. Hammond, 41 ECAB 375, 385 (1990).

5

5 U.S.C. § 8123(a).

6

William C. Bush, 40 ECAB 1064, 1075 (1989).

7

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

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Dr. Green noted that the problematic aspects of appellant’s regular-duty position were the
requirements of lifting packages or bags of up to 70 pounds and reaching down into a container
to collect mail. Therefore, he stated that she should lift no more than 20 pounds and, because of
her short stature and the stress of bending forward, he opined that she should not gather mail
from a container that would require forward bending. Though Dr. Green stated that appellant
was “probably better suited to a sit-down job of sorting mail,” he found that she was able to sit,
stand and walk for eight hours a day. On the work capacity evaluation form, Dr. Green stated
that appellant was able to work eight hours per day with restrictions against reaching down,
bending or stooping for more than two hours, and lifting 15 pounds for more than half of an
hour. The Board finds that the opinion of Dr. Green is entitled to the special weight of the
medical evidence because it is sufficiently well rationalized and based on proper factual
background.
On the basis of the work restrictions set out by Dr. Green, the employing establishment
offered appellant the modified light-duty position of distribution markup clerk. The duties
included four to eight hours of manually sorting mail from a utility cart while sitting or standing,
four to eight hours of sorting parcels weighing less than 15 pounds while standing, verifying mail
while sitting as needed, counting and scanning mail while sitting as needed, and various
administrative duties while sitting and standing as assigned. The Board finds that the
requirements of the modified distribution markup clerk were within the work restrictions
delineated by Dr. Green.8
After determining that appellant’s sorting duties would not require her to bend over, on
February 16, 2007 the Office properly notified appellant that the position was suitable under the
restrictions set forth by Dr. Green. The Office advised her that she had 30 days to accept the
position or provide an explanation for refusing it. On March 12, 2007 appellant stated that she
could not accept the position because she was unable to work for eight hours a day. In support of
this position, Dr. Sempeles, appellant’s family practitioner, stated on February 20, 2007 that
appellant could work for only six hours per day, three of which needed to be sitting. The Board
notes that, once the Office has established that a particular position is suitable, an employee who
refuses the position has the burden of showing that such refusal was justified.9 The issue of
whether appellant is able to perform an offered position is primarily a medical one and must be
resolved by medical evidence.10 The Board finds that the opinion of Dr. Sempeles, who was on
one side of the conflict in medical opinion, does not overcome the special weight of the medical
evidence as set out by Dr. Green.11 The Board finds that appellant did not meet the burden of
showing that her refusal to accept the position was justified.
8

The Board notes that the employing establishment incorrectly stated that the restriction against lifting 15 pounds
was for more than one and a half hours, rather than half of an hour. However, as the position does not appear to
require lifting anything weighing more than 15 pounds, this mistake is harmless.
9

Brian O. Crane, 56 ECAB __ (Docket No. 05-232, issued September 2, 2005).

10

Kathy E. Murray, 55 ECAB 288, 290 (2004).

11

See Jaja K. Asaramo, 55 ECAB 200, 205 (2004) (the additional report of the physician who had been on one
side of the conflict resolved by the impartial medical examiner was insufficient to overcome the weight accorded to
the opinion of the impartial medical examiner or create a new conflict).

6

On March 20, 2007 the Office informed appellant that she had failed to provide valid
reasons for refusing the offered position and allowed her 15 additional days to accept it. Because
appellant did not accept the position within the allotted time, the Office terminated her benefits.
The Board finds that the termination of appellant’s benefits was proper because the Office met
its burden of proving that the modified distribution markup clerk position offered by the
employing establishment was suitable at the time it was offered and that appellant was informed
of the consequences of her refusal to accept the offered position.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation benefits
effective April 18, 2007 on the grounds that she refused an offer of suitable work.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 18, 2007 is affirmed.
Issued: November 8, 2007
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Washington, DC, Employer
__________________________________________

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

Docket No. 10-1285
Issued: January 7, 2011

Case Submitted on the Record

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

JURISDICTION
On April 4, 2010 appellant filed a timely appeal from a January 15, 2010 merit decision
of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office met its burden of proof to establish that appellant’s
accepted depressive episode resolved as of October 27, 2009.
FACTUAL HISTORY
Appellant, a 46-year-old human relations specialist, filed a Form CA-2 claim for benefits
on May 22, 2008, alleging that she sustained an emotional condition causally related to factors of
her employment: stressful working conditions; a heavy workload; and a staffing shortage. The
employing establishment advised that appellant’s employment was terminated on May 18, 2009.

In a report dated November 3, 2009, Dr. Morris A. Blount, Jr., a psychiatrist, stated that
appellant had developed major depressive disorder, single episode. He advised that she was
experiencing anxiety, psychomotor agitation, limited concentration, insomnia, panic attacks and
depressed mood. Dr. Blount asserted that appellant’s major depressive disorder, single episode,
was caused by her job, including: a continually increasing workload outside of her job duties;
being asked to train another employee; and having no job description while performing all of
these tasks. He found that appellant was not able to work at any job at the employing
establishment due to a likely reoccurrence of her above symptoms. Dr. Blount advised that her
mental condition had gradually returned to normal limits due to treatment and medication. On
November 18, 2009 the Office accepted the claim for major depressive disorder, single episode.
On November 23, 2009 appellant filed two CA-7 forms, claims for compensation for
intermittent periods of disability from August 26, 2008 to January 2, 2010.
In a January 5, 2010 report, Dr. Blount stated that he had most recently examined
appellant on October 27, 2009 and his depressive episode had resolved. He related that she did
not show any signs that she was unable to work or required any special accommodations.
Dr. Blount advised, however, that due to the severity of appellant’s presenting symptoms and
their relationship to her workplace, her symptoms could recur if she was exposed to the same job
conditions.
By decision dated January 15, 2010, the Office found that appellant’s major depressive
disorder had resolved as of October 27, 2009 and that she did not require any additional
treatment for her accepted condition. On January 22, 2010 the Office paid compensation from
August 26, 2008 to October 27, 2009. Compensation after October 27, 2009 was denied.
LEGAL PRECEDENT
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.1 The Office may not terminate compensation without
establishing that disability ceased or that it was no longer related to the employment.2 Its burden
of proof includes the necessity of furnishing rationalized medical opinion evidence based on a
proper factual and medical background.3
The right to medical benefits for an accepted condition is not limited to the period of
entitlement to compensation for disability. To terminate authorization for medical treatment, the
Office must establish that an employee no longer has residuals of an employment-related
condition which require further medical treatment.4

1

I.J., 59 ECAB 408 (2008); Fermin G. Olascoaga, 13 ECAB 102, 104 (1961).

2

J.M., 58 ECAB 478 (2007); Anna M. Blaine, 26 ECAB 351 (1975).

3

T.P., 58 ECAB 524 (2007); Larry Warner, 43 ECAB 1027 (1992).

4

T.P., id.; Furman G. Peake, 41 ECAB 361, 364 (1990).

2

The fact that the Office accepted an employee’s claim for a specified period of disability
does not shift the burden of proof to the employee. The burden is on the Office with respect to
the period subsequent to the date of termination or modification.5
ANALYSIS
On November 18, 2009 the Office accepted that appellant sustained a May 2, 2008 major
depressive disorder, single episode. The Board finds that the Office met its burden of proof to
terminate compensation benefits as of October 27, 2009.6
The medical evidence consists of reports from appellant’s treating physician, Dr. Blount,
who stated in a November 3, 2009 report that appellant had developed a condition of major
depressive disorder, single episode which was caused by her job conditions. He explained that
appellant’s mental condition had gradually returned to normal limits due to treatment and
medication. On January 5, 2010 Dr. Blount found that appellant’s major depressive disorder,
single episode, had resolved as of October 27, 2009, the date of his most recent examination.
Appellant did not show any signs that she was unable to work or required any special
accommodations.
Dr. Blount’s opinion supports the Office’s finding that appellant’s accepted condition
resolved as of October 27, 2009, and did not cause any continuing disability. He noted that
appellant’s psychiatric symptoms could recur if she was exposed to the same work conditions;
however, the Board has consistently held that fear of future injury is not compensable.7
The Board finds that the Office properly relied on the opinion of Dr. Blount to terminate
appellant’s compensation benefits. The weight of the medical opinion is determined by the
opportunity for and thoroughness of examination, the accuracy and completeness of the
physician’s knowledge of the facts of the case, the medical history provided, the care of analysis
manifested and the medical rationale expressed in support of stated conclusions.8 As the
attending physician, Dr. Blount’s opinion is probative, rationalized and based upon a proper
factual background. He fully discussed the history of injury which indicated that appellant’s
disability had resolved as of October 27, 2009. The Board therefore finds that Dr. Blount’s
opinion constituted sufficient medical rationale to support the Office’s January 15, 2010 decision
terminating benefits.

5

Elsie L. Price, 54 ECAB 734, 739 (2003); George J. Hoffman, 41 ECAB 135, 140 (1989).

6

The Board notes that the Office did not issue a pretermination notice in this case. Pursuant to the Federal
(FECA) Procedure Manual at Chapter 2.1400.6, When to Issue Pre-Termination and Pre-Reduction Notices, a
pretermination notice is required where benefits are being paid on the periodic rolls. Appellant received a lump-sum
payment and was not paid on the periodic rolls or on the daily roll over a period of time. Notice is also not required
to terminate medical benefits if the treating physician indicates that further medical treatment is not necessary.
7

See Calvin E. King, 51 ECAB 394 (200).

8

See Ann C. Leanza, 48 ECAB 115 (1996).

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CONCLUSION
The Board finds that the Office met its burden to establish that appellant’s accepted
condition of single episode, depressive disorder resolved as of October 27, 2009.
ORDER
IT IS HEREBY ORDERED THAT the January 15, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 7, 2011
Washington, DC

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

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

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

4


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

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

Docket No. 19-1750
Issued: March 26, 2020

Case Submitted on the Record

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

JURISDICTION
On August 19, 2019 appellant, through counsel, filed a timely appeal from a July 31, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On April 26, 2018 appellant, then a 50-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that she developed low back, buttocks, bilateral hip and knee and
groin pain, and numbness of both legs due to factors of her federal employment. She noted that
she initially became aware of her conditions on April 6, 2018 and realized their relationship to her
federal employment on April 13, 2018. Appellant stopped work on April 28, 2018.
In a development letter dated May 10, 2018, OWCP requested that appellant submit
additional evidence in support of her claim. It advised her of the type of factual and medical
evidence needed and provided a questionnaire for her completion. By separate letter of even date,
OWCP also requested additional information from the employing establishment. It afforded both
appellant and the employing establishment 30 days to respond.
A magnetic resonance imaging (MRI) scan of the right knee dated March 23, 2018 revealed
tricompartmental degenerative joint disease and osteoarthritis, patellar tendon lateral foraminal
condyle friction syndrome, moderate knee joint effusion, and Baker’s cyst.
Appellant was treated by Dr. Gilbert Mayorga, a family practitioner, on April 13, 2018 for
pain and discomfort of the bilateral knees, right hip, and low back which developed while
performing her letter carrier duties including lifting, sorting, carrying, walking, and delivering
mail. Dr. Mayorga diagnosed lumbar spine sprain, sprain of the bilateral knees, degenerative joint
disease of the bilateral knees, low back, and hip, chondromalacia patellae of the bilateral knees,
sprain of the hip, and lumbar radiculitis. He recommended physical therapy and advised that
appellant would remain off work for one month.
In an attending physician’s report dated April 20, 2018, Dr. Mayorga diagnosed
intervertebral disc disorders with radiculopathy lumbar region and internal derangement of the
bilateral knees and checked the box marked “yes” indicating that the condition was caused or
aggravated by an employment activity. He concluded that appellant was totally disabled from
work.
On April 27, 20183 Dr. James S. Crockett, an osteopath specializing in family practice,
treated appellant for bilateral knee pain.
In a narrative statement dated May 16, 2018, appellant indicated that her duties as a city
letter carrier required prolonged standing and walking while carrying a mail satchel and loading
parcels and trays of mail weighing up to 35 pounds into her vehicle. She performed these duties
five to seven hours a day, five to six days a week. These tasks required repetitive bending, lifting,

3

Only the first page of this report was submitted containing Dr. Crockett’s letterhead, however, it was unsigned.

2

twisting, turning, and stooping. Appellant reported walking on all types of terrain and in all
weather conditions while in the performance of duty.
An MRI scan of the lumbar spine dated May 30, 2018 revealed mildly accentuated lumbar
lordosis, mild facet arthropathy at L3-4 and L4-5, and diffuse disc bulge with superimposed central
protrusion and annular rent, may abut the S1 nerve roots bilaterally. An MRI scan of the left knee
revealed small joint effusion, small semimembranosus gastrocnemius bural prolapse, mildly high
riding patella, slight lateral patella subluxation, early grade four chondromalacia lateral
compartment, mildly discoid medial meniscus, and possible bursitis. An MRI scan of the right hip
revealed mild chondral thinning of the bilateral hips, low grade strain injury with degenerative and
inflammatory changes, mild atrophic changes gluteus minimus bilaterally, scant fluid associated
with the iliopsoas bursa, mild degenerative changes of the sacroiliac joints, and severe facet
arthropathy at L4-5 and L5-S1 bilaterally.
By decision dated June 12, 2018, OWCP accepted the alleged employment factors.
However, it denied her claim because the medical evidence of record was insufficient to establish
a causal relationship between her diagnosed conditions and the accepted factors of her federal
employment.
OWCP subsequently received a June 8, 2018 report and a June 22, 2018 attending
physician’s narrative from Dr. Mayorga, who noted that appellant worked as a letter carrier for 17
years and her duties required repetitively and continuously lifting, carrying, delivering mail,
climbing in and out of her vehicle, ascending and descending stairs, and walking on uneven terrain.
Dr. Mayorga diagnosed lumbar strain, sprain of the bilateral knees and right hip, degenerative joint
disease of the bilateral knees and right hip, chondromalacia of the bilateral knees, and lumbar
radiculitis. He opined that performing these job duties over a prolonged period directly resulted
in wear and tear and micro trauma to the bilateral knees, right hip, and low back. Dr. Mayorga
noted that appellant was totally disabled from work from June 8 to July 20, 2018.
On June 25, 2018 appellant requested reconsideration.
By decision dated July 2, 2018, OWCP denied modification of the June 12, 2018 decision.
On July 23, 2018 appellant requested reconsideration. In support of her request for
reconsideration she provided an April 27, 2018 report from Dr. Crockett who noted findings on
examination and diagnosed bilateral knee pain.
By decision dated September 11, 2018, OWCP denied modification of the July 2, 2018
decision.
OWCP subsequently received reports from Dr. Nolan Malthesen, a Board-certified
orthopedist, dated January 20, 2016 to April 11, 2018, who diagnosed bilateral hip pain with
possible labral tear, right knee medial compartment chondromalacia, and possible degenerative
posterior meniscus tear. Dr. Malthesen noted that appellant was a letter carrier and walked several
miles a day and experienced knee pain. He opined that the right knee was more likely an arthritic
problem than a meniscal problem. On April 19, 2017 and April 11, 2018 Dr. Malthesen performed
ultrasound guided steroid injections into the left knee.

3

Dr. Chad Connor, a Board-certified orthopedist, treated appellant on January 22, 2016 and
diagnosed bilateral hip acetabular impingement syndrome and trochanteric bursitis. Appellant
reported working as a carrier. Dr. Connor performed an ultrasound guided steroid injection into
the right joint.
In a form report dated April 9, 2018, Dr. Crockett noted that appellant was a city carrier
who cased mail, loaded and unloaded her vehicle, and delivered mail. He diagnosed internal
derangement of the right knee and left knee pain. Dr. Crockett opined that appellant was totally
disabled from work beginning March 19, 2018.
Appellant submitted additional reports from Dr. Mayorga dated April 27, May 11, July 23,
August 17 and September 14, 2018 wherein he noted that appellant worked for the employing
establishment for over 17 years and her job duties included prolonged walking and standing,
climbing in and out of her vehicle, and walking on uneven ground, caused pain in her bilateral
knee, right hip, low back, groin and buttocks. Dr. Mayorga again opined that appellant sustained
her injuries as a result of performing her job duties.
By decision dated January 25, 2019, OWCP denied modification of the September 11, 2018
decision.
On March 12, 2019 appellant, through counsel, requested reconsideration and submitted
an October 12, 2018 report from Dr. Mayorga who again noted that appellant’s work duties
included walking, carrying, lifting, walking, climbing, bending, standing, and getting in and out
of vehicles. Dr. Mayorga opined that these activities caused gradual wearing of the joints including
the bilateral knees and lumbar sacral spine. He noted that although these conditions were
associated with “disease of ordinary life,” he believed that 17 years of exposure to these activities
caused stress on the preexisting conditions causing a worsening and exacerbation of the conditions.
Dr. Mayorga opined that appellant’s occupational exposure and her “disease of ordinary life” was
aggravated, accelerated, and worsened as a result of direct occupational exposure.
By decision dated July 31, 2019, OWCP denied modification of the January 25, 2019
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related

4
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).

4

to the employment injury.5 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.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.8 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factors must be based on a
complete factual and medical background.9 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factors.10
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted factors of her federal employment.
In support of her claim appellant submitted an April 13, 2018 report from Dr. Mayorga
who treated her for pain and discomfort of the bilateral knees, right hip, and low back as a result
of lifting, sorting, carrying, walking, and delivering mail. Dr. Mayorga diagnosed lumbar spine
sprain, sprain of the bilateral knees, degenerative joint disease of the bilateral knees, low back, and
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
8

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

9

M.V., Docket No. 18-0884 (issued December 28, 2018).

10

Id.; Victor J. Woodhams, supra note 7.

11
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013). See
R.D., Docket No. 18-1551 (issued March 1, 2019).

5

hip, chondromalacia patellae of the bilateral knees, sprain of the hip, and lumbar radiculitis. While
he provided affirmative opinions which supported causal relationship, he did not offer a
rationalized medical explanation in any of his reports to support his opinion. Medical evidence
that provides a conclusion, but does not offer a rationalized medical explanation regarding the
cause of an employee’s condition is of limited probative value on the issue of causal relationship.12
In an attending physician’s statement dated April 20, 2018, Dr. Mayorga diagnosed
intervertebral disc disorders with radiculopathy lumbar region and internal derangement of the
bilateral knees and indicated by a checkmark on a form that the condition was caused or aggravated
by an employment activity. However, the checking of a box marked “yes” in a form report, without
additional explanation or rationale, is insufficient to establish causal relationship.13
Reports from Dr. Mayorga dated April 27 to September 14, 2018, described appellant’s
work duties as a carrier and opined with reasonable medical certainty that performing these job
duties over a prolonged period caused pain in her bilateral knee, right hip, low back, groin and
buttocks. While Dr. Mayorga’s opinion is generally supportive of causal relationship, he again
did not provide adequate medical rationale explaining the basis of his opinion on causal
relationship.14 Thus, the Board finds that his reports are insufficient to establish appellant’s burden
of proof.
In a June 22, 2018 report, Dr. Mayorga noted a history of injury and diagnosed lumbar
strain, sprain of the bilateral knees and right hip, degenerative joint disease of the bilateral knees
and right hip, chondromalacia of the bilateral knees, and lumbar radiculitis. While he expressed
his belief that appellant developed pain in her bilateral knees, right hip, and low back as a “direct
result” of her performance of her job duties as a letter carrier, Dr. Mayorga did not provide a
pathophysiological explanation as to how the accepted factors of appellant’s employment either
caused or contributed to his diagnosed conditions.15 The Board has consistently held that complete
medical rationalization is particularly necessary when there are preexisting conditions involving
the same body part,16 and has required medical rationale differentiating between the effects of the
work-related injury and the preexisting condition in such cases.17 Thus, the Board finds that this
report from Dr. Mayorga is also insufficient to establish causal relationship.

12

C.V., Docket No. 18-1106 (issued March 20, 2019); M.E., Docket No. 18-0330 (issued September 14, 2018);
A.D., 58 ECAB 149 (2006).
13

M.D., Docket No. 18-0195 (issued September 13, 2018).

14

See M.B., Docket No. 18-0906 (issued November 21, 2018).

15

Victor J. Woodhams, supra note 7. Federal (FECA) Procedure Manual, Part 2 --- Claims, Causal Relationship,
Chapter 2.805.3e (January 2013). See R.D., Docket No. 18-1551 (issued March 1, 2019).
16

K.R., Docket No. 18-1388 (issued January 9, 2019).

17

See e.g., A.J., Docket No. 18-1116 (issued January 23, 2019); M.F., Docket No. 17-1973 (issued December 31,
2018); J.B., Docket No. 17-1870 (issued April 11, 2018); E.D., Docket No. 16-1854 (issued March 3, 2017); P.O.,
Docket No. 14-1675 (issued December 3, 2015).

6

Similarly, in his October 12, 2018 report, Dr. Mayorga opined that appellant’s work duties
as a carrier caused gradual wearing of the joints including the bilateral knees and lumbar sacral
spine. He noted that these conditions were associated with “disease of ordinary life” and opined
that appellant’s occupational exposure caused stress on the preexisting conditions, causing a
worsening and exacerbation of the conditions. However, Dr. Mayorga did not provide a diagnosis,
a history of any preexisting conditions, or a discussion of how employment factors may have
temporarily or permanently aggravated a preexisting condition.18 Therefore this report is
insufficient to meet appellant’s burden of proof.
In reports dated April 27, 2018, Dr. Crockett diagnosed bilateral knee pain. In a
certification of health care provider dated April 9, 2018, he described appellant’s work duties and
diagnosed internal derangement of the right knee and left knee pain. Dr. Crockett’s notes are
insufficient to establish the claim as “pain” is a symptom, not a medical diagnosis.19 Additionally,
he did not specifically address whether appellant’s employment was sufficient to have caused or
aggravated a diagnosed medical condition. Medical evidence that does not offer an opinion
regarding the cause of an employee’s condition or disability is of no probative value on the issue
of causal relationship.20 As such, Dr. Crockett’s notes are insufficient to establish appellant’s
claim.
In reports dated January 20, 2016 to April 11, 2018, Dr. Malthesen diagnosed bilateral hip
pain with possible labral tear, right knee medial compartment chondromalacia, and possible
degenerative posterior meniscus tear. He noted that appellant was a letter carrier and walked
several miles a day and experienced pain in her knees. Likewise, a January 22, 2016 report from
Dr. Connor noted that appellant was a carrier and diagnosed bilateral hip acetabular impingement
syndrome and trochanteric bursitis. The Board has held that medical evidence that does not offer
an opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship.21 These reports, therefore, are insufficient to establish appellant’s claim.
Appellant also submitted diagnostic imaging studies. The Board has held that diagnostic
studies lack probative value as they do not provide an opinion on causal relationship between
accepted employment factors and a claimant’s diagnosed conditions.22 This evidence is therefore
insufficient to establish appellant’s claim.
As appellant has not submitted rationalized medical evidence sufficient to establish causal
relationship, the Board finds that she has not met her burden of proof.

18

See Deborah L. Beatty, 54 ECAB 340 (2003) (where the Board found that in the absence of a medical report
providing a diagnosed condition and a reasoned opinion on causal relationship with the employment incident,
appellant did not meet her burden of proof).
19
Findings of pain or discomfort alone do not satisfy the medical aspect of the fact of injury medical determination.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803.4a(6) (August 2012).
20

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

21

Id.

22

See I.C., Docket No. 19-0804 (issued August 23, 2019).

7

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a medical
condition conditions causally related to the accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the July 31, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 26, 2020
Washington, DC

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

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

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

8