United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
__________________________________________

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

Docket No. 08-6
Issued: May 23, 2008

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 July 2, 2007 appellant filed a timely appeal from a June 8, 2007 decision of the Office
of Workers’ Compensation Programs which affirmed an October 4, 2006 decision finding that
she had no employment-related restrictions for work and denying her request for foot surgery
and a wheelchair. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction
over the merits of the case.
ISSUES
The issues are: (1) whether the Office properly determined that appellant’s employmentrelated work restrictions had ceased by October 3, 2006; and (2) whether the Office properly
denied appellant’s request for bilateral foot arthroplasty performed on December 9, 2005 and
authorization for a wheelchair.
FACTUAL HISTORY
On January 20, 2003 appellant, then a 55-year-old manager, filed an occupational disease
claim alleging that she developed bilateral hammertoe deformities as a result of the standing and

walking required by her position. She first became aware of her condition in October 2002. The
Office accepted the claim for aggravation of bunions of both feet and authorized a left
bunionectomy on December 4, 2002 and a right bunionectomy on January 8, 2003. Appellant
stopped work on December 3, 2002, initially returned to limited duty on March 3, 2003, stopped
again on May 15, 2003 and returned to limited-duty work on September 8, 2003. Appropriate
compensation benefits were paid.1
Appellant came under the treatment of Dr. David Amarnek, a podiatrist. In an operative
report dated December 4, 2002, Dr. Amarnek performed a chevron bunionectomy of the left foot
and arthroplasty of the fourth proximal interphalangeal joint of the left foot and diagnosed hallux
valgus left and hammertoe fourth left. He noted that appellant had progressed well
postoperatively with no pain or discomfort. On January 8, 2003 Dr. Amarnek performed a
chevron bunionectomy of the right foot, arthroplasty of the second distal interphalangeal joint
and fourth proximal interphalangeal joint of the right foot. He diagnosed hallux valgus, right,
hammer toe of the second distal interphalangeal joint and fourth proximal interphalangeal joint
on the right. In reports dated June 10 and August 13, 2003, Dr. Amarnek diagnosed hallux
valgus and hammertoes and indicated that the condition was aggravated by her employment.
In a work capacity evaluation dated August 29, 2003, Dr. Amarnek returned appellant to
work full time with restrictions on walking and standing more than 30 minutes per day. In
reports dated January 28 to July 14, 2004, he noted appellant had limited range of motion at the
first metatarsal phalangeal joint bilaterally and symptoms of metatarsalgia. Dr. Amarnek
submitted a report dated July 6, 2005, which advised that appellant could continue to work with
permanent restrictions of sitting 8 hours per day with no more than 15 minutes of walking per
day with the use of a foot rest. In a report dated October 24, 2005, he advised that appellant had
generalized lower extremity pain from the feet to the knees.
The employing establishment referred appellant to Dr. Donald H. Brancato, a Boardcertified orthopedist, for a fitness-for-duty examination. In a report dated December 12, 2005,
Dr. Brancato noted that x-rays of both feet were normal with no significant arthritic change. He
opined that there were no objective findings to limit appellant’s fitness-for-full duty.
Dr. Brancato indicated that the bunion procedures were performed to improve appellant’s quality
of life. He noted that appellant wore two inch heels which could significantly aggravate her
complaints.
In September 6 and November 29, 2005 reports, Dr. Amarnek advised that appellant had
progressively painful hammertoe deformities of the third digit bilaterally. She was having more
discomfort associated with her work duties, which involved prolonged weight-bearing beyond
her restrictions and recommended surgery. In a December 9, 2005 operative report,
Dr. Amarnek performed arthroplasty of the third distal and phalangeal joint bilaterally and
1

Appellant also filed a claim for a schedule award. In a March 7, 2007 decision, the Office granted a schedule
award for three percent permanent impairment of the right leg and five percent impairment of the left leg. Appellant
appealed the schedule award decision to the Board. On November 5, 2007 the Board affirmed the Office’s schedule
award decision. Docket No. 07-1134 (issued November 5, 2007).

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tenotomy and capsulotomy of the third metatarsophalangeal joint bilaterally and diagnosed
hammertoe third digit bilaterally at the distal interphalangeal joint and contracted third
metatarsophalangeal joint bilaterally.2 Treatment notes indicated that appellant progressed well
postoperatively and a January 5, 2006 note advised that she could return to work in one week.
On February 7, 2006 Dr. Amarnek noted appellant’s complaints of shooting pain from the foot to
the knee bilaterally, pain in the longitudinal arch bilaterally with clinical symptoms suggestive of
metatarsalgia and gastroc soleus equines deformity with a hype-pronated foot type. He advised
that these conditions prevented appellant from being ambulatory for a sustained period.
Dr. Amarnek noted that appellant could safely operate a power wheelchair and recommended a
motorized wheelchair with a lift for an automobile.
On March 28, 2006 the Office referred appellant to Dr. John O. Krause, a Board-certified
orthopedic surgery, to assess the residuals of her accepted condition. In an April 20, 2006 report,
Dr. Krause noted a history of appellant’s work condition and subsequent surgeries. He found
that appellant had residuals from her accepted work-related bunions despite surgical correction
and experienced significant hallux valgus deformities, increased intermetatarsal angle, left
greater than right and medial foot pain. Dr. Krause advised that the bilateral hallux valgus
deformities and hammertoes were not the result of standing on concrete surfaces. He opined that
surgeries were warranted but there was no evidence that the surgeries were due to any workrelated injury since appellant has been in a sitting position where standing was limited to 15 to
30 minutes per day since 2003. Dr. Krause opined that appellant could return to work in her
previous position as a manager in distribution operations without restrictions and without the use
of a wheelchair.
The Office found that a conflict of medical opinion arose between Dr. Amarnek, her
treating physician, and Dr. Klause, an Office referral physician, who determined that appellant
had residuals of her accepted bunions, but opined that the December 9, 2005 surgery was not
work related and that appellant could return to her date-of-injury position without restrictions or
the use of a power wheelchair.
The Office referred appellant to Dr. Marvin R. Mishkin, a Board-certified orthopedic
surgeon, selected as the impartial medical referee. In an August 1, 2006 report, Dr. Mishkin
noted appellant’s history of injury and listed findings on physical examination. The right foot
revealed a persistent hallux valgus of 40 degrees, surgical residuals in toes 2, 3 and 4, flexion
contracture of the distal IP joint of the third toe, and normal sensation through the foot with
passive motion of the toes causing no pain. Left foot examination revealed hallux valgus
deformity of 30 degrees, contracture of the DIP joint of the third toe, valgus deviation, intact
sensation and full range of motion of the ankles and knees. Dr. Mishkin diagnosed bilateral
hallux valgus deformity and hammertoe deformities preexisting appellant’s occupational duties
starting in 1987 and persisting, status post surgical treatment of hallux valgus and hammertoes
with multiple operations, clinical and x-ray evidence of bilateral osteoarthritis of the hips and pes
planus alignment of both feet. He opined that within a reasonable degree of medical certainty
appellant had bilateral foot problems for many years that were present before she started working
for the employing establishment in 1987. This included the preexisting bilateral hallux valgus
2

The Office did not authorize the December 9, 2005 foot surgery.

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deformity and hammer toes deformities. Dr. Mishkin indicated that these conditions were not
the result of appellant’s work duties or caused by any specific incident which occurred in
October 2002. He further indicated that there was no basis to assume appellant’s occupational
duties aggravated her preexisting conditions. Dr. Mishkin opined that the December 9, 2005
surgery was not related to or a result from her occupational duties nor was the procedure related
to any specific work injury. Appellant’s surgeries were associated with the preexisting deformity
of both feet present before her employment in 1987. Dr. Mishkin advised that a power
wheelchair was not necessary or recommended for appellant to perform her work duties. He
opined that appellant could return to her date-of-injury position without restrictions.
By decision dated October 4, 2006, the Office found that appellant had no total or partial
disability due to her accepted employment conditions and that she could return to work without
restrictions. The Office further noted that the weight of the medical evidence established that the
December 9, 2005 surgery was not work related and that a wheelchair was not warranted. The
Office advised that its decision did not terminate her medical benefits.
Appellant requested an oral hearing that was held on March 27, 2007. She submitted a
March 30, 2007 report from Dr. Amarnek, who noted that appellant continued to have restricted
range of motion and pain at the first metatarsal-phalangeal joint bilaterally. In an April 3, 2007
report, Dr. Amarnek noted appellant’s complaints of worsening symptoms in the left first
metatarsal-phalangeal joint. He stated that x-rays revealed residual hallux valgus deformity with
degenerative changes and recommended additional surgery.
In a decision dated June 8, 2007, the hearing representative affirmed the October 3, 2006
decision.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.3 After it has determined that an employee has disability
causally related to his or her federal employment, the Office may not terminate compensation
without establishing that the disability has ceased or that it is no longer related to the
employment.4
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for aggravation of bunions of both feet. The
Office reviewed the medical evidence and determined that a conflict in medical opinion was
created between Dr. Amarnek, appellant’s attending physician who disagreed with the Office
referral physician, Dr. Klause, a Board-certified orthopedist, concerning whether appellant had

3

Gewin C. Hawkins, 52 ECAB 242 (2001); Alice J. Tysinger, 51 ECAB 638 (2000).

4

Mary A. Lowe, 52 ECAB 223 (2001).

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any disabling residuals of her work-related condition.
appellant to Dr. Mishkin to resolve the conflict.5

Consequently, the Office referred

Where there exists a conflict of medical opinion and the case is referred to an impartial
specialist for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently
well rationalized and based upon a proper factual background, is entitled to special weight.6
In his August 1, 2006 report, Dr. Mishkin reviewed appellant’s history, reported findings
and noted that appellant exhibited no objective complaints or definite work-related abnormality
in her condition. He diagnosed bilateral hallux valgus deformity and hammertoe deformities
preexisting appellant’s occupational duties starting in 1987 and persisting, status postsurgical
treatment of hallux valgus and hammertoes with multiple operations, clinical and x-ray evidence
of bilateral osteoarthritis of the hips and pes planus alignment of both feet. Dr. Mishkin opined
that appellant’s bilateral hallux valgus deformity and hammer toes deformities preexisted
appellant’s employment and were not caused or aggravated by appellant’s work duties or any
specific incident which occurred in October 2002. He further noted that the December 9, 2005
surgery was not work related but was associated with a preexisting deformity of both feet present
prior to her employment in 1987 and that a motor wheelchair was not medically warranted.
Dr. Mishkin opined that, based on the absence of objective findings on examination and from a
review of the medical records and diagnostic studies, appellant was able to return to work full
time without restriction.
The Board finds Dr. Mishkin had full knowledge of the relevant facts and evaluated the
course of appellant’s condition. He is a specialist in the appropriate field. At the time benefits
were terminated Dr. Mishkin clearly opined that appellant had no work-related residuals that
caused any degree of disability. His opinion as set forth in his report of August 1, 2006 is found
to be probative evidence and reliable.7 The Board finds that Dr. Mishkin’s opinion constitutes
the weight of the medical evidence and supports the Office’s finding that appellant had no
disability for work.
Following the Office’s decision appellant submitted reports from Dr. Amarnek dated
March 30 and April 3, 2007 who noted appellant’s continuing symptoms.
However,
Dr. Amarnek did not provide a rationalized opinion specifically addressing how any continuing
medical restrictions were causally related to the accepted employment injury.8 He was on one
side of a conflict that was resolved by Dr. Mishkin, and his reports do not provide new findings
or medical rationale sufficient to establish that any continuing condition or disability was

5

See 5 U.S.C. § 8123(a).

6

Solomon Polen, 51 ECAB 341 (2000).

7

In cases where the Office has referred appellant to an impartial medical examiner to resolve a conflict in the
medical evidence, the opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight. Gary R. Sieber, 46 ECAB 215, 225 (1994).
8

See Jimmie H. Duckett, 52 ECAB 332 (2001).

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causally related to the accepted work injury.9 Therefore, the reports from Dr. Amarnek are
insufficient to overcome that of Dr. Mishkin or to create a new medical conflict.
None of the reports submitted by appellant after the denial of continuing employmentrelated work restrictions included a rationalized opinion regarding the causal relationship
between any current restrictions and her accepted work-related injury.10 Therefore, appellant has
not established that she has any continuing degree of disability causally related to her accepted
employment injury.
LEGAL PRECEDENT -- ISSUE 2
Section 8103 of the Federal Employees’ Compensation Act11 provides that the United
States shall furnish to an employee, who is injured while in the performance of duty, the
services, appliances and supplies prescribed or recommended by a qualified physician, which the
Office considers likely to cure, give relief, reduce the degree or the period of disability or aid in
lessening the amount of the monthly compensation.12
In interpreting section 8103, the Board has recognized that the Office has broad
discretion in approving services provided under the Act. The Office has the general objective of
ensuring that an employee recovers from his or her injury to the fullest extent possible, in the
shortest amount of time. The Office, therefore, has broad administrative discretion in choosing
means to achieve this goal. The only limitation on the Office’s authority is that of
reasonableness.13 Abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment or actions taken which are contrary to both logic and probable
deductions from established facts. It is not enough to merely show that the evidence could be
construed so as to produce a contrary factual conclusion.14
Proof of causal relationship in a case such as this must include supporting rationalized
medical evidence. Thus, in order for foot surgery to be authorized, appellant must submit
evidence to show that these are for a condition causally related to the employment injury and that
these were medically warranted. Both of these criteria must be met in order for the Office to
authorize payment.15
9

See Michael Hughes, 52 ECAB 387 (2001); Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992); Dorothy
Sidwell, 41 ECAB 857 (1990). The Board notes that Dr. Amarknek’s report did not contain new findings or
rationale upon which a new conflict might be based.
10

See Jimmie H. Duckett, supra note 8.

11

5 U.S.C. §§ 8101-8193.

12

5 U.S.C. § 8103(a).

13

Dr. Mira R. Adams, 48 ECAB 504 (1997).

14

See Daniel J. Perea, 42 ECAB 214 (1990).

15

Cathy B. Mullin, 51 ECAB 331 (2000). See also T.F., 58 ECAB ___ (Docket No. 06-1186, issued October 19,
2006) (to be entitled to reimbursement of medical expenses, a claimant has the burden of establishing that the
expenditures were incurred for treatment of the effects of an employment-related injury or condition).

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ANALYSIS -- ISSUE 2
The Office accepted appellant’s claim for aggravation of bunions of both feet and
authorized a left bunionectomy on December 4, 2002 and a right bunionectomy on
January 8, 2003. The Office reviewed the medical evidence and determined that a conflict in
medical opinion existed between appellant’s attending physician, Dr. Amarnek, and the Office
referral physician, Dr. Klause, concerning whether the December 9, 2005 bilateral foot surgery
was work related and whether a motorized wheelchair was medically necessary. Consequently,
the Office referred appellant to Dr. Mishkin to resolve the conflict.16
As noted, the medical evidence is represented by the thorough, well-rationalized opinion
of Dr. Mishkin, who found that appellant’s bilateral hallux valgus deformity and hammertoe
deformities preexisted her occupational duties starting in 1987 and were not caused or
aggravated by her work duties. Dr. Mishkin determined that the need for the December 9, 2005
surgery did not arise from appellant’s employment but was due to her preexisting condition. He
noted that appellant’s conditions were not due to any work duties or to any incident occurring in
October 2002. Dr. Mishkin based his opinion on an examination of appellant and a review of the
record, including a review of diagnostic testing. He found that appellant did not require a
motorized wheelchair due to the accepted employment injury. Dr. Mishkin opined that appellant
was able to return to work full time without restrictions. He provided an opinion that is
sufficiently well rationalized and based upon a proper factual background such that it is given
special weight.17
After Dr. Mishkin’s report, appellant submitted reports from Dr. Amarnek dated
March 30 and April 3, 2007, which noted her symptoms. However, Dr. Amarnek’s reports did
not address whether the December 9, 2005 foot surgery was medically warranted or the medical
necessity of a motorized wheelchair.
The Board finds that, under the circumstances of this case, the opinion of Dr. Mishkin is
sufficiently well rationalized and based upon a proper factual background such that it is the
weight of the evidence and established that the requested surgery and motorized wheelchair were
not necessary. Accordingly, the Board finds that the Office acted within its discretion in denying
authorization for the requested surgery and the motorized wheelchair.
CONCLUSION
The Board finds that the Office properly determined that appellant’s employment-related
work restrictions had ceased by October 4, 2006. The Board further finds that the Office did not
abuse its discretion in denying appellant’s claim for authorization of bilateral foot surgery and
payment for a motorized wheelchair.

16

See supra, notes 5, 6 (regarding medical conflicts and the weight accorded to an impartial report).

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David Alan Patrick, 46 ECAB 1020, 1023 (1995) (impartial medical examiner’s opinion was based on a
complete review of the medical record and a thorough examination and was sufficiently rationalized to establish that
appellant had no work-related residuals of his diagnosed; thus his opinion was entitled to special weight).

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ORDER
IT IS HEREBY ORDERED THAT the June 8, 2007 and October 4, 2006 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: May 23, 2008
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ROBLEY REX VA MEDICAL CENTER,
Louisville, KY, Employer
__________________________________________

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

Docket No. 21-0602
Issued: March 10, 2022

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 March 9, 2021 appellant, through counsel, filed a timely appeal from a February 17,
2021 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 January 30, 2019 employment incident.
FACTUAL HISTORY
On October 29, 2019 appellant, then a 51-year-old health technician, filed a traumatic
injury claim (Form CA-1) alleging that on January 30, 2019 she sustained an injury to the left side
of her hip and lower back when she fell on a wet floor after exiting an elevator to walk to her
assigned clinic while in the performance of duty. She stopped work on February 1, 2019 and
returned to work on February 12, 2019. The employing establishment contended that appellant
was not injured in the performance of duty as she was en route to her workplace location, but had
not yet reported for duty.
In a development letter dated November 6, 2019, OWCP informed appellant of the
deficiencies of her claim. It advised her of the type of factual and medical evidence needed and
provided a questionnaire for her completion. By separate development letter of even date, OWCP
requested additional information from the employing establishment regarding the circumstances
of appellant’s claimed injury. It afforded both parties 30 days to respond.
OWCP subsequently received an emergency department report dated January 30, 2019,
wherein a physician assistant diagnosed right knee contusion with possible right knee strain and
right quadriceps strain.
A magnetic resonance imaging (MRI) scan of the left hip obtained on September 4, 2019
demonstrated no internal derangement of the hips, avascular necrosis, or fracture; bilateral gluteal
tendon pathology, worse on the left, where there is gluteus minimus tear/detachment and mo derate
peritendinous inflammation with adjacent peritrochanteric fluid; and minimal inferior sacroiliac
joint subarticular marrow edema without effusion or erosion, likely arthritic. An MRI scan of the
lumbar spine obtained on the same date demonstrated multilevel degenerative disc disease and
facet arthropathy with no significant change from a previous scan obtained on May 28, 2019. An
MRI scan of the pelvis obtained on October 8, 2019 demonstrated: mild left and minimal right
anterior inferior sacroiliac joint subarticular marrow edema, predominating on the sacral side
anteriorly on the left with minimal anterior spurring; intact subchondral bone plats; no evidence of
definitive erosive arthropathy; no effusion or periarticular inflammation; suspected m inimal
subarticular sclerosis; possible osteoarthrosis with stress-related marrow change favored over a
primary inflammatory or crystal arthritis; no change in end plate marrow edema at L4 -5 and
bilateral L4-5 facet arthrosis with a moderate inflammatory component; and no change in the
pelvis and hips compared to an MRI scan obtained in September 2019.
In an October 10, 2019 report, Dr. Gary Reasor, Board-certified in anesthesiology and pain
medicine, examined appellant for complaints of low back pain, beginning seven months prior.
Appellant also told Dr. Reasor that the pain was a result of an incident at work on January 30, 2019
when she slipped and fell on her left hip due to water on the floor, and that the pain became much
worse in March and April. Dr. Reasor noted past medical history including back pain, sciatica,
degenerative disc disease, and kidney stones. He related appellant’s physical examination findings

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and diagnosed lumbar spondylosis without myelopathy or radiculopathy, lumbosacral
intervertebral disc degeneration, and low back pain. In an accompanying note of the same date,
Dr. Reasor recommended work restrictions of no standing for more than 15 minutes and no
repetitive bending or twisting of the waist.
In a letter dated October 25, 2019, Dr. Reasor noted that appellant had been seen on
October 10, 2019 on referral from her rheumatology office for severe back pain. Appellant told
Dr. Reasor that she was injured at work on January 30, 2019 when she entered the employing
establishment and slipped on a wet floor, landing on the left hip. She continued to have significant
back pain after the fall and was markedly increased after she was asked to participate in
cardiopulmonary resuscitation (CPR) training. Dr. Reasor reviewed his physical findings on
examination and MRI scan results. He opined that appellant developed significant low back pain
attributable to injury of her left sacroiliac joint as well as inflammation of the left lower lumbar
facet joints, directly related and caused by her fall at work as the history and mechanism of injury
matched her findings on examination.
In a note dated November 15, 2019, Dr. Reasor recommended work restrictions of no
lifting, bending, standing, or squatting for more than 15 minutes. In a note dated November 20,
2019, he recommended that appellant be excused from work from November 11 through 22, 2019.
On November 27, 2019 the employing establishment controverted appellant’s claim,
contending that a medical condition had not been diagnosed resulting from the claimed injury on
January 30, 2019 and that the medical evidence of record did not establish a causal relationship
between any diagnosed condition and the claimed January 30, 2019 injury.
In a letter dated December 7, 2019, Dr. Reasor diagnosed lumbar spondylosis with pain
derived from the lumbar facet joints. He opined that appellant was injured on January 30, 2019
and that the mechanism of injury was a slip and fall on a wet floor as she entered the workplace.
Dr. Reasor noted that appellant struck the floor on her left hip and has had back and hip pain since
that time. His physical examination revealed tenderness over the lumbar spine and he noted that
further examination of the lumbar facets demonstrated concordance between the facets and her
complaints of pain. Dr. Reasor stated that an MRI scan study demonstrated hypertrophy of the
lumbar facets and opined that without question, the lumbar facets were injured as a result of the
fall. He opined to a high degree of medical certainty that there was a direct cause and effect
relationship between appellant’s fall and her current back and hip pain.
By decision dated December 16, 2019, OWCP denied appellant’s claim, finding that the
factual evidence of record was insufficient to establish that the January 30, 2019 employment
incident occurred, as alleged. It noted that she had not provided a clear description of the events
supporting an injury at work on January 30, 2019. OWCP concluded, therefore, that the
requirements had not been met to establish an injury as defined by FECA.
On December 30, 2019 appellant requested reconsideration.
By decision dated February 27, 2020, OWCP reviewed the merits of appellant’s claim and
found that the medical evidence of record was sufficient to establish that the January 30, 2019
incident occurred as alleged; however, the claim remained denied as the medical evidence of

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record was insufficient to establish causal relationship between her diagnosed lumbar spondylosis
and the accepted employment incident.
On July 1, 2020 appellant, through counsel, requested reconsideration. Submitted with the
request was a letter from Dr. Reasor dated June 7, 2020. Dr. Reasor explained that appellant was
referred on October 10, 2019 from an advanced practice registered nurse (APRN) who saw
appellant for widespread osteoarthritis and was asked to evaluate appellant’s complaints of left
back, buttock, and leg pain. Appellant recounted that she fell at work on January 30, 2019 when
she slipped on a wet floor, causing her to fall and land on her left hip. Over the course of the next
two to three months her pain worsened, particularly when she underwent mandatory CPR training.
Dr. Reasor reviewed his physical findings on examination and MRI scan findings. He diagnosed
lumbar spondylosis without myelopathy, lumbosacral intervertebral disc degeneration, and low
back pain. Dr. Reasor described administering the lumbar medial branch nerve blocks bilaterally
at L3, L4, and L5 on November 15, 2019 and January 24, 2020. He noted that to his knowledge,
there were no imaging studies of the lumbar spine or hip antedating the January 30, 2019 fall; but,
opined that taking that into account, it remained his medical opinion to a high degree of certainty
that her fall was the cause of her continued back pain. Dr. Reasor explained that assuming
appellant developed lumbar facet arthropathy before the fall in which she slipped on a wet floor
and landed on her left hip, it would have caused, at a minimum, an aggravation of underlying facet
arthropathy. He further noted that it was unknown if she had an annular tear of the L5 -S1 disc,
but that the fall “could have easily been the cause of the annular tear in an already-desiccated disc.”
Dr. Reasor stated that the fall on the left hip, wherein appellant landed on her left buttock, was
“the most likely cause of the torn or detached left gluteus minimus tendon. The mechanism of
injury, in my opinion, is clear to see.”
In a report dated May 6, 2019, an APRN, Sheena Steele, diagnosed cervical radiculopathy,
thoracic and low back pain. An MRI scan of appellant’s lumbar spine obtained on May 28, 2019
demonstrated a small central annular tear posterior disc margin at L5-S1 that could be a source of
back pain, but with no evidence of nerve root impingement, bilateral L4-5 facet arthropathy, and
mild inflammation/edema surrounding the L4-5 facet joints that may indicate an active process.
In a report dated May 30, 2019, Ms. Steele diagnosed thoracic spine and low back pain,
cervical radiculopathy, and unspecified joint pain.
An MRI scan of appellant’s thoracic spine obtained on June 5, 2019 demonstrated: a mild
chronic compression fracture of T11, healed with mild deformity; normal thoracic cord signal
intensity, no pathologic cord enhancement, no thoracic canal stenosis, and no significant foraminal
impingement; and thoracic degenerative changes.
In a report dated June 7, 2019, Lori Weiss, an APRN, diagnosed thoracic and low back
pain, cervical radiculopathy, and current long-term use of an opiate analgesic. In a report dated
August 15, 2019, she diagnosed thoracic spine, left hip, and low back pain, cervical radiculopathy,
and long-term current use of an opiate analgesic. Appellant told the nurse that while completing
a CPR class recently, she experienced increased pain to her back and reinjured her alread y-chronic
symptoms from earlier in 2019.

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Additional reports received from Dr. Reasor indicated that on November 15, 2019 he
performed a medial branch nerve block at L3, L4, and L5 for treatment of diagnosed lumbar
spondylosis without radiculopathy.
In a report dated December 3, 2019, Dr. Reasor followed up with appellant after her
November 15, 2019 procedure. He opined that her pain was facet-related and due to her fall. On
physical examination, Dr. Reasor observed pain with palpation of the lumbar spine with bilateral
tenderness over the lumbar facets and pain on extension. He diagnosed lumbar spondylosis
without myelopathy or radiculopathy, low back pain, and lumbosacral intervertebral disc
degeneration.
On January 24, 2020 Dr. Reasor performed another medial branch nerve block at L3, L4,
and L5 bilaterally for treatment of diagnosed lumbar spondylosis without radiculopathy. He noted
post-procedure pain reduction of 100 percent.
In a report dated February 14, 2020, Dr. Reasor followed up with appellant after her
January 24, 2020 medial branch nerve block at L3, L4, and L5. He noted post-procedure relief of
eighty percent for several hours. Appellant advised Dr. Reasor that her pain remained at 8 out of
10 at this follow-up examination. On physical examination of the lumbar spine, Dr. Reasor
observed pain with palpation of the midline and bilateral facets and pain on flexion and extension.
He diagnosed lumbar spondylosis without myelopathy or radiculopathy, lumbosacral
intervertebral disc degeneration, and low back pain.
In a report dated March 5, 2020, Dr. Reasor examined appellant for low back, buttocks,
and left lower extremity pain with tingling. He noted that the pain began seven months prior and
that it was a result of a work-related incident. Dr. Reasor observed that appellant had an antalgic
gait. On physical examination of the lumbar spine, he observed pain with palpation, marked
tenderness of the left facets, decreased range of motion, and pain on flexion, e xtension, lateral
movement, and rotation. On examination of the thoracic spine, Dr. Reasor observed pain with
palpation, marked tenderness of the left facets, and pain on rotation. He diagnosed thoracic spine
pain, lumbar spondylosis without myelopathy or radiculopathy, lumbosacral intervertebral disc
degeneration, and low back pain.
By decision dated February 17, 2021, OWCP denied modification.3
LEGAL PRECEDENT
An employee seeking benefits under FECA 4 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
3

The February 17, 2021 decision was a reissuance of a decision dated September 29, 2020, wherein OWCP
reviewed the merits of appellant’s claim and denied modification of the February 27, 2020 decision. A copy of this
decision was not mailed to appellant’s counsel of record. On October 8, 2020 the employing establishment requested
that a copy of the September 29, 2020 decision be mailed to appellant’s counsel of record, as it had not yet been
annotated as being forwarded to counsel. In a letter dated October 15, 2020, counsel requested an update as to the
request for reconsideration in appellant’s case.
4

Id.

5

States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 5 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time and place, and in the manner alleged. The second component is
whether the employment incident caused a personal injury and can be established only by medical
evidence.8
The medical evidence required to establish a causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 9 The opinion of
the physician must be based on a complete factual and medical background of the employee, 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 specific employment factors
identified by the employee. 10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted January 30, 2019 employment incident.
In his October 25, 2019 report, Dr. Reasor opined that appellant developed significant low
back pain attributable to injury of her left sacroiliac joint as well as inflammation of the left lower
lumbar facet joints. He opined that her condition was directly related and caused by her fall at
work, as the history and mechanism of injury matched her findings on examination. In his
December 3, and 7, 2019 reports, Dr. Reasor opined that appellant was injured on January 30,
2019 and that the mechanism of injury was a slip and fall on a wet floor as she entered the
5

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
6

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
7

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
9

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
10

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

6

workplace. He opined that without question, the lumbar facets were injured as a result of the fall.
Dr. Reasor further opined to a high degree of medical certainty that there was a direct cause and
effect relationship between appellant’s fall and her current back pain. In the June 7, 2020 report,
he opined that it remained his medical opinion to a high degree of certainty that her fall was the
cause of her continued back pain. Dr. Reasor explained that assuming appellant developed lumbar
facet arthropathy before the fall in which she slipped on a wet floor and landed on her left hip, it
would have caused, at a minimum, an aggravation of underlying facet arthropathy . He further
noted that it was unknown if she had an annular tear of the L5-S1 disc, but that the fall could have
easily caused the tear in an already-desiccated disc. The Board has found that 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 While Dr. Reasor noted appellant’s past medical
history including back pain, sciatica, and degenerative disc disease. He did not specifically
differentiate between appellant’s preexisting condition(s) and the effects of the January 30, 2019
employment incident. These reports were therefore insufficient to establish causal relationship
between the diagnosed lumbar conditions and the accepted January 30, 2019 employment incident.
Regarding appellant’s left hip condition, Dr. Reasor stated that the fall on the left hip,
wherein appellant landed on her left buttock, was “the most likely cause” of her torn or detached
left gluteus minimus tendon. He opined that the mechanism of injury was clear to see. The June 7,
2020 report is insufficient to establish appellant’s claim as Dr. Reasor couched his conclusions
that the fall “could have easily been” the cause of an annular disc tear and that her detached left
gluteus minimus tendon was “most likely” caused by the fall in equivocal terms. The Board has
held that while the opinion of a physician supporting causal relationship need not be one of
absolute medical certainty, it must not be speculative or equivocal. The opinion should be
expressed in terms of a reasonable degree of medical certainty. 12 The Board also notes that
Dr. Reasor did not discuss the apparent inconsistency between his account of appellant’s fall onto
her left side on January 30, 2019 and the emergency department report of January 30, 2019, in
which the fall was described involving her left leg extending to the front falling hard on her right
knee and upper front right thigh. Medical opinions based on an incomplete or inaccurate history
are of diminished probative value.13 Without a discussion of the apparent inconsistency between
his account of appellant’s fall onto the left side and the January 30, 2019 emergency department
report’s account of a fall onto the right knee and right thigh, Dr. Reasor’s opinions are therefore
insufficiently rationalized to establish appellant’s claim.
Appellant submitted additional reports and notes dated October 10, November 15,
November 20, and December 7, 2019; and January 24, February 14, and March 5, 2020 from
Dr. Reasor. These reports and notes did not offer a medical opinion regarding the cause of
11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013); see
L.C., supra note 6; R.D., Docket No. 18-1551 (issued March 1, 2019).
12

L.S., Docket No. 18-1494 (issued April 12, 2019); Ricky S. Storms, 52 ECAB 349 (2001).

13

See D.B., Docket No. 19-0663 (issued August 27, 2020); D.W., Docket No. 18-0123 (issued October 4, 2018);
L.G., Docket No. 09-1692 (issued August 11, 2010).

7

appellant’s diagnosed conditions. 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. 14 Therefore these reports are insufficient to establish appellant’s claim.15
Appellant also submitted a report dated January 30, 2019 from a physician assistant and
reports dated May 6, May 30, June 7, and August 15, 2019 from APR nurses. However, certain
healthcare providers such as physician assistants, nurse practitioners, and physical therapists are
not considered physicians as def ined under FECA. 16 Consequently, these reports will not suffice
for purposes of establishing entitlement to FECA benefits. 17
The remaining evidence consists of diagnostic reports dated May 28, June 5, September 4,
and October 8, 2019. The Board has held that diagnostic tests, standing alone, lack probative value
on the issue of causal relationship as they do not provide an opinion on the relationship between
the employment incident and a claimant’s diagnosed condition. 18
As appellant has not submitted rationalized medical evidence establishing that her
diagnosed medical conditions were causally related to the accepted employment incident of
January 30, 2019, the Board finds that she has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden proof to establish a medical condition
causally related to the accepted January 30, 2019 employment incident.

14

D.C., Docket No. 19-1093 (issued June 25, 2020); see L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).
15

S.W., Docket No. 19-1579 (issued October 9, 2020); see L.B., id.; D.K., id.

Section 8101(2) provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law,”
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 2013); M.F., Docket No. 19-1573 (issued March 16, 2020); N.B., Docket
No. 19-0221 (issued July 15, 2019); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (finding that lay individuals
such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under
FECA).
16

17

See M.C., Docket No. 19-1074 (issued June 12, 2020) (nurse practitioners are not considered physicians under
FECA); R.K., Docket No. 20-0049 (issued April 10, 2020) (physician assistants are not considered physicians under
FECA).
18

See C.F., Docket No. 18-1156 (issued January 22, 2019); T.M., Docket No. 08-0975 (issued February 6, 2009).

8

ORDER
IT IS HEREBY ORDERED THAT the February 17, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 10, 2022
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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.J., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
DEPARTMENT OF TRANSPORTATION
SECURITY, Jamaica, NY, Employer
__________________________________________

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

Docket No. 11-929
Issued: November 15, 2011

Case Submitted on the Record

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

JURISDICTION
On March 3, 2011 appellant filed a timely appeal from the February 17, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) concerning a schedule
award. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he has more than
a two percent permanent impairment of his left leg, for which he received a schedule award.
FACTUAL HISTORY
OWCP accepted that on October 19, 2006 appellant, then a 44-year-old transportation
security screener, sustained derangement of the anterior horn of his lateral meniscus and
1

20 C.F.R. § 8101 et seq.

contusions of multiple sites, not elsewhere classified. On April 21, 2008 he underwent
arthroscopic surgery on his left knee. The procedure was authorized by OWCP.
In a January 4, 2010 report, Dr. Michael J. Katz, an attending Board-certified orthopedic
surgeon, described appellant’s medical history and reported the findings of his examination of
appellant, including his left leg. He stated that, according the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment, (6th ed. 2009),
appellant had a 10 percent permanent impairment of his left leg. Dr. Katz noted, “There is a 1
percent impairment for the lower back according to [c]lass 1 with adjustment -1, impairment
[c]lass 1, [g]rade B.”
Appellant filed a claim for a schedule award due to his October 19, 2006 injury and
OWCP determined that Dr. Katz’ impairment rating was in need of further clarification.2 In a
June 1, 2010 report, Dr. Katz provided some additional details of his impairment rating by
mentioning Table 16-3, Table 16-5, Table 17-1 and Table 17-2 and indicating that appellant had
a grade modifier of 1 under Table 16-23. He concluded that appellant had a 10 percent
permanent impairment of his left leg.
OWCP asked Dr. Robert Y. Pick, a Board-certified orthopedic surgeon, to review the
medical evidence of record, including the reports of Dr. Katz and provide an impairment rating.
In a report dated July 14, 2010, Dr. Pick concluded that appellant had a two percent permanent
impairment of his left leg based on a diagnosis-based evaluation for his partial meniscus tear
under Table 16-3 (Regional Knee Grid) on page 509 of the sixth edition of the A.M.A., Guides.
He indicated that under Table 16-3 appellant’s meniscus condition fell under class 2 with a
default value of two percent. Dr. Pick chose values for the grade modifier for Functional History
(GMFH), grade modifier for Physical Examination (GMPE) and grade modifier for Clinical
Studies (GMCS) and then applied the Net Adjustment Formula. He indicated that this resulted in
a move one space to the left which still yielded a two percent impairment rating for appellant’s
left leg.
In an August 11, 2010 decision, OWCP granted appellant a schedule award for a two
percent permanent impairment of his left leg. The award was based on the July 14, 2010 report
of Dr. Pick.
Appellant submitted a November 2, 2010 report, from Dr. John W. Ellis, an attending
Board-certified occupational medicine physician, who determined that appellant had a 62 percent
permanent impairment of his left leg under the sixth edition of the A.M.A., Guides which was
comprised of a 20 percent impairment due to peripheral L5 and S1 nerve deficits (under Table
16-12 on page 535) combined with a 42 percent impairment due to decreased left knee motion
(under Table 16-23 on page 549). As an alternative to the 42 percent impairment rating due to
decreased left knee motion, Dr. Ellis posited that appellant had a 32 percent impairment
comprised of the combination of a 25 percent impairment for lateral collateral and anterior
cruciate ligament laxity (Table 16-3 on page 510); a 3 percent impairment for meniscectomy
2

In a May 29, 2009 report, Dr. Mark G. Grossman, an attending orthopedic surgeon, determined that appellant
had a 30 percent impairment of his left leg. However, he did not provide any indication that he applied the A.M.A.,
Guides.

2

(Table 16-3 on page 509); and a 7 percent impairment for tibial fracture and patellar
chondromalacia (Table 16-3 on page 510).
In a February 17, 2011 decision, OWCP affirmed the August 11, 2010 decision, finding
that appellant did not establish more than a two percent permanent impairment of his left leg. It
found that the November 2, 2010 report of Dr. Ellis was of diminished probative value because
the impairment ratings were based on conditions that were not related to the October 19, 2006
work injury or not shown to have preexisted it.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations4 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, 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 For OWCP decisions issued on or after
May 1, 2009, the sixth edition of the A.M.A., Guides (6th ed. 2009) is used for evaluating
permanent impairment.6 It is well established that in determining the amount of a schedule award
for a member of the body that sustained an employment-related permanent impairment, preexisting
impairments of the body are to be included.7
In determining impairment for the lower extremities under the sixth edition of the
A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the lower
extremity to be rated. With respect to the knee, the relevant portion of the leg for the present case,
reference is made to Table 16-3 (Knee Regional Grid) beginning on page 509.8 After the Class of
Diagnosis (CDX) is determined from the Knee Regional Grid (including identification of a
default grade value), the Net Adjustment Formula is applied using the (GMFH), (GMPE) and
(GMCS). The Net Adjustment Formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS CDX).9 Under Chapter 2.3, evaluators are directed to provide reasons for their impairment

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

5

Id.

6

See FECA Bulletin No. 9-03 (March 15, 2009). For OWCP decisions issued before May 1, 2009, the fifth
edition of the A.M.A., Guides (5th ed. 2001) is used.
7

See Dale B. Larson, 41 ECAB 481, 490 (1990); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.3.b. (June 1993). This portion of OWCP procedure provides that the impairment rating of a
given scheduled member should include “any preexisting permanent impairment of the same member or function.”
8

See A.M.A., Guides 509-11 (6th ed. 2009).

9

Id. at 515-22.

3

rating choices, including choices of diagnoses from regional grids and calculations of modifier
scores.10
ANALYSIS
OWCP accepted that on October 19, 2006 appellant sustained derangement of the
anterior horn of his lateral meniscus and contusions of multiple sites, not elsewhere classified.
On April 21, 2008 appellant underwent arthroscopic surgery on his left knee. The procedure was
authorized by OWCP.
The Board finds that appellant did not submit sufficient medical evidence to establish that
he has more than a two percent permanent impairment of his left leg, for which he received a
schedule award.
OWCP based the schedule award for a two percent permanent impairment of appellant’s
left leg on a July 14, 2010 report of Dr. Pick, a Board-certified orthopedic surgeon. The Board
finds that Dr. Pick is the only physician of record who properly applied the standards of the sixth
edition of the A.M.A., Guides to rate appellant’s left leg impairment. Dr. Pick properly evaluated
the examination findings of Dr. Katz, an attending Board-certified orthopedic surgeon, in
reaching his impairment rating.
Dr. Pick concluded that appellant had a two percent permanent impairment of his left leg
based on a diagnosis-based evaluation for his partial meniscus tear under Table 16-3 (Regional
Knee Grid) on page 509 of the sixth edition of the A.M.A., Guides. He advised that under Table
16-3 appellant’s meniscus condition fell under class 2 with a default value of two percent.
Dr. Pick chose values for the grade modifiers for functional history, physical examination and
clinical studies and then applied the Net Adjustment Formula.11 He indicated that this resulted in
a move one space to the left which still yielded a two percent impairment rating for appellant’s
left leg.
In a November 2, 2010 report, Dr. Ellis, an attending Board-certified occupational
medicine physician, determined that there was a 62 percent permanent impairment of appellant’s
left leg under the sixth edition of the A.M.A., Guides. This rating was comprised of a 20 percent
impairment due to peripheral L5 and S1 nerve deficits (under Table 16-12 on page 535)
combined with a 42 percent impairment due to decreased left knee motion (under Table 16-23 on

10

Id. at 23-28.

11

See A.M.A., Guides 516, 517 and 519, Tables 16-6, 16-7 and 16-8.

4

page 549).12 The Board finds that this rating is of little probative value because all of the
impairments used in the ratings, except for the left meniscus rating,13 were based on conditions
that are not related to the October 19, 2006 work injury or established to have preexisted it.14
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he has
more than a two percent permanent impairment of his left leg, for which he received a schedule
award.

12

As an alternative to the 42 percent impairment rating due to decreased left knee motion, Dr. Ellis posited that
appellant had a 32 percent impairment comprised of the combination of a 25 percent impairment for lateral collateral
and anterior cruciate ligament laxity (Table 16-3 on page 510); a 3 percent impairment for meniscetomy (Table 16-3
on page 509); and a 7 percent impairment for tibial fracture and patellar chondromalacia (Table 16-3 on page 510).
13

Dr. Ellis provided a three percent impairment rating for meniscus tear, whereas Dr. Pick provided a two percent
impairment rating. However, he did not describe what grade modifiers he used to reach this conclusion and his
opinion on this condition is of diminished probative value for this reason.
14

Furthermore, the A.M.A., Guides provide that in most cases only one diagnosis in a region will be appropriate
and that ratings for range of motion cannot be combined with other approaches. A.M.A., Guides 497.

5

ORDER
IT IS HEREBY ORDERED THAT the February 17, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 15, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.C., Appellant
and
U.S. POSTAL SERVICE, BAKERSFIELD
PROCESSING & DISTRIBUTION CENTER,
Bakersfield, CA, Employer
__________________________________________

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

Docket No. 09-1392
Issued: January 14, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 6, 2009 appellant, through counsel, filed a timely appeal from May 19 and
December 4, 2008 merit decisions of the Office of Workers’ Compensation Programs denying
her occupational disease claim. 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 established that she sustained an injury causally related to
the factors of her federal employment.
FACTUAL HISTORY
On March 14, 2008 appellant, then a 53-year-old mail clerk, filed an occupational disease
claim (Form CA-2) alleging that she sustained a herniated disc and experienced low back pain,
bilateral hip pain and left leg pain with numbness and weakness due to lifting heavy trays of
mail, loading mail into hampers and dispatching trays of mail weighing over 25 pounds at work;

Office File No. xxxxxx312.1 She first became aware of her condition on January 21, 2008 and
first realized it was related to her employment on January 28, 2008.2 Appellant stopped work
and did not return. The employing establishment controverted the claim.
In a February 22, 2008 attending physician’s report (Form CA-20), Dr. Pankaj Shukla, a
Board-certified internist, diagnosed lumbar disc disease and noted that appellant had a
preexisting lumbar condition with degenerative joint disease in 1982. He indicated with a check
mark that he believed that her condition was caused by an employment activity and stated that
she was lifting and pulling over 25 pounds. Dr. Shukla further indicated that appellant was
totally disabled during the period February 11 through April 11, 2008 but that she could return to
light duty on April 12, 2008.
Appellant also submitted a February 18, 2008 medical note that indicated she was
disabled from work during the period February 18 through March 30, 2008.
By letter dated March 19, 2008, the Office notified appellant of the deficiencies in her
claim and requested that she provide additional factual and medical evidence.
A February 1, 2008 magnetic resonance imaging (MRI) scan of appellant’s lumbar spine
revealed mild-to-moderate lumbar spondylosis with central canal and neural foraminal stenosis.
In a March 27, 2008 medical report, Dr. Shukla stated that he had treated appellant since
June 3, 2003. He listed her complaint of chronic low back pain after heavy lifting at work.
Appellant also reported that her old MRI scans revealed degenerative disc disease. Dr. Shukla
stated that appellant’s pain had recently worsened and that she experienced pain radiating to her
legs to the extent that she could not walk. He addressed the results of an MRI scan, which
showed mild-to-moderate lumbar spondylosis with central canal and neural foraminal stenosis.
By decision dated May 19, 2008, the Office denied appellant’s claim on the grounds that
she did not provide sufficient medical evidence to establish that she sustained an injury causally
related to the accepted employment factors.
On June 17, 2008 appellant requested a review of the written record by an Office hearing
representative.
In a June 10, 2008 medical report, Dr. Shukla stated that appellant continued to suffer
from back pain radiating into her legs. He stated that she sustained an injury at work while
lifting heavy objects and that her pain and leg weakness prevented her from walking properly.

1

Appellant previously filed a claim for a September 30, 1982 herniated disc with bilateral hip pain under Office
File No. xxxxxx059. She also filed claims for a March 7, 2002 bilateral foot injury under File No. xxxxxx731 and
for a January 29, 2003 bilateral shoulder strain under File No. xxxxxx259.
2

Appellant alleged that prior to her injury she was working limited duty due to her separate injuries. She stated
that her injury occurred after she was removed from her position and required to work beyond her physical
limitations. The only issue in this case is whether appellant sustained a new occupational disease due to her
employment factors.

2

By decision dated December 4, 2008, an Office hearing representative affirmed the
May 19, 2008 Office decision. It found that the submitted medical evidence was insufficient to
establish appellant’s claim as it did not contain a rationalized medical opinion showing that
appellant sustained an injury due to her employment.
LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act3
has the burden of establishing the essential elements of her claim by the weight of the reliable,
probative and substantial evidence,4 including that she is an “employee” within the meaning of
the Act5 and that she filed her claim within the applicable time limitation.6 The employee must
also establish that she sustained an injury in the performance of duty as alleged and that her
disability for work, if any, was causally related to the employment injury.7
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.8
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, 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 employee.9

3

5 U.S.C. §§ 8101-8193.

4

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
57 (1968).
5

See M.H., 59 ECAB ___ (Docket No. 08-120, issued April 17, 2008); Emiliana de Guzman (Mother of Elpedio
Mercado), 4 ECAB 357, 359 (1951); see 5 U.S.C. § 8101(1).
6

R.C., 59 ECAB ___ (Docket No. 07-1731, issued April 7, 2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954);
see 5 U.S.C. § 8122.
7

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

8

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

9

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).

3

ANALYSIS
The issue is whether appellant established that she sustained a back condition due to
lifting and loading mail during her federal employment. The Board finds she has not met her
burden of proof.
In support of her claim, appellant submitted a February 22, 2008 attending physician’s
report and other medical records dated through June 10, 2008 from Dr. Shukla who diagnosed
lumbar disc disease and noted that appellant had preexisting degenerative disease of the lumbar
spine. Dr. Shukla indicated with a checkmark that he believed appellant’s condition was caused
by her employment activities and stated that she was lifting over 25 pounds. The Board has held
that an opinion on causal relationship that consists only of checking “yes” to a form question on
whether the claimant’s disability was related to her employment is of little probative value and
insufficient to establish a causal relationship.10 As Dr. Shukla did not explain his reasoning for
finding that appellant’s condition was related to her employment activities, the Board finds that
this report is of diminished probative value.11
Further, the Board finds that the subsequent medical reports are similarly of diminished
probative value. Dr. Shukla merely noted that appellant experienced chronic low back pain after
heavy lifting at work. He stated that appellant continued to suffer back pain radiating into her
legs resulting in difficulties walking. Dr. Shukla discussed the results of an MRI scan showing
lumbar spondylosis with central canal and neural foraminal stenosis. He did not provide any
opinion addressing how appellant’s back condition was caused or aggravated by her work
activities but simply repeated appellant’s belief that her condition was caused by her
employment.12 Further, Dr. Shukla did not describe a full history of appellant’s preexisting back
condition or explain how his treatment in 2008 was related to her history of preexisting lumbar
disease.13 As he did not provide a well-rationalized medical opinion, based on an accurate
medical and factual background, explaining how appellant’s current back condition was causally
related to her employment activities, his opinion is insufficient to establish her claim.14
The only other medical evidence of record consists of a February 18, 2008 medical note
indicating that appellant was disabled through March 30, 2008 and a February 1, 2008 MRI scan.
As neither of these documents addressed causal relationship, they are also of diminished
probative value.15

10

Lucrecia M. Nielson, 42 ECAB 583 (1991).

11

Id.

12

The fact that a condition manifested during employment or appellant’s belief that her condition was caused or
aggravated by employment conditions is insufficient to establish causal relationship. Frederick H. Coward, Jr., 41
ECAB 843, 852 (1990); Ruby I Fish, 46 ECAB 276 (1994).
13

See Frank Luis Rembisz, 52 ECAB 147 (2000).

14

See Kathy A. Kelley, 55 ECAB 206 (2004).

15

See Donald T. Pippin, 54 ECAB 631 (2003); Conard Hightower, 54 ECAB 796 (2003).

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CONCLUSION
The Board finds that appellant did not establish that she sustained an injury causally
related to the factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the December 4 and May 19, 2008 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: January 14, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.D., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
San Antonio, TX, Employer
__________________________________________

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

Docket No. 13-1458
Issued: November 7, 2013

Case Submitted on the Record

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

JURISDICTION
On June 5, 2013 appellant filed a timely appeal from the April 18, 2013 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this decision.
ISSUE
The issue is whether appellant has more than a 26 percent binaural hearing loss, for
which he received a schedule award.
FACTUAL HISTORY
On September 19, 2012 appellant, then a 52-year-old customs and border protection
officer, filed an occupational disease claim (Form CA-2) alleging that he developed hearing loss
1

5 U.S.C. § 8101 et seq.

and high readings of lead exposure due to factors of his federal employment. He stated that he
had been a firearms instructor for 11 years, and in this capacity, he was exposed to loud and
continuous noise from firearms. Appellant did not submit supporting documentation with his
claim.
By letter dated September 26, 2012, OWCP requested additional factual and medical
evidence from appellant and to respond to its inquiries regarding his duties and facts surrounding
his condition. It afforded him 30 days to submit this additional evidence. OWCP also requested
that the employing establishment respond to its inquiries regarding appellant’s duties and facts
surrounding his condition.
By letter dated October 21, 2012, the employing establishment stated that the source of
exposure to noise was gunfire from three types of guns, which ranged between 155.5 decibels
(dB) and 161.50 dB, for four hours per day and five days per week. It also noted that earplugs
and earmuffs were provided and worn by instructors and participants, and that appellant was last
exposed to hazardous noise on October 19, 2012. The employing establishment stated that
appellant was no longer exposed to hazardous noise as part of his job.
By letter dated December 17, 2012, appellant described his duties as a firearms instructor.
He stated that he was first assigned as a firearms instructor for the United States Immigration
Service in April 1999. Appellant noted that he was exposed to loud continuous noise from
handguns, shotguns and rifles for four hours per day and five days a week in the performance of
his duties, and alleged exposure to the same range of decibels as described by the employing
establishment. He also stated that his ear protection included earplugs and earmuffs.
Appellant submitted audiogram results from employing establishment evaluations
performed from March 2, 2005 through June 25, 2012. Audiometric testing obtained on June 25,
2012 revealed the following: right ear 35, 30, 35, and 30 dB, left ear 35, 40, 35, and 30 dB.
By letter dated December 20, 2012, OWCP referred appellant to Dr. James T. Wright, Jr.,
a Board-certified otolaryngologist, for measurements of appellant’s current hearing acuity. With
its second opinion referral, it included a statement of accepted facts regarding appellant’s federal
and nonfederal employment history.
In a second opinion report dated February 6, 2013, Dr. Wright reviewed appellant’s
history of exposure to hazardous noise, responded to OWCP’s inquiries and performed an
otologic evaluation. Audiometric testing obtained by Charles Butler, M.A., on February 6, 2013
at the frequency levels of 500, 1,000, 2,000, and 3,000 cycles per second (cps) revealed the
following: right ear 40, 40, 40, and 45 dB; left ear 40, 40, 35, and 40 dB. Mr. Butler noted that
the testing occurred at February 6, 2013 at 11:10 a.m., and the time of appellant’s last exposure
to loud noise was at least 16 hours before the examination. He also noted that the audiological
equipment was last calibrated on October 11, 2012. Dr. Wright determined that appellant
sustained mild-to-moderate binaural sensorineural hearing loss, as well as tinnitus. He found
that the sensorineural hearing loss was due to noise exposure in appellant’s federal employment,
because the pattern of appellant’s audiogram was consistent with noise exposure. Dr. Wright
also stated that hearing aids were recommended for appellant.

2

By decision dated March 22, 2013, OWCP accepted appellant’s claim for binaural
sensorineural hearing loss and stated that appellant’s case had been forwarded to an OWCP
medical adviser in order to assess the percentage of permanent employment-related hearing loss.
On March 25, 2013 a district medical adviser calculated that, under the sixth edition,
A.M.A., Guides, appellant had 26 percent ratable binaural hearing loss. The district medical
adviser further concluded that noise exposure in the course of appellant’s federal employment
was sufficient to implicate it as a factor in appellant’s hearing loss and that hearing aids should
be authorized.
On April 2, 2013 appellant filed a claim for compensation (Form CA-7) for a schedule
award on the basis of his accepted claim for binaural sensorineural hearing loss.
By decision dated April 18, 2013, OWCP accepted appellant’s claim for a schedule
award for a 26 percent binaural hearing loss. The award ran for 52 weeks from February 6, 2013
to February 4, 2014. OWCP based the award on Dr. Wright’s February 6, 2013 report and the
March 25, 2013 district medical adviser’s report. It also authorized hearing aids for appellant.
LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations3 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, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants.4 The A.M.A., Guides have been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.5
OWCP 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. Then, the fence of 25 decibels is deducted because, as the
A.M.A., Guides point out, losses below 25 decibels result in no impairment in the ability to hear
everyday speech under everyday conditions. The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss. 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, then added to the greater loss and the total is divided by six to arrive at the amount of

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

See D.K., Docket No. 10-174 (issued July 2, 2010); Michael S. Mina, 57 ECAB 379, 385 (2006).

5

20 C.F.R. § 10.404; see F.D., Docket No. 09-1346 (issued July 19, 2010).

6

See A.M.A., Guides 250 (6th ed. 2009).

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binaural hearing loss. The Board has concurred in OWCP’s adoption of this standard for
evaluating hearing loss.7
Further, the requirements of the evidence to be used in evaluating occupational hearingloss claims are defined by the Federal (FECA) Procedure Manual, which provides: that the
employee should undergo audiological evaluation and otological examination; that the
audiological testing precede the otologic examination; that the audiological evaluation and
otologic examination be performed by different individuals as a method of evaluating the
reliability of the findings; that the clinical audiologist and otolaryngologist be certified; that all
audiological equipment authorized for testing meet the calibration protocol contained in the
accreditation manual of the American Speech and Hearing Association; that the audiometric test
results include both bone conduction and pure-tone air conduction thresholds; speech reception
thresholds and monaural discrimination scores; and that the otolaryngologist’s report include the
date and hour of examination; date and hour of the employee’s last exposure to loud noise; and a
rationalized medical opinion regarding the relationship.8
Regarding tinnitus, the A.M.A., Guides provide that tinnitus is not a disease but rather a
symptom that may be the result of disease or injury.9 The A.M.A., Guides state that, if tinnitus
interferes with activities of daily living (ADLs), including sleep, reading (and other tasks
requiring concentration), enjoyment of quiet recreation and emotional well being, up to five
percent may be added to a measurable binaural hearing impairment.10
ANALYSIS
The Board finds that the evidence of record does not establish that appellant is entitled to
a schedule award for more than 26 percent binaural hearing loss.
OWCP’s district medical adviser correctly interpreted Dr. Wright’s report in calculating
appellant’s ratable hearing loss. Dr. Wright’s audiometric testing report of February 6, 2013
comports with established OWCP procedure, while the audiogram results from examinations
performed from March 2, 2005 through June 25, 2012 do not.
Appellant’s claim for occupational hearing loss was accepted by OWCP based on the
report of Dr. Wright, and OWCP’s medical adviser properly applied OWCP’s standardized
procedures to Dr. Wright’s February 6, 2013 report to arrive at an impairment rating of 26
percent. Test results for the frequency levels recorded at 500, 1,000, 2,000, and 3,000 cps on the
right revealed decibel losses of 40, 40, 40, and 45 dB respectively, for a total of 165 dB. This
figure, when divided by four, results in an average hearing loss of 41.25 dB. The average of
41.25 dB, when reduced by the 25 dB fence and multiplied by 1.5, results in a 24.38 percent
7

J.H., Docket No. 08-2432 (issued June 15, 2009); J.B., Docket No. 08-1735 (issued January 27, 2009).

8

Joshua A. Holmes, 42 ECAB 231, 232 n.2 (1990).

9

See A.M.A., Guides 249 (6th ed. 2009).

10

Id. See also R.O., Docket No. 13-1036 (issued August 28, 2013); R.H., Docket No. 10-2139 (issued July 13,
2011); Robert E. Cullison, 55 ECAB 570 (2004).

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monaural hearing loss of the right ear. Testing for the left ear at the frequency levels of 500,
1,000, 2,000, and 3,000 cps revealed decibel losses of 40, 40, 35, and 40 respectively, for a total
loss of 155 dB; 155 dB divided by four results in an average of 38.75 dB, which when reduced
by the 25 dB fence and multiplied by 1.5, results in a 20.63 percent monaural hearing loss of the
left ear. Multiplying the lesser loss of 20.63 dB by five arrives at a product of 103.15 dB.
Adding the 103.13 figure to the 24.38 percent hearing loss for the right ear obtains a total of
127.53 dB. Dividing this total by six in order to calculate a binaural hearing loss yields 21.26
percent, which was rounded down to 21 percent binaural hearing loss.11 Adding five percent to
appellant’s impairment due to tinnitus, as recommended by Dr. Wright, results in a final figure of
26 percent binaural hearing loss. Therefore, the district medical adviser correctly interpreted
Dr. Wright’s report in calculating appellant’s ratable hearing loss.
Dr. Wright’s audiometric testing was performed in full compliance with OWCP standards
and procedures. Appellant underwent an ontological examination by Dr. Wright and an
audiometric examination by Mr. Butler. The audiological testing preceded the otologic
examination, and both Dr. Wright and Mr. Butler were certified.12 The audiological equipment
was calibrated recently, on October 11, 2012; and the results of the audiological examination
included bone conduction, pure-tone air conduction thresholds, speech reception thresholds, and
monaural discrimination scores. Furthermore, the audiology report contained the date and hour
of examination, that of February 6, 2013 at 11:10 a.m., and the date of hour of appellant’s last
exposure to loud noise, that of at least 16 hours before the examination. Finally, Dr. Wright
provided a rationalized medical opinion regarding the relationship between the work factors
alleged to have caused appellant’s hearing loss and appellant’s ratable hearing loss, that of
finding that the sensorineural hearing loss was due to noise exposure in appellant’s federal
employment, because the pattern of appellant’s audiogram was consistent with noise exposure.
Therefore, Dr. Wright’s report met all OWCP standards and procedures and is probative on the
issue of appellant’s ratable binaural hearing loss.
The audiogram results from examinations performed from March 2, 2005 through
June 25, 2012, do not contain the results of an otologic examination, the legible names of a
certified physician and audiologist, the date of last calibration of the audiological equipment, the
date and hour of appellant’s last exposure to loud noise, or a rationalized medical opinion
regarding the relationship between the work factors alleged to cause appellant’s hearing loss and
appellant’s ratable hearing loss.13 Therefore, these audiogram results are not probative on the
11

OWCP’s procedures provide that in computing binaural hearing loss, percentages should not be rounded until
the final percent for award purposes is obtained and fractions should be rounded down from .49 or up from .50.
Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4.b(2)(b) (March 2005). It
is also well established that, if calculations based on the monaural loss for each ear would result in greater
compensation than calculations for binaural loss, then the monaural hearing loss calculations should be used.
Reynaldo R. Lichtenberger, 52 ECAB 462, 464 (2001). In this case, appellant’s compensation is greater under the
procedures used for calculating binaural loss.
12

Dr. Wright is certified by the American Board of Medical Specialties as an otolaryngologist. Mr. Butler is
licensed by the state of Texas and enrolled as a member of the American Speech and Hearing Association, the Texas
Academy of Audiology and the Texas Hearing Aid Association.
13

Furthermore, the audiogram results from examinations performed from March 2, 2005 through June 25, 2012
each indicate a lower level of hearing loss than the level indicated by Dr. Wright’s February 6, 2013 report.

5

issue of whether appellant is entitled to a higher percentage rating of impairment for binaural
hearing loss, and consequently there is no medical evidence of record that would indicate
appellant is entitled to a greater schedule award.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that OWCP followed standardized procedures in evaluating appellant’s
hearing loss and properly issued a schedule award for 26 percent binaural impairment.
ORDER
IT IS HEREBY ORDERED THAT the April 18, 2013 merit decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 7, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
DEPARTMENT OF THE NAVY, FLEET
READINESS CENTER SOUTHWEST,
San Diego, CA, Employer
__________________________________________

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

Docket No. 21-1307
Issued: March 22, 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 August 30, 2021 appellant, through counsel, filed a timely appeal from an August 20,
2021 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 his burden of proof to establish a medical condition
causally related to the accepted January 29, 2021 employment incident.
FACTUAL HISTORY
On February 18, 2021 appellant, then a 50-year-old aircraft mechanic, filed a traumatic
injury claim (Form CA-1) alleging that on January 29, 2021 he overstretched the ligaments in his
neck and left arm when torquing drone shafts while in the performance of duty. He asserted that
he experienced extreme pain from the base of his cranium to the tips of the fingers on his left hand.
On the reverse side of the claim form, C.S., an employing establishment supervisor, contended
that appellant’s condition may not have been the result of a traumatic incident. Appellant did not
stop work.
In an attached statement, C.S. further explained that appellant called out of work on
January 28 and 29, 2021 due to shoulder pain and was advised to return to work with a physician’s
note indicating that it was safe for him to return to his regular duties. The following day, appellant
reported that his physician held him out of work February 1 through 5, 2021. On February 8, 2021
he returned to work with a physician’s note releasing him to full duty. However, later that day, at
2:50 p.m., appellant asserted that he reinjured his shoulder and stopped work.
In February 23, 2021 development letter, OWCP informed appellant of the deficiencies of
his claim. It advised him of the type of factual and medical evidence needed to establish his claim
and requested a narrative medical report from his treating physician containing a detailed
description of findings and a diagnosis, explaining how his work incident caused or aggravated a
medical condition. OWCP afforded appellant 30 days to submit the necessary evidence.
In an undated statement, appellant explained that on January 28, 2021 he was installing a
right-sided engine driveshaft, which required him to contort the left side of his body and lean into
the engine in order to reach the bolts and nuts. He related that he felt a click in his neck and
shoulder, followed by a sharp pain in his left arm, shoulder, and neck. Appellant sought emergency
treatment that night and notified his supervisor the following morning. He noted that he attempted
to return to work one week later and experienced excruciating pain while completing another drive
shaft. Appellant recounted that he immediately notified his supervisor and sought additional
medical care.
In a return to work note, Sherri McCarty, a nurse practitioner, indicated that she held
appellant off from work until further notice.
By decision dated April 1, 2021, OWCP accepted that the January 29, 2021 employment
incident occurred, as alleged. However, it denied appellant’s traumatic injury claim, finding that
he had not submitted medical evidence containing a medical diagnosis in connection with the
accepted employment incident. Consequently, OWCP found that he had not met the requirements
to establish an injury as defined by FECA.

2

On April 8, 2021 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
OWCP continued to receive evidence. On April 7, 2021 appellant sought treatment with
Dr. Maxsimo Torres, a family medicine specialist, with complaints of left shoulder and neck pain
with numbness related to a work injury he sustained while installing a drive shaft. Dr. Torres
performed a physical examination and documented tenderness of the left acromioclavicular (AC)
and glenohumeral joints, bicipital groove, and shoulder. He diagnosed joint pain, osteoarthritis,
adhesive capsulitis, and articular cartilage disorder of the left sh oulder and recommended an
orthopedic evaluation, medication, an x-ray of the cervical spine, magnetic resonance imaging
(MRI) scan of the left shoulder, and a rheumatology panel.
In an attending physician’s report (Form CA-20) also dated April 7, 2021, Dr. Torres noted
that appellant sustained an injury to his left shoulder on January 29, 2021. He checked a box
marked “Yes” indicating that the condition was caused or aggravated by an employment activity.
By decision dated August 20, 2021, OWCP’s hearing representative modified the April 1,
2021 decision, finding that appellant had established a medical diagnosis in connection with the
accepted January 29, 2021 employment incident. However, the claim remained denied, because
the evidence of record was insufficient to establish causal relationship between the accepted
January 29, 2021 employment incident and his diagnosed left shoulder conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including 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 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 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 determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged. The second component is
3

Id.

4

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).

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whether the employment incident caused a personal injury and can be established only by medical
evidence.7
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 8 The opinion of
the physician must be based on a complete factual and medical background of the employee, 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 incident
identified by the claimant.9
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. 10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted January 29, 2021 employment incident.
In his narrative report dated April 7, 2021, Dr. Torres noted that appellant related a history
of an injury to his left shoulder while installing a drive shaft at work on the date of the alleged
injury. He diagnosed joint pain, osteoarthritis, adhesive capsulitis, and articular cartilage disorder
of the left shoulder. Dr. Torres did not, however, offer an opinion as to whether these diagnosed
conditions were causally related to the accepted employment injury. 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. 11 Therefore, Dr. Torres’ April 7, 2021
report is insufficient to establish appellant’s claim.
In a Form CA-20 dated April 7, 2021, Dr. Torres noted appellant’s January 29, 2021 left
shoulder injury. He checked a box marked “Yes” to indicate that the condition was caused or
aggravated by an employment activity. While the Form CA-20 provided an affirmative opinion
which supported causal relationship, Dr. Torres did not provide a pathophysiological explanation

7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
9

A.S., Docket No. 19-1955 (issued April 9, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
M.B., Docket No. 20-1275 (issued January 29, 2021); see R.D., Docket No. 18-1551 (issued March 1, 2019).
11

See S.S., Docket No. 21-0837 (issued November 23, 2021); J.M., Docket No. 19-1926 (issued March 19, 2021);
L.D., Docket No. 20-0894 (issued January 26, 2021); T.F., Docket No. 18-0447 (issued February 5, 2020); L.B.,
Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

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as to how the accepted incident either caused or contributed to appellant’s diagnosed conditions. 12
The Board has held that when a physician’s opinion as to the cause of a condition consists only of
a checkmark on a form, without further explanation or rationale, that opinion is of diminished
probative value and is insufficient to establish a claim. 13 Therefore, the April 7, 2021 Form CA20 is also insufficient to establish appellant’s claim.
The remaining medical evidence of record consists of a return-to-work note signed by a
nurse practitioner. Nurse practitioners are not considered “physician[s]” as defined under FECA
and thus their reports do not constitute competent medical opinion evidence.14
As appellant has not submitted rationalized medical evidence establishing a medical
condition causally related to the accepted January 29, 2021 employment incident, the Board finds
that he has not met his burden of proof to establish his claim.
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 his burden of proof to establish a medical
condition causally related to the accepted January 29, 2021 employment incident.

12

Id.; J.G., Docket No. 20-0009 (issued September 28, 2020).

13

See A.C., Docket No. 21-0087 (issued November 9, 2021); O.M., Docket No. 18-1055 (issued April 15, 2020);
Gary J. Watling, 52 ECAB 278 (2001).
14

Section 8101(2) provides that physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.
See 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See supra note 10 at Chapter 2.805.3a(1) (January 2013); David P.
Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and physical therapists
are not competent to render a medical opinion under FECA); see also D.S., Docket No. 19-1657 (issued July 20, 2020)
(nurse practitioners and registered nurses are not considered physicians under FECA).

5

ORDER
IT IS HEREBY ORDERED THAT the August 20, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 22, 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

6