United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, Norfolk, VA, Employer
__________________________________________

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

Docket No. 17-1532
Issued: January 23, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On July 5, 2017 appellant filed a timely appeal from a March 30, 2017 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish a right hip condition
as a consequence to his accepted December 11, 1996 employment injury.
FACTUAL HISTORY
On December 12, 1996 appellant, then a 43-year-old packer, filed a traumatic injury
claim (Form CA-1) alleging that he sustained a strain on December 11, 1996 as a result of
“lifting, bending, stooping, and pulling” in the performance of duty. OWCP accepted the claim
1

5 U.S.C. § 8101 et seq.

for lumbar radiculopathy and aggravation of preexisting lumbosacral strain. By decision dated
January 21, 2003, it issued a schedule award for 18 percent permanent impairment of the left
lower extremity and 10 percent permanent impairment of the right lower extremity. By decision
dated September 29, 2009, OWCP issued a schedule award for an additional three percent
permanent impairment of the right lower extremity.
On June 13, 2014 appellant filed an occupational disease claim (Form CA-2) alleging that
he developed arthritis of the right hip, right groin, and neck due to factors of his federal
employment. He identified December 11, 1996 as the date that he first realized his conditions
were caused or aggravated by his employment.
In a letter dated December 19, 2014, OWCP advised appellant that it had received
notification of a possible consequential condition of right hip and groin arthritis in connection
with his accepted December 11, 1996 employment injury. It requested additional evidence and
afforded appellant 30 days to respond to its inquiries.
In response, appellant submitted two January 5, 2015 narrative statements detailing his
work history and the factual history of his claim.
A magnetic resonance imaging (MRI) scan of the lumbar spine dated September 18, 2014
revealed moderate central canal stenosis at L4-5, mild central canal stenosis at L2-3, L3-4, and
L5-S1, and multilevel degenerative changes.
In a January 5, 2015 report, Dr. Felix M. Kirven, a Board-certified orthopedic surgeon,
indicated that appellant sustained a work-related injury on December 11, 1996. He noted that
appellant had an accepted claim for lumbar strain and thoracic strain with lumbar radiculopathy.
Dr. Kirven opined that appellant also sustained a right hip injury on December 11, 1996. He
indicated that on the date-of-injury appellant was reaching up on a conveyor belt to remove a box
that was very high, the weight of the box was misjudged, and when he grabbed the box, he
placed it on a pallet twisting his back and right hip. Since that time appellant had chronic pain in
the right hip and groin, in addition to lower back pain. Dr. Kirven indicated that x-rays dated
January 15, 2015 showed collapse of the joint space of the right hip and a large osteophyte over
the anterior lateral aspect of the right hip. He opined that appellant sustained a strain/labral
injury to the right hip as exemplified by the calcification on the anterolateral aspect of the right
hip radiograph. Dr. Kirven further indicated that over time appellant developed secondary
degenerative changes as a result of his December 11, 1996 work injury. He further indicated that
the labral tear was not diagnosed on his initial workup. Dr. Kirven concluded that appellant
sustained a right hip labral injury on December 11, 1996, which resulted in a calcified bony
fragment over the anterolateral hip and appellant developed progressive degenerative arthritis as
a result of the initial work injury.
On October 2, 2015 Dr. Kirven diagnosed primary osteoarthritis of the pelvis and
reiterated his opinion that appellant sustained a right hip injury on December 11, 1996 and his
labral tear with ligamentous tearing subsequently developed into primary osteoarthritis of the
pelvis (degenerative joint disease). He noted that appellant had no preexisting injuries to the
right hip.

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By decision dated October 28, 2015, OWCP denied authorization for the additional
condition of degenerative osteoarthritis of the right hip because the evidence of record failed to
establish causal relationship between this condition and the December 11, 1996 employment
incident.
On November 24, 2015 appellant requested an oral hearing by a representative of the
Branch of Hearings and Review.
Appellant submitted a report dated December 16, 1996 from Dr. Joel Andrew Mason, a
Board-certified orthopedic surgeon, who indicated that appellant was in his usual state of health
until December 11, 1996 at which time he was at work and was in the process of pulling boxes
off an assembly line. Dr. Mason noted that appellant turned to walk from his workstation when
he felt severe pain in his right hip and his right leg gave way. Appellant had difficulty standing
or walking following this incident. Dr. Mason reported that appellant was seen at Sewell’s Point
Clinic because of the pain “primarily in his right hip” and was “unable to return to work because
of the pain in his right hip.” He reported that appellant had persistent pain in his right lower
back, as well as pain radiating into his right hip and buttock area, his right groin, and the anterior
right thigh. Dr. Mason noted that appellant had no previous problems with his right hip, but he
did have a work-related injury to his back in 1988 when he sustained a twisting injury to his
lower back while getting into a forklift. Appellant was treated conservatively with rest, heat, and
medication, his symptoms subsided over approximately one week, and he then returned to his
full duties. Upon physical examination, Dr. Mason found pain and voluntary guarding on the
extremes of motion of the right hip, but no localized tenderness about the right hip. There was
no calf swelling or tenderness. The Homan’s sign was negative. X-rays of the pelvis, including
the right hip, revealed no gross fractures or dislocations, but were poor technically as a portion of
the greater trochanter was not seen on one x-ray and on the other x-ray was covered by the label.
For that reason, additional x-rays were taken of the right hip in a long anteroposterior and long
lateral projection, and it revealed no fractures or dislocations. The joint space was well
preserved and the normal spherical shape of the femoral head was well maintained. The
sacroiliac joints were well preserved and there were no obvious fractures about the pelvis or hip
area. X-rays of the lumbosacral spine demonstrated moderate preexisting degenerative joint
disease. Dr. Mason diagnosed acute dorsal and lumbosacral strain superimposed upon
preexisting degenerative joint disease of the lumbosacral spine. He noted that “[i]t was also felt
that [appellant] had a contusion [and] muscle and ligament strain of the right hip.”
On January 9, 1997 Dr. Mason continued to diagnose contusion and muscle and ligament
strain of the right hip. He also diagnosed tendinitis at the point of attachment of the back
muscles to the posterosuperior iliac spine on the right and synovitis of the right sacroiliac joint.
In reports dated January 23 and February 10, 1997, Dr. Mason reiterated his diagnoses
and opinions.
On November 21, 1997 and February 3, 1998 Dr. Mason found that appellant’s hip
flexion, extension, abduction, and adduction were five out of five.
In a March 11, 1998 report, Dr. Mason noted that appellant was involved in a motor
vehicle accident in October 1996 and February 1997 and he was treated by a chiropractor on

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both occasions with heat, ultrasound, electrical stimulation, and adjustments to his back and right
leg. He noted that appellant was under the care of his chiropractor through the middle of
January 1997 and his work-related injury occurred on December 11, 1996. Dr. Mason reported
that appellant neglected to mention either of these two accidents to him at the time of his original
visit.
In an April 10, 2002 report Dr. Richard T. Holden, a Board-certified orthopedic surgeon,
noted that on December 11, 1996 appellant was working on an assembly line and while he was
picking up a box, he twisted and then started to put it down. Appellant instantly developed a
very sharp pain in his right buttock, right lateral hip, and anterior lateral hip. After two or three
steps later, his right leg gave out on him. Appellant had similar complaints ever since his
incident, but at a lower intensity. Dr. Holden reported that appellant’s medical history included a
low back strain in 1985 while getting up on a forklift, an automobile accident in 1995, and
another automobile accident in 1996 resulting in mild low back, upper back, and neck pain.
A lumber spine MRI scan dated April 26, 2002 demonstrated degenerative disc disease,
disc bulges at L3-4 and L4-5, degenerative facet change of the lower lumbar spine, and mild
retrolisthesis of L5 on S1.
On September 12, 2002 Dr. Holden noted that electromyography studies showed a
chronic right L5 nerve root radiculopathy and an x-ray showed degenerative arthritis of the hip.
He indicated that the automobile accidents of February and October 1996 were not related to
appellant’s lower back history as they were cervical spine injuries.
In reports dated July 29 and October 30, 2014, Dr. Kirven reiterated his diagnoses and
opinions. He also reported that appellant injured his neck and right shoulder on June 18, 2004
when he was opening a tailgate to a truck for which the pin was bent.
A telephonic hearing was held before an OWCP hearing representative on
March 15, 2016. Appellant provided testimony and the hearing representative held the case
record open for 30 days for the submission of additional evidence.
Appellant resubmitted an October 30, 2014 report from Dr. Kirven in support of his
claim.
By decision dated May 26, 2016, OWCP’s hearing representative affirmed the prior
decision.
On March 13, 2017 appellant requested reconsideration and submitted a November 9,
2016 report from Dr. Kirven who found that radiographs of the hip dated July 29, 2014 showed
end-stage arthritis of the hip with collapse of the cartilage space. His lower extremity motor
examination demonstrated that hip flexion, extension, adduction, and abduction was five out of
five. Dr. Kirven noted that appellant’s right hip labral tear went undiagnosed despite a hip
arthrogram and radiographic studies. He continued to opine that appellant developed secondary
degenerative arthritis as a result of his undiagnosed labral tear in the hip.
By decision dated March 30, 2017, OWCP denied modification of its prior decision.

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LEGAL PRECEDENT
It is an accepted principle of workers’ compensation law that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause which attributable to the employee’s own intentional conduct.2 In
discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, then a subsequent injury, whether an aggravation of the original
injury or a new and distinct injury, is compensable if it is the direct and natural result of a
compensable primary injury.3
The Board has held that if a member weakened by an employment injury contributes to a
later injury, the subsequent injury will be compensable as a consequential injury, if the further
medical complication flows from the compensable injury so long as it is clear that the real
operative factor is the progression of the compensable injury.4
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.5 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.6
ANALYSIS
OWCP accepted appellant’s claim for lumbar radiculopathy and aggravation of
preexisting lumbosacral strain. However, it declined to expand the claim to include right hip
degenerative osteoarthritis. The Board finds that appellant has not met his burden of proof to
establish that his right hip condition was causally related to the accepted December 11, 1996
employment injury.
Dr. Mason diagnosed right hip contusion and strain. He also diagnosed tendinitis at the
point of attachment of the back muscles to the posterosuperior iliac spine on the right and
synovitis of the right sacroiliac joint. Dr. Mason indicated that appellant was involved in a motor
vehicle accident in October 1996 and February 1997, noting that appellant was under the care of
his chiropractor through the middle of January 1997 and his work-related injury occurred on
December 11, 1996. He noted that appellant neglected to mention either of these two accidents
to him at the time of his original visit and he did not opine as to the course of the condition. The
2

Albert F. Ranieri, 55 ECAB 598, 602 (2004); A Larson, The Law of Workers’ Compensation § 10.01 (2000).

3

Charles W. Downey, 54 ECAB 421, 422-23 (2003).

4

S.M., 58 ECAB 166 (2006); Raymond A, Nester, 50 ECAB 173, 175 (1998).

5

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

6

I.J., 59 ECAB 408 (2008); Ruthie M. Evans, 41 ECAB 416 (1990).

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Board has held that medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.7
Consequently, the reports from Dr. Mason are insufficient to satisfy appellant’s burden of proof
with respect to causal relationship.8
In his reports, Dr. Holden indicated that on December 11, 1996 appellant was working on
an assembly line and while he was lifting a box, he twisted, and then started to put it down.
Appellant instantly developed a very sharp pain in his right buttocks, right lateral hip, and
anterior lateral hip. Dr. Holden noted that an x-ray showed degenerative arthritis of the hip. He
reported that appellant’s medical history included a low back strain in 1985 while getting up on a
forklift, an automobile accident in 1995, and another automobile accident in 1996 resulting in
mild low back, upper back, and neck pain. Dr. Holden indicated, however, that the automobile
accidents of February and October 1996 were not related to appellant’s lower back history as
they were cervical spine injuries. He failed to provide sufficient medical rationale explaining
how the December 11, 1996 employment incident caused or aggravated his right hip condition.
Thus, the Board finds that the reports from Dr. Holden are insufficient to establish a
consequential injury.
In his reports in 2016, Dr. Kirven diagnosed primary osteoarthritis of the pelvis. He
opined that appellant sustained a right hip injury on December 11, 1996 and his labral tear with
ligamentous tearing subsequently developed into primary osteoarthritis of the pelvis. Dr. Kirven
indicated that on the date-of-injury appellant was reaching up on a conveyor belt to remove a box
that was very high, the weight of the box was misjudged, and when he grabbed the box, he
placed it on a pallet twisting his back and right hip. He indicated that radiographs of the hip
dated July 29, 2014 showed end-stage arthritis of the hip with collapse of the cartilage space, and
x-rays dated January 15, 2015 showed collapse of the joint space of the right hip and a large
osteophyte over the anterior lateral aspect of the right hip. Dr. Kirven opined that appellant
sustained a strain/labral injury to the right hip as exemplified by the calcification on the
anterolateral aspect of the right hip radiograph. He opined that appellant’s labral tear was not
diagnosed on his initial work-up despite a hip arthrogram and radiographic studies. Dr. Kirven
concluded that appellant sustained a right hip labral injury on December 11, 1996, which resulted
in a calcified bony fragment over the anterolateral hip, and appellant developed progressive
degenerative arthritis as a result of the initial work injury. He noted that appellant’s condition
occurred while he was at work, but such generalized statements do not establish causal
relationship because they merely repeat appellant’s allegations and are unsupported by adequate
medical rationale explaining how his physical activity at work actually caused or aggravated the
diagnosed condition.9 The Board has held that the mere fact that appellant’s symptoms arise
during a period of employment or produce symptoms revelatory of an underlying condition does
not establish causal relationship between appellant’s condition and his accepted employment
injury.10 The need for rationale is particularly important as the record indicates that appellant
7

See S.E., Docket No. 08-2214 (issued May 6, 2009).

8

Id.

9

See K.W., Docket No. 10-0098 (issued September 10, 2010).

10

See Richard B. Cissel, 32 ECAB 1910, 1917 (1981); P.B., Docket No. 14-0837 (issued August 12, 2014).

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had a history of twisting injuries in 1985 and 1988 while getting into a forklift, and motor vehicle
accidents in 1995, 1996, and 1997. For these reasons, the Board finds that the reports from
Dr. Kirven are insufficient to establish that appellant’s right hip condition was caused or
aggravated by factors of his federal employment.
As appellant has not submitted any rationalized medical evidence to support that his right
hip condition was causally related to the accepted December 11, 1996 employment injury,
OWCP properly declined to expand the claim to include right hip degenerative osteoarthritis as
an accepted condition.
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 right hip
condition as a consequence to his accepted December 11, 1996 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the March 30, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 23, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Charlotte, NC, Employer
__________________________________________

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

Docket No. 18-1700
Issued: May 9, 2019

Case Submitted on the Record

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

JURISDICTION
On September 10, 2018 appellant filed a timely appeal from an August 7, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2

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2

5 U.S.C. § 8101 et seq.

The Board notes that following the August 7, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish more than three
percent permanent impairment of her left lower extremity, for which she previously received
schedule award compensation.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On January 11, 2011 appellant, then a 51-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that, on that date, she slid, fell on her back, and twisted her left knee
as she exited her vehicle while in the performance of duty. OWCP accepted her claim for back
contusion and left knee medial meniscus tear. It paid compensation for intermittent wage loss on
the supplemental rolls, effective March 11, 2011. On May 18, 2011 appellant underwent
arthroscopic left knee partial meniscectomy with chondral debridement, which OWCP authorized.
On February 27, 2012 appellant filed a claim for a schedule award (Form CA-7).
By decision dated April 27, 2012, OWCP issued appellant a schedule award for two
percent permanent impairment of her left leg based on the March 6, 2012 opinion of an OWCP
district medical adviser (DMA). The rating was based on appellant’s partial medial meniscectomy.
The period of the award ran from March 10 to April 19, 2012.
Appellant subsequently requested a review of the written record by a representative of
OWCP’s Branch of Hearings and Review. By decision dated August 29, 2012, a hearing
representative affirmed the April 27, 2012 schedule award decision.
Appellant underwent a second left knee arthroscopic procedure on May 19, 2014, which
was authorized by OWCP.
On April 30, 2015 OWCP referred appellant to Dr. Chason S. Hayes, a Board-certified
orthopedic surgeon, for a second opinion to determine the nature of appellant’s condition, extent
of her disability, and eligibility for a schedule award. In a May 21, 2015 report, Dr. Hayes opined
that she had 10 percent permanent impairment of her left knee due to postoperative changes and 0
percent permanent impairment of her lumbar spine. He noted that appellant had reached maximum
medical improvement (MMI) on approximately August 19, 2014.4

3

Docket No. 17-1596 (issued May 2, 2018).

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Dr. Hayes further opined that appellant was no longer disabled from work due to her accepted conditions. On
January 14, 2016 OWCP terminated her wage-loss compensation, effective January 15, 2016, based on Dr. Hayes’
second opinion report. It noted that it did not terminate appellant’s medical benefits.

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On December 14, 2016 appellant filed a claim for an increased schedule award (Form
CA-7).
In a March 9, 2017 report, a DMA determined that under the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides)5
appellant had three percent impairment of the left lower extremity for arthroscopic partial medial
meniscectomy and/or arthroscopic medial meniscal repair.
By decision dated April 5, 2017, OWCP issued appellant a schedule award for an
additional one percent permanent impairment of the left leg. The period of the award ran from
January 15 to February 4, 2016.
On July 17, 2017 appellant appealed to the Board.
On February 22, 2018 appellant underwent a third left knee arthroscopic procedure, which
OWCP approved.
By decision dated May 2, 2018, the Board set aside OWCP’s April 5, 2017 schedule award
decision and remanded the case for further medical development of the evidence.6 The Board
found that the second opinion physician, Dr. Hayes, failed to sufficiently describe appellant’s
impairment and schedule award ratings and OWCP should, therefore, have obtained a
supplemental report before it referred appellant to a DMA. The Board instructed OWCP to refer
appellant for another second opinion evaluation, to be followed by a de novo decision.
On remand OWCP referred appellant to Dr. Joseph Estwanik, a Board-certified
orthopedic surgeon, for a second opinion evaluation. In a June 25, 2018 report, Dr. Estwanik
discussed appellant’s employment injury of January 11, 2011 and discussed the history of her
medical treatment. He diagnosed a tear of the medial meniscus of the left knee, primary
osteoarthritis of the left lower leg, contusion of the back resolved, iatrogenic opioid addiction,
multiple auto accidents, and significant documented and ongoing symptom magnification.
Dr. Estwanik noted preexisting and unrelated osteoarthritis in three compartments of the knee.
He noted findings on examination of intact sensory examination of the lower extremities, negative
straight leg raises, no effusion of the bilateral knees, stable medial, lateral, anterior and posterior
ligaments, and symptom magnification of a nonphysiologic basis. Range of motion testing was
performed on both knees after warm-up resulting in 135 degrees, 135 degrees, and 125 degrees
for an average of 131 degrees for the right knee. With regard to the left knee Dr. Estwanik
measured 125 degrees, 128 degrees, and 132 degrees for an average of 128 degrees. He opined
that with regard to range of motion examination findings there was zero percent permanent
impairment of the left lower extremity. Pursuant to Table 16-3, of the A.M.A., Guides, the Knee
Regional Grid, for a diagnosis of meniscal injury, Dr. Estwanik rated appellant as a class 1 with
a default impairment rating of two percent. He noted a functional history grade modifier
(GMFH) of 3, physical examination grade modifier (GMPE) of 1, and clinical studies grade
5

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

Id.

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modifier (GMCS) of 2. Dr. Estwanik concluded that the impairment class was not altered by
grade modification and appellant, therefore, sustained two percent left lower extremity
permanent impairment.
OWCP subsequently routed the case record, including Dr. Estwanik’s June 25, 2018
report, to its DMA for review. In a July 23, 2018 report, the DMA noted that appellant had
undergone an arthroscopic partial medial meniscectomy and pursuant to Table 16-3, page 509 of
the A.M.A., Guides, utilizing the diagnosis-based impairment (DBI) method, appellant had
three percent impairment of the left lower extremity.7 He further noted that the A.M.A., Guides
does not permit impairment ratings to be calculated on the range of motion method for this
diagnosis. The DMA noted the date of MMI was June 25, 2018. He also noted that appellant
was previously awarded three percent permanent impairment of the left lower extremity for her
knee, and therefore, she would not be entitled to an additional award.
By decision dated August 7, 2018, OWCP denied appellant’s claim for an additional
schedule award for the left lower extremity as the evidence of record was insufficient to establish
a greater than the three percent permanent impairment previously awarded.
LEGAL PRECEDENT
Under section 8107 of FECA8 and section 10.404 of the implementing federal regulations,9
schedule awards are payable for permanent impairment of specified body members, functions, or
organs. FECA, however, does not specify the manner in which the percentage of impairment shall
be determined. For consistent results and to ensure equal justice under the law for all claimants,
OWCP has adopted the A.M.A., Guides as the uniform standard applicable to all claimants.10 As
of May 1, 2009, the sixth edition is used to calculate schedule awards.11
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).12 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition as class of diagnosis (CDX), which is then adjusted by grade modifiers

7

Id. at 509, Table 16-3.

8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404.

10

Id. at § 10.404(a).

11
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Exhibit 4
(January 2010).
12
A.M.A., Guides (6th ed. 2009), page 3, Section 1.3, The International Classification of Functioning, Disability,
and Health (ICF): A Contemporary Model of Disablement.

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including GMFH, GMPE, and GMCS.13 The net adjustment formula is (GMFH-CDX) + (GMPECDX) + (GMCS-CDX).14
In determining impairment for the lower extremities, 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 509.15 After the CDX is determined from the Knee Regional Grid
(including identification of a default grade value), the net adjustment formula is applied using
GMPH, GMPE, and GMCS. The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) +
(GMCS-CDX).16 Under Chapter 2.3, the evaluators are directed to provide reasons for their
impairment rating choices, including the choices of diagnoses from regional grids and calculations
of modifier scores.17
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed through an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with an OWCP medical adviser
providing rationale for the percentage of impairment specified.18
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish more than three
percent permanent impairment of her left lower extremity, for which she previously received
schedule award compensation.
On remand following the Board’s May 2, 2018 decision, OWCP referred appellant to
Dr. Estwanik for a second opinion evaluation. In a June 25, 2018 report, pursuant to Table 16-3,
A.M.A., Guides, Dr. Estwanik rated appellant as a class 1 with a default impairment rating of
two percent. He noted a GMFH of 3, GMPE of 1, and GMCS of 2. Dr. Estwanik found the
impairment class was not altered and appellant sustained two percent left lower extremity
impairment.
An OWCP DMA utilized the physical examination findings in Dr. Estwanik’s June 25,
2018 report, and correlated them to specific provisions in the A.M.A., Guides to determine the
impairment rating. In a July 23, 2018 report, the DMA noted that appellant had undergone an
arthroscopic partial medial meniscectomy. Pursuant to Table 16-3, page 509 of the A.M.A.,
13

Id. at 383-419.

14

Id. at 411.

15

Id. at 509-11.

16

Id. at 515-22.

17

Id. at 23-28.

18
See Federal (FECA) Procedure Manual, supra note 11 at Chapter 2.808.6(f) (March 2017). See C.K., Docket
No. 09-2371 (issued August 18, 2010); Frantz Ghassan, 57 ECAB 414 (2006).

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Guides, appellant had three percent impairment of the left lower extremity.19 The DMA applied
grade modification procedures of the A.M.A., Guides to the physical findings provided in
Dr. Estwanik’s report and reached an impairment rating of three percent for the left lower
extremity. This evaluation conforms to the A.M.A., Guides and establishes that appellant has no
more than three percent impairment of the left leg. Because appellant was previously granted
schedule award compensation for three percent permanent impairment of the left leg, she was not
entitled to an additional award. For the reasons discussed, the Board finds that the weight of the
medical evidence is insufficient to establish more than the three percent left lower extremity
permanent impairment previously awarded.
On appeal appellant argues that she was entitled to an additional schedule award for her
left lower extremity as she has undergone three surgeries, she was still having problems, and
ultimately had to retire early due to disability. As noted, the A.M.A., Guides, Table 16-3, Knee
Regional Grid, provides a maximum impairment allowed for a patient who has undergone an
arthroscopic partial medial meniscectomy and/or arthroscopic medial meniscal repair would be
three percent. There is no contemporaneous medical evidence which provides a higher impairment
rating.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish more than three
percent permanent impairment of the left lower extremity, for which she previously received
schedule award compensation.

19

A.M.A., Guides 509, Table 16-3.

6

ORDER
IT IS HEREBY ORDERED THAT the August 7, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 9, 2019
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Trenton, NJ, Employer
__________________________________________
Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 19-1135
Issued: April 2, 2020

Case Submitted on the Record

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

On April 25, 2019 appellant, through counsel, filed a timely appeal from a January 14,
2019 decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards docketed the appeal as No. 19-1135.
This case has previously been before the Board. 2 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as
follows.
OWCP accepted that on July 27, 2002 appellant, then a 54-year-old city letter carrier,
sustained a temporary aggravation of degenerative joint disease of both knees through
July 23, 2003. It further accepted that on July 3, 2006 she sustained a sprain of the right hand,
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

Docket No. 10-0960 (issued May 3, 2010); Docket No. 09-1725 (issued May 4, 2010).

contusion of the lip, and right thumb sprain. On May 25, 2010 OWCP expanded acceptance of
appellant’s July 3, 2006 claim to include bilateral knee contusions and a broken tooth. On July 11,
2012 it authorized left total knee arthroplasty which was performed on March 13, 2015. On
May 1, 2014 OWCP authorized right knee total arthroplasty, which was performed on
July 18, 2014. On January 9, 2015 it expanded acceptance of appellant’s July 3, 2006 traumatic
injury claim to include permanent aggravation of bilateral knee degenerative joint disease.
On July 8, 2016 appellant filed a schedule award claim (Form CA-7) in her July 27, 2002
traumatic injury claim. On October 12, 2016 she filed a schedule award claim (Form CA-7) in her
July 3, 2006 traumatic injury claim.
By decision dated July 14, 2017, OWCP granted appellant a schedule award for 25 percent
permanent impairment of each lower extremity. On July 24, 2017 appellant, through counsel,
requested an oral hearing, held on November 15, 2017. By decision dated January 30, 2018,
OWCP’s hearing representative found a conflict of medical opinion evidence between appellant’s
physician and OWCP’s district medical adviser (DMA) regarding the extent of appellant’s bilateral
lower extremity permanent impairment. She set aside the July 14, 2017 decision and remanded
the case for OWCP to make a referral to an impartial medical examiner (IME) to resolve the
existing conflict of medical opinion evidence.
On February 27, 2018 OWCP referred appellant, a statement of accepted facts (SOAF)
which it indicated was dated May 15, 2015,3 and a list of specific questions, for an IME with
Dr. Robert Elkins, a Board-certified orthopedic surgeon, for review and determination of the extent
of permanent impairment for the purposes of a schedule award. In a supplemental letter to
Dr. Elkins, dated March 9, 2018, it confirmed the date and time of the scheduled examination and
again noted that it had attached a SOAF and list of questions prepared by the claims examiner. In
his report dated May 23, 2018, Dr. Elkins noted that he examined appellant and had reviewed
medical records and a SOAF dated June 15, 2012.
The Board, having duly considered the matter, finds that this case is not in posture for
decision.4
The June 15, 2012 SOAF did not reflect the most recent accepted condition of permanent
aggravation of degenerative joint disease in bilateral knees, which was accepted on
January 9, 2015. It also did not reflect appellant’s accepted bilateral total knee replacement
surgeries, which occurred on July 18, 2014 and March 13, 2015. OWCP’s procedures provide
that, when a DMA, second opinion specialist, or IME renders a medical opinion based on a SOAF,
which is incomplete or inaccurate, or does not use the SOAF as the framework in forming his or
her opinion, the probative value of the opinion is seriously diminished or negated altogether. 5
3

The Board notes that the record transmitted to the Board does not contain a SOAF dated May 15, 2015. The only
SOAF of record is dated June 15, 2012.
4

D.S., Docket No. 19-0025 (issued September 3, 2019).

5
Federal (FECA) Procedure Manual, Part 2 -- Claims, Statements of Accepted Facts, Chapter 2.809.5
(September 2009); A.C., Docket No. 07-2423 (issued May 15, 2008).

2

While Dr. Elkins agreed with the impairment rating provided in the DMA’s March 26, 2017 report,
the Board finds that he was not provided a complete and accurate framework, rendering his opinion
of limited probative value. 6
The Board therefore finds that further development is required. On remand OWCP should
prepare an updated SOAF and refer the case file and relevant reports to Dr. Elkins for a reasoned
opinion regarding the extent of appellant’s permanent impairment of the bilateral lower
extremities. Following such further development as deemed necessary, it shall issue a de novo
decision.7 Accordingly,
IT IS HEREBY ORDERED THAT the January 14, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this order of the Board.
Issued: April 2, 2020
Washington, DC

Christopher J. Godfrey, Deputy 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

6

F.R., Docket No. 17-1711 (issued September 6, 2018); L.J., Docket No. 14-1682 (issued December 11, 2015).

7

D.D., Docket No. 16-0558 (issued August 5, 2016).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New York, NY, Employer
__________________________________________

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

Docket No. 10-1354
Issued: February 15, 2011

Case Submitted on the Record

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

JURISDICTION
On April 12, 2010 appellant filed a timely appeal of a March 19, 2010 merit decision of
the Office of Workers’ Compensation Programs which denied his traumatic injury claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.1
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a left
knee condition causally related to a January 29, 2010 employment incident.

1

For Office decisions issued prior to November 19, 2008, a claimant had up to one year to file an appeal.
An appeal of Office decisions issued on or after November 19, 2008 must be filed within 180 days of the decision.
20 C.F.R. § 501.3(e).

FACTUAL HISTORY
On February 1, 2010 appellant, then a 55-year-old letter carrier, filed a traumatic injury
claim alleging that on January 29, 2010 he slipped down steps while delivering mail and hit his
knee, resulting in a left knee contusion and bruise. He stopped work on January 30, 2010.
A January 30, 2010 emergency room discharge report from Long Island College Hospital
signed by Dr. Michael Tang, Board certified in emergency medicine, noted that appellant was
treated and given ibuprofen and oxycodone at the emergency room. Dr. Tang diagnosed
appellant with a contusion of the left knee.
A January 30, 2010 work restriction note from Meleta Taylor, a nurse practitioner, stated
that appellant was out of work and needed crutches. In a February 1, 2010 work restriction note,
with an illegible signature, appellant was treated at the Orthopedic Ambulatory Care Service and
recommended not to return to work until further notice.
In a February 1, 2010 letter, the employing establishment controverted appellant’s claim.
It was noted that he did not notify his supervisor of the accident and that he completed his work
on January 29, 2010 without apparent distress.
On February 16, 2010 the Office advised appellant of the deficiencies in his claim and
requested additional information. It asked him to explain why he did not immediately report his
alleged injury to his supervisor on January 29, 2010 or when he called to report he was unable to
work on January 30, 2010. The Office also requested a detailed medical report from a physician
which included a history of injury and any prior injuries to similar parts of the body, a firm
diagnosis of any condition resulting from the alleged injury and an opinion explaining how the
reported work incident caused or aggravated the claimed injury.
On February 24, 2010 the Office received magnetic resonance imaging (MRI) scan
diagnostic results of the left knee dated February 17, 2010 from Dr. Enyi Okoh, a Board-certified
internist, who reported the clinical data as “Pain. Twisting Injury.” Dr. Okoh stated that the
MRI scan revealed an undisplaced fracture involving the posterior aspect of the lateral tibial
plateau with synovial effusion and a small popliteal cyst. There was no internal derangement,
the medial and lateral menisci were intact and no abnormalities were identified in the posterior
ligaments.
Appellant submitted medical records from Preferred Health Partners, dated February 16
to March 3, 2010. Dr. Satish Kashyap, a Board-certified orthopedic surgeon, noted the reason
for the referral as: “job[-]related left knee injury, fracture posterior aspect of the lateral tibial
plateau.” On March 3, 2010 he confirmed that appellant was under his medical care and
diagnosed a closed fracture of the upper end of tibia. Dr. Kashyap advised that appellant could
not return to work and was disabled until further notice. Appellant would be reevaluated on
March 29, 2010.
In a letter dated March 3, 2010, appellant stated that he was delivering mail when he
slipped while walking down the steps of a building and hit his left knee. He did not immediately
notify his supervisor of the incident and continued with his assignment because he did not feel

2

any pain; but later that evening he experienced pain and was taken by ambulance to Long Island
College Hospital.
In a March 3, 2010 worksheet, a continuation of pay nurse contacted the employing
establishment and reported that appellant was not working because of a fracture of his tibial
plateau, as confirmed by MRI scan results. She reported that he slipped on steps while
delivering mail and caught himself from falling, but his knee became swollen.
In a March 19, 2010 decision, the Office denied appellant’s claim. It accepted that the
January 29, 2010 employment incident occurred as alleged; however, the medical evidence did
not provide an accurate history that appellant slipped down steps and hit his left knee or any
explanation of how his knee fracture was causally related to the employment incident.
LEGAL PRECEDENT
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.2 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.3
An employee seeking benefits under the Federal Employees’ Compensation Act4 has the
burden of proof to establish the essential elements of his claim by the weight of the reliable,
probative and substantial evidence5 including that he sustained an injury in the performance of
duty and that any specific condition or disability for work for which he claims compensation is
causally related to that employment injury.6 As part of his burden, the employee must submit
rationalized medical opinion evidence based on a complete factual and medical background on
whether a causal relationship exists between the claimant’s diagnosed condition and the established
employment incident.7 The weight of medical evidence is determined by its reliability, its
probative value, its convincing quality, the care of the analysis manifested and the medical
rationale expressed in support of the physician’s opinion.8
2

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

3

T.H., 59 ECAB 388 (2008); John J. Carlone, 41 ECAB 354, 356-57 (1989).

4

5 U.S.C. §§ 8101-8193.

5

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

6

M.M., 60 ECAB __ (Docket No. 08-1510, issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine
Pendleton, 40 ECAB 1143, 1145 (1989).
7

Y.J., 60 ECAB __ (Docket No. 08-1167, issued October 7, 2008); George H. Clark, 56 ECAB 162 (2004);
Nancy G. O’Meara, 12 ECAB 67, 71 (1960).
8

C.B., 60 ECAB __ (Docket No. 08-1583, issued December 9, 2008); Jennifer Atkerson, 55 ECAB 317, 319
(2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

3

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
specified employment factors or incident. 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
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that an employee’s condition surfaced during a period of employment nor his
belief that his condition was aggravated by his employment is sufficient to establish causal
relationship.10
ANALYSIS
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained a left knee fracture causally related to the January 29, 2010 employment incident. The
Office accepted that the January 29, 2010 slip and fall incident occurred as alleged. The Board
finds, however, that the medical evidence of record is insufficient to establish that the
January 29, 2010 employment incident resulted in a left knee condition.
The medical evidence submitted is not sufficient to establish appellant’s claim for a left
knee injury because the medical reports do not provide an accurate history of the employment
incident or a rationalized medical opinion addressing how the accepted incident caused or
contributed to his left knee conditions.
Dr. Tang noted only a diagnosis of “contusion.” His treatment note on January 30, 2010
does not relate any history of injury or the explanation as to the medical cause of appellant’s left
knee condition.
In a February 17, 2010 MRI scan diagnostic report, Dr. Okoh listed a diagnosis of
undisplaced fracture of the lateral tibial plateau and listed “Pain Twisting Injury.” Appellant,
however, did not describe a twisting injury as the cause of his left knee condition. Rather, he
stated that he slipped and fell on steps on January 29, 2010 while delivering mail. This report
provided no medical rationale explaining how the accepted incident caused the diagnosed
condition.
The February 16, 2010 referral form from Dr. Kashyap noted that appellant was seen for
“trauma, job[-]related left knee injury.” Dr. Kashyap failed to provide any history of the
January 29, 2010 slip and fall incident or medical rationale addressing the issue of causal
9

D.S., 61 ECAB __ (Docket No. 09-860, issued November 2, 2009); I.J., 59 ECAB 408 (2008); Victor J.
Woodhams, 41 ECAB 345, 352 (1989).
10

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

4

relationship. A physician’s opinion not supported by medical rationale is of diminished
probative value.11 The Board finds that Dr. Kashyap’s opinion is of diminished probative value
because he did not provide sufficient medical rationale explaining how the incident accepted in
this case caused the left knee condition.
The other medical evidence of record such as the work restriction forms dated January 30
and March 3, 2010, March 1 and 8, 2010 appointment slips and the January 30, 2010 emergency
room discharge report did not provide any opinion regarding the cause of appellant’s condition.
This evidence is of limited probative value on the issue of causal relationship.12
In a March 3, 2010 worksheet, a nurse reported that appellant slipped on steps while
delivering mail and caught himself, but his knee became swollen. This report is of no probative
value as a nurse is not a physician as defined under the Act. 5 U.S.C. § 8101(2) of the Act
provides that the term “physician” includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors and osteopathic practitioners within the scope of their practice as
defined by State law.13
To establish causal relationship, a claimant must submit a physician’s rationalized
medical opinion based on a complete factual and medical background with an accurate history of
the employee’s employment injury and must explain from a medical perspective how the current
condition is related to the injury.14 The medical opinion must relate a work incident or factors of
employment to an employee’s condition, with stated reasons for the conclusions reached.15 In
this case, the medical reports are not based on an accurate history of injury and do not provide
adequate medical opinion to establish causal relationship.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that a knee
condition was causally related to the January 29, 2010 employment incident.

11

F.T., 61 ECAB __ (Docket No. 09-919, issued December 7, 2009); T.M., 60 ECAB __ (Docket No. 08-975,
issued February 6, 2009).
12

J.F., 61 ECAB ___ (Docket No. 09-1061, issued November 17, 2009); S.E., 60 ECAB ___ (Docket No. 082214, issued May 6, 2009); see Mary E. Marshall, 56 ECAB 420 (2005).
13

See Roy L. Humphrey, 57 ECAB 238 (2005).

14

K.E., 60 ECAB __ (Docket No. 08-1461, issued December 17, 2008); T.H., supra note 3; Gary J. Watling,
52 ECAB 278 (2001).
15

J.J., 60 ECAB __ (Docket No. 09-27, issued February 10, 2009).

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ORDER
IT IS HEREBY ORDERED THAT the March 19, 2010 decision of the Office of
Workers’ Compensation Program is affirmed.
Issued: February 15, 2011
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.R., Appellant
and
U.S. POSTAL SERVICE, BRICK POST
OFFICE, Brick, NJ, Employer
__________________________________________

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

Docket No. 08-1231
Issued: October 17, 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 March 20, 2008 appellant, through counsel, filed a timely appeal of the April 6 and
October 22, 2007 merit decisions of the Office of Workers’ Compensation Programs terminating
her medical benefits effective April 4, 2007 and finding that she failed to establish continuing
employment-related residuals or that she sustained bilateral shoulder and carpal tunnel syndrome
conditions, spinal stenosis and disc bulge while in the performance of duty. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the merits of this appeal.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s medical benefits
effective April 4, 2007 on the grounds that she no longer had any residuals causally related to her
accepted employment-related injury; (2) whether she had any continuing employment-related
residuals after April 4, 2007; and (3) whether appellant sustained bilateral shoulder and carpal
tunnel syndrome conditions, spinal stenosis and disc bulge while in the performance of duty.

FACTUAL HISTORY
On January 2, 2006 appellant, then a 47-year-old letter carrier, filed a claim for an
occupational disease. On February 23, 2005 she first became aware of a torn tendon in the right
and left shoulder, spinal stenosis, carpal tunnel syndrome and disc bulge. On May 9, 2005
appellant first realized that these conditions were caused by her federal employment. She
stopped work on May 1, 2005.
By letter dated May 26, 2006, the Office accepted the claim for cervical vertebral
subluxation at C5-6.
By letter dated December 18, 2006, the Office referred appellant, together with the case
record, a statement of accepted facts and a list of questions to be addressed, to Dr. Irving D.
Strouse, a Board-certified orthopedic surgeon, for a second opinion medical examination.
In a January 15 2007 medical report, Dr. Strouse reviewed a history of appellant’s
conditions, including her accepted cervical condition and medical treatment. On physical
examination, he reported his range of motion measurements for the cervical spine and both
shoulders. Dr. Strouse otherwise provided essentially normal findings which included, full range
of motion of the elbows, wrists and hands, and normal reflexes of the lower extremities. He
stated that appellant sustained cervical degenerative disc disease, tendinitis in the right and left
shoulders and mild bilateral carpal tunnel syndrome. Dr. Strouse indicated that she was status
post cervical fusion. He opined that none of the diagnosed conditions were causally related to
appellant’s duties as a letter carrier. Dr. Strouse stated that her cervical degenerative disc disease
occurred slowly over the years. He stated that her tendinitis could have been aggravated by her
employment but it appeared to have resolved as he found no evidence of any active condition in
either shoulder. Dr. Strouse related that his examination findings were negative for any signs of
residual tendinitis, inflammation or rotator cuff tear. He stated that there was no need for any
treatment of either shoulder. Appellant’s carpal tunnel syndrome also did not require any
treatment. Dr. Strouse found that there was no evidence that she dislocated her cervical spine as
a May 19, 2005 magnetic resonance imaging (MRI) scan did not mention any type of cervical
dislocation. Dr. Strouse opined that appellant did not have any current disability related to a
dislocated cervical vertebra. He stated that she was unable to perform her regular letter carrier
work duties which required her to lift up to 70 pounds. Dr. Strouse stated that she could work
full time with restrictions which included lifting no more than 20 pounds. He stated that the
restriction was related to her cervical fusion which was due to her nonwork-related degenerative
cervical condition.
By letter dated February 26, 2007, the Office issued a notice of proposed termination of
medical benefits based on Dr. Strouse’s January 15, 2007 medical opinion. It provided 30 days
in which appellant could respond.
By letter dated February 21, 2007, appellant, through her attorney, requested that the
Office accept a bilateral shoulder condition. She submitted a January 26, 2007 report of
Dr. Steven B. Cohen, an attending Board-certified anesthesiologist and pain specialist, who
stated that her bilateral periscapular pain was work related.

2

In a February 27, 2007 letter, the Office requested that Dr. Cohen provide a rationalized
medical report explaining how appellant’s bilateral shoulder condition was caused or aggravated
by her employment.
The Office received a May 31, 2006 report of Dr. D. Greg Anderson, a Board-certified
orthopedic surgeon, who reviewed a history of appellant’s hand, neck, shoulder and arm
symptoms and her medical treatment. Dr. Anderson conducted a physical examination and
reviewed the results of imaging studies. He stated that appellant sustained congenital spinal
stenosis with severe cord compression at C4-5, moderately severe cord compression at C5-6 and
loss of lordosis and mild frank kyphosis in the mid-cervical region.
In a December 8, 2006 report, Dr. Cohen reviewed a history of appellant’s bilateral
shoulder and cervical problems beginning in February 2005. He reported essentially normal
findings on physical examination with the exception of decreased range of motion of the neck
secondary to surgery which was performed in June 2006. Dr. Cohen stated that a May 2005
MRI scan of the shoulder demonstrated rotator cuff tendinitis and possibly a partial tear on the
left side. He diagnosed appellant as having bilateral shoulder pain secondary to periscapular
pain that was less likely impingement.
By letter dated March 26, 2007, appellant, through counsel, disagreed with the Office’s
proposed termination action contending that Dr. Strouse’s January 15, 2007 report was
insufficient to establish that she no longer had any employment-related residuals. He also
contended that her bilateral shoulder and carpal tunnel syndrome conditions were caused or
aggravated by her work duties as a letter carrier.
In a decision dated April 6, 2007, the Office terminated appellant’s medical benefits with
regard to her accepted cervical condition effective April 4, 2007. It also denied her claim for
bilateral shoulder and carpal tunnel syndrome conditions and spinal stenosis. The Office found
that appellant did not submit sufficient evidence to establish that her work caused her claimed
medical conditions.
By letter dated April 17, 2007, appellant, through counsel, requested an oral hearing
before an Office hearing representative. She submitted Dr. Cohen’s August 2, 2007 addendum
to his June 22, 2007 report. Dr. Cohen stated that appellant’s conditions were not just a result of
carrying a mail sack but by her duties as a mail carrier, especially repetitive motion of the
shoulder. He stated that appellant had bilateral periscapular pain and impingement-type pain in
the right shoulder greater than the left. Dr. Cohen stated that it was difficult to discern whether
this was a result of carrying a mail sack over a long period of time. A July 20, 2007 MRI scan of
appellant’s right shoulder performed by Dr. Lawrence N. Tanenbaum, a Board-certified
radiologist, demonstrated impingement. Dr. Tanenbaum found no evidence of a rotator cuff or
labral tear.
At the August 8, 2007 hearing, appellant testified about her work duties as a letter carrier.
She stated that she cased mail, which involved carrying trays containing thousands of pieces of
mail that she put into individual slots on four shelves three to four hours in the morning. This
task required bending, reaching above her shoulders and lifting trays that weighed about 40
pounds. After casing the mail, she had to load it into a hamper and roll it out to the parking lot

3

and load it into her truck. Appellant stated that she made about 350 deliveries per day.
Depending on her route, she was required to take bundles of mail in her arm and walk from
house to house and up stairs or drive from house to house which involved twisting to get the tray
of mail and to get out of the truck.
By decision dated October 22, 2007, the hearing representative affirmed the April 6, 2007
decision. She found the evidence submitted by appellant insufficient to outweigh Dr. Strouse’s
January 15, 2007 medical opinion or to establish that her bilateral shoulder and carpal tunnel
syndrome conditions and spinal stenosis were causally related to her federal employment.
LEGAL PRECEDENT -- ISSUE 1
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability. To terminate authorization for medical treatment, the Office must
establish that the employee no longer has residuals of an employment-related condition, which
require further medical treatment.1
ANALYSIS -- ISSUE 1
The Board finds that the Office met its burden of proof to terminate appellant’s medical
benefits based on the opinion of Dr. Strouse, an Office referral physician, who reviewed a history
of appellant’s employment-related cervical vertebral subluxation at C5-6. Dr. Strouse reported
essentially normal physical examination findings and stated that she sustained cervical
degenerative disc disease, tendinitis in the right and left shoulders and mild bilateral carpal
tunnel syndrome. He opined that these conditions were not work related. Dr. Strouse explained
that the cervical degenerative disc disease occurred slowly over the years. He stated that her
tendinitis could have been aggravated by appellant’s employment but had resolved as he found
no evidence of any active condition in either shoulder. Dr. Strouse found no objective findings
of residual tendinitis, inflammation or rotator cuff tear. He stated that no treatment was
necessary for either appellant’s shoulders or carpal tunnel syndrome. Dr. Strouse related that
there was no evidence that she dislocated her cervical spine as a May 19, 2005 MRI scan did not
mention any type of cervical dislocation. He opined that appellant did not have any current
disability related to a dislocated cervical vertebra. Dr. Strouse stated that, although she could not
perform her regular work duties as a letter carrier, she could work full time with restrictions
which included lifting no more than 20 pounds. He stated that this restriction was related to
appellant’s cervical fusion which was due to her nonwork-related degenerative cervical
condition.
The weight of the medical opinion is determined by the opportunity for and thoroughness
of examination, the accuracy and completeness of physician’s knowledge of the facts of the case,
the medical history provided, the care of analysis manifested and the medical rationale expressed
in support of stated conclusions.2 Dr. Strouse fully discussed the history of injury and explained
that there were no objective findings to establish that appellant had any residuals due to her
1

T.P., 58 ECAB ___ (Docket No. 07-60, issued May 10, 2007); John F. Glynn, 53 ECAB 562 (2002).

2

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

4

accepted cervical vertebral subluxation at C5-6. For this reason, his report constitutes the weight
of the medical opinion evidence.
Dr. Cohen’s December 8, 2006 and January 26, 2007 reports stated that appellant
sustained bilateral periscapular pain. He opined that the diagnosed condition was work related.
A physician’s mere diagnosis of pain, without more by way of an explanation, does not
constitute a basis for payment of compensation.3 Dr. Cohen did not provide any medical
rationale explaining how or why appellant’s conditions were caused by her accepted
employment-related injury.4 The Board finds that his reports are insufficient to overcome the
weight accorded to Dr. Strouse’s medical opinion.
Dr. Anderson’s May 31, 2006 report stated that appellant sustained congenital spinal
stenosis with severe cord compression at C4-5, moderately severe cord compression at C5-6 and
loss of lordosis and mild frank kyphosis in the mid-cervical region based on his essentially
normal findings on physical examination and review of diagnostic test results. Dr. Anderson did
not address the causal relationship between the diagnosed conditions and appellant’s accepted
employment injury. The Board finds that his report is insufficient to overcome the weight
accorded to Dr. Strouse’s medical opinion.
LEGAL PRECEDENT -- ISSUE 2
As the Office met its burden of proof to terminate appellant’s compensation (medical)
benefits, the burden shifted to her to establish that she had any disability or residuals causally
related to her accepted injury.5 To establish a causal relationship between the condition, as well
as any attendant disability claimed and the employment injury, an employee must submit
rationalized medical evidence, based on a complete factual and medical background, supporting
such a causal relationship.6 Causal relationship is a medical issue and the medical evidence
required to establish a causal relationship is rationalized medical evidence.7 Rationalized
medical evidence is medical evidence which includes a physician’s rationalized medical opinion
on the issue of whether there is a causal relationship between the claimant’s diagnosed condition
and the implicated employment factors. The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.8

3

Robert Broome, 55 ECAB 493 (2004).

4

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

5

See Manuel Gill, 52 ECAB 282 (2001).

6

Id.

7

Elizabeth Stanislav, 49 ECAB 540 (1998).

8

Leslie C. Moore, 52 ECAB 132 (2000); Victor J. Woodhams, 41 ECAB 345 (1989).

5

ANALYSIS -- ISSUE 2
Dr. Cohen’s June 22 and August 2, 2007 reports stated that appellant had bilateral
periscapular and impingement-type pain in the right shoulder greater than the left. He stated that
it was difficult to discern whether this was a result of carrying a mail sack over a long period of
time. Dr. Cohen advised that appellant’s conditions were not just a result of carrying a mail sack
but due to all her duties as a mail carrier, especially with repetitive motion of the shoulder. As
stated, a diagnosis of pain without an explanation is insufficient to establish a claim for
compensation.9 Dr. Cohen did not provide sufficient medical rationale explaining how or why
appellant’s diagnosed conditions were caused by her federal duties as a letter carrier.10
Dr. Tanenbaum’s July 20, 2007 MRI scan demonstrated impingement of appellant’s right
shoulder. He stated that there was no evidence of a rotator cuff or labral tear. Dr. Tanenbaum
did address whether appellant had any continuing residuals causally related to her accepted
employment injury. The Board finds that his report is insufficient to establish appellant’s burden
of proof.
The Board finds that appellant did not submit the necessary rationalized medical evidence
to substantiate that the claimed continuing residuals on or after April 4, 2007 were causally
related to her employment-related cervical vertebral subluxation at C5-6.
LEGAL PRECEDENT -- ISSUE 3
An employee seeking benefits under the Federal Employees’ Compensation Act11 has the
burden of establishing the essential elements of her claim including the fact that the individual is
an “employee of the United States” within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.12 These are the essential
elements of each compensation claim regardless of whether the claim is predicated upon a
traumatic injury or an occupational disease.13
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
9

Robert Broome, supra note 3.

10

Jimmie H. Duckett, supra note 4.

11

5 U.S.C. §§ 8101-8193.

12

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

13

See Delores C. Ellyett, 41 ECAB 992, 994 (1990); Ruthie M. Evans, 41 ECAB 416, 423-25 (1990).

6

which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish a causal relationship is rationalized medical opinion
evidence. Rationalized medical opinion evidence is medical evidence, which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.14 Neither the fact that appellant’s condition became apparent during a
period of employment nor her belief that the condition was caused by her employment is
sufficient to establish a causal relationship.15
ANALYSIS -- ISSUE 3
Appellant alleged that she sustained bilateral shoulder and carpal tunnel syndrome
conditions, spinal stenosis, and disc bulge due to her work duties as a letter carrier for the
employing establishment. She described her work duties carrying trays containing thousands of
pieces of mail that she put into individual slots on four shelves three to four hours in the
morning. After casing the mail, appellant had to load it into a hamper and roll it out to the
parking lot and load it into her truck. She stated that she made approximately 350 deliveries per
day and depending on her route, she was required to take bundles of mail in her arm and walk
from house to house and up stairs, which involved twisting to get the tray of mail and to get out
of the truck. The employing establishment has not submitted any contrary evidence regarding
appellant’s work duties. The Board finds that appellant performed work which required her to
carry, lift, reach above the shoulder, walk and twist during the course of her employment.
The Board finds, however, that appellant did not submit sufficient medical evidence to
establish that her bilateral shoulder and carpal tunnel syndrome conditions, spinal stenosis and
disc bulge were caused by the accepted employment factors. As noted, Dr. Cohen diagnosed
appellant as having bilateral shoulder pain secondary to periscapular and impingement pain. He
stated that her conditions were not caused just by carrying a mail sack but by all of her duties
which required repetitive motion of the shoulders. Dr. Cohen, however, failed to provide
adequate medical rationale explaining how appellant’s conditions were caused or aggravated by
the accepted employment factors.16 The Board finds that his reports are insufficient to establish
appellant’s claim.17
Dr. Anderson opined that appellant sustained congenital spinal stenosis with severe cord
compression at C4-5, moderately severe cord compression at C5-6 and loss of lordosis and mild
frank kyphosis in the mid-cervical region based on his essentially normal findings on physical
14

Victor J. Woodhams, supra note 8.

15

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

16

Robert Broome, supra note 3.

17

Jimmie H. Duckett, supra note 4.

7

examination and review of diagnostic test results. He did not address whether the diagnosed
conditions were causally related to appellant’s accepted employment factors.
Appellant has not submitted rationalized medical evidence establishing that she sustained
bilateral shoulder and carpal tunnel syndrome conditions, spinal stenosis and disc bulge causally
related to the accepted factors of her employment. She has failed to meet her burden of proof.
CONCLUSION
The Board finds that the Office properly terminated appellant’s medical benefits effective
April 4, 2007 on the grounds that she no longer had any residuals causally related to her accepted
employment-related injury. The Board further finds that appellant failed to establish that she had
any continuing employment-related residuals after April 4, 2007. The Board finds that appellant
failed to establish that she sustained bilateral shoulder and carpal tunnel syndrome conditions
while in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the October 22 and April 6, 2007 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: October 17, 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Nashville, TN, Employer
__________________________________________

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

Docket No. 10-296
Issued: November 4, 2010

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 November 6, 2009 appellant filed a timely appeal from the October 8, 2009 merit
decision of the Office of Workers’ Compensation Programs denying her recurrence of disability
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
recurrence of total disability commencing August 9, 2009 due to her June 11, 2002 employment
injury.
FACTUAL HISTORY
The Office accepted that on June 11, 2002 appellant, then a 36-year-old mail handler,
sustained left shoulder and upper arm sprains due to lifting heavy sacks and boxes of mail at
work.1 In a June 21, 2002 work restrictions form, an attending physician with an illegible
1

Appellant’s regular job as a mail handler required her to lift up to 70 pounds.

signature indicated that appellant could intermittently lift 20 pounds, but that she could not push,
pull or reach above her left shoulder with her left arm.
Appellant began working in a limited-duty mail handler position about two weeks after
her accident. The job involved patching mail and was designed to be within the work restrictions
recommended by her physicians. Appellant was restricted from lifting more than 20 pounds. In
July 2008 she began working in a full-time position which required lifting up to 50 pounds for up
to seven hours per day, sitting for up to seven hours per day and walking for up to seven hours
per day.
In an August 6, 2008 report, Dr. Michael Tew, an attending Board-certified orthopedic
surgeon, noted that appellant reported pain in the back of her neck, shoulders, trapezius areas and
sometimes in her entire arms.2 On examination, appellant had tenderness and trigger points in
her trapezius and parascapular muscles on both sides, but that she had no tenderness “about the
left or right shoulder.” She had satisfactory range of motion of her neck and excellent range of
motion of her shoulders. Appellant’s rotator cuff strength was excellent bilaterally, active
compression and labral shear tests were negative, and she had no pain in the abducted and
externally-rotated positions bilaterally. Subscapularis tests were all negative, no glenohumeral
or subacromial crepitus was present and neurovascular examination was grossly intact. Dr. Tew
noted that x-rays of appellant’s shoulders showed no abnormality aside from some mild
degenerative change in the acromioclavicular joints. He diagnosed chronic myofascial pain in
her neck and shoulders and indicated that he had nothing further to offer her from a treatment
standpoint.
Dr. Tew referred appellant to Dr. Steven Musick, an osteopath Board-certified in physical
medicine and rehabilitation. On December 17, 2008 Dr. Musick advised that appellant primarily
complained of neck pain but also had bilateral shoulder and upper arm pain. He noted on
examination that she exhibited full range of motion of her shoulders, no obvious myospasm and
normal neurological findings in her extremities, but had mild tenderness in her cervical midline
posteriorly and mild myofascial soft tissue tenderness in her bilateral upper trapezius and medial
superior scapular border. In the diagnosis portion of his report, Dr. Musick stated, “Overall,
symptom complex is compatible with chronic myofascial pain disorder to the cervical and
scapulothoracic region…. Shoulder pain bilaterally, likely related to myofascial pain diagnosis.”
In July 2009 he noted that a magnetic resonance imaging (MRI) scan testing from March 2009
showed degenerative disc bulging between C3 and C5 and stated that appellant’s cervical
stenosis was not obviously related to her work.
On August 5, 2009 Dr. Musick noted that appellant reported increased pain across her
posterior upper back and trapezius region, greater on the left than on the right. He listed in the
diagnosis portion of his report, “Nonwork[-]related diagnosis of C4-5 disc herniation slightly
indenting in the cord without cord signal changes and without clinical myelopathy. [Appellant]
does have moderate left and right neuroforaminal stenosis.” Dr. Musick stated that appellant had
previously reported right greater than left trapezius pain and posited that the current symptoms
“would make you think that the left C4-5 disc herniation at C5 nerve root narrowing may be
2

Dr. Tew stated that another physician had diagnosed bilateral carpal tunnel syndrome and that appellant had two
carpal tunnel surgeries on the left arm and one on the right arm.

2

caus[ing] some of her left trapezius [pain] out to the shoulder pain.” He found that appellant
could not lift, push or pull more than 20 pounds or engage in overhead work and stated that she
should “limit her standing to 1 hour with 5 to 10 minute rest break with sitting work activities.”
Appellant stopped work on August 9, 2009 and filed a claim alleging a recurrence of total
disability commencing that day due to her June 11, 2002 employment injury. On August 25,
2009 the Office requested that she submit additional factual and medical evidence in support of
her claim.
In a September 1, 2009 statement, appellant asserted that she was sent home on August 9,
2009 by Larry Hutchinson, a supervisor, due to a new policy which had been in effect for six
months. She did not want to have to work beyond the work restrictions recommended by her
attending physician.3
The Office asked the employing establishment to provide information about appellant’s
work stoppage on August 9, 2009 and her claim that it was caused by a new policy. In an
October 5, 2009 letter, Linda Melton, a supervisor of distribution operations, stated that in
July 2008 appellant began working in a full-time position which required lifting up to 50 pounds
for up to seven hours per day, sitting for up to seven hours per day and walking for up to seven
hours per day. On August 9, 2009 appellant handed her work restrictions which included new
restrictions such as not performing overhead work and not lifting, pushing or pulling more than
20 pounds. Ms. Melton noted that these limitations were more restrictive than those previously
recommended and that she consulted with Mr. Hutchison about the matter. Appellant responded
in the affirmative when asked if she was filing a “new claim.” Ms. Melton stated that no less
restrictive limited-duty work was available for appellant.
In a September 4, 2009 form report, Dr. Musick stated that appellant should not lift, push
or pull more than 20 pounds or engage in overhead lifting. The record contains a fax sheet
transmitted on September 28, 2009 from Dr. Musick’s office. The unsigned sheet contains the
notation, “Per Dr. Musick no forklift driving, may worsen neck pain.” In a September 24, 2009
statement, Daniel Crabtree, a union steward, stated that he had not received notice of the “policy
change” mentioned by appellant.4
In an October 8, 2009 decision, the Office denied appellant’s claim on the grounds that
she did not submit sufficient evidence to establish that she sustained a recurrence of total
disability commencing August 9, 2009 due to her June 11, 2002 employment injury.
LEGAL PRECEDENT
When an employee, who is disabled from the job she held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
3

Appellant also telephoned the Office on August 25, 2009 and advised that she was sent home because the
employer had no work within her restrictions.
4

The Office spoke to Mr. Hutchinson on October 8, 2009 and noted that he denied advising appellant of any
“new policy” as alleged.

3

establishes that she can perform the light-duty position, the employee has the burden to establish
by the weight of the reliable, probative and substantial evidence a recurrence of total disability
and show that she cannot perform such light duty. As part of this burden the employee must
show a change in the nature and extent of the injury-related condition or a change in the nature
and extent of the light-duty job requirements.5
ANALYSIS
The Office accepted that on June 11, 2002 appellant sustained left shoulder and upper
arm sprains due to lifting heavy sacks and boxes of mail at work. In July 2008 appellant began
working in a full-time position which required lifting up to 50 pounds for up to seven hours per
day, sitting for up to seven hours per day and walking for up to seven hours per day. She
stopped work on August 9, 2009 and filed a claim alleging that she sustained a recurrence of
total disability commencing August 9, 2009 due to her June 11, 2002 employment injury.
The Board finds that appellant did not submit sufficient evidence to establish that she
sustained a recurrence of total disability commencing August 9, 2009 due to her June 11, 2002
employment injury.
Appellant claimed that on August 9, 2009 the employing establishment sent her home
because it no longer had work available for her within her work restrictions. The employing
establishment advised that the same modified duties appellant had performed since July 2008
remained available to her and that she had not shown that the newly presented work restrictions
were necessitated by her employment-related medical condition. The Board finds that appellant
has not submitted sufficient medical evidence to establish a change in the nature and extent of
her light-duty job requirements such that she sustained a recurrence of total disability
commencing August 9, 2009.
In an August 5, 2009 report, Dr. Musick, an attending osteopath Board-certified in
physical medicine and rehabilitation, advised that appellant reported increased pain across her
posterior upper back and trapezius region, greater on the left than on the right and reported
findings on physical examination. He noted in the diagnosis portion of his report, “Nonwork[-]
related diagnosis of C4-5 disc herniation slightly indenting in the cord without cord signal
changes and without clinical myelopathy. [Appellant] does have moderate left and right
neuroforaminal stenosis.” Dr. Musick indicated that this nonwork cervical condition might be
causing her left trapezius and left shoulder pain. He found that appellant could not lift, push or
pull more than 20 pounds or engage in overhead work and stated that she should “limit her
standing to 1 hour with 5 to 10 minute rest break with sitting work activities.”
Dr. Musick did not provide any opinion that appellant’s need for greater work restrictions
was necessitated by residuals of her June 11, 2002 work injury. He did not address whether the
medical conditions related to her June 11, 2002 work injury had worsened to the point that she
could not perform her modified work duties. In fact, Dr. Musick suggested that appellant needed
greater work restrictions due to a nonwork-related cervical condition. He did not discuss
appellant’s June 11, 2002 work injury in any detail or explain how it caused total disability on or
5

Cynthia M. Judd, 42 ECAB 246, 250 (1990); Terry R. Hedman, 38 ECAB 222, 227 (1986).

4

after August 9, 2009 as alleged.6 It should be noted that the record lacks bridging medical
evidence for a period of about six years between mid 2002 and mid 2008 and appellant did not
submit a rationalized medical report linking the June 11, 2002 injury to disability on or after
August 9, 2009. Therefore, appellant has not shown a change in the nature and extent of her
injury-related condition.
On appeal appellant argued that the Office denied her due process because it
characterized her claim as a “new recurrence.” However, she has not identified any new work
factors as causing a new injury and her claim was appropriately characterized as a claim for a
recurrence of total disability commencing August 9, 2009 due to her June 11, 2002 employment
injury.7
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a recurrence of total disability commencing August 9, 2009 due to her June 11, 2002
employment injury.

6

In a September 4, 2009 form report, Dr. Musick stated that appellant should not lift, push or pull more than 20
pounds or engage in overhead lifting. He did not indicate what condition necessitated these work restrictions. The
record contains a fax sheet transmitted on September 28, 2009 from Dr. Musick’s office which contains the notation,
“Per Dr. Musick no forklift driving, may worsen neck pain.” However, the document is not signed and does not
contain any further detail.
7

In her October 5, 2009 letter, Ms. Melton, a supervisor, noted that appellant responded in the affirmative when
asked if she was filing a “new claim,” but she did not indicate that appellant provided any additional details about
the nature of such a “new claim.” On appeal appellant also claimed that the Office engaged in willful omission of
documents, but she did not adequately explain what particular documents were omitted when the Office considered
her claim. She repeated the assertion that her employer stopped providing appropriate work on August 9, 2009 but
she did not provide any additional support for this argument.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 8, 2009 is affirmed.
Issued: November 4, 2010
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Orleans, LA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 13-1008
Issued: November 26, 2013

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On March 19, 2013 appellant filed a timely appeal from a September 20, 2012 Office of
Workers’ Compensation Programs’ (OWCP) decision which denied her reconsideration request
on the grounds that it was untimely filed and failed to present clear evidence of error. The
appeal was docketed as number 13-1008.
In this case, in a decision dated June 27, 2011, OWCP granted appellant a schedule award
for two percent additional impairment for the right arm and zero percent impairment for the left
arm. Appellant subsequently requested reconsideration in an appeal request form dated June 22,
2012 and submitted additional medical evidence. The postmark on the envelope containing the
request in the record was illegible. In a September 20, 2012 decision, OWCP denied appellant’s
request for reconsideration finding that it was not timely filed and failed to present clear
evidence of error.
The Board finds that appellant’s request for reconsideration was timely. Section
10.607(a) of the implementing regulations provide that an application for reconsideration must
be received within one year of the date of OWCP decision for which review is sought.1 The
Board notes that this became effective August 29, 2011. For decisions issued on or after June 1,
1987 through August 28, 2011, there is still a one-year time limit for requesting reconsideration.
OWCP procedures provide that the application for reconsideration must be mailed to OWCP
1

20 C.F.R. § 10.607(a).

within one year of the date of OWCP’s decision for which review is sought,2 as determined by
the postmark on the envelope, if available. Otherwise the date of the letter should be used.3 In
this case, the postmark on the envelope containing the reconsideration request is illegible. The
Board notes that the last merit decision was dated June 27, 2011 and appellant’s request for
reconsideration was dated June 22, 2012, within one year from the June 27, 2011 merit decision.
The Board finds that OWCP improperly reviewed the evidence under section 8128 and the clear
evidence of error standard. As appellant made a timely request for reconsideration of the last
merit decision, which was dated June 27, 2011, OWCP should have reviewed her request under
the standard for a timely request, as opposed to the standard for untimely requests.4
The Board will set aside OWCP’s September 20, 2012 decision and remand the case for
an appropriate final decision on appellant’s claim under 5 U.S.C. § 8128(a).
IT IS HEREBY ORDERED THAT the September 20, 2012 decision is set aside and
remanded.
Issued: November 26, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

2

FECA Procedure Manual, Part 2 -- Reconsiderations, Time limitations, Chapter 2.1602.4(e) (October 2011).

3

Id. OWCP procedures require that an imaged copy of the envelope that enclosed the request for reconsideration
should be in the case record. If there is no postmark, or it is not legible, other evidence such as a certified mail
receipt, a certificate of service and affidavits may be used to establish the mailing date. In the absence of such
evidence, the date of the letter itself should be used. Jack D. Johnson, 57 ECAB 593 (2006).
4

Section 10.607(b) states that OWCP will consider an untimely application for reconsideration only if it
demonstrates clear evidence of error by OWCP in its most recent merit decision. The reconsideration request must
establish that OWCP’s decision was, on its face, erroneous. 20 C.F.R. § 10.607(b).

2