United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Newark, NJ, Employer
__________________________________________

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

Docket No. 08-2450
Issued: August 24, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On September 15, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decisions dated July 28 and February 5, 2008 denying
modification of a March 22, 2007 decision terminating his compensation benefits. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s wage-loss benefits
effective March 31, 2004 and medical benefits effective October 3, 2006; and (2) whether
appellant met his burden of proof to establish that he had any continuing residuals or disability
causally related to his November 2, 2000 employment injury after his benefits were terminated.
FACTUAL HISTORY
On November 2, 2000 appellant, a 44-year-old truck driver, pulled his back and felt a
pain down his leg from pulling relay sacks. He stopped work on the date of injury and worked
intermittently. The Office accepted the claim for a low back strain and paid appropriate benefits.
Appellant was accepted into the supervisory training program and spent February through

May 2001 in school. In June 2001, he began working as a customer service supervisor. The
Office accepted recurrences of disability on January 8 and June 18, 2003 and paid appropriate
benefits. Appellant was eventually placed on the periodic compensation rolls.
In an October 1, 2003 report, Dr. Gerrard Ferrer, a Board-certified neurologist, stated
that, barring any contrary indication by appellant’s orthopedic surgeons appellant could return to
work on November 3, 2003 without restrictions. He also completed a work restriction report
releasing appellant to full duty on November 3, 2003. In an October 28, 2003 report, Dr. Ferrer
noted that appellant’s orthopedic surgeons advised that his symptoms were not orthopedic in
etiology and thus appellant had no restrictions. He reported that appellant continued to have low
back pain complaints. Physical examination demonstrated no palpable tenderness or muscle
spasms. Range of motion was good although hesitancy was noted by appellant due to subjective
pain complaints. Dr. Ferrer diagnosed chronic low back pain of unclear etiology. He explained
that there was no clear neurological reason for appellant’s complaints, concluded there was no
reason for him to be disabled and opined that he could work. On November 14, 2003 Dr. Ferrer
reported that diagnostic testing did not show any objective neurologic or orthopedic basis for
appellant’s subjective complaints. He noted referring appellant to Dr. Jay Tendler, a Boardcertified anesthesiologist, for pain management.
On November 4, 2003 Dr. Tendler noted appellant’s complaints of constant dull pain.
Physical examination findings demonstrated normal strength, limited extension due to pain, and
paraspinal tenderness and muscle spasm. He diagnosed a “pseudo addition” and mechanical
back pain. Dr. Tendler opined that appellant was totally disabled. He requested authorization to
perform caudal trigger injections. On November 24, 2003 the Office notified Dr. Tendler that
the requested injections were not authorized as the medical evidence did not support a
neurological or orthopedic condition or need for the treatment.
In a November 13, 2003 report, Dr. Paul Hriso, a psychiatrist, advised that appellant’s
depression and inability to function as before was directly related to his low back injury. On
February 12, 2004 appellant underwent a computerized tomography (CT) discogram, which
showed probable left lateral disc bulging at L5-S1, facet arthrosis at L4-5 and L5-S1 with
foraminal narrowing on the left at L5-S1 and a small left central disc herniation at L5-S1.
The Office referred appellant to Dr. David Rubinfeld, a Board-certified orthopedic
surgeon, for a second opinion. In a March 6, 2004 report, Dr. Rubinfeld reviewed appellant’s
history and noted that he advised that back surgery was pending. Cervical spine and
thoracolumbar spine examination showed normal range of motion with no tenderness upon
palpation and no spasm. Straight leg raising was 85 degrees bilaterally in the supine and sitting
positions. Motor strength was normal in the upper and lower extremities and deep tendon
reflexes and sensation were also intact in the upper and lower extremities. Dr. Rubinfeld
diagnosed degenerative arthritis of the lumbar spine. He opined that appellant had fully
recovered from the November 2, 2000 work injury and was able to return to his work as a
customer service supervisor without restriction. Dr. Rubinfeld further opined that no injections
were required. He also completed an OWCP-5c work capacity evaluation.

2

In a March 31, 2004 decision, the Office terminated appellant’s wage-loss and medical
benefits based on the opinion of Dr. Rubinfeld. Appellant requested an oral hearing which was
held November 30, 2004.
Appellant submitted several medical reports. In a February 27, 2004 report, Dr. Ferrer
noted that a discogram showed an inflamed disc at L3-4. He also referred appellant to
Dr. Ramesh Babu, a neurosurgeon. On March 9, 2004 Dr. Babu noted appellant’s 2000 workrelated back injury and an examination, he reported severe bilateral lumbar spasm, a bilateral
straight leg raising test positive at 40 degrees and complaints of severe back pain. He opined that
appellant should have lumbar spine surgery based on the positive discogram and significant back
pain. Dr. Babu opined that appellant’s current condition was caused by his work injury. In an
April 20, 2004 report, Dr. Tendler noted treating appellant for low back pain due to his
November 2, 2000 work injury. He advised that treatment and medication had not provided
long-term pain relief for appellant and that he was awaiting surgery for L4-5 fusion. On June 17,
2004 Dr. Tendler explained that appellant’s pain complaints were consistent with a normal
physical examination, normal electromyogram (EMG) and a magnetic resonance imaging (MRI)
scan. He stated a discography was diagnostic of appellant’s condition. Dr. Tendler opined that
appellant’s pain was related to disc pathology sustained while lifting at work. He additionally
stated a disc fusion was the most effective treatment for this type of pain.
On July 19, 2005 an Office hearing representative set aside the Office’s March 31, 2004
decision and remanded the case to the Office. The hearing representative found a medical
conflict between Dr. Babu, for appellant, and Dr. Rubinfeld, the second opinion physician,
regarding continuing residuals of the work injury. The Office was directed to obtain medical
evidence from appellant’s physicians from 2001 to 2002, update the statement of accepted facts
and refer him to an impartial specialist to resolve the medical conflict.
The Office undertook additional development as directed. The medical records for 2001
and 2002 consisted of brief handwritten notes of office visits and pharmacy records. The Office
referred appellant to Dr. Iqbal Ahmad, a Board-certified orthopedic surgeon, for a second
opinion.1 In an October 25, 2005 report, Dr. Ahmad reviewed appellant’s history and noted
examination findings. He diagnosed lumbar strain and prior degenerative changes of the spine.
Dr. Ahmad opined that appellant had a lumbar sprain on November 2, 2000 and there was no
evidence that this injury aggravated his preexisting degenerative changes in the lumbar spine.
He noted that physical examination did not reveal any significant abnormalities and opined that
appellant could return to regular-duty work with no need for further treatment. A work capacity
evaluation was submitted.
On November 23, 2005 the Office terminated appellant’s medical benefits finding that
Dr. Ahmad’s reports established that he no longer had residuals of the accepted injury.
Appellant disagreed with the decision and requested an oral hearing.
On March 15, 2006 an Office hearing representative set aside the November 23, 2005
decision. The hearing representative found an unresolved conflict in medical opinion between
1

An Office memorandum indicated that, as the 2001 and 2002 medical records were not of record at the time of
Dr. Rubinfeld’s examination, appellant should be referred for another second opinion evaluation.

3

Drs. Babu and Ahmad and remanded the case for referral of appellant to an impartial medical
specialist to resolve the conflict on the issue of any continuing medical residuals and disability
related to the accepted condition. The hearing representative found that the Office did not meet
its burden to justify termination of medical benefits and that appellant was entitled to
reinstatement of medical benefits.
On April 5, 2006 appellant filed a Form CA-7 claiming compensation from wage loss
from October 31, 2004 to the present. Subsequent Form CA-7 claims were received along with
additional reports from Dr. Tendler diagnosing discogenic back pain. He also requested
authorization for low back surgery.
The Office referred appellant, together with the case record and a statement of accepted
facts, to Dr. Avrill Berkman, a Board-certified orthopedic surgeon, for an impartial evaluation.
In a June 22, 2006 report, Dr. Berkman reviewed the statement of accepted facts and the history
of appellant’s November 2, 2000 work injury and medical treatment. On examination, he
reported normal gait, severe low back pain at 70 degrees bilaterally, a restriction in lumbar
motion with loss of a normal spinal rhythm, no tenderness or spasm in the lumbar spine and mild
generalized tremors. Dr. Berkman described the results of his examination of the cervical spine,
hips and lower extremities, but noted there may have been incomplete subjective effort with
respect to manual muscle testing. He opined that appellant’s low back strain sustained as a result
of the November 2, 2000 work injury had resolved. Dr. Berkman stated that appellant had
degenerative joint disease of the lumbar spine and his subjective pain was secondary to nonworkrelated degenerative changes. He stated that appellant’s degenerative arthritis of the lumbar
spine would have been symptomatic and progressive in response to ordinary, everyday activities
and independent of the work injury. Dr. Berkman stated that the February 12, 2004
computerized tomography (CT) scan discogram supported such conclusion as disc bulging,
degenerative joint disease and arthritis with facet arthrosis. He advised that these were common
findings expected in conjunction with progressive degenerative joint disease and lumbar spine
arthritis. Dr. Berkman stated that the November 30, 2000 and January 17, 2003 MRI scans of
the lumbar spine also demonstrated that appellant had degenerative joint disease and arthritis of
the lumbar spine unrelated to any injury, including the November 2, 2000 work incident. He
further advised that a diagnosis of discogenic low back pain made with discography was
controversial and advised a definite additional source for severe low back pain was inflammatory
arthritis. Dr. Berkman concluded that appellant required no further medical treatment for any
condition related to the November 2, 2000 work incident and that his subjective complaints of
pain were secondary to the nonwork-related degenerative process. He further opined that any
work restrictions would be attributable to the nonwork-related preexisting degenerative
condition.
By decision dated October 3, 2006, the Office terminated appellant’s entitlement to
medical benefits effective October 2, 2006 on the basis of Dr. Berkman’s impartial medical
opinion and denied authorization for low back surgery. It also found compensation for wage loss
had been properly terminated effective March 21, 2004.2

2

This is typographical error. The date should be March 31, 2004.

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Appellant requested an oral hearing, which was held on February 7, 2007. At the
hearing, his attorney questioned if Dr. Berkman was properly selected to resolve the medical
conflict. Appellant submitted a January 18, 2007 lumbar spine MRI scan report. In a
December 15, 2005 report, Dr. Hriso noted treating him since November 5, 2003. He stated that
appellant had chronic debilitating back pain and chronic depression due to severe back pain and
his inability to be productive.
In a March 22, 2007 letter, an Office hearing representative found the Office properly
terminated appellant’s wage-loss compensation effective March 31, 2004.
The hearing
representative further found that appellant had recovered without residuals from the effects of the
work injury by October 3, 2006 and accorded special weight to Dr. Berkman’s impartial opinion.
The hearing representative found that Dr. Berkman was properly selected as the impartial
medical specialist using the Physician’s Directory System (PDS) and appellant submitted no
probative evidence of bias on the part of Dr. Berkman.
On August 23, 2007 appellant requested reconsideration and informed the Office that he
underwent back surgery on March 22, 2007. Medical reports from Dr. Frank M. Moore, a
Board-certified neurosurgeon, were submitted. In a February 12, 2007 report, he noted
appellant’s history of low back pain with radiation into both legs after initial trauma on
November 2, 2000. Dr. Moore reported appellant’s medical treatment and findings and
diagnosed significant mechanical low back pain. He noted the results of a February 2004
discogram and indicated that appellant was a candidate for a repeat discogram. In a March 5,
2007 report, Dr. Moore noted the results of a February 26, 2007 discogram correlated with the
MRI scan findings of discogenic disease at L4-5 and central bulge at L5-S1. He opined that
appellant was a candidate for lumbar decompression, fusion and instrumentation at L4-5 and L5S1. In a November 14, 2007 report, Dr. Moore noted that appellant was initially evaluated on
February 12, 2007 and discussed his condition before and after the March 22, 2007 back surgery.
He stated that appellant initially injured his back on November 2, 2000 and years of conservative
modalities failed. Dr. Moore stated the discogram was positive and appellant required surgery.
He noted that discography was an accepted form of preoperative evaluation for patients with
mechanical, axial and low back pain. Dr. Moore advised the issue with mechanical low back
pain was one of instability and any prior examinations that failed to demonstrate weakness or
sensory changes would not deter from appellant’s symptoms and a need for surgery. Copies of
the reports relating to appellant’s March 22, 2007 back surgery were submitted.
By decision dated January 9, 2008, the Office denied modification of the prior decision
with respect to the issue of continuing disability.
On January 28, 2008 the Office received a January 14, 2008 report from Dr. Moore, who
opined that appellant’s current low back condition and the March 22, 2007 surgery were related
to his November 2, 2000 work injury.
By decision dated February 5, 2008, the Office reissued its January 9, 2008 decision. By
decision dated April 29, 2008, it denied modification of its prior decisions. The Office
specifically addressed Dr. Moore’s January 14, 2008 report. It reissued the April 29, 2008
decision on July 28, 2008.

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LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.3 After it has determined that an
employee has disability causally related to his federal employment, the Office may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.4 The Office’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.5 The right to
medical benefits for an accepted condition is not limited to the period of entitlement to
compensation for disability.6 To terminate authorization for medical treatment, the Office must
establish that appellant no longer has residuals of an employment-related condition which require
further medical treatment.7
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee of the Secretary shall
appoint a third physician who shall make an examination.8 It is well established that, when a
case is referred to an impartial medical specialist for the purpose of resolving a conflict, the
opinion of such specialist, if sufficiently well rationalized and based on a proper factual and
medical background, must be given special weight.9
A physician selected by the Office to serve as an impartial medical specialist should be
wholly free to make a completely independent evaluation and judgment. To achieve this, the
Office has developed specific procedures for the selection of impartial medical specialists
designed to provide safeguards against any possible appearance that the selected physician’s
opinion is biased or prejudiced. The procedures contemplate that impartial medical specialists
will be selected from Board-certified specialists in the appropriate geographical area on a strict
rotating basis in order to negate any appearance that preferential treatment exists between a
particular physician and the Office.10 The procedures provide that the selection of referee
physicians (impartial medical specialists) is made through a strict rotational system using
appropriate medical directories. The procedure manual provides that the PDS should be used for
this purpose wherever possible.11 The PDS is a set of stand-alone software programs designed to
3

Paul L. Stewart, 54 ECAB 824 (2003).

4

Elsie L. Price, 54 ECAB 734 (2003).

5

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

6

Jaja K. Asaramo, 55 ECAB 200 (2004); Furman G. Peake, 41 ECAB 361 (1990).

7

T.P., 58 ECAB __ (Docket No. 07-60, issued May 10, 2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

8

5 U.S.C. § 8123(a); F.R., 58 ECAB __ (Docket No. 05-15, issued July 10, 2007).

9

Darlene R. Kennedy, 57 ECAB 414 (2006).

10

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4b (May 2003);
See also Willie M. Miller, 53 ECAB 697 (2002).
11

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4b (May 2003).

6

support the scheduling of second opinion and referee examinations. The PDS database of
physicians is obtained from the American Board of Medical Specialties (ABMS) Directory of
Board-certified Medical Specialists which contains the names of physicians who are Boardcertified in certain specialties.12
ANALYSIS -- ISSUE 1
Appellant’s claim for an injury on November 2, 2000 was accepted for a low back strain.
He has been a supervisor customer service since June 2001. Appellant has been off work since
June 18, 2003 and underwent low back surgery on March 22, 2007.
With regard to the issue of termination of compensation for wage-loss benefits, the Office
terminated payment of compensation for wage loss as of March 31, 2004. The record reflects
appellant was placed on the periodic rolls after it accepted his June 18, 2003 recurrence claim.
Dr. Ferrer, appellant’s treating physician, opined that appellant could return to work without
restriction on November 3, 2003. He further noted, in his October 28, 2003 report, that
appellant’s orthopedic surgeons found that his symptoms were not orthopedic in nature and thus
no work restrictions were needed. In his November 4, 2004 report, Dr. Tendler opined that
appellant was totally disabled. While he diagnosed mechanical back pain and provided findings
on examination, he provided no explanation for his opinion that appellant was disabled due to his
back condition or whether appellant’s back condition and disability were due to the November 2,
2000 work injury. It is well established that medical reports must be based on a complete and
accurate factual and medical background, and medical opinions based on an incomplete or
inaccurate history are of little probative value.13 The Board therefore finds that Dr. Tendler’s
report is of limited probative value regarding whether appellant’s disability was causally related
to the November 2, 2000 work injury.14 None of the other reports of record provide an opinion
on whether appellant continued to be totally disabled from the November 2, 2000 work injury.
Dr. Rubinfeld, an Office referral physician, opined that in his March 6, 2004 report, that
appellant had fully recovered from the November 2, 2000 work injury and was able to return to
work as customer service supervisor without restriction. His opinion was based on a complete
and accurate factual and medical background and normal examination findings. While
Dr. Rubinfeld did not have the medical documentation from appellant’s treating physicians for
the period 2001 to 2002, this would not diminish the probative value of his opinion on whether
appellant had any present disability due to the November 2, 2000 work injury. The Office met
its burden of proof to terminate appellant’s wage-loss compensation effective March 31, 2004.
With regard to the termination of medical benefits, the Office terminated these benefits
effective October 3, 2006. The record reflects it originally referred appellant for a second
opinion with Dr. Rubinfeld, who on March 6, 2004, opined that he had fully recovered from the
November 2, 2000 work injury, needed no further medical treatment and could return to work
12

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.7 (May 2003).

13

Douglas M. McQuaid, 52 ECAB 382 (2001).

14

See Leslie C. Moore, 52 ECAB 132 (2000).

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without restrictions. Dr. Babu and Dr. Tendler, appellant’s treating physicians, opined that
appellant continued to have residuals of the work injury and required lumbar spine surgery. In
further developing the claim, the Office referred appellant to Dr. Ahmad for another second
opinion regarding whether he had residuals of the work injury. On October 25, 2005 Dr. Ahmad
opined that appellant had a lumbar strain on November 2, 2000 and there was no evidence that
this injury aggravated his preexisting degenerative changes in the lumbar spine. He found no
significant abnormalities on examination and opined that appellant could work regular duty with
no need for further treatment. As a dispute existed between appellant’s treating physicians and
Dr. Ahmad regarding whether appellant had any continuing residuals of the November 2, 2000
work injury, the Office properly referred his case to Dr. Berkman, for an impartial medical
examination.15
The Board finds that Dr. Berkman, the impartial medical specialist, based his opinion on
a proper factual and medical background. Dr. Berkman was provided with a copy of the case
file, a list of questions and an amended statement of accepted facts. He set forth the results of his
physical examination and opined that the accepted low back strain on November 2, 2000 had
resolved. Dr. Berkman advised that appellant had degenerative joint disease of the lumbar spine
and his subjective pain was due to nonwork-related degenerative changes. He explained that
appellant’s degenerative arthritis of the lumbar spine would have been symptomatic and
progressive independent of the work injury and referenced various objectives testing to support
his conclusion that appellant’s degenerative joint disease and arthritis of the lumbar spine were
unrelated to the November 2, 2000 work injury. Dr. Berkman concluded that appellant required
no further medical treatment for any condition related to the November 2, 2000 injury and that
any work restrictions would be attributable to appellant’s nonwork-related preexisting
degenerative condition.
Dr. Berkman offered a medical opinion that is sound, rational and logical. Because the
opinion of the impartial medical specialist is based on a proper history and is sufficiently
rationalized, the Board finds that it must be accorded special weight in resolving the conflict.
Appellant did not submit sufficient medical evidence to overcome the weight of
Dr. Berkman’s opinion or to create a new conflict. The January 18, 2007 MRI scan of the
lumbar spine contains no opinion on causal relationship and, thus, is insufficient to create a new
conflict. While Dr. Hriso opined that in his December 15, 2005 report that appellant had chronic
debilitating back pain and depression, he offered no opinion on causal relationship. Furthermore,
since he is a psychiatrist and not a specialist of the back, his opinion is of lesser probative value16
and is insufficient to cause a conflict or overcome the weight of Dr. Berkman’s opinion.
As the weight of the medical opinion evidence supports that appellant no longer has any
residuals due to the November 2, 2000 work injury, the Board finds that the Office met its
burden of proof in terminating his medical benefits effective October 3, 2006.

15

Darlene R. Kennedy, 57 ECAB 414 (2006).

16

The opinion of a physician who has special training and knowledge in a specialized medical field has greater
probative value than the opinion of an individual who is not a specialist. See Earl J. Mills, 12 ECAB 462 (1961).

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Appellant’s counsel contends that Dr. Berkman’s report is insufficient to carry special
weight. While he suggests the Office should have sought clarification from Dr. Berkman as to
whether the back condition was aggravated by the work injury, the Board notes that Dr. Berkman
specifically addressed the objective evidence and explained that such evidence failed to
demonstrate that appellant’s preexisting degenerative joint disease and arthritis of the lumbar
spine was related to the November 2, 2000 work injury.
Appellant’s counsel further contends that clarifying information is needed from the
Office regarding the selection of Dr. Berkman from the PDS. It found that Dr. Berkman was
properly selected as the impartial medical specialist from the PDS. On appeal, counsel notes
that Dr. Berkman’s address on the PDS is different than the address listed on Dr. Berkman’s
June 22, 2006 report and questioned whether the physician who wrote the June 22, 2006 report
was the same physician selected on the PDS. While Dr. Berkman’s practice has more than one
address, this is no basis to require clarification from the Office over the selection of him as the
impartial medical examiner. There is no probative evidence that he is not the same physician
selected from the PDS by the Office. Furthermore, counsel submitted no evidence that
Dr. Berkman was biased against appellant.17 He did not object to the selection of Dr. Berkman
prior to his examination or raise any arguments against the selection of Dr. Berkman until the
February 7, 2007 hearing, almost a year after Dr. Berkman was selected. Appellant’s argument
on appeal is insufficient to show that the Office failed to comply with its rotational procedures.
LEGAL PRECEDENT -- ISSUE 2
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation shifts to appellant. In order to
prevail, appellant must establish by the weight of the reliable, probative and substantial evidence
that he had an employment-related disability, which continued after termination of compensation
benefits.18
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
appellant’s diagnosed condition and the implicated employment factors.19 The opinion of the
physician must be based on a complete factual and medical background of appellant, 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 appellant.20

17

An impartial medical specialist properly selected will be presumed unbiased and the party seeking
disqualification bears the substantial burden of proving otherwise. James F. Weikel, 54 ECAB 660 (2003).
18

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008). See Joseph A. Brown, Jr., 55 ECAB 542
(2004); Virginia Davis-Banks, 44 ECAB 389 (1993); Joseph M. Campbell, 34 ECAB 1389 (1983).
19

Kathryn E. Demarsh, 56 ECAB 677 (2005).

20

Bobbie F. Cowart, 55 ECAB 746 (2004); Victor J. Woodhams, 41 ECAB 345 (1989).

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ANALYSIS -- ISSUE 2
The Board finds that appellant has not established that he has any continuing residuals or
disability due to the November 2, 2000 work injury.
On reconsideration, appellant submitted reports from Dr. Moore dated February 12,
March 5 and November 14, 2007 and January 14, 2008. The February 12 and March 5, 2007
reports note examination findings and test results. The November 14, 2007 report discusses the
March 22, 2007 back surgery and notes why appellant needed surgery. The January 14, 2008
report states without any medical rationale or explanation, that appellant’s current back condition
and March 22, 2007 back surgery were related to his November 2, 2000 work injury.
Dr. Moore’s report is limited probative value in that he did not provide a clear opinion
explaining the reasons appellant’s November 2, 2000 low back strain caused or contributed to a
continuing back condition and subsequent surgery. He did not otherwise provide medical
rationale explaining how appellant’s employment could have caused or aggravated his
preexisting degenerative back condition. Dr. Moore’s report is insufficient to establish a
continuing work-related condition or disability and it is insufficient to overcome the report of
Dr. Berkman or to create a new conflict in the medical evidence.
Other medical evidence provided by appellant did not specifically address causal
relationship of his continuing condition and his November 2, 2000 low back strain. Thus, he has
not established that he has any continuing residuals or disability or that the March 22, 2007 back
surgery, were due to the November 2, 2000 work injury.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s wage-loss
benefits effective March 31, 2004 and medical benefits effective October 2, 2006. The Board
further finds that appellant did not establish that he had any continuing residuals or disability of
the November 2, 2000 work injury after his wage-loss and medical benefits were terminated.

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs
decisions dated July 28 and February 5, 2008 are affirmed.
Issued: August 24, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

11


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Columbus, OH, Employer
)
___________________________________________ )
R.M., Appellant

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

Docket No. 08-2403
Issued: June 9, 2009

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 September 3, 2008 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ merit decision dated August 15, 2008, which affirmed the denial of his
occupational disease claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he developed a
neck condition in the performance of duty.
FACTUAL HISTORY
On September 26, 2007 appellant, then a 54-year-old letter carrier, filed an occupational
disease claim alleging that he developed a neck condition as a result of performing his work
duties. He realized his condition was caused by his work on May 23, 2007. Appellant stopped
work on May 8, 2007.

Appellant submitted a statement noting that he experienced symptoms of pain radiating
into both legs and numbness in his arms. He indicated that his neck condition began when he
was in the Air Force from 1970 to 1977. Appellant was involved in a motor vehicle accident and
hit his head on the steering wheel and windshield. He asserted that his neck condition was
aggravated by performing his work duties which included carrying a mailbag up and down steps.
Appellant underwent a cervical fusion in June 2007 but continued to experience numbness in his
wrist, elbows, hips and feet.
The employing establishment controverted the claim, noting that appellant had been off
work since May 10, 2007 and had not provided any documentation to support his claim. The
employer further noted that appellant indicated that his condition did not originate as a result of
his employment and he failed to provide medical documentation to support that his condition
was causally related to his work duties.
In a letter dated November 15, 2007, the Office advised appellant of the factual and
medical evidence needed to establish his claim. It requested that he submit a physician’s
reasoned opinion addressing the relationship of his claimed condition and specific employment
factors.
In an undated statement, appellant asserted that his neck condition was aggravated by
letter carrier duties that included carrying a mailbag weighing 20 to 40 pounds, for 8 to 12 hours
per day. In a May 24, 2007 report, Dr. Gregory Z. Mavian, an osteopath, treated appellant for
cervical dysfunction. He noted appellant’s complaints of gait disturbance, left foot numbness
and balance irregularities were present for a number of years but had progressed during the past
month. Appellant reported no trauma to the neck, was vague about the onset of symptoms and
attributed his condition to a bad knee. Dr. Mavian diagnosed progressive neurologic deficits,
particularly gait disturbance. He noted magnetic resonance imaging (MRI) scan findings of
severe cervical spinal cord compression, disc herniation and protrusion at C6-7 and, to a lesser
extent, at C5-6. In reports dated May 30 to November 27, 2007, Dr. Ying H. Chen, an osteopath,
treated appellant for cervical stenosis. He denied any specific injury to his neck but attributed
his condition to years of lifting and carrying heavy loads of mail at work. Dr. Chen noted a
negative Spurling’s test, intact muscle strength throughout the upper extremities without atrophy,
deep tendon reflexes were brisk and asymmetrical and gait was antalgic and ataxic. He
diagnosed progressive worsening of chronic cervical myelopathy with increasing gait ataxia,
paresthesia, hyperreflexia, spinal cord compression at C6-7 due to large central disc herniation
and smaller disc herniation at C5-6 and recommended surgery. Dr. Chen noted that appellant
was status post anterior cervical discectomy, partial corpectomy, interbody fusion and
instrumentation at C5-6 and C6-7.1 He diagnosed cervical spondylosis with stenosis and cervical
myelopathy. Dr. Chen noted slow improvement of appellant’s symptoms with persistent ataxia,
stumbling, paresthesias and some cervical myalgia symptoms. In a November 14, 2007 duty
status report, he diagnosed cervical spondylosis and noted that appellant was completely
disabled.

1

The operative report for this surgical procedure is not in the record.

2

In a January 25, 2008 decision, the Office denied appellant’s claim on the grounds that
the medical evidence did not establish that his cervical condition was caused by his work duties.
In a letter dated February 10, 2008, appellant requested a telephonic hearing which was
held on May 22, 2008.
In a March 25, 2008 report, Dr. Richard M. Ward, a Board-certified orthopedic surgeon,
saw appellant in consultation for a disability evaluation for his right knee condition. He
diagnosed right knee sprain, right knee internal derangement and right knee medial meniscus
tear. Dr. Ward opined that appellant had 26 percent right leg impairment.
By decision dated August 15, 2008, the hearing representative affirmed the
January 25, 2008 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that the injury was
sustained in the performance of duty as alleged and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury. These are the
essential elements of each and every compensation claim regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.2
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.3

2

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

3

Solomon Polen, 51 ECAB 341 (2000).

3

ANALYSIS
It is not disputed that appellant’s duties as a letter carrier included lifting and carrying a
mailbag. The issue is whether his work activities caused or aggravated his cervical condition.
Appellant has not submitted sufficient medical evidence to establish that his cervical condition
was due to specific employment factors. On November 15, 2007 the Office advised appellant of
the medical evidence needed to establish his claim. Appellant did not submit a rationalized
medical report from a physician addressing how specific employment factors may have caused
or aggravated his cervical condition.
On May 24, 2007 Dr. Mavian treated appellant for cervical dysfunction and diagnosed
progressive neurologic deficits, gait disturbance, severe cervical spinal cord compression, disc
herniation and protrusion at C6-7 and C5-6. He noted that appellant reported no trauma to the
neck and was vague about the onset of his symptoms. Dr. Mavian noted that appellant attributed
his condition to a bad knee. However, he did not provide an opinion addressing how appellant’s
work as a letter carrier caused or aggravated his cervical condition. This report is insufficient to
establish the claim as Dr. Mavian did not provide a history of injury or specifically address how
appellant’s employment activities aggravated his preexisting cervical condition.4
On May 30, 2007 Dr. Chen treated appellant for cervical stenosis. He diagnosed
progressive worsening of chronic cervical myelopathy with increasing gait ataxia, paresthesia,
hyperreflexia, spinal cord compression at C6-7 due to large central disc herniation and smaller
disc herniation at C5-6. Appellant denied any specific injury and attributed his condition to
years of working as a mail carrier and lifting and carrying heavy loads of mail. However,
Dr. Chen merely noted appellant’s work duties without providing an opinion regarding how his
condition was work related. Dr. Chen failed to provide a rationalized opinion explaining how
appellant’s diagnosed cervical condition was caused or aggravated by particular factors of
employment.5 Additionally, he also did not address how the nonemployment factor of
appellant’s automobile accident in the 1970’s might have affected the progression of his cervical
condition. Consequently, the reports from Dr. Chen are insufficient to establish appellant’s
claim.
Appellant also submitted a March 25, 2008 report from Dr. Ward, who provided an
impairment evaluation for a right knee condition.6 However, Dr. Ward did not address
appellant’s claimed cervical condition. Therefore, this report is not relevant to the claim on
appeal and is insufficient to establish appellant’s claim.

4

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006) (medical evidence which does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
5

See Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
6

The Board notes that the Office has not accepted that any medical condition is employment related. A schedule
award can be paid only for a condition related to an employment injury. See Veronica Williams, 56 ECAB
367 (2005).

4

An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that the condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.7 Causal relationships must be established by
rationalized medical opinion evidence. Appellant failed to submit such evidence and the Office
therefore properly denied his claim for compensation.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
developed an employment-related injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the August 15 and January 25, 2008 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: June 9, 2009
Washington, DC

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

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

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

7

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lafayette, LA, Employer
__________________________________________

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

Docket No. 18-0069
Issued: May 9, 2018

Case Submitted on the Record

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

JURISDICTION
On October 11, 2017 appellant filed a timely appeal from a September 1, 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.2
ISSUE
The issue is whether appellant met her burden of proof to establish that her diagnosed
bilateral carpal tunnel syndrome and right cubital tunnel syndrome are causally related to the
accepted factors of her federal employment.

1
2

5 U.S.C. § 8101 et seq.

The record provided to the Board includes evidence received after OWCP issued its September 1, 2017 decision.
The Board’s jurisdiction is limited to the evidence that was in the case record at the time of OWCP’s final decision.
Therefore, the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R.
§ 501.2(c)(1).

FACTUAL HISTORY
On March 7, 2017 appellant, then a 56-year-old city carrier, filed an occupational disease
claim (Form CA-2) for carpal tunnel and cubital tunnel (“ulnar nerve”) syndromes, which she
attributed to her federal employment. She identified March 3, 2017 as the date she first realized
her condition was employment related.
A January 31, 2017 electromyography and nerve conduction velocity (EMG/NCV) study
revealed moderately severe median nerve entrapment across both wrists, and mild ulnar nerve
entrapment across the right elbow.3
By development letter dated March 14, 2017, OWCP informed appellant that she had not
submitted sufficient evidence to support her claim. First, it noted that the diagnostic study was
insufficient to establish a medical condition due to her employment. OWCP advised appellant to
submit a narrative report from her physician, which included a rationalized medical opinion. It
also requested additional information regarding employment factor(s) allegedly responsible for her
claimed condition(s), as well as information regarding any outside activities, and/or prior injuries
to her upper extremities. OWCP afforded appellant 30 days to submit the requested factual and
medical evidence.
By letter dated March 27, 2017, the employing establishment controverted appellant’s
claim, contending that the evidence presented did not demonstrate that her carrier duties caused
her claimed injury/accident. It noted that her physician was still determining the cause of her
condition. The employing establishment also provided a description of appellant’s carrier duties,
which included casing letters/flats, pulling cased mail, and street delivery on her assigned route
(No. 3047).4
On March 31, 2017 OWCP forwarded the employing establishment’s March 27, 2017
letter of controversion to appellant for her review and comments.
In a report dated April 13, 2017, Dr. Charles A. Olivier, a Board-certified orthopedic
surgeon, examined appellant and diagnosed bilateral carpal tunnel syndrome and right cubital
tunnel syndrome (right ulnar nerve lesion).5 He advised her to wear splints. Dr. Oliver also noted
that appellant may need surgical release for carpal tunnel syndrome and right cubital tunnel
syndrome. Additionally, he indicated that her carpal tunnel syndrome and cubital tunnel syndrome
were related to her mail carrier job.
By decision dated May 10, 2017, OWCP denied appellant’s claim. It found that she had
not established the factual component of her claim. Appellant had not provided the requested
information regarding the employment-related activities she believed that either caused or
3

Dr. Michael A. Puente, a Board-certified neurologist, interpreted the January 31, 2017 EMG/NCV testing results.

4

OWCP also received a city carrier position description dated August 15, 2005.

5

Dr. Olivier also diagnosed cervical spondylosis, without myelopathy, or radiculopathy. He noted that appellant
had previously undergone neck surgery after a “[motor vehicle accident] 2007.” Dr. Olivier also noted that she had
undergone additional neck surgery on July 13, 2016.

2

contributed to her condition. OWCP further found that Dr. Olivier’s April 13, 2017 report did not
contain a well-reasoned medical opinion supporting that her diagnosis of carpal tunnel syndrome
was related to duties of her federal employment.
On June 12, 2017 appellant requested reconsideration of OWCP’s May 10, 2017 decision.
In a June 20, 2017 statement, appellant explained that she had worked as a carrier for the
employing establishment for 27 years. Her duties included separating mail flats, casing, mail
delivery, walking, and pulling. Appellant indicated that she had visited a physician to find out
what caused the numbness in her hands and fingers, and was told that she needed surgery on her
neck. She had the surgery, but still felt numbness in her hands and fingers. Appellant noted that
Dr. Olivier had opined that her carpal tunnel syndrome was job related due to the length of time
she had been doing the same type of work.
Appellant resubmitted the January 31, 2017 EMG/NCV study results, as well as
Dr. Olivier’s April 13, 2017 report.
By decision dated September 1, 2017, OWCP evaluated the merits of appellant’s claim and
found that she had established both the factual and medical components of fact of injury. However,
appellant’s claim remained denied because the evidence of record was insufficient to establish that
the diagnosed medical conditions were causally related to the accepted work factors. OWCP
specifically noted that, although Dr. Olivier stated that her medical conditions were related to her
mail carrier job, he did not provide a well-reasoned medical opinion with complete and accurate
history of injury, objective findings, and a medical explanation supporting how the work factors
caused the diagnosed conditions.
LEGAL PRECEDENT
A claimant seeking benefits under FECA6 has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative and substantial evidence,
including that an injury was sustained in the performance of duty as alleged, and that any specific
condition or disability claimed is causally related to the employment injury.7
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) medical evidence establishing the presence or existence
of the disease or condition for which compensation is claimed; (2) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; and (3) medical evidence establishing that the diagnosed condition is causally
related to the identified employment factors.8

6

Supra note 1.

7

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

8

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

3

Causal relationship is a medical question, which generally requires rationalized medical
opinion evidence to resolve the issue.9 A physician’s opinion on whether there is causal
relationship between the diagnosed condition and the implicated employment factors must be
based on a complete factual and medical background.10 Additionally, the physician’s opinion must
be expressed in terms of a reasonable degree of medical certainty, and must be supported by
medical rationale, explaining the nature of the relationship between the diagnosed condition and
appellant’s specific employment factors.11
ANALYSIS
Appellant alleged that she sustained bilateral carpal tunnel syndrome and right cubital
tunnel syndrome due to factors of her federal employment. OWCP denied her claim, finding that
she had not submitted sufficient medical evidence to establish causal relationship. The Board finds
that appellant has not met her burden of proof to establish that her bilateral carpal tunnel syndrome
and right cubital tunnel syndrome were caused or aggravated by factors of her federal employment.
The January 31, 2017 diagnostic EMG/NCV study did not address the cause of the reported
bilateral median nerve and right ulnar nerve abnormalities. Medical evidence that does not offer
an opinion regarding the cause of an employee’s condition is of limited probative value on the
issue of causal relationship.12 Accordingly, the January 31, 2017 EMG/NCV study is insufficient
to satisfy appellant’s burden of proof.
In his April 13, 2017 report, Dr. Olivier diagnosed bilateral carpal tunnel syndrome and
right cubital tunnel syndrome, as well as cervical spondylosis. He opined that appellant’s carpal
tunnel syndrome and cubital tunnel syndrome were “related to her mail carrier job.” However,
Dr. Olivier did not identify the specific employment activities he believed that either caused or
contributed to her diagnosed upper extremity conditions. He also did not provide any rationale for
his expressed opinion that the conditions were “related to [appellant’s] mail carrier job.” As noted,
a physician’s opinion on causal relationship must be based on a complete factual and medical
background, and must be supported by medical rationale, explaining the nature of the relationship
between the diagnosed condition(s) and appellant’s specific employment factors.13 As Dr. Olivier
neither identified her specific employment duties, nor explained how her diagnosed upper
extremity conditions were employment related, his April 13, 2017 report is insufficient to establish
causal relationship.14

9

See Robert G. Morris, 48 ECAB 238 (1996).

10

Supra note 8.

11

Id.

12

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

13

Supra note 8.

14

Id.

4

As appellant has not submitted any rationalized medical evidence to establish causal
relationship, she has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that her
diagnosed bilateral carpal tunnel syndrome and right cubital tunnel syndrome are causally related
to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the September 1, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 9, 2018
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
E.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Coram, NY, Employer
__________________________________________

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

Docket No. 16-0925
Issued: March 3, 2017

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 April 1, 2016, appellant filed a timely appeal from a March 7, 2016 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 has established a recurrence of disability beginning on
December 26, 2012 causally related to her November 26, 2012 injury.
FACTUAL HISTORY
OWCP accepted that on November 26, 2012 appellant, then a 40-year-old, “PSE” clerk,
sustained an injury in the performance of duty when her right wrist was pinned between a cart
1

5 U.S.C. § 8101 et seq.

and support beam. After development, OWCP accepted the claim for contusion of the right
wrist.2 Appellant returned to full-duty work on November 27, 2012.
On January 4, 2013 appellant filed a claim for a recurrence of disability (Form CA-2a)
commencing December 26, 2012. She indicated that she continued to work although her hand
and wrist was swollen and painful. Appellant noted that she saw her physician on December 26,
2012 and she was put off work at that time. She advised that her claim was not a recurrence
because “the pain and swelling never went away. I continued to work because I needed the
money. However, the pain became unbearable.” Appellant argued that there were no other
injuries as her hand had never healed. The employing establishment advised that appellant
returned to work and “appeared to be ok and is now stating that it is not a recurrence, but that it
never got better after the original injury.”
Initial treatment notes, dated November 26, 2012, from Dr. John Paul Blaber, Boardcertified in emergency medicine and an attending physician, revealed that appellant was
diagnosed with a right wrist contusion and no fracture. Dr. Blaber also advised that he had
completed a work release form. A November 26, 2012 right wrist x-ray read by Dr. Douglas
Dougherty, a Board-certified neuroradiologist, was normal.
In a December 21, 2012 report, Dr. Regis Renard, a Board-certified orthopedic surgeon,
noted appellant’s history of injury and treatment, which included a right carpal tunnel release
prior to her injury. He examined the right wrist and diagnosed crushing injury of wrist.
Dr. Renard noted that appellant had pain that was somewhat improved and he would treat her
with a splint; however, she still had significant pain.
In a December 26, 2012 duty status report, a nurse diagnosed right wrist trauma, and
advised that appellant could not work. He explained that appellant was right handed and had
pain, sensitivity, and decreased range of motion in the right wrist. The nurse also provided a
disability certificate of the same date and indicated no work until appellant was evaluated on
January 9, 2013.
In a January 8, 20133 disability certificate, Dr. Hilton C. Adler, a Board-certified plastic
surgeon, advised “due to injury [appellant] cannot work until [January 28, 2013].” In a duty
status report also dated January 8, 2013, he advised that appellant could return to light duty on
January 28, 2013. Dr. Adler noted that his clinical findings included a crush injury to the right
hand and wrist. In a January 23, 2013 report, he described a severe crushing injury to the right
hand with color changes which were painful to touch. Dr. Adler responded “no” with regard to
whether appellant could return to work. In a January 29, 2013 treatment note, he advised that
appellant was able to return to work without restrictions.
In a January 23, 2013 report, Dr. Steven J. Litman, Board-certified in anesthesiology and
pain medicine, noted appellant’s history of injury and her medical treatment. He examined her
2

Appellant’s claim was initially denied on March 15, 2013. However, in an October 24, 2014 decision, OWCP
found that the case was accepted for right wrist contusion and payment of related medical expenses. On
November 6, 2014 it accepted contusion of the right wrist.
3

The report actually indicates 2012, but it appears to be a typographical error.

2

right hand and found hyperpathia in the dorsal aspect of the right hand. Dr. Litman noted that
she was able to flex and extend her wrist approximately 30 degrees with pain. He found
numbness into the third and fourth fingers of the right hand. Dr. Litman related that a magnetic
resonance imaging (MRI) scan of the right wrist demonstrated second and third extensor
compartment tenosynovitis, mostly post-traumatic in nature, extensor carpi ulnaris tenosynovitis,
no acute fracture. He diagnosed right hand pain and recommended a right stellate ganglion
block. Dr. Litman completed a duty status report and indicated that appellant was unable to
return to work.
In a letter dated February 12, 2013, OWCP advised appellant of the additional factual and
medical information needed to establish her claim for a recurrence and requested that she submit
such evidence within 30 days.
OWCP received January 8, 2013 treatment notes from Dr. Adler, who noted appellant’s
history of injury and treatment. Dr. Alder examined her right wrist and found a slight degree of
swelling with hypersensitivity localized in the dorsal wrist as well as Volar pain. He diagnosed
crush injury to right wrist -- rule out neuropraxia versus generalized reflex sympathetic
dystrophy. Dr. Adler recommended the use of a splint for two weeks and diagnostic testing.
A January 9, 2013 MRI scan of the right wrist, read by Dr. Albert Pradeep, a Boardcertified diagnostic radiologist, revealed second and third extensor compartment tenosynovitis
likely post-traumatic in nature, extensor carpi ulnaris tenosynovitis, and no evidence of fracture.
In a July 22, 2014 letter, appellant’s then counsel indicated that he was providing new
medical evidence from Dr. Zena Joseph, a Board-certified family practitioner. He referred to a
May 8, 2014 report. However, the only report dated May 8, 2014 was from a physician assistant.
OWCP also received copies of previous reports.
A May 20, 2015 x-ray of the right wrist read by Dr. Brett Silverman, Board-certified in
physical medicine and rehabilitation, revealed no acute fracture or dislocation, some subchondral
sclerosis consistent with early arthritis, and questionable lunate small erosion.
In a May 20, 2015 report, Dr. Silverman noted appellant’s history of injury and treatment
and reviewed the x-rays of the right wrist. He diagnosed right wrist pain/strain and indicated that
appellant had a history of carpal tunnel release, with complaints of hand paraesthesias.
In a letter dated June 24, 2015, appellant noted that she was submitting additional
evidence in support of her claim. She noted that the new evidence supported causation due to
her time off from work and her continued absence due to her disabling condition.
On June 25, 2015 appellant filed a claim for leave without pay for the period February 9
to July 24, 2013.
A June 15, 2015 MRI scan of the right wrist read by Dr. Seema Meraj, a Board-certified
diagnostic radiologist, revealed a full thickness tear of the membranous component of the
scapholunate ligament sprain and partial tearing of the volar component and mild fraying of the
triangular fibrocartilage, and no focal full thickness tear.

3

In reports dated June 18 and 19, 2015, Dr. Silverman noted that appellant had her right
hand crushed between a cart and a wall and a preexisting right carpal tunnel surgery in 2001. He
diagnosed scapholunate ligament tear and checked the box “yes” in response to whether he
believed the conditions were caused or aggravated by an employment activity. Dr. Silverman
indicated that appellant was disabled from December 26, 2012 to the present and was unable to
return to work. He also submitted nerve conduction studies from June 11, 2015.
In a June 22, 2015 report, Dr. Joseph noted that appellant’s right hand and wrist was
jammed between a cart and pole while at work. She diagnosed a contusion and checked the box
“yes” in response to whether she believed the conditions were caused or aggravated by an
employment activity. Dr. Joseph advised that appellant was disabled from December 26, 2012 to
the present and was unable to return to work as it was possible that she had permanent effects
from the injury including decreased strength and chronic pain.
A July 20, 2015 report from Dr. Ather Mirza, a general surgeon, contained diagnoses
which included: internal derangement of the right wrist; ulnar impaction syndrome; and tear of
the scapholunate ligament. Dr. Mirza also provided an August 20, 2015 arthrogram.
On August 20, 2015 OWCP received the May 8, 2014 report from Dr. Joseph.
Dr. Joseph noted that appellant had an injury to her right hand and wrist on November 26, 2012,
in which her hand became caught between a mail cart and support beam while at work. She
explained that x-rays were negative. Dr. Joseph indicated that appellant tried to return to work,
but was unable to continue working due the pain and numbness. She explained that appellant
was first seen in his office for the injury on December 26, 2012 and was referred to a hand
specialist. Dr. Joseph indicated that an MRI scan revealed second and third extensor
compartment tenosynovitis which was “likely post-traumatic in nature.” She advised that it also
showed extensor carpi ulnaris tenosynovitis. Dr. Joseph explained that appellant was seen by a
hand specialist one time, but has been unable to return to him as he did not take her insurance
and her claim was denied. She recommended further testing and noted that appellant was
“unable to return to work due to the continuing pain, paresthesia’s, decreased range of motion
and decreased strength in her right hand and wrist.” Dr. Joseph diagnosed right hand and wrist
pain, 2 and 3 extensor compartment tenosynovitis, and opined they were “POST TRAUMATIC
IN NATURE and paresthesia.”
In decisions dated August 21 and 29, 2015, OWCP denied appellant’s claim for a
recurrence of disability. It found that the evidence failed to establish that appellant was disabled,
or further disabled, due to a material change of the accepted conditions.
On September 8, 2015 appellant requested a review of the written record. She argued
that her lost time from work was due to her work-related injuries. Appellant also noted that her
physicians supported her time off from work. Regarding her symptoms, she explained that they
did not come and go, but were continuous.
OWCP received copies of previously submitted reports.
Dr. Joseph also provided a June 11, 2013 attending physician’s certification. She
diagnosed a crush injury to the right wrist. Dr. Joseph responded “yes” that the injuries were the

4

direct result of an accident of external causation and placed restrictions of no lifting and no
pulling and no use of right hand or wrist on appellant.
In a February 12, 2016 agency response, Caroline Kuil, a health and resources manager
with the employing establishment, noted that appellant was terminated on July 24, 2013 due to
the expiration of her one-year noncareer appointment from the employing establishment. She
indicated that appellant was released to full duty on November 27, 2012 and she continued to
work. Ms. Kuil also noted that appellant indicated that her claim was not a recurrence, but that
her original injury “never got better.” She also indicated that appellant saw several physicians
and subsequently filed her claim for a recurrence on January 19, 2013.
By decision dated March 7, 2016, OWCP’s hearing representative affirmed the
August 29, 2015 decision.
LEGAL PRECEDENT
Section 10.5(x) of OWCP’s regulations provide that a recurrence of disability means an
inability to work after an employee has returned to work, caused by a spontaneous change in a
medical condition which had resulted from a previous injury or illness without an intervening
injury or new exposure to the work environment that caused the illness.4
An individual who claims a recurrence of disability resulting from an accepted
employment injury has the burden of establishing that the disability is related to the accepted
injury. This burden requires furnishing medical evidence from a physician who, on the basis of a
complete and accurate factual and medical history, concludes that the disabling condition is
causally related to the employment injury and who supports that conclusion with sound medical
reasoning.5
Appellant has the burden of establishing that she sustained a recurrence of a medical
condition6 that is causally related to her accepted employment injury. To meet her burden, she
must furnish medical evidence from a physician who, on the basis of a complete and accurate
factual and medical history, concludes that the condition is causally related to the employment
injury and supports that conclusion with sound medical rationale.7 Where no such rationale is
present, the medical evidence is of diminished probative value.8
An award of compensation may not be based on surmise, conjecture, or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of

4

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

5

Dennis E. Twardzik, 34 ECAB 536 (1983); Max Grossman, 8 ECAB 508 (1956); 20 C.F.R. § 10.104.

6

20 C.F.R. § 10.5(y) (2002).

7

Ronald A. Eldridge, 53 ECAB 218 (2001).

8

Mary A. Ceglia, 55 ECAB 626 (2004); Albert C. Brown, 52 ECAB 152 (2000).

5

employment nor her belief that her condition was aggravated by her employment is sufficient to
establish causal relationship.9
ANALYSIS
Appellant sustained an accepted employment injury on November 26, 2012. Her claim
was accepted for contusion of the right wrist and elbow on November 16, 2014. Appellant
returned to regular duty on November 27, 2012. On December 26, 2012 she stopped work
completely and alleged a recurrence of total disability on that date. On February 12, 2013
OWCP advised appellant of the type of medical and factual evidence needed to establish her
claim for a recurrence of disability. However, there is no rationalized medical opinion which
sufficiently explains why appellant had a recurrence of disability on December 26, 2012
causally related to her November 26, 2012 injury.
Dr. Adler provided several reports dated January 8, 2013. He diagnosed a crush injury to
the right wrist and opined that “due to injury [appellant] cannot work until [January 28, 2013].”
The Board notes that the November 26, 2012 right wrist x-ray was normal and there was no
fracture. Furthermore, the claim was only accepted for a contusion of the right wrist. It is
unclear what the physician is referring to with regard to a crush injury. Dr. Adler saw appellant
on January 23 and 29, 2013 and opined that appellant was unable to return to work without
restrictions. Additionally, he did not offer an opinion regarding whether appellant had a
recurrence of disability beginning December 26, 2012 causally related to her accepted
employment injury. 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.10
In a January 23, 2013 report, Dr. Litman diagnosed right hand pain and indicated that
appellant was unable to return to work. However, other than a diagnosis of pain, he did not
diagnose a specific condition or specifically address causal relationship by stating how she was
disabled due to a worsening of her accepted work-related conditions. Medical evidence which
does not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.11
Dr. Joseph also provided a June 11, 2013 attending physician’s certification, diagnosed a
crush injury to the right wrist and responded by checking a box marked “yes” that the injuries
were the direct result of an accident of external causation. However, as indicated above, the
claim is only accepted for a contusion and a crush injury is not a diagnosis. Furthermore, the
Board has held that, when a physician’s opinion on causal relationship consists only of checking
“yes” to a form question, without explanation or rationale, that opinion has little probative value
and is insufficient to establish a claim.12
9

Walter D. Morehead, 31 ECAB 188 (1986).

10

See J.F., Docket No. 09-1061 (issued November 17, 2009) (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).
11

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

12

Deborah L. Beatty, 54 ECAB 340 (2003).

6

In a May 8, 2014 report, Dr. Joseph noted that appellant had an injury to her right hand
and wrist on November 26, 2012, in which her hand became caught between a mail cart and
support beam while at work. She explained that x-rays were negative. Dr. Joseph indicated that
appellant tried to return to work, but was unable to continue working due to the pain and
numbness. She indicated that an MRI scan revealed second and third extensor compartment
tenosynovitis which was “likely post-traumatic in nature.” Dr. Joseph recommended further
testing and noted that appellant was “unable to return to work due to the continuing pain,
paresthesia’s, decreased range of motion, and decreased strength in her right hand and wrist.”
She diagnosed right hand and wrist pain, 2 and 3 extensor compartment tenosynovitis, and
opined they were “POST TRAUMATIC IN NATURE and paresthesia.” However, these
conditions were not accepted conditions and Dr. Joseph did not explain how they were
subsequently attributed to the November 26, 2012 incident such that appellant was unable to
work on or after December 26, 2012.
In a June 22, 2015 report, Dr. Joseph noted that appellant’s right hand and wrist was
jammed between a cart and pole while at work. She diagnosed a contusion and checked the box
“yes” in response to whether she believed the conditions were caused or aggravated by an
employment activity. Dr. Joseph advised that appellant was disabled from December 26, 2012 to
the present and was unable to return to work. She opined that it was possible that appellant had
permanent effects from the injury including decreased strength and chronic pain. However, as
previously indicated, an opinion that consists of a response which includes checking “yes” to a
form question, without explanation or rationale, has little probative value and is insufficient to
establish a claim.13 Furthermore, it is speculative in nature.14
In a May 20, 2015 report, Dr. Silverman diagnosed right wrist pain/strain and indicated
that appellant had a history of carpal tunnel release, with complaints of hand paraesthesias. The
Board notes that the only condition accepted by OWCP is a right wrist contusion. Furthermore,
Dr. Silverman did not indicate that appellant was disabled commencing December 26, 2012. In
reports dated June 18 and 19, 2015, he diagnosed scapholunate ligament tear and checked the
box “yes” in response to whether he believed the conditions were caused or aggravated by an
employment activity. Dr. Silverman indicated that appellant was disabled from December 26,
2012 to the present and was unable to return to work. The Board again notes these are not
accepted conditions and merely checking a box marked “yes” without further rationale is
insufficient support a recurrence of disability on December 26, 2012 causally related to the
November 26, 2012 injury.15
A July 20, 2015 report from Dr. Mirza contained diagnoses which included: internal
derangement of the right wrist; ulnar impaction syndrome; and tear of the scapholunate ligament.
The Board notes that these are not accepted conditions and he did not attribute any increased
disability to the accepted contusions.
13

Id.

14

See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962) (where the Board held that medical opinions based upon an
incomplete history or which are speculative or equivocal in character have little probative value).
15

Supra note 12.

7

OWCP received several diagnostic reports, including reports from Drs. Pradeep,
Silverman, and Meraj, are also insufficient to establish appellant’s claim. While they provide
findings related to appellant’s wrist condition, none of the physicians provided any opinion on
whether appellant’s current condition was causally related to the original November 26, 2012
employment injury and resulted in her inability to work from December 26, 2012. The Board
has found 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.16
OWCP received nurses’ notes dated December 26, 2012. However, nurses are not
physicians under FECA and are not competent to render a medical opinion.17
Accordingly, the Board finds that appellant has not met her burden of proof in this case
as she has not submitted sufficiently reasoned medical opinion explaining why her recurrence of
disability beginning December 26, 2012 was caused or aggravated by the accepted
November 26, 2012 injury employment injury.
On appeal appellant argued that the employing establishment accepted her claim for a
recurrence which they approved for continuation of pay. She also indicated that her union
disability insurance approved the loss of work from December 2012 through August 2013 and
she was seeking payment for the time from February to August 2013. Appellant noted that it
was documented that she saw her physician each month. Furthermore, there was a gap of two
years as her claim was denied. However, as found above, the record contains insufficient
medical reasoning to support her claim. Appellant may submit new evidence or argument with a
written request for reconsideration to OWCP within one year of this merit decision, pursuant to 5
U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that she sustained a recurrence of
disability beginning on December 26, 2012 causally related to her November 26, 2012 injury.

16

R.E., Docket No. 10-679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007).

17

G.G., 58 ECAB 389 (2007).

8

ORDER
IT IS HEREBY ORDERED THAT the March 7, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 3, 2017
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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Mount Pleasant, MI, Employer
__________________________________________

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

Docket No. 11-455
Issued: September 20, 2011

Case Submitted on the Record

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

JURISDICTION
On December 14, 2010 appellant filed a timely appeal from an October 20, 2010
schedule award decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant
to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the schedule award decision.
ISSUE
The issue is whether appellant has more than a 21 percent impairment of the right leg for
which he received a schedule award.
On appeal appellant generally asserts that he is entitled to the same impairment rating he
received for his left lower extremity in 2002.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On November 7, 2001 appellant, then a 52-year-old letter carrier, filed an occupational
disease claim alleging that his federal duties caused severe osteoarthritis of the left knee. OWCP
accepted aggravation of bilateral osteoarthritis. On April 17, 2002 appellant underwent a left
total knee arthroplasty. On October 9, 2003 he was granted a schedule award for a 37 percent
impairment of the left lower extremity. Appellant retired in May 2005.
On April 15, 2009 Dr. Matthew B. Colligan, an osteopath, performed a right total knee
arthroplasty. On September 21, 2009 appellant filed a schedule award claim. In a September 10,
2009 report, Dr. Colligan advised that appellant had done well postoperatively, had no
complaints functionally or pain, and had reached maximum medical improvement. Appellant
stated that he was unable to find someone to perform an impairment rating.
OWCP referred appellant to Dr. Michael E. Holda, a Board-certified orthopedic surgeon,
for a second-opinion evaluation and impairment rating. In a November 7, 2009 report, Dr. Holda
reviewed the medical record and provided findings on examination. He stated that appellant
ambulated short distances normally and was able to stand on toes and heels. On examination of
the knees, Dr. Holda found no instability or tenderness bilaterally and mild swelling about the
left knee. He diagnosed postbilateral total knee arthroplasty. Dr. Holda advised that, in
accordance with Table 16-3 of the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides),2 appellant had a class 2
impairment, with a modifier of one for functional history and physical examination, and a zero
modifier for clinical studies. He concluded that appellant had a 21 percent impairment to each
lower extremity.
Dr. Nabil Angley, an OWCP medical adviser who is Board-certified in orthopedic
surgery, reviewed Dr. Holda’s report and agreed with his assessment that appellant had a 21
percent permanent impairment of each lower extremity.
By decision dated October 20, 2010, appellant was granted a schedule award for a 21
percent right lower extremity impairment, for a total of 60.48 weeks, to run from November 7,
2009 to January 4, 2011. OWCP noted that the 21 percent left lower extremity impairment
found by Dr. Holda was less than the 37 percent previously awarded for left lower extremity
impairment.
LEGAL PRECEDENT
The schedule award provision of FECA,3 and its implementing federal regulations,4 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
2

A.M.A., Guides to the Evaluation of Permanent Impairment (6th ed. 2008).

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

2

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.5 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides was used to calculate schedule awards.6
For decisions issued after May 1, 2009, the sixth edition will be used.7
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).8 Under the sixth edition, for lower extremity impairments the evaluator
identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by
grade modifiers based on Functional History (GMFH), Physical Examination (GMPE) and
Clinical Studies (GMCS).9 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) +
(GMCS - CDX).10 Under Chapter 2.3, evaluators are directed to provide reasons for their
impairment rating choices, including choices of diagnoses from regional grids and calculations
of modifier scores.11
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with OWCP’s medical adviser
providing rationale for the percentage of impairment specified.12
ANALYSIS
The accepted conditions are bilateral aggravation of osteoarthritis of the knees. On
October 9, 2003 appellant was granted a schedule award for a 37 percent impairment of the left
lower extremity. He filed an additional schedule award claim on September 21, 2009. After
appellant informed OWCP that he could not find a physician to perform an impairment rating,
OWCP referred him to Dr. Holda. In a November 7, 2009 report, Dr. Holda indicated that he
had utilized Table 16-3 of the sixth edition of the A.M.A., Guides in rating appellant’s
impairment. He advised that appellant had a class 2 impairment and identified modifiers of one
for functional history and physical examination and found no modifier for clinical studies.
Dr. Holda concluded that appellant had a 21 percent permanent disability of each lower
extremity. Dr. Angley, OWCP’s medical adviser, reviewed Dr. Holda’s report. He applied the
5

Id. at § 10.404(a).

6

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

7

FECA Bulletin No. 09-03 (issued March 15, 2009).

8

A.M.A., Guides, supra note 2 at 3, section 1.3, “The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.”
9

Id. at 494-531.

10

Id. at 521.

11

Id. at 23-28.

12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).

3

adjustment formula to Dr. Holda’s findings and agreed with his conclusion that appellant had a
21 percent impairment of each lower extremity.
The Board finds that their reports constitute the weight of medical opinion. The record
does not contain an additional medical report that rates appellant’s left lower extremity
impairment in accordance with the sixth edition of the A.M.A., Guides. Appellant had
previously received a schedule award for a 37 percent impairment of the right lower extremity,
greater than the 21 percent identified by Dr. Holda. He therefore has not established entitlement
to a greater award than the 37 percent awarded on the right by decision dated October 9, 2003,
and the 21 percent awarded for the left lower extremity by decision dated October 20, 2010.
As to appellant’s argument on appeal, his 2002 schedule award was granted under the
fifth edition. The method used in rating impairment for purposes of a schedule award is a matter
which rests in the sound discretion of the Director. In the case of Harry D. Butler,13 the Board
addressed OWCP’s use of the A.M.A., Guides to evaluate impairment since the first edition
single volume published in 1971. The Director has adopted the subsequent editions of the
A.M.A., Guides and stated the specific date when use of each edition should be made applicable
to claims under FECA. Appellant has not established that the Director abused the discretion
delegated under section 8107 or the implementing federal regulations to make the sixth edition of
the A.M.A., Guides applicable to all claimants as of May 1, 2009. The fact that the sixth edition
revises the evaluation methods used in previous editions does not establish an abuse of
discretion. As noted in FECA Bulletin No. 09-03,14 the American Medical Association
periodically revises the A.M.A., Guides to incorporate current scientific clinical knowledge and
judgment and to establish standardized methodologies for calculating permanent impairment.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has a 21 percent right lower extremity impairment for
which he received a schedule award.

13

43 ECAB 859 (1992).

14

Supra note 7.

4

ORDER
IT IS HEREBY ORDERED THAT the October 20, 2010 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: September 20, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.M., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Pine Knot, KY, Employer
__________________________________________

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Appearances:
Ronald S. Webster, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1941
Issued: February 2, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 28, 2015 appellant, through counsel, filed a timely appeal of an April 1,
2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days elapsed from October 2, 2013, the date of the most recent OWCP merit decision,
to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
consideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
On appeal, counsel argues the merits of appellant’s claim.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 29, 2012 appellant, a 36-year-old correctional officer, filed a traumatic
injury claim (Form CA-1) alleging that he sustained a lower back injury on November 28, 2012
as a result of turning, twisting, standing, and bending over in the performance of duty.2 He
stated that he had been in training and November 28, 2012 was his first day back at work after
his October 23, 2012 employment injury which had been accepted for hand and knee conditions.
Appellant indicated that he was walking through grass and bent over to pick up an aluminum can
on the ground when he felt a sharp pain run down his leg from his lower back, which made it
difficult to straighten back up or even walk. He was on continuation of pay (COP) from
November 30, 2012 to January 3, 2013.
An OWCP (Form CA-16), authorization for examination, was issued by the employing
establishment on November 29, 2012. Appellant submitted reports dated November 29, 2012
through July 3, 2013 from Annville Medical Clinic. Dr. David Hays, a Board-certified family
practitioner, related that appellant advised that he bent over to pick something up on
November 28, 2012. He diagnosed low back pain, probably muscle strain, radiculopathy, and
sciatica.
By decision dated August 15, 2013, OWCP denied the claim finding that the evidence
failed to establish that appellant had sustained an injury in the performance of duty.
On September 6, 2013 appellant requested reconsideration of his claim.
By decision dated October 2, 2013, OWCP denied appellant’s claim because the medical
evidence was insufficient to establish a causal relationship between his lower back condition and
the November 28, 2012 employment incident.
On September 30, 2014 appellant’s counsel requested reconsideration. He argued that
bending over at work on November 28, 2012 caused an aggravation of appellant’s original
October 23, 2012 employment injury and the current claim was a continuation or result of that
prior injury. Counsel contended that it was OWCP’s responsibility to further develop the
medical evidence.
By decision dated April 1, 2015, OWCP denied appellant’s request for reconsideration of
the merits of the claim finding that he had failed to submit pertinent new and relevant evidence,
and failed to show that OWCP had erroneously applied or interpreted a point of law not
previously considered by OWCP.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to a review of an OWCP decision as
a matter of right; it vests OWCP with discretionary authority to determine whether it will review

2

On July 5, 2013 appellant, through counsel, filed a recurrence claim. He alleged that his lower back pain had
been increasing over months of time to the extent that it was a constant ache causing difficulty moving and bending.

2

an award for or against compensation.3 OWCP, through regulations, has imposed limitations on
the exercise of its discretionary authority under section 8128(a).4
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,
OWCP regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.5 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his application
for review within one year of the date of that decision.6 When a claimant fails to meet one of the
above standards, OWCP will deny the application for reconsideration without reopening the case
for review on the merits.7
The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record8 and the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.9
ANALYSIS
The Board finds that OWCP properly refused to reopen appellant’s case for further
consideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
In support of his September 30, 2014 reconsideration request, counsel argued that
bending over at work on November 28, 2012 caused an aggravation of appellant’s original
October 23, 2012 employment injury and the current claim was a continuation or result of that
prior injury. He contended that it was OWCP’s responsibility to further develop the medical
evidence. Counsel’s arguments are not relevant to the underlying issue, which was whether the
medical evidence was sufficient to establish a causal relationship between appellant’s lower back
condition and the November 28, 2012 employment incident.10 Appellant did not submit any new
medical evidence. The Board has held that the submission of an argument which does not

3

Supra note 1. Under section 8128 of FECA, the Secretary of Labor may review an award for or against
payment of compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
4

See Annette Louise, 54 ECAB 783, 789-90 (2003).

5

20 C.F.R. § 10.606(b)(3). See A.L., Docket No. 08-1730 (issued March 16, 2009).

6

Id. at § 10.607(a).

7

Id. at § 10.608(b).

8

See A.L., supra note 5. See also Eugene F. Butler, 36 ECAB 393, 398 (1984).

9

Id. See also Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

10

The Board notes that it is appellant’s burden of proof to establish a causal relationship between the conditions
for which compensation is claimed and the employment incident.

3

address the particular issue involved does not constitute a basis for reopening a case.11
Therefore, counsel’s arguments are insufficient to require OWCP to reopen the claim for
consideration of the merits.12
The Board finds that appellant failed to meet the requirement for a merit review under
section 8128(a) and OWCP properly denied his claim.
On appeal, counsel argues the merits of appellant’s claim. The Board noted above that it
lacks jurisdiction over OWCP’s October 2, 2013 merit decision and therefore is precluded from
conducting the merits.
The Board also notes that the employing establishment executed a Form CA-16 on
November 29, 2012 authorizing medical treatment. The Board has held that where an employing
establishment properly executes a Form CA-16, which authorizes medical treatment as a result of
an employee’s claim for an employment-related injury, it creates a contractual obligation, which
does not involve the employee directly, to pay the cost of the examination or treatment regardless
of the action taken on the claim.13 Although OWCP denied appellant’s claim for an injury, it did
not address whether he is entitled to reimbursement of medical expenses pursuant to the Form
CA-16.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
consideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

11

See supra note 9.

12

See L.H., 59 ECAB 253 (2007).

13

See D.M., Docket No. 13-535 (issued June 6, 2013). See also 20 C.F.R. §§ 10.300, 10.304.

4

ORDER
IT IS HEREBY ORDERED THAT the April 1, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 2, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5