United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Dover, DE, Employer
__________________________________________

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

Docket No. 10-383
Issued: September 7, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 25, 2009 appellant, through his representative, filed a timely appeal of a
November 4, 2009 merit decision of the Office of Workers’ Compensation Programs. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
traumatic injury on February 9, 2009 in the performance of duty.
FACTUAL HISTORY
On February 23, 2009 appellant, then a 58-year-old mail handler, filed a traumatic injury
claim alleging that on February 9, 2009 he injured his right hip, lower back and the right portion
of his pelvic joint from pulling heavy pallets of mail. He stopped work on February 10 and
returned on February 11, 2009.

Appellant submitted a February 27, 2009 x-ray report from Dr. Victoria Kong, a
diagnostic radiologist, who found that his left foot had slight osteoarthritis at the first metatarsal
pharyngeal joint and the mid-tarsal row. Dr. Kong also noted no acute abnormality of the left
foot.
On March 20, 2009 the Office advised appellant of the factual and medical evidence
necessary to establish his claim and allowed him 30 days to submit such evidence.
In a February 10, 2009 work restriction form, Dr. Lisa Reid, a Board-certified family
practitioner, advised that appellant could not push, pull or lift over 200 pounds due to pain. On
February 27, 2009 she noted appellant’s complaint of left foot pain related to lifting and pulling
heavy crates. Dr. Reid noted pain at the base of the fifth metatarsal. She diagnosed foot pain. In
a March 12, 2009 duty status report, Dr. Reid diagnosed back pain and also noted foot pain. She
indicated that appellant was able to work with restrictions.
A May 21, 2007 left foot x-ray report from Dr. William O’Brien, an osteopath Boardcertified in diagnostic radiology, revealed mild degenerative changes without evidence of acute
fracture or dislocation. In a report of the same date, Dr. Elizabeth Cerva, an osteopath and
family practitioner, noted appellant’s history of foot pain beginning two to three months prior.
Examination revealed tenderness across the top arch of the ankle with palpation and motion.
Dr. Cerva found soft tissue foot pain. Appellant also submitted an August 24, 2007 physician’s
assistant report finding left foot tenderness on palpation of the shaft of the first metatarsal. The
record also contains a physical therapy note dated March 13, 2009.
In an undated statement, appellant noted that he first experienced left foot pain in
March 2007 which worsened on February 26 “of this year.”1 He believed that pushing heavy
overloaded “wiretainers” aggravated his condition over time and a recent injury to his back and
right hip aggravated it further. In an April 15, 2009 statement, appellant indicated that on
February 9, 2009 he injured his back and right hip while pulling 20 heavy pallets of advertising
circulars. He noted the incident to his supervisor, but was not informed about filling out (Form
CA-1), claim for a traumatic injury.
On February 10, 2009 Dr. Reid noted appellant’s complaint of back and right hip pain.
She reported his belief that this condition was related to pulling heavy pallets at work. Dr. Reid
found that appellant’s back was tender at the right sacroiliac joint. She diagnosed back and right
hip pain.
In an undated statement, appellant indicated that, on February 9, 2009, after bringing in
the last pallet of circulars, he felt loss of support in his right leg. He notified his supervisor that
he was injured and would be off work the following day to see a doctor.

1

Based on the context of appellant’s statement and the date it was received by the Office, he is referring to the
year 2009.

2

In an April 20, 2009 decision, the Office denied appellant’s claim finding that the
evidence did not support that an injury occurred as alleged. It also noted that it was unclear
whether appellant had claimed an aggravated left foot condition or right hip, lower back and
right pelvic condition as identified in CA-1 form.
Thereafter, the Office received an April 9, 2009 work restriction form from Dr. Reid
diagnosed back and foot pain and listed work restrictions.
On May 18, 2009 appellant requested a telephone hearing that was held on
September 10, 2009.2
Following the hearing, appellant submitted additional medical evidence. On April 2,
2009 Dr. Reid noted his complaint of lower back and left leg pain. She noted that appellant
reported bending over to turn off a pipe and felt pain in his leg. Dr. Reid also noted his belief
that his pain was all due to pulling heavy pallets and inadequate equipment at work. She
diagnosed hypertension and back pain. On April 9, 2009 Dr. Reid noted that appellant’s back
and left foot was still painful. She reiterated his belief that his pain was due to pushing pallets.
Dr. Reid diagnosed back and foot pain. She also referred appellant to orthopedics and podiatry.
In an April 6, 2009 lumbar spine magnetic resonance imaging (MRI) scan report, Dr. Robert
Varipapa, a Board-certified neurologist, found mild moderate multilevel degenerative disc
disease more so at L4-5 with mild (Grade 1) spondylolisthesis and associated mild moderate
broad pseudo-disc osteophyte formation slightly more so to the left was present.
Appellant submitted a note from a physical therapist dated July 20, 2009 diagnosing back
and right hip pain. He also submitted a July 21, 2009 physician’s assistant note diagnosing a
small area of subchondral marrow at the right hip and mild to moderate multilevel degenerative
disc disease of the lumbar spine.
In a July 23, 2009 letter to his representative, appellant noted pulling pallets at work on
February 9, 2009 when he felt back pain and loss of function of his right leg. He also reported he
was unable to support his weight. Appellant noted reporting the incident to his supervisor. He
also noted that he had pulled pallets on February 4, 2009 and felt soreness in his right leg with
pain and dysfunction in that leg later that week. Appellant asserted that the pain presented itself
immediately after working with pallets on February 9, 2009.
In a November 4, 2009 decision, an Office hearing representative affirmed as modified
the April 20, 2009 decision. She found that appellant established fact of incident, but the
medical evidence did not establish causal relationship between the work event and alleged injury.

2

During the hearing, appellant indicated that he was not claiming a left foot condition as a part of the present
claim as it was a separate issue.

3

LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of his claim, including the fact that the individual is
an “employee of the United States” within the meaning of the Act; that the claim was filed
within the applicable time limitation; that an injury was sustained while 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 on a traumatic injury
or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged. Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.6
ANALYSIS
The record reflects that appellant pulled pallets of mail on February 9, 2009 in the
performance of duty. However, the medical evidence is insufficient to establish that pulling
pallets of mail caused or aggravated his alleged right hip, low back and right pelvic conditions.
Dr. Reid’s reports dated February 10, April 2 and 9, 2009 diagnosed back pain, right hip
pain and hypertension. In addressing the cause of appellant’s condition, she noted that appellant
attributed his condition to pulling heavy pallets of mail at work. This does not reflect Dr. Reid’s
own independent opinion on causal relationship, but instead is a reiteration of appellant’s

3

5 U.S.C. §§ 8101-8193.

4

S.P., 59 ECAB ___ (Docket No. 07-1584, issued November 15, 2007); Joe D. Cameron, 41 ECAB 153 (1989).

5

Id.

6

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

4

opinion.7 Additionally, her February 10 and March 12, 2009 reports did not provide any opinion
on causal relationship and they only diagnosed back and foot pain and provided work
restrictions.8 Moreover, Dr. Reid’s February 27, 2009 report does not address any of appellant’s
claimed conditions as it only addressed his complaint of foot pain. As she did not provide her
own opinion in which she explained the reasons pulling pallets at work on February 9, 2009
would cause or aggravate a diagnosed medical condition, her opinion is insufficient to establish
appellant’s claim.
Similarly, Dr. Kong’s February 27, 2009 left foot x-ray report found slight osteoarthritis,
but her report did not discuss any of appellant’s claimed conditions. Also her assessment of his
left foot did not include an opinion regarding whether the February 9, 2009 work incident caused
or aggravated a left foot condition. Likewise, in an April 6, 2009 lumbar MRI scan report,
Dr. Varipapa did not provide an opinion regarding whether appellant’s work incident caused this
lumbar condition. As noted, medical evidence without an opinion on causal relationship is of
limited probative value.
The medical reports from Drs. O’Brien and Cerva do not support appellant’s claim as
both reports predate the claimed work incident on February 9, 2009. The record also contains
treatment notes from physician’s assistants and physical therapists. However, these treatment
reports do not constitute competent medical evidence as they are not from a physician as defined
by the Act.9
For these reasons, the medical evidence is insufficient to establish that appellant
sustained a right hip, low back and right pelvic condition on February 9, 2009 in the performance
of duty.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a traumatic injury on February 9, 2009 in the performance of duty.

7

William Nimitz, 30 ECAB 567 (1979) (where the Board has held that an award for compensation may not be
predicated upon appellant’s belief of causal relation as such a relationship must be shown by rationalized medical
evidence of causal relation based upon a specific and accurate history of employment incidents or conditions which
are alleged to have caused or exacerbated a disability); see Lois E. Culver (Clair L. Culver), 53 ECAB 412 (2002)
(the opinion of a physician must be of reasonable medical certainty and must be supported by medical rationale
explaining causal relationship).
8

See S.E., 60 ECAB ___ (Docket No. 08-2214, issued May 6, 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).
9

See George H. Clark, 56 ECAB 162 (2004) (the Board has noted a physician’s assistant is not a physician as
defined under the statute and therefore any report from such individual does not constitute competent medical
evidence which, in general, can only be given by a qualified physician); Barbara Williams, 40 ECAB 649 (1989)
(reports of appellant’s physical therapists are of no probative value as physical therapists are not considered
physicians under the Act and as a result, they are not competent to provide a medical opinion). See also 5 U.S.C.
§ 8101(2).

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated November 4, 2009 is affirmed.
Issued: September 7, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 11-611
Issued: October 11, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 13, 2011 appellant filed a timely appeal from an October 4, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that she sustained more than an eight
percent impairment of the left upper extremity, for which she received a schedule award.
On appeal, counsel asserts a conflict of medical evidence between an attending physician
and an OWCP medical adviser regarding the appropriate percentage of permanent impairment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on or before May 22, 2002 appellant, then a 40-year-old mail
processor and mark-up clerk, sustained bilateral carpal tunnel syndrome. She received wage-loss
compensation for work absences related to the accepted condition.
Dr. Scott M. Fried, an attending osteopath and Board-certified orthopedic surgeon,
followed appellant beginning in 2002. In an August 7, 2002 report, he diagnosed bilateral carpal
tunnel syndrome, cumulative trauma disorder, repetitive strain and bilateral brachial plexopathy.
Dr. Fried opined that all of the diagnosed conditions were work related. He stated that
October 16, 2002 electromyography (EMG) and nerve conduction velocity (NCV) testing
showed bilateral carpal tunnel syndrome, bilateral brachial plexopathy and bilateral ulnar
neuropathy at the elbows. On February 17, 2004 Dr. Fried performed a left median nerve release
with flexor tenosynovectomy. He performed the same procedures on the right wrist on
August 31, 2004.
September 20, 2004 x-rays showed grade 1 change in the distal
interphalangeal joints of the left hand, mild flexor tenosynovitis of the left wrist and no other
“severe abnormality” of the left hand or wrist. Dr. Fried submitted reports through August 2006
newly diagnosing a left trigger thumb and long thoracic nerve neuritis on the right.2
On January 7, 2005 OWCP obtained a second opinion from Dr. Robert Dennis, a Boardcertified orthopedic surgeon, who diagnosed bilateral carpal tunnel syndrome, 85 to 90 percent
improved after surgery. Dr. Dennis noted the recent onset of a left trigger thumb, unrelated to
work factors as it developed while appellant was off work after surgery. He released her to four
hours a day full duty.
OWCP found a conflict of medical opinion between Dr. Fried, for appellant and
Dr. Dennis, for the government, regarding the nature and extent of any residuals of the accepted
conditions. To resolve the conflict, it selected Dr. Ian Blair Fries, a Board-certified orthopedic
surgeon, as impartial medical examiner.
In a November 7, 2006 report, Dr. Fries reviewed the medical record and statement of
accepted facts. On examination, he found mild fullness of the right carpal tunnel compared to
the left. Dr. Fries stated that appellant did not have cervical radiculopathy or brachial
plexopathy. He explained that she no longer had stenosing tenosynovitis of the left thumb and
that such condition was not work related as it occurred “long after she had left work and [was] a
common spontaneous condition.” Dr. Fries diagnosed bilateral carpal tunnel syndrome and
musculoskeletal pain. He ordered EMG and NCV testing, performed on November 17, 2006,
which showed bilateral carpal tunnel syndrome. No radiculopathy or brachial plexopathy was
demonstrated. In a December 29, 2006 report, Dr. Fries opined that appellant had objective
residuals of bilateral carpal tunnel syndrome and had attained maximum medical improvement.
He noted permanent work restrictions.

2

An August 12, 2005 EMG study showed bilateral brachial plexopathy and neuropathies of the median nerve and
the left ulnar nerve at the elbow.

2

Appellant returned to part-time modified duty in September 2007 and to full-time limited
duty on January 19, 2009.3 Dr. Fried submitted periodic reports through August 2009 noting
continued bilateral elbow, hand, wrists and brachial plexus neuropathies. He reviewed July 27,
2006 and June 5, 2009 EMG and NCV studies showing bilateral median nerve compromise,
bilateral brachial plexus compromise, left ulnar nerve neuropathy at the elbow and right radial
nerve compression.
On December 7, 2009 appellant claimed a schedule award. In a December 18, 2009
letter, OWCP advised her to submit an impairment rating from her attending physician referring
to the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) (hereinafter).
Appellant submitted a July 16, 2009 impairment rating by Dr. Arthur Becan, an
orthopedic surgeon to whom she was referred by counsel. Dr. Becan obtained QuickDASH
scores of 75 percent for each upper extremity for chronic pain and difficulties with activities of
daily living. On examination of the left hand, he found metacarpophalangeal joint tenderness on
the left with thickening of the flexor tendon and locking on active flexion. Dr. Becan noted
limited motion in both wrists.4 He measured grip strength at 6 kilograms (kg) on the right and 12
kg on the left and pinch key strength at 4 kg on the right and 3 kg on the left. Dr. Becan
diagnosed bilateral carpal tunnel syndrome with postsurgical status, left trigger thumb and
“[c]umulative and repetitive occupational trauma.”
Dr. Becan relied on Table 15-235 of the sixth edition of the A.M.A., Guides to evaluate
appellant’s right wrist, finding a diagnosis (CDX) of median nerve entrapment neuropathy, a
grade modifier for Functional History (GMFH) of three, a grade modifier for Clinical Studies
(GMCS) of three, a grade modifier for Physical Examination (GMPE) of three due to decreased
pinch strength. Dr. Becan determined that these grade modifiers equaled an eight percent
impairment of the right arm. For the left wrist, he found a diagnosis (CDX) of median nerve
entrapment neuropathy, a GMCS of three, a GMFH of three and a GMPE of three for pinch
strength. Dr. Becan calculated that these grade modifiers warranted an eight percent impairment
of the left upper extremity. Regarding the left trigger thumb, he found a class 1 CDX for
symptomatic digital stenosis according to Tablet 15-2,6 a GMFH of three according to Table 15-

3

The record contains a June 6, 2008 decision denying compensation on March 6, 8 and 13, 2008 due to a lack of
medical evidence and a June 22, 2009 overpayment decision. Neither decision is before the Board on the present
appeal.
4

For the right wrist, Dr. Becan found dorsiflexion at 50 degrees, palmar flexion at 60 degrees, radial deviation at
15 degrees and ulnar deviation at 25 degrees. On the left he observed dorsiflexion at 60 degrees, palmar flexion at
65 degrees, full radial deviation and ulnar deviation at 30 degrees.
5

Table 15-23, page 449 of the sixth edition of the A.M.A., Guides is entitled “Entrapment/Compression
Neuropathy Impairment”
6

Table 15-2, pages 391-393 of the sixth edition of the A.M.A., Guides is entitled “Digit Regional Grid: Digit
Impairments.”

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7,7 a GMPE of three according to Table 15-88 and a GMCS of zero according to Table 15-9.9
Using the net adjustment formula of (GMFH - CDX) + (GMPE - DCX) + (GMCS - CDX),
Dr. Becan noted an eight percent impairment of the left arm. He then combined the two 8
percent impairments to equal 15 percent.
On February 12, 2010 OWCP asked an OWCP medical adviser to review Dr. Becan’s
report and provide a schedule award calculation. In a February 24, 2010 report, an OWCP
medical adviser opined that appellant had eight percent impairment of the right upper extremity
and eight percent impairment of the left upper extremity due to carpal tunnel syndrome. He
concurred with Dr. Becan’s assessment of an eight percent impairment of the left upper
extremity due to median nerve entrapment neuropathy. However, the medical adviser explained
that Dr. Becan should not have included an impairment for left trigger thumb, as the A.M.A.,
Guides stated that “in general only one major diagnosis should be selected for a specific region
of the extremity.” The medical adviser opined that appellant’s was not a rare or unusual
situation necessitating evaluating both impairments.
By decision dated March 30, 2010, OWCP granted appellant a schedule award for eight
percent permanent impairment of the right arm and eight percent impairment of the left arm.
The period of the award ran from September 1, 2009 to August 16, 2010.
In an April 6, 2010 letter, appellant requested an oral hearing held on July 20, 2010. At
the hearing, counsel contested only the left upper extremity rating, asserting that the left trigger
thumb entitled her to a greater percentage of impairment. Appellant asserted that her left trigger
thumb preexisted the carpal tunnel syndrome or developed simultaneously. Following the
hearing, she submitted additional evidence. In a June 25, 2008 report, Dr. Fried renewed work
restrictions. In a July 8, 2010 report, he noted paracervical and left trapezial muscle spasm,
grade 2 scapular winging on the right and positive Roos and Hunter tests. Dr. Fried diagnosed
postsurgical status, bilateral thoracic outlet/brachial plexus involvement of the upper extremities
and right-sided long thoracic neuritis.
By decision dated and finalized October 4, 2010, an OWCP hearing representative
affirmed the March 30, 2010 decision. The hearing representative noted that both Dr. Becan and
an OWCP medical adviser agreed that appellant had an eight percent impairment of the left
upper extremity due to the accepted carpal tunnel syndrome. Dr. Becan found an additional
seven percent impairment due to stenosing tenosynovitis of the left thumb. However, the
medical adviser explained that a second major diagnosis affecting the same region of the left arm
should not be rated in conjunction with carpal tunnel syndrome. Also, Dr. Fries found that the
left trigger thumb had resolved and was not occupationally related. Moreover, there was no
7

Table 15-7, page 406 of the sixth edition of the A.M.A., Guides is entitled “Functional History Adjustment:
Upper Extremities.”
8

Table 15-8, page 408 of the sixth edition of the A.M.A., Guides is entitled “Physical Examination Adjustment:
Upper Extremities.”
9

Table 15-9, pages 409-10 of the sixth edition of the A.M.A., Guides is entitled “Clinical Studies Adjustment:
Upper Extremities.”

4

evidence that the left trigger thumb was a preexisting condition which would have been
incorporated into the schedule award rating.
LEGAL PRECEDENT
The schedule award provisions of FECA10 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. FECA, however,
does not specify the manner in which the percentage loss of a member shall be determined. The
method used in making such determination is a mater which rests in the sound discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The A.M.A.,
Guides has been adopted by OWCP as a standard for evaluation of schedule losses and the Board
has concurred in such adoption.11 For schedule awards after May 1, 2009, the impairment is
evaluated under the sixth edition of the A.M.A., Guides, published in 2008.12
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).13 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition (CDX), which is then adjusted by grade modifiers based on GMFH, GMPE
and GMCS.14 The net adjustment formula is (GMFH-CDX) + (GMPE-DCX) + (GMCS-CDX).
ANALYSIS
OWCP accepted that appellant sustained bilateral carpal tunnel syndrome. Dr. Fried, an
attending Board-certified orthopedic surgeon, performed a left median nerve release and flexor
tenosynovectomy on February 17, 2004 and a right median nerve release and flexor
tenosynovectomy on August 31, 2004.
Appellant claimed a schedule award on
December 7, 2009. On July 16, 2009 counsel obtained an impairment rating from Dr. Becan, an
orthopedic surgeon, who found a combined 15 percent impairment of the left upper extremity, 8
percent due to carpal tunnel syndrome and 8 percent due to a left trigger thumb.
An OWCP medical adviser reviewed Dr. Becan’s report on February 24, 2010 and
concurred with the eight percent rating for carpal tunnel syndrome. However, the medical
adviser explained that Dr. Becan should not have included an impairment rating for left trigger
thumb as it was a second diagnosis-based impairment (CDX) in the same region of the extremity.
The A.M.A., Guides divides the upper extremity into regions for rating purposes. The hand is
10

5 U.S.C. § 8107.

11

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

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
13

A.M.A., Guides (6th ed. 2008), page 3, section 1.3, “The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.”
14

Id. at 494-531.

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one of the designated regions.15 When using diagnosis-based impairment to evaluate the
percentage of upper extremity impairment, in most cases only one diagnosis will be appropriate.
If there are two significant diagnoses, “the examiner should use the diagnosis with the highest
causally-related impairment rating for the impairment calculation.”16 Following this principle,
Dr. Becan should not have rated both the carpal tunnel syndrome and left trigger thumb as they
both affected the same region of the left upper extremity.
An additional problem with Dr. Becan’s inclusion of the left trigger thumb is that it was
not an accepted condition. OWCP accepted only carpal tunnel syndrome. Neither Dr. Fried nor
Dr. Becan provided medical rationale explaining a pathophysiologic link between work factors
and stenosing tenosynovitis of the left thumb. Therefore, their opinions are insufficient to
establish causal relationship.17 Also, the Board notes that, in his November 7, 2006 report,
Dr. Fries, a Board certified orthopedic surgeon and impartial medical examiner, opined that the
left trigger thumb had resolved.
The Board notes that, although OWCP did not accept a left trigger thumb, the condition
could be included in an impairment rating if it was established as a preexisting condition.18
Appellant’s carpal tunnel syndrome was sustained on or before May 22, 2002. September 20,
2004 x-rays of the left and hand wrist did not demonstrate a trigger thumb. The first mention of
a left trigger thumb in the medical record is by Dr. Dennis, a Board-certified orthopedic surgeon
and second opinion physician, who noted its recent onset in his January 7, 2005 report. Dr. Fried
first noted the left trigger thumb in his June 13, 2005 report. Thus, Dr. Dennis and Dr. Fried
noted that onset of left trigger thumb after May 22, 2002. Therefore, the medical record does not
support that the left trigger thumb preexisted the accepted carpal tunnel syndrome.
The Board finds that Dr. Becan should not have included appellant’s left trigger thumb as
an element of his impairment rating. Therefore, OWCP properly relied on an OWCP medical
adviser’s interpretation of Dr. Becan’s findings in assessing an eight percent impairment of the
left upper extremity.
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.
On appeal, counsel asserts a conflict of medical evidence between Dr. Becan and an
OWCP medical adviser regarding the appropriate percentage of permanent impairment. As
stated, Dr. Becan improperly included left trigger thumb in his impairment rating, whereas an
OWCP medical adviser included only the appropriate elements of impairment according to the
A.M.A., Guides. Therefore, there is no conflict of medical opinion.

15

Id. at 384, Figure 15-1, “Upper Extremity Regions.”

16

Id. at 387, section 15.2, “Diagnosis-Based Impairment.”

17

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

18

Michael C. Milner, 53 ECAB 446, 450 (2002).

6

CONCLUSION
The Board finds that appellant has not established that she sustained more than an eight
percent impairment of the left upper extremity, for which she received schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 10, 2010 is affirmed.
Issued: October 11, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


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

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

Docket No. 18-1804
Issued: April 12, 2019

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 September 24, 2018 appellant filed a timely appeal from an August 8, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish a traumatic injury
causally related to the accepted May 30, 2018 employment incident.

1
2

5 U.S.C. § 8101 et seq.

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

FACTUAL HISTORY
On June 27, 2018 appellant, then a 67-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that he sustained an injury to his ankle as a result of being pushed by another
employee while at work on May 30, 2018. He stopped work on that date.
By development letter dated July 5, 2018, OWCP acknowledged receipt of appellant’s
claim and informed him that additional evidence was needed in support of his claim. It advised
him of the type of factual and medical evidence needed and provided a questionnaire for his
completion. OWCP afforded appellant 30 days to submit the necessary evidence.
On July 11, 2018 OWCP received appellant’s undated supplemental statement wherein he
described in greater detail the altercation on May 30, 2018, as well as statements from witnesses
to the incident. It also received letters from Bamidele Agada, a registered nurse, and Brownson
Irondi, a nurse practitioner, dated May 30 and July 30, 2018, respectively. OWCP also received
medical reports from Dr. Oluwafemi Odeyale, a treating podiatrist.
On July 9, 2018 the employing establishment controverted appellant’s claim. P.B., a
supervisor, commented that on the date of the incident appellant initiated physical contact with a
coworker, who reacted by removing appellant from his person.
By decision dated August 8, 2018, OWCP accepted that the May 30, 2018 employment
incident occurred as alleged, but denied appellant’s claim, finding that he had not met his burden
of proof to establish a diagnosed medical condition in connection with accepted factors of his
federal employment. Thus, appellant did not meet the requirements to establish an injury as
defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
In order to determine whether an employee sustained a traumatic injury in the performance
of duty, OWCP begins with an analysis of whether fact of injury has been established. Generally,
fact of injury consists of two components, which must be considered in conjunction with one
3

Supra note 1.

4

J.P., Docket No. 18-1165 (issued January 15, 2019); Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55
ECAB 179 (2003).
5
J.P., id. See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB
530 (2004).

2

another. The first component to be established is that the employee actually experienced the
employment incident, which is alleged to have occurred.6 The second component is whether the
employment incident caused a personal injury.7
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.8 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 employee.9
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.10
Certain healthcare providers such as physician assistants, nurse practitioners, physical
therapists, and social workers are not considered “physician[s]” as defined under FECA.11
Consequently, their medical findings and/or opinions will not suffice for purposes of establishing
entitlement to FECA benefits.
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a traumatic
injury causally related to the accepted May 30, 2018 employment incident.
In support of his claim, appellant submitted letters from Nurses Bamidele Agada and
Brownson Irondi, dated May 30 and July 30, 2018, respectively, are of no probative value because
nurses and nurse practitioners are not considered physicians as defined under FECA.12
Dr. Odeyale, a podiatrist, is a physician as defined under FECA.13 However, his letter
dated July 6, 2018 merely notes that appellant was unable to work certain days and provides a date
6
R.E., Docket No. 17-0547 (issued November 13, 2018); David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover,
51 ECAB 146 (1999).
7

R.E., id.

8

G.N., Docket No. 18-0403 (issued September 13, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9
K.V., Docket No. 18-0723 (issued November 9, 2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler,
45 ECAB 365 (1994).
10

J.P., supra note 4; Dennis M. Mascarenas, 49 ECAB 215 (1997).

11

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

12
See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (“‘physician’
includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic
practitioners within the scope of their practice as defined by State law”); R.C., Docket No. 17-1314 (issued
November 3, 2017).
13

5 U.S.C. § 8101(2).

3

when he could return to work. It gives no explanation as to why appellant was unable to work.
Further, Dr. Odeyale’s July 13, 2018 letter notes that appellant was unable to work “due to injury
to his foot.” This brief statement fails to establish a firm medical diagnosis and provides no causal
support for an injury. Lacking a firm diagnosis and rationalized medical opinion regarding causal
relationship, Dr. Odeyale’s medical report is of no probative value.14 His letters, therefore, are
insufficient to establish fact of injury as they do not contain a rationalized medical opinion, based
on a complete and accurate background, explaining how an employment incident physiologically
caused a diagnosed condition.15
Because the medical reports of record do not adequately address how the May 30, 2018
employment incident caused a medical condition these reports are insufficient to establish
entitlement under FECA.16 Accordingly, appellant has not met his burden of proof to establish a
traumatic injury claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a traumatic
injury causally related to the accepted May 30, 2018 employment incident.

14

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

15

J.M., Docket No. 17-1002 (issued August 22, 2017).

16

D.H., Docket No. 17-1913 (issued December 13, 2018); see Linda I. Sprague, 48 ECAB 386 (1997).

4

ORDER
IT IS HEREBY ORDERED THAT the August 8, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 12, 2019
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
__________________________________________
L.P., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
MATERIEL COMMAND, Pine Bluff, AR,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 12-1443
Issued: January 15, 2013

Case Submitted on the Record

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

JURISDICTION
On June 20, 2012 appellant filed a timely appeal from a February 14, 2012 merit decision
of the Office of Workers’ Compensation Programs (OWCP), which affirmed a schedule award.
The February 14, 2012 decision also denied his request to subpoena witnesses. 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.
ISSUES
The issues are: (1) whether appellant sustained more than a six percent permanent
impairment of the right upper extremity for which he received schedule awards; (2) whether
OWCP properly determined the period of the August 31, 2011 schedule award; and (3) whether
it properly denied appellant’s request for subpoenas.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 22, 2010 appellant, then a 63-year-old motor vehicle operator, filed an
occupational disease claim (Form CA-2) alleging bilateral carpal tunnel syndrome and a pinched
nerve on the right side of his neck as a result of his federal employment. His job duties included
hauling, loading, unloading, opening tractor trailer doors and opening and closing building doors.
By decision dated July 8, 2010, OWCP accepted appellant’s claim for bilateral carpal
tunnel syndrome, authorizing bilateral carpal tunnel repair surgery and physical therapy.
On October 14, 2010 appellant underwent right carpal tunnel release. In an October 14,
2010 surgical report, Dr. Kirk Reynolds, a treating surgeon, reported that appellant’s right carpal
tunnel release showed no significant pathology involving the median nerve once the procedure
had been completed.
In a February 14, 2011 medical report, Dr. Theresa O. Wyrick reviewed appellant’s
February 4, 2011 electromyogram study and opined that because the latency had increased since
a test performed on April 6, 2010. This indicated a possible inadequate carpal tunnel release.
Dr. Wyrick noted that appellant was hesitant about revisiting surgery and provided him with a
carpal tunnel injection as an alternative.
On April 4, 2011 appellant again filed a schedule award claim.2
In a March 7, 2011 medical report, Dr. Wyrick stated that appellant complained of
continued pain and swelling of the right hand, noting that the prior carpal tunnel injection
provided virtually no relief. She did not believe that he would benefit much from a repeat
surgery. Dr. Wyrick opined that over time, appellant’s symptoms would resolve and that he had
reached maximum medical improvement. She noted that appellant would undergo a functional
capacity evaluation to obtain an impairment rating.
In an April 18, 2011 medical report, Dr. Wyrick reviewed appellant’s functional capacity
evaluation, stating that his hand demonstrated full digital range of motion in flexion and
extension with a trace amount of swelling in the right hand. She stated that he was
neurovascularly intact and that his subjective pain rating was a seven. Despite the findings on
functional capacity evaluation, appellant’s work duties caused him discomfort. In a work
capacity evaluation form (Form OWCP-5c), Dr. Wyrick stated that he was not capable of
performing his usual duties and could return to work with permanent restrictions.
OWCP referred the medical evidence, a statement of accepted facts and the case file to an
OWCP district medical adviser (DMA). In a July 3, 2011 report, the DMA stated that appellant
reached MMI of the right carpal tunnel syndrome on April 18, 2011 when he provided him with
2

The Board notes that appellant had previously filed schedule award claims on July 14 and October 20, 2010. In
development letters dated September 29 and November 2, 2010, OWCP informed appellant that there was no
medical evidence to indicate that he had reached maximum medical improvement (MMI) to support his claim for a
schedule award of permanent impairment. It noted that once he reached MMI, to resubmit his schedule award claim
along with supporting medical evidence from his treating physician.

2

permanent work restrictions through the work capacity evaluation form. The DMA also noted
that, although the April 6, 2010 electromyography and nerve conduction studies (EMG/NCS)
revealed a mild left carpal tunnel syndrome, there would be no rating provided for a left carpal
tunnel condition as the medical records never once indicated that appellant had reported left
upper extremity symptoms compatible with a left carpal tunnel syndrome. Appellant stated that
an impairment rating for the left upper extremity at the same time as MMI is being declared for
the right upper extremity would not be appropriate. A carpal tunnel syndrome diagnosis is not
based solely on the findings of EMG/NCS and must be supported by the medical history and
examination findings. In this instance, the medical adviser noted that appellant did not have
examination findings or history consistent with left carpal tunnel syndrome and thus, there could
be no impairment rating or schedule award for the left upper extremity.
The DMA reviewed appellant’s medical records pertaining to the right upper extremity
and stated that the EMG/NCS performed on February 4, 2011 showed more significant motor
dysfunction than the April 6, 2010 EMG/NCS. He further noted that, as of April 18, 2011,
appellant’s subjective pain scale rating was described as a seven. In an April 18, 2011 attending
physician’s note, Dr. Wyrick stated that appellant was neurovascularly intact. Using the
postoperative history, examination findings and the EMG/NCS reports, the impairment rating for
permanent residuals of the right carpal tunnel syndrome was processed using Table 15-23 in
accordance with the sixth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (A.M.A., Guides).3 According to Table 15-23 of the A.M.A., Guides,
test findings were determined to be a grade modifier 2 as shown by the motor block from the
February 4, 2011 EMG/NCS tests. History was processed as a grade modifier 3 because it was
implied that appellant had constant symptoms. Physical findings were a grade modifier 1 in that
he was found to be neurovascularly intact on the date of MMI. Using the instructions for the
rating process on page 448, the DMA added the corresponding numerical values: 2 + 3 + 1 for a
total of 6. He then divided the sum of 6 by 3, totaling 2.4 Thus, grade 2 was determined to be
the final rating category. Using Table 15-23, the medical adviser noted that grade modifier 2
consisted of a four to six percent upper extremity rating. Giving weight to appellant’s subjective
symptoms, the DMA found a 6 percent upper extremity impairment rating.5
By decision dated August 31, 2011, OWCP granted appellant a schedule award claim for
six percent permanent impairment of the right upper extremity. The date of MMI was noted as
April 18, 2011. The award covered a period of 18.72 weeks from July 3 to November 11, 2011.
OWCP noted that because appellant had been receiving wage-loss compensation through July 2,
2011, the date of the schedule award was administratively changed to July 3, 2011.
On September 9, 2011 appellant requested a hearing before the Branch of Hearings and
Review.

3

A.M.A., Guides 448-49, Table 15-23 (2009).

4

Id. at 448.

5

Id. at 449, Table 15-23.

3

By letter dated November 6, 2011, appellant requested subpoenas for his wife and his
OWCP registered nurse, stating that they were present at all of his physician’s appointments and
that their testimony was directly relevant to the issues at hand.
On November 21, 2011 the hearing representative denied appellant’s request for
subpoenas stating that he was appealing an August 31, 2011 schedule award determination which
primarily involved a medical issue for permanent partial impairment ratings. The hearing
representative informed him that if he disagreed with the evidence contained in the file, he could
point out the discrepancies during his testimony at the hearing.
At the December 2, 2011 hearing, appellant argued that he would like OWCP to issue
witness subpoenas so that his wife and his OWCP nurse could testify because they were present
with him at his medical appointments. The hearing representative informed him that a schedule
award determination was based on medical evidence from a physician and not testimony.
Appellant further argued that his schedule award should have been paid beginning April 18,
2011, the date of his MMI. The hearing representative informed him that he could not receive a
schedule award and wage-loss compensation for the same date and thus, his award was adjusted
to July 3, 2011 because he had been paid compensation benefits from May 22 to July 2, 2011.
Appellant continued to insist that his schedule award should reflect the date of MMI. He further
testified that he continued to face difficulties with his carpal tunnel syndrome and that he
disagreed with the DMA’s schedule award rating.
By decision dated February 14, 2010, the hearing representative affirmed OWCP’s
August 31, 2011 decision finding that appellant was entitled to an award of no more than six
percent permanent impairment of the upper right extremity for the period July 3 to
November 11, 2011. It further denied his requests for subpoenas finding that the schedule award
determination is based on medical evidence and the testimony of his wife and his OWCP nurse
did not provide relevant information which could not be obtained by other means.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA and its implementing regulations 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.6 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.7

6

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

7

K.H., Docket No. 09-341 (issued December 30, 2011). For decisions issued after May 1, 2009, the sixth edition
will be applied. B.M., Docket No. 09-2231 (issued May 14, 2010).

4

The A.M.A., Guides provide 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 upper 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
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.11 In
Table 15-23, grade modifier levels (ranging from 0 to 4) are described for the categories test
findings, history and physical findings. The grade modifier levels are averaged to arrive at the
appropriate overall grade modifier level and to identify a default rating value. The default rating
value may be modified up or down by one percent based on functional scale, an assessment of
impact on daily living activities.12
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.13
ANALYSIS
OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome. By decision
dated August 31, 2011, it granted him a schedule award for a six percent permanent impairment
of the upper right extremity, using the applicable table of the sixth edition of the A.M.A.,
Guides.14 In a February 14, 2012 decision, an OWCP hearing representative found that appellant
was not entitled to an increased schedule award. The Board finds that he has not met his burden
of proof to establish that he has impairment of the upper right extremity greater than the six
percent already awarded.
In her April 18, 2011 medical report, Dr. Wyrick provided appellant with permanent
work restrictions, stated that he was neurovascularly intact and noted his subjective pain rating as
a seven. She stated that he had reached MMI but failed to provide an impairment rating for his
8

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

Id. at 385-419.

10

Id. at 411.

11

Id. at 449.

12

Id. at 448-50.

13

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability, Chapter
2.808.6(d) (August 2002).
14

Supra note 5.

5

right carpal tunnel syndrome. OWCP properly referred the case file to a DMA for review and
determination regarding whether appellant sustained a permanent partial impairment.
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23, Entrapment/Compression Neuropathy Impairment and accompanying relevant text.15 In
Table 15-23, grade modifiers are described for the categories test findings, history and physical
findings which are averaged to arrive at the appropriate overall grade modifier level and to
identify a default rating value. The default rating value may be modified up or down by one
percent based on functional scale, an assessment of impact on daily living activities.16
In a July 3, 2011 report, the DMA used appellant’s postoperative history, examination
findings and the EMG/NCS reports to calculate an impairment rating for permanent residuals of
the right carpal tunnel syndrome. Using Table 15-23 of the A.M.A., Guides, the DMA identified
a grade modifier 2 for test findings due to a motor block from the February 4, 2011 EMG/NCS
tests. History was determined to be a grade modifier 3 due to appellant’s constant symptoms.
Physical findings were determined to be a grade modifier 1 because he was found to be
neurovascularly intact on the date of MMI. Per the A.M.A. Guides rating process, the DMA
added the values of the grade modifiers: 2 + 3 + 1 = 6. The sum of 6 was then divided by 3 to
obtain an average value for these three modifiers which equaled 2. This placed appellant in
grade 2 as the final rating category. The DMA noted that, according to Table 15-23, a grade
modifier 2 has an upper extremity impairment rating of four to six percent. Appellant concluded
that appellant had six percent upper right extremity impairment due to carpal tunnel syndrome,
giving weight to appellant’s subjective symptoms.17 The date of MMI was noted as April 18,
2011, the date appellant was placed on permanent work restrictions by Dr. Wyrick.
The Board finds that the DMA properly applied the appropriate tables and grading
schemes of the A.M.A., Guides in determining that appellant had no more than a six percent
right upper extremity impairment for which he received a schedule award. Appellant did not
submit any additional medical evidence on appeal which would establish that he has more than
six percent impairment to the upper right extremity.
On appeal, appellant stated that OWCP had relevant medical records pertaining to his left
hand. The Board notes that, in his July 3, 2011 report, the DMA stated that, though the April 6,
2010 EMG/NCS revealed a mild left carpal tunnel syndrome, there would be no rating provided
for a left carpal tunnel condition as the medical records never once indicated that he had reported
left upper extremity symptoms compatible with a left carpal tunnel syndrome. The medical
adviser noted that carpal tunnel syndrome diagnosis was not based solely on the findings of
EMG/NCS and must be supported by medical history and examination findings. In this instance,
appellant did not have examination findings or history consistent with left carpal tunnel
syndrome. He has the burden of proof to submit the medical evidence necessary to support his

15

Supra note 11.

16

Supra note 12.

17

A.M.A., Guides. at 448-449, Table 15-23.

6

claim of permanent impairment of a scheduled member or function of the body.18 As appellant’s
medical records, complaints and symptoms focused on the right upper extremity, OWCP has not
determined an impairment rating or schedule award for the left upper extremity.
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.
LEGAL PRECEDENT -- ISSUE 2
It is well established that the period covered by a schedule award commences on the date
that the employee reaches MMI from residuals of the employment injury.19 This is a medical
issue and is determined by the medical evidence.20 With respect to the period of a schedule
award, an employee cannot concurrently receive compensation under a schedule award and
compensation for disability for work.21
The number of weeks of compensation for a schedule award is determined by the
compensation schedule at 5 U.S.C. § 8107(c). For the arm, the maximum number of weeks of
compensation is 312.
ANALYSIS -- ISSUE 2
In its August 31, 2011 decision, OWCP granted appellant a schedule award for a six
percent permanent impairment of the upper right extremity for the period of July 3 to
November 11, 2011 for a period of 18.72 weeks. It noted that, though the date of MMI was
April 18, 2011, he had been receiving wage-loss compensation through July 2, 2011 and thus,
the date of the schedule award was administratively changed to July 3, 2011.
The determination that appellant had a six percent left arm impairment was based on the
DMA’s July 3, 2011 report. As noted above, his entitlement to impairment is six percent for the
upper right extremity. The maximum number of weeks for arm impairment is 312 weeks.
Therefore, appellant is entitled to six percent of 312 weeks or 18.72 weeks of compensation.
The Board finds that OWCP properly found that he was entitled to 18.72 weeks of
compensation.
With respect to the specific period for payment of the 18.72 weeks of compensation, this
is based on the date of MMI which occurred on April 18, 2011. The determination of the date
for MMI ultimately rests with the medical evidence22 and is usually considered to be the date of
18

See D.H., 58 ECAB 358 (2007); Tammy L. Meehan, 53 ECAB 229 (2001); see also Nathaniel Milton,
37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.
19

Albert Valverde, 36 ECAB 233, 237 (1984).

20

Adela Hernandez-Piris, 35 ECAB 839 (1984); James T. Rogers, 33 ECAB 347 (1981).

21

James A. Earle, 51 ECAB 567 (2000); Andrew B. Poe, 27 ECAB 510 (1976).

22

L.H., 58 ECAB 561 (2007).

7

the evaluation by the physician which is accepted as definitive by OWCP.23 OWCP did not
begin the schedule award on April 18, 2011 because appellant was still receiving compensation
for wage-loss compensation at that time. While appellant refers to a delay in the schedule award,
this was not adverse to him because if the schedule award had begun on April 18, 2011 he would
not have been entitled to wage-loss compensation at the same time.24
On appeal, appellant argues that he should have received his schedule award beginning
April 18, 2011, the date of MMI. He argued that it was unfair that his schedule award did not
commence until July 3, 2011 and that he should have been given the option to choose whether he
received wage-loss compensation or a schedule award during that period. The Board notes that
appellant would be entitled to 18.72 weeks of compensation, regardless of whether the schedule
award began on April 18 or July 23, 2011.25
The Board finds that OWCP properly determined the period of the award for 18.72 weeks
from July 3 to November 11, 2011. Based on the evidence of record, the period of the award
does not represent an adverse finding to appellant.
LEGAL PRECEDENT -- ISSUE 3
Section 8126 of FECA provides that the Secretary of Labor, on any matter within her
jurisdiction under this subchapter, may issue subpoenas for and compel the attendance of
witnesses within a radius of 100 miles.26 The implementing regulations provide that a claimant
may request a subpoena, but the decision to grant or deny such a request is within the discretion
of the hearing representative, who may issue subpoenas for the attendance and testimony of
witnesses and for the production of books, records, correspondence, papers or other relevant
documents. Subpoenas are issued for documents only if they are relevant and cannot be obtained
by other means and for witnesses only where oral testimony is the best way to ascertain the
facts.27 In requesting a subpoena, a claimant must explain why the testimony is relevant to the
issues in the case and why a subpoena is the best method or opportunity to obtain such evidence
because there is no other means by which the testimony could have been obtained.28 Section
10.619(a)(1) of the implementing regulations provide that a claimant may request a subpoena
only as a part of the hearings process and no subpoena will be issued under any other part of the
claims process.
To request a subpoena, the requestor must submit the request in writing and send it to the
hearing representative as early as possible, but no later than 60 days (as evidenced by postmark,
23

Mark Holloway, 55 ECAB 321, 325 (2004).

24

See Marie J. Born, 27 ECAB 623 (1976).

25

T.K., Docket No. 12-271 (issued June 21, 2012).

26

5 U.S.C. § 8126(1).

27

20 C.F.R. § 10.619; Gregorio E. Conde, 52 ECAB 410 (2001).

28

Id.

8

electronic marker or other objective date mark) after the date of the original hearing request.29
OWCP’s hearing representative retains discretion on whether to issue a subpoena. The function
of the Board on appeal is to determine whether there has been an abuse of discretion.30 Abuse of
discretion is generally shown through proof of manifest error, a clearly unreasonable exercise of
judgment or actions taken which are clearly contrary to logic and probable deduction from
established facts.31
ANALYSIS -- ISSUE 3
On September 9, 2011 appellant requested a hearing and, by letter dated November 6,
2011, requested subpoenas to compel the attendance and testimony of his wife and OWCP nurse
who had been present during his physician’s appointments. On November 21, 2011 an OWCP
hearing representative denied his request for subpoenas stating that he was appealing a schedule
award determination which primarily involved a medical issue for permanent partial impairment
ratings. By decision dated February 14, 2012, the hearing representative affirmed its
November 21, 2011 decision denying appellant’s request to subpoena such witnesses, finding
that the schedule award determination was based on medical evidence and that this testimony
could not provide relevant information that could not be obtained by any other means to
ascertain facts which needed to be considered.
The Board finds that the hearing representative properly denied appellant’s subpoena
requests because he did not establish why a subpoena was the best method to obtain the evidence
in question and why there was no other means by which the testimony could be obtained. An
abuse of discretion is generally shown through proof of manifest error, clearly unreasonable
exercise of judgment or actions taken which are contrary to both logic and probable deduction
from established facts.32 The mere showing that the evidence would support a contrary
conclusion is insufficient to prove an abuse of discretion. The Board finds that the hearing
representative did not abuse her discretion in denying appellant’s request for subpoenas.
CONCLUSION
The Board finds that appellant does not have more than a six percent employment-related
permanent impairment to his upper right extremity. In addition, the Board finds that OWCP
properly determined the period of the schedule award. The Board further finds that OWCP
properly denied appellant’s request for a subpoena.

29

20 C.F.R. § 10.619(a)(1).

30

See Gregorio E. Conde, supra note 27.

31

Claudio Vazquez, 52 ECAB 496 (2001).

32

Id.

9

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs
decision dated February 14, 2012 is affirmed.
Issued: January 15, 2013
Washington, DC

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

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

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
DEPARTMENT OF THE ARMY,
INSTALLATION MANAGEMENT
COMMAND, Fort Carson, CO, Employer
__________________________________________

)
)
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)
)
)
)
)
)

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

Docket No. 20-1647
Issued: October 5, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On September 18, 2020 appellant filed a timely appeal from a June 15, 2020 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

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the June 15, 2020 decision, appellant submitted additional evidence to OWCP and
on appeal to the Board. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited
to the evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP
will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded
from reviewing this additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective June 15, 2020, as she no longer had residuals or
disability causally related to her accepted employment injuries.
FACTUAL HISTORY
On August 30, 2015 appellant, then a 59-year-old human resources assistant, filed an
occupational disease claim (Form CA-2) alleging that she sustained injury to her neck and upper
extremities due to factors of her federal employment. She asserted that she was diagnosed with
bilateral carpal tunnel syndrome in July 2015 and a degenerative neck condition in 2010.
Appellant noted that she first became aware of her claimed injury on August 14, 2015 and first
realized its relation to her federal employment on August 17, 2015. She did not stop work, but
began working in a light-duty position.
On January 27, 2016 appellant began working six hours per day with a 15-minute break
every two hours. Dr. David A. Hull, an osteopath and Board-certified family medicine specialist
for the employing establishment, indicated that appellant had been diagnosed with bilateral carpal
tunnel syndrome and cervical spondylosis without myelopathy.
On February 13, 2017 OWCP accepted that appellant sustained right carpal tunnel
syndrome, left carpal tunnel syndrome, left median mononeuropathy, temporary aggravation of
cervical spondylolisthesis at C4-5 and C5-6, and temporary aggravation of cervical radiculopathy.3
On March 15, 2018 appellant underwent right carpal tunnel release and, on April 19, 2018,
she underwent left carpal tunnel release. Both procedures were authorized by OWCP. In
July 2018 appellant began working four hours per day and, on August 7, 2018, OWCP expanded
the accepted conditions to include right thumb tenosynovitis.4
In an August 10, 2018 report, Dr. Miguel J. Castrejon, a Board-certified physiatrist and
occupational medicine specialist, diagnosed multilevel cervical spondylosis with electrodiagnostic
evidence of left C6 radiculopathy, history of cervical rhizotomy, left carpal tunnel syndrome with
subjective complaint of similar symptoms on the right, post carpal tunnel release, double crush
syndrome, and chronic pain. On September 7, 2018 he listed the diagnosed conditions from his
August 10, 2018 report, but added the diagnosis of right thumb stenosing tenosynovitis.
On August 27, 2018 appellant retired from the employing establishment on disability
retirement. On May 23, 2019 she underwent OWCP-authorized right thumb A1 pulley release.
In July 1, and August 5 and 26, 2019 reports, Dr. Castrejon indicated that appellant
complained of neck pain, which radiated into her arms, as well as right thumb pain and crepitation
3

OWCP paid appellant wage-loss compensation for disability from work on the supplemental rolls commencing
January 27, 2016.
4

OWCP paid appellant wage-loss compensation for disability from work on the periodic rolls commencing
December 9, 2018.

2

with motion. He advised that she had residuals of accepted employment injuries, noting that she
continued with the diagnoses of cervical spondylosis with electrodiagnostic evidence of left C6
radiculopathy, left carpal tunnel syndrome, and right thumb stenosing tenosynovitis. Dr. Castrejon
noted that appellant was retired, but indicated that she was restricted to light-duty work.
On September 5, 2019 OWCP referred appellant and the case record, including a current
statement of accepted facts (SOAF), to Dr. Douglas C. Scott, a Board-certified occupational
medicine specialist, for a second opinion examination. It requested that Dr. Scott provide an
opinion regarding whether appellant had residuals or disability causally related to her accepted
employment injuries.
In a September 26, 2019 report, Dr. Scott discussed appellant’s factual and medical history
and reported the findings of his physical examination he conducted on that date. He reported that
appellant primarily complained of neck pain, which radiated into her upper extremities, but also
reported bilateral hand pain and swelling in her right thumb. Dr. Scott advised that, upon
examination, appellant reported tenderness over the bilateral occipital notches. Appellant had a
negative Spurling’s test of the cervical spine, normal grip strength, and negative Tinel’s sign over
the carpal tunnels of both wrists. Dr. Scott noted that appellant continued to complain of neck pain
and radiation of pain into both shoulders. However, he opined that this complaint was not related
to her accepted cervical condition, but rather was due to a nonwork -related condition, chronic
progressive cervical neck spondylosis related to the normal aging process and aggravated by
smoking. Dr. Scott noted, “[appellant] does not continue to suffer residuals of the work injury.”
He opined that appellant did not have physical limitations or restrictions due to the accepted
employment injuries. Dr. Scott recommended that appellant avoid forward flexion or extension
of the neck, maintain a proper distance between keyboard and computer monitor, and avoid
cradling a telephone in the neck. In a September 26, 2019 work capacity evaluation form report
(Form OWCP-5c), he provided work restrictions, which were necessitated by appellant’s
nonwork-related cervical condition.
On November 19, 2019 OWCP determined that there was a conflict in the medical opinion
between Dr. Castrejon and Dr. Scott on the issue of whether appellant continued to have residuals
or disability causally related to the accepted employment injuries. In order to resolve the conflict,
it referred appellant, pursuant to section 8123(a) of FECA (5 U.S.C. § 8123(a)), to Dr. Jeffrey J.
Sabin, a Board-certified orthopedic surgeon, for an impartial medical examination and an opinion
on the matter. OWCP provided Dr. Sabin with a copy of the case record, a current SOAF, and a
series of questions.
In a December 20, 2019 report, Dr. Sabin detailed appellant’s factual and medical history
and reported the findings of the physical examination he conducted on that date. He noted that
appellant primarily complained of neck pain, which radiated into her upper extremities and also
complained of bilateral hand pain. Dr. Sabin indicated that, upon examination, appellant exhibited
normal bilateral motion of the shoulders and had negative Tinel’s and Phalen’s signs at both wrists.
He noted that appellant reported that cervical compression caused pain in the ulnar aspects of both
hands. Dr. Sabin determined that appellant’s continued cervical spine complaints were unrelated
to the accepted employment-related cervical conditions, temporary aggravation of
spondylolisthesis/radiculopathy, but rather were a result of the natural progression of her nonworkrelated degenerative cervical condition. Appellant had no residuals of the accepted bilateral carpal

3

tunnel conditions after undergoing bilateral carpal tunnel releases. Dr. Sabin noted that appellant’s
examination was negative for Tinel’s and Phalen’s signs and indicated that there was no
pain/numbness in the radial three and a half fingers bilaterally. He advised that appellant’s hand
complaints upon examination were in the ulnar nerve distributions bilaterally, but indicated that
an ulnar nerve condition had not been accepted as an employment injury. Dr. Sabin opined that
all of appellant’s accepted employment injuries had resolved and found that she had no work
restrictions related to those accepted conditions. He asserted that appellant would have difficulty
working overhead or repetitively lifting items weighing more than 30 pounds, but opined that these
limitations were related to the “natural aging/degenerative process” and tobacco use rather than to
employment-related conditions. In a December 20, 2019 Form OWCP-5c, Dr. Sabin indicated
that, with respect to the accepted employment injuries, appellant could perform her regular work
on a full-time basis.
In a March 6, 2020 notice, OWCP advised appellant that it proposed to terminate her wageloss compensation and medical benefits because she ceased to have residuals or disability causally
related to her accepted employment injuries. It informed her that the proposed termination action
was based on the opinion of Dr. Sabin, the impartial medical specialist. OWCP afforded appellant
30 days to submit evidence or argument challenging the proposed action.
Appellant submitted a November 18, 2019 report from Dr. Castrejon who diagnosed
herniated nucleus pulposus at C5-6 with left C6 radiculopathy per electromyogram/nerve
conduction velocity (EMG/NCV) testing.
In January 9, March 6, and April 1 and 28, 2020 reports, Dr. Castrejon diagnosed
multilevel cervical spondylosis with electrodiagnostic evidence of left C6 radiculopathy, history
of cervical rhizotomy, left carpal tunnel syndrome with subjective complaint of similar symptoms
on the right, status post carpal tunnel release, double crush syndrome, chronic pain, and right
thumb stenosing tenosynovitis. He noted that appellant was concerned about persistent median
nerve numbness and tingling.
In an April 9, 2020 report, Dr. Anthony Nguyen, a Board-certified anesthesiologist,
summarized his encounter with appellant and provided a medical history and list of symptom
complaints. He advised that a magnetic resonance imaging (MRI) scan had been ordered to
address the unclear pathology leading to appellant’s symptoms.
Appellant submitted a May 12, 2020 MRI scan of her cervical spine, which revealed
degenerative changes at the levels of C2-3 through C6-7. She also submitted copies of August 10
and September 7, 2018 reports of Dr. Castrejon, which she had previously submitted.
By decision dated June 15, 2020, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective June 15, 2020, as she no longer had residuals or disability causally
related to her accepted employment injuries. It found that the special weight of the medical opinion
evidence was represented by the thorough, well-rationalized opinion of Dr. Sabin, the impartial
medical specialist.

4

LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.5 After it has determined that, an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment. 6 OWCP’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background. 7
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.8 To terminate authorization for medical treatment, OWCP
must establish that appellant no longer has residuals of an employment-related condition which
require further medical treatment.9
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.”10 In situations where
there exist opposing medical reports of virtually equal weight and rationale and the case is referred
to an impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based upon a proper factual background, must be
given special weight. 11
ANALYSIS
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective June 15, 2020, as she no longer had residuals or
disability causally related to her accepted employment injuries.
OWCP properly determined that there was a conflict in the medical opinion evidence
between Dr. Castrejon, an attending physician, and Dr. Scott, an OWCP referral physician, on the
issue of whether appellant continued to have residuals or disability causally related to the accepted

5

D.G., Docket No. 19-1259 (issued January 29, 2020); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
6

See R.P., Docket No. 17-1133 (issued January 18, 2018); Jason C. Armstrong, 40 ECAB 907 (1989); Charles E.
Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB 541 (1986).
7

M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988).

8

A.G., Docket No. 19-0220 (issued August 1, 2019); A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58
ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005). Furman G. Peake, 41 ECAB 361, 364 (1990).
9
10

See A.G., id.; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002).
5 U.S.C. § 8123(a).

11

D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P. Roberts, 31 ECAB
1010 (1980).

5

employment injuries. In order to resolve the conflict, it properly referred appellant, pursuant to 5
U.S.C. § 8123(a), to Dr. Sabin, for an impartial medical examination and an opinion on the issue.12
The Board finds that the special weight of the medical opinion evidence is represented by
the thorough, well-rationalized opinion of Dr. Sabin, the impartial medical specialist selected to
resolve the conflict in the medical opinion evidence.13 The December 20, 2019 report of Dr. Sabin
establishes that appellant had no disability due to her accepted employment injuries after
June 15, 2020.
In his December 20, 2019 report, Dr. Sabin determined that appellant’s continued cervical
spine complaints were unrelated to the accepted employment-related cervical conditions,
temporary aggravation of spondylolisthesis/radiculopathy, but rather were due to the natural
progression of her nonwork-related degenerative cervical condition. Appellant had no residuals
of the accepted bilateral carpal tunnel conditions after undergoing bilateral carpal tunnel releases.
Dr. Sabin noted that appellant’s examination was negative for Tinel’s and Phalen’s signs and
indicated that there was no pain/numbness in the radial three and a half fingers bilaterally. He
advised that appellant’s hand complaints upon examination were in the ulnar nerve distributions
bilaterally, but indicated that an ulnar nerve condition had not been accepted as an employment
injury. Dr. Sabin opined that all of appellant’s accepted employment injuries had resolved and
found that she had no work restrictions related to those accepted conditions. He asserted that
appellant would have difficulty working overhead or repetitively lifting items weighing more than
30 pounds, but opined that these limitations were related to the “natural aging/degenerative
process” which would also be affected by tobacco use rather than to employment-related
conditions.
The Board has reviewed the opinion of Dr. Sabin and finds that it has reliability, probative
value and convincing quality with respect to its conclusions regarding the underlying issue of
continuing employment-related residuals/disability. Dr. Sabin provided a thorough factual and
medical history and accurately summarized the relevant medical evidence. He provided medical
rationale for his opinion by explaining that appellant’s continuing medical problems were due to
the nonwork-related natural progression of her preexisting degenerative disease.14
Appellant submitted additional reports of Dr. Castrejon, dated November 18, 2019,
January 9, March 6, and April 1 and 28, 2020, after receiving the March 6, 2020 notice of proposed
termination. These reports contained diagnoses of conditions, which had been accepted as
employment-related, including left carpal tunnel syndrome and left C6 radiculopathy. However,
as Dr. Castrejon was on one side of the conflict in this case, his additional reports are essentially

12

See supra note 10.

13

See supra note 11.

14

See W.C., Docket No. 18-1386 (issued January 22, 2019); D.W., Docket No. 18-0123 (issued October 4, 2018);
Melvina Jackson, 38 ECAB 443 (1987) (regarding the importance, when assessing medical evidence, of such factors
as a physician’s knowledge of the facts and medical history, and the care of analysis manifested and the medical
rationale expressed in support of the physician’s opinion).

6

duplicative of his prior reports and are insufficient to give rise to a new conflict in the medical
opinion evidence regarding continuing employment-related residuals/disability.15
Appellant also submitted a May 12, 2020 MRI scan of her cervical spine and August 10
and September 7, 2018 reports of Dr. Castrejon. However, these reports did not contain an opinion
that appellant had employment-related residuals around the time of OWCP’s June 15, 2020
termination action and, therefore, they also would not create a new conflict in the medical opinion
evidence. The Board has held that a medical report is of no probative value on a given medical
matter if it does not contain an opinion on that matter. 16
In an April 9, 2020 report, Dr. Nguyen summarized his encounter with appellant and
provided a medical history and list of symptom complaints. He advised that an MRI scan had been
ordered to address the unclear pathology leading to appellant’s symptoms. This report is of no
probative value on the underlying issue of the case because it does not contain an opinion regarding
continuing employment-related residuals/disability. As noted, a medical report is of no probative
value on a given medical matter if it does not contain an opinion on that matter.17
As the evidence of record is insufficient to overcome the special weight accorded to
Dr. Sabin, the Board finds that OWCP has met its burden of proof to terminate appellant’s wageloss compensation and medical benefits.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective June 15, 2020, as she no longer had residuals or
disability causally related to her accepted employment injuries.

15

See S.I., Docket No. 13-1880 (issued April 18, 2014); Richard O’Brien, 53 ECAB 234 (2001).

16

T.H., Docket No. 18-0704 (issued September 6, 2018). See also L.B., Docket No. 18-0533 (issued August 27,
2018); D.K., Docket No. 17-1549 (issued July 6, 2018);Charles H. Tomaszewski, 39 ECAB 461 (1988).
17

Id.

7

ORDER
IT IS HEREBY ORDERED THAT the June 15, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: October 5, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


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

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

Docket No. 10-74
Issued: March 22, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 24, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated March 24, 2008.1 The record also contains an
October 14, 2008 decision denying merit review. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has established a back injury causally related to
factors of her federal employment; and (2) whether the Office properly denied appellant’s
application for reconsideration without merit review of the claim.

1

The appeal was originally docketed as No. 09-1147. Since an incorrect OWCP file number was associated with
that appeal, Docket No. 09-1147 was dismissed.

FACTUAL HISTORY
On May 30, 2007 appellant, then a 48-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that she sustained a back condition causally related to her federal
employment. On the claim form she stated that she used her back “as does everyone in
everything we do.” Appellant discussed a March 6, 2004 employment incident when she was
checking her case of mail, raised up and felt a “pop.”2
Appellant submitted medical evidence from Dr. Moacir Schnapp, a neurologist. In an
August 29, 2005 report, Dr. Schnapp stated that appellant apparently had a lifting injury at work
in March 2004. In an October 24, 2005 report, he diagnosed lumbar spondylosis and sacroilitis,
stating that appellant was working overtime and this would likely increase her pain. In a
May 16, 2007 report, Dr. Schnapp noted a lifting incident in March 2004 and stated this was at
least a trigger to her current back pain.
In a report dated November 30, 2006, Dr. Glen Burford, a chiropractor, indicated that
radiographic results showed multiple cervical and lumbar subluxations. He found that
appellant’s condition was the direct result of injuries on March 6, 2004.
By decision dated August 21, 2007, the Office denied appellant’s claim for
compensation, finding the medical evidence did not establish an injury causally related to
the March 6, 2004 incident.
Appellant requested reconsideration of her claim on
November 26, 2007. She submitted a February 13, 2007 report from Dr. Schnapp, who stated
there was a causal relationship between appellant’s March 6, 2004 lumbar strain and disability
from August 29 to October 18, 2005.3
In a decision dated March 24, 2008, the Office reviewed the case on its merits and denied
modification. Appellant requested reconsideration on September 25, 2008. She resubmitted the
November 30, 2006 report from Dr. Burford.
By decision dated October 14, 2008, the Office found appellant’s application for
reconsideration was insufficient to warrant merit review of the claim.
LEGAL PRECEDENT -- ISSUE 1
A claimant seeking benefits under the Federal Employees’ Compensation Act4 has the
burden of establishing the essential elements of her claim by the weight of the reliable, probative
and substantial evidence, including that an injury was sustained in the performance of duty as
2

Appellant had filed a traumatic injury claim (Form CA-1) for the March 6, 2004 incident on March 8, 2004.
This claim was developed under OWCP File No. xxxxxx563 and accepted for a lumbar strain. The Board affirmed
a March 28, 2007 Office decision denying merit review of the claim. Docket No. 07-1820 (issued
December 26, 2007).
3

The issue in File No. xxxxxx563 was disability during this period. The Board reviewed the February 13, 2007
report in its December 26, 2007 decision on the reconsideration issue presented.
4

5 U.S.C. §§ 8101-8193.

2

alleged and that any specific condition or disability claimed is causally related to the
employment injury.5
To establish that an injury was sustained in the performance of duty, 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
employment factors identified by the claimant.6
Causal relationship is a medical question that can generally be resolved only by
rationalized medical opinion evidence.7 A physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors must be based on a complete factual and medical background of the claimant.8
Additionally, in order to be considered rationalized, the 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.9
ANALYSIS -- ISSUE 1
The record indicates that appellant filed a claim for a traumatic injury on March 6, 2004
and this claim was developed under OWCP File No. xxxxxx563. That claim is not before the
Board. In the present case, appellant had filed an occupational disease or illness claim. While it
appears appellant wants to pursue the traumatic injury claim through the occupational disease
claim, an occupational disease or illness is a condition caused by work factors occurring over
more than one workday or shift.10
As noted, appellant’s burden includes the submission of factual and medical evidence to
establish an occupational claim. She did not submit a factual statement discussing the specific
job duties she felt contributed to a back condition, the time period she performed these job
duties, or any information sufficient to establish an adequate factual background for her claim.
In addition, appellant did not submit rationalized medical evidence on the causal relationship
between a diagnosed back condition and the identified employment factors. The medical
evidence of record provides a brief reference to a March 6, 2004 incident, which is not the issue
presented. None of the physicians provided an adequate factual history or a rationalized medical
5

20 C.F.R. § 10.115(e), (f) (2005); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

6

Ruby I. Fish, 46 ECAB 276, 279 (1994).

7

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

8

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

9

Id.

10

20 C.F.R. § 10.5(q).

3

opinion on the relevant medical issue. The Board accordingly finds that appellant did not meet
her burden of proof.
LEGAL PRECEDENT -- ISSUE 2
The Act provides that the Office may review an award for or against compensation upon
application by an employee (or his or her representative) who receives an adverse decision.11
The employee shall exercise this right through a request to the district Office. The request, along
with the supporting statements and evidence, is called the “application for reconsideration.”12
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent evidence not previously
considered by the Office.13
A timely request for reconsideration may be granted if the Office determines that the
employee has presented evidence and/or argument that meets at least one of these standards. If
reconsideration is granted, the case is reopened and the case is reviewed on its merits. Where the
request is timely but fails to meet at least one of these standards, the Office will deny the
application for reconsideration without reopening the case for a review on the merits.14
ANALYSIS -- ISSUE 2
In her application for reconsideration, appellant contended that she was disabled from
August to October 2005 due to her March 6, 2004 employment injury. This is an issue that is
properly pursued under the traumatic injury claim. Appellant did not show that the Office
erroneously applied or interpreted a specific point of law, or advance a relevant legal argument
not previously considered by the Office.
With respect to evidence, appellant did not submit any new and relevant evidence. The
November 30, 2006 report from Dr. Burford was previously submitted on July 27, 2007 and is
not considered new evidence.
The Board finds that appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(2). The Office properly denied the application for reconsideration without merit
review of the claim.

11

5 U.S.C. § 8128(a).

12

20 C.F.R. § 10.605 (1999).

13

Id. at § 10.606(b)(2).

14

Id. at § 10.608.

4

CONCLUSION
The Board finds that appellant has not established an injury causally related to factors of
her federal employment. The September 25, 2008 application for reconsideration was not
sufficient to warrant merit review of the claim.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 14 and March 24, 2008 are affirmed.
Issued: March 22, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5