United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.P., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Las Vegas, NV, Employer
__________________________________________

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

Docket No. 10-240
Issued: November 18, 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 November 2, 2009 appellant, through counsel, filed a timely appeal from the
August 26, 2009 decision of the Office of Workers’ Compensation Programs denying her
recurrence of disability claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a recurrence of disability commencing
January 2, 2007 causally related to her March 9, 2005 employment injury.
FACTUAL HISTORY
On March 9, 2005 appellant, then a 46-year-old transportation security screener,
sustained injury to her right arm, neck and shoulder while in the performance of duty. The
Office accepted her claim for cervical, thoracic and right shoulder strains.

Appellant was treated by Dr. Jaswinder S. Grover, a Board-certified orthopedic surgeon,
for persistent neck and right upper extremity pain. He obtained a cervical magnetic resonance
imaging (MRI) scan on April 2, 2005 that revealed slight cervical disc degeneration consistent
with appellant’s age but otherwise reported as normal. X-rays of the cervical spine revealed
some narrowing of the C5-6 disc with loss of cervical lordosis. On June 6, 2005 appellant
underwent a selective nerve root block at C6, but Dr. Grover noted that she did not appreciate
any substantial relief. On June 16, 2005 he released appellant to return to her regular work duty.
On July 14, 2005 Dr. Grover noted that he would continue appellant on physical therapy and
recommended that she could continue regular duty work. On July 26, 2005 he reiterated that
appellant could work without restrictions and was considered released without any permanent
impairment.1
On June 17, 2005 appellant returned to regular full-duty work. On August 8, 2005 she
resigned from the employing establishment. Appellant began work with Union Pacific on
April 26, 2006. On October 4, 2007 she filed a claim for a recurrence of disability beginning
January 2, 2007.
The record reflects that appellant sought treatment on January 22, 2007 from
Dr. Jason M. Tarno, a Board-certified osteopath, for complaints of cervical and right shoulder
pain. In a January 24, 2007 treatment record, Dr. Tarno noted appellant’s history of injury on
March 9, 2005 and noted a positive impingement test on the right with negative labral signs. A
January 18, 2007 MRI scan was read as revealing a partial thickness tear involving the articular
surface of the supraspinatus tendon with no definite full thickness tear. On February 13, 2007
Dr. Tarno noted that a February 2, 2007 cervical MRI scan showed C5-6 degenerative disc
disease with disc narrowing and a mild broad-based annular bulge with minimal stenosis. In an
attending physician’s report of that date, he checked “yes” to the question of whether appellant’s
right shoulder partial rotator cuff tear was employment related. Dr. Tarno indicated that
appellant’s return to work was unknown at that time.
The Office referred appellant to Dr. Aubrey A. Swartz, a Board-certified orthopedic
surgeon, for a second opinion evaluation. In a March 27, 2007 report, Dr. Swartz reviewed the
history of the March 9, 2005 injury and medical treatment, finding no evidence of treatment from
September 2005 to September 2006. He listed appellant’s present complaint of cervical and
right shoulder pain with numbness extending to the right hand and fingers. Appellant described
her duties as a conductor for the railroad and that she last worked on February 12, 2007. On
physical examination, Dr. Swartz provided range of motion for the cervical spine and right
shoulder and described full motor function. There was no atrophy of either upper extremity and
sensation was intact in both. Pain on impingement testing of the right shoulder was noted.
Dr. Swartz diagnosed chronic degenerative disc disease at C5-6 and chronic tendinosis/
tendinopathy of the right shoulder with a probable small partial thickness tear of the distal
infraspinatus. He based the diagnoses on the imaging studies, noting that appellant’s physical
1

On June 23, 2005 Dr. Jerrold M. Sherman, a Board-certified orthopedic surgeon, examined appellant. He
examined her cervical spine and both upper extremities, noting range of motion of the right shoulder was normal and
pain free without any muscle wasting; x-rays showed not arthritis or soft tissue calcifications. Dr. Sherman
diagnosed a resolved right shoulder strain without any neurologic deficit or evidence of nerve root compression. He
concluded that appellant had no residuals of her accepted conditions.

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examination did not reveal any objective findings. Dr. Swartz stated that the March 9, 2005
injury had aggravated appellant’s cervical and right shoulder conditions but that the aggravation
was temporary and ceased by July 2005 when Dr. Grover found that she had improved and could
return to her regular duties. He noted that appellant’s complaints were not supported by
objective findings and that her cervical and right shoulder conditions were degenerative and
nonindustrial. Dr. Swartz advised that she need no further medical treatment for the March 9,
2005 injury as there were no residuals of the accepted strains and she did not require any
physical limitations. He found that appellant’s March 9, 2005 injury consisted of a relatively
mild strain which resolved by July 16, 2005.
On May 23, 2007 Dr. Tarno reviewed the report of Dr. Swartz and disagreed with his
conclusion that appellant no longer had any employment-related residuals or disability. He noted
that appellant received treatment from Dr. Grover but he did not have any medical records from
her previous treating physicians. Dr. Tarno stated that, prior to the March 9, 2005 employment
injury, appellant had no radicular or cervical spine symptoms and she did not report any other
injury after March 2005 to the time he saw her on January 24, 2007. He attributed appellant’s
cervical and radicular symptoms to her March 9, 2005 injury and advised that her present
symptoms were the natural progression of that injury. Dr. Tarno stated that there was no specific
treatment plan for the right shoulder in 2005 but, in January 2007, there was evidence of a partial
rotator cuff tear. He noted that appellant had pain on impingement testing of the rotator cuff, as
was found by Dr. Swartz, and demonstrated less than full strength of the right upper extremity.
Dr. Tarno concluded that she presently had an aggravation of her prior industrial injury and
recommended work restrictions limiting use of her right arm. He recommended that appellant be
referred for arthroscopic evaluation of the right rotator cuff and undergo neurological evaluation
of her cervical spine.2
Appellant submitted medical records and physical therapy reports from 2005 through
2007. In notes dated July 11 and August 9, 2007, Dr. Michael J. Crovetti, a Board-certified
osteopath, noted that appellant was seen for right shoulder pain. He related that appellant had
been injured at work in March 2005 and a 2007 MRI scan revealed a rotator cuff tear.
On December 4, 2007 the Office referred appellant to Dr. Swartz for clarification of his
prior opinion. Dr. Swartz was provided a statement of accepted facts that reviewed her duties as
a transportation security screener and subsequent work as of June 4, 2006 as train crew for the
Union Pacific Railroad. In a January 29, 2008 report, he noted that he reexamined appellant that
day and that she had undergone surgery on her right shoulder since his prior evaluation.
Appellant described numbness in the right upper extremity with activities of daily living. On
examination, Dr. Swartz noted tenderness in the right cervico-thoracic region with no actual
muscle spasm. He listed findings on range of motion of the cervical spine and both upper
extremities. Dr. Swartz found that appellant sustained a soft tissue strain of the neck and right
shoulder in the March 9, 2005 employment injury with diagnostic testing revealing degenerative
disc disease and a mild annular bulge at C5-6. He noted minimum pathology on the February 2,
2

The Board notes that the Office initially adjudicated appellant’s claim as a termination of compensation in a
June 7, 2007 decision. This was set aside by an Office hearing representative in an August 28, 2007 decision,
remanding for adjudication of the recurrence issue as of January 2007 and whether appellant’s cervical or right
shoulder conditions were aggravated by the March 9, 2005 injury.

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2007 MRI scan and that the cervical strain would have been a self-limiting soft tissue injury,
unrelated to the findings on this study.
Dr. Swartz advised that he would amend his prior opinion on aggravation as the reports
of Dr. Grover established that appellant’s disability related to the cervical strain had resolved by
July 26, 2005. As to the right shoulder, he noted there were preexisting degenerative changes
but the March 9, 2005 injury again represented a strain which was at maximum improvement by
June 23, 2005, based on the reports of Dr. Sherman who found normal range of motion and
strength. Dr. Swartz noted that appellant received treatment, including spinal injections, for
radiculopathy; however, the electrodiagnostic studies of November 9, 2007 revealed only carpal
tunnel syndrome to both wrists, which was not employment related. He advised that appellant
required no further medical treatment for the March 9, 2005 injury and that her surgery was
based on preexisting pathology to the right shoulder. Dr. Swartz noted that the mechanism of
injury was when a coworker grabbed some bins away from appellant, and there was no evidence
that this manner of injury caused tearing of the supraspinatus, labrum or pathologic changes to
the shoulder or cervical spine. Based on appellant’s record, he noted there was also a tendency
towards symptom magnification. Dr. Swartz concluded that appellant was capable of full-time
employment with physical limitations based on her preexisting degenerative disease.
In a January 9, 2009 progress note, Dr. Jeffrey R. Roberts, a Board-certified
anesthesiologist, stated that appellant was treated for right arm and hand pain and listed her
employment status as disabled.
In a February 20, 2008 decision, the Office denied appellant’s claim for a recurrence of
disability beginning January 2, 2007. It found the weight of the medical evidence was
represented by the opinion of Dr. Swartz who found that her cervical, thoracic and right shoulder
strains had resolved in 2005 with no disability or residuals due to her accepted injury.
In a letter dated February 23, 2008, appellant’s counsel requested an oral hearing that was
held before an Office hearing representative on May 15, 2009. Appellant testified that her
shoulder became progressively worse while working for the railroad. She noted that she had
filed a claim with the railroad due to a worsening of her preexisting shoulder condition.
Appellant submitted treatment notes dated January 16, 2008 through May 6, 2009 from
Dr. Crovetti. In a February 17, 2009 report, Dr. Mark O. Reed, a Board-certified physiatrist,
noted a July 28, 2006 date of injury and appellant’s work as a conductor-brakeman. He advised
that appellant’s injury occurred while repairing a broken coupling between railroad cars when
she experienced right shoulder discomfort while lifting a heavy coupling mechanism.
Dr. Mark B. Kabins, an attending Board-certified orthopedic surgeon, related that appellant
sustained an injury on July 18, 2006 while working for the railroad as a conductor when she
experienced a neck strain. He diagnosed neck pain with upper extremity radiculopathy, C4-5
and C5-6 stenosis and disc osteophyte complex.
On March 16, 2009 Dr. Joseph J. Schifini, a treating Board-certified anesthesiologist,
diagnosed C5-6 and/or C4-5 disc pathology and recommended injection therapy. He stated that
appellant had a long history of neck pain which began as a result of a March 2005 employment
injury while working for the employing establishment. Dr. Schifini noted that her case was

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closed and considered resolved in 2007. In July 2006, appellant sustained an injury while
working for the railroad which was not considered employment related and appellant stopped
work shortly after this injury.
By decision dated August 26, 2009, an Office hearing representative affirmed the
February 20, 2008 decision denying appellant’s recurrence of disability claim. She found that
the weight of medical evidence did not establish that appellant’s disability commencing
January 2, 2007 was due to the accepted injury; rather, the record established that appellant
sustained a new injury on or about July 18, 2006 in private employment.3
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.4 This term also means an inability to work that takes place when a lightduty assignment made specifically to accommodate an employee’s physical limitations due to his
or her work-related injury or illness is withdrawn (except when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties or a reduction-in-force), or when the
physical requirements of such an assignment are altered so that they exceed his or her established
physical limitations.5
A person who claims a recurrence of disability has the burden of establishing by the
weight of the substantial, reliable and probative evidence that the disability, for which he or she
claims compensation is causally related to the accepted employment injury.6 Appellant has the
burden of establishing by the weight of the substantial, reliable and probative evidence a causal
relationship between her recurrence of disability and her employment injury.7 This burden
includes the necessity of furnishing evidence from a qualified physician who, on the basis of a
complete and accurate factual and medical history, concludes that the condition is causally
related to the employment injury.8 Moreover, the physician’s conclusion must be supported by
sound medical reasoning.9

3

The Board notes that following the August 26, 2009 hearing representative’s decision the Office received
additional evidence; however, the Board may not consider new evidence for the first time on appeal. See 20 C.F.R.
§ 501.2(c); M.B., 60 ECAB ___ (Docket No. 09-176, issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G.,
58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
4

20 C.F.R. § 10.5(x).

5

Id. See J.F., 58 ECAB 124 (2006).

6

Kenneth R. Love, 50 ECAB 193, 199 (1998).

7

Carmen Gould, 50 ECAB 504 (1999); Lourdes Davila, 45 ECAB 139 (1993)

8

S.S., 59 ECAB 315 (2008); Ricky S. Storms, 52 ECAB 349 (2001); see also 20 C.F.R. § 10.104(a)-(b).

9

Alfredo Rodriguez, 47 ECAB 437 (1996); Louise G. Malloy, 45 ECAB 613 (1994).

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The medical evidence must demonstrate that the claimed recurrence was caused,
precipitated, accelerated or aggravated by the accepted injury.10 In this regard, medical evidence
of bridging symptoms between the recurrence and the accepted injury must support the
physician’s conclusion of a causal relationship.11 While the opinion of a physician supporting
causal relationship need not be one of absolute medical certainty, the opinion must not be
speculative or equivocal. The opinion should be expressed in terms of a reasonable degree of
medical certainty.12
ANALYSIS
The Office accepted that on March 9, 2005 appellant sustained strains of her cervical,
thoracic and right shoulder strains. Appellant received medical treatment and was returned to
full-duty work on June 17, 2005 at the recommendation of Dr. Grover, an attending physician.
As of July 26, 2005, Dr. Grover released appellant from care, noting that she did not have any
residual impairments. Appellant resigned from the employing establishment effective August 8,
2005 and subsequently went to work at Union Pacific on April 26, 2006. Thereafter, she stopped
work on February 12, 2007. On October 4, 2007 appellant filed a claim for a recurrence of
disability beginning January 2, 2007. The issue is whether the claimed recurrence of disability is
causally related to the accepted March 9, 2005 employment injury.
Dr. Tarno, an attending osteopath, noted that appellant sought treatment on January 22,
2007 for cervical and right shoulder pain. He listed appellant’s history of injury on March 9,
2005 and advised that there was a positive impingement test on the right with negative labral
signs. Dr. Tarno reviewed a January 18, 2007 MRI scan study which showed a partial thickness
tear of the right shoulder supraspinatus and C5-6 degenerative disc disease. He checkmarked
“yes” that appellant’s right shoulder condition was related to the employment injury. The Board
has held that when a physician’s opinion on causal relationship consists only of checking “yes”
to a form question, without explanation or rationale, it is of diminished probative value.13
Dr. Tarno’s reports are also of diminished probative value because he did not review appellant’s
history of employment while with the railroad in the private sector, her history of treatment in
July 2006 for right shoulder discomfort after lifting a heavy coupling mechanism or address how

10

See Ricky S. Storms, supra note 8; see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.2 (June 1995).
11

For the importance of bridging information in establishing a claim for a recurrence of disability, see Richard
McBride, 37 ECAB 748 at 753 (1986)
12

See Ricky S. Storms, supra note 8; Morris Scanlon, 11 ECAB 384, 385 (1960).

13

D.D., 57 ECAB 734 (2006).

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the diagnosed partial tear to the right shoulder related back to the 2005 injury accepted for a soft
tissue strain.14 He did not provide an accurate history or adequate rationale in support of his
stated opinion that appellant’s right shoulder condition was related to her 2005 injury.15
The record indicates that appellant had an intervening injury in July 2006 while working
for Union Pacific. Drs. Kabins, Reed and Schifini all reported that she sustained an employment
injury on or about July 18, 2006 while moving a heavy coupling mechanism. At the hearing,
appellant stated that her shoulder became progressively worse while working for the railroad due
to her work and that she filed a claim with the railroad company for an aggravation of her
preexisting shoulder condition. Neither Dr. Tarno nor Dr. Crovetti adequately explained how her
rotator cuff tear and shoulder pain in January 2007 was the direct or natural result of her
March 2005 employment injury. Their opinions are diminished as they were based on an
inaccurate medical history. The reports from the physicians did not reflect an accurate history of
appellant’s July 2008 injury while working in the private sector. Medical conclusions based on
inaccurate or incomplete histories are of little probative value and are insufficient to satisfy a
claimant’s burden of proof.16 The opinions of Dr. Tarno and Dr. Crovetti are not sufficient to
meet appellant’s burden of proof.
The Board finds that the weight of medical opinion is represented by the reports of
Dr. Swartz, a Board-certified orthopedic surgeon who provided a second opinion examination.
On March 27, 2007 Dr. Swartz reviewed an accurate history of the accepted injury, advising that
the medical record established that appellant had recovered from the accepted strains by
July 2005, when she was released from treatment by Dr. Grover. He recorded a history of her
work with the railroad, noting that she last worked on February 12, 2007. Dr. Swartz listed
findings on physical examination and diagnosed chronic degenerative disc disease at C5-6 and
chronic tendinosis of the right shoulder with a probable tear of the supraspinatus tendon. On
January 29, 2008 he clarified that appellant had sustained soft tissue strains of her neck and right
shoulder on March 9, 2005 and diagnostic testing at that time revealed degenerative disc disease
with a mild annular bulge at C5-6. Dr. Swartz compared this with the February 2, 2007 MRI
scan, advising that the findings were not related to the 2005 injury. He again referred to the
treatment records of Dr. Grover and reiterated that appellant’s accepted strains had resolved by
July 26, 2005. Dr. Swartz addressed the mechanism of injury on March 9, 2005, finding that this
was not competent to cause a tear of the supraspinatus tendon. He advised that appellant
required physical limitations in full-time employment, but these restrictions were due to her
degenerative disease without contribution by the 2005 injury.
14

The Board notes that the January 18, 2007 MRI scan was obtained some 20 months following the accepted
injury. The Board has held that, when diagnostic testing is delayed, uncertainty mounts regarding the cause of the
diagnosed condition and a question arises as to whether that testing in fact documents the injury claimed by the
employee. The greater the delay in testing, the greater the likelihood that an event not related to employment has
caused or worsened the condition for which the employee seeks compensation. When the delay becomes so
significant that it calls into question the validity of an affirmative opinion based at least in part on the testing, such
delay diminishes the probative value of the opinion offered. See Linda L. Mendenhall, 41 ECAB 532 (1990).
15

T.M., 60 ECAB ___ (Docket No. 08-975, issued February 6, 2009); Roma A. Mortenson-Kindschi, 57 ECAB
418 (2006).
16

M.W., 57 ECAB 710 (2006); John W. Montoya, 54 ECAB 306 (2003).

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The Board finds that the opinion of Dr. Swartz is based on an accurate history of injury
and medical treatment. Dr. Swartz reported thorough findings on examination of appellant and
compared the diagnostic studies of record. His opinion constitutes the weight of medical opinion
in this case.
CONCLUSION
The Board finds that appellant failed to establish that she sustained a recurrence of
disability commencing January 2, 2007 causally related to her accepted March 9, 2005
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the August 26, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 18, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hartford, CT, Employer
__________________________________________

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

Docket No. 11-1099
Issued: February 24, 2012

Case Submitted on the Record

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

JURISDICTION
On April 1, 2011 appellant filed an application for review of a October 22, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her claim.
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 the case.
ISSUE
The issue is whether appellant sustained a recurrence of her medical condition, requiring
further medical treatment.
FACTUAL HISTORY
On December 31, 2008 appellant, then a 48-year-old secretary, filed a traumatic injury
claim, alleging that she slipped on a snow covered surface in the parking lot and landed on her
right hip. She did not stop work but was restricted to lifting of 10 to 15 pounds and received
1

5 U.S.C. § 8101 et seq.

physical therapy. As of March 24, 2009, Dr. Aris D. Yannopoulos, a Board-certified orthopedic
surgeon, advised that appellant was returned to her regular work status.
Appellant’s claim was accepted by OWCP for lumbar sprain and contusion. On April 9,
2009 she was examined by Dr. Yannopoulos, who noted that her muscle strain was improving
and that she would be seen again on an as needed basis.
On January 22, 2010 appellant filed a claim alleging that she sustained a recurrence of the
accepted medical condition on January 21, 2010. She was filing paperwork while sitting, then
bent over and experienced severe pain in her legs. Appellant believed her present condition was
related to the accepted injury. She did not stop work.
In a March 16, 2010 letter, OWCP advised appellant that the evidence of record was
insufficient to establish her recurrence claim. It requested that she submit a statement with
additional details concerning the claimed recurrence, together with a narrative medical report
from her attending physician explaining how her condition on or after January 21, 2010 was
related to the accepted work injury.
On April 8, 2010 appellant described the circumstances of her injury, her work and daily
activities, as well as the history of medical treatment. She submitted several prescriptions for
medication and physical therapy from Dr. Yannopoulos.
In an April 16, 2010 decision, OWCP denied appellant’s claim. It found that she did not
establish that her medical condition as of January 21, 2010 or need for medical treatment was
due to the accepted work injury.
On April 27, 2010 appellant requested a review of the written record before the Branch of
Hearings and Review. She submitted several medical reports from Dr. Yannopoulos. An
April 7, 2010 progress note advised that appellant had returned for examination one year after
her last visit, for complaints of back pain. Dr. Yannopoulos listed her medications as Prozac,
Prevacid and Prednisone for systemic lupus. On physical examination, he noted that appellant’s
findings were essentially normal, except for sensitivity to light touch along the paraspinal
muscles and sensitivity to flexion of the hips and knees indicative of a muscle strain.
Dr. Yannopoulos recommended anti-inflammatory medication and a program of physical
therapy.
In an April 13, 2010 report, Dr. Yannopoulos stated that appellant originally slipped and
fell on December 31, 2008, sustaining lumbosacral muscle strain. He prescribed physical
therapy and anti-inflammatories. While noting that the treatment rendered for appellant’s lower
back pain was the result of the December 31, 2008 incident, Dr. Yannopoulos advised that
appellant did not require any further treatment as of April 7, 2010. There was no evidence of any
pathology that warranted any further treatment.
On May 4, 2010 Dr. Yannopoulos stated that appellant’s magnetic resonance imaging
(MRI) scan revealed evidence of disc protrusions at L4-5 and L5-S1, but there was no evidence
of any fracture, dislocation or other acute boney pathology. He listed findings on physical
examination, noting no evidence of any radiculopathy in the lumbar region. Appellant
complained of diffuse back pain and Dr. Yannopoulos advised of a 40 percent false positive rate
2

to MRI scan studies not supported by physical examination. Dr. Yannopoulos did not
recommend surgery, injections or further treatment of appellant’s back condition. He stated
“there is nothing further to add to this patient’s care from an orthopedic standpoint in my
opinion.”
Appellant also submitted a June 2, 2010 report from Dr. Hilary C. Onyiuke, a Boardcertified neurosurgeon, who diagnosed appellant with lumbar spinal stenosis associated with
degenerative disc disease and disc space collapse. A bi-level transforaminal inter-lumbar fusion
was generally recommended.
In an October 22, 2010 decision, an OWCP hearing representative affirmed the April 16,
2010 decision. The hearing representative found that the record did not contain a rationalized
medical narrative explaining how appellant’s need for medical treatment on or after January 21,
2010 was due to the accepted injury of December 31, 2008.
LEGAL PRECEDENT
The recurrence of a medical condition is defined under the implementing federal
regulations as a documented need for further medical treatment after release from treatment for
the accepted condition or injury when there is no accompanying work stoppage. Continuous
treatment for the original condition or injury is not considered a “need for further medical
treatment,” nor is an examination without treatment.2
The individual who claims a recurrence due to an accepted employment-related injury
has the burden of establishing by the weight of the substantial, reliable and probative evidence
that the condition or disability for which compensation is claimed is causally related to the
accepted employment injury. As part of this burden, the employee must submit rationalized
medical evidence from a physician who, on the basis of a complete and accurate factual and
medical history, concludes that the current disabling condition is causally related to the accepted
employment-related condition and supports that conclusion with sound medical reasoning.3
ANALYSIS
The Board finds that appellant did not submit sufficient medical evidence to establish a
recurrence of her medical condition on January 21, 2010 due to her December 31, 2008 injury.
The December 31, 2008 injury was accepted by OWCP for a lumbar sprain and
contusion. Appellant came under the treatment of Dr. Yannopoulos who prescribed physical
therapy sessions and provided findings on physical examination. Dr. Yannopoulos initially
restricted her to limited duty of no lifting over 10 to 15 pounds. On March 24, 2009 he noted an
excellent range of motion, noted negative straight leg raising bilaterally, with deep tendon
reflexes intact. Dr. Yannopoulos stated that appellant was doing much better and able to perform
her regular duty at work. As of April 21, 2009, he advised that he recommended following
2

20 C.F.R. § 10.5(y).

3

Bernard Snowden, 49 ECAB 144, 148 (1997).

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physical therapy guidelines and take occasional anti-inflammatory medication. Dr. Yannopoulos
advised that he would see appellant again on an as needed basis.
Appellant filed a claim for a recurrence and sought medical treatment only as of
January 21, 2010. On April 7, 2010 Dr. Yannopoulos saw her after a one-year absence. The
record establishes that appellant did not obtain continuous treatment following the 2009 injury.
She must therefore establish that her need for further medical treatment is for the accepted
lumbar sprain or contusion condition. Dr. Yannopoulos noted only that appellant’s symptoms
were consistent with a diagnosis of muscle strain; but he did not address her return to full-duty
work in April 2009 or explain how the accepted injury would cause or contribute to the medical
condition for which she sought treatment in 2010. He made reference to her accepted condition,
but also stated that there was “no evidence of any pathology that warrants any further treatment.”
Dr. Yannopoulos noted that appellant underwent diagnostic testing by MRI scan that showed
evidence of disc protrusion at L4-5 and L5-S1; but he noted that he could not find any evidence
of radiculopathy on physical examination. He advised that she was not a surgical candidate that
commented about a 40 percent false positive rate to MRI scan testing.
The Board finds that Dr. Yannopoulos, the attending physician, did not provide sufficient
medical rationale explaining how appellant’s need for medical care commencing January 2010
related to the 2008 fall at work, accepted for a lumbar sprain and contusion. His May 4, 2010
report generally noted a history of treatment for the December 2008 injury, but he commented
that her findings on examination did not support any disc condition or radiculopathy.
Dr. Yannopoulos noted that appellant’s back complaints did not warrant any further treatment, as
of April 7, 2010.
Appellant was also seen by Dr. Oniyuke, who diagnosed lumbar spinal stenosis with
degenerative disc, and disc space collapse, but the physician did not relate the diagnoses to
appellant’s December 2008 injury. The Board notes that these diagnoses are different than those
listed by Dr. Yannopoulos. Dr. Oniyuke did not provide a narrative medical opinion explaining
the causal relationship between the diagnoses made and appellant’s accepted injury in 2008.
Therefore, her opinion is of diminished probative value.
The Board finds that appellant failed to submit sufficient medical evidence to establish a
recurrence of her accepted medical condition. Appellant may submit additional evidence,
together with a written request for reconsideration, to OWCP within one year of the Board’s
merit decision pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish a recurrence
of her accepted medical condition.

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ORDER
IT IS HEREBY ORDERED THAT the October 22, 2010 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: February 24, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Page, AZ, Employer
__________________________________________

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

Docket No. 15-1354
Issued: October 20, 2015

Case Submitted on the Record

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

JURISDICTION
On June 1, 2015 appellant filed a timely appeal from a May 8, 2015 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 the case.2
ISSUE
The issue is whether appellant met his burden of proof to establish an occupational
disease causally related to factors of his federal employment.

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted new evidence on appeal. However, the Board cannot consider evidence that was not before
OWCP at the time of its final decision. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On April 14, 2014 appellant, then a 55-year-old clerk, filed an occupational disease claim
(Form CA-2) alleging that he strained his lower right back by lifting parcels and trays of mail.
He stated that he had a slight pain worsened over time. Appellant noted becoming aware of his
condition on April 4, 2014. He stopped work on April 7, 2014 and returned on April 10, 2014.
The employing establishment challenged the claim, stating that the medical evidence indicated
that appellant’s injury occurred at home.
In April 15 and 17, 2014 letters, the employing establishment alleged that appellant had a
preexisting low back condition that was reinjured in a nonwork-related incident occurring at his
home.
In an April 23, 2014 letter, OWCP informed appellant that the evidence of record was
insufficient to establish that he actually experienced the alleged employment factors. It advised
him to provide medical evidence including a physician’s opinion, supported by a medical
explanation, as to how work factors caused or aggravated a diagnosed condition.
OWCP received an April 7, 2014 report from Dr. Raymond Holsten, Board-certified in
family and geriatric medicine.3 Dr. Holsten noted that appellant presented with lower back pain
and sciatica symptoms “over a month ago.” Although appellant’s condition had improved, he
“twisted [it] again while working around his house.” His current complaints included right-sided
back pain with radiation into the posterior thigh and calf. Physical examination revealed
posterior tenderness to palpation bilaterally from L3 to L5. X-rays revealed no fracture.
Dr. Holsten diagnosed sciatica and recommended physical therapy.
An April 15, 2014 employing establishment incident report reflects that appellant was
lifting 11- to 20-pound trays of mail and tubs of flats on April 4, 2014. Appellant felt a twinge in
his back, but continued to work throughout the day. He sought medical attention on April 7,
2014 for lower back strain.
Appellant provided an April 16, 2014 physical therapy report indicating that he began
experiencing lower back and right leg pain on April 4, 2014. He noted a history of back pain
from a work-related injury in 1991 and another incident “some years later.” Other physical
therapy reports dated April 17 to May 1, 2014 documented appellant’s progression through
physical therapy.
On April 28, 2014 appellant presented for a follow-up examination with Dr. Holsten for
continued right lumbar and radicular pain. Dr. Holsten reported that appellant reinjured his
lower back on April 17, 2014. Physical examination revealed posterior tenderness with
palpation of the bilateral lumbar spine from L2 to L5. Dr. Holsten diagnosed consistent lumbago
and ordered a magnetic resonance imaging (MRI) scan. In an April 28, 2014 Family and
Medical Leave Act (FMLA) form, appellant’s duties were described as distributing mail and
packages to customers. Dr. Holsten recorded April 4, 2014 as the date of injury and noted that
appellant required intermittent time off to complete a course in physical therapy.
3

OWCP had previously received an incomplete copy of the report.

2

By report dated April 30, 2014, Dr. Robert Aizenstein, a Board-certified diagnostic
radiologist, noted findings from a lumbar MRI scan. His impressions included moderate
bilateral neural foraminal stenosis at L4-5 secondary to a small disc bulge and facet arthrosis,
and mild degenerative disc disease and facet arthrosis at several additional levels, but with no
other significant canal or foraminal compromise.
In a May 5, 2014 report, Dr. Holsten related that appellant was seen on February 24 and
April 7, 17, and 28, 2014 for continued lumbar midline pain and paraspinous, with radiation on
occasion to the right thigh/calf and foot. An April 8, 2014 x-ray revealed significant facet
arthropathy at L5-S1. Dr. Holsten noted that appellant’s pain was recently exacerbated by lifting
and prolonged standing at work. He diagnosed degenerative disc disease and right-sided
sciatica, opining that the conditions were “likely exacerbated by work activities.”
A May 29, 2014 work status note bearing an illegible signature provided that appellant
could return to duty on June 2, 2014.
In a July 9, 2014 decision, OWCP denied appellant’s claim finding the medical evidence
insufficient to establish that appellant’s condition was causally related to his employment.4
On July 15, 2014 appellant requested an oral hearing before an OWCP hearing
representative. A hearing was held on February 13, 2015. Appellant testified that he was lifting
trays of mail in April 2014, and felt a twinge in his back. The pain progressively worsened and
appellant was placed in a light-duty position. According to appellant, on April 17, 2014, he bent
down to pick up a package and “hurt [his] back even worse.”
In a February 27, 2015 report, Dr. Holsten reported that appellant suffered from low back
pain for months prior to filing his claim. He opined that appellant’s condition was exacerbated
by lifting heavy objects at work on April 17, 2014. This, in turn, caused evidence of sciatic
nerve irritation. Dr. Holsten opined that appellant’s worsening lower back pain and “nerve
compression symptoms [were] a direct result of a work[-]related injury on” April 17, 2014.
In a March 17, 2015 letter, the employing establishment reiterated its controversion of the
claim.
On May 8, 2015 an OWCP hearing representative affirmed the July 9, 2014 decision.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence,5 including that he or she is an employee within the meaning of FECA6 and that a claim
4

The employing establishment, in a July 15, 2014 letter, advised appellant to return to full duty as OWCP denied
his claim.
5

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

6

See M.H., 59 ECAB 461 (2008); see 5 U.S.C. § 8101(1).

3

was filed within the applicable time limitation.7 The employee must also establish that he or she
sustained an injury in the performance of duty as alleged and that his or her disability for work, if
any, was causally related to the employment injury.8
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.9
Causal relationship is a medical issue10 and the medical evidence generally required to
establish causal relationship is rationalized medical evidence. 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.11
ANALYSIS
The record supports that appellant’s duties included lifting parcels and trays of mail. The
Board, however, finds that appellant failed to submit medical evidence sufficient to establish a
causal relationship between his federal employment duties and his lower back condition.
Appellant submitted multiple reports from Dr. Holsten dated April 7, 2014 to
February 27, 2015. In these reports, Dr. Holsten diagnosed degenerative disc disease, right-sided
sciatica, and lumbago. His most contemporaneous report, his April 7, 2014 report, attributed
appellant’s symptoms to a nonwork-related incident when he twisted his back at home.
Dr. Holsten did not indicate that work factors contributed to appellant’s condition in any way. In
his May 5, 2014 report, Dr. Holsten noted that appellant’s sciatica was “likely” exacerbated by
work activities, such as prolonged standing and lifting. The Board notes that this report is
vague12 and failed to medically explain the pathophysiological process by which such duties
would have caused or aggravated appellant’s condition.13 In his February 27, 2015 statement,
7

R.C., 59 ECAB 427 (2008); see 5 U.S.C. § 8122.

8

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

9

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

10

Mary J. Briggs, 37 ECAB 578 (1986).

11

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

12

See T.H., Docket No. 15-311 (issued June 2, 2015) (physician’s opinion that employee’s injury was “most
likely” attributable to work factors was considered speculative and insufficient to establish claim); Ricky E. Storms,
52 ECAB 349 (2001) (medical opinions which are speculative or equivocal in character have little probative value).
13

Solomon Polen, 51 ECAB 341 (2000) (rationalized medical evidence must relate specific employment factors
identified by the claimant to the claimant’s condition, with stated reasons by a physician).

4

Dr. Holsten opined that appellant’s lower back pain with nerve compression symptoms was a
direct result of lifting heavy objects on April 17, 2014. Dr. Holsten attributed appellant’s lower
back injury to a traumatic incident from a single occurrence on April 17, 2014, rather than an
occupational injury, as alleged by appellant in his claim.14 Moreover, Dr. Holsten again failed to
explain how heavy lifting would have caused or contributed to the diagnosed condition. The
need for a clear rationale is particularly important in this case considering the preexisting lower
back injuries, degenerative disc disease, and the nonwork-related incident.15 Dr. Holsten also did
not attempt to clarify the inconsistency in his initial April 7, 2014 report which attributed
appellant’s condition to a twisting incident at home and his later reports which suggested that
work activities contributed to his condition.16
Other medical reports of record are of limited probative value as they do not provide an
opinion on the causal relationship between appellant’s work duties and his injury.17 The physical
therapy reports do not constitute competent medical evidence as physical therapists are not
considered physicians as defined in 5 U.S.C. § 8101(2).18
On appeal, appellant refers to an OWCP-developed back injury incurred in 2000,
evidence of which is not before the Board on appeal. The Board notes that the issue on appeal is
whether appellant sustained a new occupational disease in the performance of duty. For the
reasons stated above, the Board finds that appellant did not meet his burden of proof.
Appellant may submit new evidence or argument as part of a formal 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 did not meet his burden of proof to establish an
occupational disease causally related to factors of his federal employment.

14

A traumatic injury means a condition of the body caused by a specific event or incident, or series of events or
incidents, within a single workday or shift. 20 C.F.R. § 10.5(ee). An occupational disease is defined as a condition
produced by the work environment over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
15

See M.W., Docket No. 15-15 (issued February 24, 2015).

16

See S.S., 59 ECAB 315 (2008) (the Board has held that contemporaneous evidence is entitled to greater
probative value than later evidence).
17

See Jaja K. Asaramo, 55 ECAB 200 (2004) (medical evidence that does not provide any opinion regarding the
cause of an employee’s condition is of limited probative value).
18

The term physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors,
and osteopathic practitioners within the scope of their practice as defined by State law. 5 U.S.C. § 8101(2); L.B.,
Docket No. 13-1253 (issued September 18, 2013) (physical therapists do not qualify as physicians under FECA and,
therefore, their medical reports do not qualify as probative medical evidence, unless such medical reports are
countersigned by a physician).

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ORDER
IT IS HEREBY ORDERED THAT the May 8, 2015 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: October 20, 2015
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.L., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Cincinnati, OH,
Employer
__________________________________________

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

Docket No. 09-367
Issued: September 16, 2009

Case Submitted on the Record

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

JURISDICTION
On November 17, 2008 appellant filed a timely appeal from March 31 and October 27,
2008 decisions of the Office of Workers’ Compensation Programs, adjudicating his claim for a
schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant has more than 18 percent permanent impairment of the left
lower extremity for which he received a schedule award.
FACTUAL HISTORY
On February 21, 2003 appellant, then a 54-year-old letter box mechanic, filed a claim for
a traumatic injury on February 1, 2003 when he struck his left ankle on the corner of a wooden
cart while he was moving a collection box. The Office accepted his claim for a left ankle
contusion and a left leg peroneal tendon tear. On September 4, 2003 appellant underwent repair

of a left peroneal rupture performed by Dr. Robert A. Raines, Jr., his attending Board-certified
orthopedic surgeon. He returned to full work duties on October 20, 2003. On August 24, 2004
appellant filed a claim for a schedule award.1
In reports dated August 23, September 14 and December 17, 2004, Dr. Raines provided
findings on physical examination and diagnosed a left peroneal tendon tear with long-term
residual pain occurring primarily in the evening after appellant finished work. There was some
stiffness in appellant’s left ankle but swelling was decreasing. He had pain and significant
soreness proximal to the tip of the lateral malleolus. Appellant was able to evert his foot and had
no peroneal tendon dislocation. Dorsiflexion was 0 degrees, plantar flexion 30 degrees,
inversion 20 degrees and eversion 10 degrees. Subjective symptoms included pain and moderate
to severe discomfort around the surgical site and a slight limp. Dr. Raines stated that appellant
had reached maximum medical improvement. He calculated 3 percent whole body impairment,
7 percent left lower extremity impairment and 10 percent left foot impairment due to decreased
range of motion.
On February 5, 2005 an Office medical adviser calculated 11 percent impairment of
appellant’s left lower extremity, including 7 percent for 0 degrees of dorsiflexion, based on Table
17-11 at page 537 of the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides), 2 percent for 20 degrees of inversion
and 2 percent for 10 degrees of eversion, based on Table 17-12 at page 537. Plantar flexion of
30 degrees was normal based on Table 17-11.
By decision dated June 27, 2008, the Office granted appellant a schedule award based on
11 percent impairment of the left lower extremity for 31.68 weeks, from August 23, 2004 to
April 1, 2005.2 Appellant requested a telephonic hearing before an Office hearing representative
that was held on November 29, 2005.
By decision dated February 14, 2006, the Office hearing representative affirmed the
June 27, 2005 decision on the grounds that the evidence established that appellant had no more
than 11 percent impairment of his left upper extremity.
On June 21, 2007 appellant filed a claim for an additional schedule award. In reports
dated April 23 and June 14, 2007, Dr. Raines reviewed the medical history and provided findings
on physical examination. He stated that appellant continued to have left ankle problems
following surgery, including rolling and instability. There was intermittent left ankle pain.
Appellant’s left ankle felt very weak and the weakness worsened with increased activity and
walking. Dorsiflexion was 10 degrees, plantar flexion 30 degrees, inversion 25 degrees and
eversion 15 degrees.3 There was no left foot swelling, no angular deformity, no ulcers or
1

Appellant has a separate claim under File No. xxxxxx165 accepted for a lumbar sprain and strain, a displaced
lumbar disc and radiculopathy.
2

The Federal Employees’ Compensation Act provides for 288 weeks of compensation for 100 percent loss or loss
of use of the lower extremity. 5 U.S.C. § 8107(c)(2). Multiplying 288 weeks by 11 percent total for the left lower
extremity equals 31.68 weeks of compensation.
3

The plantar flexion, inversion and eversion range of motion measurements are all normal based on Table 17-11
and 17-12 at page 537.

2

calluses and no crepitus. Palpation revealed tenderness over the lateral ligaments. There was
minimal tenderness over the peroneal ligaments and ankle laxity with guarding. X-rays revealed
no pathology. Dr. Raines diagnosed left ankle instability and opined that appellant had seven
percent whole person impairment based on the A.M.A., Guides. On July 3, 2007 the Office
requested additional information from Dr. Raines.
In a July 20, 2007 report, Dr. Raines stated that appellant had seven percent whole person
impairment for mild left lower extremity gait derangement based on Table 17-5 at page 529 of
the A.M.A., Guides. He had atrophy of his left calf with soreness and diminished circumference
of 1 centimeter (cm). There were no significant sensory changes. Appellant had a significant
problem with instability; he was prone to inversion injuries because of weakness of the
restraining ligaments and tendons and pain on the lateral side of his left foot. Range of motion
was unchanged from his June 14, 2007 visit.
In a December 12, 2007 report, an Office medical adviser calculated 18 percent left lower
extremity impairment for mild gait derangement, based on Table 17-5 at page 529 and Table
17-3 at page 527 (comparing lower extremity impairment to whole person impairment) of the
A.M.A., Guides based on Dr. Raines’ July 20, 2007 report. He noted that restricted ankle range
of motion and 1 cm of atrophy of the calf muscles could not be combined with impairment due to
gait derangement, according to Table 17-2 at page 526, the cross-usage chart.
By decision dated March 31, 2008, the Office granted appellant an additional schedule
award for seven percent impairment to his left lower extremity for 20.16 weeks from April 2 to
August 21, 2005. Combined with the 11 percent previously awarded, appellant received
schedule awards totaling 18 percent left lower extremity impairment.4
Appellant requested a telephonic hearing that was held on August 14, 2008. He
subsequently submitted an August 25, 2008 report from Dr. Raines, which was identical to his
July 20, 2007 report with the exception that it did not contain the first sentence in the 2007
report, “I am responding to your letter dated July 3, 2007 and will provide the information that
you need.” In a separate August 25, 2008 report, Dr. Raines stated that appellant’s right and left
ankle range of motion included 20 degrees of left ankle dorsiflexion, 50 degrees plantar flexion,
35 degrees inversion and 15 degrees eversion. Appellant had daily soreness and muscle cramps
at night. His ankle was not 100 percent stable but he walked without gait assistance.
By decision dated October 27, 2008, an Office hearing representative affirmed the
January 2, 2008 decision on the grounds that the evidence established that appellant had no more
than 18 percent impairment to his left lower extremity.5
4

The Office did not combine the 18 percent impairment for gait derangement with the 11 percent impairment for
loss of range of motion because, as noted, gait derangement impairment cannot be combined with range of motion
impairment according to Table 17-2 of the A.M.A., Guides. It deducted the 11 percent impairment previously
awarded for loss of range of motion from the 18 percent impairment for gait derangement, resulting in 7 percent
additional impairment.
5

Subsequent to the October 27, 2008 Office decision, additional evidence was associated with the file. The
Board’s jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See
20 C.F.R. § 501.2(c). The Board may not consider this evidence for the first time on appeal.

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LEGAL PRECEDENT
Section 8107 of the Act6 authorizes the payment of schedule awards for the loss or loss of
use of specified members, organs or functions of the body. Such loss or loss of use is known as
permanent impairment. The Office evaluates the degree of permanent impairment according to
the standards set forth in the specified edition of the A.M.A., Guides.7
The A.M.A., Guides provides for three separate methods for calculating the lower
extremity permanent impairment of an individual: anatomic, functional and diagnosis based.8
The anatomic method involves noting changes, including muscle atrophy, nerve impairment and
vascular derangement, as found during physical examination.9 The diagnosis-based method may
be used to evaluate impairments caused by specific fractures and deformities, as well as
ligamentous instability, bursitis and various surgical procedures, including joint replacements
and meniscectomies.10 The functional method is used for conditions when anatomic changes are
difficult to categorize or when functional implications have been documented and includes range
of motion, gait derangement and muscle strength.11 The evaluating physician must determine
which method best describes the impairment of a specific individual based on patient history and
physical examination.12 When uncertain about which method to use, the evaluator should
calculate the impairment using different alternatives and choose the method or combination of
methods that gives the most clinically accurate impairment rating.13 If more than one method
can be used, the method that provides the higher impairment rating should be adopted.14
ANALYSIS
The impairment calculations for appellant’s left lower extremity are based on the
functional method for calculating lower extremity impairment. In 2004, Dr. Raines calculated
three percent whole body impairment and seven percent left lower extremity impairment due to
decreased range of motion which included dorsiflexion of 0 degrees, plantar flexion of 30
degrees, inversion of 20 degrees and eversion of 10 degrees. Chapter 15 provides for
determination of impairment based on the “whole person;”15 however, the Act does not provide
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404 (1999).
(5 ed. 2001).

Effective February 1, 2001, the Office began using the A.M.A., Guides

th

8

A.M.A., Guides 525.

9

Id.

10

Id.

11

Id. at 525, Table 17-1.

12

Id. at 548, 555.

13

Id. at 526.

14

Id. at 527, 555.

15

See id at section 15.12, Nerve Root and/or Spinal Cord.

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for a schedule award based on permanent impairment of the whole person.16 An Office medical
adviser applied appellant’s left ankle range of motion measurements to the applicable section of
the A.M.A., Guides and correctly calculated 11 percent impairment of appellant’s left lower
extremity, including 7 percent for 0 degrees of dorsiflexion (extension), based on Table 17-11 at
page 537, 2 percent for 20 degrees of inversion and 2 percent for 10 degrees of eversion, based
on Table 17-12 at page 537.17
On June 21, 2007 appellant filed a claim for an additional schedule award. In reports
dated April through July 2007, Dr. Raines stated that appellant continued to have left ankle
problems following surgery, including rolling and instability. Appellant’s left ankle felt very
weak and the weakness worsened with increased activity and walking. Dr. Raines diagnosed left
ankle instability and opined that appellant had seven percent whole person impairment for mild
left lower extremity gait derangement based on Table 17-5 at page 529 of the A.M.A., Guides.
Table 17-5 provides for whole person impairment from 7 to 15 percent for whole person
impairment due to mild gait derangement. Dr. Raines determined that the lowest impairment
percentage of seven percent was appropriate based on appellant’s physical findings. Whole
person impairment of 7 percent equals a maximum of 18 percent lower extremity impairment
according to Table 17-3 at page 527. Appellant had a 1 cm atrophy of his left calf.
Measurement of his ankle range of motion revealed that he had increased range of motion since
2004 and no longer had impairment due to loss of range of motion. An Office medical adviser
calculated 18 percent left lower extremity impairment for mild gait derangement, based on Table
17-5 at page 529 and Table 17-3 at page 527 of the fifth edition of the A.M.A., Guides. He
noted that impairment due to decreased range of motion and atrophy could not be combined with
impairment due to gait derangement, according to Table 17-2 at page 526, the cross-usage chart.
On March 31, 2008 the Office granted appellant an additional schedule award for
seven percent impairment to his left lower extremity for gait derangement. It deducted the
11 percent impairment previously awarded because, as noted, impairment due to gait
derangement cannot be combined with impairment due to loss of range of motion.
Appellant submitted an August 25, 2008 report from Dr. Raines, which was substantially
identical to his July 20, 2007 report. Dr. Raines calculated seven percent whole person
impairment based on mild gait derangement. This report is not sufficient to establish that
appellant has more than 18 percent impairment already awarded because it is virtually identical
to the July 20, 2007 report, which the Office medical adviser used in calculating appellant’s
18 percent left lower extremity impairment. In the second August 25, 2008 report, Dr. Raines
stated that appellant’s right and left ankle range of motion included 20 degrees of left ankle
dorsiflexion, 50 degrees plantar flexion, 35 degrees inversion and 15 degrees eversion. These
range of motion measurements are all normal based on Tables 11 and 12 at page 537 of the
A.M.A., Guides. Dr. Raines stated that appellant had daily soreness and muscle cramps at night.
Appellant’s ankle was not 100 percent stable but he walked without gait assistance. Dr. Raines
did not, however, provide an impairment calculation in the second report, therefore, it does not
establish that appellant has more than 18 percent left lower extremity impairment.
16

Tania R. Keka, 55 ECAB 354 (2004); Guiseppe Aversa, 55 ECAB 164 (2003).

17

As noted, plantar flexion of 30 degrees was normal based on Table 17-11.

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The Board finds that appellant failed to establish that he has more than 18 percent
impairment of his left lower extremity, for which he received schedule awards.
On appeal, appellant states that he experiences pain and cramps in his lower left leg
which wakes him up at night, weakness in his left ankle which causes instability and other
problems which he addressed at the August 14, 2008 telephonic hearing, including increased
pain and rolling over of his ankle. His left ankle symptoms were thoroughly addressed by
Dr. Raines. Appellant’s testimony regarding his left ankle symptoms in the August 14, 2008
telephonic hearing is contained in the hearing transcript which is of record. There is no
information in appellant’s appeal letter that has not been considered by the Board in this
decision.
CONCLUSION
The Board finds that appellant failed to establish that he has more than 18 percent
impairment of his left lower extremity, for which he received schedule awards.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 27 and March 31, 2008 are affirmed.
Issued: September 16, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF THE AIR FORCE, HILL
AIR FORCE BASE, Clearfield, UT, Employer
__________________________________________

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

Docket No. 19-0513
Issued: September 24, 2019

Case Submitted on the Record

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

JURISDICTION
On January 8, 2019 appellant, through counsel, filed a timely appeal from a December 7,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that following the December 7, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish that the acceptance
of her claim should be expanded to include cervical spine conditions consequential to her accepted
November 8, 2005 employment injury.
FACTUAL HISTORY
On November 23, 2005 appellant, then a 33-year-old electrical equipment repairer, filed a
traumatic injury claim (Form CA-1) alleging that on November 8, 2005 she injured her right
shoulder when pulling the arm of a manual press while in the performance of duty. She stopped
work on January 26, 2006. Appellant resigned from her position effective January 27, 2006.
OWCP accepted her claim for right shoulder impingement syndrome; right shoulder tendinitis;
and right shoulder partial rotator cuff tear. Appellant initially received wage-loss compensation
and medical benefits on the supplemental rolls and then received compensation benefits on the
periodic rolls as of August 3, 2008.4
She returned to private sector employment in
September 2009.
Appellant underwent OWCP authorized right shoulder surgeries on June 15, 2006,
September 25, 2007, and February 28 and July 31, 2008, which were performed by Dr. Brent
Thomas Watson, a Board-certified orthopedic surgeon.
In May 2010, appellant developed severe neck, right shoulder and right arm pain and was
diagnosed with cervical disc herniation at C6-7. On June 28, 2010 Dr. Richard I. Zipnick, a Boardcertified orthopedic surgeon, performed cervical spine surgery with anterior cervical discectomy
and fusion at C6-7. OWCP developed the issue of whether her cervical disc herniation at C6-7
and surgery were causally related to the accepted November 8, 2005 employment injury by either
direct cause, aggravation, precipitation, or acceleration. It did not authorize appellant’s June 28,
2010 cervical spine surgery or a 2014 left shoulder surgery.
In a May 10, 2011 report, Dr. Aubrey Swartz, a Board-certified orthopedic surgeon and
OWCP referral physician, opined that there was no evidence that appellant’s cervical disc
herniation was causally related to the November 8, 2005 employment injury.
In an October 7, 2014 report, Dr. Michael E. Callahan, another Board-certified orthopedic
surgeon and OWCP referral physician, opined that appellant’s cervical disc herniation at C6-7 and
resultant surgery was not causally related to the November 8, 2005 employment injury. He noted
that appellant had a spontaneous onset of right upper extremity radicular pain in 2009 essentially
four years from the initial onset of her right shoulder pain with multiple right shoulder surgeries
due to the employment injury. Dr. Callahan explained that there was no medical indication of a
disc injury prior to 2009 and 2010, as appellant was working under restrictions, and there was no

4
By decision dated March 7, 2007, OWCP awarded appellant 16 percent permanent impairment of the right upper
extremity. By decision dated October 8, 2009, it reduced her wage-loss compensation effective October 11, 2009 as
she had the capacity to earn wages in the position as an office manager. By decision dated May 24, 2011, an OWCP
hearing representative affirmed an October 27, 2010 decision that appellant had not established an additional schedule
award beyond that already received.

2

causation for the cervical spine injury. He thus opined that the right shoulder dysfunction did not
contribute in any way to the cervical spine C6-7 level disc herniation.
On May 26, 2015 appellant, through counsel, requested that her case be expanded to
include adhesive capsulitis and cervical disc herniation at C6-7. In support of her claim, she
submitted an April 20, 2015 report from Dr. Michael T. Giovanniello, a Board-certified
physiatrist. Dr. Giovanniello opined that, within a reasonable degree of medical certainty,
appellant’s C6-7 disc herniation and resultant surgery occurred secondary to altered body
mechanics from the accepted November 8, 2005 right shoulder injury due to the repetitive
increased strain and stress through the cervical spine. He noted that there was specific
documentation of right paracervical pain during appellant’s first visit in April 2008, she had altered
body mechanics as a result of the industrial-related right shoulder injury, and also had documented
increased neck symptoms in January 2009 with a moderate disc herniation at C6-7.
Dr. Giovanniello explained that her symptoms progressed and worsened in April 2010 secondary
to the repetitive increased strain through the cervical spine and resulted in the C6-7 disc herniation.
He also opined that the right shoulder injury caused adhesive capsulitis which resulted in
significantly restricted range of motion with respect to the right shoulder. Secondary to this
reduced range of motion, appellant had increased strain and stress through the cervical spine and
the muscles of the cervical spine in order to perform functional activities. Dr. Giovanniello
explained that over time, those mechanical changes resulted in increased repetitive strain and stress
through the cervical spine and the C6-7 disc herniation.
OWCP again referred appellant for a second opinion examination to determine whether
appellant’s cervical condition was related to the accepted right shoulder injury. In a September 14,
2017 report, Dr. Terry A. Brown, a Board-certified physiatrist, disagreed with Dr. Giovanniello’s
opinion that the prominent bulging of C6-7 was related to abnormal mechanics resulting from
appellant’s initial shoulder injury. He opined that the time frame from the November 2, 2005
shoulder injury to the onset of the neck pain and ultimate discovery of prominent bulging disc at
one level was too great for him to attribute, within a reasonable degree of medical certainty, that
appellant’s employment injury and subsequent surgeries contributed to the cervical disc
conditions.
By decision dated October 3, 2017, OWCP denied appellant’s request that acceptance of
her claim should be expanded to include a cervical spine condition. It accorded determinative
weight to the opinions of Drs. Brown, Callahan, and Swartz, OWCP’s referral physicians.5
On October 9, 2017 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative.
In a January 15, 2018 report, Dr. Watson indicated that he was not convinced that
appellant’s November 8, 2005 employment injury did not involve her neck as well as her shoulder.
He noted that from her initial visit she did not have classical shoulder symptoms, but had trapezial
pain, rhomboid pain, periscapular pain and neck tightness. Dr. Watson indicated that there was
concern on his part as to whether her injury was related to her “index injury” or a more
longstanding problem which predated her 2005 claim, but there was nothing in the medical records
5

It noted that the claim was accepted for ankyloses of right shoulder joint, right biceps tendon rupture; complete
right rotator cuff rupture, disorder of bursae and tendons of right shoulder; pes anserinus tendinitis, and sprain of right
shoulder and rotator cuff.

3

which predated that timeframe. He indicated that causation was a difficult issue as appellant’s
symptoms were bimodal in their distribution from the beginning and her shoulder symptoms did
not resolve completely with shoulder surgery. Dr. Watson opined that appellant had some
contribution to her neck conditions due to shoulder weakness and that the compensatory changes
to her shoulder would likely have contributed to her increased pain and periscapular pain. With
regard to the bulging or herniated discs, he opined that this could have resulted from her “index
injury” which had not required treatment or was not significant enough to require surgery until
2009.
Following a preliminary review, in a decision dated February 1, 2018, an OWCP hearing
representative set aside OWCP’s October 3, 2017 decision. The hearing representative found that
a conflict of medical evidence existed between Dr. Giovanniello and the second opinion physicians
which necessitated referral to an impartial medical examiner (IME).
In a letter dated March 13, 2018, OWCP advised appellant that a conflict in medical
opinion existed between Dr. Brown, OWCP’s second opinion examiner, and Dr. Giovanniello,
appellant’s treating physician, regarding whether her C6-7 disc herniation and subsequent surgery
was causally related to her November 8, 2005 employment injury. It referred her, along with the
case record, and a statement of accepted facts (SOAF) to Dr. Richard T. Knoebel, a Board-certified
orthopedic surgeon, for an impartial medical examination.
OWCP requested that Dr. Knoebel address whether appellant’s current cervical condition
was caused, aggravated, precipitated, or accelerated by the effects of the accepted shoulder
conditions or any treatment of the accepted injury as described in the SOAF. It attached definitions
for these terms.
In an April 18, 2018 report, Dr. Knoebel noted the history of injury, his examination of
appellant, the SOAFs and the medical records. He concluded that appellant’s cervical condition,
which manifested itself five years after the original employment injury in 2010 and had associated
findings of right C6-7 disc herniation with resultant surgery could not have been reasonably
caused, contributed to, aggravated by, accelerated, or precipitated by the November 8, 2005
employment injury. Dr. Giovanniello noted the medical records subsequent to the November 8,
2005 employment incident indicated that appellant had right trapezial pain and right-sided
paracervical pain with negative Spurling sign for radiculopathy and with no objective evidence of
neurologic abnormalities of the right upper extremity until her severe radicular pain noted in
May 2010. Dr. Knoebel opined that Dr. Giovanniello’s postulate that appellant’s dysfunction and
pain of the right shoulder resulted in biomechanical disorders which precipitated a cervical disc
herniation was not supported by medical literature. He indicated that degenerative changes were
seen frequently in the general population with, more often than not, no particular cause or
precipitating event and that this was reasonably indicated for appellant. Dr. Knoebel also noted
that there was no scientific literature which indicated an increased incidence of cervical disc
herniation associated with shoulder injuries; rather, neck pain and problems were common in the
general population. Thus, he concluded that appellant’s onset of disc herniation with radiculopathy
in May 2010 was reasonably nonindustrial.6

6

Dr. Knoebel also provided an opinion regarding appellant’s onset of left shoulder pain in December 2012 with
subsequent left shoulder surgery in January 2014.

4

By decision dated June 27, 2018, OWCP denied appellant’s request to expand the
acceptance of her claim to include the additional diagnoses of a cervical spine injury. It found that
the special weight of the medical evidence rested with the opinion of Dr. Knoebel, who opined in
his April 18, 2018 report that the right C6-7 disc herniation and subsequent surgery could not
reasonably have been caused, contributed to, aggravated by, accelerated or precipitated by the
November 8, 2005 employment injury.
On July 3, 2018 counsel requested a telephonic hearing before an OWCP hearing
representative. A telephonic hearing was held on October 22, 2018.
In an August 20, 2018 letter, Dr. Giovanniello reiterated that appellant’s cervical condition
was causally related to the November 8, 2005 employment injury. He opined that the cervical
condition was precipitated by altered body mechanics which resulted in increased strain and stress
on the cervical spine. The increased strain and stress to the cervical spine eventually resulted in
pain and ultimately a cervical disc herniation. Dr. Giovanniello also expressed his concern that
Dr. Knoebel did not consider the effects of altered biomechanics from the right shoulder injury to
the cervical spine.
By decision dated December 7, 2018, an OWCP hearing representative affirmed the
June 27, 2018 decision. The hearing representative found that Dr. Knoebel’s opinion carried the
special weight of the medical opinion evidence.
LEGAL PRECEDENT
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.8 A physician’s opinion on whether there is a causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.9 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).10
When an injury arises in the course of employment, every natural consequence that flows
from that injury likewise arises out of the employment, unless it is the result of an independent
intervening cause attributable to a claimant’s own intentional misconduct.11 Thus, a subsequent

7

R.J., Docket No. 17-1365 (issued May 8, 2019); Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

8

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

9

M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

10

Id.

11

See S.M., Docket No. 19-0397 (issued August 7, 2019); Mary Poller, 55 ECAB 483, 487 (2004); 1 Arthur Larson
& Lex K. Larson, The Law of Workers’ Compensation Law 10-1 (2006).

5

injury, be it an aggravation of the original injury or a new and distinct injury is compensable if it
is the direct and natural result of a compensable primary injury.12
Section 8123(a) of FECA provides that if there is disagreement between an OWCPdesignated physician and the employee’s physician, OWCP shall appoint a third physician who
shall make an examination.13 For a conflict to arise the opposing physicians’ viewpoints must be
of virtually equal weight and rationale.14 Where OWCP has referred the case to an impartial
medical examiner to resolve a conflict in the medical evidence, the opinion of such a specialist, if
sufficiently well-reasoned and based upon a proper factual background, must be given special
weight.15
ANALYSIS
The Board finds that this case is not in posture for decision as there remains an unresolved
conflict in medical opinion.
OWCP determined that a conflict in the medical opinion evidence was created between
Dr. Giovanniello, appellant’s treating physician, who opined that acceptance of appellant’s claim
should be expanded to include diagnosed cervical conditions (a disc herniation at C6-7 and C7
radiculopathy), and Dr. Brown, OWCP’s referral physician, who concluded that there was no
causal relationship between the November 8, 2005 employment injury and appellant’s cervical
conditions. Dr. Giovanniello opined that altered body mechanics from the accepted employment
injury caused appellant’s cervical condition, years after the initial injury, which suggests a
consequential injury.
OWCP properly referred appellant to Dr. Knoebel for an impartial medical examination in
order to resolve the conflict in medical evidence, pursuant to 5 U.S.C. § 8123(a).16 In an April 18,
2018 report, Dr. Knoebel noted his review of the SOAF and the medical record and provided
examination findings. He concluded that appellant’s cervical condition, which manifested itself
five years after the original employment injury and had associated findings of right C6-7 disc
herniation with resultant surgery could not reasonably been caused, contributed to, aggravated by,
accelerated or precipitated by the November 8, 2005 employment injury. Dr. Knoebel noted that
the medical records subsequent to the November 8, 2005 employment incident indicated that
appellant had right trapezial pain and right-sided paracervical pain with negative Spurling’s sign
for radiculopathy and with no objective evidence of neurologic abnormalities of the right upper
extremity. He related that the medical literature did not support that a right shoulder dysfunction
resulted in biomechanical disorders which precipitated a cervical disc herniation. Dr. Knoebel
also found that the medical literature did not support an increased incidence of cervical disc

12

S.M., id.; Susanne W. Underwood (Randall L. Underwood), 53 ECAB 139, 141 n.7 (2001).

13

5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; Shirley L. Steib, 46 ECAB 309, 317 (1994).

14

Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

15

Gary R. Sieber, 46 ECAB 215, 225 (1994).

16

See K.C., Docket No. 18-0378 (issued June 18, 2019).

6

herniation associated with shoulder injuries. He thus concluded that appellant’s onset of disc
herniation with radiculopathy in May 2010 was reasonably nonindustrial.
While the Board finds that Dr. Knoebel’s report is based on a proper factual background,
it lacks the medical reasoning necessary to resolve the existing conflict of medical opinion
evidence.17 He did not explain why appellant’s accepted right shoulder conditions would not have
caused altered body mechanics and a subsequent cervical condition.18 Moreover, while
Dr. Knoebel referenced medical literature supporting his conclusion regarding causal relationship,
he did not sufficiently explain how the medical literature applied to appellant’s specific
circumstances.19 To be entitled to the special weight, his opinion must contain clear, persuasive
rationale on the critical issue in the claim.20 However, Dr. Knoebel’s report does not contain such
rationale.
On remand OWCP should obtain a supplemental opinion from Dr. Knoebel regarding
causal relationship between the November 8, 2005 employment injury and appellant’s cervical
conditions and whether she sustained a consequential cervical condition due to the November 8,
2005 employment injury. If Dr. Knoebel is unable or unwilling to elaborate on his conclusion
regarding causal relationship, or if his supplemental report is also vague, speculative, or lacking in
rationale, OWCP must submit the case record and a detailed SOAF to a new impartial specialist
for the purpose of obtaining a rationalized medical opinion on the issue.21 Following this and any
other development deemed necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

17

D.B., Docket No. 17-1845 (issued February 16, 2018).

18

See P.J., Docket No. 18-1738 (issued May 17, 2019).

19

See A.G., Docket No. 18-0281 (issued July 12, 2018); R.O., Docket No. 08-1133 (issued October 8, 2008);
William C. Bush, 40 ECAB 1064, 1075 (1989) (excerpts from publications lack probative value in resolving medical
questions unless a physician shows the applicability of the general medical principles discussed in the articles to the
specific factual situation in a case).
20

A.R., Docket No. 17-1358 (issued February 1, 2018).

21

See J.W., Docket No. 15-0020 (issued August 17, 2016); Harold Travis, 30 ECAB 1071, 1078 (1979).

7

ORDER
IT IS HEREBY ORDERED THAT the December 7, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision.
Issued: September 24, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8