United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Winter Haven, FL, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-2301
Issued: August 13, 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 September 16, 2009 appellant, through her representative, filed a timely appeal of the
September 3, 2009 decision of the Office of Workers’ Compensation Programs denying his
request for reconsideration and the August 18, 2009 schedule award decision. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant has more than eight percent impairment to his left
leg or any penile impairment causally related to his accepted back conditions; and (2) whether
the Office abused its discretion in denying his request for reconsideration under section 8128(a).
On appeal appellant contends that he is entitled to a schedule award for penile
impairment causally related to his accepted back conditions.
FACTUAL HISTORY
On May 6, 2004 appellant, then a 57-year-old group leader/custodian, sustained a lumbar
sprain while mopping the front lobby floor. He stopped work on May 6, 2004. Appellant

returned to work on May 7, 2004 and worked light duty intermittently with no lifting over 20
pounds and no prolonged standing or sitting. On December 4, 2008 the Office accepted an
aggravation of a herniated disc at L2-3 and L3-4.1 On June 10, 2009 appellant filed a claim for a
schedule award.
In a February 17, 2009 report, Dr. Frank D. Vrionis, a Board-certified neurosurgeon of
professorial rank, noted pain, numbness and weakness in appellant’s left lower extremity. A
recent magnetic resonance imaging (MRI) scan revealed moderate to severe stenosis at L3-4 and
to lesser degrees at L2-3 and L4-5. Appellant also had L3-4 lateral disc herniation. These
conditions were most likely responsible for his left lower extremity radiculopathy.
On June 12, 2009 the Office asked appellant to provide a medical report addressing the
issue of whether he had impairment to his lower extremities due to his accepted back conditions.
It advised that Dr. Vrionis should use the 6th edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) in calculating any lower
extremity impairment. The Office provided a lower extremity impairment worksheet for
appellant to complete and send with his report.
On July 21, 2009 Dr. Rodolfo D. Eichberg, a Board-certified physiatrist, reviewed
appellant’s medical history, including an MRI scan of the lumbar spine performed on
December 23, 2008. He provided detailed findings on physical examination. Dr. Eichberg noted
that straight-leg raising was 80 degrees on the right and 70 degrees on the left. Hamstring
muscles were mildly tight on the right and moderately tight on the left. Appellant experienced
pain in the sacroiliac region when the hamstring muscles were stretched. He had a 4/5 grade
weakness of his left toe extensors. All other muscles in both lower extremities were 5/5.
Appellant had decreased sensation to pinprick in the entire lateral left thigh and proximal left leg.
He had left lower extremity pain and weakness in the L4-5 distribution and significant spinal
stenosis at L3-4 and at L2-3. Appellant had impairment in the sciatic nerve distribution with
mild sensory deficits in the left lateral thigh and objective atrophy of the calf. Dr. Eichberg
opined that he had eight percent left leg impairment, including seven percent motor deficit and
one percent sensory deficit, based on Table 16.12 at page 535 of the 6th edition of the A.M.A.,
Guides. Appellant’s sexual activity had decreased since 2005 and his last erection was in 2007.
Dr. Eichberg found that appellant’s sexual dysfunction was neurogenic and based on the same
nerve roots causing his sciatic dysfunction. He opined that he had Class 3 sexual dysfunction
based on Table 13.15 at page 338 which equaled 11 percent whole person impairment.
On August 12, 2009 an Office medical adviser reported that Dr. Eichberg employed the
6th edition of the A.M.A., Guides and his report was thorough and objective. He noted that
Dr. Eichberg found an eight percent impairment of the left lower extremity, including seven
percent for motor deficit and one percent for sensory deficit, related to an L4 nerve root deficit.

1

Appellant has three separate work-related conditions: A left shoulder and arm sprain, right carpal tunnel
syndrome and degeneration of a cervical disc.

2

The Office medical adviser noted that appellant did not have an accepted condition involving
sexual dysfunction.2
By decision dated August 18, 2009, the Office granted a schedule award for 23.04 weeks
of compensation based on eight percent left leg impairment.3
On August 26, 2009 appellant requested reconsideration. He noted that Dr. Eichberg
found impairment for sexual dysfunction related to the sciatic nerve root, the same nerve root
causing his left leg impairment. Appellant contended that he was entitled to a schedule award
for penile impairment because it was causally related to his accepted back conditions. In an
August 10, 2009 report, received by the Office on August 20, 2009, Dr. William Vargas, an
attending anesthesiologist, described his course of treatment of appellant’s lumbosacral
radiculitis. Dr. Vargas did not address the issue of permanent impairment.
By a September 3, 2009 decision, the Office denied appellant’s request for
reconsideration on the grounds that the evidence submitted was not sufficient to warrant further
merit review.4
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Act5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, the Act 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 6th edition of the A.M.A., Guides has been adopted by the Office as the
appropriate standard for evaluating schedule losses.7

2

See Federal (FECA) Procedural Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002) (after obtaining all necessary medical evidence, the file should be routed to an
Office 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, especially
when there is more than one evaluation of the impairment present).
3

The Federal Employees’ Compensation Act provides for 288 weeks of compensation for 100 percent loss or loss
of use of a lower extremity. 5 U.S.C. § 8107(c)(2). Multiplying 288 weeks by eight percent equals 23.04 weeks of
compensation.
4

Subsequent to the September 3, 2009 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.
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404; FECA Bulletin No. 9-03, issued March 15, 2009 (providing for use of the 6th edition of the
A.M.A., Guides effective May 1, 2009).
7

Id..

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Neither, the Act nor the regulations provide for the payment of a schedule award for any
impairment of the back.8 The Act excludes the back from the definition of “organ.”9 A claimant
may be entitled to a schedule award for permanent impairment of an extremity even though the
cause of the impairment originated in the spine.10 Section 8107 of the Act specifies bodily
members or functions as the upper and lower extremities, eye or vision and loss of hearing.11 No
schedule award is payable for any member, function or organ of the body not listed in section
8107 or its implementing regulations.12 Pursuant to the authority provided by 5 U.S.C.
§ 8107(c)(22), the Secretary added as organs to the compensation schedule which include the
breast, kidney, larynx, lung, tongue, penis, testicle, ovary, uterus/cervix and vulva/vagina.13
ANALYSIS -- ISSUE 1
The Board finds that appellant has no more than eight percent left leg impairment.
Dr. Eichberg reviewed appellant’s medical history and test results, including a lumbar
spine MRI scan. He provided detailed findings on physical examination. Dr. Eichberg noted
that straight-leg raising was 80 degrees on the right and 70 degrees on the left. Appellant felt
pain in the sacroiliac region when the hamstring muscles were stretched. He had a 4/5 grade
weakness of his left toe extensors. There was decreased sensation to pinprick in the lateral left
thigh and proximal left leg. Appellant had left lower extremity pain and weakness in the L4-5
distribution and significant spinal stenosis at L3-4 and at L2-3. There was impairment in the
sciatic nerve distribution with mild sensory deficit in the left lateral thigh and objective atrophy
of the calf. Dr. Eichberg found that appellant had eight percent left leg impairment, including
seven percent motor deficit and one percent sensory deficit, based on Table 16.12 at page 535 of
the 6th edition of the A.M.A., Guides.
The Board finds that the report of Dr. Eichberg establishes that appellant has no more
than eight percent impairment to his left leg. Dr. Eichberg’s report is based on a review of the
medical history and findings on physical examination. He based the left lower extremity
impairment rating on the 6th edition of the A.M.A., Guides and referenced the applicable section.
Dr. Eichberg’s report established that appellant had no more than eight percent left leg
impairment.
Dr. Eichberg noted that appellant’s sexual activity had decreased since 2005 and his last
erection was in 2007. He found that appellant’s sexual dysfunction was caused by the same
sciatic nerve roots in the spine that caused his left leg impairment. Dr. Eichberg found 11
percent whole person impairment based on a Class 3 sexual dysfunction according to Table 138

See Tomas Martinez, 54 ECAB 623 (2003).

9

5 U.S.C. § 8101(19).

10

See Tomas Martinez, supra note 8.

11

5 U.S.C. § 8107.

12

See Janet C. Anderson, 54 ECAB 394 (2003).

13

20 C.F.R. § 404.

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15 at page 338 of the 6th edition of the A.M.A., Guides. The Office medical adviser erroneously
rejected this rating on the basis that a sexual dysfunction condition had not been accepted. The
Board notes that impairment extending from the spine to a member or organ defined under the
schedule may be eligible for consideration of a schedule award.
The Board finds that further development is required on the issue of whether appellant
has penile impairment causally related to his accepted back conditions, a lumbar sprain and
aggravation of a herniated disc at L2-3 and L3-4. On remand the Office should refer the case
record to an Office medical adviser for an opinion as to whether the medical evidence establishes
that appellant’s sexual dysfunction is causally related to his accepted lumbar spine conditions. If
the Office medical adviser finds a work-related penile impairment, he should determine the
appropriate impairment percentage using the A.M.A., Guides, sixth edition and the Office’s
procedure manual. After such further development, the Office should issue an appropriate
decision on appellant’s claim.14
In light of the resolution of the first issue, the second issue is moot.
CONCLUSION
The Board finds that appellant has no more than eight percent impairment to his left leg.
The Board finds that further development of the medical evidence is required on the issue of
whether he has any penile impairment.

14

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4d(2) and 3.700,
Exhibit 1: Use of the Sixth Edition of A.M.A., Guides (January 2010) (explaining conversion of whole person
impairment to schedule organ impairment and proper usage of the sixth edition).

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ORDER
IT IS HEREBY ORDERED THAT the September 3 and August 18, 2009 decisions of
the Office of Workers’ Compensation Programs are affirmed as to appellant’s left lower
extremity impairment. The case is remanded to the Office for development on the issue of penile
impairment in conformance with this decision.
Issued: August 13, 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
__________________________________________
C.A., Appellant
and
DEPARTMENT OF HEALTH AND HUMAN
SERVICES, CENTER FOR DISEASE
CONTROL, Atlanta, GA, Employer
__________________________________________

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

Docket No. 08-1076
Issued: November 17, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 27, 2008 appellant filed a timely appeal from a December 27, 2007 decision
of the Office of Workers’ Compensation Programs regarding a schedule award and a
February 12, 2008 decision regarding an overpayment of compensation. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether appellant sustained greater than an eight percent impairment
of the left upper extremity, for which he received a schedule award; (2) whether the Office
properly determined that appellant received an overpayment of $16,553.46 in compensation; and
(3) whether the Office properly determined that the overpayment was not subject to waiver.
FACTUAL HISTORY
The Office accepted that on May 16, 2003 appellant, then a 48-year-old gardener leader,
sustained a cervical strain, aggravation of cervical spinal stenosis, an aggravation of herniated

C6-7 discs and left shoulder impingement syndrome while moving a safe from one truck to
another. He was followed by Dr. Shevin Pollydore, an attending Board-certified physiatrist,
through 2003.1 Dr. Lee A. Kelley, an attending Board-certified orthopedic surgeon, performed a
C6-7 anterior diskectomy and fusion with plate fixation on April 27, 2004, approved by the
Office. He submitted progress notes in June 2004.
On June 8, 2005 appellant claimed a schedule award. He submitted a September 1, 2005
report from Dr. Kelley finding a 25 percent whole person impairment due to left shoulder
impairment according to the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides). In an October 7, 2005 report, an Office
medical adviser stated that there was no basis for Dr. Kelley’s impairment rating.
In a January 26, 2006 report, Dr. Kelley opined that appellant had no neurologic or motor
abnormalities in the left upper extremity, but had left arm pain. He stated that appellant had a 25
percent permanent impairment of the left upper extremity unrelated to the cervical spine. In a
March 26, 2006 report, Dr. Kelley explained that the 25 percent rating was based on 15 percent
for restricted motion and 10 percent for weakness, atrophy or pain. He noted the following
ranges of left shoulder motion: 40 degrees internal rotation; 45 degrees external rotation; 100
degrees forward elevation; 45 degrees backward elevation; 100 degrees abduction; 30 degrees
adduction. Dr. Kelley did not refer to specific tables or grading schemes of the A.M.A., Guides.
In an April 11, 2006 report, an Office medical adviser reviewed Dr. Kelley’s reporta and
opined that according to Figure 16-40, page 476,2 Figure 16-43, page 4773 and Figure 16-46,
page 4794 of the A.M.A., Guides, appellant had a 15 percent impairment of the left upper
extremity due to restricted motion, as follows: 3 percent for internal rotation limited to 30
degrees; 1 percent for external rotation limited to 45 degrees, 5 percent for forward elevation
limited to 100 degrees, 0 percent for backward elevation at 45 degrees; 4 percent for abduction
limited to 100 degrees; 2 percent for adduction limited to 30 degrees. He found Dr. Kelley
improperly applied the A.M.A., Guides by providing a rating for pain and weakness in
conjunction with restricted motion.
The Office found a conflict between Dr. Kelley for appellant, and the Office medical
adviser. It referred appellant, the medical record and a statement of accepted facts, to
Dr. William Craven, a Board-certified orthopedic surgeon, who submitted a July 19, 2006 report
relating appellant’s complaints of left-sided neck pain, but no left shoulder pain. He found that
appellant reached maximum medical improvement as of September 1, 2005. Dr. Craven noted
1

In a March 7, 2004 report, Dr. Harold Alexander, a Board-certified orthopedic surgeon and second opinion
physician, diagnosed left shoulder impingement and cervical radiculitis related to the May 16, 2003 incident.
2

Figure 16-40, page 476 of the fifth edition of the A.M.A., Guides is entitled “Pie Chart of Upper Extremity
Motion Impairments Due to Lack of Flexion and Extension of Shoulder.”
3

Figure 16-43, page 477 of the fifth edition of the A.M.A., Guides is entitled “Pie Chart of Upper Extremity
Motion Impairments Due to Lack of Abduction and Adduction of Shoulder.”
4

Figure 16-46, page 479 of the fifth edition of the A.M.A., Guides is entitled “Pie Chart of Upper Extremity
Impairments Due to Lack of Internal and External Rotation of Shoulder.”

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the following ranges of left shoulder motion and accompanying impairment ratings: 4 percent for
internal rotation limited to 30 degrees; 1 percent for external rotation limited to 40 degrees; 6
percent for forward elevation limited to 90 degrees, 2 percent for backward elevation limited to
20 degrees; 4 percent for abduction limited to 4 percent; 2 percent for adduction limited to 30
degrees. He opined that appellant had a 22 percent permanent impairment of the left upper
extremity, 19 percent due to restricted motion, an additional 3 percent for weakness, pain or loss
of sensation.
In an August 23, 2006 report, an Office medical adviser reviewed Dr. Craven’s report
and noted several errors. He explained that according to page 508 of the A.M.A., Guides, that
Dr. Craven should not have provided a rating for weakness in conjunction with the rating for
restricted motion. Also, according to Table 16-43, adduction limited to 30 degrees equaled a 1
percent impairment, but Dr. Craven noted a 2 percent impairment. The Office medical adviser
opined that appellant had a 15 percent impairment of the left upper extremity.
By decision dated September 20, 2006, the Office issued appellant a schedule award for a
15 percent permanent impairment of the left upper extremity. The period of the award ran from
September 1, 2005 to July 25, 2006.
Appellant requested an oral hearing. He asserted that the C6-7 diskectomy caused pain,
clumsiness and paresthesias in his left arm and hand. By decision dated and finalized
February 9, 2007, an Office hearing representative vacated the September 20, 2006 schedule
award decision. The hearing representative found that Dr. Craven’s report was insufficiently
rationalized to resolve the conflict of opinion. The hearing representative directed the Office to
request a supplemental report from Dr. Craven regarding the percentage of impairment for
limited adduction under Figure 16-43, page 477 and addressing the specific tables and grading
schemes used to calculate the impairment rating.
The Office sent Dr. Craven February 15 and March 21, 2007 requests for clarification.
As Dr. Craven did not respond by April 6, 2007, the Office sought a second impartial medical
examiner. The Office selected Dr. Jeffrey Nugent, a Board-certified orthopedic surgeon, to
resolve the conflict of medical opinion.
Subsequently, Dr. Craven submitted an April 13, 2007 report, received by the Office on
April 18, 2007. He advised that appellant had an 18 percent permanent impairment of the left
upper extremity, agreeing with the Office medical adviser that Figure 16-43 allowed a 1 percent
impairment for adduction limited to 30 degrees. Dr. Craven stated that according to Table 16-35,
page 510,5 appellant was entitled to an additional 3 percent impairment for weakness and
atrophy. The Office referred Dr. Cravens’ report to an Office medical adviser for review. In an
April 23, 2007 report, an Office medical adviser explained that according to page 508 of the
A.M.A., Guides, Dr. Craven erred by assessing an additional impairment for weakness and
atrophy in conjunction with range of motion impairments. The medical adviser opined that

5

Table 16-35, page 510 of the fifth edition of the A.M.A., Guides is entitled “Impairment of the Upper Extremity
Due to Strength Deficit From Musculoskeletal Disorders Based on Manual Muscle Testing of Individuals Units of
Motion of the Shoulder and Elbow.”

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appellant had no more than a 15 percent impairment of the left upper extremity due to restricted
motion.
In a May 2, 2007 report, Dr. Nugent provided a history of injury and treatment. He
related appellant’s account of pain and weakness in the left upper extremity. Dr. Nugent
observed the following ranges of motion in the left shoulder: 130 degrees forward elevation; 45
degrees backward elevation; 120 degrees abduction; 40 degrees adduction; 70 degrees internal
rotation; 40 degrees external rotation. On neurologic examination, he noted mild hypoesthesia in
the ring and little fingers of the left hand. Dr. Nugent diagnosed left shoulder impingement
syndrome, cervical spondylosis, cervical radiculopathy affecting the left upper extremity and
status post diskectomy and fusion. He stated that according to Figures 16-40, 16-43 and 16-46,
appellant had a three percent impairment due to restriction of forward elevation, three percent for
limited abduction, one percent for internal rotation and one percent for external rotation, totaling
eight percent. Dr. Nugent opined that appellant had reached maximum medical improvement as
of May 2, 2007 as his range of motion had improved since prior examinations. He also assessed
a 25 percent whole person impairment due to residuals of the cervical diskectomy and fusion.
The Office referred to Dr. Nugent’s report to an Office medical adviser for review. In a
May 21, 2007 report, an Office medical adviser opined that appellant reached maximum medical
improvement as of September 1, 2005, the date of Dr. Kelley’s initial schedule award rating,
who concurred with Dr. Nugent’s assessment of an eight percent permanent impairment of the
left upper extremity. The Office medical adviser noted that the Employees’ Compensation Act
did not provide for whole person impairments or impairments for the spine.
By decision dated May 23, 2007, the Office found that appellant sustained an 8 percent
impairment of the left upper extremity, less than the 15 percent previously awarded. It noted that
although the Act did not provide for schedule awards for spinal impairments, the effect on the
extremities from such impairments could be considered.
By notice dated June 5, 2007, the Office advised appellant of its preliminary
determination that an overpayment of $16,552.46 was created in his case as he received
$34,855.38 in compensation for a 15 percent left upper extremity impairment whereas he only
had an 8 percent impairment, entitling him to $18,301.92. Appellant was afforded the
opportunity to submit financial information and request a prerecoupment hearing.
In a June 14, 2007 letter, appellant requested an oral hearing regarding the May 23, 2007
schedule award decision, held on October 9, 2007. At the hearing, he described his symptoms
and their impact on activities of daily living. Appellant submitted a statement asserting that the
diskectomy and fusion caused chronic radiculopathy into both upper extremities.
By decision dated and finalized December 28, 2007, an Office hearing representative
affirmed in part and set aside in part the May 23, 2007 decision. The hearing representative
affirmed Dr. Nugent’s assessment of an eight percent impairment of the left upper extremity.
The hearing representative further found that the Office medical adviser did not offer sufficient
justification for selecting September 1, 2005 as the date of maximum medical improvement
whereas Dr. Nugent selected May 2, 2007 as appellant’s condition had improved. The hearing
representative directed the Office to obtain a supplemental report from the Office medical

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adviser regarding the appropriate date of maximum medical improvement. The hearing
representative also found that Dr. Nugent improperly rated impairment of the spine.
By decision dated February 12, 2008, the Office finalized its preliminary determination
of a $16,552.46 overpayment of compensation. It found that appellant was not at fault in
creation of the overpayment. The Office further found that the overpayment was not subject to
wavier as appellant did not contest the overpayment or provide financial information indicating
eligibility for waiver. It directed recovery through a lump sum payment of the entire amount of
the overpayment.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of the Act6 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. The Act,
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 the Office. 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 the Office as a standard for evaluation of
schedule losses and the Board has concurred in such adoption.7 As of February 1, 2001 schedule
awards are calculated according to the fifth edition of the A.M.A., Guides, published in 2000.8
The standards for evaluation the permanent impairment of an extremity under the
A.M.A., Guides are based on loss of range of motion, together with all factors that prevent a limb
from functioning normally, such as pain, sensory deficit and loss of strength. All of the factors
should be considered together in evaluating the degree of permanent impairment.9 Chapter 16 of
the fifth edition of the A.M.A., Guides provides a detailed grading scheme and procedures for
determining impairments of the upper extremities due to pain, discomfort, loss of sensation, or
loss of strength.10
The Board notes that, although the A.M.A., Guides includes guidelines for estimating
impairment due to disorders of the spine, a schedule award is not payable under the Act for
injury to the spine.11 In 1960, however, amendments to the Act modified the schedule award
provisions to provide for an award for permanent impairment to a member of the body covered
by the schedule regardless of whether the cause of the impairment originated in a scheduled or
nonscheduled member. Therefore, a claimant may be entitled to a schedule award for permanent
impairment to an extremity even though the cause of the impairment originates in the spine.12
6

5 U.S.C. §§ 8101-8193.

7

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

8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).
Tammy L. Meehan, 53 ECAB 229 (2001).

9

10

A.M.A. Guides, Ch. 16, “The Upper Extremities,” pp. 433-521 (5th ed. 2001).

11

Pamela J. Darling, 49 ECAB 286 (1998).

12

Tommy R. Martin, 56 ECAB 273 (2005).

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ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained an aggravation of a herniated C6-7 disc, an
aggravation of cervical spinal stenosis, a cervical strain and left shoulder impingement
syndrome. It also authorized a C6-7 discectomy and fusion. Initially, the Office granted
appellant a schedule award for a 15 percent permanent impairment of the left upper extremity
due to restricted motion, based on a review by an Office medical adviser of a July 19, 2006
examination performed by Dr. Craven, a Board-certified orthopedic surgeon and impartial
medical examiner. It vacated the schedule award, finding that Dr. Craven’s report contained
errors and required clarification. As Dr. Craven did not timely submit a report as requested, the
Office selected Dr. Nugent, a Board-certified orthopedic surgeon, as the new impartial medical
examiner in the case.
Dr. Nugent submitted a May 2, 2007 report finding restricted left shoulder motion
equaling an eight percent permanent impairment of the left upper extremity. He also found
hypoesthesia in the fourth and fifth fingers of the left hand and diagnosed cervical radiculopathy
affecting the left upper extremity. Dr. Nugent assessed a 25 percent whole person impairment
due to sequelae of the cervical injuries and surgery. An Office medical adviser reviewed
Dr. Nugent’s report on May 21, 2007. He noted that, as the Act did not provide for whole person
or spinal impairments, any residuals of the accepted cervical injuries could not be considered in
determining the percentage of impairment. On May 23, 2007 the Office found that appellant had
only an eight percent impairment of the left upper extremity. The Board finds, however, that this
decision was in error.
The Office medical adviser correctly noted that there is no provision for a whole person
impairment under the Act.13 However, he improperly failed to consider Dr. Nugent’s findings of
cervical radiculopathy and hypoesthesia in calculating the schedule award. While the Act does
not allow schedule awards for impairment of the spine itself, schedule awards may be granted
where an impairment originates in the spine, but affects the functioning of a scheduled
member.14 In this case, the Office accepted aggravations of a herniated C6-7 disc and cervical
spinal stenosis as well as a C6-7 discectomy and fusion. Dr. Nugent diagnosed left-sided
cervical radiculopathy with diminished sensation of the fourth and fifth fingers of the left hand.
The Office medical adviser did not explain why these findings were not ratable. The Office did
not request clarification from Dr. Nugent regarding whether the diagnosed radiculopathy and
loss of sensation were included in his 25 percent “whole person” rating for cervical spine
impairment. The Board will remand the case for further development on this issue. The Office
should request a supplemental report from Dr. Nugent clarifying the percentage of permanent
impairment to the left upper extremity due to cervical radiculopathy. After such other
development as deemed necessary, it will issue an appropriate decision on the extent of
permanent impairment.

13

J.Q., 59 ECAB ___ (Docket No. 06-2152, issued March 5, 2008).

14

Tommy R. Martin, supra note 10.

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LEGAL PRECEDENT -- ISSUES 2 and 3
The Office determined that appellant received an overpayment based on a schedule award for a
15 percent impairment of the left upper extremity. It found that he was entitled to only eight
percent. However, as set forth above, the percentage of impairment remains in question. For
this reason, the fact of overpayment is not in posture for decision pending further adjudication of
appellant’s left upper extremity impairment.
As the case is not in posture for a decision on the overpayment issue, the issue of waiver
is moot.
CONCLUSION
The Board finds that the case is not in posture for a decision regarding the schedule award or
overpayment issues. The case will be remanded to the Office for appropriate development.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 12, 2008 and December 27, 2007 are set aside and the
case remanded for further development consistent with this decision and order.
Issued: November 17, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


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

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1409
Issued: April 15, 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 July 12, 2018 appellant, through counsel, filed a timely appeal from a January 31, 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.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to expand the acceptance of her
claim to include additional thoracic and lumbar conditions as causally related to the accepted
August 15, 2013 employment injury.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances of the case
as set forth in the prior Board decision are incorporated herein by reference. The relevant facts are
as follows.
On August 15, 2013 appellant, then a 56-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that, on that date, she sustained a back sprain when attempting to lift
a tub of mail off of a rack while in the performance of duty.
By decision dated October 8, 2013, OWCP denied appellant’s claim.
Appellant subsequently submitted medical evidence. In progress notes dated October 15
and 22, 2013, Dr. Rahul V. Shah, a Board-certified orthopedic surgeon, noted that appellant was
complaining of lumbar and thoracic pain and indicated an August 15, 2013 injury date. In progress
notes dated October 15, 2013, he diagnosed thoracic and lumbar strains, left-sided T8-9 disc
protrusion, and left-sided T8-9 radiculopathy, which he opined were employment related, and
right-sided L3-4 stenosis of unknown causality. In an October 23, 2013 note, Dr. Shah detailed
the history of appellant’s August 15, 2013 injury. He attributed appellant’s thoracic and lumbar
sprains, T8-9 left-sided disc protrusion, and left-sided radiculopathy to the August 15, 2013
employment injury. Examination findings of the back included negative straight leg raising,
femoral stretch tests, and spasm at the thoracic lumbar junction.
On October 28, 2013 appellant requested reconsideration and submitted additional
evidence. Dr. Shah, in a progress note dated November 12, 2013, repeated appellant’s history of
injury and physical examination findings found in his prior reports. He diagnosed thoracic pain,
sciatica, lumbago, employment-related thoracic and lumbar strains/sprains, left-sided T12
radiculopathy, and L3-4 right-sided stenosis of unknown origin.
By decision dated December 18, 2013, OWCP denied modification.
OWCP subsequently received a December 24, 2013 progress note from Dr. Shah, which
reiterated appellant’s history of injury and physical examination findings found in his prior reports.
Dr. Shah diagnosed thoracic pain, sciatica, lumbago, employment-related thoracic and lumbar
strains/sprains, left-sided T12 radiculopathy, and L3-4 right-sided stenosis of unknown origin.
On August 6, 2014 appellant requested reconsideration and submitted additional medical
evidence. In a March 5, 2014 report, Dr. Shah noted that appellant was first seen on August 20,
2014 for the August 15, 2013 employment injury. He described how the employment incident
3

Docket No. 15-1524 (issued August 10, 2016).

2

occurred and the diagnoses provided by prior physicians. Based on the mechanism of injury and
findings detailed in his report, Dr. Shah opined that the cause of appellant’s injury was clearly due
to bending and twisting while pulling a mail bin.
By decision dated February 17, 2015, OWCP denied modification of its prior decision.
On July 2, 2015 appellant appealed to the Board. By decision dated August 10, 2016, the
Board set aside OWCP’s February 17, 2015 decision, which found that appellant failed to establish
that the August 15, 2013 incident occurred as alleged. The Board found that the weight of the
factual evidence did in fact establish that the August 15, 2013 incident occurred as alleged. The
Board remanded the case to OWCP to determine whether the medical opinion evidence established
that the accepted employment incident caused an injury.4
By decision dated August 26, 2016, OWCP accepted the claim for thoracic and lumbar
sprains. In a second decision dated August 26, 2016, it denied appellant’s claim for the conditions
of left-sided T8 and T9 disc protrusions, left-sided T8, T9, and T12 radiculopathy, L3-4 rightsided stenosis, and thoracic intervertebral disc displacement as not causally related to the accepted
August 15, 2013 employment injury.
On September 9, 2016 OWCP received counsel’s request for an oral hearing before an
OWCP hearing representative, which was held on January 18, 2017.
Additional medical evidence was received. In a February 16, 2017 report, Dr. Shah
detailed how the August 15, 2013 injury occurred, noted results from magnetic resonance imaging
(MRI) scans, and detailed examination findings. He attributed the diagnoses of T8-9 disc
protrusion, T8-9 radiculopathy, and right L3-4 disc protrusion to the accepted August 15, 2013
employment injury. In support of this conclusion, Dr. Shah observed that the mechanism of injury
and appellant’s history were consistent with the diagnoses and MRI scan findings.
By decision dated March 31, 2017, OWCP’s hearing representative set aside OWCP’s
August 26, 2016 decision denying expansion of the acceptance of her claim. She found that
medical evidence submitted subsequent to the August 26, 2016 decision was sufficient to warrant
further development.
On May 24, 2017 OWCP referred appellant for a second opinion evaluation with
Dr. Stanley Askin, a Board-certified orthopedic surgeon, to determine whether acceptance of the
claim should be expanded to include additional claimed conditions.
In a report dated June 16, 2017, Dr. Askin, based upon a review of the medical evidence,
statement of accepted facts (SOAF), and physical examination, noted thoracic and lumbar spine
sprains as accepted conditions and diagnosed thoracic and lumbar spine degenerative disc disease.
He noted that following the accepted August 15, 2013 employment injury appellant experienced
several subsequent injuries. The injuries included a January 2014 slip and fall at home where she
landed on her back, a February 2014 trip and fall where she injured her right shoulder and face,
and a March 4, 2015 employment incident where she alleged a right knee injury after slipping on
4

Id.

3

ice. Dr. Askin related that a review of thoracic x-ray interpretations and MRI scan revealed T8-9
disc abnormality and a lumbar MRI scan revealed age-appropriate degenerative disc changes.
Physical examination findings included left posterior rib cage pain, no tenderness to touch, full
range of motion, negative Finkelstein test, and negative Phalen’s and Tinel’s signs. Dr. Askin
opined that appellant had developed age-related degenerative back changes, which had not been
caused by the accepted August 15, 2013 employment injury. He noted that her MRI scan findings
did not indicate an acute trauma and opined that her preexisting thoracic and lumbar spine
degenerative disc disease had not been aggravated by the August 15, 2013 employment injury.
Rather, Dr. Askin found a temporary exacerbation of an underlying condition and that appellant’s
baseline was consistent with her age. He opined that she had reached maximum medical
improvement and was capable of performing her regular employment duties.
By decision dated July 14, 2017, OWCP denied modification as it found the evidence
insufficient to establish that the acceptance of appellant’s claim should be expanded to include the
additional claimed spinal conditions. It found the weight of the medical opinion evidence rested
with Dr. Askin, OWCP’s referral physician.
On July 19, 2017 appellant, through counsel, requested an oral hearing before an OWCP
hearing representative. A video hearing was held on November 16, 2017.
By decision dated January 31, 2018, OWCP’s hearing representative affirmed the denial
of appellant’s request to expand the acceptance of her claim to include additional spinal conditions.
She found Dr. Askin’s opinion constituted the 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.5 To establish causal relationship between the condition
as well as any attendant disability claimed and the employment injury, an employee must submit
rationalized medical evidence supporting causal relationship.6 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.7 Neither the mere fact that a disease or condition manifests itself during a period
of employment, nor the claimant’s own belief that the disease or condition was caused or
aggravated by employment factors or incidents is sufficient to establish causal relationship.8

5

See T.F., Docket No. 17-0645 (issued August 15, 2018); Jaja K. Asaramo, 55 ECAB 200 (2004).

6

See S.A., Docket No. 18-0399 (issued October 16, 2018); Leslie C. Moore, 52 ECAB 132 (2000).

7

Id.

8

C.P., Docket No. 18-1645 (issued March 8, 2019); Dennis M. Mascarenas, 49 ECAB 215 (1997).

4

ANALYSIS
The Board finds that appellant has not met her burden of proof to expand the acceptance
of her claim to include additional thoracic and lumbar conditions causally related to the accepted
August 15, 2013 employment injury.
In a June 16, 2017 report, Dr. Askin, a second opinion physician, reviewed the SOAF and
the medical record. He noted her history, which included the August 15, 2013 employment injury,
and subsequent injuries including a January 2014 slip and fall at home where she landed on her
back, a February 2014 trip and fall where she injured her face and right shoulder, and a March 5,
2015 work incident where she alleged a right knee injury. Dr. Askin also noted appellant’s current
symptoms and provided essentially normal physical examination findings with the exception of
left posterior rib cage pain. He attributed her degenerative changes to her age. Dr. Askin explained
that appellant had preexisting thoracic and lumbar degenerative disc disease which symptoms had
been temporarily exacerbated by the August 15, 2013 employment injury, but that her current
baseline was consistent with her age. He concluded that she had reached maximum medical
improvement and could return to her regular employment duties.
The Board finds that Dr. Askin’s opinion represents the weight of the medical evidence
with regard to appellant’s request to expand acceptance of her claim to include the additional
conditions of left-sided T8 and T9 disc protrusions, left-sided T8, T9, and T12 radiculopathy, L3-4
right-sided stenosis, and thoracic intervertebral disc displacement Dr. Askin provided a detailed
medical report reviewing appellant’s history of injury and the medical evidence of record. He
unequivocally opined that she did not have any additional thoracic or lumbar conditions caused or
aggravated by the August 15, 2013 employment injury, and provided a well-reasoned medical
explanation supporting his findings, but rather she had age-related degenerative back changes.
Dr. Askin’s opinion was based on an accurate medical history.9 The Board thus finds that his
report constitutes the weight of the medical evidence.
The record also contains various progress reports and March 5, 2014 and February 16,
2017 from Dr. Shah in which he attributed appellant’s T8-9 left-sided disc protrusion and leftsided T8-9 radiculopathy to the accepted August 15, 2013 employment injury. In a February 16,
2017 report, Dr. Shah explained that the diagnoses and MRI scan findings were consistent with
appellant’s history and mechanism of injury. The Board finds that, while he concluded that the
August 15, 2013 employment injury caused the diagnosed thoracic and lumbar conditions,
Dr. Shah has not provided sufficient medical rationale in support of his opinion. He has not
explained how lifting a tub of mail off a track caused the condition, nor has he discussed the impact
of injuries appellant sustained in 2014 and 2015. The opinion of a physician supporting causal
relationship must rest on a complete factual and medical background supported by affirmative
evidence, address the specific factual and medical evidence of record, and provide medical
rationale explaining the relationship between the diagnosed condition and the established
incident10 As Dr. Shah did not address all of the factual and medical evidence of record and did
9

A.C., Docket No. 16-1670 (issued April 6, 2018); N.P., Docket No. 15-1580 (issued September 1, 2016); see also
Melvina Jackson, 38 ECAB 443 (1987).
10

See S.H., Docket No. 17-1660 (issued March 27, 2018); see Lee R. Haywood, 48 ECAB 145 (1996).

5

not provide sufficient medical explanation as to how appellant’s diagnosed lumbar and thoracic
conditions were causally related to the August 15, 2013 employment injury, his opinions are of
limited probative value.11
The Board thus finds that appellant has not met her burden of proof to establish that the
acceptance of the claim should be expanded to include additional conditions.
On appeal, counsel contends that Dr. Shah, in his February 16, 2017 report, sufficiently
explained how the thoracic and lumbar condition had been caused by the accepted August 15, 2013
employment injury, while Dr. Askin failed to provide supporting rationale for his conclusion. He
argues that Dr. Shah’s February 16, 2017 report therefore represents the weight of the evidence,
or alternatively, creates a conflict in the medical opinion evidence regarding whether appellant
sustained additional lumbar and thoracic conditions as a result of her August 15, 2013 employment
injury. As found above, however, Dr. Askin’s opinion that appellant did not sustain further
thoracic lumbar conditions as a result of her accepted employment injury was sufficiently
rationalized and represented the weight of the medical opinion evidence.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to expand the acceptance
of her claim to include additional thoracic and lumbar conditions causally related to the August 15,
2013 employment injury.

11

S.A., Docket No. 09-2339 (issued July 22, 2010).

6

ORDER
IT IS HEREBY ORDERED THAT the January 31, 2018 decision of Office of Workers’
Compensation Programs is affirmed.
Issued: April 15, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Buston, OH, Employer
__________________________________________

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)
)

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

Docket No. 17-1013
Issued: November 1, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 10, 2017 appellant, through counsel, filed a timely appeal from a February 27,
2017 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.
ISSUE
The issue is whether appellant met her burden of proof to establish that her left knee
osteoarthritis is causally related to factors of her federal employment.
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.

FACTUAL HISTORY
On February 24, 2016 appellant, then a 64-year-old rural carrier, filed an occupational
disease claim (Form CA-2) alleging that she sustained osteoarthritis of the left knee as a result of
bending and pulling heavy objects in the course of her federal employment. She first became
aware of her condition and its relationship to her employment on January 21, 2016. Appellant
did not stop work.
In a written statement, appellant explained that the use of her knees was an integral part
of her duties, which consisted of standing and casing mail for four to five hours per day
depending on the volume of mail, loading mail into trays and carts, pushing the carts to the dock,
and loading the trays of mail onto a truck. She noted that performing these duties required
bending and twisting of the knees.
In a progress note dated June 8, 2012, Dr. Michael Kellis, Board-certified in sports
medicine, noted that appellant visited his office for evaluation of her left knee. Appellant told
Dr. Kellis that she had bumped her left knee on a bin and had begun to experience pain and
swelling of the left knee. She denied any other trauma or injury. Dr. Kellis diagnosed her with
osteoarthritic changes of the left knee, aggravated at the time of impact.
On September 9, 2013 Dr. Kellis noted that appellant had returned for evaluation of her
left knee condition, which she had been dealing with for many years. He noted that her knee was
“bone-on-bone” and would eventually require knee replacement.
In a progress note dated November 11, 2013, Dr. Kellis noted that appellant had been
experiencing pain in her left knee, and that she had recently tripped over a dog biscuit on the
floor, which tweaked and sprained the knee. He noted that he was concerned about additional
trauma, and would schedule a Supartz injection.
In an operative report dated November 21, 2016, Dr. Kellis recorded an infrapatellar
Supartz injection to appellant’s left knee. He noted that prior injections had resulted in
substantial improvement.
In a report dated January 21, 2016, Dr. Kellis examined appellant and diagnosed her with
unilateral primary osteoarthritis of the left knee. He noted that appellant’s knee needed to be
replaced. Dr. Kellis noted no acute trauma, but noted that appellant had fractured her patella
many years before the visit.
By letter dated April 8, 2016, OWCP informed appellant that she had not submitted
sufficient documentation to support her claim. It noted that she had not submitted medical
reports establishing that her diagnosed left knee osteoarthritis was caused or aggravated by duties
of her federal employment. OWCP asked appellant to respond to a questionnaire. Appellant
was afforded 30 days to submit the additional evidence.
On May 10, 2016 appellant responded to the questionnaire. She detailed the duties her
federal employment she alleged had aggravated her left knee condition, including standing while
casing mail, putting cased mail into trays, loading the trays onto carts, pushing carts out to a
loading dock, and loading the mail delivery truck. Appellant further explained the delivery
2

process itself, particularly the cramped conditions of her delivery truck. She noted that she
attended football games, but did not play any sports or participate in strenuous activities because
she was too tired after work. Appellant explained that the date of injury she reported was the
date that she found out that her knee had to be replaced.
By letter dated April 25, 2016, Dr. Kellis noted that appellant had osteoarthritic changes
of the left knee and had worked for the Federal Government as a rural mail carrier for 29 years.
He explained, “[appellant] has had a contusion of the patella in the past, as well as various other
over-use syndromes related to her employment. She has been climbing in and out of the mail
truck for many years, and her knee is in a very precarious position while driving the mail truck.
It puts her at an angle that causes a lot of pressure to be placed onto the patella, as well as onto
the medial joint surface.” Dr. Kellis opined:
“I do believe that [appellant’s] condition of osteoarthritis was caused and/or
aggravated by factors of her employment. I believe her duties as a rural mail
carrier caused the problem versus any natural aging process. It is important to
note that this has been the knee that has been repetitively stressed on the job and
that her opposite knee is pristine. There has never been a significant problem or
aggravation of the opposite knee.”
Dr. Kellis noted that he had reviewed appellant’s employment, as well as pictures and videos of
her mail truck. He concluded, “There is no question in my mind that this patient’s osteoarthritic
changes were a direct and proximate result of her employment.”
By decision dated May 23, 2016, OWCP denied appellant’s claim. It found that although
Dr. Kellis had rendered a medical opinion on the cause and/or aggravation of appellant’s left
knee condition, his report was insufficient because he failed to opine whether the condition was
actually caused by duties of her employment, or merely aggravated. OWCP determined that
because Dr. Kellis had not sufficiently discussed how past trauma to her left knee could have
resulted in her current condition, his opinion on the cause or aggravation of the condition was not
well rationalized.
On June 6, 2016 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative.
By letter dated September 27, 2016, the employing establishment notified OWCP that
appellant planned to retire effective November 10, 2016.
The hearing was held on January 23, 2017. At the hearing, appellant noted that when she
first began working at the employing establishment, she used her own vehicle for mail delivery.
She stated that she had to straddle the seat for about 15 years, while she drove on the wrong side
of the car, using her left knee as the accelerator and the gas. For seven years, she had used a
truck supplied by the employing establishment, which she stated was very small, and required
her to bend to enter the vehicle and to load it, and that all of her duties required using her knee.
Appellant stated that Dr. Kellis had told her that her problem was work related, and that duties of
her employment had caused an aggravation of osteoarthritis. Counsel argued that Dr. Kellis’
April 25, 2016 report had been improperly rejected as not establishing appellant’s claim because

3

even if it was not fully rationalized, it was the only medical evidence of record and it, therefore,
established a prima facie claim requiring OWCP to further develop the medical evidence. He
requested that OWCP direct appellant to a second opinion examination and further develop the
medical evidence.
By decision dated February 27, 2017, the hearing representative affirmed OWCP’s
May 23, 2016 decision. She found that because Dr. Kellis’ report of April 25, 2016 did not
mention appellant tripping at home or striking her knee against a bin, it did not suffice to
establish causal relationship. The hearing representative explained that omitting appellant’s
history of tripping at home or striking her knee against the bin amounted to “not giv[ing] a
rationalized opinion based upon a complete history.”
LEGAL PRECEDENT
An employee seeking benefits under FECA 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.3 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The claimant has the burden of establishing by the weight of reliable, probative, and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.5 An award of
compensation may not be based on appellant’s belief of causal relationship. 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 a causal relationship.6

3

Gary J. Watling, 52 ECAB 278, 279 (2001); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

Michael E. Smith, 50 ECAB 313, 315 (1999).

5

Roma A. Mortenson-Kindschi, 57 ECAB 418, 428 n.37 (2006); Katherine J. Friday, 47 ECAB 591, 594 (1996).

6

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

4

Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.7 Rationalized medical
opinion evidence is medical evidence which includes a physician’s reasoned opinion on whether
there is a causal relationship between the claimant’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 claimant, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.8 The weight of
medical evidence is determined by its reliability, its probative value, its convincing quality, the
care of analysis manifested, and the medical rationale expressed in support of the physician’s
opinion.9
ANALYSIS
Appellant alleged that she sustained osteoarthritis of the left knee as a result of factors of
her federal employment. OWCP denied her claim finding that she had not submitted sufficient
medical evidence to establish a causal relationship between her claimed condition and factors of
her federal employment.
The Board finds that appellant has not submitted sufficient evidence to establish that her
left knee osteoarthritic condition was caused or aggravated by factors of her federal employment.
By letter dated April 25, 2016, Dr. Kellis noted that appellant had osteoarthritic changes
of the left knee and had worked for the Federal Government as a rural mail carrier for 29 years.
He explained that appellant had over-use symptoms related to her employment, and noted that
she had previously had a contusion of her patella. Dr. Kellis noted that, when she was driving
her mail truck, it put her knee in a very precarious position, placing pressure on her patella and
medial joint surface. He opined:
“I do believe that [appellant’s] condition of osteoarthritis was caused and/or
aggravated by factors of her employment. I believe her duties as a rural mail
carrier caused the problem versus any natural aging process. It is important to
note that this has been the knee that has been repetitively stressed on the job and
that her opposite knee is pristine. There has never been a significant problem or
aggravation of the opposite knee.”
Dr. Kellis noted that he had reviewed appellant’s employment, as well as pictures and videos of
her mail truck. He concluded, “There is no question in my mind that this patient’s osteoarthritic
changes were a direct and proximate result of her employment.”
Appellant also submitted an operative report and office notes from Dr. Kellis from 2012
through 2016. In these notes, Dr. Kellis recounts that she visited him on June 8, 2012 due to
7

Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117, 123 (2005).

8

Leslie C. Moore, 52 ECAB 132, 134 (2000).

9

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

5

knee pain after she bumped her knee on a bin; and that she visited him on November 11, 2013
after she tripped on a dog biscuit, resulting in knee sprain and “tweaking.”
The Board finds that Dr. Kellis’ April 25, 2016 report does not provide a complete
history of injury, and is, therefore, of limited probative value regarding the issue of causal
relationship. The Board has explained that a medical opinion regarding causal relationship must
be based on a complete, accurate factual and medical history. Therefore the opinion cannot omit
discussion of other factors that affect appellant’s condition.10 Dr. Kellis’ April 25, 2016 report
did not contain a discussion of any prior traumatic injuries to the same bodily member, despite at
least two prior injuries being documented in his earlier reports. While, in his June 8, 2012
report, Dr. Kellis related that appellant had osteoarthritic changes which were aggravated when
she bumped her knee on a bin, and in September 2013 he related that appellant’s knee was boneon-bone, he did not explain why appellant’s prior knee condition did not relate to her current left
knee condition. A well-rationalized opinion is particularly warranted when there is a history of
preexisting condition.11
Dr. Kellis also did not provide a biomechanical explanation of how appellant’s federal
employment duties resulted in her left knee condition, either by direct causation or aggravation.
Without explaining how physiologically the movements involved in appellant’s employment
duties caused or contributed to her diagnosed condition, his opinion on causal relationship is
equivocal in nature and of limited probative value.12 His reports therefore did not provide the
necessary medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.13
As appellant has not submitted any rationalized medical evidence to support her claim for
compensation for left knee osteoarthritis, she has not met her burden of proof to establish a
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 failed to meet her burden of proof to establish that her left
knee osteoarthritis is causally related to factors of her federal employment.

10

See J.S., Docket No. 15-0619 (issued July 17, 2015).

11

See D.M., Docket No. 16-0346 (issued June 15, 2017).

12

See S.C., Docket No. 17-0103 (issued May 2, 2017).

13

Supra note 8.

6

ORDER
IT IS HEREBY ORDERED THAT the February 27, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 1, 2017
Washington, DC

Christopher J. Godfrey, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
ENVIRONMENTAL PROTECTION AGENCY,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 06-1754
Issued: February 1, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 26, 2006 appellant, through her attorney, filed a timely appeal of the Office of
Workers’ Compensation Programs’ merit decisions dated July 28, 2005 and March 1, 2006.
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 met her burden of proof in establishing that she
sustained a recurrence of disability on April 3, 2000 causally related to her accepted
December 15, 1999 employment injury.
FACTUAL HISTORY
This case has previously been before the Board on appeal. In the February 11, 2003
decision,1 the Board found an unresolved conflict of medical opinion evidence between
1

Docket No. 03-57 (issued February 11, 2003).

appellant’s attending physician, Dr. Charles E. Wilkins, Jr., a Board-certified internist, and the
Office second opinion physician, Dr. Steven Valentino, an osteopath, regarding whether
appellant’s neck condition on and after December 15, 1999 was causally related to her accepted
employment injury of cervical strain. The Board remanded the case for the Office to undertake
further development of the medical evidence by referring appellant, a statement of accepted facts
and a list of specific questions to an appropriate Board-certified physician for an impartial
medical examination to resolve the issue of causal relationship. The facts and the circumstances
of the case as set out in the Board’s prior decision are adopted herein by reference.
The Office referred appellant, the statement of accepted facts and list of questions to
Dr. Menachem M. Meller, a Board-certified orthopedic surgeon, on April 9, 2003. The initial
statement of accepted facts dated April 3, 2003 described appellant’s initial employment injury
and treatment and her return to work on January 31, 2000. The Office noted her alleged
recurrence of disability on April 3, 2000 and her treatment with Dr. Wilkins. The Office stated
that Dr. Wilkins released appellant to return to regular duty on August 31, 2000 and that she then
sought treatment from Dr. Eric I. Mitchell, an orthopedic surgeon, who released appellant to
return to part-time work on December 4, 2000 and eight hours a day on March 8, 2001 according
to the statement of accepted facts. Appellant then sought additional treatment from Dr. Wilkens
on March 21, 2001. The statement of accepted facts noted that she had a history of pain in the
neck, shoulder and right arm in August 1995 including x-rays.
The Office amended the statement of accepted facts on April 14, 2003. The amended
statement of accepted facts did not contain the statement regarding Dr. Wilkins’ opinion that
appellant could return to work on August 31, 2000. The April 14, 2003 statement of accepted
facts noted that appellant returned to part-time work in December 2000 after the release by
Dr. Mitchell and that she returned to full-time work on March 8, 2001 as allowed by him.
In a report dated May 19, 2003, Dr. Meller noted reviewing the statement of accepted
facts dated April 3, 2003 and recited this statement of the facts in his report, including the release
by Dr. Wilkens on August 31, 2000. He noted that appellant mentioned that her current
condition included arm pain in the C5-6 distribution. Dr. Meller reviewed the August 2000
magnetic resonance imaging scan and found a mild spondylotic spur/hard disc at C5-6 and a
“very mild” degenerative disc bulge at C6-7. He noted that appellant was not currently
experiencing pain and could not recall the last time she had symptoms. Dr. Meller stated, “In
point of fact the description of the symptoms were entirely consistent with normal for age
arthritis rather than an acute injury which in fact does not subside to a pain free state for long
periods and does simply not allow gardening or other types of fairly enduring types of activities.”
Dr. Meller performed a comprehensive physical examination and reported no positive
findings. He concluded that appellant had a completely normal clinical examination. Dr. Meller
diagnosed arthritic neck with spondylotic spurs and stated that her subjective complaints were
consistent with age-related degeneration, “a typical middle aged stiff neck.”
Dr. Meller opined that lifting boxes, as in appellant’s original employment injury,
stresses the shoulders and upper extremities rather than the neck. He stated that lifting was not
the sort of injury that would be likely to cause a disc herniation in the cervical spine. Dr. Meller
did not attribute appellant’s objective cervical spine findings to her accepted employment injury,

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instead, he concluded that her December 15, 1999 employment injury was a cervical sprain and
strain. He found that her April 3, 2000 symptoms were not due to her accepted employment
injury, but to a “spontaneous flare-up of the underlying cervical spine osteoarthritis.” Dr. Meller
completed a work capacity evaluation on June 2, 2003 and found that appellant could work with
no restrictions.
By decision dated July 14, 2003, the Office denied appellant’s claim for a recurrence of
disability on April 3, 2000 based on Dr. Meller’s report. Appellant, through her attorney,
requested an oral hearing by letter dated July 22, 2003. She testified at the oral hearing on
September 28, 2004 and stated that the period of her recurrence of total disability was April 3
through December 18, 2000. Appellant noted that Dr. Meller used the April 3, 2003 statement of
accepted facts which was amended at her request on April 14, 2003.
By decision dated December 6, 2004, the hearing representative vacated the Office’s
July 14, 2003 decision and remanded appellant’s claim to the Office to provide Dr. Meller with
the corrected statement of accepted facts dated April 14, 2003 and to request a supplemental
report from Dr. Meller. He then directed the Office to issue a de novo decision on appellant’s
claim.
In a letter dated January 31, 2005, the Office requested that Dr. Meller review the
corrected statement of accepts facts dated April 14, 2003 and opine whether his opinion was
altered based on the new facts presented. Dr. Meller responded on February 9, 2005 and stated
that he reviewed the amended statement of accepted facts and the changes as highlighted by the
Office. He noted that he reviewed the August 21, 2000 MRI scan and felt that this test revealed
a mild spondylotic spur/hard disc C5-6 and very mild degenerative disc bulge at C6-7.
Dr. Meller again stated that this test was essentially normal for appellant’s age. He reviewed the
additional factual amendments and stated that the changes did not alter his opinion.
By decision dated July 28, 2005, the Office denied appellant’s claim for a recurrence of
disability beginning April 3, 2000. The Office found that Dr. Meller’s reports were entitled to be
accorded the weight of the medical evidence and established that appellant had not sustained a
recurrence of total disability on April 3, 2000 causally related to her accepted December 15,
1999 employment injury.
Appellant, through her attorney, requested an oral hearing on August 8, 2005. Counsel
appeared at the oral hearing on December 15, 2005 and argued that Dr. Meller’s report was not
sufficient to constitute the weight of the medical opinion evidence. He alleged that Dr. Meller
failed to follow the statement of accepted facts, that he disagreed that appellant’s initial injury
could have resulted in her diagnosed condition and that, therefore, the reports lacked probative
value.
By decision dated March 1, 2006, the hearing representative affirmed the Office’s
July 28, 2005 decision finding that Dr. Meller’s reports included a proper history of injury,
definitive diagnosis and an unequivocal opinion regarding the lack of causal relationship which
was supported by medical reasoning. He noted that Dr. Meller found that appellant had
sustained a cervical strain/sprain as a result of her accepted employment injury on December 15,
1999 and that neither the Office nor Dr. Meller attributed appellant’s herniated disc to this injury.

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LEGAL PRECEDENT
A recurrence of disability is the 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 which
caused the illness. The term also means an inability to work that takes place when a light-duty
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.2 Where an employee claims a recurrence of disability due to an accepted
employment-related injury, he or she has the burden of establishing by the weight of reliable,
probative and substantial evidence that the recurrence of disability is causally related to the
original injury. The burden includes the necessity of furnishing evidence from a qualified
physician who, on the basis of a complete and accurate factual and medical history, concluded
that the condition is causally related to the employment injury. Moreover, sound medical
reasoning must support the physician’s conclusion.3
The medical evidence must demonstrate that the claimed recurrence was caused,
precipitated, accelerated or aggravated by the accepted injury. In this regard, medical evidence
of bridging symptoms between the recurrence of the accepted injury must support the
physician’s conclusion of a causal relationship. 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.4
The Federal Employees’ Compensation Act provides that, if there is a 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.5 The
implementing regulation states that, if a conflict exists between the medical opinion of the
employee’s physician and the medical opinion of either a second opinion physician of an Office
medical adviser or consultant, the Office shall appoint a third physician to make an examination.
This is called a referee examination and the Office will select a physician who is qualified in the
appropriate specialty and who has had no prior connection with the case.6

2

20 C.F.R. § 10.5(x).

3

Ricky S. Storms, 52 ECAB 349 351-52 (2001).

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Id.

5

5 U.S.C. §§ 8101-8193, 8123.

6

20 C.F.R. § 10.321.

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It is well established that, when a case is referred to an impartial medical specialist for the
purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and
based on proper factual and medical background must be given special weight.7
ANALYSIS
In the February 11, 2003 decision, the Board found that there was a conflict of medical
opinion evidence regarding whether appellant’s current condition was due to her accepted
employment injury of cervical strain. The Office referred appellant to Dr. Meller, a Boardcertified orthopedic surgeon, to resolve this conflict, along with a statement of accepted facts and
a list of questions. The hearing representative found that the April 3, 2003 statement of accepted
facts contained errors and remanded the case for Dr. Meller to issue a supplemental report
following his consideration of the April 14, 2003 statement of accepted facts. Dr. Meller
reviewed the April 14, 2003 statement of accepted facts on February 9, 2005 and again opined
that appellant’s current condition was age-related rather than due to her accepted cervical strain.
Dr. Meller was properly selected as an impartial medical specialist, he based his
February 9, 2005 report on a proper factual background and opined that appellant’s current
condition was due to her age-related arthritis rather than the accepted employment injury of
cervical strain. He also supported his opinion with medical reasoning. Dr. Meller noted that
appellant’s MRI scan revealed a mild degenerative disc bulge which he did not attribute to her
accepted employment injury, noting that, while she sustained a cervical strain as accepted by the
Office due to lifting in the performance of duty, lifting was not likely to result in a disc
herniation in the cervical spine. He concluded that her symptoms on and after December 15,
1999 were likely due to arthritis rather than the accepted employment injury. Dr. Meller opined
that appellant’s condition was not due to her employment injury, offered medical rationale that
an injury such as appellant was unlikely to cause cervical disc herniation and concluded that her
condition was age related. His well-reasoned report is entitled to the weight of the medical
opinion evidence. As Dr. Meller did not attribute appellant’s symptoms and conditions to her
accepted employment injury, his report does not support her claim for recurrence of disability.
CONCLUSION
The Board finds that, as the impartial medical specialist did not attribute appellant’s
condition or disability after December 15, 1999 to her accepted employment injury, the weight of
the medical evidence fails to support that appellant sustained a recurrence of disability and the
Office properly denied her claim.

7

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

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ORDER
IT IS HEREBY ORDERED THAT the March 1, 2006 and July 28, 2005 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: February 1, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1772
Issued: March 21, 2012

Case Submitted on the Record

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

JURISDICTION
On July 28, 2011 appellant, through her representative, filed a timely appeal from the
February 1, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a recurrence of a medical condition on June 18,
2009 and a recurrence of disability on August 11, 2009 causally related to her accepted
employment injury.
FACTUAL HISTORY
On April 17, 2006 appellant, a 35-year-old city carrier, filed an occupational disease
claim alleging that her herniated disc was a result of performing the duties of her position. A
1

5 U.S.C. § 8101 et seq.

magnetic resonance imaging (MRI) scan showed a large, broad posterior central and left-sided
extruded disc herniation at L4-5 causing marked compression of the emerging left L5 nerve root.
OWCP accepted appellant’s claim for displacement of lumbar intervertebral disc without
myelopathy.
Appellant underwent an L4-5 microdiscectomy and received wage-loss
compensation before being medically released to full duty in September 2006.
On September 8, 2009 appellant filed a recurrence claim alleging a recurrence of medical
condition on June 18, 2009 and a recurrence of disability on August 11, 2009. She described the
circumstances of the recurrence of disability and why she believed her present condition was
related to the employment injury: “Chronic lower lumbar pain, suffered severe nerve damage.
My left leg has numbness and feet and toes are numb. Tend to drag left foot. Symptoms are
aggravated in weight-bearing position.” Asked to describe all injuries and illnesses suffered
between the date she returned to work following the employment injury and the date of the
claimed recurrence, appellant noted that she slipped on an icy driveway on February 5, 2009.
Responding to OWCP’s request for additional information, appellant explained that she
was not doing one specific activity that made her suffer a recurrence. She stated that her job as a
city carrier was very physical and labor intensive. Appellant acknowledged that she fell on an
icy driveway while delivering mail. She stated that she filed an accident report with her
supervisor on February 5, 2009. Appellant described the progress of her condition from the date
she first returned to work to the date of the claimed recurrence. She stated that she still had back
pain when she returned to work. “I had to work with pain and did all I could do to alleviate the
pain.” Appellant stated that she was struggling with the pain, “and now it becomes a question of
my quality of life if I remain in this physically demanding and labor intensive job.” She stated
that her work did not help her pain in any way; it only aggravated it more. Appellant explained
that she started undergoing spinal decompression on June 18, 2009, a noninvasive and drug-free
way to treat her chronic back pain. She described the requirements of her job, all of which she
described as really very challenging for her with her chronic back pain.
Also responding to OWCP’s request for additional information, Dr. Michael Rouhana, a
chiropractor, indicated that appellant’s first examination was on June 18, 2009, at which time she
was fitted with a lumbosacral orthotic for lumbar support. He identified numerous dates for
physical therapy appointments. Dr. Rouhana stated that appellant had reported symptoms of low
back pain and left leg numbness aggravated by working and by household tasks such as
vacuuming. He described his findings on June 18, 2009 and offered a firm diagnosis of lumbar
degenerative disc disease and lumbar radiculopathy. Dr. Rouhana stated that appellant was taken
off work in August 2009 after a recommendation to allow her to reduce her walking speed was
denied. Appellant’s primary restriction, he stated, was reduced expectation of walking speed.
In a decision dated January 12, 2010, OWCP denied appellant’s recurrence claim. It
found that she did not meet her burden to establish that the claimed recurrence and subsequent
work stoppage were related to the accepted employment injury. OWCP explained that
Dr. Rouhana was not a physician within the meaning of FECA. As there was no medical
evidence from a qualified physician, the claimed recurrence was not established.
Dr. Saeed A. Bajwa, a Board-certified neurosurgeon, noted that appellant was relatively
stable in 2008 with some mild persistent symptoms and a mild disability rate of 25 percent. In

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January 2010, however, appellant was found to be moderately 50 percent disabled due to
worsening symptoms. She underwent additional treatments and spinal decompression and
currently she had back pain with left greater than right L5-S1 radiculopathy. It was Dr. Bajwa’s
opinion that appellant had a recurrence of her back symptoms, that these symptoms were a
continuation of symptoms that had been going on for several years and were directly related to
the original employment injury.
Dr. Bajwa obtained a current MRI scan, which showed evidence of a new herniated disc
at right L5-S1 but no herniated disc at left L4-5, the site of the previous surgery.
On April 23, 2010 OWCP reviewed the merits of appellant’s claim and denied
modification of its prior decision. It found that the medical evidence did not discuss the
worsening of her condition, bridging medical evidence or rationale to support the claimed
recurrence or to relate the findings on examination to the claimed recurrence.
Appellant requested reconsideration.2 She submitted, among other things, a report from
Dr. Bajwa addressing causal relationship. Dr. Bajwa stated that it was quite clear that the
original employment injury was responsible for appellant’s present condition. He noted that
appellant had a herniated disc at left L4-5, which required surgery. Later, appellant developed
what Dr. Bajwa described as a recurrent herniated disc at left L4-5 and a bulging disc that
herniated at right L5-S1, which also required surgery. Both surgeries, Dr. Bajwa found, were
directly related to the original condition, which was caused by repetitive bending, lifting and
twisting at work.
In a decision dated February 1, 2011, OWCP reviewed the merits of appellant’s claim
and denied modification of its prior decision. It noted that Dr. Bajwa had earlier noted no
recurrence of the initial herniated disc and did not explain his change of opinion.
Appellant’s representative argues that OWCP should have adjudicated appellant’s claim
not as a recurrence but as a claim for a new traumatic injury, when she slipped and fell on an icy
driveway. Citing R.O., Docket No. 07-2070 (issued January 12, 2009), he argues that OWCP
mishandled the case and denied due process. Counsel argues that OWCP never asked appellant
to submit well-rationalized medical evidence based on objective findings and a proper factual
background demonstrating that disability for work and appellant’s 2010 emergency back surgery
were necessitated by her fall on the ice while delivering mail on February 5, 2009, as opposed to
factors of employment described in the occupational disease claim.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.3 “Disability” means the incapacity, because
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Appellant submitted a narrative Notice of Occupational Disease and Claim for Compensation dated
November 1, 2010 and a copy of a February 6, 2009 Notice of Traumatic Injury for the February 5, 2009 slip and
fall, which she stated caused a right knee and right hip injury.
3

5 U.S.C. § 8102(a).

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of an employment injury, to earn the wages the employee was receiving at the time of injury. It
may be partial or total.4
“Recurrence of medical condition” means 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 after release from treatment,” nor is an
examination without treatment.5
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 resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.6 An individual who claims a recurrence of disability resulting from an accepted
employment injury has the burden of establishing that the disability is related to the accepted
injury. This burden requires furnishing medical evidence from a physician who, on the basis of a
complete and accurate factual and medical history, concludes that the disabling condition is
causally related to the employment injury and who supports that conclusion with sound medical
reasoning.7
Section 8101(2) of FECA provides that the term “physician,” as used therein, “includes
chiropractors only to the extent that their reimbursable services are limited to treatment consisting
of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist, and
subject to regulation by the Secretary.”8 Without diagnosing a subluxation from x-ray, a
chiropractor is not a “physician” under FECA and his opinion on causal relationship does not
constitute competent medical evidence.9
ANALYSIS
Appellant filed a recurrence claim alleging a recurrence of medical condition on June 18,
2009 and a recurrence of disability on August 11, 2009 causally related to her employment
injury. To meet her burden of proof, she must submit a well-reasoned medical opinion showing
that the claimed recurrences were causally related to the accepted employment injury.
Appellant did not meet her burden. Dr. Rouhana, the chiropractor, did not diagnose a
subluxation from x-ray. He is not a qualified physician under FECA and is not competent to
address causal relationship.
4

20 C.F.R. § 10.5(f).

5

Id. at § 10.5(y).

6

Id. at § 10.5(x).

7

Dennis E. Twardzik, 34 ECAB 536 (1983); Max Grossman, 8 ECAB 508 (1956).

8

5 U.S.C. § 8101(2).

9

See generally Theresa K. McKenna, 30 ECAB 702 (1979).

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Dr. Bajwa, the neurosurgeon, found that appellant had a recurrence of back symptoms
directly related to the original employment injury. He noted only that, after being relatively
stable in 2008 with some mild persistent symptoms, she became moderately disabled in
January 2010 due to worsening symptoms. Dr. Bajwa did not attempt to explain why her
relatively stable condition worsened. He reviewed an imaging study showing evidence of a new
herniated disc at right L5-S1. Although the finding appeared to support that appellant’s
worsening low back symptoms were objectively the result of a new herniation at L5-S1, and not
a worsening of the surgically-repaired herniation at L4-5, Dr. Bajwa stated that it was quite clear
that the original employment injury was responsible for appellant’s present condition. He did
not explain. Further, Dr. Bajwa described a “recurrent” herniated disc at left L4-5 without
reconciling his review of a current MRI scan, which showed no herniated disc at that level.
Medical conclusions unsupported by rationale are of little probative value.10 The Board
finds that Dr. Bajwa’s opinion that appellant suffered a recurrence of back symptoms directly
related to the accepted employment injury is not well rationalized and has little probative value.
As appellant has not submitted a sound medical opinion establishing that her claimed recurrence
of medical condition and recurrence of disability were causally related to the 1996 employment
injury, the Board finds she has not met her burden of proof. The Board will affirm OWCP’s
February 1, 2011 decision denying her recurrence claim.
Appellant’s representative argues that OWCP should have adjudicated appellant’s claim
not as a recurrence but as a claim for a new traumatic injury, when she slipped and fell on an icy
driveway on February 5, 2009. Appellant not only filed a recurrence claim, she submitted
medical opinion evidence from Dr. Bajwa supporting that she sustained a recurrence directly
related to the original employment injury. It was appropriate, therefore, for OWCP to adjudicate
that claim.
When appellant filed her recurrence claim, she mentioned the February 5, 2009 slip and
fall only because the claim form asked her to describe all injuries and illnesses suffered between
the date she returned to work following the 2006 injury and the date of the claimed recurrence.
It was an appropriate response and not one that suggested she had filed the incorrect form.
Appellant explained that she filed an accident report with her supervisor on February 5, 2009,
and the record shows that she filed a separate traumatic injury claim the following day. That
issue is not before the Board.
The Board notes, however, that in describing the claimed recurrence appellant appeared
to implicate new occupational exposure. Appellant stated that her job as a city carrier was very
physical and labor intensive, that she had been carrying mail full time with no limitations since
returning from her initial surgery and that her work only aggravated her pain. She stated that, as
a result, she underwent spinal decompression treatment on June 18, 2009 and was later taken off
work. Moreover, appellant submitted a narrative Notice of Occupational Disease and Claim for
Compensation dated November 1, 2010.

10

Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954).

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In R.O., the case cited by appellant’s representative, the Board found, as it does here, that
OWCP properly denied the claimant’s recurrence claim. The claimant did not experience a
spontaneous change in his medical condition but instead implicated a new exposure at work. As
the claimant consistently described the onset of pain arising from this exposure, the Board
remanded the case for OWCP to provide him with the appropriate claim form and an opportunity
to develop the claim in accordance with his factual statements.
The Board will remand this case as well. Appellant has consistently implicated the
physical demands of her city carrier position after returning to work from her initial surgery. She
has also submitted an occupational injury claim. OWCP shall develop this claim accordingly.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden to establish that she sustained a
recurrence of medical condition on June 18, 2009 and a recurrence of disability on August 11,
2009 causally related to her accepted employment injury. Further development is warranted on
whether she sustained a new occupational injury.
ORDER
IT IS HEREBY ORDERED THAT the February 1, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed and the case remanded for further action.
Issued: March 21, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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