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

)
)
)
)
)
)
)
)

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

Docket No. 10-376
Issued: November 29, 2010

Case Submitted on the Record

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

JURISDICTION
On November 23, 2009 appellant, through her attorney, filed a timely appeal from an
August 24, 2009 merit decision of the Office of Workers’ Compensation Programs affirming the
termination of her compensation benefits. Under 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
medical and wage-loss compensation effective January 18, 2009; and (2) whether appellant met
her burden of proof to establish that she had any continuing disability or medical condition after
January 18, 2009 causally related to her employment injury.
On appeal appellant, through her attorney, contends that the Office improperly gave
weight to the opinion of the impartial medial examiner as his opinion is inconsistent, not well
rationalized and speculative.

FACTUAL HISTORY
On March 16, 2005 appellant, then a 57-year-old clerk, filed an occupational disease
claim alleging that repetitive motions performed during her federal employment caused injury to
her hands and wrists. On April 1, 2005 the Office accepted her claim for bilateral carpal tunnel
syndrome. On October 3, 2005 appellant underwent a right carpal tunnel release. On
February 28, 2006 she underwent a left carpal tunnel release.
In a July 13, 2006 report, Dr. Mark A.P. Filippone, an attending Board-certified
physiatrist, noted that appellant continued to complain of the left hand falling asleep with pain
and numbness in the left thumb, index and ring ringers and in the volar aspect of the left wrist.
He noted that the right hand was better but still has residual weakness and numbness in the right
ring finger. In an August 10, 2006 report, Dr. Filippone advised that appellant continued to be
unable to work in any capacity.
On August 31, 2006 the Office referred appellant to Dr. David Rubinfeld, a Boardcertified orthopedic surgeon, for a second opinion. In a September 18, 2006 report,
Dr. Rubinfeld diagnosed status post right and left carpal tunnel release. He listed appellant’s
prognosis as fair. Dr. Rubinfeld noted that she continued to have objective findings of bilateral
carpal tunnel syndrome consisting of decreased sensitivity in both hands which represented
residuals of carpal tunnel syndrome. He advised that the condition had not yet resolved and that
appellant was not able to perform the full duties of a mail clerk. Dr. Rubinfeld noted that
appellant’s bilateral carpal tunnel syndrome represented a repetitive trauma disorder which had
been slow to resolve after surgery. While no further treatment was indicated, reevaluation in six
months was recommended to monitor her progress. Dr. Rubinfeld found that appellant’s
bilateral wrist disability was due to her employment and that there were no nonoccupational
factors or incidents causing disability. On November 1, 2006 he reiterated that there was
residual disability but it might resolve in six months. When Dr. Rubinfeld stated that appellant
had reached maximum medical improvement, he meant that her condition would benefit from
additional medical treatment but might improve over time without any additional treatment.
Appellant was able to work but was to avoid repetitive motion of her wrists of more than three
hours, which he noted was not a requirement of her job.
In an April 23, 2007 report, Dr. Filippone conducted an electromyogram (EMG) which
showed evidence of bilateral carpal tunnel syndrome and a left C5-6 cervical radiculopathy.
On June 29, 2007 the Office notified appellant of a conflict in medical opinion between
Dr. Filippone and Dr. Rubinfield. It referred her to Dr. Andrew Carollo, a Board-certified
orthopedic surgeon, to resolve the conflict with regard to whether there was a causal relationship
between appellant’s condition and the accepted work injury and her current condition and to
determine whether appellant had any continuing disability. In a July 31, 2007 report, Dr. Carollo
noted that appellant’s complaints were compatible with a diagnosis of bilateral carpal tunnel
syndrome. He noted that the relationship of the employment to appellant’s situation was
complicated by the fact that she had a history of diabetes as well as thyroid problems, both of
which are associated carpal tunnel symptomologies. Dr. Carollo advised that appellant had
residuals of carpal tunnel syndrome based upon the underlying medical conditions. He noted

2

that appellant underwent bilateral carpal tunnel release surgery that usually gave excellent results
in uncomplicated cases. Dr. Carollo stated:
“The fact that [appellant] has had bilateral carpal tunnel releases performed in
what would appear to be a satisfactory mode and remain symptomatic lends
credence to the fact that her underlying symptomatology may be more related to
diabetes and thyroid problems than a work-related condition. The fact that she
was reassigned in work to a less demanding task which put less strain and stress
on her hands also underwent bilateral surgical releases and remained symptomatic
further leads me to believe that her underlying symptomology at the present time
is related to her medical condition and not solely based upon work-related
conditions.”
With regard to causal relationship, he stated there was not a direct causal relationship between
appellant’s work conditions and her bilateral carpal tunnel syndrome and that her condition was
based upon diabetes and her thyroid condition. Based upon the accepted bilateral carpal tunnel
condition, Dr. Carollo saw no reason why she could not return to her work without restriction.
He noted that whether or not additional factors such as appellant’s shoulder problems and her
spinal stenosis factor into her work-related activities is another matter.
In an August 10, 2007 notice, the Office proposed termination of medical and
compensation benefits.
By letter dated August 23, 2007, appellant’s attorney argued that Dr. Carollo’s report was
not well reasoned, did not support the proposed action and is not consistent with the statement of
accepted facts and that he acknowledges that at least part of appellant’s carpal tunnel syndrome
is related to her work.
By decision dated September 11, 2007, the Office terminated appellant’s medical and
wage-loss compensation benefits effective that date.
In an August 28, 2007 report, Dr. Filippone stated that the delay in approving appellant’s
surgical treatment caused undue additional trauma and injury to the nerve because of a lack of
treatment. He stated that Dr. Carollo’s opinion that appellant’s carpal tunnel syndrome was an
underlying medical condition was erroneous; contending that it was established that the carpal
tunnel syndrome was the result of the repetitive nature of appellant’s work for over 21 years.
Based on appellant’s history and clinical presentation she continued to be totally disabled.
Dr. Filippone noted that her symptoms continued to persist including constant numbness in her
hands. He advised that appellant’s carpal tunnel syndrome had not resolved and was too
symptomatic to return to work. Dr. Filippone also stated, “It is also my professional medical
opinion that [appellant’s] persistent work-related carpal tunnel syndrome presentation is the sole
and direct result of her work for the [employing establishment.]”
By letter dated September 17, 2007, appellant requested a hearing.
In a decision dated November 30, 2007, an Office hearing representative reversed the
September 11, 2007 decision, finding that the Office did not meet its burden of proof to
terminate benefits. The Office reinstated appellant’s benefits.
3

In reports dated December 6, 2007 through October 28, 2008, Dr. Filippone advised that
appellant remained totally disabled. On February 28, 2008 he indicated that appellant had
surgical repair of her right rotator cuff on February 27, 2008. In a July 21, 2008 report,
Dr. Filippone concluded that there was nerve conduction and EMG evidence of a bilateral carpal
tunnel syndrome and EMG evidence of a left C5-6 cervical radiculopathy, all related to the
injuries sustained at work.
The Office requested, on January 25, 2008, that Dr. Carollo review a copy of appellant’s
job description and clarify his opinion on causal relation. In a March 18, 2008 report,
Dr. Carollo opined that he did not believe that appellant’s employment contributed in any part to
her carpal tunnel syndrome. He stated that she had adequate treatment of her condition,
including surgical release of the carpal tunnel bilaterally, which would have alleviated her
median nerve compression and subsequent symptomology. Dr. Carollo reiterated that appellant
was able to perform her duties as described.
On December 2, 2008 the Office proposed terminating appellant’s compensation benefits
as the medical evidence established that she no longer had any residuals or disability due to the
accepted work injury.
On December 15, 2008 appellant, through her attorney, objected to the proposed
termination of benefits. In a November 6, 2008 report, Dr. Filippone noted that appellant
continued to be disabled. In a December 4, 2008 report, he noted that he last examined her on
November 6, 2008 and that she was still obviously symptomatic. Dr. Filippone reiterated that
appellant remained totally disabled and wished to pursue disability retirement.
By decision dated January 8, 2009, the Office terminated appellant’s compensation
benefits effective January 18, 2009.
On January 13, 2009 appellant requested an oral hearing.
In a January 15, 2009 report, Dr. Filippone again disagreed with the opinion of
Dr. Carollo. He noted that appellant gave a coherent consistent history of bilateral carpal tunnel,
which has not improved with surgery and was interfering with her activities of daily living.
Dr. Filippone noted that her physical examination showed multiple abnormalities, including
partial atrophy and that the EMG and nerve conduction studies (NCS) confirmed his conclusions.
He reiterated that appellant remained totally disabled. On February 12, 2009 Dr. Filippone noted
that she continued to have numbness and tingling in both her hands and pain and guarding and
spasm persisting in cervical paraspinals.
At the hearing held on May 28, 2009 appellant discussed her employment with the
employing establishment and her injuries. She noted that she still had trouble with her carpal
tunnel syndrome in that sometimes her hands went numb and there was tingling.
By decision dated August 24, 2009, an Office hearing representative affirmed the
January 8, 2009 decision terminating appellant’s compensation benefits.

4

LEGAL PRECEDENT
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.1 It may not terminate compensation without establishing
that disability ceased or that it was no longer related to the employment.2 The Office’s burden of
proof includes the necessity of furnishing rationalized medical opinion evidence based on a
proper factual and medical background.3
The right to medical benefits for an accepted condition is not limited to the period of
entitlement to compensation for disability. To terminate authorization for medical treatment, the
Office must establish that an employee no longer has residuals of an employment-related
condition which require further medical treatment.4
Section 8123(a) of the Federal Employees’ Compensation Act provides, in pertinent part,
“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 Where a case is referred to an impartial medial specialist for the purpose of
resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and based on a
proper factual and medical background, must be given special weight.6
ANALYSIS
In the present case, the Office accepted appellant’s claim for bilateral carpal tunnel
syndrome. It terminated her medical and wage-loss compensation benefits effective January 18,
2009 finding that she no longer had any disability or residuals due to his accepted work
condition.
The Board finds that the Office did not meet its burden of proof to terminate appellant’s
compensation benefits. Appellant’s treating physician, Dr. Filippone, found that she was totally
disabled due to work-related carpal tunnel syndrome. Dr. Rubinfeld, the second opinion
physician, advised that appellant had residual disability and should avoid repetitive motion of her
wrists for more than three hours, which he noted was not a requirement of her job. The Office
terminated her compensation based on the opinion of the impartial medical examiner,
Dr. Carollo, selected to resolve the conflict in medical opinion between Drs. Filippone and
Rubinfeld.

1

I.J., 59 ECAB 408 (2008); Fermin G. Olascoaga, 13 ECAB 102, 104 (1961).

2

J.M., 58 ECAB 478 (2007); Anna M. Blaine, 26 ECAB 351 (1975).

3

T.P., 58 ECAB 524 (2007); Larry Warner, 43 ECAB 1027 (1992).

4

T.P., id.; Furman G. Peake, 41 ECAB 361, 364 (1990).

5

5 U.S.C. § 8123(a); see also Raymond A. Fondots, 53 ECAB 637 (2002); Rita Lusignan (Henry Lusignan, 45
ECAB 207, 210 (1993).
6

D.F., 61 ECAB __ (Docket No. 09-1463, issued August 12, 2010); Roger Dingess, 47 ECAB 123, 126 (1995).

5

Dr. Carollo opined that appellant had surgical release of the carpal tunnel bilaterally
which would have alleviated her median nerve compression and subsequent symptomatology.
He also opined that she could perform her regular duties. However, the Board finds that the
opinion of Dr. Carollo is not sufficiently well rationalized to be entitled to the special weight
accorded the impartial medical examiner. On July 31, 2007 Dr. Carollo noted that appellant had
residuals after her surgeries and that carpal tunnel release surgeries usually provide excellent
results in uncomplicated cases. He concluded that her residuals were due to underlying
symptomatology and not solely based upon her work-related conditions. However, Dr. Carollo
did not adequately explain appellant’s residuals after surgery and how they were related to her
preexisting condition rather than the accepted carpal tunnel syndrome. Although he noted her
postsurgical EMG/NCS, he did not explain his conclusion in light of these studies that were
positive for carpal tunnel syndrome. Dr. Carollo’s March 18, 2008 report did not clarify
sufficiently his opinion. He simply reiterated that appellant had adequate treatment of her
condition which would have alleviated her median nerve compression and subsequent
symptomology. Dr. Carollo advised that he did not “believe” that appellant’s employment
contributed to her current carpal tunnel syndrome and that she was able to perform her duties.
The Board finds that the medical evidence is insufficient to establish that appellant no
longer had residuals of carpal tunnel syndrome causally related to her accepted employment
injury. For the foregoing reasons, the Office did not meet its burden of proof to terminate her
compensation benefits.7
CONCLUSION
The Board finds that the Office did not meet its burden of proof to terminate appellant’s
medical and wage-loss compensation effective January 18, 2009.

7

As the Board finds that the Office did not meet its burden of proof to terminate appellant’s compensation
benefits, the second issue is moot.

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 24, 2009 is reversed.
Issued: November 29, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Long Beach, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-54
Issued: April 7, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 14, 2014 appellant filed a timely appeal from a September 3, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP met its burden of proof to justify termination of appellant’s
compensation benefits for her accepted injury, effective March 20, 2014.

1
2

5 U.S.C. §§ 8101-8193.

The Board notes that appellant submitted new evidence with her appeal to the Board. However, the Board is
precluded from reviewing evidence which was not before OWCP at the time it issued its final decision. See 20
C.F.R. § 501.2(c)(1); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281
(2005); Rosemary A. Kayes, 54 ECAB 373 (2003); M.B., Docket No. 09-176 (issued September 23, 2009).

FACTUAL HISTORY
On June 7, 2013 appellant, then a 54-year-old mail handler, filed an occupational disease
claim asserting that her repetitive duties including pushing, pulling, twisting, turning, lifting, and
unloading caused her to develop knee injuries. She first became aware of her condition and its
relation to her work on February 13, 2005. On July 26, 2013 OWCP accepted appellant’s claim
for a temporary aggravation of localized primary osteoarthritis of the bilateral lower legs.
Appellant stopped work on June 25, 2013 and claimed wage-loss compensation beginning
September 7, 2013.
The record indicates that appellant was treated by Dr. Anthony G. Leung, a Boardcertified orthopedist, on November 18, 2010 and July 22, 2011 for moderate-to-severe
degenerative joint disease. Dr. Leung administered synvisc injections to both knees.
Appellant was treated by Dr. William C. Kim, a Board-certified orthopedist, from July 1,
2008 to October 11, 2011, for advanced osteoarthritis of the bilateral knees. In reports dated
April 2 to August 21, 2013, Dr. Kim diagnosed moderately severe osteoarthritis of both knees.
He noted that appellant was a mail handler for 25 years and was responsible for loading and
unloading trucks, lifting, carrying, and twisting. Dr. Kim opined that, although the osteoarthritis
progressed on its own natural history, appellant’s course of employment over a period of years
with prolonged standing and walking contributed to her pain and progression. In his first report
of occupational injury and certificate of work disability dated August 20, 2013, Dr. Kim noted
her complaints of stiffness and swelling and diagnosed bilateral degenerative joint disease of the
knees. Dr. Kim opined that appellant was totally disabled for four weeks. In primary treating
physician’s progress reports dated September 27 and October 15, 2013, he noted that appellant
presented with bilateral knee pain and swelling. Dr. Kim diagnosed bilateral knee degenerative
joint disease and recommended a total left knee replacement. He again noted that appellant was
disabled for four weeks. On October 15, 2013 Dr. Kim noted that she required a knee
replacement as conservative treatment had failed. He noted findings of 10 degrees of varus
malalignment and limited knee range of motion. Dr. Kim noted that x-ray demonstrates severe
osteoarthritis of the bilateral knees, medial compartment predominant. He diagnosed severe
osteoarthritis of the bilateral knees.
On October 24, 2013 OWCP referred appellant to Dr. G.B. Ha’Eri, a Board-certified
orthopedist, to determine if the accepted conditions had resolved. In a November 6, 2013 report,
Dr. Ha’Eri indicated that he reviewed the records provided and examined appellant. Appellant
reported that she stopped work on June 26, 2013. She walked with a cane. Inspection of
appellant’s knees revealed no joint swelling or effusions, mild degree of varus deformity
bilaterally, limited range of motion with both knees, tenderness to palpation bilaterally, crepitus
was present, and manipulation of the knees revealed no gross instability. Dr. Ha’Eri noted x-rays
of both knees showed advanced osteoarthritis mainly affecting the medial compartment. He
diagnosed bilateral knee advanced degenerative joint disease. Dr. Ha’Eri noted that the
diagnosed condition directly related to appellant’s work exposure was a temporary aggravation
of her preexisting naturally occurring degenerative joint disease of both knees and this condition
ceased to exist when she stopped working on June 26, 2013. He indicated that the degenerative
joint disease of her knees was naturally occurring, genetically determined, and aggravated by her
obesity. Dr. Ha’Eri explained that the preexisting and naturally occurring bilateral knee

2

degenerative joint disease was temporarily aggravated by appellant’s work duties and this
aggravation ceased when she stopped working. He noted that her current symptoms and
disability were due to the naturally occurring degenerative condition of her knees. With regard
to Dr. Kim’s recommendation of a bilateral total knee replacement due to her work injury,
Dr. Ha’Eri advised that the total bilateral arthroplasty was medically reasonable, but it was not
due to the industrial injury. Dr. Ha’Eri reiterated that the temporary aggravation of appellant’s
preexisting degenerative condition of her knees ceased on June 26, 2013 and appellant did not
have residuals of the February 13, 2005 injury, and no longer required any medical treatment for
her knees on an industrial basis. He noted that she had work restrictions due to the degenerative
condition of her knees. In a work capacity evaluation dated November 6, 2013, Dr. Ha’Eri
diagnosed localized primary osteoarthritis of the bilateral knees and noted that appellant reached
maximum medical improvement and could return to work with restrictions related to the
degenerative conditions of the knees.
On December 2, 2013 OWCP requested that Dr. Kim review the second opinion report of
Dr. Ha’Eri and indicate whether he agreed with Dr. Ha’Eri’s conclusions.
Appellant submitted a November 12, 2013 report from Dr. Kim who diagnosed
osteoarthritis of the bilateral knees. Dr. Kim noted that appellant had pain, a limp, restricted
ability to walk and perform activities of daily living and required a total knee replacement. He
opined that the cause of the knee osteoarthritis bilaterally was due to preexisting genetic
predisposition, but her work aggravated her condition resulting in an early need for a total knee
replacement. In a November 12, 2013 supplemental report, Dr. Kim provided an overview of
appellant’s treatment from 2007 to 2013. He noted that standing bilateral knee x-rays from
October 25, 2013 revealed severe osteoarthritis. Dr. Kim opined that the cause of appellant’s
osteoarthritis bilaterally was due to preexisting genetic predisposition, but her work aggravated
her condition resulting in a need for a knee replacement. He reviewed her job duties as a mail
handler and indicated that she could not tolerate these duties. In a certificate of work disability,
Dr. Kim diagnosed bilateral knee osteoarthritis and noted that appellant was totally disabled until
December 11, 2013. In a report dated December 3, 2013, as requested he reviewed Dr. Ha’Eri’s
November 6, 2013 report and opined that the underlying osteoarthritis preexisted her injury, but
specifically opined that the injury resulted in significant aggravation of her preexisting condition
with significant symptoms and disability. On December 3, 2013 Dr. Kim diagnosed bilateral
knee osteoarthritis and noted that appellant was disabled until January 15, 2014.
On February 10, 2014 OWCP proposed to terminate all benefits finding that Dr. Ha’Eri’s
November 6, 2013 report established no continuing residuals of appellant’s work-related
conditions.
Appellant submitted reports from Dr. Kim dated October 15, November 12, and
December 3, 2013, all previously of record. She submitted a September 17, 2013 report from
him, noting that conservative treatment failed and she required a knee replacement due to
advanced osteoarthritis. Appellant submitted progress reports dated February 18 and March 4,
2014 from Dr. Kim who diagnosed bilateral knee osteoarthritis and noted that appellant could
return to modified duty for six weeks. Dr. Kim noted that appellant required a total knee
replacement. In a certificate of work disability dated February 18, 2014, he diagnosed bilateral
knee osteoarthritis and noted that appellant could return to work limited duty on February 19,

3

2014 with 50 percent of the work being sedentary duties. In a March 4, 2014 report, Dr. Kim
opined that, although the osteoarthritis would have occurred absent appellant’s aggravating
factors, he believed that both the obesity as well as repetitive weight bearing and stress on her
knees as a postal employee aggravated her condition of osteoarthritis.
In a decision dated March 25, 2014, OWCP terminated appellant’s compensation benefits
effective March 20, 2014 finding that the medical evidence established that she had no
continuing residuals of her accepted conditions.
On April 8, 2014 appellant requested a review of the written record. She submitted
reports from Dr. Leung dated July 7 and 22, 2011 and reports from Dr. Kim dated April 2, 2013
to February 18, 2014, all previously of record. She submitted a new certificate of disability for
work from Dr. Kim dated January 7, 2014 who diagnosed bilateral degenerative joint disease of
the knees and noted that appellant could return to work on January 13, 2014 with restrictions and
50 percent sedentary work for six weeks. Appellant submitted a primary treating physician’s
progress report from Dr. Kim dated April 8, 2014 which noted her complaints of bilateral knee
pain. Dr. Kim diagnosed bilateral knee osteoarthritis and noted that appellant could return to
modified duty on April 15, 2014 subject to restrictions. Appellant also submitted physical
therapy reports.
In a decision dated September 3, 2014, OWCP’s Branch of Hearings and Review
affirmed the decision dated March 25, 2014.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation benefits.3 After it has determined that an employee has disability causally
related to his or her federal employment, OWCP may not terminate compensation without
establishing that the disability has ceased or that it is no longer related to the employment.4 The
right to medical benefits for an accepted condition is not limited to the period of entitlement for
disability. To terminate authorization for medical treatment, OWCP must establish that a
claimant no longer has residuals of an employment-related condition, which requires further
medical treatment.5
Under FECA, when employment factors cause an aggravation of an underlying condition,
the employee is entitled to compensation for the periods of disability related to the aggravation.
When the aggravation is temporary and leaves no permanent residuals, compensation is not
payable for periods after the aggravation has ceased, even if the employee is medically
disqualified to continue employment because of the effect work factors may have on the
underlying condition.6
3

Gewin C. Hawkins, 52 ECAB 242 (2001); Alice J. Tysinger, 51 ECAB 638 (2000).

4

Mary A. Lowe, 52 ECAB 223 (2001).

5

Id.; Leonard M. Burger, 51 ECAB 369 (2000).

6

Raymond W. Behrens, 50 ECAB 221 (1999).

4

ANALYSIS
OWCP accepted appellant’s claim for temporary aggravation of localized primary
osteoarthritis of the bilateral lower legs. Appellant stopped work on June 25, 2013 and claimed
wage loss beginning September 7, 2013. OWCP terminated her compensation effective
March 20, 2014 based on Dr. Ha’Eri’s opinion. The Board finds, however, that there is an
unresolved conflict in medical opinion between Dr. Ha’Eri, OWCP referral physician, and
Dr. Kim, appellant’s treating physician.
In his report, Dr. Ha’Eri opined that the temporary aggravation of localized primary
osteoarthritis of the bilateral lower legs ceased on June 26, 2013 and appellant did not have
residuals of the February 13, 2005 injury and no longer required any medical treatment for her
knees on an industrial basis. He disagreed with Dr. Kim that appellant required a bilateral total
knee replacement due to her work injury and advised that the total bilateral arthroplasty was
medically reasonable, but it was due to age-related degenerative joint disease of the knees, not
the industrial injury. Dr. Ha’Eri opined that appellant had reached maximum medical
improvement and could return to work full time with restrictions related to the degenerative
condition of the knees.
By contrast, reports from Dr. Kim dated November 12, 2013 to March 4, 2014 continued
to support total disability due to appellant’s accepted condition of temporary aggravation
osteoarthritis of the bilateral lower legs. He opined that the cause of appellant’s osteoarthritis
bilaterally was preexisting genetic predisposition, but that her work aggravated her condition
resulting in the need for a knee replacement. Dr. Kim reviewed appellant’s job duties as a mail
handler and indicated that she could not tolerate these duties. He reviewed Dr. Ha’Eri’s
November 6, 2013 report and opined that the underlying osteoarthritis preexisted her injury, but
the injury resulted in significant aggravation of her preexisting condition with significant
symptoms and continuing disability. Dr. Kim believed that appellant’s diagnosed obesity, as
well as repetitive weight bearing and stress on her knees as a postal employee, aggravated her
osteoarthritis.
Section 8123 of FECA7 provides that, if there is a disagreement between the physician
making the examination for the United States and the employee’s physician, OWCP shall
appoint a third physician who shall make an examination.8 The Board finds that, because OWCP
relied on Dr. Ha’Eri’s opinion to terminate appellant’s compensation without having resolved the
existing conflict,9 OWCP has failed to meet its burden of proof in terminating compensation
benefits.

7

5 U.S.C. §§ 8101-8193.

8

Id. at § 8123(a); Shirley L. Steib, 46 ECAB 39 (1994).

9

See Craig M. Crenshaw, Jr., 40 ECAB 919, 923 (1989) (finding that OWCP failed to meet its burden of proof
because a conflict in the medical evidence was unresolved).

5

CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate benefits,
effective March 20, 2014.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 3, 2014 is reversed.
Issued: April 7, 2015
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.W., Appellant
and
DEPARTMENT OF THE ARMY, HEALTH
SERVICES COMMAND, Fort Benning, GA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 16-0208
Issued: April 21, 2016

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 November 16, 2015 appellant filed a timely appeal of an August 17, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed since OWCP’s last merit decision of May 14, 2012 to the filing of the current appeal,
pursuant to the Federal Employee’s Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this claim.2
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to establish clear evidence of error.

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted a number of medical reports to the record following OWCP’s August 17, 2015 decision.
The Board’s jurisdiction, however, is limited to review of evidence that was before OWCP at the time of the final
decision on appeal. Therefore, this additional evidence cannot be considered by the Board. See 20 C.F.R.
§ 501.2(c)(1).

On appeal, appellant contends that she had a recurrence of a prior injury as she has the
same problem with her shoulder that had previously been accepted by OWCP. She alleged that
she was unable to timely file her reconsideration request because she has been very ill.
FACTUAL HISTORY
On November 19, 2003 appellant, then a 37-year-old custodial worker, filed a traumatic
injury claim (Form CA-1) alleging that on November 13, 2003, she injured her left arm and
shoulder while mopping the floor with a heavy mop. On January 6, 2004 OWCP accepted her
claim for left trapezoid spasm. Appellant stopped work on November 19, 2003 and returned to
work on August 16, 2004. The record reflects that she filed several other claims for injury,
before and after this alleged injury.
On July 1, 2011 the employing establishment removed appellant from her employment
due to her medical inability to perform her assigned duties.
On February 16, 2012 appellant filed a notice of recurrence of disability (Form CA-2a),
commencing January 6, 2011, due to the November 13, 2003 employment injury. She alleged
that she stopped work on May 21, 2011. Appellant noted that her shoulder had “been hurting
[her] off and on for some time now....” In a statement received by OWCP on March 21, 2012,
she related that on January 6, 2011 she was working as a clerk and, as she was lifting and
carrying packets of papers and boxes, her left shoulder began to hurt. Appellant noted that she
did not return to work after May 21, 2011 because her treating physician took her off work for
medical reasons.
By decision dated May 14, 2012, OWCP denied appellant’s recurrence claim, noting that
she was describing a new injury.
Appellant continued to submit medical evidence. In a December 10, 2014 progress note,
Dr. Champ L. Baker, a Board-certified orthopedic surgeon, discussed his first appointment with
appellant and his diagnosis of shoulder joint pain and bursitis of the left shoulder region. He
noted that she provided a history of a trapezial strain in the early 2000’s. Appellant told
Dr. Baker that, after she left her custodial position, she had moved a lot of heavy boxes in a
different occupation, but that she had not worked in three years. On December 15, 2014
Dr. Baker noted that he gave appellant an injection in her shoulder region. Thereafter on
December 29, 2014 he reviewed her magnetic resonance imaging (MRI) scan, diagnosed
disorder of the bursa, shoulder region, and recommended surgery.
A December 29, 2014 MRI scan report was interpreted by Dr. Rourke Stay, a Boardcertified radiologist, as showing no high grade or full thickness rotator cuff tearing, low-grade
partial tearing of the distal supraspinatus and infraspinatus tendons, small fluid with the
subdeltoid bursa which may reflect mild bursitis, and suspected mild tearing of portions of the
labrum, possibly on a degenerative basis.
On August 13, 2015 appellant requested reconsideration. At that time she submitted a
letter dated May 14, 2012 wherein she indicated that her left shoulder had been hurting her for
quite some time. Appellant noted that she had been very sick from 2011 to 2014, and that she
had been under medication and therapy that made her loopy and sleepy. She noted that she

2

would like to see a physician with regard to her left shoulder because it hurt almost every day
and that she would like to receive therapy so she could learn to use it in the correct manner.
By decision dated August 17, 2015, OWCP denied appellant’s reconsideration request,
finding that it was untimely filed and failed to establish clear evidence of error. It noted that
while she contended that her request for reconsideration was untimely filed because she was ill,
she had not submitted any medical evidence to substantiate that allegation.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
claimant’s application for review within one year of the date of that decision.3 The Board has
found that the imposition of the one-year limitation does not constitute an abuse of the
discretionary authority granted OWCP under section 8128(a) of FECA.4 The one-year period
begins on the date of the original decision. However, a right to reconsideration within one year
accompanies any subsequent merit decision on the issues. This includes any hearing or review
of the written record decision, any denial of modification following reconsideration, any merit
decision by the Board, and any merit decision following action by the Board.5
OWCP, however, may not deny an application for review solely on the grounds that the
application was not timely filed. When an application for review is not timely filed, it must
nevertheless undertake a limited review to determine whether the application establishes clear
evidence of error.6 OWCP regulations and procedures provide that OWCP will reopen a
claimant’s case for merit review, notwithstanding the one-year filing limitation set forth in 20
C.F.R. § 10.607(a), if the claimant’s application for review shows clear evidence of error on the
part of OWCP.7
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.8 The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error.9 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish

3

20 C.F.R. § 10.607(a).

4

5 U.S.C. § 2128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

5

D.G., 59 ECAB 455 (2008); see also C.J., Docket No. 12-1570 (issued January 16, 2013).

6

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

7

Id. at § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3d
(January 2004). OWCP procedures further provide that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP made an error (for
example, proof that a schedule award was miscalculated). Evidence such as a detailed, well-rationalized medical
report which, if submitted before the denial was issued, would have created a conflict in medical opinion requiring
further development, is not clear evidence of error. Id. at Chapter 2.1602.3c.
8

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

9

See Leona N. Travis, 43 ECAB 227, 240 (1991).

3

clear evidence of error.10 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.11 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.12 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of OWCP’s decision.13
ANALYSIS
The Board finds that OWCP properly determined that appellant’s August 13, 2015
request for reconsideration was untimely filed, as it was received more than one year after the
last merit decision, dated May 14, 2012. Appellant argued that she was unable to file a timely
request for reconsideration. Section 10.607(a), however, sets forth the time limitation period of
one year. Late filing may not be excused by extenuating circumstances, except if appellant
establishes through probative medical evidence that she was unable to communicate in any way,
and her testimony is necessary to obtain modification.14 The evidence of record does not
establish any extenuating circumstances. Appellant has not submitted medical evidence to
substantiate that she was unable to communicate in any way to request reconsideration.
Because appellant’s reconsideration request was untimely filed, she must demonstrate
clear evidence of error by OWCP in its denial of her claimed recurrence of disability.15
The Board finds that appellant has not established clear evidence of error. The
underlying claim for compensation was denied as appellant had not established her alleged
recurrence of disability, as of January 6, 2011. She subsequently did not submit substantial
evidence to shift the weight of the evidence of record and establish that the denial was in error.16
Appellant submitted a December 10, 2014 progress note in which Dr. Baker discussed his
first appointment with her and at which point he diagnosed her with shoulder joint pain and
bursitis of the left shoulder region. Dr. Baker noted that she gave him a history of a trapezial
strain in the early 2000’s. Appellant told him that after her custodial position she had gone back
10

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

11

See supra note 9.

12

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

13

Leon D. Faidley, Jr., supra note 4.

14

20 C.F.R. § 10.607(c); Donald Booker-Jones, 47 ECAB 685 (1996). OWCP regulations do provide that the
time to file a request for reconsideration shall not include any periods subsequent to the decision for which the
claimant can establish through probative medical evidence that she was unable to communicate in any way and her
testimony is necessary to obtain modification. Appellant has not submitted such evidence. See also I.S., Docket No.
08-1020 (issued September 16, 2008).
15

20 C.F.R. § 10.607(b).

16

I.S., supra note 14.

4

to moving a lot of heavy boxes in a different occupation. She informed Dr. Baker that she had
not worked in three years. On December 15, 2014 Dr. Baker noted that he gave appellant an
injection for her disorder of bursa of shoulder region. On December 29, 2014 he reviewed her
MRI scan and recommended surgery. These reports all lacked a medical opinion regarding
causal relationship.
The Board has held that even a report such as a detailed, well-rationalized medical report,
which if submitted before the denial was issued would have created a conflict in medical
evidence requiring further development, is not sufficient to establish clear evidence of error.17
OWCP procedures further provide that the term clear evidence of error is intended to represent a
difficult standard.18 Appellant has not submitted evidence to establish clear evidence of error in
the denial of her recurrence claim.
CONCLUSION
OWCP properly determined that appellant’s request for reconsideration was untimely
filed and failed to establish clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the August 17, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 21, 2016
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
17

A.R., Docket No. 15-1598 (issued December 7, 2015).

18

See G.V., Docket No. 14-1270 (issued February 1, 2016).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., claiming as personal representative of the
estate of C.S., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Washington, DC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

Appearances:
Stephen V. Barszcz, Esq., for the appellant
Office of the Solicitor, for the Director

Docket No. 10-1677
Issued: June 23, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On June 9, 2010 appellant filed a timely appeal from a merit decision of the Office of
Workers’ Compensation Programs dated May 27, 2010 denying compensation after
April 28, 2008. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that the employee had
disability after April 28, 2008 due to his accepted September 1, 1976 work injury.
FACTUAL HISTORY
On November 18, 1976 the employee, then a 45-year-old air traffic control specialist,
filed an occupational disease claim for an emotional condition due to stress in his employment.
1

5 U.S.C. §§ 8101-8193.

He stopped work on September 1, 1976 and did not return. The Office accepted the claim for
anxiety and paid appropriate compensation. The employee was eventually placed on the periodic
rolls. He passed away on February 6, 2009.2
By decision dated April 28, 2008, the Office terminated the employee’s compensation
benefits effective that date based on the August 7, 2007 medical opinion of Dr. Walter Afield, a
Board-certified neuropsychiatrist, who served as an Office referral physician. Dr. Afield
diagnosed dementia due to organic impairment and vascular impairment from cardiac surgery,
history of alcohol abuse and history of treatment for anxiety. He opined:
“[The employee was] disabled now due to a dementia from the heart surgery. I do
not have those records, but it is clear he had trouble with memory, concentration,
focusing and is beginning to wander.… The work-related condition has resolved.
Surprisingly, it resolved a long time ago.... Any anxiety he may have has to do
with the fact that he cannot remember like he used to. [Appellant] is just
beginning to show dementia. He is concerned about becoming deaf and dying. It
has nothing to do with the work-related situation.”
On May 12, 2008 the employee requested an oral hearing, which was held telephonically
on September 9, 2008. In an April 22, 2008 report, Dr. Hector Corzo, a Board-certified
neuropsychiatrist, diagnosed major depression, post-traumatic stress disorder and anxiety
disorder. He noted:
“[The employee] still exhibits a great deal of depression, anxiety and [is]
constantly obsessed with ruminations about his work as an air traffic controller….
I do not believe that the symptoms that [the employee] is experiencing are age or
dementia related. In fact during a visit on March 13, 2008 a Mini Mental State
Examination … used to determine the cognitive state of patients … [the employee
scored] almost perfect 29/30 [which] was well within the normal range.”
By decision dated December 1, 2008, an Office hearing representative affirmed the
April 28, 2008 termination of benefits finding that the evidence at the time of the termination
was sufficient to meet the Office’s burden of proof. However, he found that Dr. Corzo’s report
was sufficient to require further development. The hearing representative found that Dr. Corzo’s
report, together with the reports of Dr. Hernan S. Schmidt,3 created a conflict with the report of
Dr. Afield. The case was remanded to an impartial medical specialist for an examination and
opinion regarding whether the employee sustained work-related disability after April 28, 2008.
The employee passed away on February 6, 2009. On September 30, 2009 the employee’s
attorney requested reconsideration of the termination aspect of the hearing representative’s
December 1, 2008 decision. He disagreed that the Office met its burden of proof to terminate
benefits and requested reinstatement of wage-loss benefits from April 28, 2008 until the date of
the employee’s death. Counsel submitted a September 30, 2009 report from Dr. Corzo in
support of his argument that there was no probative evidence which proved that the accepted
2

Appellant, the employee’s widow, filed letters of administration on behalf of the estate. See Mrs. Hobart M.
Byllesby, 4 ECAB 667 (1952).
3

Dr. Schmidt, a psychiatrist and treating physician, last treated the employee in 2005.

2

conditions of anxiety and depression had resolved or that the employee’s only disabling
condition was dementia.4
On November 9, 2009 the Office referred the employee’s medical record, a list of
questions and a statement of accepted facts to Dr. George L. Warren, a geriatric
neuropsychiatrist. The list of questions specifically inquired as to whether the accepted workrelated condition resolved and whether there were any nonwork-related issues causing disability.
In a November 23, 2009 report, Dr. Warren indicated his review of the medical record.
He opined, “Dr. Afield’s opinion was based on a subjective mental status examination of the
employee and was not substantiated by any objective data or by any other medical professional
persons who observed or treated [the employee]. In contrast, Dr. Corzo’s diagnostic conclusions
are based on a Mini-Mental State Exam[ination] that he administered to [the employee].
Dr. Saifi, the patient’s primary care physician, also administered a Mini-Mental State
Exam[ination] to the employee, the findings of which were normal. I feel the conflict should be
resolved in favor of objective data and find in my medical professional opinion that the
employee was not demented.”
In January 27 and May 14, 2010 correspondence, appellant’s attorney requested that the
employee’s compensation benefits be reinstated from April 28, 2008 until his death on
February 6, 2009.
By decision dated May 27, 2010, the Office denied the employee’s entitlement to
compensation benefits on and after April 28, 2008 on the grounds that his disability was not
related to the September 1, 1976 work injury and the work injury had ceased. Special weight
was accorded to Dr. Warren, as the impartial medical specialist.
LEGAL PRECEDENT
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.5 It may not terminate compensation without establishing
that the disability ceased or that it was no longer related to the employment.6 After termination
or modification of compensation benefits, clearly warranted on the basis of the evidence, the
burden for reinstating compensation benefits shifts to appellant. In order to prevail, appellant
must establish by the weight of the reliable, probative and substantial evidence that he or she had
an employment-related disability which continued after termination of compensation benefits.7
Section 8123(a) of the Act provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.8 When there exists opposing
4

While the Office acknowledged the employee’s reconsideration request, it indicated no action would be taken
until the Office complied with the hearing representative’s remand instructions.
5

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

6

I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB 734 (2003).

7

I.J., supra note 6; Wentworth M. Murray, 7 ECAB 570, 572 (1955).

8

5 U.S.C. § 8123(a).

3

medical reports of virtually equal weight and rationale and the case is referred to an impartial
medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if
sufficiently well rationalized and based upon a proper factual background, must be given special
weight.9
In a situation where the Office secures an opinion from an impartial medical examiner for
the purpose of resolving a conflict in the medical evidence and the opinion from such examiner
requires clarification or elaboration, the Office has the responsibility to secure a supplemental
report from the examiner for the purpose of correcting the defect in the original opinion.10
ANALYSIS
The Office accepted the employee’s claim for anxiety. The employee received medical
and wage-loss compensation benefits until April 28, 2008, when the Office terminated his
compensation on the grounds that his accepted work-related anxiety condition resolved without
residuals. Thereafter, an Office hearing representative properly found that a conflict in medical
opinion existed with regard to the nature and extent of the employee’s disability due to the
employment injury after April 28, 2008 and remanded the case for an opinion by an impartial
medical specialist to resolve the conflict.
Dr. Warren, a geriatric neuropsychiatrist, was selected as the impartial medical specialist.
In a November 23, 2009 report, he reviewed the medial record and opined, based on the
objective data administered by the medical professionals who observed or treated the employee,
that the employee was not demented. The Office accorded Dr. Warren the weight of the medical
evidence in denying appellant’s claim for compensation benefits on and after April 28, 2008.
The Board finds that Dr. Warren’s opinion is insufficient to resolve the question of
whether the employee had disability after April 28, 2008 due to his accepted September 1, 1976
work injury. Dr. Warren provided a reasoned opinion that the employee did not suffer from
dementia. However, he did not address the remainder of the questions that the Office posed to
him with regard to whether the accepted work-related anxiety condition had resolved and
whether there were any nonwork-related issues that were causing disability. Consequently, the
medical conflict regarding the nature and extent of appellant’s disability after April 28, 2008
remains unresolved.
As Dr. Warren’s opinion requires clarification, the Office must secure a supplemental
report from the specialist to correct the defect in his original report.11 Accordingly, the Board
will remand the case for the Office to seek clarification from Dr. Warren with regard to the

9

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

10

See Phillip H. Conte, 56 ECAB 213 (2004).

11

Id.

4

nature, extent and cause of the employee’s disability after April 28, 2008. After this and such
other development as the Office deems necessary, it should issue an appropriate decision.12
CONCLUSION
The Board finds that this case is not in posture for decision regarding whether the
employee had disability after April 28, 2008 due to his accepted work-related anxiety condition
due to an unresolved conflict in medical opinion. A clarification report is required from the
impartial medical specialist.
ORDER
IT IS HEREBY ORDERED THAT the May 27, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this opinion.
Issued: June 23, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

12

The Board notes that appellant filed a September 30, 2009 reconsideration request with regard to the
termination aspect of the December 1, 2008 decision and submitted additional argument and evidence in support of
assertions that the Office did not meet its burden of proof to terminate compensation on April 28, 2008. The Office
has not issued a decision with regard to this timely reconsideration request. Upon return of the case record, it should
issue an appropriate decision regarding the September 30, 2009 reconsideration request.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-4
Issued: April 14, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 27, 2007 appellant, through counsel, filed a timely appeal of the April 20,
2007 merit decision of an Office of Workers’ Compensation Programs’ hearing representative,
which denied an increase in her schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction of the merits of this appeal.
ISSUE
The issue is whether appellant has more than impairment of the left upper extremity.
FACTUAL HISTORY
This case has previously been before the Board. In a June 9, 2005 decision, the Board
found a conflict in the medical opinion evidence between Dr. Richard H. Bennett, an Office
referral physician, and Dr. David Weiss, an attending osteopath, as to whether appellant had
more than a 10 percent impairment of her left upper extremity.1 The Board remanded the case
1

Docket No. 04-1490 (issued June 9, 2005).

for the Office to refer her for an impartial medical examination. The facts and the circumstances
of the case as set forth in the Board’s prior decision are incorporated herein by reference.2
On February 28, 2006 the Office referred appellant to Dr. Menachem M. Meller, a Boardcertified orthopedic surgeon, selected as the impartial medical specialist. In a March 27, 2006
medical report, Dr. Meller reviewed a history of her October 25, 1985 employment injury,
medical treatment and social, family and vocational background. He provided a detailed review
of her medical records.
On physical examination, Dr. Meller removed a Futura wrist splint she was wearing on
the left wrist and a Neoprene splint on the right wrist. He reported essentially normal findings
regarding the upper extremities. Dr. Meller stated that range of motion testing of the cervical
spine was slow and deliberate with cogwheeling maneuvering which indicated symptom
embellishment that could not be explained based on appellant’s complaints or findings. She had
normal flexion to within two fingerbreadths, 40 degrees of extension and 60 degrees of left and
right lateral rotation. Dr. Meller stated that the midline of the cervical spine, the trapeze,
paravertebral muscles, splenius capitis, sternocleidomastoid, anterior and posterior triangle of the
neck and periscapular muscles were palpated.
Range of motion measurements for both shoulders included 90 degrees of flexion on the
right and 70 degrees of flexion on the left with a soft endpoint, cogwheeling maneuvering which
indicated positional restriction, 80 degrees of abduction on the right and 70 degrees of abduction
on the left. Dr. Meller stated that appellant was able to reach the back of her head and internally
rotate to T12. He reported a forearm circumference of 22.5 centimeters on the right and 22.2
centimeters on the left consistent with right hand dominance. Dr. Meller found no sensory loss
of both forearms. He noted appellant’s complaint of burning numbness in both wrists to the
fingertips which was a classic glove distribution which was nonphysiologic for any neurologic
dysfunction. An Alan’s test demonstrated distal symptoms which indicated a vascular basis for
her symptoms resulting from age and presumably a smoking addiction. Tinel’s testing at the
cubital, carpal and radial tunnels and Watson’s and Schuck’s testing were unremarkable.
A Finklestein’s test was negative. Dynamometer testing using a GMR dynamometer at positions
1, 3, 5 on the right were 2, 5, 10, 5 and 6 and on the left were 2, 0, 1, 1 and 1.
Repeat sensory testing resulted in statements of the left forearm, i.e., a cylindrical manner
from the elbow to the wrist, but not above, beyond or different which could not be further
qualified. Regarding the elbow appellant had a carrying angle of approximately 10 degrees, no
warmth, swelling or synovitis. She was able to fully extend the elbows without hyperextension
or flex to 145 degrees which was normal. Range of measurements for the forearm of 80 degrees
of supination and 90 degrees of pronation were within normal limits. Range of motion
measurements for the wrist included 70 degrees of extension, 75 degrees of flexion, 35 degrees
of ulnar deviation and 25 degrees of radial deviation.

2

On October 24, 1985 appellant, then a 38-year-old window clerk, sustained injury when she was struck on the
head with a mail door and injured her neck. The Office accepted the claim for cervical sprain and left brachial
plexopathy On February 18, 2000 she filed a claim for a schedule award. By decision dated July 31, 2000, the
Office granted appellant a schedule award for a 10 percent impairment of the left upper extremity.

2

Dr. Meller asked appellant to define where her symptoms were located and she was
unable to demonstrate the anatomic location. He was unable to substantiate that, in fact any
impairment was present as there was no response to his question. Dr. Meller opined that if
appellant had no demonstrable impairment, it did not exceed the 10 percent impairment
previously awarded. In determining her impairment based on the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (5th ed. 2001),
Dr. Meller stated that appellant undoubtedly had cervical spine degeneration that would limit her
rotation. He applied the diagnosis-based estimates method to his cervical spine findings to
determine that she fell into Category 1 which constituted a zero percent impairment of the whole
person (A.M.A., Guides 292). Regarding the upper extremity, Dr. Meller stated that appellant
had less than full maximal shoulder motion but, there was evidence of lack of valid effort. Based
on page 19 of the A.M.A., Guides, he could modify an impairment rating when there was
insufficient evidence to verify an impairment of a certain magnitude. In addition, he stated that
there was no evidence to suggest that appellant had an accepted shoulder condition. Therefore,
she demonstrated less than full maximal shoulder motion had no specific relevance in this
context. Dr. Meller determined that she had normal elbow motion which constituted a zero
percent impairment to this region (A.M.A., Guides 472, Figure 16-34). He determined that 80
degrees of supination and 80 degrees of pronation of the forearm was normal and constituted a
zero percent impairment (A.M.A., Guides 473, Figure 16-36 and A.M.A., Guides 474, Figure
16-37). Dr. Meller further determined that appellant had normal range of motion of the wrist
which constituted a zero percent impairment. (A.M.A., Guides 467, 469, Figures 16-28, 16-31).
He stated that appellant could make a full fist bringing the fingertips down to the palm with good
grip strength pinch and apposition resulting in a zero percent impairment (A.M.A., Guides 464,
Figure 16-24). Appellant had normal thumb movements resulting in a zero percent impairment
(A.M.A., Guides 449, Figure 16-8). Dr. Meller stated that appellant did not have carpal tunnel
syndrome based on a normal September 21, 1999 electromyogram (EMG) as no abnormalities
were demonstrated. He noted that the somatosensory evoked potential (SSEP) of the ulnar and
median nerves performed by Dr. Apollo M. Arenas, a Board-certified neurologist, was also
normal. Dr. Meller indicated that Dr. Arenas’ September 14, 2000 and October 2, 2001 EMGs
revealed mild left median nerve entrapment and mild ulnar nerve entrapment at the wrist. A
November 21, 2001 follow-up evaluation still revealed mild left median nerve entrapment
neuropathy of the wrist and no presence of Guyon’s canal neuropathy. Dr. Meller explained that
EMGs in a 50-year-old individual could have conduction delays as a result of numerous
conditions. He stated that decades of a smoking addiction undoubtedly damaged the nerves, i.e.,
caused basal spasm in the nerve root by causing spasm on the basilar nerve, as well as, direct
damage to the nerves by the toxins contained in the cigarette smoke.
Dr. Meller opined that there were no objective findings of carpal tunnel syndrome and
therefore no additional work-related impairment was warranted. He stated that appellant may
have some subtle findings regarding her nerve dysfunction but, clearly there were no obvious
findings such as a positive Tinel’s sign, atrophy or reproducible weakness on a credible basis.
Dr. Meller stated that appellant’s light-duty positions beginning in 1985, i.e., typing, caused her
carpal tunnel syndrome. He noted that there was a body of knowledge which was strongly
against the opinion that carpal tunnel syndrome was work related, particularly in the absence of
compelling evidence to the contrary. Dr. Meller stated that there was an obvious contradiction
regarding the prior 10 percent schedule award as one could not have a 10 percent impairment of
the left upper extremity on September 4, 2000 as a result of an October 24, 1985 employment
3

injury and have a 53 percent impairment on December 28, 2001 at the same American
Independent Injury site.
On August 2, 2006 Dr. Morley Slutsky, an Office medical adviser, reviewed the medical
records. He agreed with Dr. Meller’s opinion that appellant had no more than a 10 percent
impairment of the left upper extremity. Dr. Slutsky stated that Dr. Meller clearly addressed all
possible impairment and found no ratable impairments. Dr. Slutsky also stated that Dr. Meller
reported no objective findings of carpal tunnel syndrome based on EMG testing.
By decision dated September 22, 2006, the Office denied appellant’s claim for an
additional schedule award. It found that Dr. Meller’s March 27, 2006 impartial medical opinion
that appellant did not have more than 10 percent impairment of the left upper extremity, was
entitled to special weight.
In a September 26, 2006 letter, appellant, through counsel, requested an oral hearing
before an Office hearing representative.
In an April 20, 2007 decision, an Office hearing representative affirmed the
September 22, 2006 decision.
The hearing representative accorded special weight to
Dr. Meller’s March 27, 2006 impartial medical report.
LEGAL PRECEDENT
A claim for an increased schedule award may be based on new exposure.3 Absent any
new exposure to employment factors, a claim for an increased schedule award may also be based
on medical evidence indicating that the progression of an employment-related condition has
resulted in a greater permanent impairment than previously calculated.4
The schedule award provision of the Federal Employees’ Compensation Act5 and its
implementing regulations6 set forth the number of weeks of compensation to be paid for
permanent loss, or loss of use of the members of the body listed in the schedule. Where the loss
of use is less than 100 percent, the amount of compensation is paid in proportion to the
percentage of loss of use.7 However, neither the Act nor the regulations specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice for all claimants, the Office adopted the A.M.A., Guides as a standard for
determining the percentage of impairment and the Board has concurred in such adoption.8

3

Linda T. Brown, 51 ECAB 115 (1999).

4

Id.

5

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

6

20 C.F.R. § 10.404.

7

5 U.S.C. § 8107(c)(19).

8

See supra note 6.

4

In situations where there are opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual background, must be given special weight.9
ANALYSIS
In a March 27, 2006 report, Dr. Meller, the impartial medical specialist, provided range
of motion findings regarding appellant’s cervical spine, shoulder and left elbow, forearm, wrist
and hand. He stated that appellant had cervical spine degeneration that could limit her range of
motion. Utilizing diagnosis-based estimates, Dr. Meller determined that appellant fell into
Category 1 which constituted a zero percent impairment of the cervical spine (A.M.A., Guides
292). He stated that there was no evidence that appellant sustained a shoulder condition.
Therefore, appellant demonstrated less than full maximal shoulder motion was not relevant.
Dr. Meller determined that she had normal elbow motion which constituted a zero percent
impairment to this region (A.M.A., Guides 472, Figure 16-34). He further determined that 80
degrees of supination and 80 degrees of pronation of the forearm was normal and constituted a
zero percent impairment (A.M.A., Guides 473, Figure 16-36 and A.M.A., Guides 474, Figure
16-37). Regarding the wrist, Dr. Meller found that 70 degrees of extension, 75 degrees of
flexion, 35 degrees of ulnar deviation and 25 degrees of radial deviation constituted a 0 percent
impairment (A.M.A., Guides 467, 469, Figures 16-28, 16-31). He found that appellant’s hand
had normal range of motion which constituted a zero percent (A.M.A., Guides 464, Figure
16-24). Dr. Meller stated that her thumb was also normal which represented a zero percent
impairment (A.M.A., Guides 449, Figure 16-8).
Dr. Meller stated that EMG testing revealed no evidence of carpal tunnel syndrome and
mild left median nerve entrapment and mild ulnar nerve entrapment at the wrist. He noted that
SSEP testing of the ulnar and median nerves were within normal limits. Dr. Meller opined that
there was no objective evidence of carpal tunnel syndrome and therefore appellant had no
additional work-related impairment. He stated that she had some subtle findings regarding her
nerve dysfunction but, clearly there were no obvious findings such as a positive Tinel’s sign,
atrophy or reproducible weakness on a credible basis. Dr. Meller stated that appellant’s lightduty positions beginning in 1985 which involved typing caused her carpal tunnel syndrome. He
noted a widely held opinion that carpal tunnel syndrome was not work related in the absence of
compelling evidence to the contrary. Dr. Meller concluded that there was an obvious
contradiction regarding the prior schedule award and the objective findings on his evaluation,
noting that he was unable to substantiate any impairment.
Dr. Slutsky, an Office medical adviser, agreed with Dr. Meller’s findings. He opined that
appellant had no more than a 10 percent impairment of the left upper extremity. Dr. Slutsky
stated that Dr. Meller clearly addressed all possible impairments and found no ratable
impairments and he found no objective findings of carpal tunnel syndrome based on EMG
testing.

9

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

5

The Board finds that Dr. Meller properly applied the A.M.A., Guides and provided a
detailed and well-rationalized report for finding that appellant has no additional work-related
permanent impairment of the left upper extremity. The Board notes that it appears Dr. Meller
inadvertently stated that appellant’s zero percent impairment of the cervical spine was based on
page 292 of the A.M.A., Guides rather than Table 15.5 on page 392 of the A.M.A., Guides as his
findings correlate to a zero percent impairment under Category 1 of Table 15.5. The Board finds
that Dr. Meller’s opinion, is entitled to special weight as the impartial medical specialist. The
medical evidence does not establish more than a 10 percent impairment of the left upper
extremity.
On appeal, appellant’s attorney contends that Dr. Meller’s grip strength findings cannot
be understood and that Dr. Meller ignored EMG findings of carpal tunnel syndrome. Office
procedures clearly provide that grip and/or pinch strength should not be used to calculate upper
extremity impairment caused by a compression neuropathy such as carpal tunnel syndrome.10
Additionally, the carpal tunnel syndrome was not found to be employment related.
Counsel further contends that Dr. Meller did not conduct a thorough medical examination
which included motor strength testing of the tricep or bicep muscles. The Board, however, finds
that a review of Dr. Meller’s March 27, 2006 report refutes counsel’s assertion. Dr. Meller
provided an accurate history of appellant’s work-related injury and medical treatment. After a
thorough examination, he opined that appellant did not have more than a 10 percent impairment
of the left upper extremity. Dr. Meller provided a proper analysis of the factual and medical
history, his findings on examination and reached conclusions regarding the extent of appellant’s
left upper extremity impairment in accordance with the A.M.A., Guides.11
CONCLUSION
The Board finds that since the evidence of record does not establish more than the 10
percent left upper extremity impairment previously awarded, the Office properly denied
appellant’s request for an increased schedule award.

10

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

11

Pamela K. Guesford, 53 ECAB 726 (2002).

6

ORDER
IT IS HEREBY ORDERED THAT the April 20, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 14, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.K., Appellant
and
DEPARTMENT OF THE ARMY,
ARMY MATERIAL COMMAND,
Chambersburg, PA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)
)

Docket No. 14-2058
Issued: April 21, 2015

Case Submitted on the Record

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

On September 29, 2014 appellant filed a timely appeal of an August 18, 2014 decision of
the Office of Workers’ Compensation Programs (OWCP). The Board docketed the appeal as
No. 14-2058. On August 18, 2014 OWCP found that appellant was not entitled to more than an
11 percent schedule award for his left upper extremity.
Appellant, a 63-year-old electrical equipment repairman, filed a Form CA-2 claim for
occupational disease on May 2, 2012, alleging that he developed a left-sided carpal tunnel
condition causally related to employment factors. OWCP accepted the claim for left carpal
tunnel syndrome, cubital tunnel syndrome, and tardy ulnar nerve compression at the elbow. On
March 19, 2013 appellant filed a Form CA-7 claim for a schedule award based on a partial loss
of use of his left upper extremity.
On July 6, 2013 Dr. Joseph Holobinko, Board-certified in orthopedic surgery, performed
left carpal tunnel release surgery on appellant. In an October 15, 2013 report, an OWCP medical
adviser found that he had five percent impairment from his accepted left carpal tunnel condition
pursuant to the American Medical Association, Guides to the Evaluation of Permanent
Impairment (sixth edition) (A.M.A., Guides). OWCP referred appellant to Dr. Robert A. Smith,
Board-certified in orthopedic surgery, who found in a September 12, 2013 report that appellant

had a six percent left upper extremity impairment for left carpal tunnel syndrome under the
A.M.A., Guides. In a November 26, 2013 report, OWCP’s medical adviser noted that he had
previously rated five percent left upper extremity impairment for left carpal tunnel syndrome.
He stated, however, that because appellant had previously received an award for 11 percent left
upper extremity impairment, he was not entitled to an additional award for left upper extremity
impairment based on left carpal tunnel syndrome. The medical adviser stated that, if the prior
schedule award was based upon the fifth edition of the A.M.A., Guides, appellant’s award would
likely be reduced in his schedule award in light of the new methodology and criteria set forth in
the sixth edition of the A.M.A., Guides. Therefore, OWCP’s medical adviser found that
appellant was not entitled to an increased award for left upper extremity impairment based on
left carpal tunnel syndrome. He did not mention or review Dr. Smith’s September 12, 2013
second opinion report.
By decision dated December 4, 2013, OWCP denied appellant’s claim. In an August 18,
2014 decision, an OWCP hearing representative affirmed the December 4, 2013 decision. He
stated that appellant was not entitled to an additional schedule award for his left upper extremity
because he had previously been granted one percent impairment of the left upper extremity for
abrasion or friction burns to his left finger, elbow, forearm and wrist, left forearm sprain and left
lateral epicondylitis under case number xxxxxx731; and 10 percent impairment of the left upper
extremity for left shoulder tendinitis, left shoulder impingement, acromioplasty of the left
shoulder and arthroscopic decompression under case number xxxxxx151. The OWCP hearing
representative further stated that, although OWCP’s medical adviser failed to evaluate
Dr. Smith’s September 12, 2013 report, such action was not necessary since this only indicated
that appellant had six percent left upper extremity impairment for left carpal tunnel syndrome,
and he had already been awarded 11 percent impairment of the left upper extremity.
Section 20 C.F.R. § 10.126 requires OWCP to issue a decision containing findings of fact
and a statement of reasons.1 OWCP erred in its December 4, 2013 and August 18, 2014
decisions by failing to analyze Dr. Smith’s second opinion report and provide sufficient reasons
why it did not establish that appellant was entitled to an additional schedule award for left upper
extremity impairment based on left carpal tunnel syndrome. OWCP’s medical adviser erred in
finding that appellant’s previous awards for left upper extremity impairment precluded an
additional award based on his accepted left carpal tunnel syndrome. As OWCP relied on this
erroneous finding and did not make the required findings or provide a statement of reasons in its
August 18, 2014 decision denying an additional schedule award, its decision was issued in error.
Accordingly, the case will be remanded to OWCP to enable it to properly consider the
medical evidence submitted prior to the issuance of the August 18, 2014 decision, thoroughly
evaluate the merits of appellant’s claim, make findings of fact and provide reasons for its
decision, pursuant to the standards set forth in 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.126. After
such further development as OWCP deems necessary, it should issue an appropriate decision to
protect appellant’s appeal rights.

1

20 C.F.R. § 10.126.

2

IT IS HEREBY ORDERED THAT the August 18, 2014 decision of the Office of
Workers’ Compensation Programs is set aside; the case record is remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: April 21, 2015
Washington, DC

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

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Atlanta, GA, Employer
)
___________________________________________ )
J.C., Appellant

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

Docket No. 07-168
Issued: March 20, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 24, 2006 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ merit decision dated July 19, 2006, which denied his occupational
disease claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the case.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he developed a
right shoulder cuff injury while in the performance of duty.
FACTUAL HISTORY
On May 19, 2006 appellant, then a 50-year-old mail handler, filed an occupational
disease claim alleging that he developed a right shoulder rotator cuff injury while performing his
work duties. He became aware of his condition on May 9, 2006. Appellant did not stop work
but returned to a light-duty position.

In support of his claim, appellant submitted a May 10, 2006 x-ray report from Dr. Mae T.
Morgan, a Board-certified radiologist. It revealed arthritic changes to the right shoulder.
By letter dated May 26, 2006, the Office advised appellant of the factual and medical
evidence needed to establish his claim. It requested that he submit a physician’s reasoned
opinion addressing the relationship of his claimed right shoulder condition and specific
employment factors. In a letter of the same date, the Office requested that the employing
establishment provide comments from a knowledgeable supervisor on the accuracy of statements
provided on the Form CA-2 as well as a copy of appellant’s position description and physical
requirements. No additional evidence was received.
In a decision dated July 19, 2006, the Office denied appellant’s claim as the evidence was
not sufficient to establish that the work activities occurred as alleged. The Office further noted
that there was no medical evidence which provided a diagnoses which could be connected to the
claimed events.
LEGAL PRECEDENT
An employee seeking benefits under the Act has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an “employee of the
United States” within the meaning of the Act, that the claim was timely filed within the
applicable time limitation period of the Act, that the injury was sustained in the performance of
duty as alleged and that any disability and/or specific condition for which compensation is
claimed are causally related to the employment injury. These are the essential elements of each
and every compensation claim regardless of whether the claim is predicated upon a traumatic
injury or an occupational disease.1
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.2
1

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

2

Solomon Polen, 51 ECAB 341 (2000).

2

ANALYSIS
The Office denied appellant’s claim on the grounds that he failed to establish that the
events occurred as alleged. It is not disputed that appellant’s duties as a mail handler involved
pushing heavy rolling equipment and processing bundles of mail, which involved the use of his
right shoulder. John R. Harris, Jr., appellant’s supervisor, did not dispute appellant’s work duties
or that appellant was performing his work duties on or about May 9, 2006, rather he noted on the
CA-2 form that appellant returned to work and was restricted to lifting, pulling and pushing no
more than 20 pounds. On May 26, 2006 the Office requested that the employing establishment
provide comments from a knowledgeable supervisor on the accuracy of statements provided on
the CA-2 form; however, no additional evidence was submitted. The Board finds that, the
evidence is undisputed that appellant performed his work duties as a mail handler, which
included performing some repetitive activities using his right shoulder.
The Board finds, however, that appellant failed to submit any medical evidence to
establish that he developed a right shoulder condition causally related to his employment duties.
On May 26, 2006 the Office advised appellant of the type of medical evidence needed to
establish his claim. Appellant did not submit a medical report from an attending physician
addressing how specific employment factors may have caused or aggravated his claimed
condition. The only medical evidence submitted by appellant was an x-ray report of the right
shoulder, which revealed arthritic changes. As a diagnostic report it did not address the
employment factors believed to have caused or contributed to appellant’s condition.3
Additionally, the report did not provide any rationalized opinion regarding the causal
relationship between appellant’s condition and the factors of employment believed to have
caused or contributed to such condition.4 Therefore, this report is insufficient to meet appellant’s
burden of proof. The record contains no other medical evidence. Appellant did not submit
reasoned medical evidence explaining how or why his right shoulder condition is employment
related. He has not met his burden of proof.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.5 Causal relationships must be established by
rationalized medical opinion evidence. Appellant failed to submit such evidence and the Office,
therefore, properly denied appellant’s claim for compensation.

3

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history have little
probative value).
4

See Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
5

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

3

CONCLUSION
The Board, therefore, finds that appellant failed to establish that he developed an
employment-related injury in the performance of duty.6
ORDER
IT IS HEREBY ORDERED THAT the July 19, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 20, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6

See Calvin E. King, 51 ECAB 394 (2000).

4