United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.E., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, Marion, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 21-1058
Issued: March 2, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 6, 2021 appellant, through counsel, filed a timely appeal from a June 2, 2021 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 his burden of proof to establish greater than 29
percent permanent impairment of the left upper extremity, for which he previously received
schedule award compensation.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On September 8, 2003 appellant, then a 41-year-old senior correctional ofﬁcer, filed a
traumatic injury claim (Form CA-1) alleging that on September 6, 2003 he possibly fractured his
left shoulder blade and experienced swelling in his arm when he hit th e corner of a security cabinet
door with his left shoulder while in the performance of duty. He stopped work on the date of
injury. OWCP accepted the claim for complete rotator cuff tear or rupture, other joint derangement
of the left shoulder, sprain of the left shoulder and upper arm, superior glenoid labrum lesion, and
left exostosis, site unspecified. On December 3, 2003 appellant underwent authorized left shoulder
arthroscopic surgery. He returned to full-time, modified-duty work with restrictions, effective
June 8, 2004, until he stopped work on June 24, 2004.4
On August 2, 2004 appellant ﬁled a claim for compensation (Form CA-7) for a schedule
award.
By decision dated June 27, 2005, OWCP granted appellant a schedule award for eight
percent permanent impairment of the left upper extremity. The period of the award ran for 24.96
weeks from December 3, 2004 through May 26, 2005.
In a September 26, 2007 decision, OWCP granted appellant a schedule award for an
additional 10 percent permanent impairment of the left upper extremity, for a total of 18 percent
permanent impairment. The period of the award ran for 31.20 weeks from April 23 through
November 27, 2007.
By decision dated March 19, 2013, OWCP granted appellant a schedule award for an
additional three percent permanent impairment of the left arm, for a total of 21 percent left upper
extremity permanent impairment. The award ran for 9.36 weeks for the period October 26 to
December 30, 2012.
By decision dated August 6, 2018, OWCP expanded the acceptance of appellant’s claim to
include complex regional pain syndrome (CRPS) of the left upper limb.

3

Docket No. 06-2068 (issued April 20, 2007).

4

Appellant retired from the employing establishment effective April 15, 2007.

2

OWCP subsequently received a June 12, 2019 medical report by Dr. John W. Ellis, an
attending Board-certified family practitioner. Dr. Ellis determined that appellant had 16 percent
permanent impairment of the left upper extremity using the diagnosis-based impairment (DBI)
rating method, 45 percent permanent impairment of the left upper extremity using the range of
motion (ROM) rating method, and 80 percent permanent impairment of the left upper extremity
based on the accepted condition of CRPS under the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).5 He
determined that MMI was reached on the date of his evaluation.
On September 15, 2019 Dr. Herbert White, Jr., a Board-certified orthopedic surgeon
serving as an OWCP DMA, reviewed the medical record, including Dr. Ellis’ June 12, 2019
findings. He found that appellant had 13 percent permanent impairment of the left upper extremity
based on CRPS and five percent permanent impairment of the left upper extremity based on a
labral tear using the DBI method, and 36 percent permanent impairment of the left upper extremity
using the ROM method in accordance with the sixth edition of the A.M.A., Guides. Dr. White
determined that the date of MMI was June 12, 2019, the date of Dr. Ellis’ impairment evaluation.
He noted discrepancies in Dr. Ellis’ impairment ratings.
By letter dated October 25, 2019, OWCP requested that Dr. Ellis review Dr. White’s
September 15, 2019 findings. In a November 14, 2019 addendum report, Dr. Ellis disagreed with
the DMA’s 13 percent left upper extremity impairment rating for CRPS and advised that his 80
percent left upper extremity impairment rating for the same condition remained unchanged.
On November 26, 2019 OWCP requested that DMA, Dr. White, review Dr. Ellis’
November 14, 2019 report. In a December 5, 2019 addendum report, the DMA related that
Dr. Ellis did not provide any additional information that would change his impairment rating.
On January 6, 2020 OWCP determined that a conflict in medical opinion existed between
Dr. Ellis and the DMA regarding the extent of appellant’s left upper extremity permanent
impairment. On January 29, 2020 it referred appellant, along with a statement of accepted facts
(SOAF) and the medical record, to Dr. Sunil Dedhia, a Board-certified orthopedic surgeon, for an
impartial medical examination.
In a March 10, 2020 report, Dr. Dedhia on examination of appellant’s left shoulder noted
that there was no evidence of obvious atrophy within the supraspinatus or infraspinatus fossa.
There was tenderness to palpation over the coracoid process, acromioclavicular joint, long head
biceps tendon, posterior capsule. ROM measurements included 90 degrees of flexion, 80 degrees
of abduction, 0 degrees of external rotation, 10 degrees of internal rotation, passive forward
elevation to 100 degrees, and passive adduction to 90 degrees.
Upon gross examination of appellant’s left upper extremity, there was no evidence of
obvious side-to-side upper extremity swelling or edema. There was no appreciable side-to-side
difference in temperature changes throughout the upper arm or forearm and very minimal coolness
was noted over the left hand compared to the right. There was no evidence of obvious hair changes
5

A.M.A., Guides (6 th ed. 2009).

3

on the right and left side. There was evidence of curved dystrophic nails on the left side compared
to the right. Skin turgor and texture was fairly symmetric with no evidence of glistening or
nonelastic skin. There was no evidence of obvious changes in the sweat pattern of the left upper
extremity compared to the right. Using Table 15-25 of the sixth edition of the A.M.A., Guides,
Dr. Dedhia assigned a point score of 4 for CRPS, class of diagnosis (CDX), based on his
examination findings. He determined the score of 4 resulted in a class 1 impairment under
Table 15-26. Dr. Dedhia took into account grade modifiers for functional history (GMFH) and
physical examination (GMPE) which resulted in a grade E, 13 percent permanent impairment of
the left upper extremity. He noted that a grade modifier for clinical studies (GMCS) was not
included in his calculations because clinical studies had not been provided to him. Dr. Dedhia
related that appellant had advised that radiographic studies, including a bone scan had been
performed; however, the actual reports and images were not available for his review. Utilizing
Table 15-5, he found that a labrum lesion resulted in a class 1, five percent impairment, with a
range adjustment to grade E based on GMPE and GMFH adjustments. Dr. Dedhia also found a
grade E seven percent impairment, for a full-thickness rotator cuff tear under Table 15-5 based on
GMFH and GMPE findings. He noted that his seven percent impairment rating included all
diagnoses related to appellant’s shoulder condition and was the greater rating based on the DBI
method.
Dr. Dedhia also utilized the ROM method at Table 15-34 to rate permanent impairment of
the left shoulder. He found 3 percent impairment for flexion, 6 percent impairment for abduction,
2 percent impairment for external rotation, 1 percent impairment each for extension and adduction,
and 4 percent impairment for internal rotation, totaling 17 percent permanent impairment of the
left upper extremity. Dr. Dedhia advised that since his 17 percent ROM permanent impairment
rating was greater than the DBI permanent impairment ratings, it was the predominate rating for
appellant’s left shoulder conditions. He determined that appellant had reached MMI.
By letter dated July 10, 2020, OWCP requested that Dr. Dedhia clarify his calculation of
the 17 percent ROM impairment rating as it calculated a 16 percent ROM impairment rating,
whether his 13 percent DBI impairment rating should be added to the 17 percent ROM impairment
rating for a total of 30 percent left upper extremity permanent impairment, and whether his current
total impairment rating considered the 18 percent left upper extremity impairment rating for which
appellant previously received schedule award compensation.
In a September 15, 2020 addendum report, Dr. Dedhia acknowledged that OWCP was
correct in finding that appellant had a 16 percent left shoulder ROM impairment rating. He
therefore found that appellant had 29 percent permanent impairment of the left upper extremity
based on CRPS and shoulder ROM deficits. Dr. Dedhia related that, if appellant had been given
a previous schedule award for 18 percent impairment, then he had an additional 11 percent
permanent impairment. He advised that his 29 percent impairment rating was not in addition to
the 18 percent previously awarded.
OWCP, by decision dated November 12, 2020, granted appellant a schedule award for an
additional 11 percent permanent impairment of the left upper extremity, resulting in a total of 29
percent permanent impairment. The period of the award ran for 34.32 weeks from March 10
through November 5, 2020 and was based on the impartial medical opinion of Dr. Dedhia.

4

On November 19, 2020 appellant, through counsel, requested a telephonic hearing before
a representative of OWCP’s Branch of Hearings and Review.
OWCP subsequently received progress notes dated July 3 and August 22, 2018 by
Dr. Alan G. Shepard, a neurologist, who diagnosed Type 1 CRPS of the left upper extremity,
degeneration of the lumbar or lumbosacral intervertebral disc, and hand weakness.
OWCP issued an amended decision dated December 10, 2020, again granting appellant a
schedule award for an additional 11 percent permanent impairment of the left upper extremity, for
a total 29 percent permanent impairment, based on Dr. Dedhia’s impairment rating.
An oral hearing was held on March 18, 2021.
By decision dated June 2, 2021, OWCP’s hearing representative affirmed the
December 10, 2020 decision.
LEGAL PRECEDENT
The schedule award provisions of FECA 6 and its implementing regulations 7 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For 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.
Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses. 8 As of May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2009).9 The Board has approved the use
by OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes. 10
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).11 In addressing impairment for the upper extremities, the sixth edition of the
A.M.A., Guides requires identifying the impairment class for the diagnosed condition, which is
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

9

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6a (March 2017).
10

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

11

A.M.A., Guides 3, section 1.3, The International Classification of Functioning, Disability and Health (ICF): A
Contemporary Model of Disablement (6 th ed. 2009).

5

then adjusted by GMFH, GMPE, and GMCS. 12 Evaluators are directed to provide rationale for
their impairment rating choices, including the choices of diagnosis from regional grids and
calculations of modifier scores.13
Impairment due to CRPS is evaluated under the scheme found in Table 15-26 (Complex
Regional Pain syndrome (UEI)) as well as Table 15-24 and Table 15-25 and the accompanying
relevant text.14 The grade modifier level (ranging from zero to four) are described from the
categories of functional history, clinical studies, and physical examination. The grade modifier
levels are averaged to arrive at the appropriate overall grade modifier level and to identify a class
rating value. If that class number is not supported by the objective diagnostic criteria point, the
highest class specified by those points is selected. The rating for CRPS is a “stand alone”
approach.15
Regarding the application of ROM or DBI impairment methodologies in rating permanent
impairment of the upper extremities, FECA Bulletin No. 17-06 provides:
“As the [A.M.A.,] Guides caution that, if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).”16
FECA provides that, if there is disagreement between an OWCP-designated physician and
the employee’s physician, OWCP shall appoint a third physician who shall make an examination. 17
For a conflict to arise, the opposing physicians’ viewpoints must be of virtually equal weight and
rationale.18 Where OWCP has referred the case to an impartial medical examiner (IME) to resolve
a conflict in the medical evidence, the opinion of such a specialist, if sufficiently well-reasoned
and based upon a proper factual background, must be given special weight. 19
ANALYSIS
The Board finds that this case is not in posture for decision.

12

A.M.A., Guides 385-419; see M.P., Docket No. 13-2087 (issued April 8, 2014).

13

D.S., Docket No. 19-0292 (issued June 21, 2019); R.V., Docket No. 10-1827 (issued April 1, 2011).

14

A.M.A., Guides 450-54.

15

Id.

16

FECA Bulletin No. 17-06 (May 8, 2017).

17

5 U.S.C. § 8123(a); A.R., Docket No. 18-0632 (issued October 19, 2018).

18

C.H., Docket No. 18-1065 (issued November 29, 2018.

19

W.M., Docket No. 18-0957 (issued October 15, 2018).

6

OWCP properly found a conflict in the medical opinion evidence between appellant’s
attending physician, Dr. Ellis and the DMA, Dr. White, regarding the extent of permanent
impairment of the left upper extremity due to his accepted left shoulder injury. It referred
appellant’s case to Dr. Dedhia pursuant to 5 U.S.C. § 8123(a) for an impartial medical examination
in order to resolve the conflict in medical opinion. In his March 10, 2020 report, the IME,
Dr. Dedhia, reviewed appellant’s history of injury and the relevant medical evidence, and provided
physical examination findings. He noted appellant’s accepted conditions of left shoulder,
including rotator cuff tear and left arm CRPS. In evaluating appellant’s permanent impairment
due to CRPS, using the DBI method at Table 15-25 of the sixth edition of the A.M.A., Guides,
Dr. Dedhia assigned a point score of 4 due to his examination findings. He determined that, under
Table 15-26, the CDX for appellant’s CRPS resulted in a class 1 impairment. Dr. Dedhia
considered adjustments for GMFH and GMPE which resulted in a grade E impairment with a
default value of 13 percent permanent impairment. He noted that an adjustment for GMCS was
not applicable as clinical studies had not been provided to him.
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. The claimant has the burden of proof to establish entitlement to compensation. However,
OWCP shares responsibility in the development of the evidence to see that justice is done. 20 Once
it undertakes development of the record, it must do a complete job in procuring medical evidence
that will resolve the relevant issues in the case. 21
In a situation where OWCP secures an opinion from an IME for the purpose of resolving
a conflict in the medical evidence and the opinion from such IME requires clarification or
elaboration, it has the responsibility to secure a supplemental report from the examiner for the
purpose of correcting the defect in the original opinion. 22
The Board finds that while Dr. Dedhia attempted to rate appellant’s permanent impairment
of the left shoulder for CRPS, he clearly noted that appellant’s entire medical record, including all
diagnostic studies, was not provided for his review. He therefore did not apply the GMCS in the
net adjustment formula. OWCP should have referred the entire medical record including all
diagnostic reports and/or studies to Dr. Dedhia, once he noted this discrepancy. 23 On remand it
shall refer appellant’s entire medical record to Dr. Dedhia and request that he provide a
supplemental opinion regarding appellant’s permanent impairment of the left shoulder based upon
his CRPS diagnosis.
The Board also notes that Dr. Dedhia also used the ROM method under Table 15-34 to rate
permanent impairment of appellant’s left shoulder. Dr. Dedhia found 3 percent impairment for
flexion, 6 percent impairment for abduction, 2 percent impairment for external rotation, 1 percent
20

See L.B., Docket No. 19-0432 (issued July 23, 2019); William J. Cantrell, 34 ECAB 1223 (1983).

21

Id.; see also S.A., Docket No. 18-1024 (issued March 12, 2020).

22

J.C., Docket No. 20-0064 (issued September 4, 2020); S.R., Docket No. 17-1118 (issued April 5, 2018); Nancy
Lackner (Jack D. Lackner), 40 ECAB 232, 238 (1988).
23

Id.

7

impairment each for extension and adduction, and 4 percent impairment for internal rotation,
totaling 17 percent permanent impairment of the left upper extremity. However, he did not record
or otherwise report that he had taken three independent ROM measurements of appellant’s left
shoulder.24 On remand, OWCP should also request that Dr. Dedhia explain whether three ROM
measurements were taken to evaluate appellant’s left shoulder loss of ROM. Following this and
other such further development, as deemed necessary, it shall issue a de novo decision on
appellant’s schedule award claim.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 2, 2021 decision of the Office of Workers’
Compensation Programs is set aside. The case is remanded to OWCP for further proceedings
consistent with this decision of the Board.
Issued: March 2, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

24

The Board also notes that the record does not substantiate that Dr. Dedhia was advised by OWCP that three
independent measurements were necessary.

8


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

)
)
)
)
)
)
)
)

Appearances:
Scott Hunter, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-29
Issued: April 5, 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 2, 2006 appellant filed a timely appeal from a September 6, 2006 merit
decision of the Office of Workers’ Compensation Programs that affirmed the denial of his claim
for compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the claim.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he developed
an occupational disease in the performance of duty.
FACTUAL HISTORY
On November 15, 2005 appellant, then a 31-year-old city carrier, filed an occupational
disease claim alledging that he injured his back while picking up a tray of mail on
February 8, 2005. He notified the employing establishment of an “ongoing problem” that began
with his claimed February 8, 2005 injury. The employing establishment controverted appellant’s
claim. Appellant stopped work on November 15, 2005 and returned on December 6, 2005.

Appellant submitted a note stating that he was treated by Dr. Roger Cagle, a Boardcertified family medicine specialist, on December 6, 2005. In a November 15, 2005 duty status
report, Dr. Cagle indicated that appellant reported being injured when he lifted a tray of mail on
that day.
On December 12, 2005 the Office requested additional information concerning
appellant’s claim.
Appellant submitted treatment reports from Dr. Cagle dated September 20, 2004 and
February 25 and November 28, 2005. Dr. Cagle listed appellant’s complaint of back pain and
diagnosed degenerative disc disease. A November 15, 2005 report related that appellant felt a
pop in his back while picking up a mail tray on that date. Dr. Cagle diagnosed a lumbar
sprain/strain and a herniated lumbar disc. He advised that appellant had a history of lumbago
and degenerative disc disease. Dr. Cagle also noted that appellant had a history of lumbago and
degenerative disc disease and diagnosed a herniated disc and low back pain. In a November 22,
2005 duty status report, he noted that appellant sustained a herniated disc and lumbar strain when
lifting a mail tray.
In a February 22, 2005 report, Dr. Michael Higgins, a Board-certified radiologist,
addressed a magnetic resonance imaging (MRI) scan of appellant’s lumbar spine. He found mild
posterior disc bulging at the L3-4 level and moderate posterior disc bulging at the L4-5 level. In
a December 1, 2005 MRI scan, Dr. Jon D. Collier, a radiologist, noted “disc desiccation at L3-4
and L4-5 with disc bulges.” He noted that appellant had back pain, right leg and foot pain over
the previous eight months and that “he fell.”
In a December 30, 2005 statement, appellant indicated that his back problems were
caused by “walking daily and heavy lifting that you incur every day doing your job five to seven
hours per day, walking, reaching on unstable and nonlevel surfaces ... also picking up heavy
cases of mail.”
By decision dated January 18, 2006, the Office denied appellant’s claim on the grounds
that the medical evidence of record did not establish that his back condition was causally related
to the accepted work-related event.
On February 21, 2006 appellant requested an oral hearing. He later changed this to a
request for reconsideration. In a March 9, 2006 report, Dr. Cagle stated that appellant
complained of a back injury on November 15, 2005 after lifting a tray of mail. Dr. Cagle
diagnosed lower back pain, muscle strain and herniated lumbar disc and referred appellant for an
MRI scan. He concluded: “It is my professional opinion that [appellant’s] condition is a result
of his injury at work.”
By decision dated April 11, 2006, the Office denied modification of its prior decision.
The Office noted that appellant claimed to have been injured on February 8, 2005, yet waited
until November 15, 2005 to file a claim. The Office concluded that the evidence did not support
that the claimed work events occurred as alleged.
On June 1, 2006 appellant requested reconsideration and submitted an April 7, 2006
report from Dr. Cagle who stated that appellant had degenerative joint disease at L3-4 and L4-5,
2

lower back pain, a “small focal disc herniation component” at L4-5 and sciatica. Dr. Cagle noted
that appellant initially injured his back on February 8, 2005 while lifting a tray of mail, but did
not stop work until November 15, 2005 when he again injured his back a second time in the
same manner. In a March 29, 2006 report, Dr. Cagle stated that appellant felt his back pop when
he picked up a tray of mail at work. He diagnosed degenerative joint disease, disc herniation,
lower back pain and sciatica and stated “It is my professional opinion that at the time of injury,
[appellant] would have been unable to perform his duties at work which appear to involve
standing, reaching, twisting and walking.” In a March 29, 2006 report, Dr. Cagle noted that
appellant was injured on November 15, 2005 and returned with complaints of worsening pain on
November 28, 2005. Appellant submitted an unsigned, undated report from the Paragould, AR,
Veterans’ Administration clinic, stating that he injured his lower back on February 8, 2005.
Appellant also submitted a copy of a previous traumatic injury claim filed on
February 10, 2005 stating that he injured his lower back, right leg and nerve when he bent down
to pick up a mail tray on February 8, 2005.1 In a February 3, 2006 report from the John J.
Pershing Veterans Administration Medical Center, indicated that appellant reported injuring
himself while lifting a tray of mail. Dr. Cagle diagnosed mild posterior disc bulges. In a June 1,
2006 decision from the Department of Veterans Affairs, denying vocational rehabilitation on the
grounds that it was not reasonable to expect him to train for or work at a suitable job at that time,
due to his medical limitations.
Appellant contended that the Office’s April 11, 2006 decision was confused on the issue
of date of injury. He stated that he initially injured his back on February 8, 2005 and then
reinjured it in the same manner on November 15, 2005. Appellant claimed that he was injured
on two separate occasions. He stated that, although he intended to associate the two injuries, he
did not intend to create the impression that he was filing a claim for the February 8, 2005 injury
on November 15, 2005.
By decision dated September 6, 2006, the Office modified the April 11, 2006 decision to
find that the claim filed was an occupational disease claim, but denied the claim on the grounds
that the evidence did not establish that appellant sustained a medical condition due to established
work factors.2
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of his or her claim, including the fact that the
1

The record indicates that appellant’s claim for a traumatic injury occurring on February 8, 2005 was developed
separately in Office File No. 162089757. The February 8, 2005 traumatic injury claim is not before the Board on
the present appeal. See 20 C.F.R. §§ 10.5(q), (ee), for the Office’s definition of a traumatic injury and occupational
disease.
2

The Office noted that appellant had not filed a Form CA-1, claim for traumatic injury for any incident occurring
on November 15, 2005. It advised that its decision only adjudicated whether appellant sustained an occupational
disease due to the employment factors identified in appellant’s December 30, 2005 letter to the Office.
3

5 U.S.C. §§ 8101-8193.

3

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 an injury was
sustained in the performance of duty as alleged, and that any disabilities and/or specific
conditions for which compensation is claimed are causally related to the employment injury.4
These are the essential elements of each and every compensation claim regardless of whether the
claim is predicated upon a traumatic injury or an occupational disease.5
An occupational disease or injury is one caused by specified employment factors
occurring over a longer period than a single shift or workday.6 The test for determining whether
appellant sustained a compensable occupational disease or injury is three-pronged. To establish
the factual elements of the claim, appellant must submit: “(1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying the factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the 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 factors identified by the claimant.”7
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors.8 The
opinion of the physician must be based on a complete factual and medical background of the
claimant9 and must be one of reasonable medical certainty10 explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.11
ANALYSIS
The Board finds that appellant failed to meet his burden of proof in establishing that he
developed an occupational disease in the performance of duty. Appellant filed an occupational
disease claim stating that he sustained injury to his back when he lifted a tray of mail and felt a
“pop,” apparently on February 8, 2005. On December 12, 2005 the Office’s requested additional
4

Elaine Pendleton, 40 ECAB 1143 (1989).

5

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

6

D.D., 57 ECAB ___ (Docket No. 06-1315, issued September 14, 2006).

7

Michael R. Shaffer, 55 ECAB 386, 389 (2004), citing Lourdes Harris, 45 ECAB 545 (1994); Victor J.
Woodhams, supra note 5.
8

Conrad Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

9

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

10

John W. Montoya, 54 ECAB 306 (2003).

11

Judy C. Rogers, 54 ECAB 693 (2003).

4

evidence. Appellant, in a December 30, 2005 letter, advised the Office that he attributed his
claimed occupational disease to daily walking and lifting required by his job. Thus, he has
identified employment factors alleged to have caused or aggravated a medical condition. The
medical evidence also shows that appellant has been diagnosed with degenerative disc disease of
the low back and herniated disc at L3-4 and L4-5.
However, the medical evidence is insufficient to establish that appellant’s walking and
lifting at work caused or contributed to his diagnosed low back condition. The medical evidence
of record, particularly the reports of Dr. Cagle state that appellant injured his back while lifting a
tray of mail. None of the medical reports of record characterize his condition as having been
caused by repetitive stress, frequent walking or heavy lifting.
Dr. Collier’s December 1, 2005 MRI scan is insufficient to establish the claim as he
diagnosed a low back condition and stated that appellant “fell.” He did not address how walking
and lifting in appellant’s work caused or aggravated the diagnosed conditions.
Dr. Cagle addressed causal relationship stating that it was his professional opinion that
appellant’s condition was caused by his injury at work. However, his report is premised on
appellant’s report that he injured himself while lifting a tray of mail. Dr. Cagle does not provide
medical reasoning or rationale to explain how appellant’s condition was related to a history of
walking and lifting at work. While Dr. Cagle’s reports might be germane to a claim for a
traumatic injury occurring within one workday, they are of diminished probative value with
regard to appellant’s occupational disease claim. He did not address how the implicated
employment factors caused or aggravated the diagnosed degenerative disc disease or contributed
to the disc herniation.12 Appellant has not submitted sufficient rationalized medical evidence
from Dr. Cagle supporting that his diagnosed condition is causally related to his federal
employment work activities. Other medical reports of record do not specifically address how
walking and standing by appellant in his work caused or aggravated a diagnosed condition.
Appellant also submitted a decision from the Department of Veterans Affairs, denying
his claim for vocational rehabilitation and employment services. This Department of Veterans
Affairs decision, however, does not establish entitlement to benefits under the Act. The Board
has previously held that the decisions of other administrative agencies or courts do not establish
appellant’s entitlement to rights under the Act.13 Accordingly, appellant has not established his
claim for an occupational disease.

12

See supra note 1 (regarding Office’s definitions of traumatic injury and occupational disease).

13

The Act is remedial in character and the Office has the duty of administering the provisions of the Act with
regard to the rights of employees and the intent of Congress. John J. Feeley, 8 ECAB 576 (1956). The
determination of an employee’s rights or remedies under other statutory authority does not establish entitlement to
benefits under the Act for disability. Under the Act, for a disability determination, the employee’s injury must be
shown to be causally related to an accepted injury or factors of employment. For this reason, the determinations of
other administrative agencies or courts while instructive are not determinative with regard to disability under the
Act. See Daniel Deparini, 44 ECAB 657 (1993); George A. Johnson, 43 ECAB 712 (1992); Constance G. Mills,
40 ECAB 317 (1988); Fabian W. Fraser, 9 ECAB 367 (1957).

5

CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
developed an occupational disease in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the September 6, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 5, 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


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.E., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
AVIATION DEPOT, Cherry Point, NC,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Stephen D. Scavuzzo, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-52
Issued: March 24, 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 October 5, 2007 appellant filed a timely appeal from a July 12, 2007 merit decision
by a hearing representative of the Office of Workers’ Compensation Programs that affirmed a
schedule award for 11 percent impairment of the right kidney. 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 met his burden of proof in establishing that he had greater
than 11 percent permanent impairment of the right kidney for which he received a schedule
award.
FACTUAL HISTORY
On October 5, 2004 appellant, then a 46-year-old tool maker, filed an occupational
disease claim alleging that he sustained kidney cancer as a result of working with heavy metals,
specifically grinding tools. After finding stage III renal cell carcinoma appellant underwent a
right radical nephrectomy on March 11, 2004. On March 24, 2005 the Office denied appellant’s

claim finding that the medical evidence did not demonstrate that his kidney condition was related
to his employment.
On April 28, 2005 appellant requested an oral hearing.
October 18, 2005.

The hearing was held on

Additional evidence was submitted, including an October 12, 2005 letter from
Dr. Peter F. Keurs and a November 14, 2005 letter from Dr. Marcelo R. Perez-Montes, a general
practitioner. Dr. Keurs reported that appellant’s right kidney was full of toxic metals of the kind
found at the facility where he worked and that appellant was relocated to a different work
environment. Dr. Perez-Montes opined that it was more likely than not that the work exposure
incurred by appellant aggravated or contributed to the development of his renal dysfunction.
In a December 21, 2005 decision, the Office found a conflict in the medical evidence
requiring further development of the medical evidence. The March 24, 2005 decision was set
aside and the case remanded for further development.
On February 9, 2006 Dr. Wendy Rathmell, an oncologist, evaluated appellant. She
opined that it was impossible to completely prove or disprove the etiologic impact of his work
exposures on his renal cell carcinoma. In a May 11, 2006 note, Dr. Rathmell opined that it was
possible if not probable that appellant’s renal cell carcinoma was associated with his workplace
exposure.
On May 16, 2006 the Office accepted appellant for malignant neoplasm of the right
kidney.
On June 7, 2006 the district medical adviser reviewed appellant’s case and used the
American Medical Association, Guides to the Evaluation of Permanent Impairment to find that
one functioning kidney equaled 10 percent whole person impairment. He concluded that
appellant had an impairment of 11 percent of the right kidney.
On June 9, 2006 the Office informed appellant that he was eligible for a schedule award
rating of 11 percent. On July 7, 2006 he filed a claim for schedule award.
On July 17, 2006 the Office granted appellant a schedule award for 11 percent
impairment of the kidney and 17.16 weeks of compensation.
On July 25, 2006 appellant requested an oral hearing. The hearing was held on
April 5, 2007. A December 13, 2006 computerized tomography (CT) scan of the abdomen and
pelvis performed by Dr. Catherine J. Everett, a Board-certified radiologist, diagnosed restaging
renal cell carcinoma. On August 17, 2004 a basic metabolic panel was performed. A urinalysis
was performed on April 17, 2007.
In a May 17, 2007 decision, the hearing representative vacated the July 17, 2006 schedule
award and remanded the case to the Office to obtain further review of the new medical evidence
by an Office medical adviser.

2

In a May 18, 2007 memorandum, the medical adviser reviewed the new evidence, noting
that the urinalysis did not have the creatinine clearance value required to determine impairment
due to upper urinary tract disease. He concluded that the impairment rating of 11 percent for the
right kidney was correct.
On July 12, 2007 the Office denied appellant’s request for an increase in his schedule
award impairment rating. The Office found that the medical adviser properly assessed the
medical documents.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulations2 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. No schedule award is payable for a member, function or organ of the body that is not
specified in the Act or the implementing regulation.3 The Act identifies members as the arm,
leg, hand, foot, thumb and finger, functions as loss of hearing and loss of vision and organs to
include the eye. Section 8107(c)(22) of the Act provides for payment of compensation for
permanent loss of “any other important external or internal organ of the body as determined by
the Secretary [of Labor.]”4 The Secretary of Labor has made such a determination and, pursuant
to the authority granted in section 8107(c)(22), added the breast, kidney, larynx, lung, penis,
testicle, tongue, ovary, uterus/cervix and vulva/vagina to the schedule.5 The schedule provides
that total loss of a kidney entitles a claimant to 156 weeks of compensation.6
However, neither the Act nor the applicable regulation specifies the manner in which the
percentage of loss shall be determined. The method used in making such determination is a
matter 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 evaluating schedule losses and the Board has concurred in such

1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404 (1999).

3

See Gary M. Goul, 54 ECAB 702 (2003); Donald A. Larson, 41 ECAB 947 (1990).

4

5 U.S.C. § 8107(c)(22).

5

20 C.F.R. § 10.404(a).

6

Id.

3

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 A.M.A., Guides provide that an individual with only one functioning kidney has 10
percent whole person impairment because of such an essential organ loss.9 While the A.M.A.,
Guides provide for impairment ratings to the individual member as well as impairment to the
whole person, the Act does not provide for assessing permanent impairment of the whole person.
As noted the schedule award provisions of the Act provide for loss of use of a member, function
of organ of the body listed.
ANALYSIS
The Board finds that appellant met his burden of proof in establishing that he was entitled
to a schedule award for 100 percent impairment of his right kidney. The Office accepted that
appellant sustained a malignant neoplasm kidney. Appellant underwent a right nephrectomy, or
complete removal of the right kidney, as a consequence of his accepted injury. The provision of
the A.M.A., Guides, relied upon by the medical adviser rating appellant with a 10 percent
impairment of the whole person is not applicable as the Act does not provide for permanent
impairment of the whole person. Appellant has lost a scheduled member, the right kidney, he is
therefore entitled to the 156 weeks of compensation allotted by the Secretary for this member
rather than the 17.16 weeks of compensation awarded by the Office.10 On remand the Office
should amend the schedule award determination to reflect the total loss of the right kidney and
award the appropriate schedule award benefit.
CONCLUSION
The Board finds that as appellant has a total loss of his left kidney he is entitled to 156
weeks of compensation in accordance with the Act and implementing federal regulation.

7

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

8

See FECA Bulletin No. 01-05 (issued January 29, 2001) (schedule awards calculated as of February 21, 2001
should be evaluated according to the fifth edition of the A.M.A., Guides. Any recalculations of previous awards
which result from hearings, reconsideration or appeals should, however, be based on the fifth edition of the A.M.A.,
Guides effective February 1, 2001).
9

A.M.A., Guides 145, 7.3 Upper Urinary Tract.

10

N.D., 59 ECAB ___ (Docket No. 07-1981, issued February 1, 2008); Marilyn S. Freeland, 57 ECAB __
(Docket No. 06-563, issued June 7, 2006).

4

ORDER
IT IS HEREBY ORDERED THAT the July 12, 2007 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: March 24, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Cleveland, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 16-0760
Issued: October 19, 2016

Case Submitted on the Record

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

JURISDICTION
On March 7, 2016 appellant filed a timely appeal of a January 8, 2016 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case.
ISSUE
The issue is whether appellant has established an employment-related injury causally
related to an accepted June 9, 2015 employment incident.
FACTUAL HISTORY
On July 1, 2015 appellant, then a 38-year-old immigration enforcement agent, filed a
traumatic injury claim (Form CA-1) alleging that on June 9, 2015 he sustained a methicillinresistant staphylococcus aureus (MRSA) right upper leg area infection during a health
1

5 U.S.C. § 8101 et seq.

improvement program (HIP) workout. He explained that the alleged injury occurred at 12:00
p.m. in the fitness center, which was located on the third floor of the employing establishment.
Appellant noted his tour of duty hours were 7:00 a.m. to 3:00 p.m. He stopped work on
June 12, 2015. Appellant’s supervisor noted on the claim form that the alleged injury was not
sustained in the performance of duty.
By correspondence dated July 13, 2015, OWCP informed appellant that the evidence of
record was insufficient to establish his claim. Appellant was advised as to the medical and
factual evidence required and was afforded 30 days to provide this information. OWCP also
requested that the employing establishment respond to questions regarding appellant’s physical
fitness activities.
In response to OWCP’s request, appellant submitted photos of the gym facility inside the
employing establishment, employing establishment memorandum regarding HIP, and responses
to the questionnaire. He stated that he had been performing an hour to an hour and a half of
general physical exercise. Appellant noted that he began to experience discomfort in his right
upper leg after noticing small pustules. It was not until he sought medical treatment for his
cellulitis that he was diagnosed with MRSA.
A June 11, 2015 report from Dr. Lara E. Marsh, a specialist in sports medicine, noted that
appellant was seen for a right thigh abscess which was diagnosed as right thigh cellulitis. She
reported that appellant presented with six pustules on his right thigh, cellulitis, and he noted that
appellant was limping. Appellant related that the symptoms had begun approximately three days
previously. She noted that it was unknown what caused the symptoms, but that she suspected
ingrown hairs.
In a July 17, 2015 letter, the employing establishment responded to OWCP’s July 13,
2015 request for additional information. It denied that MRSA was present in the fitness center.
The employing establishment also related that participation in the HIP program was voluntary.
By decision dated August 19, 2015, OWCP found that the alleged employment event had
occurred in the performance of duty, but denied appellant’s claim as it found the record
contained no medical evidence of record establishing that the alleged MRSA condition was
causally related to the June 9, 2015 employment incident.
In a form dated September 18, 2015, appellant requested reconsideration. In support of
his request he submitted a September 16, 2015 report from Dr. Marsh in which she related that
appellant was seen for his June 2015 right upper thigh skin infection. Dr. Marsh opined that
there was a great probability that appellant contracted MRSA from the employing
establishment’s gym facility, which appellant described as unsanitary. She further noted that
appellant denied any contact with anyone with MRSA and that it could not be ruled out that
appellant was exposed to the MRSA bacteria due to touching contaminated equipment with his
hands. Dr. Marsh reiterated that she could not rule out that MRSA was contracted by appellant’s
use of the gym equipment as transmission can occur when skin is in contact with an infected
surface.
By decision dated January 8, 2016, OWCP denied modification. It found the report from
Dr. Marsh was speculative and insufficient to establish causal relationship.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA2 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 and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.5
First, the employee must submit sufficient evidence to establish that he actually experienced the
employment incident at the time, place and in the manner alleged.6 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.8 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors.9 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.10
ANALYSIS
Appellant filed a traumatic injury claim alleging that he sustained a right upper leg area
MRSA infection while performing a HIP workout routine while in the performance of duty.
OWCP accepted that appellant’s June 9, 2015 work out in the employing establishment’s fitness
center occurred in the performance of duty. The issue is whether appellant met his burden of
2

5 U.S.C. § 8101 et seq.

3

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

4

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

5

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 3.

6

D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

7

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 3.
8

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
9

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

10

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

3

proof to establish that his MRSA infection was caused or aggravated by the accepted June 9,
2015 incident. The Board finds, however, that appellant failed to establish that his MRSA
infection had been caused or aggravated by his exercise activities in the employing
establishment’s fitness center on June 9, 2015.
The issue of causal relationship is a medical one and must be resolved by probative
medical opinion from a physician.11 In the June 11, 2015 emergency room report, Dr. Marsh did
not specifically address how the alleged MRSA condition was related to the accepted June 9,
2015 employment incident. She did not discuss appellant’s fitness center activities as the cause
of the MRSA in the June 11, 2015 emergency note. Rather, Dr. Marsh merely opined the cause
was ingrown hairs. Lacking a rationalized medical opinion causally relating the diagnosed
condition to appellant’s exercise activities, this report is of limited probative value.12
In the September 16, 2015 report from Dr. Marsh, she opined that it could not be ruled
out that appellant was exposed to MRSA at the gym and that the gym was probably where he
contracted the condition. The report also noted that MRSA can be contracted by exposure to an
infected area and not just by skin to skin contact. This opinion by Dr. Marsh is speculative and
equivocal regarding causal relationship and is therefore of diminished probative value.13
The Board has held that the fact that a condition manifests itself during a period of
employment does not raise an inference of causal relation.14 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.15 To
establish a firm medical diagnosis and causal relationship, appellant must submit a physician’s
report that addresses how exercising at work caused or aggravated his MRSA.16
OWCP advised appellant that it was his responsibility to provide a comprehensive
medical report which described his symptoms, test results, diagnosis, treatment and the
physician’s opinion, with medical reasons, regarding the cause of his condition. Appellant failed
to submit appropriate medical documentation in response to OWCP’s request. As there is no

11

I.A., Docket No. 13-1701 (issued January 17, 2014); Ronald K. Jablanski, 56 ECAB 616 (2005).

12

See supra note 10.

13

C.C., Docket No. 14-1667 (issued December 3, 2014); Ricky S. Storms, 52 ECAB 349 (2001) (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).
14

L.D., Docket No. 09-1503 (issued April 15, 2010); D.I., 59 ECAB 158 (2007); Daniel O. Vasquez, 57 ECAB
559 (2006).
15

See D.U., Docket No. 10-144 (issued July 27, 2010); D.I., id.; Robert Broome, 55 ECAB 339 (2004); Anna C.
Leanza, 48 ECAB 115 (1996).
16

Michael S. Mina, supra note 9; Michael E. Smith, 50 ECAB 313 (1999).

4

probative, rationalized medical evidence addressing how his claimed MRSA was caused or
aggravated by the identified employment incident, he has not met his burden of proof.17
On appeal appellant contends that the medical literature and Dr. Marsh’s report is
sufficient to establish his claim. He argues that claims examiner is unqualified to adjudicate
claims with proven medical diagnoses. As discussed above, it is appellant’s burden to provide a
rationalized medical opinion explaining how the diagnosed MRSA had been caused or
aggravated by the June 9, 2015 incident. Appellant failed to provide the requisite medical
opinion and thus, has failed to meet his burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to establish that he sustained an employment-related
injury in the performance of duty on June 9, 2015.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 8, 2016 is affirmed.
Issued: October 19, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

17

Supra note 7.

5


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

)
)
)
)
)
)
)
)

Appearances:
Martin Kaplan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-165
Issued: September 23, 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 October 20, 2009 appellant, through counsel, filed a timely appeal from May 12 and
September 24, 2009 decisions of the Office of Workers’ Compensation Programs denying his
claim for a consequential emotional condition. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the claim
ISSUE
The issue is whether appellant established that he sustained a consequential emotional
condition due to his accepted July 21, 2006 employment injury.
FACTUAL HISTORY
On August 2, 2006 appellant, a 53-year-old customer service supervisor, filed a traumatic
injury claim alleging that he experienced stress, sleeplessness, depression and injuries to his
head, neck and chest as a result of being required by the employing establishment to drive long

distances for many hours between July 21 and August 12, 2006.1 The Office accepted the claim
for temporary aggravation of obstructive sleep apnea.2
In an August 8, 2006 report, Dr. Glen Liesegang, a treating Board-certified family
practitioner, diagnosed sleep apnea. He noted that appellant had severe, sudden urges to sleep
while driving and often had to pull over and nap for 10 to 15 minutes to remain awake enough to
continue driving. Noting that appellant’s current job required driving several hours at a time,
Dr. Liesegang recommended that he drive no more than 15 minutes at a time and be restricted
from operating a motor vehicle until his sleep apnea was brought under control.
On September 6, 2006 the Office requested additional information as to the details
surrounding appellant’s condition. In a September 11, 2006 statement, appellant alleged that he
was forced to drive for many hours at a time from July 21 through August 12, 2006, while on an
involuntary detail as an auditor route inspector. He experienced extreme stress because he was
unable to stay awake due to his sleep apnea condition. Appellant stated that he experienced
neck, shoulder and head pain, which began between July 21 and August 2, 2006. He previously
received psychological counseling in 1994 while going through divorce and custody proceedings
and was currently taking medication to help him deal with the loss of custody of his three
daughters.
On September 14, 2006 Dr. Liesegang noted results of an August 27, 2006 sleep study,
which confirmed the diagnosis of sleep apnea syndrome. He reiterated appellant’s concerns
about falling asleep while driving in the course of his employment. Dr. Liesegang noted that on
August 8, 2006 appellant had been extremely worried that his drowsiness might cause a traffic
accident. Unsigned records dated December 27, 2006 from Blowing Rock Medical Center
reflect a November 1, 2002 diagnosis of depression.
In an undated report, Dr. Liesegang noted that appellant’s sleep apnea symptoms
included hypertension, snoring, morning headaches, memory problems and depression. He
advised that appellant was unable to drive long distances due to sleep apnea and that the
condition was “job related” because his position required him to drive against his physician’s
advice. Appellant’s condition was worsened by the stress of having to choose between
unemployment and his life.
Appellant submitted a July 9, 2008 report from Dr. Juan C. DeVirgiliis, a Board-certified
family practitioner, who began treating him on April 24, 2008. Dr. DeVirgiliis described a
history of injury reflecting that appellant developed multiple psychiatric symptoms after a
July 27, 2006 motor vehicle accident, which occurred in the performance of his federal duties
due to a sleep apnea condition. At the time of the accident, appellant reportedly suffered
1

The Office properly developed the claim as an occupational disease claim, as the alleged injury occurred over a
period greater than one day or shift.
2

Appellant filed an April 17, 2009 traumatic injury claim alleging that he sustained neck and head injuries as a
result of an August 4, 2006 motor vehicle accident when he fell asleep while driving in the performance of duty.
(File No. xxxxxx034) By decision dated June 17, 2009, the Office denied the claim on the grounds that fact of
injury had not been established. On September 9, 2009 it denied merit review. The case is currently on appeal to
the Board.

2

multiple physical injures resulting in disability, which added to his psychiatric symptoms.
Dr. DeVirgiliis opined that the physical and psychiatric symptoms, caused by the conditions of
appellant’s employment, resulted in severe impairment and disability, rendering him unable to
work, or hold any other gainful employment. Appellant related that he had no prior psychiatric
symptoms, diagnoses or treatment before the July 27, 2006 accident. After the accident, he
experienced significant and chronic pain in his neck, shoulder and head. Appellant described
feelings of panic, dizziness, sense of impending doom, chest pain, shortness of breath, profuse
perspiration, rapid heart beat, irrational fear of death or insanity and complete despair,
uselessness and hopelessness, severe, inappropriate guilt and a sensation of being “stuck,” due to
his unresolved situation with his employer.
Dr. DeVirgiliis diagnosed: chronic post-traumatic stress disorder (as a result of the
July 2006 motor vehicle accident); panic disorder with agoraphobia; major depressive disorder;
probable myofascial pain syndrome, affecting back, neck and shoulders (whiplash), directly
caused by the motor vehicle accident described and both exacerbating and aggravated by the
concurrent Axis I Diagnoses; possible sleep apnea; and severe psychosocial stress, caused by his
lack of employment, his poor psychiatric and physical health conditions, his social withdrawal,
his dire financial situation, his uncertain financial future, his loss of self-esteem as a provider and
as a man, his potential housing problems and the perceived hostility of the employing
establishment. Based on the facts reported by appellant, Dr. DeVirgiliis opined that the situation
was significantly aggravated by the perceived lack of support and punitive behavior of the
employing establishment, which failed to accommodate his disability and required him to
perform duties which endangered his life and the safety of the public at large.
In a letter dated July 28, 2008, the Office informed appellant that the evidence submitted
was insufficient to establish that he developed a psychiatric condition as a consequence of the
accepted driving incident. It noted that the medical evidence which addressed an alleged
July 21, 2006 motor vehicle accident, was inconsistent with earlier medical reports, which did
not mention any such accident. The Office noted that there was no medical evidence of record
reflecting that he sought treatment for neck, shoulder or head injuries as a result of a motor
vehicle accident. Appellant was advised to submit additional evidence to support his claim
within 30 days.
The Office found a conflict in medical opinion between Dr. Liesegang and the second
opinion physician, Dr. Gary Schafer, a Board-certified internist, on the issue of whether
appellant’s accepted condition had resolved. It referred appellant to Dr. Michael S. Dew, a
Board-certified psychiatrist and neurologist, for an impartial medical examination and an opinion
as to whether appellant continued to experience residuals due to the accepted injury and, if so,
whether he was disabled due to those residuals. In reports dated October 30, 2008 and
January 20 and March 18, 2009, Dr. Dew opined that while appellant continued to suffer from
the symptoms of his preexisting sleep apnea, the accepted aggravation of the condition was not
permanent in nature and had resolved.
By decision dated May 12, 2009, the Office denied appellant’s request to expand his
claim to include the diagnosed psychological conditions, as the evidence did not establish that
they were related to the accepted work exposure.

3

On August 24, 2009 appellant requested reconsideration of the May 12, 2009 decision.
In a May 19, 2009 report, Dr. Liesegang opined that appellant continued to be disabled as
a result of his sleep apnea condition. He stated that, so long as appellant suffered from sleep
apnea, he would continue to be anxious and suffer from poor memory and nightmares.
Appellant also experienced stress as a result of his discharge from work. Dr. Liesegang
recommended restrictions for appellant’s herniated disc condition, including lifting no more than
25 pounds.
In a May 21, 2009 report, Dr. DeVirgiliis diagnosed major depressive disorder, panic
disorder with agoraphobia and post-traumatic stress disorder. Noting that appellant “never had
any previous history of psychiatric problems,” he stated “with confidence that his condition
began as a consequence of the work-related problems that he started experiencing after the
accident he suffered on August 4, 2006 while in the performance of his duties.” He also opined
that the lack of resolution of his work status was aggravating the situation.
In a June 26, 2009 report, Dr. Dew opined that appellant’s underlying sleep disorder
would have resolved in days or weeks after the accepted duty assignment in 2006.3
By decision dated September 24, 2009, the Office denied modification of the May 12,
2009 decision on the grounds that the medical evidence failed to establish that appellant had
developed a psychological condition as a result of the accepted work exposure.
LEGAL PRECEDENT
The general rule respecting consequential injuries is that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause, which is attributable to the employee’s own intentional conduct.4
The subsequent injury is compensable if it is the direct and natural result of a compensable
primary injury.5 With respect to consequential injuries, the Board has stated that, where an
injury is sustained as a consequence of an impairment residual to an employment injury, the new
or second injury, even though nonemployment related, is deemed, because of the chain of
causation to arise out of and in the course of employment and is compensable.6
The medical evidence required to establish a causal relationship, generally, is rationalized
medical opinion evidence, i.e., medical evidence presenting a physician’s well-reasoned opinion
on how the established factor of employment caused or contributed to a claimant’s diagnosed
condition. To be of probative value, the opinion of the physician must be based on a complete
3

In a September 16, 2009 decision, the Office terminated appellant’s compensation and medical benefits based
on Dr. Dew’s referee report.
4

Albert F. Ranieri, 55 ECAB 598 (2004).

5

Id.; Carlos A. Marrero, 50 ECAB 117 (1998); A. Larson, The Law of Workers’ Compensation § 10.01 (2005).

6

Kathy A. Kelley, 55 ECAB 206 (2004).

4

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.7
ANALYSIS
Appellant attributed his stress and depression to limitations resulting from his accepted
employment injury. The Board has held that an emotional condition due to chronic pain and
limitations resulting from an employment injury is covered under the Federal Employees’
Compensation Act.8 The Board finds, however, that appellant submitted insufficient medical
evidence to establish a consequential relationship between his diagnosed psychological disorders
and the accepted condition of temporary aggravation of obstructive sleep apnea.9
Dr. Liesegang’s reports are of limited probative value on several counts. He confirmed
the diagnosis of sleep apnea syndrome and indicated that depression was a symptom of the
condition. Dr. Liesegang did not, however, opine that appellant’s depression was causally
related to the accepted temporary aggravation of his preexisting, chronic sleep apnea condition.
He stated that appellant’s sleep apnea condition was worsened by the stress of having to choose
between unemployment and his life and that so long as he suffered from sleep apnea, he would
continue to be anxious and would suffer from poor memory and nightmares. The issue,
however, is not whether the sleep apnea condition was worsened by stress, but rather whether the
claimed psychological conditions were caused by the temporary aggravation of the sleep apnea
condition. Dr. Liesegang did not provide a rationalized explanation as to how any diagnosed
psychological condition resulted from the accepted incident. Such an explanation is particularly
important in light of appellant’s 2002 diagnosis of depression. Dr. Liesegang is not a clinical
psychologist or psychiatrist, recognized as specialists in the field. His opinion regarding
appellant’s emotional conditions is outside his area of expertise and is of diminished probative
value.10 The Board finds that Dr. Liesegang’s reports are insufficient to establish appellant’s
claim of a consequential injury.
Dr. DeVirgiliis’ reports are of limited probative value, as they do not explain how
appellant’s diagnosed conditions resulted from the accepted exposure, namely driving long
distances for many hours between July 21 and August 12, 2006.11 As noted, the probative value
of any opinion offered by Dr. DeVirgiliis regarding appellant’s emotional condition is
diminished by the fact that he is not a clinical psychologist or psychiatrist.12 Moreover, his
reports are based upon an inaccurate factual background. Medical conclusions based on
7

Leslie C. Moore, 52 ECAB 132, 134 (2000); see also Ern Reynolds, 45 ECAB 690, 695 (1994).

8

Clara T. Norga, 46 ECAB 473 (1995); Arnold A. Alley, 44 ECAB 912 (1993).

9

See Debra L. Dillworth, 57 ECAB 516 (2006).

10

See Beverly A. Spencer, 55 ECAB 501 (2004); see also Bertha Parker, 32 ECAB 328, 332 (1980) (a report of a
physician whose specialty is not in the relevant field medicine may be of lesser weight).
11

See supra note 7 and accompanying text.

12

See supra note 10 and accompanying text.

5

inaccurate or incomplete factual or medical histories are of limited probative value.13 On July 9,
2008 Dr. DeVirgiliis stated that appellant sustained multiple physical injures in a work-related
July 27, 2006 motor vehicle accident, when he fell asleep while driving and ran off the road.
Following the accident, appellant reportedly suffered from significant and chronic pain in his
neck, shoulder and head. Dr. DeVirgiliis diagnosed chronic post-traumatic stress disorder, panic
disorder with agoraphobia, major depressive disorder and probable myofascial pain syndrome,
which he attributed to the July 27, 2006 accident. He opined that the situation was significantly
aggravated by the perceived lack of support and punitive behavior of the employing
establishment, which failed to accommodate his disability and required him to perform duties
which endangered his life and the safety of the public at large.
The record, however, does not support Dr. DeVirgiliis’ factual history. There is no
evidence that appellant was involved in a motor vehicle accident during the period alleged.
Appellant did not allege that he had been involved in an accident while in the performance of
duty. Rather, he alleged and the Office accepted, that he was required to drive for extended
periods of time from July 21 to August 12, 2006. With the exception of Dr. DeVirgiliis’ report,
the record is devoid of any medical evidence supporting a claim of injury to appellant’s neck,
shoulders or head during the claimed period. The Board notes that Dr. DeVirgiliis did not begin
treating appellant until April 24, 2008, some two years after driving involved in this case.
Therefore, Dr. DeVirgiliis did not receive a contemporaneous account of the accepted exposure
from appellant.
The Board finds that appellant has not met his burden of proof. There is no probative
medical evidence supporting that his psychiatric condition resulted from the accepted
employment exposure.
On appeal, counsel contends that Dr. DeVirgiliis’ report is sufficient to meet appellant’s
burden of proof. In the alternative, he argues that the report raises an uncontroverted inference
of a causal relationship warranting further development. For the reasons stated, the Board finds
that Dr. DeVirgiliis’ reports are insufficient to establish that appellant developed a consequential
psychological condition as a result of the accepted exposure.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
developed a psychological condition as a consequence of his accepted condition of aggravation
of sleep apnea.

13

See M.W., 57 ECAB 710 (2006).

6

ORDER
IT IS HEREBY ORDERED THAT the September 24 and May 12, 2009 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: September 23, 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
__________________________________________
S.W., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, New York, NY,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 13-1831
Issued: December 11, 2013

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 August 2, 2013 appellant, through his attorney, filed a timely appeal from a May 24,
2013 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 met his burden of proof to establish an injury in the
performance of duty on October 30, 2010, as alleged.
FACTS
On November 1, 2010 appellant, then a 57-year-old park ranger, filed a claim alleging
injuries to his hip, leg and back in the performance of duty on October 30, 2010 as a result of a
1

5 U.S.C. § 8101 et seq.

slip and fall off the second step in Theater 2. On the claim form, Peter Wong, a witness, verified
that appellant fell from the front stairs of Theater 2, landed awkwardly and violently twisted his
back and leg.
Appellant submitted a November 1, 2010 left hip x-ray, physical therapy notes and
statements from the employing establishment pertaining to his injury and continuation of pay,
and a report of the October 30, 2010 incident.
Dr. Craig Antell, a Board-certified physiatrist, treated appellant. In an October 1, 2010
report, he noted that appellant presented with an acute exacerbation of lower back pain for the
past day and denied any significant trauma. Appellant related a history of recurrent back pain
and that he was having difficulty ambulating and was unable to stand without assistance. He
also mentioned a history of cervical myelopathy, but was not complaining of cervical pain. An
impression of probable acute lumbar disc derangement was provided.
In a November 1, 2010 report, Dr. Antell related that appellant presented with an acute
exacerbation of lower back pain for the past day and again denied any significant trauma. He
noted that appellant has a history of recurrent back pain and of cervical myelopathy. There were
no preset complaints of cervical pain. Dr. Antell provided an impression of probable acute
lumbar disc derangement and opined that appellant was totally disabled.
In a November 10, 2010 duty status report, Dr. Antell noted that appellant slipped from a
step to the floor on October 30, 2010. He opined that lumbar disc damage resulted from the
injury. Dr. Antell also opined that appellant was totally disabled. In a November 17, 2010 Form
CA-16, Dr. Antell diagnosed chronic lower back pain from October 1, 2010.
In a December 8, 2010 letter, OWCP informed appellant of the deficiencies in his claim.
It afforded him 30 days to submit additional evidence and respond to its questions.
In a December 8, 2010 letter to Dr. Antell, OWCP requested that the physician address
the causal relationship of appellant’s back conditions to the October 30, 2010 job injury.
OWCP received physical therapy notes for neck and left shoulder conditions for various
dates in 2008; a November 1, 2010 x-ray report of left hip and lumbar spine, September 22, 2009
magnetic resonance imaging (MRI) scan of the cervical spine and a January 13, 2011 MRI scan
of the lumbar spine. A partial January 13, 2011 report from Dr. Jeffrey Perry, a Board-certified
family practitioner, noted that appellant reported he was injured at work on October 30, 2010
when he slip on some stairs and fell approximately six steps.
In a January 13, 2011 report, Dr. John A. Bendo, a Board-certified orthopedic surgeon,
noted appellant’s complaints of severe lower back pain and left leg sciatica after he slipped and
fell off a series of stairs on October 30, 2010. He had acute back pain since that time. An MRI
scan revealed a large extruded disc herniation at L5-S1. Dr. Bendo listed an impression of
severe left S1 radiculopathy secondary to left lumbar disc herniation/extrusion L5-S1 and
recommended an urgent lumbar microdiscectomy decompression.
In medical reports dated February 24 and April 28, 2010, Dr. Jacqueline Friedman, a
Board-certified neurologist, stated that appellant was undergoing physical therapy for back pain.
2

She reviewed MRI scan studies from September 2009 and listed an impression of straightening
of the lumbar spine with superimposed degenerative changes, most prominent at the left L5-S1
level.
By decision dated January 21, 2011, OWCP found that the October 30, 2010 incident
occurred as alleged. It denied the claim finding that the medical evidence failed to establish a
causal relationship between the diagnosed low back condition and the October 30, 2010 incident.
On December 15, 2011 appellant, through his attorney, requested reconsideration. He
stated that he was enclosing medical records of Dr. Bendo for review. Although there was
evidence of a preexisting low back condition, counsel contended that Dr. Bendo’s January 13
and March 8, 2011 reports confirmed that appellant’s low back condition was caused by the
work incident.
An addendum to Dr. Bendo’s January 13, 2011 report stated that the MRI scan study of
the lumbar spine was consistent with an extruded disc contacting the left descending S1 nerve
root at the L5-S1 level. He recommended a surgical evaluation. In a February 8, 2011 report,
Dr. Bendo noted that appellant was scheduled for a posterior lumbar discectomy surgery on
February 14, 2011 for a left-sided herniated disc L5-S1. He was expected to be out of work
approximately four weeks. Additional reports from Dr. Bendo addressed postlumbar surgery
progress on March 2 and May 5, 2011. Dr. Bendo’s March 8, 2011 report, as noted by
appellant’s attorney, was not received.
In a January 13, 2011 report, Dr. Perry noted that appellant reported he was injured at
work on October 30, 2010 when he slipped on some stairs and fell down approximately six steps.
Appellant was bedridden for approximately three weeks. Dr. Perry stated that it was two and
half months since his work-related accident and appellant had severe low back pain into the
lower extremities, worse on the left than the right. An x-ray study of the left hip was
unremarkable and x-ray studies of the lumbar spine revealed mild spondylosis most pronounced
at L4-5 associated with severe degenerative disc disease and left facet joint arthropathy.
Dr. Perry opined that appellant’s low back pain and left sciatica was a direct consequence of the
October 30, 2010 accident. In an addendum, he stated that an MRI scan study of the lumbar
spine was consistent with an extruded disc contacting the left descending S1 nerve root at the L5S1 level and advised surgical evaluation.
Diagnostic studies dated November 1, 2010 were received along with the February 14,
2011 operative and surgical pathology report and pre and postsurgery physical therapy reports.
In a January 4, 2012 letter, OWCP advised counsel that the March 8, 2011 report of
Dr. Bendo was not received. It afforded him 30 days in which to submit the report. In a
February 10, 2012 response, counsel advised that Dr. Bendo’s January 31, 2012 report supported
a causal relationship between appellant’s October 30, 2010 work injury and his low back
condition and surgery.
On January 31, 2012 Dr. Bendo stated that he first evaluated appellant on January 13,
2011 for severe lower back pain and left leg sciatica. Appellant reported that he slipped and fell
off a series of stairs on October 30, 2010 while working at Ellis Island. He had an MRI scan of

3

the lumbar spine on that date that showed evidence of a large disc herniation at L5-S1. A lumbar
computerized tomography (CT) myelogram showed evidence of advanced degeneration at L4-5
without significant foraminal and/or high-grade stenosis and evidence of a large extruded disc
herniation at L5-S1 to the left with severe displacement of a left S1 nerve root. Dr. Bendo stated
an impression of severe left S1 radiculopathy due to a large left lumbar disc extrusion at L5-S1.
Appellant’s persistent back and left leg pain with weakness prompted an urgent lumbar
microdiscectomy on February 14, 2011, which he performed. He had made steady progress
after that date. Dr. Bendo concluded that appellant sustained a work-related accident when he
slipped and fell on October 30, 2010 while working as a park ranger on Ellis Island. He opined
that the event precipitated a large disc herniation at L5-S1 that required urgent surgical attention,
which appellant underwent on February 14, 2011.
By decision dated March 5, 2012, OWCP denied modification of the January 21, 2011
decision. It found that the medical evidence submitted failed to provide sufficient rationale to
support a causal relationship between the diagnosed conditions and the October 30, 2010
incident.
In a July 20, 2012 letter, counsel requested reconsideration. He indicated that he was
enclosing a copy of the July 9, 2012 addendum report of Dr. Bendo with prior medical records
from Dr. Bendo previously submitted. Counsel contended that Dr. Bendo’s July 9, 2012 report
discussed the preexisting condition and why the work accident caused new medical findings
resulting in the aggravation of the prior condition.
Appellant submitted a March 8, 2011 physical therapy report and a September 22, 2009
cervical MRI scan and lumbar MRI scan.
In a July 9, 2012 report, Dr. Bendo opined that appellant’s need for surgery was directly
related to the October 30, 2010 work-related injury. He noted that while appellant had a
preexisting lumbar condition that was being treated by other doctors prior to the October 30,
2010 accident, the vast majority of his symptoms prior to the accident were axial in location
rather than radiculopathic. Dr. Bendo opined that the work-related accident aggravated his low
back condition resulting in greater disability, worse radiculopathic leg pain and the subsequent
need for surgery.
By decision dated May 24, 2013, OWCP denied modification of its prior decision as
there was no well-reasoned medical explanation with supporting objective findings as to how the
October 30, 2010 employment incident directly caused, aggravated (temporarily or
permanently), precipitated or accelerated a medical condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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

4

States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury2 was sustained in the performance of duty, as alleged
and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a fact of injury has been established. A
fact of injury determination is based on two elements. First, the employee must submit sufficient
evidence to establish that he or she actually experienced the employment incident at the time,
place and in the manner alleged. Second, the employee must submit sufficient evidence,
generally only in the form of medical evidence, to establish that the employment incident caused
a personal injury. An employee may establish that the employment incident occurred as alleged
but fail to show that his or her condition relates to the employment incident.4
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. 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.5
An award of compensation may not be based on surmise, conjecture or speculation or
upon appellant’s belief that there is a causal relationship between his condition and his
employment.6 To establish causal relationship, appellant must submit a physician’s report, in
which the physician reviews the factors of employment identified by appellant as causing his
condition and, taking these factors into consideration as well as findings upon examination and
appellant’s medical history, state whether these employment factors caused or aggravated his
diagnosed condition.7
ANALYSIS
OWCP accepted that the October 30, 2010 incident occurred as alleged. It denied
appellant’s claim on the basis that there was no well-rationalized medical explanation with
2

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident
or series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
3

See T.H., 59 ECAB 388 (2008). See also Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB
1143 (1989).
4

Id. See Shirley A. Temple, 48 ECAB 404 (1997); John J. Carlone, 41 ECAB 354 (1989).

5

Id. See Gary J. Watling, 52 ECAB 278 (2001).

6

William S. Wright, 45 ECAB 498, 503 (1993).

7

Calvin E. King, 51 ECAB 394, 401 (2000).

5

supporting objective findings as to how the October 30, 2010 employment incident caused or
aggravated a preexisting condition which resulted in a lumbar discectomy at L5-S1 on
February 14, 2011. The Board finds that he did not submit sufficient medical evidence to
support that he sustained an injury causally related to the October 30, 2010 employment
incident.8
The record reflects that appellant had a preexisting back condition. This is confirmed by
diagnostic testing and medical reports predating the October 30, 2010 incident, including the
February 24, 2010 and April 28, 2010 reports from Dr. Friedman. The x-rays, MRI scan and
other diagnostic testing, both predating and following the October 30, 2010 incident, as well as
the surgical report and surgical pathology report are diagnostic in nature and therefore do not
address causal relationship. As such, they are insufficient to establish appellant’s claim.
The medical reports submitted by Dr. Antell state that appellant presented for an
exacerbation of lower back pain, that he suffers from recurrent back pain and deny any recent
trauma. Dr. Antell’s November 1, 2010 report specifically states that appellant denied any
trauma to his back and his October 1, 2010 report predates the work injury of October 30, 2010.
On duty status report of November 10, 2010 and attending physician’s report of November 12,
2010, he diagnosed lumber disc herniation due to October 30, 2010 employment incident.
However, there was no well-reasoned medical explanation with supporting objective findings as
to how the October 30, 2010 employment incident caused or aggravated lumbar disc herniation.
Additionally, the exact location of the disc herniation was not mentioned. While OWCP
requested in a December 8, 2010 letter that Dr. Antell discuss the relationship between
appellant’s back condition and the October 30, 2010 work injury, Dr. Antell did not respond.
Thus, Dr. Antell’s reports are of limited probative value and insufficient to meet appellant’s
burden of proof to establish his claim.
In his January 13, 2011 report, Dr. Perry states that appellant fell at work on October 30,
2010 and opined that appellant’s low back pain and left sciatica was a direct consequence of the
October 30, 2010 work-related accident. While he provides in his addendum objective evidence
of an extruded disc contacting the left descending S1 nerve root at the L5-S1 level which
subsequently required surgical evaluation, he offered no rationale as to how appellant’s current
back condition was caused or aggravated by the employment incident. Lacking thorough
medical rationale on the issue of causal relationship, Dr. Perry’s report is of limited probative
value and insufficient to establish that appellant sustained an employment-related injury in the
performance of duty on October 30, 2010.9
Several reports were submitted from Dr. Bendo. In his January 13, 2011 report,
Dr. Bendo notes the history of injury, diagnoses severe left S1 radiculopathy secondary to left
lumbar disc herniation/extrusion L5-S1 and recommends an urgent lumbar microdiscectomy
decompression. However, no opinion on causal relationship is provided in the January 13, 2011

8

See Robert Broome, 55 ECAB 339 (2004).

9

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

6

report, the addendum or the subsequent progress reports.10 In his January 31, 2012 report,
Dr. Bendo states that the persistent back and left leg pain and weakness following the
October 20, 2010 slip and fall necessitated the urgent lumbar microdiscectomy left side L5-S1 on
February 14, 2011. He concluded, without providing any rationale, that the October 20, 2010
incident precipitated the disc herniation at L5-S1 and the subsequent surgery. In his July 9, 2012
report, Dr. Bendo explained that the October 20, 2010 work incident aggravated appellant’s
preexisting lumbar condition as the vast majority of appellant’s symptoms prior to the accident
were axial in location and were now radiculopathic in nature, which resulted in greater disability,
greater pain and the ultimate need for surgery. This explanation however is not sufficient to
establish causal relationship as Dr. Bendo failed to explain how the October 20, 2010 slip and
fall would have aggravated appellant’s preexisting lumbar condition and resulted in
radiculopathic symptoms which resulted in surgery. 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 incident or factor of employment.11 Dr. Bendo’s reports do not meet that standard
and are insufficient to meet appellant’s burden of proof.12
On appeal, counsel contends that the medical evidence of record from Dr. Bento is
sufficient to establish causal relationship between the October 30, 2010 employment incident and
an aggravation of appellant’s preexisting back condition. However, as previously noted,
Dr. Bendo failed to explain how the October 30, 2010 employment incident caused or aggravated
any diagnosed condition and present medical rationale in support of his opinion.13 Thus, he has
failed to meet his burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an injury on October 30, 2010 in the performance of duty.

10

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

11

See Lee R. Haywood, 48 ECAB 145 (1996).

12

See supra note 10.

13

James Mack, 43 ECAB 321 (1991).

7

ORDER
IT IS HEREBY ORDERED THAT the May 24, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 11, 2013
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

8