United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Grand Rapids, MI, Employer
__________________________________________

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

Docket No. 13-437
Issued: April 19, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 19, 2012 appellant filed a timely appeal from a July 27, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) which denied his
occupational disease claim and an October 23, 2012 decision which denied his request for
reconsideration. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
developed a right shoulder condition causally related to factors of his employment; and
(2) whether OWCP properly denied appellant’s September 3, 2012 claim for reconsideration
under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 17, 2012 appellant, then a 65-year-old mail carrier, filed an occupational disease
claim alleging that he developed a right shoulder strain as a result of reaching, pulling and
handling mail in high mailboxes at work. He first became aware of his condition and realized
that it resulted from his employment on February 28, 2012. Appellant first reported the alleged
injury to the employing establishment on April 17, 2012.2
By letter dated May 9, 2012, OWCP advised appellant that the evidence submitted was
insufficient to establish his claim and requested additional evidence. It requested that he submit
a detailed description of the employment activities that he believed caused his condition and
respond to specific questions. OWCP also requested that appellant submit a comprehensive
medical report, including a diagnosis, results of examinations and tests and a physician’s opinion
with medical rationale explaining the cause of his condition.
On June 1, 2012 appellant responded to specific questions from OWCP. He stated that
he had complained to his supervisor about the heightened mailboxes and wrote notes to his
customers requesting them to lower their mailboxes. Appellant explained that his supervisor told
the customers to install their mailboxes higher than average because the substitute carrier
requested higher mailboxes. He noted that he had taken a sick day every two weeks to allow his
shoulder to rest but it became a point of contention with his supervisor. Appellant reported that
none of his outside activities were repetitive in nature and could have caused damage to his right
shoulder. He explained that he had previous left arm surgery and underwent rehabilitation. The
rehabilitation resolved both arms and shoulders, which lasted two years, before his right arm
began to hurt.
In an April 16, 2012 report, Dr. Gilbert A. Noirot, a Board-certified orthopedic surgeon,
related appellant’s complaints of right shoulder pain, which caused inability to sleep and
worsened when he raised his arm above shoulder level. He reviewed appellant’s history and his
examination revealed a popping and clicking sound in appellant’s right shoulder but no
numbness or tingling in the arm, hand or fingers. Dr. Noirot observed pain, stiffness and
tenderness on palpation. Speed’s test was positive and pain was elicited during Neer
impingement and Hawkins-Kennedy tests. Dr. Noirot diagnosed right subacromial bursitis, right
shoulder impingement and right bicipital tendinitis. He explained that the injury occurred over
the years while working for the employing establishment.
In an April 17, 2012 clinical note, Dr. Noirot noted that x-rays of appellant’s right
shoulder revealed no fractures, subluxations, arthrosis or dislocation. He diagnosed right
shoulder impingement, right bicipital tendinitis and subacromial bursitis on the right. Dr. Noirot
stated that appellant had a history consistent with rotator cuff pathology and referred him to
physical therapy.
In a May 11, 2012 report, Dr. Anthony Pucci, a Board-certified surgeon, examined
appellant for complaints of right shoulder pain, decreased mobility and internal derangement.
2

The record reveals that appellant filed a previous traumatic injury claim (File No. xxxxxx388) and two
occupational disease claims (File Nos. xxxxxx006 & xxxxxx789).

2

He noted that a magnetic resonance imaging (MRI) scan revealed degenerative hypertrophy of
the acromioclavicular joint with some narrowing of the subacromial interspace and partial tear of
the tendon. Dr. Pucci diagnosed partial tear associated with distal supraspinatus tendon and
degenerative hypertrophy of the acromioclavicular joint. He performed a right shoulder
arthrogram injection.
In May 16 and 21, 2012 reports, Dr. Noirot reexamined appellant for his right shoulder
and complaints of pain and weakness. Upon examination, he observed tenderness on palpation
and pain on motion. Neer impingement and Hawkins-Kennedy impingement test also produced
pain. Dr. Noirot noted that an MRI scan of appellant’s right shoulder revealed a partial tear and
tendinopathy associated with the distal supraspinatus tendon and degenerative hypertrophy of the
neuromicroclavicular joint. Dr. Noirot diagnosed right shoulder impingement, partial tear of the
right rotator cuff tendon, right bicipital tendinitis and right subacromial bursitis.
In a decision dated July 27, 2012, OWCP denied appellant’s claim. It accepted that his
duties as a letter carrier required repetitive use of the right shoulder and that appellant was
diagnosed with a right shoulder condition but denied his claim finding insufficient medical
evidence to establish that his right shoulder condition was causally related to his employment.
On September 3, 2012 appellant requested reconsideration. No additional evidence was
received.
By decision dated October 23, 2012, OWCP denied appellant’s request for
reconsideration finding that no evidence was submitted sufficient to warrant further merit review
under 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence3 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.4 In an occupational disease claim, appellant’s burden requires
submission of the following: (1) a factual statement identifying employment factors alleged to
have caused or contributed to the presence or occurrence of the disease or condition; (2) medical
evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.5

3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

4

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
5

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

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Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.6 The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.7
ANALYSIS -- ISSUE 1
Appellant alleged that his right shoulder condition resulted from his duties as a mail
carrier. OWCP accepted that his duties included repetitive use of his right arm in order to reach,
pull, and handle mail in high mailboxes and that he was diagnosed with a right shoulder
condition. It denied appellant’s claim finding insufficient medical evidence to establish that his
right shoulder condition was causally related to his employment. The Board finds that he failed
to provide sufficient medical evidence to establish that he developed a right shoulder condition
as a result of his employment duties.
Appellant submitted various reports by Dr. Noirot, who noted appellant’s complaints of
right shoulder pain and reviewed his history. He noted that an x-ray revealed no fractures,
subluxations, arthrosis or dislocation. Upon examination, Dr. Noirot observed pain, stiffness,
and tenderness on palpation. Pain was elicited on Neer impingement and Hawkins-Kennedy
impingement tests. Dr. Noirot diagnosed right subacromial bursitis, right shoulder impingement
and right bicipital tendinitis. In an April 16, 2012 report, he opined that the injury occurred over
the years while working for the employing establishment. Although Dr. Noirot provides an
opinion on causal relationship, the Board finds that his opinion is not well rationalized. He fails
to describe appellant’s specific employment duties or adequately explain how those specific
duties caused or contributed to appellant’s diagnosed condition. The Board has found that
medical evidence that states a conclusion but does not offer any rationalized medical explanation
regarding the cause of an employee’s condition is of limited probative value on the issue of
causal relationship.8 Rationalized medical opinion evidence must relate specific employment
factors identified by the claimant to the claimant’s condition, with stated reasons by a physician.9
Without any medical rationale explaining the causal relationship between appellant’s right
shoulder condition and his specific employment duties, Dr. Noirot’s opinion on causal
relationship is of limited probative value and is insufficient to establish appellant’s claim.
Appellant also submitted a report by Dr. Pucci who examined appellant for right shoulder
pain and decreased mobility. He diagnosed partial tear associated with distal supraspinatus
tendon and degenerative hypertrophy of the acromioclavicular joint based on an MRI scan.
Although Dr. Pucci provides a diagnosis for appellant’s right shoulder condition he does not
provide any opinion on the cause of his condition. The Board has found that medical evidence
6

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

7

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

8

J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006).

9

L.F., Docket No. 10-2287 (issued July 6, 2011); Solomon Polen, 51 ECAB 341 (2000).

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that does not offer any opinion regarding the cause of an employee’s condition is of limited
probative value on the issue of causal relationship.10 Therefore, this report is also insufficient to
establish appellant’s claim.
On appeal, appellant alleges that the attached report stated that his right shoulder injury
was due to his work requirements. The Board’s jurisdiction, however, is limited to evidence that
was before OWCP at the time it issued its final merit decision.11 Since this evidence was
submitted after the July 27, 2012 denial decision, the Board may not consider this evidence for
the first time on appeal.12
Appellant may submit this or any 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.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation.13 OWCP’s regulations provide that OWCP may
review an award for or against compensation at any time on its own motion or upon application.
The employee shall exercise his or her right through a request to the district OWCP.14
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.15
A request for reconsideration must also be submitted within one year of the date of the
OWCP decision for which review is sought.16 A timely request for reconsideration may be
granted if OWCP determines that the employee has presented evidence or provided an argument
that meets at least one of the requirements for reconsideration. If OWCP chooses to grant

10

R.E., Docket No. 10-679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007).

11

See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57 ECAB 126 (2005).

12

The Board notes that, although the attached report is dated May 21, 2012 and is similar to Dr. Noirot’s May 21,
2012 report, it contains new findings and an opinion that was not included in the original report on the record.
13

5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB
372 (2008).
14

20 C.F.R. § 10.605; see also R.B., Docket No. 09-1241 (issued January 4, 2010); A.L., Docket No. 08-1730
(issued March 16, 2009).
15

20 C.F.R. § 10.606(b); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
16

20 C.F.R. § 10.607(a).

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reconsideration, it reopens and reviews the case on its merits.17 If the request is timely but fails
to meet at least one of the requirements for reconsideration, OWCP will deny the request for
reconsideration without reopening the case for review on the merits.18
ANALYSIS -- ISSUE 2
The Board finds that appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law; he has not advanced a relevant legal argument not previously
considered by OWCP; and he has not submitted relevant and pertinent new evidence not
previously considered by OWCP.
By decision dated July 27, 2012, OWCP denied appellant’s claim finding insufficient
medical evidence to establish that his diagnosed right shoulder condition was causally related to
factors of his employment. On September 3, 2012 appellant submitted a request for
reconsideration. No additional evidence was received. Appellant did not submit any evidence
sufficient to require OWCP to reopen his claim for consideration on the merits. He did not show
that OWCP erroneously applied or interpreted a specific point of law or advance a relevant legal
argument not previously considered by OWCP. Because appellant did not meet any of the
necessary requirements, the Board finds that his claim is not entitled to further merit review.
Therefore, OWCP properly refused to reopen his case for further consideration of the merits of
his claim under 5 U.S.C. § 8128.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a right shoulder condition causally related to factors of his employment. The Board
also finds that OWCP properly denied his September 3, 2012 request for reconsideration under
5 U.S.C. § 8128(a).

17

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

18

20 C.F.R. § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

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ORDER
IT IS HEREBY ORDERED THAT the October 23 and July 27, 2012 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: April 19, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 07-1462
Issued: February 8, 2008

Case Submitted on the Record

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

JURISDICTION
On March 9, 2007 appellant filed a timely appeal from January 18, 2007 merit decisions
of the Office of Workers’ Compensation Programs denying her claim for a schedule award.1
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award
decision.2
ISSUE
The issue is whether appellant has a permanent impairment of the upper extremities.

1

The Office issued two nearly identical decisions on January 18, 2007 denying appellant’s claim for a schedule
award.
2

In a decision dated January 8, 2007, the Office reduced appellant’s compensation on the grounds that her actual
earnings as a modified clerk effective May 18, 2007 fairly and reasonably represented her wage-earning capacity.
Appellant has not appealed this decision and therefore it is not before the Board at this time.

FACTUAL HISTORY
On March 11, 2004 appellant, then a 31-year-old part-time flexible clerk, filed an
occupational disease claim alleging that she sustained tennis elbow of the right forearm due to
factors of her federal employment. The Office accepted her claim for right forearm tendinitis.
Appellant sustained intermittent periods of disability until August 20, 2004 when she stopped
work. On October 19, 2004 she returned to light-duty employment but stopped work on May 4,
2005 and did not return. Appellant underwent a right carpal tunnel release on August 5, 2005
and a left carpal tunnel release on September 16, 2005. The Office expanded acceptance of the
claim to include bilateral carpal tunnel syndrome, thoracic outlet syndrome, neck strain and
bilateral elbow epicondylitis. It also authorized a right first rib resection, performed by
Dr. William Turnipseed, a Board-certified surgeon, on October 25, 2005.
An electromyogram (EMG) obtained on January 13, 2006 revealed abnormal findings
with “b[i]lateral median neuropathies of the wrists, sensory and demyelinating, minimal.”
Appellant returned to work with restrictions in April 2006.
In a report dated May 15, 2006, Dr. Timothy C. Romang, a physiatrist, indicated that he
treated appellant until November 29, 2004 for employment-related bilateral paracervical and
upper trapezius tension myalgia and upper limb lateral and medial epicondylitis. He found that
she had a 10 percent impairment of right elbow due to pain and loss of repetitive hand use and a
7.5 percent impairment of the left elbow for pain and loss of repetitious hand use. Dr. Romang
recommended an additional .5 percent impairment for myalgia. He noted that appellant
underwent electrodiagnostic treatment on July 11, 2005 which revealed moderate to severe
carpal tunnel syndrome on the right side and borderline carpal tunnel syndrome on the left side.
Dr. Romang declined to provide an impairment rating due to carpal tunnel syndrome as he was
not involved in the treatment of this condition.
By letter dated June 20, 2006, the Office requested that appellant submit an impairment
evaluation from her attending physician pursuant to the American Medical Association, Guides
to the Evaluation of Permanent Impairment (5th ed. 2001). The Office enclosed forms from the
A.M.A., Guides for the attending physician to complete.
On July 27, 2006 Dr. Turnipseed recommended repeat EMG testing based on appellant’s
complaints of continued ulnar symptoms. The Office accepted that she sustained a recurrence of
disability on August 30, 2006.
In an impairment evaluation dated September 15, 2006, Dr. Susan M. Schneider who
specializes in family practice, completed the forms from the A.M.A., Guides provided by the
Office. She based her findings on an August 14, 2006 physical therapist’s report. The physical
therapist listed range of motion measurements for the elbows, wrists and fingers, the results of
strength testing for the elbows and wrists and grip strength measurements. The physical
therapist found that appellant had normal two-point discrimination and “complain[ts] of pain and
paresthesia in the fifth digit, elbow and shoulder with Phalen’s testing.” Dr. Schneider provided
the range of motion and grip strength findings from the physical therapist and opined that the
date of maximum medical improvement was March 14, 2006. She found no atrophy and full

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strength of the elbow, except for left elbow extension. Dr. Schneider further found no atrophy of
the hand.3
On December 11, 2006 an Office medical adviser discussed appellant’s history of right
and left carpal tunnel releases. He reviewed the evidence of record, including the physical
therapy notes upon which Dr. Schneider based her evaluation. The Office medical adviser noted
that appellant had subjective complaints of paresthesia in her fingers bilaterally but had normal
sensation and range of motion of the wrists. He found that her grip strength measurements of
33.5 kilograms on the right and 26.8 kilograms on the left did not constitute an impairment under
Tables 16-31 and 16-34 of the A.M.A., Guides. The Office medical adviser concluded that there
was no objective evidence supporting a permanent impairment of the upper extremities.
In decisions dated January 18, 2007, the Office denied appellant’s claim for a schedule
award on the grounds that the evidence was insufficient to show that she had a permanent
impairment of the upper extremities.
LEGAL PRECEDENT
The schedule award provisions of the Federal Employees’ Compensation Act,4 and its
implementing federal regulations,5 set forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss, or loss of use, of scheduled members or
functions of the body. However, the Act does not specify the manner in which the percentage of
loss shall be determined. For consistent results and to ensure equal justice under the law for all
claimants, the Office has adopted the A.M.A., Guides as the uniform standard applicable to all
claimants.6 Office procedures direct the use of the fifth edition of the A.M.A., Guides, issued in
2001, for all decisions made after February 1, 2001.7
The A.M.A., Guides provides that after an optimal recovery time following surgical
decompression of carpal tunnel syndrome, three scenarios are possible: if positive clinical
findings of median nerve dysfunction are present, impairment is rated according to sensory or
motor deficits; with normal sensibility and opposition strength or abnormal sensory or motor
latencies or abnormal EMG testing, an impairment rating not to exceed five percent may be
justified; finally, with normal sensibility, opposition strength and nerve conduction studies, there
is no objective basis for an impairment rating.8

3

Dr. Schneider’s remaining findings relevant to the hand are nearly illegible.

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

20 C.F.R. § 10.404(a).

7

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

8

A.M.A., Guides 495.

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Proceedings under the Act are not adversarial in nature and the Office is not a
disinterested arbiter. While the claimant has the burden to establish entitlement to compensation,
the Office shares responsibility to see that justice is done.9
ANALYSIS
The Office accepted that appellant sustained right forearm tendinitis, bilateral carpal
tunnel syndrome, thoracic outlet syndrome, bilateral epicondylitis and neck strain causally
related to factors of her federal employment. She underwent a right carpal tunnel release on
August 5, 2005 and a left carpal tunnel release on September 16, 2005. Dr. Turnipseed
performed a right rib resection on October 25, 2005.
In an impairment evaluation dated May 15, 2006, Dr. Romang opined that appellant had
a 10 percent impairment of the right elbow due to pain and loss of use of repetitive hand use, a
7.5 percent impairment of the left elbow for pain and loss of repetitious hand use and an
additional ½ percent impairment for myalgia. He did not, however, reference the A.M.A.,
Guides in reaching his impairment determination. As Dr. Romang’s report does not conform to
the A.M.A., Guides, it is of diminished probative value.10
Dr. Schneider, in an impairment evaluation dated September 15, 2006, reviewed the
August 14, 2006 findings from a physical therapist. She listed range of motion measurements
for the elbows, wrists and fingers, the results of strength testing for the elbows and wrists and
grip strength measurements. Dr. Schneider found no atrophy of the elbow or hand and loss of
left elbow strength on extension. She found that appellant reached maximum medical
improvement on March 14, 2006.
An Office medical adviser reviewed the evidence of record. He discussed appellant’s
complaints of parenthesis in the fingers of both hands. The Office medical adviser found that
she had normal sensation and range of motion of the wrists and that appellant’s grip strength
revealed no impairment under the A.M.A., Guides. He concluded that there was no objective
evidence supporting a permanent impairment of the upper extremities. It is not clear, however,
that the Office medical adviser adequately reviewed the medical evidence in accordance with the
relevant standards of the A.M.A., Guides. He based his finding that appellant had no impairment
on her range of motion of the wrist and grip strength. The Board notes, however, that there
generally will be no ratings based on loss of motion or grip strength for carpal tunnel
syndrome.11 The A.M.A., Guides, provides that, after an optimal recovery time following
surgical decompression of carpal tunnel syndrome, three scenarios are possible: if positive
clinical findings of median nerve dysfunction are present, impairment is rated according to
sensory or motor deficits; with normal sensibility and opposition strength or abnormal sensory or
motor latencies or abnormal EMG testing, an impairment rating not to exceed five percent may
be justified; finally, with normal sensibility, opposition strength and nerve conduction studies,
9

Jimmy A. Hammons, 51 ECAB 219 (1999).

10

Mary L. Henninger, 52 ECAB 408 (2001).

11

A.M.A., Guides 494-95.

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there is no objective basis for an impairment rating.12 Appellant underwent bilateral carpal
tunnel releases in August and September 2005. The most recent EMG, obtained on January 13,
2006 showed sensory and demyelinating minimal median neuropathies of the wrists bilaterally.
The Office medical adviser did not discuss the January 13, 2006 diagnostic study suggesting that
appellant had medial nerve dysfunction or explain why the second scenario for determining
impairment due to carpal tunnel syndrome on page 495 of the A.M.A., Guides was inapplicable.
Proceedings under the Act are not adversarial in nature, nor is the Office a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, the Office
shares responsibility in the development of the evidence. It has the obligation to see that justice
is done.13 The case, consequently, will be remanded to the Office for a determination regarding
the extent of appellant’s upper extremity impairment. After such development as it deems
necessary, the Office should issue an appropriate decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

12

Id. at 495.

13

See Jimmy A. Hammonds, supra note 9.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 18, 2007 is set aside and the case is remanded for further
proceedings consistent with this decision of the Board.
Issued: February 8, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 10-617
Issued: November 9, 2010

Case Submitted on the Record

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

JURISDICTION
On January 4, 2010 appellant filed a timely appeal from a December 9, 2009 merit
decision of the Office of Workers’ Compensation Programs denying his claim. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an injury while in the performance of duty on
March 7, 2009.
FACTUAL HISTORY
On March 12, 2009 appellant, then a 49-year-old mail handler, filed a traumatic injury
claim alleging that he sustained an injury at about 5:20 a.m. on March 7, 2009 when the driver of
the forklift truck ran into him while he was pushing a postcon of empty buckets. He stated that
he was knocked backwards and sustained injury to his neck, shoulders, elbows and back. On the
witness portion of the claim form, as well as in a separate March 9, 2009 statement,

Robert A. Cox stated, “on the morning of March 7, 2009 at or about 4:30 a.m., I saw Wally
Norrell hit a postcon … that [appellant] was holding onto near the conveyor belt on 100#2.” In
his March 9, 2009 statement, Mr. Cox indicated that appellant continued to work and did not say
he was hurt or feeling any pain. The employing establishment advised appellant was on light
duty for a nonwork-related injury. It also controverted the claim.
In a March 10, 2009 statement, appellant stated that at approximately 5:40 a.m. on
March 7, 2009 he was pushing a postcon of empty buckets when he was struck head-on by a
forklift and knocked backwards. He stated that the incident triggered a relapse of pain and
physical damage for which he was already undergoing treatment. Appellant stated that he did
not immediately report the incident because he did not want to get the driver in trouble. He
stated that he was in a lot of pain over the weekend and that now his job performance was
affected.
In a March 11, 2009 statement, Wallace Norrell, the forklift operator, stated:
“On Saturday March 7, 2009 between 3:15 a.m. and 4:15 a.m., [I] was asked to
drop a stack of flat tubs. When I turn the corner I blew my horn. When I saw the
postcon, I blew my horn again. I could not see who was behind the postcon. It
was a white wall. I pull to the right to get out of the way. I slow down and come
to a stop. The postcon was pushed into the forklift. I saw it was [appellant] when
he came from behind the postcon. I ask him if he was ok and he said yes. I ask
him twice and he said yes both times. I blew the horn two times like I always
do.”
In a March 17, 2009 letter, the Office advised appellant that the information he had
submitted was insufficient to establish that he sustained an injury as alleged. It requested
additional factual and medical evidence from appellant.
The Office received numerous documents, including medical reports and claim of
appellant’s other work-related and nonwork-related accidents, as well as a copy of the accident
and incident reports of the March 7, 2009 incident.
In a March 7, 2009 treatment note, Dr. Jea Choi, a Board-certified internist, noted that
appellant was previously involved in a car accident in 2008 and was just involved in an accident
on the job involving a forklift. An assessment of neck pain and shoulder pain were provided. In
an April 6, 2009 duty status report, Dr. Choi noted that appellant was hit by forklift and advised
that the diagnosis due to injury was exacerbation of diagnosis codes 724.1 and 724.6.
In an April 7, 2009 statement, appellant indicated that he had requested the postal
inspector to see if video surveillance could be viewed. He also noted that Mr. Norrell has a
history of driving careless and falling asleep while driving.
By decision dated April 20, 2009, the Office denied appellant’s claim finding that he had
not established that he sustained an injury as alleged.
On April 27, 2009 appellant’s attorney disagreed with the Office’s decision and requested
a telephonic hearing, which was held August 13, 2009. At the hearing, appellant described the
2

March 7, 2009 incident and the medical care he received. He indicated that he was unsure of the
exact time when the incident occurred but he knew it was after lunch break. Appellant also
stated that he was out of work from July through November 2008 because of a hit and run
accident on July 25, 2008. No additional evidence was submitted.
By decision dated December 9, 2009, an Office hearing representative affirmed the denial
of appellant’s claim. The hearing representative found that there were too many inconsistencies
in the evidence regarding the claimed incident.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
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.2 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.3
To determine whether an employee sustained a traumatic injury in the performance of
duty, the Office must determine whether fact of injury is established. First, an employee has the
burden of demonstrating the occurrence of an injury at the time, place and in the manner alleged,
by a preponderance of the reliable, probative and substantial evidence.4 Second, the employee
must submit sufficient evidence, generally only in the form of medical evidence, to establish a
causal relationship between the employment incident and the alleged disability and/or condition
for which compensation is claimed.5 An employee may establish that the employment incident
occurred as alleged but fail to show that his or her disability and/or condition relates to the
employment incident.6
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.7 An injury
1

5 U.S.C. §§ 8101-8193.

2

Anthony P. Silva, 55 ECAB 179 (2003).

3

See Ellen L. Noble, 55 ECAB 530 (2004).

4

Delphyne L. Glover, 51 ECAB 146 (1999).

5

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).

6

Id.

7

See Louise F. Garnett, 47 ECAB 639 (1996).

3

does not have to be confirmed by eyewitnesses in order to establish that an employee sustained
an injury in the performance of duty, but the employee’s statements must be consistent with the
surrounding facts and circumstances and his or her subsequent course of action.8 An employee
has not met his or her burden of proof of establishing the occurrence of an injury when there are
such inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.9
Such circumstances as late notification of injury, lack of confirmation of injury, continuing to
work without apparent difficulty following the alleged injury and failure to obtain medical
treatment may, if otherwise unexplained, cast doubt on an employee’s statements in determining
whether a prima facie case has been established.10 However, an employee’s statement regarding
the occurrence of an employment incident is of great probative force and will stand unless
refuted by strong or persuasive evidence.11
ANALYSIS
The Office found that appellant did not establish the occurrence of the March 7, 2009
work incident. The Board finds, however, that the evidence is sufficient to establish that he
experienced the incident at the time, place and in the manner alleged.
On March 12, 2009 appellant filed a claim alleging that on March 7, 2009 he sustained an
injury to his neck, shoulder, elbows and back when the driver of a forklift ran into him while he
was pushing a postcon of empty buckets. His account of the March 7, 2009 incident is largely
confirmed by his statement and other witness statements, including that of the forklift driver. All
parties agree that appellant was pushing a postcon, which was struck by the forklift. The forklift
driver stated that the postcon was pushed into the forklift and appellant came from behind the
postcon. Mr. Cox, the witness, stated that the forklift driver hit the postcon appellant was on.
Although it remains unclear as to the exact time of the incident and who initiated the contact, it is
clear that contact occurred with the postcon appellant was pushing and the forklift and these
inconsistencies are not sufficient to impugn the validity of appellant’s claim. Thus, the evidence
establishes that the postcon that appellant was pushing struck the forklift on March 7, 2009, as
alleged.12 The issue, consequently, is whether the medical evidence establishes that he sustained
an injury due to the contact with the forklift on March 7, 2009.
The Board finds that appellant has not established that the March 7, 2009 employment
incident resulted in an injury. The determination of whether an employment incident caused an
injury is generally established by medical evidence.13 On March 7, 2009 Dr. Choi indicated that
appellant was just involved in an accident on the job involving a forklift and provided an
assessment of neck pain and shoulder pain. He did not, however, address the cause of
8

See Betty J. Smith, 54 ECAB 174 (2002).

9

Id.

10

Linda S. Christian, 46 ECAB 598 (1995).

11

Gregory J. Reser, 57 ECAB 277 (2005).

12

See Betty J. Smith, 54 ECAB 174 (2002).

13

Lois E. Culver (Clair L. Culver), 53 ECAB 412 (2002).

4

appellant’s pain or specifically relate such pain to the forklift incident. The Board has held that
medical evidence that does not offer any opinion regarding the cause of an employee’s condition
is of diminished probative value on the issue of causal relationship.14 Furthermore, Dr. Choi
diagnosed pain, which is a symptom, not a compensable diagnosis.15 On April 6, 2009 he noted
that appellant was hit by a forklift and opined that appellant suffered exacerbation of diagnosis
codes 724.1 and 724.6 as a result of the injury. However, without a firm diagnosis supported by
medical rationale and an opinion regarding causation, the report is of little probative value.16
Consequently, Dr. Choi’s reports are insufficient to meet appellant’s burden of proof.
An award of compensation may not be based on surmise, conjecture, speculation or upon
appellant’s own belief that there is a causal relationship between his claimed condition and his
employment.17 Appellant must submit a physician’s report in which the physician reviews those
factors of employment identified by him as causing his condition and, taking these factors into
consideration as well as findings upon examination and the medical history, explain how
employment factors caused or aggravated any diagnosed condition and present medical rationale
in support of his or her opinion.18 He failed to submit such evidence and therefore failed to
discharge his burden of proof.
CONCLUSION
The Board finds that appellant has not established that he sustained an injury on March 7,
2009 in the performance of duty causally related to factors of his federal employment.

14

A.D., 58 ECAB 149 (2006); Conrad Hightower, 54 ECAB 796 (2003).

15

C.F., 60 ECAB ___ (Docket No. 08-1102, issued October 10, 2008).

16

J.M., 58 ECAB 303 (2007); Willie M. Miller, 53 ECAB 697 (2002).

17

George H. Clark, 56 ECAB 162 (2004); Patricia J. Glenn, 53 ECAB 159 (2001).

18

D.D., 57 ECAB 734 (2006); Robert Broome, 55 ECAB 339 (2004).

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs
decision dated December 9, 2009 is affirmed as modified.
Issued: November 9, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE ARMY, TOBYHANNA )
ARMY DEPOT, Tobyhanna, PA, Employer
)
__________________________________________ )
P.M., Appellant

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

Docket No. 19-1618
Issued: March 16, 2020

Case Submitted on the Record

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

JURISDICTION
On July 25, 2019 appellant filed a timely appeal from an April 15, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 15, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish a hand, wrist,
cervical spine, or neck condition causally related to the accepted December 12, 2018 employment
incident.
FACTUAL HISTORY
On December 14, 2018 appellant, then a 69-year-old electronics mechanic, filed a
traumatic injury claim (Form CA-1) alleging that on December 12, 2018 he experienced sharp pain
in both hands and wrists, the right shoulder, and the neck when removing and replacing electronics
equipment while in the performance of duty. He noted that he disassembled components that could
not be removed with normal effort. On the reverse side of the claim form, appellant’s supervisor
acknowledged that he was in the performance of duty at the time of the claimed employment
incident. Appellant did not stop work. In a December 13, 2018 injury report, appellant’s
supervisor noted that the employment incident occurred while appellant was performing normal
work activity.
In a December 26, 2018 report, Dr. John Paglia, a Board-certified orthopedic surgeon,
noted appellant’s complaints of neck pain and numbness and pain in both hands and noted that
appellant’s symptoms began on December 12, 2018 while he was working on equipment at the
employing establishment. He examined appellant and diagnosed cervical disc degeneration, neck
pain, bilateral hand pain, and bilateral wrist pain. Dr. Paglia also diagnosed possible bilateral
carpal tunnel syndrome and possible right cervical radiculopathy. He referred appellant for
physical therapy. In an accompanying work status form, Dr. Paglia noted that appellant could
return to work with the restriction that he not lift more than 25 pounds.
In a January 23, 2019 report, Dr. Paglia saw appellant in follow up and noted that he had
started physical therapy. He diagnosed cervical disc degeneration, bilateral hand pain, and
bilateral wrist pain. Dr. Paglia again indicated that appellant had possible bilateral carpal tunnel
syndrome and possible right cervical radiculopathy.
Dr. Paglia noted in a February 20, 2019 report that appellant still had some pain in his right
arm and experienced intermittent numbness and tingling in both hands. He diagnosed neck pain,
bilateral hand pain, bilateral wrist pain, cervical disc degeneration, right cervical radiculopathy,
and bilateral carpal tunnel syndrome. Dr. Paglia recommended obtaining a magnetic resonance
imaging (MRI) scan of appellant’s cervical spine. He opined that appellant should continue not
lifting more than 25 pounds at work.
Appellant also submitted physical therapy treatment reports dated January 5 through
February 25, 2019.
In a development letter dated March 15, 2019, OWCP indicated that when appellant’s
claim was received it appeared to be a minor injury that resulted in minimal or no lost time from
work and, based on these criteria and because the employing establishment did not controvert
continuation of pay or challenge the case, payment of a limited amount of medical expenses was
administratively approved. It explained that it had reopened the claim for consideration because

2

appellant had not returned to work in a full-time capacity. OWCP requested additional factual and
medical evidence and provided a questionnaire for appellant’s completion. It afforded appellant
30 days to submit the necessary evidence.
A February 27, 2019 MRI scan of appellant’s cervical spine revealed severe reciprocal
marrow edema and multilevel secondary disc and facet changes with moderate-to-severe foraminal
stenosis at C3-4 and mild-to-moderate foraminal stenosis at C5-6. No disc herniation or canal
stenosis was found.
In a March 6, 2019 report, Dr. Paglia noted that appellant felt significant improvement
following physical therapy. He reported that appellant only had occasional minor discomfort in
his neck and the numbness in his hands had improved substantially. Appellant indicated that he
felt 98 percent improvement and that he could return to his normal work duties. Dr. Paglia
reviewed the February 27, 2019 MRI scan of appellant’s cervical spine and x-rays of appellant’s
wrists and cervical spine and diagnosed neck pain, bilateral hand pain, bilateral wrist pain, cervical
disc degeneration, right cervical radiculopathy, and bilateral carpal tunnel syndrome. He noted
that he found advanced degenerative changes of the right thumb metacarpophalangeal joint, mildto-moderate degenerative changes of the carpometacarpal joints in both hands, and mild-tomoderate degenerative disc changes, particularly at C5-6 and C6-7. Dr. Paglia also opined that
appellant experienced significant improvement with his right cervical radiculopathy and bilateral
carpal tunnel syndrome.
By decision dated April 15, 2019, OWCP denied appellant’s claim finding that the medical
evidence of record was insufficient to establish a causal relationship between his diagnosed
medical conditions and the accepted December 12, 2018 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,4 that an injury 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.5 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.6

3

Supra note 1.

4

T.G., Docket No. 19-1441 (issued January 28, 2020); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

I.M., Docket No. 19-1038 (issued January 23, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6
20 C.F.R. § 10.115; P.A., Docket No. 18-0559 (issued January 29, 2020); L.M., Docket No. 13-1402 (issued
February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).

3

To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.7 The second component is whether the employment incident caused a personal injury.8
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.9 The opinion of the physician must be based on a complete factual
and medical background of the claimant, must be one of reasonable medical certainty, and must
be supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment incident identified by the claimant.10 Neither the mere fact
that a disease or condition manifests itself during a period of employment, nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents, is sufficient to
establish causal relationship.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a hand, wrist,
cervical spine, or neck condition causally related to the accepted December 12, 2018 employment
incident.
Appellant submitted medical reports from his treating physician, Dr. Paglia, dated
December 26, 2018, and January 23, February 20, and March 6, 2019. Dr. Paglia diagnosed neck
pain, bilateral hand pain, bilateral wrist pain, cervical disc degeneration, right cervical
radiculopathy, and bilateral carpal tunnel syndrome. In so far as he offered pain as a diagnosis,
the Board has held that pain is a symptom, not a compensable medical diagnosis.12 Furthermore,
regarding the diagnoses of cervical disc degeneration, right cervical radiculopathy, and bilateral
carpal tunnel syndrome, Dr. Paglia noted a history of injury, but did not provide an opinion on
causal relationship in any of his reports. Medical evidence that does not offer an opinion regarding
the cause of a diagnosed condition is of no probative value on the issue of causal relationship.13
Accordingly, these reports are insufficient to establish appellant’s claim.
Additionally, appellant submitted physical therapy treatment reports dated January 7
through February 25, 2019. The Board has held that reports signed solely by physical therapists

7

A.S., Docket No. 18-1684 (issued January 23, 2020); Elaine Pendleton, 40 ECAB 1143 (1989).

8

M.L., Docket No. 18-0153 (issued January 22, 2020); John J. Carlone, 41 ECAB 354 (1989).

9

T.G., supra note 4; Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10

I.M., supra note 5; Leslie C. Moore, 52 ECAB 132 (2000).

11

K.N., Docket No. 18-0060 (issued January 22, 2020); Gary L. Fowler, 45 ECAB 365 (1994).

12

I.M., supra note 5.

13

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

4

are of no probative value as physical therapists are not considered physicians as defined under
FECA.14 These reports are thus insufficient to establish appellant’s claim.
Finally, appellant submitted a February 27, 2019 MRI scan of his cervical spine which
revealed severe reciprocal marrow edema and multilevel secondary disc and facet changes with
moderate-to-severe foraminal stenosis at C3-4 and mild-to-moderate foraminal stenosis at C5-6.
The Board has held that a diagnostic study, like an MRI scan, lacks probative value on the issue
of causal relationship as it does not provide an opinion as to whether the accepted employment
incident was sufficient to have caused a diagnosed condition.15 As such, this evidence is
insufficient to establish appellant’s claim.
As appellant has not submitted rationalized medical evidence explaining the causal
relationship between his diagnosed medical conditions and the accepted December 12, 2018
employment incident, the Board finds that he has not met 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 has not met his burden of proof to establish a hand, wrist,
cervical spine, or neck condition causally related to the accepted December 12, 2018 employment
incident.

14
Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2). See also David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician
assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA); D.H., Docket
No. 18-0072 (issued January 21, 2020) (physical therapists are not considered physicians under FECA).
15

M.L., supra note 8.

5

ORDER
IT IS HEREBY ORDERED THAT the April 15, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 16, 2020
Washington, DC

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

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

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

6


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

)
)
)
)
)
)
)
)

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

Docket No. 15-225
Issued: April 1, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On November 10, 2014 appellant, through her attorney, filed a timely appeal from the
August 5, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant is entitled to a schedule award for her October 12, 1988
injury-related back and right leg contusions.
FACTUAL HISTORY
On October 12, 1988 appellant, then a 33-year-old letter carrier, sustained a traumatic
injury in the performance of duty when she was struck by a bicyclist and fell on her back. She
returned to regular duty a few days later. OWCP accepted appellant’s claim for back and right
leg contusions.
1

5 U.S.C. § 8101 et seq.

Twenty-three years later, on September 7, 2011, appellant filed a schedule award claim.
Dr. Arthur F. Becan, Jr., an orthopedic surgeon, related her history, including minimal bulging
annuli at L3-4 and L4-5 in 1992. In 1995 appellant was found to have posterior spondylosis in
the lower lumbar spine causing central canal encroachment, mild disc bulge posterolaterally on
the right L5-S1, and mild disc bulge posterolaterally at L4-5 in the inferior neural foramen. In
1996 she was found to have chronic L4 and L5 radiculopathy on the right. A study in 1999
revealed degenerative disc disease and bulging of the L4-5 and L5-S1 disc spaces.
Dr. Becan described his findings on examination and found that the work-related injury
of October 12, 1988 was the competent producing factor for appellant’s current subjective and
objective findings. He evaluated her and found that she had a 42 percent impairment of her right
lower extremity and a 22 percent impairment of her left lower extremity.
An OWCP medical adviser reviewed Dr. Becan’s evaluation and agreed with impairment
ratings. He found, however, that Dr. Becan’s findings seemed “out of touch” with earlier
medical reports in the file. The medical adviser noted that the examination was performed a
couple of decades after the work injury and that there was a 12-year gap between Dr. Becan’s
examination and the most recent examination in 1999. The 1999 examination revealed only
subjective complaints. There were no sensory deficits, and there was no mention of any motor
loss. This led the medical adviser to ask: “If the claimant had all the motor and sensory deficits
that Dr. Becan found, when did they develop?” He also wondered why no one operated to
decompress the involved nerve roots if severe deficits were present, and whether there were any
medical reports since 1999. The medical adviser recommended a second opinion examination.
OWCP found a conflict between Dr. Becan and the medical adviser. It referred
appellant, together with the medical record and a statement of accepted facts, to Dr. Edward B.
Krisiloff, a Board-certified orthopedic surgeon, for an impartial medical examination.
Dr. Krisiloff saw appellant on October 8, 2013. He reviewed her medical record and the
statement of accepted facts. Dr. Krisiloff related appellant’s history and current complaints. He
described his findings on physical examination and noted that imaging studies revealed
degenerative changes and minimal bulging of discs but no apparent significant encroachment on
the neural elements. It was Dr. Krisiloff’s opinion that appellant had recovered from the
accepted lower back contusion and right leg contusion within approximately 10 weeks of the
October 12, 1988 work injury. Dr. Krisiloff found that appellant was currently suffering from a
degenerative condition of her lower back, which was not the result of the work injury as the
injury caused no fracture or herniated disc, and nerve studies were normal. Moreover,
appellant’s degenerative condition currently showed no objective findings on examination.
Dr. Krisiloff noted no evidence of neurologic deficit in 1988 and 1989, and no objective findings

2

in 1996 and 1998. He concluded that the medical record and physical examination did not
support an expansion of the claim to include any other medical condition. Dr. Krisiloff added:
“If we are to take into account the claimant’s history of injury over 20 years ago,
her radiographic studies and her nerve testing, we can state within a reasonable
degree of medical probability that the claimant has no permanency of her lower
extremities. The examination performed by Dr. Becan in 2011 and his
determination of permanency is based entirely on subjective findings. In my
opinion it therefore has no clinical validity. If we look at the weight of the
medical evidence in this case it becomes quite clear.”
In a decision dated January 31, 2014, OWCP denied appellant’s schedule award claim
due to the lack of a measurable impairment. Appellant requested a hearing.
By report dated June 6, 2014, Dr. Becan stood by his earlier report. He recalculated
appellant’s impairment and found a 36 percent impairment of the right lower extremity and a 24
percent impairment of the left lower extremity. Dr. Becan noted that motor strength should be
graded from zero to five and sensory examination should be performed using Semmes-Weinstein
monofilament testing. He added that Dr. Krisiloff did not indicate specific motor groups, nor did
he grade motor strength or sensory deficits.
In a decision dated August 5, 2014, an OWCP hearing representative affirmed the
January 31, 2014 decision. She found that a conflict arose between Dr. Becan and the medical
adviser on the issue of impairment. The hearing representative also found that Dr. Krisiloff, the
impartial medical specialist, provided a reasoned opinion discussing the historical evidence of
record.
Counsel argues that OWCP should have expanded appellant’s claim to include lumbar
radiculopathy and disc displacement early on in the claims process. He argues that it should
have included in the statement of accepted facts that appellant sustained a recurrence of disability
and was paid compensation for wage loss from 1995 through 1999, a period during which
appellant was receiving treatment for radiculopathy. Counsel further argues that Dr. Krisiloff’s
opinion cannot carry the weight of the evidence: Dr. Krisiloff’s physical examination was
almost nonexistent, speculative, he did not identify what tests he performed or the muscle groups
tested, and he made no reference to the American Medical Association, Guides to the Evaluation
of Permanent Impairment (6th ed. 2009).
LEGAL PRECEDENT -- ISSUE 1
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.2 Section 8107 provides that if there is
permanent disability involving the loss or loss of use of a member or function of the body, the
claimant is entitled to a schedule award for the permanent impairment of the scheduled member
or function.3 A claimant seeking compensation under FECA has the burden to establish the
2

Id. at § 8102(a).

3

Id. at § 8107(a).

3

essential elements of her claim by the weight of the reliable, probative, and substantial evidence.4
A claimant seeking a schedule award under section 8107, therefore, has the burden to establish
that he or she sustained a permanent impairment of a scheduled member or function as a result of
an injury sustained while in the performance of duty.5
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a back contusion and a right leg contusion when
a bicyclist struck her on October 12, 1988, causing her to fall on her back. It has accepted no
other medical condition as a result of the work injury. Counsel notes that OWCP accepted a
recurrence of disability in 1995 and paid compensation for wage loss, but the Board has held that
the payment of compensation does not, in and of itself, constitute acceptance of a particular
condition or disability in the absence of evidence from OWCP indicating that a particular
condition or disability has been accepted as work related.6 Back right leg contusions are the only
accepted injuries in the case. OWCP did not expand its acceptance to include degenerative disc
disease of the lumbar spine, spondylosis, bulging discs, or radiculopathy.
Accordingly, when appellant filed her schedule award claim, the issue presented was
simply whether the accepted contusions had caused permanent impairment to a scheduled
member of the body. Dr. Becan, the orthopedic surgeon, who examined appellant 23 years after
the work injury, did not report that she continued to suffer from these contusions. He made no
finding of contusion on physical examination, and he diagnosed no back or right leg contusion.
Dr. Becan based his evaluation of impairment instead on motor and sensory nerve deficits
stemming from a low back condition that was not accepted as an injury sustained in the
performance of duty.
Dr. Krisiloff, an orthopedic surgeon and independent medical examiner, reviewed
appellant’s medical record and the statement of accepted facts. He found that she had recovered
from the accepted lower back contusion and right leg contusion within approximately 10 weeks
of the 1988 work incident. Dr. Krisiloff explained that appellant’s current symptoms arose from
a degenerative condition of her lower back. He is not considered an impartial medical specialist
on the issue of contusion-related residuals because there was no conflict on whether she
continued to suffer from the soft-tissue injuries she sustained in 1988. Dr. Becan certainly never
found that appellant did suffer from the soft-tissue injuries. Dr. Krisiloff nonetheless carries the
weight of the medical opinion evidence as to permanent impairment because he addressed the
issue directly, and his opinion is consistent with the nature of the accepted condition, appellant’s

4

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

5

See, e.g., Ernest P. Govednik, 27 ECAB 77 (1975) (no medical evidence that the employment injury caused the
claimant to have a permanent loss of use of a lower extremity or any other member of the body specified in the
schedule).
6

M.C., Docket No. 12-64 (issued May 10, 2012); Gary L. Whitmore, 43 ECAB 441 (1993).

4

prompt return to regular duty, and her lack of continuing medical attention for the accepted
contusions.7
As there is no evidence that the accepted contusions in October 1988 caused permanent
impairment to a scheduled member of the body, the Board finds that appellant is not entitled to a
schedule award. The Board will affirm OWCP’s August 5, 2014 decision on the issue of
permanent impairment.
Appellant may request a schedule award based on evidence of a new exposure or medical
evidence showing progression of an employment-related condition resulting in permanent
impairment or increased impairment.
CONCLUSION
The Board finds that appellant is not entitled to a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the August 5, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 1, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board
7

See e.g., J.B., Docket No. 10-1216 (issued March 2, 2011), where the Board found that OWCP improperly
declared a conflict in medical opinion as neither the medical adviser, nor the second opinion physician provided a
probative medical opinion using the A.M.A., Guides. Thus, the Board found that the physician identified as an
impartial medical specialist was actually a second opinion physician whose opinion carried the weight of the
medical evidence.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
DEPARTMENT OF COMMERCE, BUREAU
OF THE CENSUS, Jeffersonville, IN, Employer
__________________________________________

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

Docket No. 14-1787
Issued: December 1, 2014

Case Submitted on the Record

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

JURISDICTION
On August 11, 2014 appellant, through her attorney, filed a timely appeal from a June 5,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying her
claim for a schedule award. 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 has a permanent impairment of her right ring finger or
right upper extremity, entitling her to a schedule award.
FACTUAL HISTORY
On February 22, 2011 appellant, then a 51-year-old geography clerk, filed a traumatic
injury claim alleging that on February 9, 2011 she fractured a bone in her right hand. She

1

5 U.S.C. § 8101 et seq.

stopped work on February 9, 2011 and returned to work on February 11, 2011. OWCP accepted
the claim for a closed fracture of the right ring finger phalanx.
On June 9, 2011 Dr. Rodrigo Moreno, an orthopedic surgeon, related that appellant was
doing well after her fracture of the right ring finger. He found full range of motion of the right
ring finger and grip strength of 55 of the right hand and 66 of the left hand. Dr. Moreno opined
that appellant was at maximum medical improvement and released her to return for further
treatment as necessary.
Appellant worked until her term appointment ended on September 30, 2011.
February 7, 2013 she filed a claim for a schedule award.

On

By letter dated February 12, 2013, OWCP requested that appellant submit an impairment
evaluation addressing the extent of any permanent impairment in accordance with the American
Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed. 2009)
(A.M.A., Guides).
In a report dated April 25, 2013, Dr. Moreno evaluated appellant for symptoms of trigger
finger of the right ring finger for the past year following a fracture at work two years earlier. He
diagnosed right ring finger tenosynovitis and found that she could perform her usual
employment.
On May 31, 2013 Dr. Moreno requested that right ring finger tenosynovitis “be added to
[appellant’s] claim as this condition is a result of her previous work-related injury of right ring
finger proximal phalanx fracture.”
In an impairment evaluation dated June 13, 2013, Dr. Martin Fritzhand, a Board-certified
independent examiner, discussed appellant’s work-related fracture and subsequent treatment with
a cast. Appellant complained of continued pain and discomfort with loss of grip strength and
tingling and achiness of the finger. Dr. Fritzhand stated, “On examination of the right hand, the
proximal phalanx of the right ring finger is extremely tender to palpation. The finger itself is
weak and does not participate in grip. Pinprick and light touch are diminished over both the
proximal and middle phalanges of the right ring finger.” Using the sixth edition of the A.M.A.,
Guides, he identified the diagnosis as a class 1 proximal phalanx fracture using Table 15-2 on
page 393, the digit regional grid. Dr. Fritzhand applied grade modifiers of 2 for functional
history based on a QuickDASH score of 50, a grade modifier of 1 for physical examination and a
grade modifier of 1 for clinical studies. Utilizing the net adjustment formula, he moved the
default value one place to the right to find a seven percent impairment of the digit, or a one
percent permanent impairment of the right upper extremity.
On September 19, 2013 OWCP requested that an OWCP medical adviser review the
medical evidence and provide an opinion on Dr. Fritzhand’s June 13, 2013 impairment
evaluation. In an accompanying statement of accepted facts, it identified right ring finger
tenosynovitis as a nonemployment-related condition. On September 24, 2013 Dr. Morley
Slutsky, a Board-certified orthopedic surgeon and OWCP medical adviser, reviewed
Dr. Moreno’s June 9, 2011 report finding that appellant was at maximum medical improvement
with normal range of motion and grip strength and no tenderness or pain. He related that she

2

would have no impairment based on the findings by Dr. Moreno on June 9, 2011. Dr. Slutsky
noted that Dr. Fritzhand did not explain why appellant’s condition had deteriorated since she
reached maximum medical improvement (MMI). He recommended a second opinion
examination as “Dr. Fritzhand’s findings may represent a temporary exacerbation as opposed to
the claimant’s maximal effort at MMI.”
By decision dated September 25, 2013, OWCP denied appellant’s claim for a schedule
award on the grounds that the medical evidence did not support that she had a permanent
impairment of the right upper extremity.
On October 1, 2013 appellant, through her attorney, requested a telephone hearing before
an OWCP hearing representative. At the hearing, held on March 17, 2014, counsel maintained
that Dr. Slutsky recommended a second opinion examination and further asserted that his
opinion was biased.
In a decision dated June 5, 2014, an OWCP hearing representative affirmed the
September 25, 2013 decision.
On appeal, appellant’s attorney contends that an OWCP medical adviser inappropriately
weighed the facts and consistently found a lower percentage of impairment.
LEGAL PRECEDENT
The schedule award provision of FECA,2 and its implementing federal regulations,3 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 for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.4 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.5
The sixth edition requires identifying the impairment Class of Diagnosis (CDX), which is
then adjusted by grade modifiers based on Functional History (GMFH), Physical Examination
(GMPE) and Clinical Studies (GMCS).6 The net adjustment formula is (GMFH-CDX) +
(GMPE-CDX) + (GMCS-CDX).

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

Id. at § 10.404(a).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
6

A.M.A., Guides 494-531.

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Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility to see that justice is done.7 The nonadversarial policy of proceedings under
FECA is reflected in the regulations at section 10.121.8
ANALYSIS
OWCP accepted that on February 9, 2011 appellant sustained a fracture of the phalanx of
the right ring finger. On June 9, 2011 Dr. Moreno found that she was at maximum medical
improvement and released her to resume her regular employment duties. He measured full range
of motion of the right ring finger and grip strength of 55 on the right and 66 on the left.
On April 25, 2013 Dr. Moreno diagnosed right ring finger tenosynovitis. By letter dated
May 31, 2013, he opined that the right ring finger tenosynovitis resulted from appellant’s
employment-related fracture of the proximal phalanx of the right ring finger. Dr. Moreno
requested expansion of the claim to include that condition.
Appellant requested a schedule award and, in support of her claim, submitted a June 13,
2013 impairment evaluation from Dr. Fritzhand, who found significant tenderness to palpation of
the proximal phalanx of the right ring finger with decreased sensation to pinprick and light touch.
Dr. Fritzhand identified the diagnosis as a class 1 proximal phalanx fracture pursuant to Table
15-2 of the A.M.A., Guides, which yielded a default value of six percent impairment. After
applying grade modifiers, he concluded that appellant had a seven percent impairment of the
right ring finger or one percent impairment of the right upper extremity.
Dr. Slutsky, an OWCP medical adviser, reviewed the evidence on September 24, 2013
and opined that there was a significant discrepancy between Dr. Moreno’s finding in his June 9,
2011 report that appellant had good grip strength and normal range of motion and
Dr. Fritzhand’s June 13, 2013 examination findings of tenderness and loss of sensation and grip
strength.9 However, he did not discuss Dr. Moreno’s April 25 and May 31, 2013 reports
diagnosing tenosynovitis of the right ring finger due to the work-related fracture. In the
statement of accepted facts provided to Dr. Slutsky, OWCP indicated that the right ring finger
tenosynovitis was a nonemployment-related condition but did not explain what medical evidence
it relied upon in reaching its determination. Additionally, Dr. Slutsky recommended that OWCP
refer appellant for a second opinion examination to determine the extent of any permanent
impairment; however, OWCP did not develop the evidence as suggested.
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence to see that justice is done.10 The Board
finds that the case is not in posture for decision regarding the extent of any permanent
7

Jimmy A. Hammons, 51 ECAB 219 (1999).

8

20 C.F.R. § 10.121.

9

Dr. Moreno found significantly reduced grip strength on the right side as opposed to the left.

10

Phillip L. Barnes, 55 ECAB 426 (2004).

4

impairment. On remand, OWCP should refer appellant for an impairment evaluation to
determine whether she sustained a permanent impairment of the right ring finger due to her
accepted February 9, 2011 employment injury. It should further consider whether her claim
should be expanded to include tenosynovitis of the right ring finger. Following this and such
further development as deemed necessary, OWCP should issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 5, 2014 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: December 1, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.E., Appellant
and
GENERAL SERVICES ADMINISTRATION,
PUBLIC BUILDING SERVICES,
Los Angeles, CA, Employer
__________________________________________

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

Docket No. 12-1417
Issued: January 22, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 18, 2012 appellant filed a timely appeal from a May 30, 2012 merit decision of
the Office of Workers’ Compensation Programs (OWCP) denying his claim for a consequential
injury. 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 that his claim for a
consequential left knee injury causally related to an August 22, 1979 employment injury.
On appeal appellant contends that the evidence establishes that he sustained a
consequential left knee injury causally related to an August 22, 1979 employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 22, 1979 appellant, then a 32-year-old police officer, filed a traumatic injury
claim alleging that he injured his low back that day while lifting a handcuffed suspect from the
floor. OWCP accepted the claim for a low back strain, aggravation of L4 degenerative disc
disease and authorized lumbosacral decompression surgery, which occurred on October 7, 1984
and March 3, 1998. It accepted consequential injuries of right knee contusion, aggravation of
preexisting right knee osteoarthritis, head contusion and headaches and authorized right knee
arthroscopic surgery, which was performed on October 29, 2009 and February 23, 2010.
Appellant received compensation and retired from federal service as of September 1, 2010.2
On April 14, 2008 appellant filed a claim for a recurrence of medical treatment related to
a fall he sustained on April 12, 2008 when his legs gave out while he was putting his walker into
his car. He fell forward from his feet, but his knees did not move. Appellant noted that his right
knee was bent forward more than the left knee and that his knees went in opposite directions.
In an April 15, 2008 report, Dr. Dina Zaza, a treating Board-certified physiatrist, reported
that appellant’s legs gave out while he was putting his walker into his car. She related that his
legs were hyperextended. Appellant fell into the car and had right knee pain since the fall.
Dr. Zaza diagnosed right knee pain as a result of his fall and referred appellant to Dr. Charles M.
Creasman, a treating Board-certified orthopedic surgeon, for appellant’s right knee pain.3
In a June 24, 2009 report, Dr. Zaza provided a history of the employment injury and
physical findings. She reported that appellant sustained an injury to both his knees when his legs
gave out while putting his walker into his car. Dr. Zaza attributed his fall and consequential
bilateral knee injury to his neurological leg compromise, which was due to the spinal stenosis he
developed as a result of his injury and surgeries. She explained that appellant’s low back pain
and spinal stensosis predisposed him to other injuries and bilateral leg weakness.
In a November 15, 2010 report, Dr. Ronald M. Lampert, a second opinion Board-certified
orthopedic surgeon, reviewed the medical evidence of record, history of injury, a statement of
accepted facts and set forth findings on physical examination. He diagnosed postoperative
lumbar fusion, postoperative total right knee arthroplasty, resolved left hip pain, resolved right
ankle pain and painful left knee with decreased motion. Appellant related injuring both his knees
on April 12, 2008 when he lost feeling in his legs while putting his walker into the car and fell
into the bumper. A physical examination revealed morbid obesity, markedly swollen legs and no
effusion in either knee. Dr. Lampert opined that appellant’s falls were due to his two back
surgeries, but concluded there was no evidence of a consequential left knee injury due to the
April 2008 fall.

2

On October 16, 2002 OWCP granted appellant a schedule award for a three percent permanent impairment of
the right lower extremity and a three percent permanent impairment of the left lower extremity.
3

In a June 5, 2008 report, Dr. Creasman noted that appellant fell in April 2008 and had continued right leg pain
since. He diagnosed bilateral knee pain, with the pain worse in the right knee. A review of x-ray interpretations
revealed osteoarthritis in both knees. On July 27, 2009 OWCP received a September 8, 2008 report from
Dr. Creasman which attributed appellant’s bilateral knee pain to an April 12, 2008 injury. Dr. Creasman reported
that appellant had significant left knee osteoarthritis and mild right knee osteoarthritis.

2

By decision dated January 3, 2011, OWCP accepted the conditions of right ankle strain,
and left hip tendinitis, which were both resolved. It denied appellant’s claim for a consequential
left knee condition as it found the medical evidence was insufficient to establish causal
relationship.
On January 9, 2011 appellant requested an oral hearing before an OWCP hearing
representative on the denial of his claim for a consequential left leg injury. He subsequently
requested a review of the written record.
By decision dated August 4, 2011, OWCP’s hearing representative set aside the
January 9, 2011 decision denying appellant’s claim for a consequential left leg injury and
remanded the case for further development. The hearing representative instructed OWCP to
obtain a supplemental opinion from Dr. Lampert on the issue of whether diagnostic arthroscopy
was required to determine whether appellant sustained a consequential left knee injury.
In a September 12, 2011 supplemental report, Dr. Lampert opined that a left knee
diagnostic arthroscopic was unnecessasry to determine whether appellant sustained a
consequential left knee injury. He attributed appellant’s left knee problems to his weight and the
normal progression of underlying osteoarthritis. Dr. Lampert noted that, at the time of
Dr. Zaza’s April 15, 2008 report, the physician only referenced right medial knee pain with no
mention of any left knee pain or problem.
By decision dated November 30, 2011, OWCP denied appellant’s claim for a
consequential left knee injury.
On December 3, 2011 appellant requested an oral hearing before an OWCP hearing
representative. A telephonic hearing was held on March 12, 2012.
In a February 12, 2012 report, Dr. Zaza opined that appellant’s bilateral knee condition
was a direct result of the April 12, 2008 fall. She noted that he was seen on April 15, 2008 for
complaints of bilateral knee pain after an April 12, 2008 incident in which appellant’s legs gave
out, both knees were hyperextended and he fell into his car. Dr. Zaza stated that appellant was
referred to Dr. Creasman who initially recommended right knee arthroscopy, which was
performed in October 2009. Dr. Creasman subsequently recommended left knee arthroscopy. A
physical examination revealed abnormal gait as a result of left knee flexion and pain. Dr. Zaza
opined that, while appellant had a history of knee osteoarthritis, she attibuted his bilateral knee
conditions to the April 12, 2008 incident.
By decision dated May 30, 2012, OWCP’s hearing representative affirmed the denial of a
consequential left knee injury.4

4

The Board notes that, following the May 30, 2012 hearing representative’s decision, OWCP received additional
evidence. However, the Board may only review evidence that was in the record at the time OWCP issued its final
decision. See 20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293
(2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB
373 (2003).

3

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.5
The subsequent injury is compensable if it is the direct and natural result of a compensable
primary injury.6 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.7
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”8 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of FECA, to resolve the conflict in the medical
evidence.9
ANALYSIS
OWCP accepted the claim for a low back strain, aggravation of L4 degenerative disc
disease and authorized lumbosacral decompression surgery, which occurred on March 3, 1998.
It subsequently accepted consequential injuries of right knee contusion, aggravation of
preexisting right knee osteoarthritis, head contusion and headaches and authorized right knee
arthroscopic surgery, which was performed on October 29, 2009 and February 23, 2010. The
issue on appeal is whether appellant sustained a consequential left knee condition due to his
accepted August 22, 1979 employment injury.
In his November 15, 2010 and September 12, 2011 reports, Dr. Lampert, an OWCP
second opinion Board-certified orthopedic surgeon, concluded that appellant’s April 12, 2008
fall did not cause a consequential left knee injury due to the April 2008 fall. Dr. Lampert, in a
September 12, 2011 supplemental report, attributed appellant’s left knee condition to his weight
and normal progression of osteoarthritis.
In her April 15, 2008, June 24, 2009 and February 12, 2012 reports, Dr. Zaza reported
that appellant’s fall on April 12, 2008 caused a hyperextension of both legs. In her June 24,
2009 and February 12, 2012 reports, she concluded that appellant sustained a bilateral knee
injury as a result of the April 12, 2008 fall. In her June 24, 2009 report, Dr. Zaza explained that
5

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

6

S.M., 58 ECAB 166 (2006); Debra L. Dillworth, 57 ECAB 516 (2006); Carlos A. Marrero, 50 ECAB 117
(1998); A. Larson, The Law of Workers’ Compensation § 10.01 (2005).
7

L.S., Docket No. 08-1270 (issued July 2, 2009); Kathy A. Kelley, 55 ECAB 206 (2004).

8

5 U.S.C. § 8123(a); see T.C., Docket No. 08-2112 (issued June 12, 2009).

9

J.J., Docket No. 09-27 (issued February 10, 2009); William C. Bush, 40 ECAB 1064 (1989).

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appellant’s fall and bilateral knee injury was attributable to a neurological compromise resulting
from the spinal stenosis appellant developed following his employment injury and resulting
surgeries. She stated that, while appellant had a history of knee osteoarthritis, she attributed his
bilateral knee conditions to the April 12, 2008 incident.
The Board finds a conflict in the medical opinion evidence between Dr. Zaza, appellant’s
treating physician, and Dr. Lampert, an OWCP referral physician.10 The Board will remand the
case to OWCP to prepare a statement of accepted facts and a list of questions and refer appellant
to an appropriate Board-certified physician for an impartial medical evaluation, pursuant to
5 U.S.C. § 8128(a), to determine whether appellant sustained a left knee consequential injury
resulting from the August 22, 1979 employment injury. Following this and any other further
development as deemed necessary, OWCP shall issue a de novo decision on appellant’s claim.
CONCLUSION
The Board finds this case is not in posture for a decision due to an unresolved conflict in
the medical opinion evidence.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 30, 2012 is set aside and the case remanded for further
proceedings consistent with the above opinion.
Issued: January 22, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

10

Bryan O. Crane, 56 ECAB 713 (2005).

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