United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.B., Appellant
and
DEPARTMENT OF AGRICULTURE, APHIS
VETERINARY SERVICES, Raleigh, NC,
Employer
__________________________________________

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

Docket No. 13-1866
Issued: March 7, 2014

Case Submitted on the Record

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

JURISDICTION
On August 7, 2013 appellant, through counsel, filed a timely appeal from a March 8,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP) terminating her
compensation benefits. 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 OWCP properly terminated appellant’s wage-loss
compensation and medical benefits effective December 18, 2011 on the grounds that she no
longer had any residuals or disability causally related to her accepted employment-related
injuries; and (2) whether appellant met her burden of proof to establish continuing disability after
the termination of compensation benefits on December 18, 2011.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case was previously before the Board. By decision dated March 28, 2011, the Board
reversed a January 29, 2010 OWCP decision terminating appellant’s wage-loss and medical
benefits effective February 14, 2010.2 The Board found that the report of Dr. Daniel Primm, Jr.,
the impartial medical examiner, was insufficient to resolve the conflict of medical opinion
between Dr. Vance N. True, appellant’s attending chiropractor, and Dr. Richard T. Sheridan, an
OWCP second opinion physician. The Board noted that it was unclear if Dr. Primm had
received the statement of accepted facts. The Board found that his report was not based on a
proper factual history and his opinion was not sufficiently rationalized as to whether appellant’s
accepted conditions of thoracic and lumbar sprains and cervical subluxation at C1 and C6 had
resolved. The findings of fact from the prior decision are hereby incorporated by reference.
On June 9, 2008 appellant, then a 55-year-old laboratory technician, filed a traumatic
injury claim (Form CA-1) alleging that she sustained a neck, shoulders, head, right knee and left
forearm injury that day when her foot became caught on the lip of a cooler causing her to fall
forward. By decision dated September 8, 2008, OWCP accepted the claim for thoracic and
lumbar sprains of the back and cervical subluxation at Cl and C6. Appellant stopped work and
was placed on the periodic rolls for temporary total disability effective September 29, 2008.
On April 26, 2011 OWCP referred appellant, a statement of accepted facts, the case file,
a medical conflict statement and a series of questions to Dr. Robert F. Baker, a Board-certified
orthopedic surgeon, for an impartial referee medical examination to resolve the conflict between
Dr. True and Dr. Sheridan.
In his June 5, 2011 medical report, Dr. Baker reviewed appellant’s past medical treatment
and diagnostic studies. He noted that on June 9, 2008 she was placing samples in a cooler when
she tripped over a step causing her to fall forward and hit her head. Appellant complained of
continued neck pain. Dr. Baker noted that a June 13, 2008 magnetic resonance imaging (MRI)
scan of the cervical spine showed no evidence of significant abnormality and an MRI scan of the
thoracic spine revealed normal. Furthermore, appellant’s June 13, 2008 MRI scan showed no
changes when compared to a preexisting August 7, 2003 MRI scan. Dr. Baker found no
objective diagnostic support for the diagnosis of cervical facet joint subluxation. Similarly, the
testing did not reveal any evidence of significant acute cervical, thoracic or lumbar disc
herniations, fractures or evidence of subluxation. Dr. Baker questioned why there was a prior
thoracic MRI scan performed in 2003 despite appellant’s assertions that she had no preexisting
spinal problems. He agreed with appellant’s evaluating physicians regarding the diagnoses of
soft tissue cervical, thoracic and lumbar sprain/strain. Dr. Baker found no evidence of
significant nerve root involvement in the cervical, thoracic or lumbar area and opined that
appellant most likely had underlying, allegedly asymptomatic, early degenerative arthritic
conditions of these spinal areas. From a purely symptomatic and subjective basis, he opined that
these conditions were most probably brought into a symptomatic state by the alleged incident.
Dr. Baker further stated that these types of common diagnoses resolved within a six-month time
frame. He found no objective basis for appellant’s complaints of pain which were from a purely
2

Docket No. 10-1127 (issued March 28, 2011).

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subjective symptomatic perspective. Given that the incident occurred approximately three years
prior, Dr. Baker stated that the aggravation was permanent in nature. He concluded that
appellant did not need permanent restrictions secondary to the incident of June 9, 2008 over and
above those already in place due to her nonoccupational chronic heart condition. Dr. Baker
found no objective evidence to find a material significant change in the anatomic structures of
appellant’s spine secondary to the June 9, 2008 employment incident.
Appellant submitted an August 8, 2008 medical report from Dr. True, her treating
chiropractor, who reported that, on June 9, 2008, appellant’s shoe became caught on the lip of a
cooler causing her to fall on her backside and hit her head. Immediately following the incident,
she complained of neck, shoulder and low back pain. Appellant sought emergency treatment and
followed up with Dr. Maria Pavez, a Board-certified neurologist, who referred her for
chiropractic treatment. Upon physical examination and review of x-rays, Dr. True diagnosed
subluxation of the cervical spine, cervical brachial syndrome and sprain/strain of the thoracic and
lumbar spine. He stated that appellant’s injuries were a direct result of the June 9, 2008 workrelated accident and that she required continued treatment.
On November 1, 2011 OWCP notified appellant of its proposal to terminate her
compensation benefits based on Dr. Baker’s opinion that she did not have any residuals or
disability connected to her June 9, 2008 employment injury. Appellant was provided 30 days to
submit additional information.
By letter dated November 28, 2011, appellant stated that she was submitting additional
medical evidence which supported her claim for disability. She resubmitted Dr. True’s
August 8, 2008 medical report, several scripts from Danville Cardiovascular Consultants and
physical therapy notes.
By decision dated December 16, 2011, OWCP terminated appellant’s compensation
benefits effective December 18, 2011 on the grounds that the weight of the medical evidence
rested with Dr. Baker who found that appellant did not continue to experience residuals of her
work-related injury.
On November 27, 2012 appellant requested reconsideration of the December 16, 2011
OWCP decision. She argued that her conditions were caused by the June 9, 2008 employment
incident and submitted new medical evidence in support of her claim.
In a November 18, 2012 report, Erik Drake, a physical therapist (PT), stated that there
was objective evidence of appellant’s condition through malarticulations in the spine and pelvis.
He further stated that a negative MRI scan was a poor tool to identify sources of pain as
malarticulations would not appear on an MRI scan.
By letter dated November 27, 2012, Dr. Robert P. Knetsche, Board-certified in
orthopedic surgery, reported that he had been treating appellant for chronic regional pain, right
lumbar back pain, left lumbar back pain and chronic bilateral lower extremity radicular pain
which appellant related to a work injury from four years ago. He stated that appellant’s lumbar
back pain and bilateral lower extremity radicular symptoms were consistent with neuropathictype radicular pain as well as potential Complex Regional Pain Syndrome/Reflex Sympathetic

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Dystrophy. As appellant had already gone through a period of injections, physical therapy,
chiropractic treatment and pain medication with little improvement, Dr. Knetsche recommended
a permanent implant of the spinal cord stimulator.
By decision dated March 8, 2013, OWCP affirmed the December 16, 2011 decision
terminating medical benefits. It noted that the weight of the medical evidence rested with
Dr. Baker who established that the injury and related residuals had resolved.
LEGAL PRECEDENT
Once OWCP has accepted a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.3 Having determined that an employee has a disability
causally related to his or her federal employment, it may not terminate compensation without
establishing either that the disability has ceased or that it is no longer related to the employment.4
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.5 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.6 Its burden of proof includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.7
ANALYSIS
OWCP accepted that appellant sustained a thoracic and lumbar sprain of the back and
cervical subluxation at C1 and C6. The issue is whether it properly terminated her compensation
benefits, effective December 18, 2011, as she did not have any residuals or disability of the
June 9, 2008 injury. The Board finds that OWCP failed to meet its burden of proof in
terminating appellant’s benefits.
OWCP determined that a conflict existed between Dr. True, appellant’s treating
chiropractor, and Dr. Sheridan, a second opinion referral physician, regarding the nature and
extent of appellant’s employment-related condition and disability. It referred appellant to
Dr. Baker for an impartial medical evaluation to resolve the conflict.8
In its December 16, 2011 and March 8, 2013 decisions, OWCP determined that appellant
no longer experienced residuals or disability from her June 9, 2008 injury finding that the weight
of the medical evidence rested with Dr. Baker’s report. The Board finds, however, that
3

Bernadine P. Taylor, 54 ECAB 342 (2003).

4

Id.

5

Roger G. Payne, 55 ECAB 535 (2004).

6

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

7

T.P., 58 ECAB 524 (2007); Furman G. Peake, 41 ECAB 351 (1975).

8

See R.A., Docket No. 09-1754 (issued May 24, 2010); Rose V. Ford, 55 ECAB 449 (2004).

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Dr. Baker’s opinion is insufficient to resolve the question of whether appellant continued to
suffer from any residuals or disability causally related to the accepted June 9, 2008 injury.
Dr. Baker’s report provided a review of appellant’s medical records and diagnostic
studies. He referenced a June 13, 2008 MRI scan of the cervical spine which showed no
evidence of significant abnormality and an MRI scan of the thoracic spine which was normal.
Dr. Baker found that the objective testing, which included plain x-rays and MRI scans, revealed
no evidence of any significant acute cervical, thoracic or lumbar disc herniations, fractures, or
evidence of subluxation. However, he failed to indicate -- the particular x-rays to which he
referred and did not note or summarize any previous x-rays when reviewing appellant’s medical
records. The reports of Dr. True provided a diagnosis of subluxation to exist as evidenced by
x-ray. Given that the opinion of Dr. True gave rise to the conflict of medical opinion, it is
important for Dr. Baker to review and summarize the diagnostic findings with specificity in
support of the opinions stated. As Dr. Baker’s report did not provide a thorough and detailed
medical history, his opinion is not sufficiently well rationalized to establish that appellant ceased
to have residuals of her employment injuries.9
The Board further notes that Dr. Baker’s opinion was unclear as to whether appellant has
residuals or disability from the June 9, 2008 injury. While Dr. Baker agreed with prior diagnoses
of soft tissue cervical, thoracic and lumbar sprain/strain, he opined that appellant most likely had
underlying, early degenerative arthritic conditions of the spinal areas. He opined that these
conditions were most probably brought into a symptomatic state by the accepted incident. The
Board notes that, although appellant may have had a preexisting degenerative arthritic spinal
condition, this does not negate the possibility that her condition was aggravated by the June 9,
2008 employment incident. Based on Dr. Baker’s report, it is unclear if appellant continued to
experience residuals from the June 9, 2008 employment incident due to aggravation of a
preexisting degenerative arthritic conditions of the spinal area. The Board has held that a
medical opinion not fortified by rationale is of limited probative value.10
Dr. Baker’s opinion is also unclear regarding whether appellant’s disability had resolved.
He stated that these types of very common diagnoses resolve within a six-month time. It is
unclear to which of appellant’s diagnoses Dr. Baker referred as he was diagnosed with soft tissue
cervical, thoracic and lumbar sprain/strain as well as early degenerative conditions. Dr. Baker’s
opinion is vague as to the diagnoses referenced and is speculative as he stated generally that such
conditions typically resolve within six months. He noted that given appellant’s subjective
complaints of pain from an injury which occurred three years ago, the aggravation was
permanent in nature. Dr. Baker’s opinion that common diagnoses resolve within a six-month
time frame is not consistent with his assertion that appellant’s aggravation was permanent in
nature. His opinion does not establish that appellant’s June 9, 2008 condition had resolved.
Given the deficiencies in Dr. Baker’s report, his opinion is of limited probative value and does
not resolve the conflict in medical opinion.11
9

V.C., Docket No. 11-1561 (issued February 15, 2012).

10

A.D., 58 ECAB 149 (2006).

11

See Johana McCarthy, 38 ECAB 680 (1987); William H. Slade, 13 ECAB 80 (1961).

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The Board therefore finds that OWCP erred by terminating appellant’s compensation in
its December 16, 2011 and March 8, 2013 decisions. The Board will reverse OWCP’s
determination terminating appellant’s medical and wage-loss compensation.
CONCLUSION
The Board finds that OWCP improperly terminated appellant’s compensation benefits.
ORDER
IT IS HEREBY ORDERED THAT the March 8, 2013 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: March 7, 2014
Washington, DC

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

Michael E. Groom, Alternate 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.N., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
LOUIS B. STOKES MEDICAL CENTER,
Brecksville, OH, Employer
__________________________________________

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

Docket No. 07-921
Issued: July 26, 2007

Case Submitted on the Record

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

JURISDICTION
On February 20, 2007 appellant filed a timely appeal from the July 20, 2006 merit
decision of the Office of Workers’ Compensation Programs and the January 16, 2007 decision of
the Office hearing representative, which denied his claim for compensation. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of his claim.
ISSUE
The issue is whether appellant sustained a pulmonary injury in the performance of duty
on March 7, 2006.
FACTUAL HISTORY
On May 17, 2006 appellant, then a 52-year-old criminal investigator, filed a claim
alleging that he sustained an injury to his lungs on March 7, 2006 when he was exposed to mold
or fungus in the performance of duty. He entered the Wade Park Records Room (Room H27) in
the course of his employment and noticed what appeared to be mold on the files and other

surfaces. Appellant remained in the room for approximately 15 minutes, and the following week
he was coughing and felt like he had the flu. He stated that everyone had what appeared to be
the flu, so he thought he had picked it up from a coworker. It became increasingly difficult for
appellant to breathe and he was diagnosed with double pneumonia, but antibiotics did not make
him better. When he told a doctor that he had found mold in the records room, the doctor told
him that might be what was causing his problem. Appellant stated that he never had a problem
with his lungs, but his past medical history included pneumonia in 1983.
The employing establishment acknowledged that the Room H27 was a respiratory hazard
and that appellant was exposed to mold contamination on March 7, 2006. There was flooding in
the room early in 2005 with subsequent mold growth on the records and walls. A mold
assessment conducted on May 23, 2005 found visible mold contamination on the medical files in
the room. Surface sample results collected on the medical files indicated numerous counts of
aspergillus/penicillium, Botrytis and hyphal fragments. Air samples indicated elevated levels of
aspergillus/penicillium and Stachybotrys. A contract for remediation was being awarded at the
time of appellant’s exposure.
On June 15, 2006 Dr. Sridhar K. Iyer, a Board-certified internist specializing in
pulmonary diseases, addressed the relationship between appellant’s occupational exposure to
mold and his respiratory condition:
“[Appellant] has been seen by me since March 17, 2006, when he was
hospitalized. [He] was exposed to a moldy area at workplace on March 7, 2006.
A few days later, [appellant] started getting congested and started coughing a lot.
He also had difficulty breathing and this got progressively worse. [Appellant]
was treated initially as an outpatient and he failed on this and hence, had to come
to the hospital and was hospitalized. He was treated vigorously with intravenous
antibiotics, etc. [Appellant’s] improvement was suboptimal. He was initially
discharged and later had to come back in with worsening respiratory status.
[Appellant] has had persistent symptoms. His oxygen level is low in his blood.
[Appellant] is constantly short of breath with minimal activity. [He] had a
bronchoscopy done with a biopsy from the bronchoscope, which suggested an
allergic reaction in the lung possibly secondary to mold-type exposure.
[Appellant] is requiring very aggressive therapy with high-dose steroid therapy
with marginal response. He has been referred to the Cleveland Clinic Foundation
for larger lung biopsy. [Appellant’s] clinical status has not been stabilized yet.
This condition is most likely secondary to his exposure to the mold at this
workplace.”
Dr. Iyer performed the biopsy in March 2006. He stated that one of the cultures would be
sent for culture and sensitivity and gram stain. No pneumothorax was noted when surveyed
under fluoroscopy. Dr. Iyer’s postoperative diagnosis was bilateral infiltrates, etiology
undetermined, question community acquired pneumonia, question interstitial lung disease,
question noninfectious etiology.

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In a decision dated July 20, 2006, the Office denied appellant’s claim. The Office found
that he failed to establish that the claimed medical condition was related to the established workrelated event.
On November 7, 2006 appellant testified at an oral hearing before an Office hearing
representative. In a decision dated January 16, 2007, the hearing representative affirmed the
Office’s denial of compensation. He found that appellant’s exposure to mold on March 7, 2006
was well established, but the medical evidence was insufficient to prove that the exposure caused
or contributed to his pulmonary condition. The hearing representative noted that he did not
submit all medical records of the examination and testing for his pulmonary condition. Also, he
did not submit a nonspeculative reasoned medical opinion based on a complete factual and
medical background explaining how and why the pulmonary condition was causally related to
the work exposure. The hearing representative found that Dr. Iyer’s June 15, 2006 report was
speculative in tone, not clearly based on a complete factual background of appellant’s exposure,
and was not medically rationalized.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for the disability or
death of an employee resulting from personal injury sustained while in the performance of duty.1
An employee seeking benefits under the Act has the burden of proof to establish the essential
elements of his claim. When an employee claims that he sustained an injury in the performance
of duty, he must submit sufficient evidence to establish that he experienced a specific event,
incident or exposure occurring at the time, place and in the manner alleged. He must also
establish that such event, incident or exposure caused an injury.2
Causal relationship is a medical issue,3 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,4 must be one of reasonable medical certainty,5
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.6

1

5 U.S.C. § 8102(a).

2

See generally John J. Carlone, 41 ECAB 354 (1989); Abe E. Scott, 45 ECAB 164 (1993).

3

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

4

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

5

See Morris Scanlon, 11 ECAB 384, 385 (1960).

6

See William E. Enright, 31 ECAB 426, 430 (1980).

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ANALYSIS
There is no dispute that appellant was exposed to mold on March 7, 2006 in the course of
his employment. He has met his burden to establish that he experienced a specific event,
incident or exposure occurring at the time, place and in the manner alleged. The question that
remains is whether this exposure caused an injury to his lungs.
The June 15, 2006 report of Dr. Iyer, the internist specializing in pulmonary diseases,
lends some support to appellant’s claim, but it is not sufficient to establish the critical element of
causal relationship. Dr. Iyer correctly noted that appellant was exposed to a moldy area at work
on March 7, 2006, but he did not review the May 23, 2005 mold assessment in Room H27,
which stands as the best evidence of the nature of appellant’s exposure, and he did not account
for appellant’s activity in the room or the duration of his exposure. This diminishes the
probative or evidentiary value of his opinion. Medical conclusions based on inaccurate or
incomplete histories are of little probative value.7
Dr. Iyer reported that a biopsy suggested an allergic reaction in the lung possibly
secondary to mold-type exposure, but he did not explain. His operative report indicated that the
biopsy would be sent for culture and sensitivity and gram stain, but there is no report of the
results. Dr. Iyer noted that appellant was referred to the Cleveland Clinic Foundation for a larger
lung biopsy, but the results of that biopsy are also not in the record. It is unknown whether the
larger biopsy supported Dr. Iyer’s opinion or contraindicated the suggestion of an allergic
reaction to mold. Without a fuller explanation of the medical basis for his conclusion, Dr. Iyer’s
opinion, while generally supportive of appellant’s claim, is insufficient to establish the element
of causal relationship.8
Sound medical reasoning is particularly important in this case, where appellant had a
history of pneumonia, where everyone at work appeared to have the flu at the time appellant
began feeling ill, and where appellant was diagnosed with and aggressively treated for
pneumonia. If this diagnosis was wrong, Dr. Iyer did not explain. The Board will affirm the
Office’s decisions denying appellant’s claim for compensation.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained a pulmonary injury in the performance of duty on March 7, 2006. The factual evidence
sufficiently establishes his exposure to mold in the course of employment, but the medical
evidence fails to show how this exposure caused an injury to his lungs.

7

James A. Wyrick, 31 ECAB 1805 (1980) (physician’s report was entitled to little probative value because the
history was both inaccurate and incomplete). See generally Melvina Jackson, 38 ECAB 443, 450 (1987) (addressing
factors that bear on the probative value of medical opinions).
8

See Connie Johns, 44 ECAB 560 (1993) (holding that a physician’s opinion on causal relationship must be one of
reasonable medical certainty, supported with affirmative evidence, explained by medical rationale and based on a
complete and accurate medical and factual background).

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ORDER
IT IS HEREBY ORDERED THAT the January 16, 2007 and July 20, 2006 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: July 26, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.A., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
Chicago, IL, Employer
__________________________________________

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

Docket No. 08-381
Issued: October 8, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 19, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ October 16, 2007 merit decision granting a schedule award. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the merits of the
appeal.
ISSUE
The issue is whether appellant has more than 19 percent impairment of his right arm and
8 percent impairment of his left arm.
FACTUAL HISTORY
This is the second appeal in this case. In a February 28, 2007 decision, the Board set
aside decisions of the Office which found that appellant had sustained five percent impairment to

his right and left upper extremities.1 It remanded the case to the Office for further development
of the medical evidence. The facts and circumstances of the case are set forth in the Board’s prior
decision and are incorporated herein by reference.
On remand the Office referred appellant to Dr. Vikram H. Gandhi, a Board-certified
orthopedic surgeon, for examination and an evaluation of the extent of permanent impairment.2
Dr. Gandhi performed electromyogram (EMG) and nerve conduction velocity (NCV) studies on
August 16, 2007 which revealed normal results in the upper extremities. In a report received on
October 16, 2007,3 he stated that physical examination revealed some limitation of motion and
decreased strength, with pain, decreased sensation, decreased 2-point discrimination, and a positive
Tinel’s sign on both wrists. Dr. Gandhi indicated that the decreased sensation was mainly
affecting the index, middle and ring fingers of the right hand. He stated, “Some decrease was also
noted on the left but this appeared to be minimal.” Dr. Gandhi reported that appellant described
more problems with his right hand than his left. He diagnosed bilateral carpal tunnel syndrome,
status post surgical releases, and found that appellant reached maximum medical improvement one
year after his most recent surgery. Dr. Gandhi stated that he was applying the first category on
page 495 of the A.M.A., Guides even though appellant’s EMG and NCV testing was normal
because such testing can be normal even if there is clinical evidence of median nerve
dysfunction. He stated:
“Most of the impairment rating was calculated for the sensory loss at the median
nerve at the wrist level, which is what carpal tunnel syndrome is, and he has no
significant muscular involvement. Most of the loss is sensory involvement.
Right-sided sensory loss appeared to be worse than the left-sided sensory loss,
and it was considered that the patient had Grade 3 loss of the right hand as he had
sensory changes including pain and then difficulty in daily activities in some areas
and it was felt that this loss was in the range of 32 percent.”
***
“Table 16-10 and 16-15 from the [A.M.A., Guides] were used. Sensory deficit on
the right side was felt to be 60 percent and that multiplied by 32 percent as the
1

Docket No. 06-1893 (issued February 28, 2007). The Office accepted that appellant, a 29-year-old claims
examiner, sustained bilateral carpal tunnel syndrome. He underwent surgery on both wrists in 1997. The Office
granted appellant schedule awards on February 9, 2006 for five percent impairment of both the right and left arms.
2

The Office made several earlier attempts to refer appellant for evaluation but the physicians either indicated that
they did not provide impairment ratings or failed to follow the Office’s instructions to perform an evaluation of
permanent impairment. The Office indicated that Dr. Gandhi served as an impartial medical specialist but he
actually served as an Office referral physician because there was no conflict in the medical evidence at the time of
the referral. As noted by the Board in its February 28, 2007 decision, the impairment ratings of Dr. Thompson, a
Board-certified orthopedic surgeon who served as an Office medical adviser, and Dr. Salomon, an attending Boardcertified orthopedic surgeon, were not derived in accordance with the relevant standards of the American Medical
Association, Guides to the Evaluation of Permanent Impairment. Therefore, their opinions did not create a conflict
in the medical evidence.
3

The report is actually dated July 19, 2007 but this date appears to be incorrect as the report discusses the
August 16, 2007 test results.

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median involvement at the wrist level for upper extremity impairment, which
gives a 19.2 percent rating, rounded to 19 percent.
“Similarly, the left upper extremity was rated and it was found that the left upper
extremity had a Grade 4 loss which gave it a 25 percent loss and at 32 percent of
that it gives an 8 percent impairment rating.”
In an October 16, 2006 decision, the Office granted appellant additional schedule award
compensation to reflect 19 percent impairment to his right arm and eight percent impairment of
his left arm. The awards ran for 53.04 weeks from July 22, 2005 to July 28, 2006.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act4 and its
implementing regulation5 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.6
ANALYSIS
The Office accepted that appellant sustained employment-related bilateral carpal tunnel
syndrome and granted him schedule award compensation for a 19 percent permanent impairment
of his right arm and an 8 percent permanent impairment of his left arm. The Office based the
schedule awards on the examination of Dr. Gandhi, a Board-certified orthopedic surgeon who
served as an Office referral physician.7 The Office referred appellant to Dr. Gandhi after the
Board, in a February 28, 2007 decision, found that additional development of the medical
evidence was required to evaluate the extent of his upper extremity impairment.
The Board finds that Dr. Gandhi properly determined that appellant’s bilateral carpal
tunnel syndrome was appropriately evaluated under the first category on page 495 of the A.M.A.,
Guides.8 The choice of this category was appropriate as Dr. Gandhi identified several clinical
signs of median nerve dysfunction and electrical conduction delays including positive Tinel’s
signs in both sides and decreased 2-point discrimination (mainly affecting the index, middle and
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404 (1999).

6

Id. See Thomas P. Gauthier, 34 ECAB 1060 (1983).

7

See supra note 2 regarding Dr. Gandhi’s status as an Office referral physician. Dr. Gandhi’s report was received
by the Office on October 16, 2007.
8

See A.M.A., Guides 495 (section entitled “carpal tunnel syndrome”).

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ring fingers).9 He characterized the extent of sensory loss to the median nerve in the right as Grade
3 as found at Table 16-10, page 482. Under this classification, Dr. Gandhi advised that appellant
had a 60 percent deficit for distorted superficial tactile sensibility (diminished light touch and two
point discrimination), with some abnormal sensations or slight pain, that interferes with some
activities. For the impairment of the median nerve of the left wrist, Dr. Gandhi characterized the
sensory loss as Grade 4, for which he allowed 25 percent deficit for distorted superficial tactile
sensibility (diminished light touch), with or without minimal abnormal sensations or pain that is
forgotten during activity. He explained that appellant’s symptoms, both reported and observed on
examination, were much greater on the right than on the left.10
Dr. Gandhi then referenced Table 16-15, page 492, to rate the sensory impairment to the
upper extremities. The Board notes that in rating sensory loss of the median nerve below the
forearm, Table 16-15 allows up to a maximum value of 39 percent for pain to the upper
extremities.11 In making his rating, Dr. Gandhi advised that allowing 32 percent for the sensory
deficits found on examination of appellant’s upper extremities was appropriate. For the right arm,
he multiplied the 60 percent sensory deficit by 32 percent to total 19.2 percent loss, which was
rounded down to 19 percent. For the left arm, Dr. Gandhi multiplied the 25 percent sensory deficit
by 32 percent to total 8 percent impairment. The Board finds that the impairment ratings provided
by Dr. Gandhi for appellant’s sensory loss to his upper extremities conforms to the protocols of the
A.M.A., Guides. As the examining physician, his impairment rating is well explained and
supported by the findings made on physical evaluation of appellant’s arms. His rating of
impairment constitutes the weight of medical opinion. Appellant has not submitted any medical
evidence to establish that he has greater impairment to his upper extremities resulting from his
accepted injury.
CONCLUSION
The Board finds that appellant has a 19 percent impairment of his right arm and an eight
percent impairment of his left arm for which he received schedule awards.

9

See id. Dr. Gandhi explained that, even though appellant’s EMG and NCV testing was normal, such testing can
be normal even if there is valid clinical evidence of median nerve dysfunction.
10

See A.M.A., Guides 482, Table 16-10. Dr. Gandhi noted that appellant’s right arm sensory loss was so severe
that it interfered with activity and other medical evidence of record supports this finding of a greater degree of
sensory loss on the right.
11

Chapter 1 of the A.M.A., Guides, page 4, notes, “Evaluating physicians may use their clinical judgment,
however, and comment on any significant age or gender effect for a particular individual.” It goes on to state,
“Impairment percentages or ratings developed by medical specialists are consensus-derived estimates that reflect the
severity of a given medical condition….”

4

ORDER
IT IS HEREBY ORDERED THAT Office of Workers’ Compensation Programs’
October 16, 2007 decision be affirmed.
Issued: October 8, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


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

)
)
)
)
)
)
)
)

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

Docket No. 10-980
Issued: February 14, 2011

Case Submitted on the Record

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

JURISDICTION
On February 25, 2010 appellant filed a timely appeal from a December 1, 2009 schedule
award decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award determinations in this
case.
ISSUE
The issue is whether appellant has more than 13 percent impairment of the right upper
extremity for which he received schedule awards.
On appeal, appellant’s attorney argued that the referee examiner’s report is incomplete
and unrationalized; therefore, a conflict remains regarding the degree of his right upper extremity
impairment. He further asserts that the conditions of C5-6 radiculopathy, brachial plexus, ulnar
and radial nerve compromise are preexisting and should be considered in the impairment
analysis.

FACTUAL HISTORY
This case was previously before the Board. In a May 4, 2006 decision, the Board
affirmed a September 27, 2005 schedule award decision granting appellant a five percent
permanent impairment of the right upper extremity.1 The law and facts of the previous Board
decision are incorporated herein by reference.
A December 18, 2006 x-ray of the cervical spine demonstrated disc space narrowing at
C5-6 and C6-7. An April 10, 2007 somatosensory evoked potential test of the median, ulnar and
radial nerves was interpreted as normal or not identified. Electromyogram (EMG) studies on
January 7, 2007 and January 31, 2008 showed evidence of bilateral C5-6 radicular changes with
bilateral median, ulnar and radial nerve and brachial plexus compromise.
On January 7, 2008 appellant filed a claim for an additional schedule award. In a
September 27, 2007 report, Dr. David Weiss, an osteopath, found that, in accordance with the
fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (hereinafter A.M.A., Guides),2 appellant had 32 percent right arm impairment. This
consisted of a 5 percent impairment under Figure 16-18 and Figure 16-31 due to right wrist range
of motion (ROM) deficits in flexion and ulnar deviation, a 20 percent impairment due to lateral
pinch deficit under Table 16-33 and Table 16-34 and a Grade 4 sensory deficit of the right
median nerve under Table 16-10 and Table 16-15 of 10 percent deficit. In a February 22, 2008
report, Dr. Morley Slutsky, an Office medical adviser, reviewed the medical evidence including
the report of Dr. Weiss. He advised that maximum medical improvement was reached on
September 27, 2007. Dr. Slutsky did not agree with Dr. Weiss’ calculations for loss of right
wrist motion and right hand grip strength but agreed that, under Table 16-10 and Table 16-15,
appellant had a 10 percent right upper extremity impairment for sensory impairment of the
median nerve.
The Office determined that a conflict in medical evidence arose between Dr. Weiss and
Dr. Slutsky. It referred appellant to Dr. Donald F. Leatherwood, II, a Board-certified orthopedic
surgeon, for an impartial medical evaluation. In a May 27, 2008 report, Dr. Leatherwood
reviewed the employment injury, appellant’s complaint of recurrent right hand pain, numbness
and tingling with poor grip and the medical record. Physical examination demonstrated full
ROM of the shoulders, elbows, pronation, supinations, wrists, thumbs and fingers of the left
hand. On the right, there was a lag in full flexion of metacarpophalangeal (MP) joint motion
starting at the index finger with discrepancies of 20 degrees, 10 degrees and 10 degrees and
otherwise full motion. Strength was 5/5. Cervical spine motion was reduced approximately 60
percent in all planes. Examination of the right upper extremity demonstrated somewhat
increased two-point discrimination, a negative Tinel’s sign, and a positive carpal tunnel
1

Docket No. 06-595 (issued May 4, 2006). Appellant, 68 years old, is a retired part-time flexible window clerk.
On June 15, 1999 he filed an occupational disease claim for right carpal tunnel syndrome that was accepted on
August 11, 1999. On September 3, 1999 Dr. James L. Colombo, Board certified in plastic surgery and surgery of
the hand, performed a right carpal tunnel release. He advised that appellant could return to full duty with no
restrictions on November 4, 1999.
2

A.M.A., Guides (5th ed. 2001); Joseph Lawrence, Jr., 53 ECAB 331 (2002).

2

compression test. Dr. Leatherwood opined that appellant had a residual deficit due to his
employment-related right carpal tunnel syndrome and no other diagnoses related to his
employment. He evaluated appellant’s impairment in accordance with the fifth edition of the
A.M.A., Guides and found that, under Figure 16-25, the deficit in motion at the MP joint yielded
a 10 percent deficit for the index finger and a 7 percent deficit for the long, ring and small fingers
which, using Table 16-1, converted to a 2 percent deficit in the hand for the index finger and a 1
percent deficit each for the long, ring and small fingers, for a total 5 percent deficit of the hand
which, under Table 16-2, yielded a 5 percent right upper extremity impairment for motion
deficit. Dr. Leatherwood then found that appellant had Grade 3 right thumb and index finger
sensory deficits due to minor, diminished two-point discrimination in the two fingers for an
overall 30 percent sensory deficit under Table 16-10. He then found that, under Table 16-15, for
the thumb, the maximum percentages were 7 and 11 for radial and ulnar sides respectively
which, when multiplied by 30 percent, yielded right upper extremity impairments of 2 and 3
percent. Dr. Leatherwood found that the index finger had maximums of 5 and 4, for radial and
ulnar respectively which, when multiplied by 30 percent, yielded right upper extremity
impairments of 2 and 1 percent. He added the 5 percent upper extremity motion deficit with the
four scores for sensory deficit, or 8 percent, finding a total 13 percent right arm impairment.
By report dated July 7, 2008, Dr. Arnold T. Berman, Board certified in orthopedic
surgeon and an Office medical adviser, reviewed the medical evidence. He advised that
Dr. Leatherwood did not properly apply the A.M.A., Guides because he did not use the
guidelines for carpal tunnel syndrome found on page 495 or calculate decreased digital sensation.
Dr. Berman stated that the more appropriate methodology would be to calculate a decreased
sensation of the entire median nerve if the median nerve showed a decrease in sensation, as in
this instance. He found that, under page 495 of the A.M.A., Guides, appellant was rated as
scenario number 1, based on median nerve dysfunction and that, in accordance with Table 16-15,
for deficits of the median nerve below mid forearm, a maximum percent upper extremity
impairment due to sensory deficit or pain was 39 percent. Dr. Berman utilized Table 16-10, and
found a Grade 4 impairment of 25 percent, which he multiplied by the maximum 39 percent to
equal a 10 percent right upper extremity impairment which he noted represented an increase of 5
percent over the previously awarded 5 percent.
In a September 15, 2008 schedule award, appellant received an additional five percent
impairment of his right arm, for 109.2 days, to run from May 27 to September 13, 2008.
Appellant, through his attorney, timely requested a hearing and in a January 7, 2009
decision, an Office hearing representative noted that a referee opinion should be used to resolve a
conflict in medical evidence. The hearing representative set aside the September 15, 2008
schedule award decision.
In a supplemental report dated February 12, 2009, Dr. Leatherwood noted that he did not
mention the carpal tunnel syndrome guidelines on page 495 of the A.M.A., Guides and agreed
that appellant fit into scenario 1, but that this would not change his calculations. He opined that
appellant’s overall deficit in hand motion at the MP joints, including the small finger, was a
residual of his carpal tunnel problem, explaining that just because the median nerve did not go to
the small finger did not mean that a median nerve problem could not result in reduced motion at
this joint, secondary to its common involvement with all the other joints of the hand.

3

Dr. Leatherwood reiterated that appellant had a five percent loss of use under Figure 16-25 and
Table 16-1 of the fifth edition of the A.M.A., Guides. He advised that there was an error in his
initial calculations, noting that appellant had an 11 percent deficit for index and 6 percent deficit
for the other fingers, but that this did not change the overall 5 percent deficit for loss of hand
motion when calculated under Table 16-1. Dr. Leatherwood reiterated that appellant had an 8
percent sensory deficit of right upper extremity based on the radial and ulnar sides of the thumb
and index finger only, with no sensory deficits of the other fingers, for deficits of 2 and 3 percent
for the thumb and 1.5 and 1.2 percent for the index finger, or a 7.7 percent total which, when
rounded up, yielded an 8 percent sensory deficit of the right upper extremity. He noted that,
under Table 16-2, a 5 percent motion impairment of the hand was also a 5 percent impairment of
the extremity, and that, in accordance with the Combined Values Chart, a 5 percent motion
deficit and an 8 percent sensory deficit yielded a total 13 percent right upper extremity
impairment, as reflected in his May 27, 2008 report. Dr. Leatherwood noted that the methods
utilized by Dr. Berman and himself were not grossly different, but differed in relatively minor
detail.
In an April 19, 2009 report, Dr. Berman advised that he did not necessarily agree with
Dr. Leatherwood’s detailed findings and rationale to support that appellant had a 13 percent right
upper extremity impairment.
By decision dated April 28, 2009, appellant was granted a schedule award for an
additional three percent right upper extremity impairment, for a period of 9.36 weeks, to run
from September 14 to November 18, 2008.
On May 1, 2009 appellant, through his attorney, requested a hearing that was held on
August 18, 2009. Counsel argued that appellant had preexisting cervical radiculopathy as
demonstrated on EMG studies in January 2007 and January 2008 that were not considered by
Dr. Leatherwood, whose opinion was insufficient to resolve the conflict.
In a December 1, 2009 decision, an Office hearing representative affirmed the April 28,
2009 decision. She found that the weight of the medical evidence rested with the opinion of
Dr. Leatherwood.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act,3 and its
implementing federal regulations,4 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.5 For decisions after February 1, 2001, the fifth edition of the A.M.A., Guides is used
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id. at § 10.404(a).

4

to calculate schedule awards.6 For decisions issued after May 1, 2009, the sixth edition of the
A.M.A., Guides will be used.7
It is the claimant’s burden to establish that he or she sustained a permanent impairment of
a scheduled member or function as a result of an employment injury.8 Office procedures provide
that to support a schedule award, the medical evidence should establish that the impairment has
reached a permanent and fixed state and indicate the date on which this occurred (“date of
maximum medical improvement”), describe the impairment in sufficient detail to include, where
applicable, the loss in degrees of active and passive motion of the affected member or function,
the amount of any atrophy or deformity, decreases in strength or disturbance of sensation, or
other pertinent description of the impairment, and the percentage of impairment should be
computed in accordance with the fifth edition of the A.M.A., Guides. The procedures further
provide that, after obtaining all necessary medical evidence, the file should be routed to the
Office medical adviser for opinion concerning the nature and percentage of impairment, and the
Office medical adviser should provide rationale for the percentage of impairment specified.9
Section 8123(a) of the Act provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.10 When the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.11
ANALYSIS
The Board finds the weight of the medical evidence rests with the opinion of
Dr. Leatherwood who provided an impartial opinion on the extent of permanent impairment.
The Office determined that a conflict in the medical evidence was created between the opinions
of Dr. Weiss, an attending osteopath and Dr. Slutsky, an Office medical adviser, regarding the
degree of appellant’s right upper extremity impairment. It properly referred appellant to
Dr. Leatherwood, Board certified in orthopedic surgery, for an impartial evaluation.12
In a May 27, 2008 report, Dr. Leatherwood reviewed the employment injury, the medical
record, and noted appellant’s complaints of right hand pain, numbness and tingling. He provided
6

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

7

FECA Bulletin No. 09-03 (issued March 15, 2009).

8

Tammy L. Meehan, 53 ECAB 229 (2001).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Evaluation of Schedule Awards, Chapter 2.808.6(d)
(August 2002).
10

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

11

Manuel Gill, 52 ECAB 282 (2001).

12

Id.

5

findings on physical examination of full ROM of the shoulders, elbows, pronation, supinations,
wrists, thumbs and fingers of the left hand with diminished cervical spine motion. On the right
there was a lag in full flexion of MP joint motion of the fingers. Right upper extremity strength
was 5/5, and sensory examination demonstrated somewhat increased two-point discrimination, a
negative Tinel’s sign, and a positive carpal tunnel compression test. Dr. Leatherwood diagnosed
a residual deficit due to appellant’s employment-related right carpal tunnel syndrome and no
other diagnoses related to his employment. He evaluated appellant’s impairment in accordance
with the fifth edition of the A.M.A., Guides and found that, under Figure 16-25,13 the deficit in
motion at the MP joint yielded a 10 percent deficit for the index finger and a 7 percent deficit for
the long, ring and small fingers which, using Table 16-1,14 converted to a 2 percent deficit in the
hand for the index finger and a 1 percent deficit each for the long, ring and small fingers, for a
total 5 percent deficit of the hand which, under Table 16-2,15 yielded a 5 percent right upper
extremity impairment for motion deficit. Dr. Leatherwood found that appellant had Grade 3
right thumb and index finger sensory deficits due to minor, diminished two-point discrimination
in the two fingers for an overall 30 percent sensory deficit under Table 16-10.16 He determined
that, under Table 16-15,17 for the thumb, the maximum percentages were 7 and 11 for the radial
and ulnar sides respectively which, when multiplied by 30 percent, yielded right upper extremity
impairments of 2 and 3 percent. Dr. Leatherwood found that the index finger had maximums of
5 and 4, for radial and ulnar respectively which, when multiplied by 30 percent, yielded right
upper extremity impairments of 2 and 1 percent for the index finger.18 He added the 5 percent
upper extremity motion deficit with the four scores for sensory deficit, finding a total 13 percent
right upper extremity impairment.
In a supplementary report dated February 12, 2009, Dr. Leatherwood acknowledged he
did not address the carpal tunnel syndrome guidelines in his previous report but that appellant fit
into scenario 1 as found on page 495 of the A.M.A., Guides. This would not change his rating;
however, because the median nerve motion at the finger joints, secondary to its common
involvement with all the other joints of the hand. Dr. Leatherwood reiterated his finding that
appellant had a five percent loss of use under Figure 16-25 and Table 16-1 of the fifth edition of
the A.M.A., Guides. He noted that there was an error in his initial calculations because appellant
had an 11 percent deficit for index and 6 percent deficit for the other fingers, but that this did not
change the overall 5 percent deficit for loss of hand motion when calculated under Table 16-1.
Dr. Leatherwood again opined that appellant had an 8 percent sensory deficit of the right upper
extremity which, when combined with the 5 percent motor impairment, yielded a total 13 percent
right upper extremity impairment, as reflected in his May 27, 2008 report.
13

A.M.A., Guides, supra note 2 at 464.

14

Id. at 438.

15

Id. at 439.

16

Id. at 482.

17

Id. at 492.

18

Office procedures provide that the calculated percentage of impairment is to be rounded to the nearest whole
point. Results should be rounded down for figures less than 0.5 and up for 0.5 and over. Federal (FECA) Procedure
Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3b (October 2004); see E.L., 59 ECAB 405 (2008).

6

On April 19, 2009 Dr. Berman, an Office medical adviser, reviewed the medical
evidence. Although he did not fully agree with Dr. Leatherwood’s impairment rating, he
provided detailed rationale for finding 13 percent impairment of the right upper extremity
impairment.
The Board finds that, as Dr. Leatherwood provided a comprehensive, well-rationalized
opinion in which he clearly explained his impairment rating, his report is entitled to the special
weight accorded an impartial examiner and therefore constitutes the weight of the medical
evidence.19 Appellant therefore did not meet his burden of proof to establish that he is entitled to
schedule awards greater than those awarded.
As to appellant’s contention on appeal, there is no evidence of record to support that he
had preexisting cervical radiculopathy of the ulnar, radial and median nerves and brachial plexus.
The EMG studies done in January 2007 and January 2008 that demonstrated cervical
radiculopathy were done eight and nine years after the claim was filed. Appellant therefore did
not meet his burden of proof to establish that cervical radiculopathy was a preexisting condition.
CONCLUSION
The Board finds that appellant did not establish that he has more than a 13 percent
impairment of the right upper extremity for which he received schedule awards.

19

See Sharyn D. Bannick, 54 ECAB 537 (2003).

7

ORDER
IT IS HEREBY ORDERED THAT the December 1, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 14, 2011
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


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Baltimore, MD, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-0382
Issued: June 26, 2018

Case Submitted on the Record

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

JURISDICTION
On December 12, 2016 appellant, through counsel, filed a timely appeal from a
November 2, 2016 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 OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective February 22, 2016.
FACTUAL HISTORY
On January 14, 2011 appellant, then a 35-year-old city carrier, filed a traumatic injury
claim alleging that, on that date, she twisted her left foot and ankle while in the performance of
duty and stopped work that day.
On April 6, 2011 OWCP accepted the claim for left ankle sprain and left foot sprain. It
provided wage-loss compensation benefits and she was placed on the periodic rolls.
In a May 8, 2012 report, Dr. Bradley Lamm, Board-certified in reconstructive rear-foot and
ankle surgery, noted that appellant indicated she was limited with walking and standing for long
periods of time and admitted to her ankle giving out on her. He diagnosed tarsal tunnel syndrome
and complex regional pain syndrome. Dr. Lamm recommended a physical therapy treatment plan.
By letter dated August 31, 2014, OWCP requested that the treating physician, Dr. Lamm,
provides an update regarding appellant’s current condition and capabilities.
In a September 16, 2014 report, Dr. Lamm, examined appellant and provided findings
which included that appellant had dorsiflexion within normal limits. Additionally, he determined
that there was no pin point metatarsal palpation pain, but she had pain over the fourth metatarsal
diffusely along with pain over the anterior and lateral gutters. Dr. Lamm determined that appellant
had mild swelling and that her digits three, four, and five had minimal flexion. He also noted that
her second digit still maintained normal flexion. Dr. Lamm advised that appellant was seen for
follow up of complex regional pain syndrome and tarsal tunnel syndrome, which seemed to have
improved.
On December 9, 2015 OWCP referred appellant for a second opinion examination, along
with a statement of accepted facts, a set of questions, and the medical record to Dr. Robert A.
Smith, a Board-certified orthopedist.
In a report dated January 8, 2016, Dr. Smith described appellant’s history of injury and
treatment and examined appellant. His findings included: that the ankle revealed no deformity or
swelling; that there were no dystrophic signs in the leg or foot: there was active motion in the first,
second and third toes; but appellant did not actively move her fourth and fifth toes. Dr. Smith
related that there was satisfactory and functional range of motion of the ankle and subtalar joints
without any instability or crepitation. He also found no atrophy in the calf musculature and motor
strength in the muscles and one foot and ankle was satisfactory. Dr. Smith also determined that
there were no tendon problems, a normal arch, and neurovascular status was intact.
Dr. Smith specifically opined that appellant had fully recovered from the work injury of a
left ankle sprain related to the January 14, 2011 incident and that there was nothing that warranted
that the case be expanded to include any additional diagnoses. Additionally, Dr. Smith noted there
were no preexisting conditions that would impact the case. He explained that there was nothing
2

objective on physical examination with respect to the accepted left ankle condition. Dr. Smith
noted that it had in fact resolved without residuals and would not result in any ongoing physical
limitation, restriction, and/or disability related to the claim. He advised that appellant was at
maximum medical improvement related to the claim and that there was nothing objective that
would indicate that appellant required ongoing or future testing, medical care, and or physical
therapy, reflexology, or any other type of treatment related to the claim. Dr. Smith indicated that
appellant reached maximum medical improvement.
On January 19, 2016 OWCP proposed to terminate appellant’s wage-loss compensation
and medical benefits as the medical evidence of record established that she no longer had any
residuals or continuing disability from work. It accorded the weight of the evidence to Dr. Smith,
who found that she no longer had any residuals or continuing disability from work stemming from
her work-related injury of January 14, 2011. OWCP informed appellant of the type of evidence
needed to support her claim and requested that she submit such evidence within 30 days.
In February 18, 2016 statements, appellant indicated that she had a video clip and
photographs of her current condition of her left ankle and foot injury. However, no video was
received. Appellant noted that she had three toes that did not move and pivoting leftward was not
normal range of motion. She also indicated that swelling was still regular.
On February 22, 2016 OWCP terminated appellant’s compensation, effective that date,
finding that she no longer had any employment-related residuals or disability. It found that the
weight of the evidence rested with Dr. Smith, who determined that appellant could return to her
date-of-injury job and that the residuals of the accepted conditions had ceased.
On March 1, 2016 counsel for appellant requested a telephonic hearing, which was held on
September 22, 2016.
By decision dated November 2, 2016, OWCP’s hearing representative affirmed the
February 22, 2016 termination decision.
LEGAL PRECEDENT
Under FECA, once OWCP has accepted a claim it has the burden of justifying termination
or modification of compensation benefits.3 OWCP may not terminate compensation without
establishing that the disability ceased or that it was no longer related to the employment.4 OWCP’s
burden of proof includes the necessity of furnishing rationalized medical opinion evidence based
on a proper factual and medical background.5

3

V.C., 59 ECAB 490 (2008); Charles E. Minniss, 40 ECAB 708, 716 (1989).

4

Id.

5

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

3

ANALYSIS
The Board finds that OWCP properly terminated appellant’s wage-loss compensation and
medical benefits.
On December 9, 2015 OWCP referred appellant for a second opinion examination with
Dr. Smith, a Board-certified orthopedist.
In a January 8, 2016 report, Dr. Smith examined appellant and provided findings. They
included that the ankle revealed no deformity or swelling, that there were no dystrophic signs in
the leg or foot, and that there was active motion in the first, second, and third toes. Dr. Smith
found that appellant did not actively move her fourth and fifth toes. He found satisfactory and
functional range of motion of the ankle and subtalar joints without any instability or crepitation.
Dr. Smith determined that there was no atrophy in the calf musculature and that motor strength in
the muscles, foot, and ankle was satisfactory. He also found no tendon problems, a normal arch,
and determined that neurovascular status was intact. Dr. Smith opined that appellant had fully
recovered from the work injury of a left ankle sprain related to the January 14, 2011 incident. He
advised that there were no objective findings in his examination with respect to the accepted left
ankle condition. Dr. Smith opined that the accepted conditions had resolved without residuals. He
determined that there were no ongoing physical limitations, restrictions, and/or disability related
to the claim. Dr. Smith opined that appellant was at maximum medical improvement. He
explained that there was nothing objective that would indicate that appellant required ongoing or
future testing, medical care and or physical therapy or reflexology or any other type of treatment
related to the claim.
The Board finds that Dr. Smith’s opinion is well rationalized and represents the weight of
the medical evidence regarding appellant’s accepted conditions. The Board also notes that there
are no current reports from a treating physician to contradict these findings. Because the evidence
of record establishes that appellant no longer has residuals or disability related to her accepted
employment conditions. OWCP properly terminated entitlement to wage-loss compensation and
medical benefits effective February 22, 2016. Accordingly, OWCP’s decision to terminate
appellant’s compensation and medical benefits shall be affirmed.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective February 22, 2016.

4

ORDER
IT IS HEREBY ORDERED THAT the November 2, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 26, 2018
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
U.S. POSTAL SERVICE, CONNECTICUT P &
DC, Wallingford, CT, Employer
__________________________________________

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

Docket No. 12-1004
Issued: November 2, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 5, 2012 appellant filed a timely appeal from a February 7, 2012 schedule award
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the schedule award.
ISSUE
The issue is whether appellant met her burden of proof to establish more than 10 percent
impairment of the left leg for which she received schedule awards.
On appeal, she asserts that the opinion of the attending physician establishes greater
impairment.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On April 22, 2005 appellant, then a 35-year-old mail processor, injured her left knee
when picking up a mail tray off the floor. She stopped work that day. OWCP accepted that she
sustained a medial meniscus tear of the left knee. Appellant returned to modified duty on July 2,
2005 and to regular duty on August 9, 2005. OWCP accepted several recurrences of disability.
Appellant stopped work on August 13, 2007 when Dr. Philip Luchini, an attending Boardcertified orthopedic surgeon, performed arthroscopic shaving of the left patella. She was placed
on the periodic compensation rolls and returned to modified duty on November 12, 2007. On
November 5, 2008 appellant was granted a schedule award for a three percent impairment of the
left leg.
On February 5, 2010 OWCP accepted that appellant sustained a recurrence of disability
on November 17, 2009 when her job was withdrawn under the National Reassessment Process.
Appellant underwent a second arthroscopic surgery on November 8, 2010. Her claim was
accepted for chondromalacia patella, left, and traumatic patellofemoral arthritis of the left knee.
On April 25, 2011 Dr. Luchini performed patellofemoral joint replacement surgery. Appellant
had a left knee manipulation procedure on June 6, 2011. She returned to full-time modified duty
on December 5, 2011.2
Appellant filed a schedule award claim on December 5, 2011. In a November 22, 2011
report, Dr. Luchini stated that appellant’s symptoms had plateaued and she had reached
maximum medical improvement. Dr. Luchini reported that she had anterior knee pain and
difficulty kneeling and stair-climbing and that examination showed complete extension to the
knee in flexion to 120 degrees with no swelling or ligament instability. He advised that, in
accordance with the sixth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (A.M.A., Guides),3 under Table 16-3, Knee Regional Grid, appellant
had a class 2 impairment of 20 percent. In a December 7, 2011 report, Dr. Luchini noted
appellant’s complaint of anterior knee pain and swelling after extended periods of walking,
which he indicated was due to overuse. He found no evidence of loosening or infection in the
left knee.
In a December 16, 2011 report, Dr. Christopher R. Brigham, Board-certified in family
and occupational medicine and an OWCP medical adviser, reviewed the medical records. He
advised that maximum medical improvement was reached on November 22, 2011. Dr. Brigham
agreed that Table 16-3 should be used to rate appellant’s left knee impairment and noted that
Dr. Luchini did not provide a specific diagnosis or rationale as to how he rated impairment or
discuss which, if any, grade modifiers were used. Dr. Brigham advised that, because a diagnosis
of patellofemoral joint replacement was not provided in the A.M.A., Guides, an analogous rating
2

By decision dated December 14, 2010, OWCP reduced appellant’s compensation to zero, effective
December 19, 2010, on the grounds that she failed, without good cause, to cooperate with vocational rehabilitation
efforts. On April 26, 2011 an OWCP hearing representative affirmed the December 14, 2010 decision. Appellant
filed an appeal with the Board and in a March 13, 2012 decision, the Board reversed the April 26, 2011 decision.
Docket No. 11-1665.
3

A.M.A., Guides (6th ed. 2008).

2

would be made. Under Table 16-3, for a diagnosis of knee arthritis when there was no cartilage
interval, the default rating was 50 percent and, for patellofemoral arthritis, the default rating was
20 percent. The medical adviser divided the 20 percent default rating for patellofemoral arthritis
by the 50 percent default rating for knee arthritis, which yielded 40 percent. He stated that it
would then be reasonable to conclude that a default rating for patellofemoral joint replacement
would be 40 percent of that assigned for total knee replacement. Dr. Brigham stated that based
on a good result, dividing the default rating of 25 percent by 40 percent (the percentage
determined reasonable for a partial knee replacement of the patellofemoral joint only) resulted in
a 10 percent impairment of the left lower extremity, which he rated as class 1. He found a
modifier of 1 for functional history because appellant had difficulty kneeling and stair climbing;
a modifier of 0 for physical examination because she had no abnormal findings; and a modifier
of 2 for clinical studies because she had a prosthetic patellofemoral joint. After applying the Net
Adjustment Formula, Dr. Brigham concluded that appellant had a 10 percent left lower extremity
impairment due to the patellofemoral joint replacement.
By decision dated February 7, 2012, OWCP found that appellant had a 10 percent
impairment of the left lower extremity. It granted a schedule award for an additional seven
percent impairment of the left lower extremity, less than the three percent previously awarded; a
total of 20.16 weeks, to run from December 5, 2011 to April 24, 2012.
LEGAL PRECEDENT
The schedule award provision of FECA4 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,
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.6 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides was used to calculate schedule awards.7
For decisions issued after May 1, 2009, the sixth edition is used.8
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).9 Under the sixth edition, for lower extremity impairments the evaluator
identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by
grade modifiers based on Functional History (GMFH), Physical Examination (GMPE) and
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

7

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

8

FECA Bulletin No. 09-03 (issued March 15, 2009).

9

A.M.A., Guides, supra note 3 at 3, section 1.3, “The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.”

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Clinical Studies (GMCS).10 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) +
(GMCS - CDX).11 Under Chapter 2.3, evaluators are directed to provide reasons for their
impairment rating choices, including choices of diagnoses from regional grids and calculations
of modifier scores.12
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.13
ANALYSIS
The Board finds that appellant did not establish that she has greater than 10 percent left
leg impairment. The sixth edition classifies the lower extremity impairment by diagnosis, which
is then adjusted by grade modifiers.14 Section 16.2a includes instructions for performing an
impairment analysis using the regional grids. This includes identifying a diagnosis and applying
the grade modifiers.15
In a November 22, 2011 report, Dr. Luchini concluded that, under Table 16-3, appellant
had a 20 percent left lower extremity impairment. As noted by the medical adviser, Dr. Luchini
did not list a specific diagnosis or explain whether he had applied the grade modifiers. He did
not provide adequate explanation for his impairment rating. Dr. Luchini’s December 7, 2011
report did not include an impairment analysis. His opinion is therefore of diminished probative
value with regard to the degree of appellant’s left lower extremity impairment.
Section 16.2c of the A.M.A., Guides provides that, if a specific diagnosis is not listed in
the diagnosis-based impairment grid of Table 16-3, the examiner should identify a similar
condition to be used as a guide for calculating impairment and should describe rationale for the
conclusion.16 In a December 16, 2011 report, Dr. Brigham, the medical adviser, explained that
Table 16-3 did not include a diagnosis for patellofemoral joint replacement. He compared and
extrapolated the ratings found at Table 16-3 for knee arthritis and patellofemoral joint (or partial
knee) arthritis, concluding that appellant’s partial knee replacement constituted 40 percent of a
total knee replacement. The medical adviser then divided the default value for a good result in a
total knee replacement (25 percent), by the 40 percent for appellant’s partial knee replacement,
10

Id. at 494-531.

11

Id. at 521.

12

Id. at 23-28.

13

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
14

A.M.A., Guides, supra note 3 at 497-500.

15

Id. at 499-500.

16

Id. at 500.

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which yielded a 10 percent impairment of the left lower extremity. He identified modifiers of
1 for functional history, zero for physical examination and 2 for clinical studies. Dr. Brigham
calculated an adjustment of zero, for a 10 percent left lower extremity impairment due to
patellofemoral joint replacement.
The record does not contain an additional medical report that rates appellant’s left lower
extremity in accordance with the sixth edition of the A.M.A., Guides.
Appellant may request a schedule award or increased 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 has a 10 percent left lower extremity impairment for
which she received schedule awards.
ORDER
IT IS HEREBY ORDERED THAT the February 7, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 2, 2012
Washington, DC

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

Michael E. Groom, Alternate 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.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
CARL T. HAYDEN VETERANS MEDICAL
CENTER, Phoenix, AZ, Employer
__________________________________________

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

Docket No. 19-0931
Issued: October 2, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On March 27, 2019 appellant, through counsel, filed a timely appeal from a March 8, 2019
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 to consider 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 expand the acceptance of his
claim to include additional right shoulder conditions causally related to his accepted May 5, 2017
employment injury.
FACTUAL HISTORY
On July 18, 2017 appellant, then a 55-year-old housekeeping aid, filed a traumatic injury
claim (Form CA-1) alleging that on May 5, 2017 he strained and sprained his right shoulder when
he tried to “untighten” a piece of equipment attached to an operation table while in the performance
of duty.
Appellant was initially treated at the employing establishment’s health unit. In a progress
note dated May 10, 2017, Dr. Nanette T. Auriemma, a Board-certified internist, indicated that
appellant related a history of injury that on May 5, 2017 he strained his right shoulder while trying
to loosen a clamp on equipment that he was removing from a bed at work. She reported findings
on physical examination, provided an assessment of acute strain of the right shoulder, and listed
appellant’s work restriction. In a progress note dated May 24, 2017, Dr. Auriemma reexamined
appellant and provided an assessment of resolving right shoulder strain.
OWCP received an employing establishment incident report dated May 10, 2017.
Appellant described that on May 5, 2017 he was working in an operating room (OR) and he
attempted to disengage a very tightly placed piece of equipment on an OR table used for a specific
surgical procedure by using his gloved hands to twist the knob open, which resulted in overexertion
of his right shoulder. He did not give it much thought that day, finished his shift, and went home
and medicated creams/pads on the affected area. By Monday, appellant still had discomfort and
sought medical attention in the employing establishment occupational health unit. He lost no time
from work and was placed on restricted duty.
OWCP thereafter received reports by physical therapists who noted diagnoses of
unspecified injury muscle(s) and tendon(s) of right shoulder rotator cuff, initial encounter, and
right shoulder pain.
Additional medical evidence was received from Dr. Auriemma. In a report and a progress
note dated July 25, 2017 and an undated duty status report (Form CA-17), Dr. Auriemma noted a
date of injury as May 5, 2017 and reiterated her diagnosis of right shoulder strain, diagnosed
persistent right shoulder pain, and listed appellant’s work restrictions. In the Form CA-17 report,
she noted that the diagnosed right shoulder strain was due to the “May 10, 2017” employment
incident.3
In a report of employee’s treatment dated September 28, 2017, Erlinda M. Singarajah, a
certified nurse practitioner from the employing establishment’s health unit, advised that appellant
could return to full-duty work and continue his physical therapy treatment.

3

The date of incident noted by Dr. Auriemma appears to be a typographical error.

2

Dr. Hermenegildo H. Almaria, Jr., a Board-certified diagnostic radiologist, in a right
shoulder x-ray report dated July 25, 2017, provided an impression of slight narrowing of the
acromioclavicular joint space.
In a consultation note dated January 26, 2018, Dr. Richard J. Orbon, a Board-certified
orthopedic surgeon, indicated that appellant related a history of injury of lifting a heavy object in
an OR with immediate right shoulder pain and weakness. He discussed findings on physical
examination. Dr. Orbon noted that an x-ray of the right shoulder revealed a torn long head biceps
tendon, which required rotator cuff repair.
Dr. Stephen Shinault, a Board-certified diagnostic radiologist, provided impressions of a
right shoulder magnetic resonance imaging scan report dated April 20, 2018. He indicated severe
diffuse tendinosis along the rotator crescent; diffuse high-grade partial articular surface tearing and
bursal surface fraying distal supraspinatus and infraspinatus tendons, two centimeter (cm) x two
cm (coronal x sagittal dimension, respectively) full-thickness tear infraspinatus tendon, and
Goutallier grade 1 supraspinatus muscle atrophy. Dr. Shinault also provided impressions of fullthickness tear subscapularis tendon deep and superﬁcial ﬁbers, teres minor tendon intact, and
Goutallier grade 3 subscapularis muscle atrophy.
He further provided impressions of
degenerative-type raying and tearing anterosuperior and anteroinferior labrum, complete tear
proximal long head biceps tendon from the labral biceps anchor, residual extra-articular tendon
ﬁbers located along the bicipital groove, capsule and capsuloligamentous structures maintained,
grade 2 to 3 glenohumeral joint and superior humeral head articular surface chondromalacia, no
acute fracture nor distinct osseous sequela of prior dislocation injury, mild acromioclavicular joint
degenerative arthrosis with a slight laterally downsloping type 1 acromion, small glenohumeral
joint effusion and no distinct loose bodies in the synovial space, and regions and structures of the
suprascapular and spinoglenoid notches, as well as quadrilateral and axillary spaces maintained
and no signal alterations to suggest denervation-type injury.
In a report dated July 26, 2018, Dr. Kostas J. Economopoulos, a Board-certified orthopedic
surgeon, noted that appellant presented for evaluation of his right shoulder, which he injured in
May 2017 while “undoing and pulling a strap on an OR bed.” He discussed findings on physical
examination and reviewed diagnostic test results. Dr. Economopoulos provided assessments of
right shoulder pain, rotator cuff tear, and biceps tear. He recommended right rotator cuff repair.
Dr. Economopoulos advised that appellant could return to work with no restrictions as of
July 26, 2018.
OWCP, in a development letter dated August 13, 2018, informed appellant that, when his
claim was received, it appeared to be for a minor injury that resulted in minimal medical bills and
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 reopened the claim for formal
consideration of the merits because he had requested authorization for surgery. OWCP requested
that appellant submit a narrative medical report from his physician which contained a detailed
description of findings and diagnoses, explaining how the reported work activities caused,
contributed to, or aggravated his medical condition. It also provided a questionnaire for his
completion. OWCP afforded appellant 30 days to respond. No response was received within the
time allotted.

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By decision dated September 17, 2018, OWCP denied appellant’s traumatic injury claim,
finding that the factual component of fact of injury had not been established. It also found that he
had not submitted medical evidence to establish a diagnosed medical condition causally related to
the alleged employment incident. OWCP concluded, therefore, that appellant had not met the
requirements to establish an injury as defined by FECA.
On September 21, 2018 appellant, through counsel, requested a telephonic hearing with a
representative of OWCP’s Branch of Hearings and Review.
In a narrative statement dated September 25, 2018, appellant responded to OWCP’s
development questionnaire. He described the circumstances surrounding the May 5, 2017
employment incident, a right shoulder diagnosis, and subsequent course of treatment.
OWCP subsequently received a Certification of Health Care Provider for Employee’s
Serious Medical Condition (Family and Medical Leave Act (FMLA)) dated November 14, 2018
and completed by Dr. Economopoulos. Dr. Economopoulos noted that appellant had right
shoulder pain that commenced May 5, 2017. He related that the probable duration of his condition
was from the date of his report to April 14, 2019. Dr. Economopoulos also related that appellant
was incapacitated and unable to perform a certain job function due to the condition during this
period.
During a telephonic hearing, held on January 30, 2019, appellant again described the
circumstances surrounding the May 5, 2017 employment incident.
Following the hearing, OWCP received a witness statement dated January 22, 2019 from
appellant’s coworker who indicated that he was present when appellant injured his shoulder while
cleaning a table in procedure room number 4 at work. The coworker related that the table had a
very heavy and awkward piece of equipment on it. He reported that appellant suddenly yelled and
when he turned around appellant was grabbing his shoulder.
An OWCP hearing representative, by decision dated March 8, 2019, modified and affirmed
the September 17, 2018 decision. The decision found that the factual evidence was sufficient to
establish that the May 5, 2017 employment incident occurred, as alleged. The hearing
representative accepted that appellant sustained a right shoulder strain in connection with the
accepted May 5, 2017 employment incident. However, it was determined that the medical
evidence of record was insufficient to establish additional right shoulder conditions causally
related to the accepted May 5, 2017 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA 4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that he or she is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation,
that an injury was sustained while in the performance of duty as alleged, and that any disability or

4

Id.

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specific 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
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury. 7 To establish causal relationship between the condition, as well
as any attendant disability claimed and the employment event or incident, the employee must
submit rationalized medical opinion evidence based on a complete factual and medical
background, supporting such a causal relationship. 8 The opinion of the physician must be based
on a complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant. 9
The weight of medical evidence is determined by its reliability, its probative value, its convincing
quality, the care of analysis manifested, and the medical rationale expressed in support of the
physician’s opinion.10
ANALYSIS
The Board finds that appellant has not met his burden of proof to expand the acceptance of
his claim to establish that the acceptance of his claim should be expanded to include additional
right shoulder conditions causally related to his accepted May 5, 2017 employment injury.
Dr. Orbon’s January 26, 2018 consultation note related a history of the accepted May 5,
2017 employment incident and diagnosed a torn long head biceps tendon of the right shoulder that
required rotator cuff repair. Dr. Economopoulos’ July 26, 2018 report also provided a history of
the accepted employment incident of May 5, 2017. He diagnosed right shoulder pain, rotator cuff
tear, and biceps tear, and recommended right rotator cuff repair. Neither physician offered a
medical opinion, finding that the diagnosed conditions were causally related to the accepted work
injury.11 Further, in his November 14, 2018 FMLA certification of health care provider form,
Dr. Economopoulos diagnosed right shoulder pain that commenced May 5, 2017. However, the
Board has held that pain is a symptom, not a diagnosis and therefore does not constitute the basis

5

See F.H., Docket No. 18-1238 (issued January 18, 2019); Tracey P. Spillane, 54 ECAB 608 (2003).

6

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

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

8

See S.A., Docket No. 18-0399 (issued October 16, 2018).

9

See P.M., Docket No. 18-0287 (issued October 11, 2018).

10

F.H., supra note 5.

11

See R.J., Docket No. 17-1365 (issued May 8, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018).

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for the payment of compensation. 12 For the foregoing reasons, the Board finds that these reports
are insufficient to establish appellant’s burden of proof.
The diagnostic reports of Dr. Almaria and Dr. Shinault addressed appellant’s right shoulder
conditions. Diagnostic studies are of limited probative value as they do not address whether the
employment incident caused any of the diagnosed conditions. 13 These reports, therefore, are also
insufficient to establish appellant’s claim.
Appellant submitted reports from his physical therapists. This evidence has no probative
medical value because a physical therapist is considered a “physician” as defined under FECA. 14
The Board finds that appellant has not submitted sufficient rationalized medical evidence
to establish causal relationship between the accepted May 5, 2017 employment injury and the
claimed additional right shoulder conditions. As such, appellant has not met his burden of proof.
On appeal counsel contends that OWCP’s March 8, 2019 decision is contrary to fact and
law. For the reasons set forth above, the Board finds that appellant 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 that the
acceptance of his claim should be expanded to include additional right shoulder conditions causally
related to his accepted May 5, 2017 employment injury.

12

R.J., id.; John L. Clark, 32 ECAB 1618 (1981).

13

See R.J., id.; E.G., Docket No. 17-1955 (issued September 10, 2018).

14

5 U.S.C. § 8101(2) provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law.
See 5 U.S.C. § 8102(2); S.O., Docket No. 19-0307 (issued June 18, 2019); J.B., Docket Nos. 18-1751 and 19-0792
(issued May 6, 2019); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as nurses, physician
assistants and physical therapists are not competent to render a medical opinion under FECA). See also Gloria J.
McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (a medical issue such as causal
relationship can only be resolved through the submission of probative medical evidence from a physician).

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ORDER
IT IS HEREBY ORDERED THAT the March 8, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: October 2, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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