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

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

Docket No. 17-0732
Issued: March 19, 2018

Case Submitted on the Record

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

JURISDICTION
On February 14, 2017 appellant filed a timely appeal from a January 12, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish more than 10 percent
permanent impairment of her left lower extremity, for which she previously received a schedule
award.
FACTUAL HISTORY
On October 4, 2007 appellant, then a 50-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on October 2, 2007 she sustained injury due to loading and
1

5 U.S.C. § 8101 et seq.

unloading mail at work. She stopped work on October 8, 2007 and returned to work the next day
on October 9, 2007 in a limited-duty position.
OWCP initially accepted that appellant sustained a lumbar sprain on October 2, 2007 and
she received disability compensation on the daily rolls beginning January 27, 2010.2
On January 27, 2010 Dr. Mark J. Sokolowski, an attending orthopedic surgeon, performed
bilateral lumbar hemilaminectomy at L5-S1 with decompression of the thecal sac and nerve roots,
and partial facetectomy and foraminotomy bilaterally. The surgery was authorized by OWCP. In
February 2011, OWCP expanded the accepted conditions to include lumbar radiculopathy and
herniated lumbar disc.
In a report dated September 3, 2015, Dr. Sokolowski reported the findings of his physical
examination on that date and noted that appellant’s current and past findings on physical
examination and diagnostic testing showed that she had spondylolisthesis at L5-S1. He indicated
that appellant exhibited sensory loss in both extremities associated with the L5 and S1 dermatomes.
On June 7, 2016 appellant filed a claim for compensation (Form CA-7) for a schedule
award due to her accepted employment conditions.
On June 28, 2016 Dr. Sokolowski noted that appellant presented complaining of pain
radiating from her lumbar spine down into her left lower extremity. He reported the findings on
physical examination noting that extension beyond neutral reproduced concordant back pain with
radiation to appellant’s left lower extremity. Dr. Sokolowski noted that the straight leg raise test
was positive on the left and negative on the right and that sensation was diminished in her L5 and
S1 dermatomes on the left.
In a report dated July 7, 2016, Dr. Sokolowski indicated that, although the January 27,
2010 surgery provided some relief, appellant remained persistently symptomatic with lumbar pain
radiating into her left leg, positive straight leg raise test, five-degree hamstring contracture, and
diminished sensation in her left L5 and S1 dermatomes. He noted that a recent magnetic resonance
imaging (MRI) scan demonstrated L4-5 and L5-S1 spondylolisthesis and he determined that the
impairment rating would be based on this condition under the standards of the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).3 Dr. Sokolowski found that, under Table 17-4 (Lumbar Spine Regional Grid) on page
571, appellant’s back condition fell under class 4 for lumbar spondylolisthesis with surgery and
documented signs of multilevel left radiculopathy at the clinically appropriate levels on
examination. He noted that the default impairment value for a class 4 condition was 29 percent of
the whole person and described his calculation of grade modifiers.4 Dr. Sokolowski indicated that
application of the net adjustment formula yielded a result of -2 such that appellant’s impairment

2

Appellant received disability compensation on the periodic rolls beginning March 8, 2015.

3

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

4
Dr. Sokolowski noted that appellant had a grade modifier for Functional History (GMFH) of 3, a grade modifier
for Clinical Studies (GMCS) of 2 and a grade modifier for Physical Examination (GMPE) of 2.

2

rating moved two places to the left of the 29 percent default value for whole person impairment
found on Table 17-4.5 He concluded that appellant had 25 percent whole person impairment.6
In a report dated November 9, 2016, Dr. Sokolowski noted that the diagnosis affecting
appellant’s left lower extremity and the L5 and S1 peripheral nerves was lumbar spondylolisthesis
with surgery and documented signs of multilevel left radiculopathy at the clinically appropriate
levels on examination. Dr. Sokolowski indicated that under Proposed Table 2 of The Guides
Newsletter, “Rating Spinal Nerve Extremity Impairment Using the Sixth Edition”
(July/August 2009) (hereinafter The Guides Newsletter), appellant had six percent default value
for permanent impairment of the left lower extremity associated with class 1 severe sensory
deficits of the L5 nerve. Under Proposed Table 2, appellant had four percent default value for
permanent impairment of the left lower extremity associated with class 1 severe sensory deficits
of the S1 nerve. Dr. Sokolowksi calculated grade modifiers and application of the net adjustment
formula. He did not alter the six percent impairment associated with the L5 nerve or the four
percent impairment associated with the S1 nerve.7 He noted that combining these two values
yielded a total permanent impairment of the left lower extremity of 10 percent.
In mid-November 2016, OWCP referred the case to Dr. Arthur S. Harris, a Board-certified
orthopedic surgeon serving as an OWCP medical adviser, for an evaluation of the permanent
impairment of her lower extremities. Dr. Harris was not provided with the November 9, 2016
report of Dr. Sokolowski at the time of the referral.
In a report dated November 18, 2016, Dr. Harris indicated that he was applying the
standards of The Guides Newsletter to the findings from the physical examination Dr. Sokolowski
conducted on September 3, 2015. He determined that appellant had one percent permanent
impairment of the left lower extremity associated with sensory deficits of the L5 nerve and one
percent permanent impairment of the left lower extremity associated with sensory deficits of the
S1 nerve. Dr. Harris noted that combining these two values yielded a total permanent impairment
of the left lower extremity of two percent.8
In mid-December 2016, Dr. Harris was provided the November 9, 2016 report of
Dr. Sokolowski and he was asked to provide a supplemental impairment evaluation taking this
report into account.
In a report dated December 16, 2016, Dr. Harris indicated that he had reviewed the
November 9, 2016 report of Dr. Sokolowski. He applied the standards of The Guides Newsletter
to find that appellant had six percent permanent impairment of the left lower extremity associated
with sensory deficits of the L5 nerve and four percent permanent impairment of the left lower
extremity associated with sensory deficits of the S1 nerve. Dr. Harris explained that his rating of
5

See infra note 20.

6

Dr. Sokolowksi indicated that the date of maximum medical improvement (MMI) was September 3, 2015

7

Dr. Sokolowski again noted that appellant had a GMFH of 3, a GMCS of 2 and a GMPE of 2.

8
Dr. Harris produced a similar calculation for appellant’s right lower extremity and found permanent impairment
of the right lower extremity of two percent.

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left lower extremity impairment was higher than that provided in his November 18, 2016 report
because he was now applying Dr. Sokolowski’s examination findings from November 2016, rather
than from September 2015, and appellant’s left lower extremity condition had worsened between
September 2015 and November 2016. He found that appellant reached MMI with respect to his
accepted conditions on November 9, 2016, i.e., the most recent evaluation by Dr. Sokolowksi and
the evaluation that formed the basis for his impairment rating.
By decision dated January 12, 2017, OWCP granted appellant a schedule award for 10
percent permanent impairment of her left lower extremity. The award ran for 28.8 weeks from
November 9, 2016 to May 29, 2017 and was based on the November 9, 2016 rating of
Dr. Sokolowski and the December 16, 2016 rating of Dr. Harris.
LEGAL PRECEDENT
The schedule award provision of FECA9 and its implementing regulations10 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides has been adopted by the implementing regulation as the appropriate standard for
evaluating scheduled losses.11 The effective date of the sixth edition of the A.M.A., Guides is
May 1, 2009.12
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.13 A
schedule award is not payable for the loss, or loss of use, of a part of the body that is not specifically
enumerated under FECA.14 Moreover, neither FECA nor its implementing regulations provide for a
schedule award for impairment to the back or to the body as a whole. Furthermore, the back is
specifically excluded from the definition of organ under FECA.15
In 1960, amendments to FECA modified the schedule award provisions to provide for an
award for permanent impairment to a member of the body covered by the schedule regardless of
9

5 U.S.C. § 8107.

10

20 C.F.R. § 10.404 (1999).

11

Id.

12
See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
13

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

14

Thomas J. Engelhart, 50 ECAB 319 (1999).

15

James E. Mills, 43 ECAB 215, 219 (1991); James E. Jenkins, 39 ECAB 860, 866 (1990).

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whether the cause of the impairment originated in a scheduled or nonscheduled member.
Therefore, as the schedule award provisions of FECA include the extremities, a claimant may be
entitled to a schedule award for permanent impairment to an extremity even though the cause of
the impairment originated in the spine.16
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. For peripheral nerve impairments to the upper or
lower extremities resulting from spinal injuries, OWCP’s procedures indicate that The Guides
Newsletter, “Rating Spinal Nerve Extremity Impairment Using the Sixth Edition”
(July/August 2009) (The Guides Newsletter) is to be applied.17 The Board has long recognized the
discretion of OWCP to adopt and utilize various editions of the A.M.A., Guides for assessing
permanent impairment.18 In particular, the Board has recognized the adoption of this methodology
for rating extremity impairment, including the use of The Guides Newsletter, as proper in order to
provide a uniform standard applicable to each claimant for a schedule award for extremity
impairment originating in the spine.19
In addressing lower extremity impairments, due to peripheral or spinal nerve root
involvement, the sixth edition requires identifying the impairment Class of Diagnosis (CDX)
condition, which is then adjusted by grade modifiers based on grade modifier for functional history
(GMFH) and, if electrodiagnostic testing was done, grade modifier for clinical studies (GMCS).20
The net adjustment formula is (GMFH - CDX) + (GMCS - CDX).21
ANALYSIS
OWCP accepted that on October 2, 2007 appellant sustained lumbar sprain, lumbar
radiculopathy, and herniated lumbar disc. On January 27, 2010 Dr. Sokolowski, an attending
physician, performed bilateral lumbar hemilaminectomy at L5-S1 with decompression of thecal
sac and nerve roots, and partial facetectomy and foraminotomy bilaterally. The surgery was
authorized by OWCP. By decision dated January 12, 2017, OWCP granted appellant a schedule
award for 10 percent permanent impairment of her left lower extremity. The award was based on
the November 9, 2016 rating of Dr. Sokolowski and the December 16, 2016 rating of Dr. Harris,
OWCP’s medical adviser.
The Board finds that OWCP properly determined that appellant has not established more
than 10 percent permanent impairment of her left lower extremity, for which she previously
16

Supra note 14.

17

See G.N., Docket No. 10-850 (issued November 12, 2010); see also Federal (FECA) Procedure Manual,
Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1, note 5 (January 2010). The Guides Newsletter is
included as Exhibit 4.
18

D.S., Docket No. 14-0012 (issued March 18, 2014).

19

See E.D., Docket No. 13-2024 (issued April 24, 2014); D.S., Docket No. 13-2011 (issued February 18, 2014).

20

A.M.A., Guides 515-21, 533.

21

Id. at 521.

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received a schedule award. This determination was justified by the November 9, 2016 rating of
Dr. Sokolowski and the December 16, 2016 rating of Dr. Harris.
In a report dated November 9, 2016, Dr. Sokolowski noted that the diagnosis affecting
appellant’s left lower extremity and the L5 and S1 peripheral nerves was lumbar spondylolisthesis
with surgery and documented signs of multilevel left radiculopathy at the clinically appropriate
levels on examination. He indicated that, under Proposed Table 2 of The Guides Newsletter,
appellant had six percent default value for permanent impairment of the left lower extremity
associated with class 1 severe sensory deficits of the L5 nerve. Under Proposed Table 2, appellant
had four percent default value for permanent impairment of the left lower extremity associated
with class 1 severe sensory deficits of the S1 nerve. Dr. Sokolowksi calculated grade modifiers
and application of the net adjustment formula did not alter the six percent impairment associated
with the L5 nerve or the four percent impairment associated with the S1 nerve. He noted that
combining these two values yielded a total permanent impairment of the left lower extremity of
10 percent.22
In a report dated December 16, 2016, Dr. Harris indicated that he had reviewed the
November 9, 2016 report of Dr. Sokolowski. He also applied the standards of The Guides
Newsletter to find that appellant had six percent permanent impairment of the left lower extremity
associated with sensory deficits of the L5 nerve and four percent permanent impairment of the left
lower extremity associated with sensory deficits of the S1 nerve. Dr. Harris combined these two
values and concluded that appellant had a total permanent impairment of the left lower extremity
of 10 percent.23 The Board notes that Dr. Harris had previously provided a lower rating for
permanent impairment of the left lower extremity. However, in his December 16, 2016 report,
Dr. Harris explained that his rating of left lower extremity impairment was now higher than that
provided in his prior report because he was now applying Dr. Sokolowski’s examination findings
from November 2016, rather than from September 2015, and appellant’s left lower extremity
condition had worsened between September 2015 and November 2016.24
In his December 16, 2016 report, Dr. Harris found that appellant reached MMI with respect
to his accepted conditions on November 9, 2016, i.e., the most recent evaluation by
Dr. Sokolowksi and the evaluation that formed the basis for his impairment rating. On appeal
22
Dr. Sokolowski had previously provided an opinion that appellant had 25 percent permanent impairment of her
whole person. However, this report is of limited probative value because the Board has held that a schedule award is
not payable under section 8107 of FECA for an impairment of the whole person. See Gordon G. McNeill, 42 ECAB
140, 145 (1990).
23

See supra notes 16 through 20 regarding the application of The Guides Newsletter for permanent impairment of
the lower extremities stemming from the back.
24

Dr. Harris previously had provided an impairment rating for appellant’s right lower extremity in his
November 18, 2016 report, but he later explained in his December 16, 2016 report that the most recent examination
findings did not show a work-related impairment radiating into the right lower extremity from the accepted back
injuries. The Board notes that a schedule award is not payable for the loss, or loss of use, of a part of the body that is not
specifically enumerated under FECA. Neither FECA nor its implementing regulations provides for a schedule award for
impairment to the back. James E. Mills, 43 ECAB 215, 219 (1991); James E. Jenkins, 39 ECAB 860, 866 (1990). As
noted above, a claimant may be entitled to a schedule award for permanent impairment to an extremity, even though
the cause of the impairment originated in the spine, if such radiating impairment is documented. See supra note 15.

6

appellant notes that Dr. Sokolowski provided an opinion that he reached MMI on September 3,
2015 whereas Dr. Harris found that he reached MMI on November 9, 2016. MMI means that the
physical condition of the injured member of the body has stabilized and will not improve further,25
and date of MMI is usually considered to be the date of the evaluation accepted as definitive by
OWCP.26 The Board requires persuasive proof of MMI if OWCP selects a retroactive date.27 The
Board notes that Dr. Harris adequately explained his choice of November 9, 2016 as the date of
MMI because November 9, 2016 was the date of Dr. Sokolowski’s examination on which the
impairment rating was based. There is no persuasive evidence that choosing a retroactive date of
MMI would be appropriate in the present case. For these reasons, the Board finds that appellant
did not establish that she has more than 10 percent permanent impairment of her left lower
extremity.
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 did not meet her burden of proof to establish more than 10
percent permanent impairment of her left lower extremity, for which she previously received a
schedule award.

25

Adela Hernandez-Piris, 35 ECAB 839 (1984).

26
Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3.a (January 2010); see
Richard Larry Enders, 48 ECAB 184 (1996) (the date of MMI was the date of the audiologic examination used as the
basis of the schedule award).
27
C.S., Docket No. 12-1574 (issued April 12, 2013); P.C., 58 ECAB 539 (2007); James E. Earle, 51 ECAB
567 (2000).

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ORDER
IT IS HEREBY ORDERED THAT the January 12, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 19, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Barrington, RI, Employer
__________________________________________

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

Docket No. 07-1271
Issued: September 14, 2007

Case Submitted on the Record

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

JURISDICTION
On April 9, 2007 appellant filed a timely appeal of a January 9, 2007 nonmerit decision,
of the Office of Workers’ Compensation Programs denying his request for reconsideration.
Because more than one year has elapsed between the most recent merit decision dated April 12,
2005 and the filing of this appeal, the Board lacks jurisdiction to review the merits of appellant’s
claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly denied appellant’s request for further review of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On November 19, 1998 appellant, then a 47-year-old letter carrier, filed a traumatic
injury claim. On November 17, 1998 he hurt his neck, shoulder and arm and experienced pain
and a tingling sensation in his elbow as a result of striking his head on the bottom of an overhead

rear door of a long-life vehicle while trying to step in to arrange mail. By letter dated April 26,
1999, the Office accepted appellant’s claim for cervical strain.
On September 23, 2004 appellant filed a claim alleging that he sustained a recurrence of
disability in September 2004.
By decision dated December 3, 2004, the Office denied appellant’s claim. It found that
he did not submit any medical evidence establishing that he sustained a recurrence of disability
causally related to his November 17, 1998 employment-related injury.
On December 15, 2004 appellant requested a review of the written record by an Office
hearing representative. In a November 19, 2004 medical report, Dr. Marco P. Dirks, an
attending Board-certified orthopedic surgeon, found that appellant’s symptoms of numbness and
tingling in September 2004 were directly related to his November 17, 1998 employment injury.
In a decision dated April 12, 2005, a hearing representative affirmed the December 3,
2004 decision. He found the evidence of record insufficient to establish that appellant sustained
a recurrence of disability in September 2004 causally related to his accepted November 17, 1998
employment injury.
Dr. Dirks subsequently submitted reports dated January 13, February 11, March 17,
April 8 and May 6, 1999, October 14, 2004 and September 26, 2005. He found that appellant’s
cervical radiculitis was resolving and that he had carpal tunnel syndrome. The Office also
received a duplicate copy of Dr. Dirks’ November 19, 2004 report.
A September 28, 2005 magnetic resonance imaging (MRI) scan report of Dr. Stephen
Karshbaum, a Board-certified radiologist, demonstrated straightening of the usual cervical
lordosis and narrowing of the cervical spinal canal at various levels. An October 25, 2005 report
of Dr. David J. Cicerchia, a Board-certified orthopedic surgeon, found that appellant had cervical
spinal stenosis and cervical spondylosis. He found no myelopathy.
On October 2, 2006 appellant advised the Office that he filed another “appeal” regarding
the April 12, 2005 decision and a return receipt stated that it was received by the Office on
March 14, 2006.
By letter dated October 11, 2006, appellant stated that he was resubmitting his request for
reconsideration because his original request had been apparently lost. He submitted a copy of
the return receipt which indicated that his reconsideration request was received by the Office on
March 14, 2006. Dr. Dirks’ form report dated May 6, 1999 found that both appellant’s right
carpal tunnel syndrome and cervical radiculitis were resolving.
In a decision dated January 9, 2007, the Office treated appellant’s request for
reconsideration as timely filed based on the March 14, 2006 return receipt. The Office, however,
denied his request on the grounds that it neither included new and relevant evidence nor showed
that the Office erroneously applied or interpreted a specific point of law and thus, insufficient to
warrant a merit review of its prior decisions.

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LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128 of the Federal
Employees’ Compensation Act,1 the Office regulation provides that a claimant must: (1) show
that the Office erroneously applied or interpreted a specific point of law; (2) advance a relevant
legal argument not previously considered by the Office; or (3) constitute relevant and pertinent
new evidence not previously considered by the Office.2 To be entitled to a merit review of an
Office decision denying or terminating a benefit, a claimant also must file his or her application
for review within one year of the date of that decision.3 When a claimant fails to meet one of the
above standards, the Office will deny the application for reconsideration without reopening the
case for review of the merits.
ANALYSIS
On March 14, 2006 appellant disagreed with the Office hearing representative’s April 12,
2005 decision, affirming the finding that he did not sustain a recurrence of disability beginning in
September 2004 causally related to his November 17, 1998 employment-related cervical strain.
The underlying issue in this case is whether he has established that his recurrence of disability
during the claimed period was due to his accepted employment-related condition. This issue is
medical in nature.
Appellant submitted duplicate copies of Dr. Dirks’ reports dated January 13, February 11,
March 17, April 8 and May 6, 1999, which found that he had cervical radiculitis and carpal
tunnel syndrome that were subsequently resolving.
A duplicate copy of Dr. Dirks’
November 19, 2004 report found that appellant’s symptoms of numbness and tingling in
September 2004 were directly related to his November 17, 1998 employment-related injury.
Dr. Dirks’ October 14, 2004 and September 26, 2005 reports reiterated his prior finding that
appellant sustained cervical radiculitis. The submission of evidence which repeats or duplicates
evidence that is already in the case record does not constitute a basis for reopening a case for
merit review.4 Dr. Dirks’ reports covering the period January 13 to May 6, 1999 and dated
November 19, 2004 were already of record and considered by the Office. His October 14, 2004
and September 26, 2005 reports merely included a diagnosis that repeated evidence already of
record. The Board finds that Dr. Dirks’ reports are insufficient to warrant reopening appellant’s
claim for further merit review.
Dr. Karshbaum’s September 28, 2005 MRI scan report demonstrated straightening of the
usual cervical lordosis and narrowing of the cervical spinal canal at various levels.
Dr. Cicerchia’s October 25, 2005 report found that appellant had cervical spinal stenosis and
cervical spondylosis. This evidence fails to address whether appellant sustained a recurrence of
1

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
2

20 C.F.R. § 10.606(b)(1)-(2).

3

Id. at § 10.607(a).

4

See Patricia G. Aiken, 57 ECAB ___ (Docket No. 06-75, issued February 17, 2006).

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disability in September 2004 causally related to his accepted employment injury. The Board has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.5 Because neither Dr. Karshbaum nor Dr. Cicerchia
addressed the relevant issue in this case, their reports are insufficient to warrant reopening
appellant’s claim for further merit review.6
Appellant did not submit any relevant and pertinent new evidence not previously
considered by the Office in support of his request for reconsideration. Further, he did not show
that the Office erroneously applied or interpreted a specific point of law or advance a relevant
legal argument not previously considered by the Office. As appellant did not meet any of the
necessary regulatory requirements, the Board finds that the Office properly denied merit review.7
CONCLUSION
The Board finds that the Office properly denied appellant’s request for further review of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).

5

Mark H. Dever, 53 ECAB 710 (2002).

6

Id.

7

See James E. Norris, 52 ECAB 93 (2000).

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ORDER
IT IS HEREBY ORDERED THAT the January 9, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 14, 2007
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.F., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, AUSTIN STRAUBEL
INTERNATIONAL AIRPORT, Green Bay, WI,
Employer
__________________________________________

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

Docket Nos. 10-1494 &
10-1519
Issued: April 1, 2011

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 May 11, 2010 appellant filed a timely appeal from an April 12, 2010 Office of
Workers’ Compensation Programs’ decision affirming the denial of wage-loss compensation.
This was assigned docket number 10-1494. On May 17, 2010 appellant timely appealed a
March 30, 2010 Office decision affirming the denial of her claim for a recurrence of disability.
This was assigned docket number 10-1519. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the claims.
ISSUES
The issues on appeal are: (1) whether appellant met her burden of proof to establish
entitlement to wage-loss compensation from April 28 through July 18, 2008; and (2) whether she
established a recurrence of total disability commencing July 21, 2008 causally related to her
April 22, 2008 employment injury.

FACTUAL HISTORY
On April 22, 2008 appellant, then a 42-year-old lead transportation security screener,
sustained a back injury when a coworker poked his finger in her back and pushed down on her
left shoulder. The record reflects that she had nonwork-related mid- and right-sided thoracic
pain from a facet and rib dysfunction on the right side. Appellant had been released to regular
work with no restrictions on April 2, 2008. She stopped work on April 22, 2008 and was
released to modified duty on April 28, 2008 under the restrictions of Dr. John Talbot Sellers, an
osteopath and Board-certified physiatrist. The Office accepted a claim for thoracic sprain that
resolved as of July 22, 2008. On July 21, 2008 appellant stopped work and resigned from the
employing establishment.
In an April 24, 2008 report, Dr. Sellers noted a history of the April 22, 2008 incident and
opined that appellant likely had facet and rib dysfunction on the right side. Appellant would
undergo physical therapy and be kept off work until Monday, April 28, 2008. In an April 30,
2008 attending physician’s report, Dr. Sellers advised that appellant’s mid- and right-sided
thoracic pain was caused or aggravated by her work injury. He found that appellant was totally
disabled from April 24 to 27, 2008 but could return to modified duties with restrictions on
April 28, 2008. Dr. Sellers continued to treat appellant. In his progress reports, he stated there
was no change in the medical symptoms and that appellant had been attending physical therapy.
Dr. Sellers reiterated that she could continue to work at modified duty with restrictions.
Appellant also submitted copies of physical therapy reports.
The record reflects appellant went to an emergency room on June 19, 2008 and was
diagnosed with acute exacerbation of chronic back pain by Dr. Robert C. Zimmerman, Boardcertified in emergency medicine. She was released that day to the care of her attending
physician. A June 19, 2008 x-ray revealed mild spondylosis of the thoracic spine.
On June 25 and July 10, 2008 appellant saw Dr. Richard L. Harrison, a Board-certified
neurosurgeon, who did not address whether she was disabled.
In a May 4, 2009 report, Dr. Kimball S. Fulks, a neurosurgeon and Office referral
physician, reviewed appellant’s history and treatment. He opined that the April 2008 work
incident caused a temporary aggravation of her preexisting thoracic degenerative disc disease
and a thoracic strain. Dr. Fulks found that the work-related conditions resolved within 60 to 90
days.
On June 24, 2009 appellant filed a Form CA-7 for wage-loss compensation for
intermittent dates from April 24 through July 21, 2008. This included dates within the
continuation of pay period April 22 to June 5, 20081 and disability on June 20, July 2, 16, 17
and 18, 2008.
In an August 10, 2009 letter, the employing establishment advised that the continuation
of pay period ran from April 22 through June 5, 2008 and appellant received continuation of pay
1

The dates for compensation within the continuation of pay period were: April 24 and 28, May 2, 3, 12 and 13
and June 1, 2008.

2

through April 27, 2008. However, no medical documentation supported that the intermittent
time she took off from work April 28 through July 18, 2008 was due to the April 22, 2008 injury.
The employing establishment accommodated appellant’s work restrictions until she resigned on
July 21, 2008. It also noted that she was not eligible for leave buyback as she was no longer an
employee.
In an August 12, 2009 letter, the Office advised appellant that the employing
establishment would be responsible for the dates claimed for continuation of pay. She could file
a formal leave buyback for the dates she used sick and annual leave. It noted that the medical
evidence did not establish disability for work during the claimed period. Appellant was accorded
30 days to submit additional medical evidence of disability. She did not respond.
On August 14, 2009 the Office received appellant’s June 26, 2009 claim for a recurrence
of disability commencing July 21, 2008. Appellant alleged that she was forced to resign due to
the effects of her accepted work injury. She had back surgery and was restricted from lifting,
bending, twisting, reaching or carrying objects. The employing establishment advised that
appellant was accommodated with limited-duty work as a result of her April 22, 2008 injury
under her doctor’s instructions. In an August 20, 2009 letter, the Office advised her of the
evidence necessary to establish a recurrence claim.
By decision dated September 21, 2009, the Office denied appellant’s claim for wage loss
from April 24 to July 21, 2008. It found that the medical evidence of record failed to establish
her disability.
By decision dated September 22, 2009, the Office denied appellant’s recurrence claim. It
found that the medical evidence did not establish that she became disabled from work effective
July 21, 2008 as a result of the accepted work injury.
In letters of September 25, 2009, appellant requested a telephone hearing from the
Office’s September 21 and 22, 2009 decisions. She submitted medical reports from 2009
regarding her back pain. In a January 2, 2009 report, Dr. Harrison stated that appellant had a
thoracic strain prior to the April 22, 2008 work incident. The April 22, 2008 work injury caused
a permanent aggravation of her preexisting condition as she had not improved in spite of
multiple interventions including medications, therapies and injections.
In an October 21, 2009 report, Dr. Marco Araujo, a Board-certified anesthesiologist and
pain specialist, stated that appellant had been under his care since November 10, 2008. He
advised that she had primarily right-sided interscapular and subscapular pain with bilateral T9
and T10 thoracic radiculopathy. Dr. Araujo diagnosed thoracic spine pain, displacement of a
cervical disc and bilateral thoracic radiculopathy. He opined that she reached maximum medical
improvement regarding her thoracic pain but had cervicalgia due to cervical disc displacement
and disc degeneration at C6-C7.
A hearing on the recurrence claim was held on January 10, 2010. Appellant noted that,
prior to the work injury, she had no work restrictions. In a February 3, 2010 letter, the
employing establishment refuted her statement. It noted that appellant transferred from full time
(“80 tour”) to part time (“64 tour”) on June 25, 2006 and from part time (“64 tour”) to part time

3

(“48 tour”) on February 3, 2008. The employing establishment submitted evidence concerning
appellant’s preexisting back problems prior to April 22, 2008. Appellant was disabled from
work on intermittent dates prior to April 22, 2008 and placed at modified duty from four to six
hours a day. The evidence included work restrictions from Dr. Sellers. Appellant was released
to regular work without restrictions on April 2, 2008 as a part-time lead transportation security
officer.
A telephonic hearing on appellant’s wage-loss claim was held on February 11, 2010.
Appellant testified that she was bedridden on the days wage loss was claimed. Her attorney
contended that it was impractical for her to obtain medical documentation of disability for each
date claimed. Counsel argued medical reports of January 2 and October 21, 2009 were sufficient
to document her disability.
By decision dated March 30, 2010, an Office hearing representative affirmed the
September 22, 2009 recurrence decision.
By decision dated April 12, 2010, an Office hearing representative affirmed the
September 21, 2009 decision as modified to allow continuation of pay on Friday, April 24, 2008.
The medical evidence supported disability on April 24, 2008 and through the weekend but
appellant was released to work as of April 28, 2008.
LEGAL PRECEDENT -- ISSUE 1
With respect to a claimed period of disability, an employee has the burden of establishing
that any disability or specific condition for which compensation is claimed is causally related to
the employment injury.2 The term disability is defined as the incapacity because of an
employment injury to earn the wages the employee was receiving at the time of the injury, i.e., a
physical impairment resulting in loss of wage-earning capacity.3
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative and substantial medical evidence.4 The medical evidence required to establish
a period of employment-related disability is rationalized medical evidence.5 Rationalized
medical evidence is medical evidence based on a complete factual and medical background of
the claimant, of reasonable medical certainty, with an opinion supported by medical rationale.6
The Board, however, will not require the Office to pay compensation for disability in the absence
of medical evidence directly addressing the specific dates of disability for which compensation is

2

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

3

20 C.F.R. § 10.5(f); see e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
4

See Fereidoon Kharabi, 52 ECAB 291 (2001).

5

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

6

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

4

claimed.7 To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.8
ANALYSIS -- ISSUE 1
The Office accepted the April 22, 2008 work injury caused a thoracic sprain which
resolved as of July 22, 2008. Appellant filed a claim for wage-loss compensation for intermittent
disability from April 24 to July 21, 2008. The hearing representative found that the record
supported disability on April 24, 2008 and she received continuation of pay from April 24
through 27, 2008. The period of denial is April 28 to July 21, 2008.9 It is appellant’s burden of
proof to establish her disability due to the accepted condition.
The Board finds the medical evidence fails to established appellant’s disability from
April 28 to July 21, 2008. The evidence reveals that Dr. Sellers treated appellant on April 24,
2008 for symptoms arising from the April 22, 2008 work injury. In reports of April 24 and 30,
2008, he advised that appellant was totally disabled from April 24 to 27, 2008 but could return to
modified duty with restrictions on April 28, 2008. In subsequent reports, Dr. Sellers noted no
change in appellant’s medical symptoms and found that she could work at modified duty with
restrictions. He did not support any subsequent intermittent dates of total disability or address
any days that she was bedridden. The evidence does not suggest that Dr. Sellers was aware that
appellant took time off from work due to the work injury. There is no indication that he advised
her to stop work as of July 21, 2008. The reports of Dr. Sellers are insufficient to support
appellant’s claim for compensation for intermittent disability from April 28 to July 21, 2008.
While appellant went to an emergency room on June 19, 2008, Dr. Zimmerman did not
reference the employment injury or address the issue of disability on any of the claimed dates.
The remaining medical evidence fails to provide any opinion on disability. Appellant’s attorney
argued that Dr. Harrison’s January 2, 2009 report and Dr. Araujo’s October 21, 2009 report were
sufficient to establish disability for the dates claimed. The Board notes that neither physician
provided an opinion on whether appellant was disabled due to the April 22, 2008 injury. The
Board will not require the Office to pay compensation for disability in the absence of medical
evidence directly addressing the specific dates of disability for which compensation is claimed.10
Appellant did not meet her burden of proof to establish employment-related disability for
intermittent dates during the period April 28 to July 21, 2008.

7

Sandra D. Pruitt, 57 ECAB 126 (2005).

8

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

9

The Act provides that wage-loss compensation for disability does not begin until continuation of pay ceases.
See 5 U.S.C. § 8118(c).
10

See Sandra D. Pruitt, supra note 7.

5

LEGAL PRECEDENT -- ISSUE 2
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which has resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.11 A person who claims a recurrence of disability due to an accepted
employment-related injury has the burden of establishing by the weight of the substantial,
reliable and probative evidence that the disability for which she claims compensation is causally
related to the accepted injury. This burden of proof requires that an employee furnish medical
evidence from a physician who, on the basis of a complete and accurate factual and medical
history, concludes that the disabling condition is causally related to the employment injury and
supports that conclusion with sound medical reasoning.12 Where no such rationale is present,
medical evidence is of diminished probative value.13
When an employee, who is disabled from the job she held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that she can perform the light-duty position, the employee has the burden to establish
by the weight of the reliable, probative and substantial evidence a recurrence of total disability
and show that she cannot perform such light duty.14 As part of this burden, the employee must
show either a change in the nature and extent of the injury-related condition or a change in the
nature and extent of the light-duty requirements.15 To establish a change in the nature and extent
of the injury-related condition, there must be probative medical evidence of record. The
evidence must include a medical opinion, based on a complete and accurate factual and medical
history and supported by sound medical reasoning, that the disabling condition is causally related
to employment factors.16
ANALYSIS -- ISSUE 2
The Office accepted the April 22, 2008 work injury caused a thoracic sprain which
resolved as of July 22, 2008. The issue is whether appellant established that she sustained a
11

R.S., 58 ECAB 362 (2007); 20 C.F.R. § 10.5(x).

12

I.J., 59 ECAB 408 (2008); Sandra D. Pruitt, supra note 7.

13

See Cecelia M. Corley, 56 ECAB 662 (2005); Ronald C. Hand, 49 ECAB 113 (1957).

14

Richard A. Neidert, 57 ECAB 474 (2006); C.S., Docket No. 08-2218 (issued August 7, 2009).

15

Albert C. Brown, 52 ECAB 152, 154-55 (2000); Terry R. Hedman, 38 ECAB 222, 227 (1986); K.C., Docket
No. 08-2222 (issued July 23, 2009); 20 C.F.R. § 10.5(x) provides, recurrence of disability means an inability to
work after an employee has returned to work, caused by a spontaneous change in a medical condition which had
resulted from a previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness. This term also means an inability to work that takes place when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to his or her work-related injury or illness
is withdrawn (except when such withdrawal occurs for reasons of misconduct, nonperformance of job duties or a
reduction-in-force), or when the physical requirements of such an assignment are altered so that they exceed his or
her established physical limitations.
16

Mary A. Ceglia, 55 ECAB 626 (2004); Maurissa Mack, 50 ECAB 498 (1999).

6

recurrence of disability on July 21, 2008 causally related to her April 22, 2008 employment
injury.
The evidence of record supports that, following the April 22, 2008 work injury, appellant
returned to modified work within restrictions set by her attending physician. She worked in this
capacity until she stopped work on July 21, 2008 and resigned. There is no evidence to support
there was a change in the nature and extent of appellant’s light-duty requirements. The
employing establishment advised that it had accommodated appellant with limited-duty work as
a result of her April 22, 2008 injury under her doctor’s instructions. Thus, appellant has not
established a change in the nature and extent of her light-duty job requirements.
There is also no medical evidence of record to support a change in the nature and extent
of appellant’s injury-related condition which disabled her from performing her light-duty job.
Dr. Sellers noted no change in her medical history or review of symptoms and he continued to
opine that she could work modified duty with restrictions. He did not address whether appellant
had disability due to her employment injury beginning July 21, 2008. None of the other
physicians reported that she was totally disabled due to a spontaneous change in her work injury.
For example, the reports of Drs. Harrison and Araujo did not address whether appellant’s
accepted condition caused total disability beginning July 21, 2008.
Accordingly, appellant has not met her burden of proof as she failed to show a change in
the nature and extent of the injury-related condition or a change in the nature and extent of the
light-duty job requirements.
CONCLUSION
The Board finds that appellant failed to establish entitlement to wage-loss benefits for the
period of disability from April 28 to July 21, 2008. The Board also finds she did not establish
that she sustained a recurrence of disability on and after July 21, 2008 causally related to her
accepted April 22, 2008 employment injury.

7

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated April 12 and March 30, 2010 are affirmed.
Issued: April 1, 2011
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________
Appearances:
Garry Simmons, for the appellant
Office of Solicitor, for the Director

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Docket No. 11-1813
Issued: February 27, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

Appellant filed an application for review of the Office of Workers’ Compensation
Programs’ (OWCP) March 30, 2011 merit decision finding that she received an overpayment of
compensation due to her receipt of a duplicate schedule award payment. The appeal was
docketed as number 11-1813. The Board finds that this case is not in posture for a decision.
Appellant’s March 5, 1997 traumatic injury claim in File No. xxxxxx872 was accepted
for right wrist sprain, right ganglion and bilateral carpal tunnel syndrome. On February 15, 2001
OWCP granted appellant a schedule award for a 10 percent permanent impairment of her left
upper extremity in File No. xxxxxx872.1
The present appeal involves appellant’s December 13, 2002 occupational disease claim
that was accepted for cervical radiculopathy and brachial neuritis (File No. xxxxxx374). By
decision dated February 28, 2006, OWCP granted appellant a schedule award for a six percent
impairment of her left arm and found that she reached maximum medical improvement on

1

The record does not contain a copy of the February 15, 2001 schedule award or any evidence relating to the
development of the schedule award issue in File No. xxxxxx872. The information regarding the February 15, 2001
schedule award was obtained from the hearing representative’s March 30, 2011 decision in File No. xxxxxx374.

May 5, 2005.2 In satisfaction of the award, appellant received the amount of $10,464.48 for the
period July 25 through December 5, 2005.
On August 10, 2010 OWCP issued a preliminary determination that appellant had
received an overpayment of compensation in the amount of $10,464.48 and that she was not at
fault in its creation. The determination was based upon the fact that appellant had previously
received a schedule award for a 10 percent permanent impairment of her left upper extremity
under File No. xxxxxx872. In a March 30, 2011 decision, an OWCP hearing representative
finalized the preliminary overpayment determination, finding that the amount appellant received
pursuant to the February 28, 2006 schedule award (6 percent) in File No. xxxxxx374 duplicated
the prior schedule award (10 percent) in File No. xxxxxx872.
The Federal Employees’ Compensation Act and its implementing regulations provide for
the reduction of compensation for subsequent injury to the same scheduled member.3 Benefits
payable under section 8107(c) shall be reduced by the period of compensation paid under the
schedule for an earlier injury if: (1) compensation in both cases is for impairment of the same
member or function or different parts of the same member or function; and (2) the latter
impairment in whole or in part would duplicate the compensation payable for the preexisting
impairment.4 The record in the instant case, however, does not contain any evidence relating to
the development of the March 5, 1997 traumatic injury claim in File No. xxxxxx872. The Board
is therefore unable to determine whether the schedule award received in File No. xxxxxx374 was
duplicative of that received in File No. xxxxxx872, or was intended to constitute an additional
schedule award. The Board finds that the medical evidence contained in File No. xxxxxx872
will necessarily bear directly on appellant’s claim for compensation in File No. xxxxxx374.
Because it is essential for the Board to review the medical evidence contained in File No.
xxxxxx872 in order to render a full and fair adjudication of the present appeal, this case will be
remanded for OWCP to consolidate case File No. xxxxxx374 and File No. xxxxxx872.
Reconstruction of the record will be followed by a de novo decision on the merits of the claim, in
order to protect appellant’s appeal rights.

2

In a December 9, 2005 report, the district medical adviser opined that appellant had a six percent permanent
impairment of her left upper extremity based solely on her accepted radiculitis and brachial neuritis conditions.
3

5 U.S.C. § 8108; 20 C.F.R. § 10.404(c).

4

20 C.F.R. § 10.404(c)(1), (2).

2

IT IS HEREBY ORDERED THAT the March 30, 2011 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded for further development
consistent with this order of the Board.
Issued: February 27, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Washington Beach, FL, Employer
__________________________________________

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

Docket No. 17-0521
Issued: April 24, 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 January 9, 2017 appellant filed a timely appeal from a December 21, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant met his burden of proof to establish a recurrence of a medical
condition causally related to his accepted August 29, 2015 employment injury.
FACTUAL HISTORY
On September 12, 2015 appellant, then a 59-year-old bicycle letter carrier, filed a traumatic
injury claim (Form CA-1) alleging that, on August 29, 2015, he fell off his bicycle while loading

1

5 U.S.C. § 8101 et seq.

from a relay box. He stopped work on August 29, 2015 and resumed full-duty work on
September 11, 2015.
On October 16, 2015 Dr. Michael G. Dennis, a Board-certified orthopedic surgeon, noted
that appellant was working full duty and had reported that his knee pain was mostly resolved. An
impression of improved bilateral contusions was provided. Dr. Dennis concluded that appellant
could continue working full duty and that he had no impairment. He noted that appellant could be
seen in follow-up on an as-needed basis. OWCP administratively accepted the claim for contusion
of the left knee and contusion of right knee as a minor injury that resulted in minimal or no lost
time from work and payment of a limited amount of medical expenses.
On July 9, 2016 appellant filed a notice of recurrence (Form CA-2a) alleging a recurrence
of a medical condition beginning December 1, 2015 due to a worsening of his accepted workrelated conditions. No evidence was submitted with his recurrence claim.
In an August 3, 2016 development letter, OWCP advised appellant that additional factual
and medical evidence was necessary to substantiate his need for medical treatment, including a
report from his attending physician addressing the relationship between any current condition and
his accepted work injury. He was afforded 30 days to submit the necessary evidence.
Appellant, in a narrative statement dated August 12, 2016, asserted that he continued to
work with knee pain after the injury, but the pain worsened and was now constant. He denied any
new injury, but indicated that the area where he delivered mail on his bicycle had been under
construction for a long period of time and, as such, he had to work longer hours. Appellant stated
that, after he received a magnetic resonance imaging (MRI) scan, his doctor told him he needed
meniscus surgery.
In an August 12, 2016 report, Dr. Dennis noted that appellant returned for a follow-up visit
and had reported that his left knee had worsened over the past three months. He denied any new
trauma or fall affecting his knee. Dr. Dennis noted that appellant had underwent a left knee MRI
scan under his private insurance on June 28, 2016 which revealed medial meniscal tearing. An
impression of left knee pain and medial meniscal tearing was provided. Dr. Dennis placed
appellant on light duty with restrictions.
By decision dated September 7, 2016, OWCP found that appellant had not established a
recurrence of a medical condition due to a material change/worsening of his accepted work-related
conditions. It determined that Dr. Dennis’ August 12, 2016 report was not rationalized and failed
to explain why and how appellant’s current left knee condition is causally related to the August 29,
2015 employment injury.
On September 26, 2016 OWCP received appellant’s September 20, 2016 request for
reconsideration. A copy of the June 28, 2016 left knee MRI scan was provided.
In a September 9, 2016 report, Dr. Dennis indicated that, although appellant was on light
duty, he felt like he was working full duty. He provided examination findings and discussed the
June 28, 2016 MRI scan of the left knee, which revealed radial tearing of the posterior medial
meniscus at the meniscal tibial attachment. An impression of left knee medial meniscal tear was
provided. Dr. Dennis maintained appellant on light-duty work status. Due to the persistence of
2

the symptoms and lack of relief with conservative treatment, he recommended left knee
arthroscopy. A copy of the authorization was attached along with a September 9, 2016 work
restriction note indicating appellant should continue light duty.
By decision dated December 21, 2016, OWCP denied modification of its September 7,
2016 decision. It noted that since appellant described several work factors that had occurred since
the August 29, 2015 injury, a new injury claim should be filed.
LEGAL PRECEDENT
The United States shall furnish to an employee who is injured while in the performance of
duty the services, appliances, and supplies prescribed or recommended by a qualified physician
that the Secretary of Labor considers likely to cure, give relief, reduce the degree or the period of
any disability, or aid in lessening the amount of any monthly compensation.2
A recurrence of medical condition means a documented need for further medical treatment
after release from treatment for the accepted condition or injury when there is no accompanying
work stoppage. Continuous treatment for the original condition or injury is not considered a need
for further medical treatment after release from treatment, nor is an examination without
treatment.3
If a claim for a recurrence of medical condition is made more than 90 days after release
from medical care, a claimant is responsible for submitting a medical report supporting causal
relationship between the employee’s current condition and the original injury in order to meet his
burden.4
An employee has the burden of proof to establish that he or she sustained a recurrence of a
medical condition that is causally related to her accepted employment injury. To meet this burden,
the employee must submit medical evidence from a physician who, on the basis of a complete and
accurate factual and medical history, supports that the condition is causally related and supports
his or her conclusion with sound medical rationale.5 Where no such rationale is present, medical
evidence is of diminished probative value.6
ANALYSIS
The Board finds that appellant has not established a recurrence of medical condition
causally related to his accepted August 29, 2015 employment injury.

2

5 U.S.C. § 8103(a).

3

20 C.F.R. § 10.5(y).

4

Federal (FECA) Procedure Manual, Part 2 -- Recurrences, Chapter 2.1500.4(b) (June 2013); see also J.M., Docket
No. 09-2041 (issued May 6, 2010).
5

O.H., Docket No. 15-0778 (issued June 25, 2015).

6

Michael Stockert, 39 ECAB 1186, 1187-88 (1988); see Ronald C. Hand, 49 ECAB 113 (1957).

3

OWCP accepted that appellant sustained a left knee contusion and a right knee contusion
as a result of an August 29, 2015 employment injury when he fell off his bicycle. On July 9, 2016
appellant filed a claim for a recurrence of a medical condition due to his August 29, 2015
employment injury. OWCP denied his claim for recurrence as he had not established that his
current left knee condition was causally related to his accepted injury.
On October 16, 2015 Dr. Dennis reported that appellant was working full duty and had
related that his knee pain was mostly resolved. An impression of improved bilateral contusions
was provided. Dr. Dennis concluded that appellant could continue working fully duty and released
him from care.
There is a gap in the medical evidence from Dr. Dennis’ October 16, 2015 release until
June 28, 2016, when appellant underwent a left knee MRI scan. In his August 12, 2016 report,
Dr. Dennis indicated that the June 28, 2016 MRI scan of the left knee revealed medial meniscal
tearing and that appellant had denied any new injury or trauma to the knee. He placed appellant
on light duty. Dr. Dennis, however, did not address causation of the left knee meniscal tearing
and, thus, his opinion is of diminished probative value. Medical evidence that does not offer any
opinion regarding the cause of an employee’s condition is of diminished probative value on the
issue of causal relationship.7
Dr. Dennis, in his September 9, 2016 report, maintained appellant on light-duty work
status. He provided examination findings, discussed the June 28, 2016 MRI scan of the left knee,
and provided an impression of left knee medial meniscal tear. Dr. Dennis recommended left knee
arthroscopy due to the persistence of appellant’s symptoms and lack of relief with conservative
treatment. He did not, however, provide an explanation as to how or why appellant’s previously
improved knee contusion from the August 29, 2015 work injury had progressed into a medial
meniscal tear approximately 10 months later. A physician must provide an opinion on whether
the employment incident described caused or contributed to the claimant’s diagnosed medical
condition and supports that opinion with medical reasoning to demonstrate that the conclusion
reached is sound, logical, and rational.8 The Board finds that Dr. Dennis failed to provide a
rationalized medical opinion.
Appellant also submitted to the record a June 28, 2016 left knee MRI scan. Medical
evidence of diagnostic testing is of limited probative value as it fails to provide a physician’s
opinion on causal relationship between appellant’s work incident and the diagnosed conditions.9
As discussed, appellant has the burden of proof to submit reasoned medical evidence
supporting his claim that he requires further medical treatment as a result of his accepted

7

S.E., Docket No. 08-2214 (issued May 6, 2009); Conard Hightower, 54 ECAB 796 (2003).

8

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

9

See M.S., Docket No. 17-1044 (issued February 2, 2018).

4

employment injury.10 He failed to provide such evidence and thus, the Board finds that he has not
met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established a recurrence of a medical condition
causally related to his accepted August 29, 2015 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the December 21, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 24, 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

10
See T.M., Docket No. 16-1456 (issued January 10, 2017); see also V.P., Docket No. 16-0614 (issued
May 18, 2016).

5


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

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

Docket No. 07-884
Issued: August 20, 2007

Case Submitted on the Record

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

JURISDICTION
On February 12, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decisions dated April 19 and December 18, 2006 denying her
claim for a schedule award for the right upper extremity. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant established entitlement to a schedule award.
FACTUAL HISTORY
On February 17, 1998 appellant, then a 51-year-old rural carrier, sustained injury while
pushing a hamper full of packages and mail on ramp and felt her elbow “pop.” She did not stop
work but returned to regular duty and, on April 27, 1998, accepted a light-duty position. The
Office accepted appellant’s claim for right lateral epicondylitis and lesion of the right radial
nerve. The Office authorized a right lateral epicondylectomy which was performed in 1999 and
a right radial tunnel release which was performed on May 18, 2005.

Appellant came under the treatment of Dr. Michael P. Gruber, a Board-certified
orthopedic surgeon, who noted a history of injury and diagnosed severe lateral epicondylitis. In
reports dated August 3 to November 23, 1998, he noted appellant’s persistent symptoms of pain
in the lateral epicondyle area and recommended a right lateral epicondyletomy which was
performed in July 1999. From December 22, 1999 to November 14, 2002, he noted that
appellant continued to experience persistent discomfort in the radial nerve distribution.
Dr. Gruber referred appellant to Dr. Gary M. Lourie, a Board-certified orthopedist, who was
experienced in radial tunnel syndrome. An electomyogram (EMG) was performed on
February 1, 2000 which revealed mild right median neuropathy at the wrist consistent with
carpal tunnel syndrome. In a report dated April 12, 2001, Dr. Lourie reviewed a history of
appellant’s injury and diagnosed lateral epicondylitis with symptoms consistent with radial
tunnel. He advised that conservative treatment failed and recommended a radial tunnel release.
In a report dated January 11, 2005, Dr. Lourie indicated that appellant had not been
treated in four years and returned with symptoms consistent with lateral epicondylitis and radial
tunnel syndrome. A magnetic resonance imaging (MRI) scan of the right elbow dated March 9,
2005 revealed post-surgical changes around the lateral epicondyle and a partial tear of the
common extensor tendon. Dr. Lourie recommended a right radial tunnel release which was
performed on May 18, 2005.
On June 15, 2005 appellant filed a claim for a schedule award.
In a letter dated August 8, 2005, the Office requested that appellant’s treating physician
provide an impairment rating of the upper extremities in accordance with the fifth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment,1 (A.M.A.,
Guides).
In reports dated June 2 to August 2, 2005, Dr. Lourie noted that appellant experienced
increased tenderness and negative provocative radial tunnel. On August 23, 2005 he advised that
appellant had reached maximum medical improvement and opined that, in accordance with the
A.M.A., Guides, she sustained a 29 percent impairment of the upper extremities or a 17 percent
impairment of the whole person.
In a report dated September 15, 2005, an Office medical adviser determined that
appellant was not entitled to a schedule award for the upper extremities based on Dr. Lourie’s
reports. He indicated that appellant had a surgical release of the right radial tunnel with release
of the posterior interosseous nerve on May 18, 2005 and had excellent recovery with no loss of
motion in the elbow. The medical adviser advised that appellant experienced some tenderness
but negative provocative radial tunnel test and had a normal EMG of the right upper extremity.
He noted that Dr. Lourie granted a 29 percent schedule award with no basis or objective
evidence to support this rating. The medical adviser opined that appellant sustained a zero
percent impairment of the right upper extremity.

1

A.M.A., Guides (5th ed. 2001).

2

In a letter dated September 21, 2005, the Office provided appellant with a copy of the
medical advisers report. It requested that she consult with her physician and provide additional
information to substantiate an impairment rating.
In an October 6, 2005 report, Dr. Lourie noted that, in accordance with the A.M.A.,
Guides, appellant sustained a 17 percent impairment of the whole person. He noted range of
motion findings for the right elbow of pronation of 40 degrees for an impairment rating of 7
percent;2 supination of 50 degrees for an impairment rating of 5 percent;3 extension of 30
degrees for an impairment rating of 6 percent;4 flexion of 120 degrees for an impairment rating
of 8 percent;5 and loss of radial nerve function and sensory disturbances for an impairment rating
of 3 percent, for a 29 percent permanent impairment of the upper extremities or a 17 percent
whole person impairment.
In a report dated October 25, 2005, the Office medical adviser determined that appellant
had nine percent permanent impairment of the right upper extremity based on Dr. Lourie’s
reports. He noted range of motion findings for the right elbow for pronation of 40 degrees for an
impairment rating of three percent;6 supination of 50 degrees for an impairment rating of one
percent;7 extension of 30 degrees for an impairment rating of three percent;8 and flexion of 120
degrees for an impairment rating of two percent,9 for a nine percent permanent impairment of the
right upper extremity. Although Dr. Lourie granted appellant an additional three percent
impairment due to loss of radial nerve function and sensory disturbances of the right elbow, this
rating was not supported by the evidence of record.
On February 27, 2006 the Office determined that a conflict of medical opinion had been
established between Dr. Lourie, appellant’s treating physician and the Office medical adviser,
regarding the permanent impairment due to appellant’s work-related injury. On February 27,
2006 the Office referred appellant to an impartial medical specialist, Dr. Neil C. Berry, a Boardcertified orthopedic surgeon. In a report dated March 14, 2006, Dr. Berry reviewed the records
provided to him and performed a physical examination of appellant. He noted a history of
appellant’s work-related injury and that Dr. Lourie determined that appellant reached maximum
medical improvement on August 23, 2005. Dr. Berry noted findings upon physical examination
of symmetrical alignment and contour of both elbows, the right elbow had full extension and
flexion, flexion was 135 degrees, supination and pronation measured 90 degrees, dorsiflexion
2

See A.M.A., Guides 474, Figure 16-37 (5th ed. 2001).

3

Id.

4

See A.M.A., Guides 472, Figure 16-34 (5th ed. 2001).

5

Id.

6

See A.M.A., Guides supra note 2.

7

Id.

8

See A.M.A., Guides supra note 4.

9

Id.

3

and palmer flexion of both wrists measured 65 to 70 degrees, radial and ulnar deviation revealed
no loss of wrist motion and minimal decrease in grip strength. He diagnosed status post chronic
epicondylitis of the elbow with release of lateral epicondyle and status post release of posterior
innerosseous nerve. Dr. Berry noted that, although appellant complained of moderate pain, he
could not find any physical findings to substantiate her claim. He noted that there was full range
of motion of the elbow and wrist and motor and grip strength was satisfactory. Dr. Berry opined
that appellant sustained a zero percent impairment of the upper extremities.
In a report dated April 4, 2006, the Office medical adviser concurred in Dr. Berry’s
determination that appellant did not have any permanent impairment of the right upper extremity.
In a decision dated April 19, 2006, the Office denied appellant’s claim for a schedule
award.
By letter dated April 26, 2006, appellant requested an oral hearing before an Office
hearing representative. The hearing was held on October 11, 2006. In a report dated June 1,
2006, Dr. Lourie noted that he reviewed the impairment ratings provided by the medical adviser
and the impartial medical specialist. Due to the discrepancy in the determinations, he
recommended referral to an independent functional capacity evaluator. On September 15, 2006
appellant filed a claim for a schedule award. In an October 20, 2006 report, Dr. John G. Seiler,
III, a Board-certified orthopedic surgeon, noted that she presented with persistent right elbow
pain and requested a reevaluation of her impairment. He noted findings upon physical
examination of no objective focal deficit to manual motor testing, range of motion for the right
elbow for flexion was 100 degrees, extension was “-20” degrees, there was full pronation and
limited grip strength. Dr. Seiler noted that appellant had mild osteoarthritis in her hands and
mild elbow synovitis. He diagnosed right elbow pain and opined that in accordance with the
A.M.A., Guides appellant had a seven percent upper extremity impairment or a four percent
whole person impairment due to mild elbow synovitis.
In a decision dated December 18, 2006, the hearing representative affirmed the
April 19, 2006 decision.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act10 and its
implementing regulation11 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

10

5 U.S.C. § 8107.

11

20 C.F.R. § 10.404 (1999).

4

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.12
ANALYSIS
On appeal appellant asserts that she is entitled to a schedule award for permanent
impairment of the right upper extremity. The Office accepted her claim for right lateral
epicondylitis, lesion of the right radial nerve and authorized a right lateral epicondylectomy
which was performed in 1999 and a right radial tunnel release which was performed on
May 18, 2005. The Office determined that a conflict existed in the medical evidence between
appellant’s attending physician, Dr. Lourie, and an Office medical adviser concerning the
permanent impairment of her right upper extremity. Consequently, the Office referred appellant
to Dr. Berry to resolve the conflict.13
Where there exists a conflict of medical opinion and the case is referred to an impartial
specialist for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently
well rationalized and based upon a proper factual background, is entitled to special weight.14
Dr. Berry reviewed appellant’s history, reported findings, and noted an essentially normal
physical examination. He noted that Dr. Lourie determined that appellant reached maximum
medical improvement on August 23, 2005. Dr. Berry noted findings upon physical examination
of symmetrical alignment and contour of both elbows, the right elbow had full flexion,
extension, supination and pronation, there was no loss of wrist motion and minimal decreased
grip strength. Dr. Berry diagnosed status post chronic epicondylitis of the elbow with release of
lateral epicondyle and status post release of posterior innerosseous nerve. He indicated that he
could not find any physical findings to substantiate appellant’s complaints of moderate pain.
Dr. Berry opined that appellant sustained a zero percent impairment of the upper extremities.
Dr. Berry properly applied the A.M.A., Guides and reached an impairment rating of zero
percent of the right upper extremity. This evaluation conforms to the A.M.A., Guides and
establishes that appellant does not have an impairment rating of the upper extremities. The
Board finds that the opinion of Dr. Berry is sufficiently well rationalized and based upon a
proper factual background. It is entitled to special weight and establishes that appellant does not
have impairment related to her accepted conditions.
12

See id.; Jacqueline S. Harris, 54 ECAB 139 (2002).

13

The Board notes that Dr. Lourie’s report dated October 6, 2005 incorrectly calculated the following range of
motion measurements for the right elbow: pronation of 40 degrees for an impairment rating of seven percent, rather
this calculates to a three percent impairment, the A.M.A., Guides, supra note 2, supination of 50 degrees for an
impairment rating of five percent, rather this calculates to a one percent impairment; extension of 30 degrees for an
impairment rating of six percent, rather this calculates to a three percent impairment, see A.M.A., Guides supra
note 4; and flexion of 120 degrees for an impairment rating of eight percent, rather this calculates to a two percent
impairment. These findings are not in conflict with the findings of the medical adviser. However, Dr. Lourie also
determined that appellant sustained a loss of radial nerve function and sensory disturbances for an impairment rating
of three percent which is contrary to the findings of the medical adviser and serves as the basis of the conflict of
opinion.
14

Aubrey Belnavis, 37 ECAB 206 (1985). See 5 U.S.C. § 8123(a).

5

Appellant submitted a report from Dr. Seiler dated October 20, 2006. He determined that
appellant sustained a seven percent upper extremity impairment due to mild elbow synovitis.
The Board has carefully reviewed Dr. Seiler’s report of October 20, 2006, and notes that
Dr. Seiler failed to provide a history of the injury or note the accepted work-related conditions.15
Additionally, he did not adequately explain how his determination was reached in accordance
with the relevant standards of the A.M.A., Guides.16 Dr. Seiler noted findings upon physical
examination of flexion of 100 degrees for the right elbow, extension was “-20 degrees,” there
was full pronation and limited grip strength on the right. Although Dr. Seiler noted flexion of
the right elbow measured 100 degrees,17 he did not provide a rationalized opinion regarding the
causal relationship between the impairment and the accepted work injury.18 Additionally, the
Board notes that Dr. Seiler incorrectly noted that extension was measured at “-20 degrees” as this
figure does not conform with the fifth edition of the A.M.A., Guides.19 He determined that
appellant sustained a seven percent permanent impairment of the right upper extremity but failed
to cite to specific tables or charts in support of this determination. Therefore, the Board finds
that Dr. Seiler did not properly follow the A.M.A., Guides. An attending physician’s report is of
diminished probative value where the A.M.A., Guides are not properly followed.20

15

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value).
16

See Tonya R. Bell, 43 ECAB 845, 849 (1992).

17

See A.M.A., Guides supra note 4.

18

Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
19

See A.M.A., Guides supra note 4.

20

See Paul R. Evans, Jr., 44 ECAB 646 (1993); John Constantin, 39 ECAB 1090 (1988) (medical report not
explaining how the A.M.A., Guides are utilized is of little probative value).

6

CONCLUSION
The Board finds that the Office properly denied appellant’s claim for a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the December 18 and April 19, 2006 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: August 20, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.G., Appellant
and
DEPARTMENT OF DEFENSE, U.S. ARMY
CORPS OF ENGINEERS, Felicity, OH,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 13-990
Issued: September 25, 2013

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 March 18, 2013 appellant, through counsel, filed a timely appeal of a February 13,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
recurrence of disability causally related to his February 15, 2012 employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 15, 2012 appellant, then a 41-year-old electrician, injured his left arm while
loosening bulkhead latch pins. OWCP accepted his traumatic injury claim for left shoulder
strain.
On February 17, 2012 Dr. Richard J. Sanders, a Board-certified family practitioner,
released appellant to full-time duty with the following restrictions: lifting, carrying, pushing and
pulling items weighing less than 10 pounds, no climbing ladders and no overhead reaching or
repetitive motion with the left arm.2 He later halved appellant’s workday to four hours in an
April 6, 2012 report.
In May 1, 2012 reports, Dr. Paul J. Favorito, a Board-certified orthopedic surgeon,
related that appellant previously underwent left clavicle open reduction internal fixation on
June 5, 2008.3 Since the February 15, 2012 work injury, appellant experienced left shoulder
pain. On examination, Dr. Favorito observed limited external rotation, anterior clavicular
tenderness to palpation and mild-to-moderate swelling. X-rays confirmed well-positioned left
clavicle plate with no signs of refracture or bone abnormalities. Dr. Favorito diagnosed left
clavicle contusion and painful retained hardware. He placed appellant on total disability
effective May 1, 2012 and recommended removal of the implant.4
Appellant filed multiple claims for wage-loss compensation beginning May 6, 2012.
OWCP informed him in a June 25, 2012 letter that additional evidence was needed to establish a
recurrence of disability.5 Appellant was given 30 days to submit a medical report from a
physician explaining the connection between his present condition and the February 15, 2012
work injury.
On July 16, 2012 OWCP authorized the removal of retained left clavicle hardware.
Appellant underwent surgery on August 1, 2012.6 In an August 7, 2012 postoperative report,
Dr. Favorito noted significant improvement in his condition.7
By decision dated August 9, 2012, OWCP denied appellant’s claim for a recurrence of
disability. It found the evidence insufficient to establish that he experienced a change in the

2

In an April 5, 2012 letter, the employing establishment maintained that it accommodated these restrictions.

3

The case record contains a June 5, 2008 operative report.

4

Dr. Favorito reiterated these findings in a June 12, 2012 report.

5

The case record does not indicate that appellant filed a Form CA-2a. Instead, OWCP treated his wage-loss
compensation claims as a recurrence of disability claim.
6

Beginning August 1, 2012 OWCP paid wage-loss compensation attributable to the surgery. Appellant was
discharged to regular duty on December 10, 2012.
7

Dr. Favorito continued to document appellant’s recovery in subsequent September 28, November 5 and
November 26, 2012 reports.

2

nature and extent of the medical condition resulting from the February 15, 2012 employment
injury.
Counsel requested a telephonic hearing, which was held on December 7, 2012. Appellant
testified that, sometime in June 2012, his supervisor demanded that he resume eight-hour
workdays or “just stay off.” Thereafter, he stopped work on June 8, 2012. Counsel argued that
the supervisor’s ultimatum constituted a withdrawal of appellant’s limited-duty assignment.
On February 13, 2013 an OWCP hearing representative affirmed the August 9, 2012
decision.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition resulting from a previous injury or
illness without an intervening cause or a new exposure to the work environment that caused the
illness. It can also mean an inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to his or her work-related
injury or illness is withdrawn or when the physical requirements of such an assignment are
altered so that they exceed his or her established physical limitations.8
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that he or she can perform the limited-duty position, the employee has the
burden of proof to establish, by the weight of the reliable, probative and substantial evidence, a
recurrence of total disability and an inability to perform such limited-duty work. As part of this
burden, the employee must show a change in the nature and extent of the injury-related condition
or a change in the nature and extent of the limited-duty job requirements.9 To establish a change
in the nature and extent of the injury-related condition, there must be a probative medical
opinion, based on a complete and accurate factual and medical history as well as supported by
sound medical reasoning, that the disabling condition is causally related to employment factors.10
In the absence of rationale, the medical evidence is of diminished probative value.11 While the
opinion of a physician supporting causal relationship need not be one of absolute medical
certainty, it must not be speculative or equivocal. The opinion should be expressed in terms of a
reasonable degree of medical certainty.12

8

J.F., 58 ECAB 124 (2006). A recurrence of disability does not apply when a light-duty assignment is
withdrawn for reasons of misconduct, nonperformance of job duties, or other downsizing. 20 C.F.R. § 10.5(x). See
also Richard A. Neidert, 57 ECAB 474 (2006).
9

A.M., Docket No. 09-1895 (issued April 23, 2010); Terry R. Hedman, 38 ECAB 222 (1986).

10

Mary A. Ceglia, 55 ECAB 626, 629 (2004).

11

Id.; Robert H. St. Onge, 43 ECAB 1169 (1992).

12

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

3

ANALYSIS
OWCP accepted that appellant sustained left shoulder strain while in the performance of
duty on February 15, 2012. He was discharged to modified assignment, originally on a full-time
basis effective February 17, 2012 and then on a half-time basis effective April 6, 2012.
Appellant filed multiple claims for wage-loss compensation beginning May 6, 2012, which were
adjudicated as a recurrence of disability claim. He subsequently underwent the removal of
retained left clavicle hardware on August 1, 2012, a procedure that was approved in advance by
OWCP. Although appellant alleged that his supervisor withdrew his limited-duty assignment on
June 8, 2012 by forcing him to choose between working eight-hour shifts and not working at all,
he did not present any evidence to substantiate his allegation. The case record, in fact, does not
demonstrate that the employing establishment either withdrew the job or altered the assignment
so as to require him to exceed his physical restrictions. The question is whether appellant
experienced, prior to the August 1, 2012 surgery, a change in the nature and extent of the
February 15, 2012 employment injury that resulted in recurrence of disability on May 6, 2012.
Medical evidence of bridging symptoms must demonstrate that the claimed recurrence
was caused, precipitated, accelerated or aggravated by the accepted injury.13 In May 1, 2012
reports, Dr. Favorito reviewed appellant’s medical history, obtained x-rays and conducted a
physical examination. He diagnosed left clavicle contusion and painful retained clavicle plate
connected with a June 5, 2008 open reduction and internal fixation. Dr. Favorito placed
appellant on total disability effective May 1, 2012 and recommended removal of the plate.
However, he failed to explain with sound medical reasoning how the February 15, 2012 work
injury disabled appellant for work on and after May 6, 2012, the date of the alleged recurrence.
In the absence of rationalized medical opinion evidence, appellant did not meet his burden of
proof.
Counsel contends on appeal that the February 13, 2013 decision is contrary to fact and
law. The Board has already addressed the deficiencies of the claim.
The Board notes that appellant submitted new evidence after issuance of the February 13,
2013 decision. The Board lacks jurisdiction to review evidence for the first time on appeal.14
Appellant may submit new evidence or argument as part of a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that he sustained a recurrence of
disability causally related to his February 15, 2012 employment injury.

13

Id.

14

20 C.F.R. § 501.2(c).

4

ORDER
IT IS HEREBY ORDERED THAT the February 13, 2013 merit decision of the Office
of Workers’ Compensation Programs be affirmed.
Issued: September 25, 2013
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

5