United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.B, Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Parlin, NJ, Employer
__________________________________________

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

Docket No. 06-2106
Issued: March 27, 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 September 7, 2004 appellant filed an appeal from a November 14, 2005 decision of
the Office of Workers’ Compensation Programs which denied authorization for surgery.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over these decisions.
ISSUE
The issue is whether the Office properly denied authorization for right knee surgery.
FACTUAL HISTORY
On August 31, 2001 appellant, then a 52-year-old distribution, window and mark-up
clerk, filed a Form CA-1, traumatic injury claim, alleging that on that day he injured his left knee
when he fell. He did not stop work. By letter dated October 26, 2001, the Office accepted that
he sustained a left knee sprain. Magnetic resonance imaging (MRI) scan of the left knee on
October 30, 2001 demonstrated a medial meniscus tear and degenerative changes. On April 2,
2002 the Office authorized arthroscopic surgery that was performed on June 19, 2002 by

Dr. Marshall P. Allegra, a Board-certified orthopedic surgeon. Appellant stopped work that day
and has not returned. He was placed on the periodic rolls.
In a report dated October 8, 2002, Dr. Allegra advised that appellant’s right knee was
bothering him due to limping from his left knee injury. A November 15, 2002 right knee MRI
scan demonstrated a probable medial meniscal tear, chondromalacia patella and mild joint
effusion. Dr. Allegra advised that appellant was totally disabled and that his right knee condition
was related to his left knee employment injury because he was limping on the opposite side. He
also provided a history that appellant had fallen on both knees on August 31, 2001 the date of
injury. On January 8, 2003 appellant’s attorney requested authorization for surgery.
By letters dated March 11 and April 3, 2003, the Office informed appellant that right
knee surgery was not authorized. In an April 6, 2003 report, an Office medical adviser opined
that there was no evidence that appellant’s right knee injury was secondary to work, noting that it
did not become symptomatic until one year after the employment injury. The Office determined
that a conflict in medical evidence was created between the opinions of the Office medical
adviser and Dr. Allegra regarding appellant’s right knee condition. On May 20, 2003 it referred
him to Dr. Norman M. Heyman, a Board-certified orthopedic surgeon, for an impartial medical
evaluation.
In a report dated June 3, 2003, Dr. Heyman noted his review of the record and appellant’s
report that he fell on both knees on August 31, 2001. He reported that appellant’s height was 5
feet 11 inches and weight 350 pounds. Range of motion was limited in both knees with pain and
tenderness on examination. Dr. Heyman diagnosed contusions of the right and left knee, post
arthroscopic surgery to the left knee and patellofemoral syndrome bilaterally with poor
conditioning and decreased strength and normal muscle function. Regarding the right knee, he
advised that the employment injury precipitated or accelerated a preexisting degenerative
condition. Dr. Heyman opined that appellant could not perform his regular job duties but could
work part-time light duty for four to six hours a day and recommended a strengthening program
with work hardening of the lower extremities. In an attached work capacity evaluation, he
advised that appellant could work four to six hours daily with walking, standing and reaching
limited to one to two hours daily.
In a work capacity evaluation dated June 17, 2003, Dr. Allegra advised that appellant
could not work due to chronic pain and swelling of both knees and in a treatment note dated
June 24, 2003 advised that x-ray demonstrated that he had degenerative changes in his right
ankle.
The Office determined that a conflict had been created between the opinions of
Dr. Allegra and Dr. Heyman regarding whether appellant was totally disabled, whether his right
knee condition was a consequence of the August 31, 2001 employment injury and whether right
knee surgery should be authorized. On August 11, 2003 the Office referred appellant to
Dr. Robert Dennis, a Board-certified orthopedic surgeon.1

1

Dr. Heyman and Dr. Dennis were provided with the medical record, a set of questions and a statement of
accepted facts.

2

In a report dated August 28, 2003, Dr. Dennis noted his review of the record, including
the statement of accepted facts, the history of injury and appellant’s complaints of daily pain in
both knees with a buckling right knee. Gait was normal. Dr. Dennis reported that appellant
performed a deep knee bend to 40 degrees, holding a table for balance only. No crepitus was
present. Examination of the left knee demonstrated arthroscopic scars, excellent stability and
alignment with minimal tenderness and effusion. Dr. Dennis stated that he “carefully examined
the right knee repeatedly and extensively.” Findings included mild medial joint line tenderness
and lateral joint line tenderness, consistent with the left. Dr. Dennis advised that there was no
detectible fluid in the right knee and no effusion and stated that he watched appellant sit, get up
from sitting and sit back down again several times, noting that he did so without the need to hold
onto something. The remaining orthopedic examination was unremarkable. Dr. Dennis
diagnosed meniscal tear and other damage secondary to a contusion of the left knee, directly
related to the work-related injury of August 31, 2001, status post appropriate and successful
arthroscopic surgery, left knee, for torn meniscus, status post significant contusion left knee and
mild contusion right knee, secondary to the August 31, 2001 work-related accident, generalized
preexisting patellofemoral arthritis both knees; alleged associated work-related tear of the medial
meniscus of the right knee, alleged chondromalacia of the patella, right knee. He reviewed the
November 15, 2002 MRI scan and noted that it was performed over a year after the August 31,
2001 injury and that appellant, who was obese, had worked until his left knee surgery and
initially had minimal if any complaints regarding his right knee. Dr. Dennis further noted the
radiologist’s finding of probable tear and other findings that were age-related and not associated
with the August 31, 2001 fall. He also noted his review of the June 19, 2002 operative findings
of degenerative changes which he opined preexisted the employment injury. In answers to
specific Office questions, Dr. Dennis advised that there was not enough substantiating evidence
to justify surgery on the right knee and that appellant’s right knee condition was not related to
the fall at work based on the timing of the onset of significant symptoms. He further stated that,
even if appellant sustained a right meniscal tear in August 2001, one would anticipate further
progression than was described in the November 2002 MRI scan and concluded that the tear was
an incomplete evolutional tear secondary to appellant’s weight and preexisting conditions.
Dr. Dennis advised that the fall could have minimally aggravated his right knee but that the
condition would have evolved regardless of the fall and that he had minimal, if any, objective
findings regarding his right knee. He stated that there were no clinical findings to suggest that a
torn cartilage, even if it did exist, was producing symptoms. Dr. Dennis noted that appellant
needed no further treatment, therapy or medication for either knee and could return to light-duty
for four to six hours a day, three days a week, with intermittent sitting and standing, eventually
progressing over a period of a month or two into full duty and recommended that he lose weight.
Dr. Dennis repeated these recommendations in an attached work capacity evaluation.
Dr. Allegra submitted reports advising that appellant was totally disabled and needed
right knee surgery.
By decision dated September 17, 2003, the Office denied authorization for right knee
surgery.
On September 23, 2003 appellant, through counsel, requested a hearing and submitted an
April 19, 2004 report from Dr. Allegra who reiterated his opinion that appellant’s right knee
condition was caused by the August 31, 2001 employment injury and that it needed to be treated

3

surgically. At the hearing, held on April 22, 2004, appellant testified that he fell on both knees
on August 31, 2001. He contended that Dr. Dennis’ examination was cursory, he did not review
the actual MRI scan and did not perform a McMurray’s test. Appellant testified that he held on
when performing the deep knee bend test.
In a July 13, 2004 decision, an Office hearing representative found that the medical
evidence established that the injury to appellant’s left knee on August 31, 2001 caused him to put
increased weight on his right knee which precipitated or accelerated patellofemoral syndrome of
the right knee which preexisted the August 31, 2001 fall. He remanded the case for a
supplementary report from Dr. Dennis who was to be provided with an amended statement of
accepted facts, was to review the actual November 14, 2002 MRI scans, was to be asked if he
performed a McMurray’s test and was to explain whether appellant was able to perform the deep
knee bend test unassisted.
By letter dated October 7, 2004, the Office submitted an amended set of facts to
Dr. Dennis.2 He was asked if the MRI scan demonstrated a medial meniscus tear that would be
amenable to surgical repair, whether he performed a McMurray’s test and, if so, was it positive,
if he did not perform the test, to explain why was it possible that appellant placed weight on his
arms when performing the deep knee bend and did not use the table merely for balance.
Dr. Dennis was asked to address whether the proposed right knee surgery was medically
indicated and whether the physical restrictions provided on August 28, 2003 were still valid. He
was provided with the November 15, 2002 MRI scans.
In an October 15, 2004 report, Dr. Dennis noted the accepted right knee condition. He
reviewed all 200 cuts of the November 14, 2002 MRI scan and advised that he did not see a
meniscal tear, opining that it appeared to be degeneration within the body of the medial meniscus
consistent with appellant’s age and weight. The abnormality did not reach the superior or
inferior surface of the meniscus which he characterized as degenerative changes associated with
age. Upon examination of the patellofemoral joint Dr. Dennis stated that he found minimal if
any chondromalacia of the patella, again noting very mild long-standing preexisting degenerative
changes of the patella with no evidence of patellofemoral effusion or prepatellar bursitis.
Following his review of the MRI scan, Dr. Dennis concluded:
“Having reviewed these films, I can, with certainty, take out the word probable
tear of the posterior horn of the medial meniscus and replace it with interbody
mucoid degeneration of the medial meniscus, totally explainable and consistent
with [appellant’s] age and weight without having to postulate injury.”
Dr. Dennis advised that the MRI scan did not substantiate a need for surgery and noted
that he had performed a McMurray’s test, Lachman test, drawer sign, etc. as part of his routine
examination. He stated that it was his normal practice to note significant, pertinent, positive
findings and, as the McMurray’s test was negative bilaterally, he did not record the result.
2

The statement of accepted facts included in the letter provided that appellant fell on both knees on August 31,
2001 underwent authorized left knee arthroscopy on June 19, 2002 and the left knee injury caused him to put
increased weight on his right knee which precipitated or accelerated patellofemoral syndrome of the right knee
which preexisted the August 31, 2001 fall.

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Dr. Dennis opined that this test was not definitive for a diagnosis of a torn cartilage, particularly
in a patient of appellant’s age and weight. He advised that he would have noted if appellant
placed weight on his arms during the deep knee bend, stating that he had 30 years experience as
a clinical observer and did not think appellant was doing anything other than holding onto the
table for balance. Even if appellant were holding onto the table, this would not change his
opinion regarding the need for surgery on his right knee. Dr. Dennis stated:
“Based on the examination of this new material which of course, are the MRI
[scans], based on the examination of [appellant’s] right knee [described] on page
five of my prior report, based on this history of the injury and the overall
examination, it is my opinion that right knee surgery is not indicated. It certainly
was not indicated as of August 28, 2003. If it ever were to become indicated,
such indications, in my opinion, would not be relatable back to having any
relationship to the August 31, 2001 injury.”
Dr. Dennis concluded that he saw no need to reexamine appellant and advised that the physical
restrictions described on August 28, 2003 remained in place.
By decision dated November 24, 2004, the Office found that the weight of the medical
evidence rested with Dr. Dennis who found that appellant did not have a right knee meniscal tear
and denied authorization for right knee surgery.
On November 30, 2004 appellant, through his attorney, requested a hearing and
submitted August 18, 2005 reports in which Dr. Allegra reiterated his opinion that the slip and
fall of August 31, 2001 caused meniscal tears in both knees with post-traumatic arthritis.
Dr. Allegra advised that until his current examination, he had not seen appellant in several years
and noted findings on examination and his disagreement with Dr. Dennis’ opinion. He
concluded that appellant continued to be totally disabled and needed surgery on his right knee.
Appellant did not appear at the hearing held on September 7, 2005. Counsel argued that
Dr. Dennis may have been presented limited accepted facts since he may not have reviewed the
April 3 and July 2, 2003 statement of accepted facts and merely the additional accepted facts
were included in the Office’s October 17, 2004 letter. He also questioned Dr. Dennis’ statement
that he performed a McMurray’s test and argued that his report was not sufficiently rationalized
to serve as a referee examination.
By decision dated November 14, 2005, an Office hearing representative affirmed the
November 24, 2005 decision. She found that the Office complied with the July 13, 2004 remand
order by incorporating the essential accepted facts in its October 17, 2004 letter. The hearing
representative also found Dr. Dennis’ report regarding the McMurray’s test and deep knee bend
examination credible and his opinion based upon review of the November 14, 2002 MRI scan.
Authorization for surgery of the right knee was denied.

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LEGAL PRECEDENT
Section 8103 of the Federal Employees’ Compensation Act3 provides that 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, which the Office
considers likely to cure, give relief, reduce the degree or the period of disability, or aid in
lessening the amount of the monthly compensation.4 While the Office is obligated to pay for
treatment of employment-related conditions, the employee has the burden of establishing that the
expenditure is incurred for treatment of the effects of an employment-related injury or
condition.5
In interpreting this section of the Act, the Board has recognized that the Office has broad
discretion in approving services provided under section 8103, with the only limitation on the
Office’s authority being that of reasonableness.6 Abuse of discretion is generally shown through
proof of manifest error, clearly unreasonable exercise of judgment, or actions taken which are
contrary to both logic and probable deductions from established facts. It is not enough to merely
show that the evidence could be construed so as to produce a contrary factual conclusion.7 In
order to be entitled to reimbursement for medical expenses, a claimant must establish that the
expenditures were incurred for treatment of the effects of an employment-related injury.8 Proof
of causal relationship must include supporting rationalized medical evidence. In order for a
surgical procedure to be authorized, a claimant must submit evidence to show that the surgery is
for a condition causally related to an employment injury and that it is medically warranted. Both
of these criteria must be met in order for the Office to authorize payment.9
Section 8123(a) of the Act provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.10 The implementing regulation
states that, if a conflict exists between the medical opinion of the employee’s physician and the
medical opinion of either a second opinion physician or an Office medical adviser, the Office
shall appoint a third physician to make an examination. This is called a referee examination, and
the Office will select a physician who is qualified in the appropriate specialty and who has no
prior connection with the case.11 In situations where there are opposing medical reports of
3

5 U.S.C. §§ 8101-8193.

4

5 U.S.C. § 8103; see Dona M. Mahurin, 54 ECAB 309 (2003).

5

Kennett O. Collins, Jr., 55 ECAB 648 (2004).

6

James R. Bell, 52 ECAB 414 (2001).

7

Minnie B. Lewis, 53 ECAB 606 (2002).

8

Cathy B. Mullin, 51 ECAB 331 (2000).

9

Id.

10

5 U.S.C. § 8123(a); see Roger G. Payne, 55 ECAB 535 (2004).

11

20 C.F.R. § 10.321.

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virtually equal weight and rationale and the case is referred to an impartial medical specialist for
the purpose of resolving the conflict, the opinion of such specialist, if sufficiently well
rationalized and based on a proper factual background, must be given special weight.12
ANALYSIS
The Board finds that the weight of the medical evidence rests with the opinion of
Dr. Dennis who opined that right knee surgery was not medically warranted or due to an
employment-related condition. Dr. Dennis initially provided a comprehensive report dated
August 28, 2003 which discussed his review of the record, including the statement of accepted
facts appellant’s complaints and his examination findings. He advised that the August 31, 2001
fall could have minimally aggravated appellant’s right knee but that the condition would have
evolved regardless of the fall. Appellant had minimal, if any, objective findings regarding his
right knee. Dr. Dennis noted that there were no clinical findings to suggest that a torn cartilage
which, if it did exist, was producing symptoms. He stated that appellant needed no further
treatment, therapy or medication for either knee. Dr. Dennis did not believe that appellant had a
right meniscal tear or that surgery was warranted.
The Office accepted that appellant’s left knee injury of August 31, 2001 caused him to
put increased weight on his right knee which precipitated or accelerated patellofemoral syndrome
of the right knee which preexisted the August 31, 2001 fall. By letter dated October 7, 2004, the
Office requested that Dr. Dennis provide a supplementary report. In an October 15, 2004 report,
Dr. Dennis noted his review of the amended set of facts which included the accepted right knee
condition and the November 14, 2004 right knee MRI scan. Dr. Dennis advised that, upon
review of 200 individual cuts from the MRI scan, he did not see a meniscal tear, advising that the
MRI scan demonstrated interbody mucoid degeneration of the medial meniscus which was
explainable by and consistent with appellant’s age and weight and not due to a traumatic injury.
Dr. Dennis advised that it was his normal practice to note significant, pertinent, positive findings,
that appellant’s McMurray’s test was negative bilaterally. Based on 30 years experience as a
clinical observer appellant was merely holding onto the table for balance during his deep knee
bend and, that even if he were holding onto the table this would not change Dr. Dennis’ opinion
regarding the need for surgery on appellant’s right knee. Based on his review of the medical
record, including the November 14, 2002 MRI scans, Dr. Dennis’ examination of appellant’s
right knee, the history of the injury and appellant’s overall examination, right knee surgery was
not warranted and would not be due to the August 31, 2001 employment injury.
As noted above, a reasoned opinion from a referee examiner is entitled to special
weight.13 Appellant, through his attorney, argued at the hearing that the reports of Dr. Dennis
were not well rationalized. The Board, however, finds that Dr. Dennis provided a wellrationalized opinion based on a complete background, his review of the accepted facts and the
medical record, including the November 14, 2004 MRI scans and findings on physical
examination. Dr. Dennis found that right knee surgery was not medically warranted and, if
appellant’s right knee condition progressed to the need for surgery, it was not related to the
12

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

13

Id.

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accepted employment injury. The Board finds that the opinion of Dr. Dennis entitled to special
weight and represents the weight of the evidence.14
Subsequent to the November 24, 2004 decision, appellant submitted an August 18, 2005
report in which Dr. Allegra reiterated his opinion that appellant was totally disabled and needed
right knee surgery. Dr. Allegra, however, was on one side of the conflict of medical evidence
resolved by Dr. Dennis. The Board has long held that an additional report from a claimant’s
physician, which essentially repeats earlier findings and conclusions, are insufficient to
overcome the weight accorded to an impartial medical specialist’s report.15 The Board finds that
Dr. Allegra’s August 18, 2005 report is insufficient to overcome the weight accorded the wellrationalized opinion of Dr. Dennis. The evidence of record does not establish that the proposed
right knee surgery is either medically necessary or for treatment of an employment-related
condition.16 Accordingly, the Office did not abuse its discretion under section 8103 of the Act in
denying authorization for the proposed right knee surgery.17
CONCLUSION
The Board finds that the Office properly denied authorization for the recommended
surgical procedure to appellant’s right knee.

14

Cathy Mullin, supra note 9.

15

Roger G. Payne, supra note 10.

16

Cathy B. Mullin, supra note 8.

17

R.C., 58 ECAB ____ (Docket No. 06-1676, issued December 26, 2006).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 14, 2005 be affirmed.
Issued: March 27, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.S., Appellant
and
OFFICE OF PERSONNEL MANAGEMENT,
FEDERAL INVESTIGATIONS DIVISION,
Denver, CO, Employer
__________________________________________

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Appearances:
John S. Evangelisti, Esq. for the appellant
Office of Solicitor, for the Director

Docket No. 08-2103
Issued: August 21, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 25, 2008 appellant, through her attorney, filed a timely appeal from a January 10,
2008 merit decision of the Office of Workers’ Compensation Programs finding that she did not
establish an employment-related right shoulder condition or permanent impairment. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant sustained a right shoulder condition causally
related to factors of her federal employment; and (2) whether she is entitled to a schedule award
for permanent impairment of the upper extremities.
FACTUAL HISTORY
This case is before the Board for the second time. By decision dated December 6, 2000,
the Board reversed an October 26, 1998 decision terminating appellant’s benefits.1 The Board
1

Docket No. 99-926 (issued October26, 1998).

found an unresolved conflict in medical opinion regarding whether she had any further residuals
of her accepted bilateral tendinitis and left carpal tunnel syndrome. The findings of fact and
conclusions of law from the prior decision are hereby incorporated by reference.
In a report dated February 26, 2002, Dr. Douglas E. Hemler, a Board-certified physiatrist,
diagnosed a supraspinatus tear with rotator cuff involvement consistent with the “previous
cumulative trauma with the rotator cuff tear occurring slowly over time as a process of overuse.”
The Office referred appellant to Dr. Christopher G. Palmer, a Board-certified orthopedic
surgeon, for a second opinion examination. On April 10, 2002 Dr. Palmer listed findings of
positive impingement in the right shoulder. He asserted that appellant’s arm pain was not related
to a rotator cuff tear.2
The Office determined that a conflict in medical opinion existed between Dr. Hemler and
Dr. Palmer regarding appellant’s work restrictions and the causal relationship between her
shoulder condition and her employment. On January 26, 2004 it referred her to Dr. Jeffrey
Sabin, a Board-certified orthopedic surgeon, for an impartial medical examination. Based on
Dr. Sabin’s report, by decision dated April 21, 2004, the Office denied appellant’s claim for a
right rotator cuff tear and right shoulder impingement syndrome. On February 14, 2005 an
Office hearing representative vacated the April 21, 2004 decision and remanded the case for
Dr. Sabin to clarify whether work factors caused or contributed to appellant’s condition.
On August 10, 2005 appellant filed a claim for a schedule award. She submitted an
impairment evaluation dated April 19, 2004 from Dr. Christopher Ryan, a Board-certified
physiatrist, who opined that appellant had a 17 percent right upper extremity impairment and a
30 percent left upper extremity impairment.
In a report dated September 10, 2005, Dr. Sabin found that appellant’s rotator cuff tear
was not employment related as she did not routinely perform overhead work as part of her duties.
He further found that she had no permanent impairment.
By decision dated October 19, 2005, the Office denied appellant’s claim for a right
shoulder condition based on Dr. Sabin’s September 10, 2005 supplemental report. In a decision
dated February 7, 2006, it denied her claim for a schedule award. The Office found that
Dr. Sabin provided a second opinion examination on the issue of whether she was entitled to a
schedule award and that his report established that she had no ratable impairment.
Appellant requested an oral hearing. Following a preliminary review, on April 3, 2006
the hearing representative vacated the October 19, 2005 decision after finding that the report of
Dr. Sabin was not based on an accurate medical history. He remanded the case for the Office to
obtain a supplemental report from Dr. Sabin. On April 13, 2006 a hearing representative set
aside the February 7, 2006 schedule award decision and remanded the case for the Office to refer
appellant for a second opinion examination on the issue of the extent of appellant’s upper
extremity impairment.
2

By decision dated November 25, 2002, the Office terminated appellant’s compensation on the grounds that she
refused an offer of suitable work under 5 U.S.C. § 8106. On December 23, 2003 it vacated the November 25, 2002
decision.

2

On May 9, 2006 the Office requested an additional opinion from Dr. Sabin. On May 13,
2006 Dr. Sabin asserted that appellant did not have a rotator cuff condition due to employment
factors.
On May 17, 2006 the Office referred appellant to Dr. John D. Douthit, a Board-certified
orthopedic surgeon, to determine whether she had an employment-related permanent
impairment. On May 30, 2006 Dr. Douthit diagnosed severe kyphosis of the thoracic spine, a
rotator cuff tear of the right shoulder and post carpal and cubital tunnel releases of the left arm.
He opined that she had no residuals of her employment-related conditions.
By decision dated July 19, 2006, the Office denied appellant’s claim for an employmentrelated right shoulder condition. It determined that Dr. Sabin’s May 13, 2006 report constituted
the weight of the evidence and established that she did not have right shoulder impingement
syndrome or a right rotator cuff tear due to the established work factors.
On August 23, 2006 the Office found that a conflict in medical opinion existed between
Dr. Ryan and Dr. Douthit on the issue of whether appellant had any permanent impairment of the
upper extremities due to an accepted work injury. It referred appellant to Dr. Steven P. Nadler, a
Board-certified orthopedic surgeon, for an impartial medical examination.
In a report dated September 21, 2006, Dr. Nadler opined that appellant had no objective
diagnosis on examination but had subjective complaints of tendinitis. He found that she had no
permanent impairment as she had no diagnosed condition.
In a decision dated October 19, 2006, the Office denied appellant’s claim for a schedule
award. On November 16, 2006 appellant requested an oral hearing. By decision dated April 16,
2007, the hearing representative vacated the July 19 and October 19, 2006 decisions. He found
that the Office correctly determined that a conflict existed between Dr. Ryan and Dr. Douthit
regarding whether appellant had any permanent impairment. The hearing representative found,
however, that the statement of accepted facts provided to Dr. Nadler was inadequate and that his
opinion was insufficiently rationalized. He instructed the Office to obtain a supplemental report
from Dr. Nadler regarding the extent of any permanent impairment. The hearing representative
also found that Dr. Sabin’s report were based on an inappropriate statement of accepted facts and
thus insufficient to support the finding that appellant had no employment-related right shoulder
condition. He instructed the Office to refer appellant for a new impartial medical examiner on
the issue of whether she sustained a right shoulder condition due to work factors.
The Office attempted to obtain clarification from Dr. Nadler regarding his determination
that appellant had no permanent upper extremity impairment; however, he was not fully
responsive to the request for further information.3 Consequently, on September 19, 2007 the
Office referred her to Dr. Barry A. Ogin, a Board-certified physiatrist, for an impartial medical
examination regarding the extent of any permanent impairment.

3

In a report dated August 21, 2007, Dr. Nadler related that he was unsure whether appellant’s shoulder condition
was employment related.

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The record contains a print screen showing that one physician in appellant’s zip code was
bypassed because the physician did not perform impartial medical examinations. The record also
contains an appointment schedule notification.
On September 28, 2007 appellant’s attorney objected to the selection of Dr. Ogin as his
office was outside appellant’s zip code. He enclosed a list of 70 Board-certified physiatrists,
which he maintained were geographically closer to appellant than the selected physician. The
attorney requested that the Office provide him with computer screens detailing the selection of
Dr. Ogin as the impartial medical specialist.
On October 3, 2007 Dr. Ogin evaluated appellant and opined that her shoulder condition
was unrelated to her federal employment. He found that she had no permanent impairment of
the shoulders due to her work injury or impairment due to loss of range of motion of the wrists
and elbows. Dr. Ogin found that appellant might have an impairment due to loss of grip strength
of the right upper extremity.
On November 5, 2007 appellant’s attorney contended that the Office was not following
Board decisions and Office procedure in selecting referee physicians by zip code. On
November 28, 2007 the Office informed another agency within the Department of Labor that it
had properly used the Physician’s Directory System (PDS) to select Dr. Ogin.
By decision dated January 10, 2008, the Office denied appellant’s claim that she
sustained an employment-related right shoulder condition or a permanent impairment of her
upper extremities. It found that the opinion of Dr. Ogin, the impartial medical examiner, was
entitled to special weight and established that she had no shoulder condition or permanent upper
extremity impairment due to her accepted work injury.
LEGAL PRECEDENT -- ISSUES 1 & 2
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.4 The implementing regulations states that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an Office medical adviser, the Office shall appoint a third
physician to make an examination. This is called a referee examination and the Office will select
a physician who is qualified in the appropriate specialty and who has no prior connection with
the case.5
A physician selected by the Office to serve as an impartial medical specialist should be
wholly free to make a completely independent evaluation and judgment. To achieve this, the
Office has developed specific procedures for the selection of the impartial medical specialist
designed to provide safeguards against any possible appearance that the selected physician’s
opinion is biased or prejudiced. The procedures contemplate that impartial medical specialists
4

5 U.S.C. § 8123(a).

5

20 C.F.R. § 10.321.

4

will be selected from Board-certified specialists in the appropriate geographical area on a strict
rotating basis in order to negate any appearance that preferential treatment exists between a
particular physician and the Office.6 The Federal (FECA) Procedure Manual provides that the
selection of referee physicians (impartial medical specialists) is made through a strict rotational
system using appropriate medical directories. The PDS, including physicians listed in the
American Board of Medical Specialists and specialists certified by the American Osteopathic
Association, should be used for this purpose. The PDS is a set of stand-alone software programs
designed to support the scheduling of second opinion and referee examinations.7 The service of
all available and qualified Board-certified specialists will be used as far as possible to eliminate
any inference of bias or partiality. This is accomplished by selecting specialists in alphabetical
order as listed in the roster chosen under the specialty and/or subspecialty heading in the
appropriate geographical area and repeating the process when the list is exhausted.8
The PDS was originally developed to ensure that referee medical specialists would be
chosen in a fair and unbiased manner and this goal remains as vital as ever to the integrity of the
federal employees’ compensation program.9 The Board has placed great importance on the
appearance as well as the fact of impartiality and only if the selection procedures which were
designed to achieve this result are scrupulously followed may the selected physician carry the
special weight accorded to an impartial specialist.10
ANALYSIS -- ISSUES 1 & 2
The Office determined that a conflict existed between Dr. Hemler, appellant’s attending
physician, and Dr. Palmer, an Office referral physician, on the issue of whether she sustained a
shoulder condition due to factors of her federal employment. It referred her to Dr. Sabin for an
impartial medical examination. However, the Office hearing representatives found that
Dr. Sabin’s reports dated April 21, 2004, September 10, 2005 and May 13, 2006 were
insufficient to resolve the conflict in medical opinion.
The Office also found that a conflict existed between Dr. Douthit, an Office referral
physician, and Dr. Ryan, appellant’s physician, regarding whether she had an employmentrelated permanent impairment. It referred appellant to Dr. Nadler for resolution of the conflict.
An Office hearing representative determined, however, that his September 21, 2006 opinion was
insufficient to resolve the conflict. Dr. Nadler did not respond sufficiently to the Office’s request
to clarify his opinion. The Office referred appellant to Dr. Ogin for an impartial medical
examination. Based on Dr. Ogin’s findings in his October 3, 2007 report, it denied her claim for
6

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4b(4) (May 2003);
see also Willie M. Miller, 53 ECAB 697 (2002).
7

Id. at Chapter 3.500.7 (May 2003).

8

Id. at Chapter 3.500.4b(4) (May 2003); see also L.W., 59 ECAB ___ (Docket No. 07-1346, issued
April 23, 2008).
9

See M.A., 59 ECAB ___ (Docket No. 07-1344, issued February 19, 2008).

10

Id.

5

a right shoulder condition and a schedule award for a permanent impairment of the upper
extremities.
The Board finds that the Office failed to properly consider the objections of appellant’s
attorney to the selection of Dr. Ogin as the impartial medical examiner. On September 28, 2007
prior to her examination by Dr. Ogin, counsel objected to the selection of Dr. Ogin as he was
outside of her zip code. He submitted a list of 70 Board-certified physiatrists, who were closer to
appellant’s geographical area. The attorney requested that the Office provide him with its
computer screens showing how it selected Dr. Ogin in accordance with the PDS.
The Office did not respond to the timely objection by appellant’s attorney. The record
contains an appointment scheduling form and a screen printout showing that one physician was
bypassed because he did not perform impartial medical examinations. The record, however,
does not contain any further information from the PDS log showing how the Office selected
Dr. Ogin as the impartial medical specialist.
The Board finds that appellant raised a timely objection to the selection of the impartial
medical specialist and provided sufficient reason to require the Office to demonstrate that it
properly followed its selection procedures.11 The Office has an obligation to verify that it
selected the impartial medical examiner in a fair and unbiased manner. The case is remanded to
the Office for this purpose. Following this and any other development deemed necessary, the
Office should issue an appropriate final decision
CONCLUSION
The Board finds that the case is not in posture for decision.

11

Id.

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 10, 2008 is set aside and the case is remanded for further
proceedings consistent with this opinion of the Board.
Issued: August 21, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.G., Appellant
and
TENNESSEE VALLEY AUTHORITY,
WIDOWS CREEK FOSSIL PLANT,
Stevenson, AL, Employer
__________________________________________

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Appearances:
Ronald K. Bruce, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1354
Issued: January 3, 2017

Case Submitted on the Record

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

JURISDICTION
On September 14, 2015 appellant, through counsel, filed a timely appeal from an
August 11, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject
to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a pulmonary
condition causally related to factors of his federal employment.
FACTUAL HISTORY
On April 30, 2014 appellant, then a 62-year-old boilermaker/welder, filed an
occupational disease claim (Form CA-2) alleging that he sustained occupational
pneumoconiosis, asbestosis, and bronchitis due to factors of his federal employment. He
submitted a statement describing his work as a boilermaker for the employing establishment for
intermittent periods beginning December 1987. Appellant advised that he was exposed to smoke
from welding, fumes, coal dust, and grinding dust daily. He also related that he was exposed to
asbestos from steam pipes and blankets and argon and helium gases. Appellant sometimes wore
paper masks. He indicated that from 1971 to 2009 he worked either directly for the employing
establishment, as a contractor for the employing establishment, or at other power plants and
paper mills with similar exposure to fumes, dust, and gases.
On February 16, 2013 Dr. Glen Baker, a Board-certified pulmonologist and certified
B-reader, interpreted an x-ray obtained December 27, 2012 as showing parenchymal
abnormalities consistent with pneumoconiosis. He determined that a pulmonary function study
(PFS) performed February 16, 2013 was normal.
In a report dated February 18, 2013, Dr. Baker related, “[Appellant] worked as a
boilermaker for approximately 37 years. He worked at power plants, paper mills, refineries, and
nuclear reactors. [Appellant] was exposed to asbestos, coal dust, fly ash, arsenic, lead, and other
unknown chemicals, fumes, and odors of unclear etiology that he was not aware of.” He noted
that appellant had a history of smoking for three years as a teenager 42 years earlier. Dr. Baker
discussed appellant’s complaints of dyspnea and shortness of breath for 10 years and noted that a
December 27, 2012 x-ray revealed category 1/0 pneumoconiosis with pulmonary asbestosis. He
diagnosed occupational pneumoconiosis with pulmonary asbestosis and bronchitis by history.
Dr. Baker further related that, “[Appellant] had a long history of asbestos exposure as well as
exposure to coal dust, welding fumes, and welding smoke. His occupational pneumoconiosis
and bronchitis are due to his exposure to asbestos, coal dust, welding fumes and welding smoke;
all of which have contributed to his pneumoconiosis and chronic bronchitis.” He indicated that
the PFS was normal, but found that appellant had four percent pulmonary impairment due to his
symptoms.
On May 13, 2013 the employing establishment indicated that it employed appellant for
intermittent periods totaling 4.8 years from September 1975 to May 1990. It related that
exposure data was unavailable specifically for him, but that general data for coal dust and
asbestos at the relevant facilities showed levels below permissible exposure limits. The
employing establishment asserted that it did not use paper masks to protect from respiratory
hazards above permissible limits.
Counsel, in a statement dated May 23, 2013, discussed appellant’s work history from
1971 to 2009 either with the employing establishment or with contractors at paper mills and

2

power plants, including those operated by the employing establishment. He submitted a copy of
appellant’s employment history.
On September 10, 2013 OWCP referred appellant to Dr. Allan Goldstein, a Boardcertified internist and pulmonologist, for a second opinion examination. Dr. Goldstein’s office
advised OWCP on October 16, 2013 that appellant had not attended the scheduled appointment.
By decision dated October 16, 2013, OWCP denied appellant’s claim as the medical
evidence was insufficient to show that he sustained a pulmonary condition as a result of exposure
to coal dust and asbestos due to factors of his federal employment. It noted in its decision that he
had failed to attend the scheduled second opinion examination.
On October 24, 2013 appellant requested a telephone hearing with an OWCP hearing
representative.
Dr. Matthew A. Vuskovich, who specializes in occupational medicine and is a B-reader,
interpreted the December 27, 2012 x-ray as showing category 1/2 pneumoconiosis.3
At the telephone hearing, held on May 12, 2014, appellant described his work as a
boilermaker and advised that he used blankets containing asbestos as a heat shield. He noted that
he used paper masks as protection. Appellant related that while working at a nuclear facility he
was exposed to fumes from welding, dust, helium, argon, and asbestos. He explained why he did
not attend the scheduled second opinion examination.
On June 19, 2014 the employing establishment reviewed the hearing transcript and
advised that there was no evidence that the level of coal dust, dust, asbestos, or other airborne
particles and gases exceed permissible limits as set by the Occupational Safety and Health
Administration (OSHA). It noted that appellant was unsure of what materials contained
asbestosis and asserted that asbestos would not become airborne through the use of blankets
containing the substance. The employing establishment challenged his allegation that he used
paper masks, noting that it provided purifying respirators to those needing protection, and noted
that he discussed nonfederal employment at the hearing. It asserted that x-rays alone were
insufficient to support a diagnosis of pneumoconiosis. The employing establishment maintained
that in M.W.,4 the Board held that a condition could not arise from exposure below permissible
levels. It related that Dr. Stephen Adams, Board-certified in family practice, quoted an article
recommending computerized tomography scans be used to diagnose pneumoconiosis.
In a response dated July 1, 2014, counsel noted that the employing establishment had no
exposure levels specific to appellant and advised that paper masks were used in the 1970s and
1980s. He contended that M.W. was irrelevant as it concerned fumes below detectable levels
rather than below permissible levels of exposure. Counsel also noted that Dr. Adams was a
family practitioner who had not examined appellant. He asserted that the medical evidence
3

Dr. Vuskovich indicated that he interpreted the x-ray on April 21, 2012. However, this indication appears to be
a typographical error.
4

57 ECAB 710 (2006) (the Board found that appellant had not established exposure to strong odors or chemicals
at work when surveys found no detectable levels of chemicals).

3

established that he had an occupational pulmonary condition due at least in part to his federal
employment.
By decision dated July 25, 2014, OWCP’s hearing representative set aside the
October 16, 2013 decision. He found that the medical evidence from Dr. Vuskovich and
Dr. Baker was sufficient to warrant further development of the evidence. The hearing
representative further found that appellant sufficiently explained his failure to attend the
scheduled second opinion appointment and instructed OWCP to refer him for a new second
opinion examination.
OWCP, on August 5, 2014, referred appellant to Dr. Richard E. Parrish, a Board-certified
internist and pulmonologist, for a second opinion examination. In a report dated September 4,
2014, Dr. Parrish reviewed appellant’s work history and noted that the levels of coal dust, dust,
and asbestos were below permissible exposure levels as set by OSHA. On examination, he
found no cyanosis, clubbing, edema, or abnormal breathing. A PFS dated September 4, 2014
showed results before bronchodilator of 77 percent. Dr. Parrish interpreted an x-ray and the PFS
obtained that date as normal. He found that appellant had no diagnosable pulmonary condition,
including pneumoconiosis.
In a decision dated November 4, 2014, OWCP denied appellant’s claim after finding that
the opinion of Dr. Parrish represented the weight of the evidence and found that appellant had
not met his burden of proof to establish an employment-related pulmonary condition.
Counsel, on November 13, 2014, requested a telephone hearing. In a report dated
May 14, 2015, Dr. Baker discussed appellant’s 37-year history as a boilermaker with exposure to
“asbestos, coal dust, fly ash, arsenic, lead, and other chemicals, fumes and odors of unclear
etiology.” He noted that his x-ray and symptoms of bronchitis were “positive for pulmonary
asbestosis.” Dr. Baker concluded, “I feel [appellant’s] employment at [the employing
establishment] contributed to the development of bronchitis and occupational pneumoconiosis
with pulmonary asbestosis.”
At the telephone hearing, held on June 17, 2015, counsel asserted that Dr. Parrish’s
opinion was entitled to less weight as he was not a B-reader, noting that OWCP’s procedures
provided that the opinion of an expert was entitled to more weight. He maintained that the
record contained a conflict in opinion.
In an August 11, 2015 decision, OWCP’s hearing representative affirmed the
November 4, 2014 decision. She found that Dr. Baker had not provided a sufficiently
rationalized opinion and thus his opinion was entitled to less weight than that of Dr. Parrish.
On appeal counsel contends that the opinion of Dr. Baker is entitled to more weight than
that of Dr. Parrish as he is a B-reader. He notes that Dr. Vuskovich, who is also a B-reader,
found that he had pneumoconiosis by x-ray. Citing OWCP’s procedures, counsel asserts that
opinions from physicians in specialized fields have greater probative value. He maintains that
Dr. Parrish did not explain his finding that appellant had a normal PFS when it was 77 percent of
predicted before bronchodilator, a ratable impairment. In the alternative, counsel alleges that a

4

conflict exists between Dr. Baker and Dr. Parrish necessitating referral to an impartial medical
examiner.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an “employee of
the United States” within the meaning of FECA, that the claim was filed within the applicable
time limitation; that an injury was sustained while in the performance of duty as alleged; and that
any disability and/or specific condition for which compensation is claimed are causally related to
the employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed;7 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;8 and (3) medical evidence establishing the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.9
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence. The opinion of the physician must be based on a complete factual and
medical background of the claimant,10 must be one of reasonable medical certainty11 explaining
the nature of the relationship between the diagnosed condition and the specific employment
factors identified by the claimant.12
ANALYSIS
Appellant alleged that he developed occupational pneumoconiosis, asbestosis, and
bronchitis as a result of exposure to coal dust, welding fumes, grinding dust, and other fumes and
chemicals in the course of his federal employment. He worked for the employing establishment
for 4.8 years between 1975 and 1990.
5

Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

6

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

7

Michael R. Shaffer, 55 ECAB 386 (2004).

8

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

9

Beverly A. Spencer, 55 ECAB 501 (2004).

10

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

11

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

12

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

5

In support of his claim, appellant submitted evidence from Dr. Baker, a Board-certified
pulmonologist and B-reader. On February 18, 2013 Dr. Baker interpreted a December 27, 2012
x-ray as showing pneumoconiosis category 1/0 and pulmonary asbestosis. He noted that
appellant worked as a boilermaker for 37 years at power plants, paper mills, nuclear reactors, and
refiners, and had an extensive history of exposure to coal dust, asbestos, welding fumes, and
welding smoke. Dr. Baker attributed his pneumoconiosis and bronchitis to his exposure to
asbestos, coal dust, and fumes from welding. On May 14, 2015 he again noted that appellant had
a 37-year work history as a boilermaker with exposure to asbestos, coal dust, arsenic, lead, and
other chemicals. Dr. Baker diagnosed pulmonary asbestosis by x-ray and symptoms of
bronchitis. He opined that appellant’s federal employment contributed to his occupational
pneumoconiosis with pulmonary asbestosis and bronchitis.
The Board find’s that Dr. Baker’s opinion is of diminished probative value as he based
his conclusions on appellant’s 37-year history of exposure to welding fumes, coal dust, and
asbestos without recognizing that he worked directly for the employing establishment for only
4.8 years.13 A physician’s opinion must be based on a complete and accurate factual and medical
background and must be supported by medical rationale.14 Dr. Baker did not base his opinion on
a complete work history and, consequently, his report is of diminished probative value.15
Appellant also submitted a report from Dr. Vuskovich, a certified B-reader, who
interpreted the December 27, 2012 x-ray as demonstrating category 1/2 pneumoconiosis.
Dr. Vuskovich did not, however, address causation and thus his opinion is of little probative
value.16
OWCP referred appellant to Dr. Parrish for a second opinion examination. In a report
dated September 4, 2014, Dr. Parrish discussed appellant’s history of working for the employing
establishment on intermittent dates from September 1975 until May 25, 1990. He noted that the
employing establishment advised that the exposure data obtained during appellant’s employment
showed levels of dust, coals dust, and asbestos at the facilities within permissible exposure limits
set by OSHA. Dr. Parrish found that he had no clubbing, edema, cyanosis, or abnormal
breathing on examination. He interpreted x-rays and PFS obtained that date as within normal
limits. Dr. Parrish concluded that appellant did not have pneumoconiosis or any other
pulmonary condition.
The Board finds that Dr. Parrish’s opinion is entitled to the weight of the evidence as he
based his opinion on an accurate factual history and was aware that appellant’s federal
employment exposure constituted only a small part of his total work history.17 Dr. Parrish
13

See K.A., Docket No. 15-0057 (issued February 23, 2015).

14

See Roger Dingess, 47 ECAB 123 (1995).

15

See Joseph M. Popp, 48 ECAB 624 (1997).

16

See K.W., 59 ECAB 271 (2007); A.D., ECAB 149 (2006); Linda I. Sprague, 48 ECAB 386 (1997) (medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship).
17

See supra note 13.

6

provided a thorough review of the factual and medical background and concluded that appellant
had no evidence of a pulmonary condition based on examination findings and objective testing.
On appeal counsel contends that Dr. Baker is entitled to more weight than that of
Dr. Parrish as he is a certified B-reader. He notes that Dr. Vuskovich, who is also a certified Breader, found that he had pneumoconiosis by x-ray. OWCP procedures require that in asbestos
disease cases the chest x-ray shall be read by either a Board-certified radiologist or pulmonary
specialist.18 Neither FECA nor OWCP’s regulations require an x-ray be interpreted by a
certified B-reader.19
Counsel maintains that Dr. Parrish did not explain his finding that appellant had a normal
PFS when it was 77 percent of predicted before bronchodilator, a ratable impairment. The issue
of whether he had a ratable pulmonary impairment, however, is a separate determination from
whether he sustained an employment-related pulmonary condition. Counsel further alleges that a
conflict exists between Dr. Baker and Dr. Parrish. As discussed, however, Dr. Baker relied upon
an inaccurate history of injury and thus his opinion is of diminished probative value and
insufficient to create a conflict in medical opinion.20
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 met his burden of proof to establish a pulmonary
condition causally related to factors of his federal employment.

18

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.8(b)
(Exhibit 7) (December 1994).
19

See D.C., Docket No. 14-1198 (issued December 1, 2015); M.D., Docket No. 14-2037 (issued
February 24, 2015).
20

See supra note 13.

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ORDER
IT IS HEREBY ORDERED THAT the August 11, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 3, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Diego, CA, Employer
__________________________________________

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

Docket No. 10-1605
Issued: August 19, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 1, 2010 appellant filed a timely appeal from a March 12, 2010 decision of the
Office of Workers’ Compensation Programs (OWCP) regarding a wage-earning capacity
determination. Pursuant to the Federal Employees’ Compensation Act (FECA)1 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 OWCP properly denied modification of the January 22, 2009 wageearning capacity determination.
On appeal, appellant’s representative contends that OWCP improperly denied
modification of the wage-earning capacity determination because he established a material
worsening of the accepted bilateral shoulder conditions. Counsel also asserted that OWCP
improperly failed to consider a preexisting bilateral hand condition when determining that the
clerk position was suitable work.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 16, 2005 appellant, then a 65-year-old mail processor filed an occupational
disease claim for his left shoulder that he attributed to repetitive sorting of mail with his left arm.
The record reflects that he sustained a prior right rotator cuff tear on February 3, 2003 under a
different claim number, for which he underwent surgery on May 5, 2004. Dr. Ben Medina, an
attending physician, reported that appellant was returned to work after the right shoulder surgery
and instructed to use his left arm for sorting mail. Based on appellant’s complaint of left upper
extremity symptoms, a magnetic imaging resonance (MRI) scan was obtained on January 3,
2006 that showed a possible partial tear of the supraspinatus tendon with mild tendinopathy.
On May 10, 2006 Dr. Thomas W. Harris, an attending Board-certified orthopedic
surgeon, reported that appellant was initially seen by Dr. Medina and diagnostic studies obtained
of the left shoulder. Appellant did not stop work and continued at full-time duty casing and
sorting mail with a maximum lifting of 10 pounds. Dr. Harris provided findings on examination
of the left shoulder and diagnosed a torn rotator cuff and adhesive capsulitis. He restricted
appellant from any overhead work, no repetitive forceful gripping or grasping and limited weight
from 5 to 10 pounds.
Appellant received conservative treatment with physical therapy and remained at limited
duty. On June 26, 2006 Dr. Christopher S. Pallia, an attending orthopedic surgeon and associate
of Dr. Harris, reviewed appellant’s prior right shoulder history and surgical treatment. He
advised that appellant was a candidate for a left shoulder arthroscopy, subacromial
decompression, debridement of the partial thickness cuff tear and a distal clavicle excision. The
record reflects that surgery was performed by Dr. Pallia on September 17, 2006. Following
additional therapy, appellant was released by Dr. Harris to return to light duty with no repetitive
work overhead or above shoulder level as of November 20, 2006.
In a February 14, 2007 report, Dr. Harris opined that appellant’s left shoulder had
reached maximum medical improvement, with residual pain, weakness and restricted motion.
He found appellant was able to work full time, with permanent restrictions against overhead
work, repetitive lifting above shoulder level or heavy lifting. Dr. Harris submitted periodic
reports through September 2008 noting continued shoulder symptoms and weakness in the left
hand.
On March 2, 2007 the employing establishment withdrew appellant’s light-duty
assignment and advised OWCP that there was no work available within his restrictions.
Appellant did not return to work. OWCP placed appellant on the periodic rolls effective
June 10, 2007.2
On June 20, 2007 OWCP referred appellant for vocational rehabilitation. Following a
transferable skills analysis, the vocational rehabilitation counselor selected general clerk and
accounting clerk as employment goals. OWCP approved a 32-week community college course
in computerized accounting, which appellant completed on May 20, 2008.
2

Appellant separated from the employing establishment on August 31, 2008.

2

On May 20, 2008 OWCP authorized a 90-day direct placement plan for employment as a
general clerk. During the placement period, the rehabilitation counselor forwarded appellant 24
job contacts. Appellant pursued job leads but did not obtain employment after 120 days of
assistance. Labor market surveys of October 2008 showed that general clerk positions were
available in appellant’s commuting area with median wages of $534.50 a week.
On November 14, 2008 OWCP proposed reducing appellant’s wage-loss compensation
based on his ability to earn $534.50 a week in the selected position of general clerk, DOT (U.S.
Department of Labor, Dictionary of Occupational Titles) #209.562-010. The position was
classified as light, with lifting up to 20 pounds and frequent reaching, handling and fingering.
Duties included: filing, typing, computer data entry, photocopying and writing. OWCP found
the position to be suitable to appellant’s physical work restrictions. It afforded him 30 days to
submit additional evidence or argument.
In a November 24, 2008 report, Dr. Harris noted that appellant had residual impingement
and reduced motion in the right shoulder due to the May, 5, 2004 arthroscopic surgery. He
diagnosed a possible right rotator cuff retear but opined that appellant’s condition remained
permanent and stationary. Dr. Harris provided range of motion findings pertaining to both upper
extremities and advised that there were residuals of impingement syndrome. He recommended
additional diagnostic testing. In a December 10, 2008 report, Dr. Harris noted that appellant had
residual pain and restricted motion in the left shoulder with numbness and tingling into his left
arm, the etiology of which was unclear. Examination of the left elbow revealed a negative
Tinel’s while the left hand had a negative response to Tinel’s and Phalen’s tests.
A December 17, 2008 magnetic resonance imaging (MRI) scan of appellant’s right
shoulder showed degenerative changes, moderate impingement, chronic tendinitis and
subchondral cysts.
By decision dated January 22, 2009, OWCP reduced appellant’s compensation effective
January 17, 2009 under sections 8106 and 8115 of FECA, based on his ability to earn $534.50 a
week in the light-duty position of general clerk. It found that the medical evidence from
Dr. Harris established that appellant’s condition was considered permanent and stationary with
the physical capacity to perform the duties of a general clerk. OWCP noted that appellant
remained entitled to medical benefits for treatment of his accepted conditions.
In a January 28, 2009 letter, counsel requested a hearing, held on April 15, 2009.
Appellant stated that in 2004, he experienced pain, weakness and clumsiness in both hands.
During an internship in May 2008, his upper extremity symptoms made it difficult for him to
type or file such that a prospective employer would not hire him. Appellant contended that he
did not inform Dr. Harris of his hands symptoms or the requirements of the general clerk
position.
In a December 29, 2008 report, received on January 29, 2009, Dr. John B. Dorsey, an
attending Board-certified orthopedic surgeon, noted a history of bilateral shoulder impingement
and surgery. He listed appellant’s complaint of numbness, tingling, weakness, and clumsiness in
both hands, neck pain and bilateral shoulder pain. On examination, Dr. Dorsey found restricted
cervical and bilateral shoulder motion, positive impingement signs in both shoulders and 4/5

3

weakness in all muscle groups of both shoulders. He diagnosed advanced cervical degenerative
disc disease and spondylosis, postoperative arthritis of the right glenohumeral joint and
impingement syndrome of the left shoulder. Dr. Dorsey stated that appellant had residuals in the
form of pain, weakness and loss of motion that would prevent him from gainful employment. He
noted that appellant was 68 years of age and, in his opinion, disabled from any type of work.
In an April 28, 2009 note, submitted after the hearing, Dr. Dorsey reiterated that appellant
was disabled. He addressed his examination of appellant noting he was 69 years of age and was
having problems with his neck and both shoulders. Appellant was also having problems with his
hands, but this was not mentioned in view of the fact that it was not related to his work but was
secondary to osteoarthrisitis. Dr. Dorsey reiterated that appellant could not engage in useful
employment, noting his understanding that he had been sent home by the employing
establishment.
In a January 21, 2009 report, Dr. Harris stated that appellant’s left shoulder remained
permanent and stationary, with reduced range of motion and chronic pain.
By decision dated and finalized May 26, 2009, OWCP’s hearing representative affirmed
the January 22, 2009 wage-earning capacity determination. He found that the weight of medical
opinion was represented by Dr. Harris who had treated appellant for several years for both upper
extremities. It was noted that Dr. Dorsey did not provide sufficient explanation of how
appellant’s accepted conditions had materially worsened or why he disagreed with the
restrictions or opinion of Dr. Harris.
In a February 4, 2010 letter, counsel requested reconsideration. He resubmitted a copy of
Dr. Dorsey’s April 28, 2009 note.
In a June 22, 2009 report, Dr. Harris noted appellant’s continuing left shoulder pain with
restricted motion. He reiterated that appellant was permanent and stationary.
By decision dated March 12, 2010, OWCP denied modification of the wage-earning
capacity determination. It found that appellant did not show that the original wage-earning
capacity determination was in error, a material change in his medical condition or that he had
been vocationally rehabilitated.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.3 Section 8115(a) of FECA provides that, in determining compensation for partial
disability, the wage-earning capacity of an employee is determined by her actual earnings if her
actual earnings fairly and reasonably represent her wage-earning capacity.4 In determining an
employee’s wage-earning capacity based on a position deemed suitable, but not actually held,
3

See 5 U.S.C. § 8115 (determination of wage-earning capacity).

4

5 U.S.C. § 8115(a); Loni J. Cleveland, 52 ECAB 171 (2000).

4

OWCP must consider the degree of physical impairment, including impairments resulting from
both injury related and preexisting conditions, but not impairments resulting from post injury or
subsequently acquired conditions.5 Compensation payments are based on the wage-earning
capacity determination and it remains undisturbed until properly modified.6
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.7 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.8
OWCP’s procedure manual provides that factors to be considered in determining whether
the claimant’s work fairly and reasonably represents his wage-earning capacity include the kind
of appointment, that is, whether the position is temporary, seasonal or permanent and the tour of
duty, that is, whether it is part time or full time.9
In addition, Chapter 2.814.11 of OWCP’s procedure manual contains provisions
regarding the modification of a formal loss of wage-earning capacity. The relevant part provides
that a formal loss of wage-earning capacity will be modified when: (1) the original rating was in
error; (2) the claimant’s medical condition has changed; or (3) the claimant has been vocationally
rehabilitated. OWCP procedures further provide that the party seeking modification of a formal
loss of wage-earning capacity decision has the burden to prove that one of these criteria has been
met.
ANALYSIS
The Board finds that appellant has not established that modification of the January 22,
2009 wage-earning capacity determination is warranted.
The determination of appellant’s wage-earning capacity was based on the constructed
position of general clerk and the light-duty work restrictions recommended by Dr. Harris, an
attending Board-certified orthopedic surgeon. The record reflects that Dr. Harris treated
appellant for both upper extremities and provided detailed reports on examination. He noted that
following surgery of the left shoulder in 2003 and of the right shoulder in 2004, appellant had the
capacity for full-time duty performing maximum lifting to 10 pounds, no overhead work, with no
repetitive gripping or grasping. Additional surgery was performed in 2006 by Dr. Pallia, an
associate of Dr. Harris, on September 17, 2006; following which Dr. Harris again released
appellant to light duty as of November 20, 2006. The subsequent treatment notes advised that
5

20 C.F.R. §§ 10.402, 10.403; John D. Jackson, 55 ECAB 465 (2004).

6

Sharon C. Clement, 55 ECAB 552 (2004).

7

Tamra McCauley, 51 ECAB 375, 377 (2000); T.M., Docket No. 08-975 (issued February 6, 2009).

8

A.J., Docket No. 10-619 (issued June 29, 2010).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7 (July 1997).

5

appellant was considered permanent and stationary with restrictions. As of March 2, 2007, the
employer withdrew appellant’s light duty as no work was available. Following a period of
vocational rehabilitation, Dr. Harris submitted reports of November and December, 2008
detailing the results of examination of both upper extremities. He reiterated that appellant was
considered permanent and stationary, with residuals of restriction in range of motion and pain
tingling into the left arm, of undetermined etiology. Dr. Harris noted findings relative to
appellant’s elbow and hands, but did not state that this rendered appellant disabled. He advised
that appellant was able to work full time, subject to limitations on overhead work, repetitive and
lifting. As found by OWCP, the medical reports established appellant’s capacity to perform the
light-duty general clerk position.
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.10 Counsel does not assert that
the original determination was in error or that appellant was vocationally rehabilitated. Rather,
he contends that modification of the January 22, 2009 LWEC determination was warranted due
to a material change in the nature and extent of appellant’s injury-related shoulder conditions as
established by Dr. Dorsey.
Pursuant to an April 15, 2009 hearing, appellant submitted medical evidence from
Dr. Dorsey, an attending Board-certified orthopedic surgeon. In a December 29, 2008 report,
Dr. Dorsey noted a history of bilateral shoulder impingement with surgery and presented
findings on examination of the cervical spine and both shoulders. He diagnosed advanced
cervical degenerative disc disease and spondylosis with postoperative arthritis of the right
shoulder glenohumeral joint and impingement syndrome of the left shoulder. Dr. Dorsey stated
generally that appellant was 68 years of age and disabled from gainful employment. In an
April 28, 2009 note submitted after the hearing, he briefly reviewed the December 29, 2008
evaluation, noting that appellant also complained of problems with his hands that were not
mentioned as this was secondary to osteoarthritis. Dr. Dorsey again stated that appellant was
disabled, based on his age and inability to type, file, carry, lift, push or pull or perform other such
activities with his upper extremities.
The Board finds that the medical evidence submitted from Dr. Dorsey is not sufficient to
establish that appellant experienced a material change in his accepted shoulder conditions such
that the 2009 wage-earning capacity determination required modification. In this regard,
Dr. Dorsey did not provide any extensive discussion of appellant’s capacity for work as it
pertained to the selected position of a light-duty general clerk. Rather, his opinion on disability
for work appeared largely based on appellant’s age and stated inability to work. Dr. Dorsey did
not address with any specificity how residuals affecting appellant’s accepted shoulder conditions
had materially changed since treatment by Dr. Harris such that appellant could no longer perform
light-duty work subject to specified physical limitations. As noted in OWCP’s hearing
representative’s May 26, 2009 decision, this is the primary defect in the conclusion stated by
Dr. Dorsey. Appellant thereafter sought modification of the wage-earning capacity on
10

Supra note 11.

6

February 4, 2010, but resubmitted the April 28, 2009 note from Dr. Dorsey. No new medical
evidence was submitted that cured the deficiencies found in the physician’s reports of record.
Appellant has not met his burden to establish a material change in his accepted shoulder
condition which warranted modification of the wage-earning capacity determination.
On appeal, counsel asserts that OWCP improperly failed to consider a preexisting
bilateral hand condition when determining that the selected general clerk position was suitable
work. The Boards notes that the reports of Dr. Harris commented on examination of appellant’s
hands but did not find residuals that disabled him from limited-duty work with restrictions, as
recommended. Appellant did not submit any medical evidence from another physician that
establishes that he was rendered totally disabled due to a condition involving his wrists or hands.
CONCLUSION
The Board finds that appellant did not establish that the January 22, 2009 wage-earning
capacity determination should be modified.
ORDER
IT IS HEREBY ORDERED THAT the March 12, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 19, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Laurinburg, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-0791
Issued: October 9, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 27, 2019 appellant filed a timely appeal from a November 6, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case. 2
ISSUE
The issue is whether appellant has met his burden of proof to establish a lumbar strain
causally related to the accepted August 30, 2018 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the November 6, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On September 6, 2018 appellant, then a 41-year-old clerk, filed a traumatic injury claim
(Form CA-1) alleging that on August 30, 2018 he experienced lower back pain after heavy lifting
while in the performance of duty. He stopped work on September 4, 2018.
In a supplemental statement, received on September 13, 2018, appellant explained that on
August 30, 2018 he performed his normal duties, including breaking down packages and loading
tubs of circulars into a truck. He indicated that, prior to his shift ending, he sat down in the
breakroom and noticed pain in his lower back. When appellant awoke the following morning, the
pain was more severe. He reported to work and advised a coworker that he had pain in his back
and she broke down packages for him while he performed her role of sorting letters, in hopes that
this would help his back. When he reported to work the following day, appellant used a back brace
to break down packages and flats; however, the next morning, the pain was unbearable and he
notified the postmaster of his condition.
In a witness statement dated September 8, 2018, H.M. indicated that she reported to work
on August 31, 2018 and noticed that appellant was walking slowly. Appellant advised that he had
pain in his back. He accepted H.M.’s offer to switch tasks so that he could rest his back.
In a statement dated September 10, 2018, A.C., a supervisor, indicated that appellant
called-in on September 6, 2018 and alleged that he sustained an injury on August 30, 2018 and
was going to seek medical attention. He advised that the alleged date of injury was actually
August 29, 2018 and that appellant never mentioned to him or gave any inclination that he was
experiencing any type of pain.
In a separate statement of even date, Postmaster S.R., related that on September 4, 2018
appellant advised her that his back was hurting and he needed to leave. When she asked what
happened, he advised that he injured his back on August 30, 2018. Appellant explained that he
did not report the injury initially because he was not sure when exactly he injured his back and he
thought the pain would subside with rest. S.R. further advised that he seemed to be working fine
and without pain on the alleged date of injury and did not report the injury to management until
five days after it allegedly occurred.
Appellant also submitted two physical therapy treatment notes dated September 6, 2018
and a September 6, 2018 duty status report (Form CA-17) from a nurse practitioner.
In a September 14, 2018 development letter, OWCP requested that appellant provide
additional factual and medical information in support of his claim, including a detailed factual
statement and a report from his attending physician addressing causal relationship between any
diagnosed condition(s) and the claimed August 30, 2018 work incident. It afforded him 30 days
to respond.
In response, appellant submitted physical therapy treatment notes dated September 6 to
October 11, 2018.
Appellant further submitted a narrative statement indicating that his federal duties required
breaking down packages that could weigh up to 70 pounds and this process involved frequent and
2

repetitive bending, kneeling, twisting, and lifting. The process typically took approximately two
to four hours to complete depending on the volume for that day. Appellant related that, on
August 30, 2018, the date of injury, he was working at his duty station starting at 5:00 a.m. for the
distribution of incoming mail and he was injured while lifting tubs of mail from the floor of the
dock and placing them on a “boat cart.” The tubs weighed an estimated 30 to 40 pounds and he
stacked the tubs at three levels on the cart, which was chest-high.
In a reports dated September 20, and 27, 2018, Dr. Martin Berger, a Board-certified family
practitioner, diagnosed lumbar strain. He related that appellant was seen for a follow up for his
back pain that had greatly improved, but he had some pain with standing or sitting for extended
periods of time.
In an October 4, 2018 report, Dr. Berger indicated that appellant began working limited
duty on September 26, 2018 and his symptoms were improving. He increased appellant’s work
tolerance to 35 pounds maximum lifting.
On October 18, 2018 Dr. Berger reported that appellant had not had physical therapy since
his last visit and released him from care and returned him to regular duty.
By decision dated November 6, 2018, OWCP found that appellant had established the
August 30, 2018 employment incident occurred as alleged. It determined, however, that the
medical evidence of record was insufficient to establish that he sustained a diagnosed condition
causally related to the accepted work incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including the fact that the individual is an employee of the United States within the
meaning of FECA, that the claim was timely filed within the applicable time limitation period of
FECA, that an injury was sustained in the performance of duty as alleged, and that any disability
or specific condition for which compensation is claimed is causally related to the employment
injury.4 These are the essential elements of every compensation claim regardless of whether the
claim is predicated on a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the

3

Supra note 1.

4

K.V., Docket No. 18-0947 (issued March 4, 2019); M.E., Docket No. 18-1135 (issued January 4, 2019); Kathryn
Haggerty, 45 ECAB 383, 388 (1994).
5

K.V. and M.E., id.; Elaine Pendleton, 40 ECAB 1143 (1989).

3

time, place, and in the manner alleged. 6 Second, the employee must submit medical evidence to
establish that the employment incident caused a personal injury. 7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 8 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.9 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant ’s
specific employment factor(s). 10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a lumbar strain
causally related to the accepted August 30, 2018 employment incident.
Dr. Berger consistently diagnosed lumbar strain, but he did not explain how the diagnosed
condition was causally related to the accepted employment incident. As the attending physician
failed to address causal relationship, his reports are insufficient to meet appellant’s burden of
proof.11 Dr. Berger’s opinion is therefore insufficient to establish the claim.
Appellant further submitted a duty status report (Form CA-17) dated September 6, 2018
from a nurse practitioner. He also provided physical therapy treatment notes. The Board has held
that medical reports signed solely by a nurse practitioner or physical therapist are of no probative
value as such health care providers are not considered physicians as defined under FECA and are
therefore not competent to provide medical opinions. 12 Consequently, this evidence is also
insufficient to establish appellant’s claim.

6

G.C., Docket No. 18-0506 (issued August 15, 2018).

7

Id.

8

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

9

M.V., Docket No. 18-0884 (issued December 28, 2018).

10

Id.; Victor J. Woodhams, 41 ECAB 345, 352 (1989).

11

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

12

See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by state law). E.T., Docket No. 17-0265 (issued
May 25, 2018) (physician assistants are not considered physicians under FECA); J.M., 58 ECAB 448 (2007) (physical
therapists are not considered physicians under FECA).

4

As appellant has not submitted rationalized medical evidence sufficient to establish an
injury causally related to the accepted employment incident, the Board finds that he has not met
his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a lumbar strain
causally related to the accepted August 30, 2018 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the November 6, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 9, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5