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

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Appearances:
Russell T. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0133
Issued: May 21, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 21, 2019 appellant, through counsel, filed a timely appeal from a May 21, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the

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

The Board notes that following the May 21, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish total disability from
work commencing February 2, 2010 causally related to her accepted November 20, 2002
employment injury.
FACTUAL HISTORY
This case has previously been before the Board on other issues.4 The facts and
circumstances as set forth in the Board’s prior decision are incorporated herein by reference. The
relevant facts are as follows.
On November 21, 2002 appellant, then a 41-year-old clerk, filed a traumatic injury claim
(Form CA-1) alleging that on November 20, 2002 she fractured her left knee when she tripped
over a buckled rug while in the performance of duty. OWCP accepted the claim for a fractured
left patella and assigned OWCP File No. xxxxxx840. On November 25, 2002 appellant underwent
tension band wiring of the left patella and on April 23, 2003 she underwent surgery to remove the
left patella hardware. On February 3, 2003 she accepted a full-time modified position with the
employing establishment.5
On October 7, 2009 appellant filed a notice of recurrence (Form CA-2a) alleging that she
required medical treatment “from March 2009 onward” due to her accepted employment injury.
By decision dated March 2, 2010, OWCP found that appellant had not established a
recurrence of the need for medical treatment commencing March 2009 causally related to her
accepted employment injury.
On March 9, 2010 Dr. Michael J. Ross, Board-certified in emergency medicine, diagnosed
a distal fibular fracture. He opened that appellant should not work, noting that she could not stand
or walk for more than one to two hours a day. On April 5, 2010 Dr. Ross advised that appellant

3

5 U.S.C. § 8101 et seq.

4

Docket No. 14-0467 (issued September 26, 2014); Order Dismissing Appeal, Docket No. 15-1209 (issued July 20,
2015); Docket No. 16-1384 (issued February 1, 2017).
5

On January 11, 2010 appellant filed a CA-1 form alleging that she injured her left knee and left ankle on that date
when her left knee gave out and she fell to the floor, twisting her left ankle. OWCP assigned the claim OWCP File
No. xxxxxx746. By decision dated April 30, 2010, it denied appellant’s traumatic injury claim in OWCP File No.
xxxxxx746, finding that she had not established a claimed medical condition due to the accepted work-related incident.
On June 28, 2013 appellant, through counsel, requested reconsideration of the April 30, 2010 decision. In a decision
dated March 11, 2014, OWCP denied appellant’s June 28, 2013 request for reconsideration as it was untimely filed
and failed to demonstrate clear evidence of error. It has administratively combined OWCP File No. xxxxxx746 into
the current claim, with the current claim serving as the master file.

2

continued to experience buckling episodes from her left knee. He diagnosed a healing distal fibular
fracture and left knee osteoarthritis with recurrent giving way.
On June 9, 2010 Dr. Ross opined that appellant’s patellar fracture had accelerated her left
knee arthritis. He related, “I do question that the osteoarthritis secondary to the patellar fracture is
also causing her knee to continuously give way which led to her initial fall that resulted in her
fibular fracture.”
On August 3, 2010 Dr. Dennis W. Ivill, a Board-certified physiatrist, diagnosed left knee
degenerative joint disease causally related to appellant’s November 20, 2002 left knee fracture.
He opined that the employment incident had accelerated her left knee degenerative joint disease.
Appellant, on October 13, 2010, requested reconsideration of OWCP’s March 2, 2010
decision. She asserted that she sustained left knee osteoarthritis and degeneration arising from her
November 20, 2002 employment injury.
By decision dated January 11, 2011, OWCP denied modification of its March 2, 2010
decision.
On December 29, 2011 appellant, through her representative, requested reconsideration.
By decision dated February 8, 2012, OWCP denied modification of its January 11, 2011
decision.
On August 28, 2012 appellant filed a Form CA-2a alleging that on January 11, 2010 her
left knee “gave out” and she fell to the floor, twisting her left ankle. She maintained that her
November 20, 2002 employment injury had weakened her left knee and caused severe pain,
stiffness, weakness, and swelling. Appellant stopped work on January 11, 2010. The employing
establishment indicated on the form that she had resumed her usual employment after the original
injury.
By decision dated November 28, 2012, OWCP found that appellant had not established a
recurrence of disability commencing January 11, 2010.
On December 4, 2012 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
By decision dated June 13, 2013, OWCP’s hearing representative affirmed the
November 28, 2012 decision, as modified to reflect that appellant had alleged a consequential
injury rather than a recurrence of disability. He determined that she had not submitted medical
evidence sufficient to establish that she sustained a left ankle fracture as a consequence of her
accepted left knee injury.
By decision dated June 17, 2013, OWCP denied appellant’s request to expand the
acceptance of her claim to include a consequential left ankle condition causally related to her
November 20, 2002 employment injury.

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On July 17, 2013 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
In a report dated August 15, 2013, Dr. Ivill noted that he had initially examined appellant
on June 25, 2010 for pain in her left ankle, left knee, and left lower extremity. He advised that she
fractured her patella on November 20, 2002. Dr. Ivill diagnosed chronic regional pain syndrome
(CRPS) of the left lower extremity. He opined that appellant’s left knee gave out on January 11,
2010 causing her to fall and fracture her left fibula near the left ankle.
A hearing was held on November 8, 2013.
In a December 4, 2013 report, Dr. Ivill indicated that appellant had fallen on November 23,
2013 as a result of left lower extremity pain and instability due to her employment. On
examination he found that her left lower extremity was cool and her skin was shiny and thin.”
Dr. Ivill diagnosed CRPS/reflex sympathetic dystrophy (RSD) of the left lower extremity,
spreading to the right. He related that appellant’s November 20, 2002 and January 11, 2010
injuries had resulted in “left lower extremity weakness and instability and ultimately resulted in
the [CRPS]/RSD in the lower extremities with [a] recent fall on November 23, 2013 with left tibial
fracture….” Dr. Ivill opined that appellant was permanently disabled from employment.
On January 15, 2014 Dr. R. Bruce Lutz, a Board-certified orthopedic surgeon, performed
a surgical repair of a displaced left distal tibia fracture. He indicated that appellant had a history
of RSD and a left distal tibia fracture. Dr. Lutz advised that appellant’s left leg had given out while
she was healing, resulting in a second fracture.
By decision dated March 18, 2014, OWCP’s hearing representative vacated the June 17,
2013 decision. He found that OWCP should refer appellant for a second opinion evaluation for an
opinion regarding whether she had sustained a consequential injury on January 11, 2010 causally
related to the accepted November 20, 2002 employment injury.
On March 21, 2014 OWCP referred appellant for a second opinion evaluation with
Dr. Noubar A. Didizian, a Board-certified orthopedic surgeon.
In a report dated April 17, 2014, Dr. Didizian noted appellant’s history of a fractured left
patella on November 20, 2002 and her subsequent fall on January 11, 2010 resulting in a fractured
left distal fibula. He also indicated that she had fractured her tibia on January 11, 2014, which had
been treated with surgery on January 15, 2014. Dr. Didizian diagnosed status post a left patellar
fracture treated with “internal fixation and removal of the wires with a second procedure and
degenerative joint disease of the patellofemoral joint and malalignment.” He found that
appellant’s patellar fracture was a direct result of her work injury and that she would continue to
have problems with her patellofemoral joint. Dr. Didizian opined that she had no evidence of
CRPS based on the results of a bone scan and her failure to respond to sympathetic blocks. He
found that appellant had reached maximum medical improvement “as far as the secondary injuries
are concerned” but required further medical treatment for the original injury. Dr. Didizian
indicated that she could perform limited-duty work.
On June 5, 4014 Dr. Ivill advised that appellant had pain in her left lower extremity
resulting from CRPS/RSD that was spreading into the right lower extremity after a November 20,
4

2002 employment injury and resulting January 11, 2010 fall. He indicated that the November 20,
2002 and January 11, 2010 falls had caused “left lower extremity weakness and instability and
ultimately [CRPS]/RSD of the left lower extremity status post fall of November 23, 2013 and
January 10, 2014 with left tibial fracture with osteoporosis.” Dr. Ivill attributed appellant’s
CRPS/RSD to the accepted employment injury.
In a supplemental report dated June 16, 2014, Dr. Didizian opined that appellant had
sustained a consequential injury on January 11, 2010 causally related to her November 20, 2002
work injury.
Based on Dr. Didizian’s opinion, OWCP expanded acceptance of the claim to include a
closed fracture of the left fibula as a consequential injury.
A July 23, 2014 magnetic resonance imaging (MRI) scan of the thoracic spine revealed
multilevel degenerative disc disease throughout the thoracic spine most significant at the T8-9
level with disc protrusions at T7-8, T8-9, and T11-12. An MRI scan of even date demonstrated
mild degenerative disc disease at T11-12, a right small disc protrusion, and degenerative disc
disease and bulges at L2-3, L3-4, L4-5, and L5-S1.
Appellant filed claims for wage-loss compensation (Form CA-7) from February 26 through
December 3, 2010 and from April 2, 2011 through December 12, 2014.
In a development letter dated August 28, 2014, OWCP requested that appellant provide
medical evidence supporting that she was disabled from work due to her accepted consequential
injury during the claimed periods.
Thereafter, OWCP received a February 10, 2014 certification of reassignment and
accommodation efforts form from the employing establishment. It indicated that it had been
unable to either accommodate appellant or provide reassignment due to the severity of her medical
condition and the physical requirements of her position.
In a report dated August 28, 2014, Dr. Ivill reviewed the results of appellant’s thoracic
spine MRI scan and found marked right anterior displacement of the thoracic cord at T6-7. He
diagnosed a transdural cord herniation. Dr. Ivill again attributed appellant’s CRPS/RDS to the
November 20, 2002 employment injury and resulting fall on January 11, 2010.
On September 12, 2014 Dr. Ivill opined that appellant’s November 20, 2002 and
January 11, 2010 injuries had resulted in CRPS, or RSD, and weakness and instability of the left
lower extremity. He noted that she was “status post fall of November 23, 2013 and January 10,
2014 with left tibial fracture with osteoporosis, rule out thoracic myelopathy.”
An October 29, 2014 notification of personnel action PS Form 50, indicated that appellant
was totally disabled from work and that the Office of Personnel Management (OPM) had approved
her request for disability retirement. Her last day in pay status was July 26, 2014.
On November 20, 2014 appellant elected to receive FECA benefits, effective
January 11, 2010, in lieu of retirement benefits.

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By decisions dated December 18 and 19, 2014, OWCP denied appellant’s claims for wageloss compensation from February 26 through December 3, 2010 and April 2, 2011 through
December 12, 2014.
On December 29, 2014 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
Appellant underwent a T5-8 posterior arthrodesis with autograft and a T6-7 complete
laminectomy on March 30, 2015 to repair a thoracic T6-7 transdural spinal cord herniation.
By decision dated May 11, 2015, OWCP’s hearing representative found that the case
required further development by OWCP. She noted that appellant had stopped work in
January 2010 due to a consequential injury and that OWCP had accepted this injury based on the
opinion of Dr. Didizian. The hearing representative indicated that Dr. Didizian had opined that
appellant could not perform her regular duties due to her work injuries and that the record did not
indicate light duty was available. She remanded the case for OWCP to administratively combine
appellant’s files, update the statement of accepted facts, and request a supplemental report from
Dr. Didizian regarding the extent of appellant’s disability since January 11, 2010. The hearing
representative also noted that the employing establishment should confirm whether she had been
offered light duty for any period after January 11, 2010.
In a May 27, 2015 e-mail, OWCP requested that the employing establishment address
whether appellant was offered light duty for any period after January 11, 2010. In a May 28, 2015
response, the employing establishment advised that it had not had the opportunity to offer her a
modified position as the medical evidence supported total disability.
On September 2, 2015 OWCP referred appellant Dr. Didizian for a second opinion
evaluation to determine any periods of employment-related disability on or after January 2010.
In a September 10, 2015 report, Dr. Didizian noted that appellant had undergone thoracic
surgery on March 30, 2015 for myelomalacia to prevent her neurological condition from
worsening. He discussed her continued complaints of buckling, aching, and pain in her left knee.
Dr. Didizian noted that appellant had fractured her tibia and fibula on January 11, 2010. He found
hyperreflexia of the knee and decreased sensation in the left leg in all dermatomes. Dr. Didizian
opined that appellant’s left leg weakness was due to a thoracic disc injury rather than her left knee
condition. He disagreed with Dr. Ivill’s diagnosis of RSD. Dr. Didizian related that appellant’s
left knee condition had plateaued and that the “consequential tibia and fibula fractures are healed.”
Regarding disability beginning January 2010, he responded that she was partially disabled due to
patellafemoral arthritis of the left knee and totally disabled due to surgery on her thoracic spine.
On September 10, 2015 Dr. Ivill again advised that appellant’s fall on January 11, 2010
had resulted in CRPS/RSD and indicated that she had experienced falls on November 23, 2013
and January 10, 2014. He noted her history of a March 30, 2015 thoracic fusion.
By decision dated October 16, 2015, OWCP found that appellant had not established that
she was disabled from work for the periods February 26 through December 3, 2010 and April 2,
2011 through October 2, 2015 causally related to her accepted employment injury.

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On October 28, 2015 counsel requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review.
A hearing was held on February 8, 2016. Counsel asserted that the employing
establishment did not provide appellant with limited-duty work and Dr. Didizian failed to
specifically address any periods of partial disability due to her accepted employment injuries. He
requested that OWCP expand the acceptance of the claim to include patellofemoral arthritis based
on Dr. Didizian’s opinion.
By decision dated March 17, 2016, OWCP’s hearing representative found that appellant
was entitled to compensation for total disability from January 11 to February 1, 2010, but noted
that she had not filed a claim for this period.6 He found that she was not entitled to wage-loss
compensation benefits from February 2, 2010 onward as she was disabled due to nonoccupational
conditions. The hearing representative determined that appellant could have worked limited duty
after February 2, 2010 due to her accepted fractures, and that as she was totally disabled due to
other conditions the employing establishment was not required to offer her modified duty.
Appellant appealed to the Board. By decision dated February 1, 2017, the Board set aside
the March 17, 2016 decision.7 The Board found that Dr. Didizian had failed to fully address the
period of appellant’s disability due to her accepted employment injuries. The Board remanded the
case for OWCP to obtain a supplemental report from Dr. Didizian addressing the period of partial
and total disability as a result of her consequential left ankle fracture and to obtain a response from
the employing establishment regarding the availability of modified employment.
On March 31, 2017 OWCP again referred appellant to Dr. Didizian for a second opinion
examination.
In a report dated June 15, 2017, Dr. Didizian noted that appellant had fractured her patella
on November 20, 2002. On May 19, 2013 she resumed modified employment until she fell on
January 11, 2010 fracturing her left fibula. On examination, Dr. Didizian found no effusion of
synovitis of the knee, no patellar crepitation, good muscle tone and strength of the quadriceps, and
no atrophic changes. He opined that appellant was totally disabled from January 11 to February 1,
2010 due to her consequential left fibula injury. Dr. Didizian related that after that period there
was “no reason why she could not have gone back to her modified duty, which she did for [seven]
years prior to the fibula fracture.” He noted that appellant had developed myelomalacia of the left
lower extremity due to a T6-7 disc condition for which she underwent surgery on March 30, 2015.
Dr. Didizian found that her thoracic spine injury was unrelated to her employment and that
Dr. Ivill’s treatment of her low back condition was “not an accepted injury.”8 In a work capacity

6

The Board notes that on November 20, 2014 appellant elected FECA benefits in lieu of disability retirement
benefits effective January 11, 2010.
7

Supra note 4.

8
Dr. Ivill provided progress reports dated August 30, November 8, and December 6, 2017 and January 8, 2018
similar to his prior reports of record.

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evaluation of even date, he indicated that appellant could perform modified work, walking and
standing for two hours per day and lifting no more than 20 pounds.
By decision dated January 29, 2018, OWCP found that appellant had not established that
she was disabled on and after February 2, 2010 causally related to her accepted employment injury.
On February 5, 2018 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
On March 15, 2018 Dr. Ivill evaluated appellant for pain and weakness in the lower
extremity, left low back pain, and right knee pain after a left tibial fracture in October 2014, an
initial employment injury on November 20, 2002, and an injury on January 11, 2010 due to the
November 20, 2002 injury. He diagnosed CRPS/RSD of the left lower extremity spreading to the
right lower extremity as a result of her employment injuries. Dr. Ivill noted that appellant had
sustained fractures due to falls in July 2015 and July 2017.9
A hearing was held on May 23, 2018. Counsel contended that OWCP had failed to
establish whether modified employment was available during the period in which compensation
was claimed, noting that Dr. Didizian had determined that appellant was partially disabled due to
her patellar fracture.
By decision dated July 19, 2018, OWCP’s hearing representative vacated the January 29,
2018 decision. She found that Dr. Didizian’s opinion supported that appellant could resume
modified work on February 2, 2010 and that she did not suffer from RSD or CRPS of the left lower
extremity. The hearing representative noted that Dr. Didizian advised that she may have sustained
left patella arthritis due to her authorized surgeries but found that he had considered this condition
in his disability determination. She determined, however, that OWCP had not adequately
developed the issue of whether the employing establishment had offered appellant a limited-duty
position after January 11, 2010. The hearing representative remanded the case for OWCP to obtain
clarification from the employing establishment regarding whether it could have provided her with
modified employment within her restrictions had she not been totally disabled due to a
nonemployment-related condition.
On October 31, 2018 OWCP requested that the employing establishment advise whether
appellant would have been able to resume the position held beginning May 19, 2003, effective
February 1, 2010.10
In an e-mail response dated November 7, 2018, the employing establishment indicated that
it did not have appellant’s file but that since “her work[-]related restrictions would have allowed
her to continue her modified assignment on February 2, 2010, the same position would have been
available to the claimant. [The employing establishment] does not replace employees that quickly,
especially when it is a ‘temporary out of work’ situation.”

9

Dr. Ivill submitted a similar report on May 24, 2018.

10

Dr. Ivill submitted progress reports dated August 9, October 11, and December 13, 2018 and February 7, 2019.

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By decision dated November 26, 2018, OWCP denied appellant’s claim for wage-loss
compensation on or after February 2, 2010 causally related to her accepted November 20, 2002
employment injury.
On November 29, 2018 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
A hearing was held on April 11, 2019. Counsel argued that as appellant was partially
disabled due to her accepted employment injury, it had to consider her nonemployment-related
conditions. He asserted that the acceptance of the claim should be expanded to include left knee
patella arthritis, noting that Dr. Didizian had found that appellant was partially disabled from that
condition.
By decision dated May 21, 2019, OWCP’s hearing representative affirmed the
November 26, 2018 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA11 has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.12 For each period of disability
claimed, the employee has the burden of proof to establish that he or she was disabled for work as
a result of the accepted employment injury.13 Whether a particular injury causes an employee to
become disabled for work, and the duration of that disability, are medical issues that must be
proved by a preponderance of probative and reliable medical opinion evidence.14
Under FECA the term disability means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.15 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.16 An employee who has a physical impairment causally related to his or her federal
employment, but who nonetheless has the capacity to earn the wages that he or she was receiving
at the time of injury, has no disability and is not entitled to compensation for loss of wage-earning
capacity.17

11

Supra note 3.

12

See C.E., Docket No. 19-1617 (issued June 3, 2020); T.A., Docket No. 18-0431 (issued November 7, 2018).

13

M.C., Docket No. 18-0919 (issued October 18, 2018).

14
See D.W., Docket No. 18-0644 (issued November 15, 2018); K.C., Docket No. 17-1612 (issued
October 16, 2018).
15

20 C.F.R. § 10.5(f); B.O., Docket No. 19-0392 (issued July 12, 2019); S.T., Docket No. 18-0412 (issued
October 22, 2018).
16

See L.W., Docket No. 17-1685 (issued October 9, 2018).

17

See D.P., Docket No. 18-1439 (issued April 30, 2020); D.G., Docket No. 18-0597 (issued October 3, 2018).

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In discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, the question is whether compensability should be extended to a
subsequent injury or aggravation related in some way to the primary injury. The rules that come
into play are essentially based upon the concepts of direct and natural results and of the claimant’s
own conduct as an independent intervening cause. The basic rule is that a subsequent injury,
whether an aggravation of the original injury or a new and distinct injury, is compensable if it is
the direct and natural result of a compensable primary injury.18
Section 8123(a) of FECA which provides that, if there is disagreement between the
physician making the examination for the United States and the physician of the employee, OWCP
shall appoint a third physician (known as a referee physician or impartial medical specialist) who
shall make an examination.19 This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.20
ANALYSIS
The Board finds that this case is not in posture for decision as a conflict in the medical
opinion evidence remains between appellant’s attending physician, Dr. Ivill, and OWCP’s referral
physician, Dr. Didizian, regarding whether OWCP should expand acceptance of her claim to
include CRPS/RSD of the left lower extremity due to her November 20, 2002 employment injury
On December 4, 2013 Dr. Ivill diagnosed CRPS/RSD due to a November 20, 2002
employment injury and January 11, 2010 consequential fall, noting that these injuries resulted in
weakness and instability of the left lower extremity. He found that appellant was permanently
disabled from employment. On June 5, 2014 Dr. Ivill opined that she had CRPS/RSD in the left
lower extremity spreading to the right lower extremity as a result of her accepted November 20,
2002 employment injury and resulting fall on January 11, 2010. In a September 12, 2014 report,
he found that her November 20, 2002 and January 11, 2010 injuries had caused left lower
extremity weakness and instability, and CRPS/RSD. On March 15, 2018 Dr. Ivill discussed
appellant’s history of a November 20, 2002 employment injury and consequential injury on
January 11, 2010. He diagnosed CRPS/RSD of the left lower extremity moving to the right lower
extremity due to the accepted employment injuries.
OWCP referred appellant to Dr. Didizian for a second opinion examination. In an April 17,
2014 report, Dr. Didizian asserted that she had continued problems with her patellofemoral joint
following her employment-related left patellar fracture. He found no evidence of CRPS on a bone
scan and further indicated that she had not responded to sympathetic blocks. On September 10,
2015 Dr. Didizian attributed the weakness in appellant’s left leg to a thoracic disc injury rather
than her accepted left knee condition. He opined that she did not have RSD. Dr. Didizian found
that appellant was partially disabled due to left knee patellafemoral arthritis and totally disabled as
K.S., Docket No. 17-1583 (issued May 10, 2018); Arthur Larson & Lex K. Larson, The Law of Workers’
Compensation § 3.05 (2014).
18

19

5 U.S.C. § 8123(a); L.S., Docket No. 19-1730 (issued August 26, 2020); M.S., 58 ECAB 328 (2007).

20

20 C.F.R. § 10.321; P.B., Docket No. 20-0984 (issued November 25, 2020); R.C., 58 ECAB 238 (2006).

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a result of thoracic spine surgery. On June 15, 2017 he asserted that the thoracic spine injury and
her low back condition were unrelated to employment.
As noted above, if there is a disagreement between an employee’s physician and an OWCP
referral physician, OWCP will appoint a referee physician or impartial medical specialist who shall
make an examination.21 The Board finds that a conflict remains between Dr. Ivill and Dr. Didizian
regarding whether the acceptance of appellant’s claim should be expanded to include CRPS/RSD
causally related to the accepted November 20, 2002 employment injury and/or January 11, 2010
consequential left distal fibula fracture.22
As there is an unresolved conflict in medical opinion regarding whether appellant’s claim
should be expanded to include CRPS/RSD due to her accepted employment injury, the case must
be remanded for OWCP to refer her to an impartial medical specialist for resolution of the conflict
in medical opinion evidence in accordance with 5 U.S.C. § 8123(a).23 OWCP should also request
that the impartial medical specialist address whether she sustained patellofemoral arthritis as a
result of her accepted employment injury. After such further development as OWCP deems
necessary, it shall issue a de novo decision regarding claim expansion and whether appellant has
met her burden of proof to establish disability from employment commencing on or after
February 2, 2010 causally related to her accepted employment injury.
CONCLUSION
The Board finds that the case is not in posture for decision.

21

See S.S., Docket No. 19-1658 (issued November 12, 2020); C.S., Docket No. 19-0731 (issued August 22, 2019).

22

S.M., Docket No. 19-0397 (issued August 7, 2019).

23

S.M., id.

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ORDER
IT IS HEREBY ORDERED THAT the May 21, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 21, 2021
Washington, DC

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

Patricia H. Fitzgerald, 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
__________________________________________
A.T., Appellant
and
DEPARTMENT OF DEFENSE,
DEFENSE COMMISSARY AGENCY,
MACDILL AIR FORCE BASE, FL, Employer
__________________________________________

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

Docket No. 15-44
Issued: February 27, 2015

Case Submitted on the Record

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

JURISDICTION
On October 8, 2014 appellant filed a timely appeal from the June 18, 2014 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant sustained an injury causally related to factors of her
federal employment as a store worker.

1
2

5 U.S.C. § 8101 et seq.

On appeal, appellant submitted documents that were before OWCP at the time of its decision and other that
were not. 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).

FACTUAL HISTORY
On December 18, 2013 appellant, a 49-year-old store worker, filed an occupational
disease claim alleging that she sustained an injury to her shoulders, neck, and back as a result of
lifting, pushing, bending, and moving side to side at work.
Dr. Michael D. Brewer, appellant’s attending physician, Board-certified in family
medicine, offered several notes explaining that he was treating appellant for various pains: lower
back pain due to arthritis, neck, and shoulder, and back pain. He advised that she was
undergoing physical therapy and would require some physical restrictions in order for her
treatment to progress properly.
In a decision dated June 18, 2014, OWCP denied appellant’s injury claim. It accepted
that the work events occurred as alleged, but it found that the medical evidence was not
sufficient to establish that the work events caused a diagnosed medical condition.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.3 An employee seeking benefits under FECA
has the burden of proof to establish the essential elements of his or her claim. When an
employee claims that he or she sustained an injury in the performance of duty, he or she must
submit sufficient evidence to establish that he or she experienced a specific event, incident or
exposure occurring at the time, place, and in the manner alleged. He or she must also establish
that such event, incident or exposure caused an injury.4
Causal relationship is a medical issue,5 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the claimant,6 must be
one of reasonable medical certainty,7 and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the established incident or factor
of employment.8
ANALYSIS
Appellant attributes her shoulder, neck, and back conditions to the physical demands of
her job as a store worker. There is no dispute that she lifted, pushed, bent, and moved side to
3

5 U.S.C. § 8102(a).

4

John J. Carlone, 41 ECAB 354 (1989).

5

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

6

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

7

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

8

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

2

side in the course of her employment. OWCP accepted that such events occurred as alleged.
The question is whether these physical activities caused any injury.
Dr. Brewer, the attending family physician, never addressed this issue. In the absence of
a well-reasoned medical opinion addressing the critical issue of causal relationship, the Board
finds that appellant has not met her burden to establish that her duties as a store worker caused an
injury. The Board will therefore affirm OWCP’s June 18, 2014 decision to deny her
occupational disease claim.
The documents appellant resubmitted on appeal do not show a physician’s well-reasoned
opinion on causal relationship. This is the reason OWCP denied her claim. As noted earlier, the
Board is precluded from reviewing the new evidence for the first time on appeal.9
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 her burden to establish that her duties as a
store worker caused an injury.

9

See supra note 2.

3

ORDER
IT IS HEREBY ORDERED THAT the June 18, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 27, 2015
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Savannah, GA, Employer
__________________________________________

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Appearances:
C.B. Weiser, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-1300
Issued: February 1, 2011

Case Submitted on the Record

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

JURISDICTION
On April 6, 2010 appellant filed a timely appeal of an October 21, 2009 decision of the
Office of Workers’ Compensation Programs, denying merit review of his claim. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board does not have jurisdiction over the last merit decision
dated February 4, 2009.1
ISSUE
The issue is whether the Office properly determined that appellant’s application for
reconsideration was insufficient to warrant merit review of the claim.

1

For Office decisions issued prior to November 19, 2008, a claimant had up to one year to file an appeal. An
appeal of its decisions issued on or after November 19, 2008 must be filed within 180 days of the decision.
20 C.F.R. § 501.3(e).

FACTUAL HISTORY
The case was before the Board on a prior appeal. By decision dated May 8, 2007, the
Board affirmed a November 20, 2006 merit decision finding the Office properly terminated
appellant’s compensation as of June 12, 2004 for refusal of suitable work pursuant to 5 U.S.C.
§ 8106(c)(2).2 The history of the case as provided in the Board’s prior decision is incorporated
herein by reference.
By letter dated December 21, 2007, appellant, through his representative, requested
reconsideration of his claim. He argued that he did not refuse the job offer, as he went to the
employing establishment on two occasions but was told by his supervisors that no job was
available.
In a decision dated March 12, 2008, the Office reviewed the case on its merits and denied
modification.
Appellant requested reconsideration and submitted an August 30, 2008 statement from a
coworker, Tony Pass, who indicated that on May 6 and 27, 2004 he witnessed appellant come to
the employing establishment to accept a job offer. He was told they had no job for him because
of his permanent disability.
By decision dated February 4, 2009, the Office reviewed the case on its merits and denied
modification. With respect to the August 30, 2008 statement, it held “Based on Mr. Pass’
statement, he did not actually observe the conversation between [appellant] and the supervisors.
Therefore, his statement does not support that the position as a modified [m]ail [p]rocessing
[c]lerk was not available to [appellant].”
In a letter dated September 27, 2009, appellant requested reconsideration. In a June 15,
2009 statement, Mr. Pass noted that on May 6 and 27, 2004, he heard Supervisors Mary Mosely
and Walter Miles tell appellant that no limited-duty job was available because of his permanent
disability and appellant was told to go home.
By decision dated October 21, 2009, the Office denied further merit review of the claim.
It did not specifically acknowledge that a June 15, 2009 statement from Mr. Pass had been
submitted. According to the Office, the September 27, 2009 reconsideration request argued that
statements from Mr. Pass were sufficient to modify the decision. It stated, “This statement was
first received in the office [June 30, 2006], and your argument concerning this statement is
repetitious to evidence and argument previously considered.”
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,3 the Office’s regulations provide that a claimant may
2

Docket No. 07-544 (issued May 8, 2007).

3

5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application”).

2

obtain review of the merits of the claim by submitting a written application for reconsideration
that sets forth arguments and contains evidence that either: “(i) shows that [the Office]
erroneously applied or interpreted a specific point of law; (ii) advances a relevant legal argument
not previously considered by [the Office]; or (iii) constitutes relevant and pertinent evidence not
previously considered by [the Office].”4 Section 10.608(b) states that any application for review
that does not meet at least one of the requirements listed in section 10.606(b)(2) will be denied
by the Office without review of the merits of the claim.5
ANALYSIS
With his September 27, 2009 application for reconsideration, appellant submitted a
June 15, 2009 statement from a coworker, Mr. Pass. In its October 21, 2009 decision, the Office
listed specific evidence received after the last merit decision, but did not list the June 15, 2009
statement. It refers to a statement being received on June 30, 2006, without further explanation.
The case record does not contain evidence received by the Office on June 30, 2006.
To the extent the Office is referring to the August 30, 2008 statement from Mr. Pass,
which was submitted prior to the last merit decision, the Board notes that the Office had found
this statement of limited value because the witness “did not observe the conversation” between
appellant and the supervisors. The June 15, 2009 statement, however, clearly stated that the
witness did hear the conversation alleged on May 6 and 27, 2004, regarding the availability of
the offered position. It is, therefore, evidence not previously considered. The statement is
relevant as it concerns the availability of the modified clerk job that the Office found was a
suitable position.
Pursuant to 20 C.F.R. § 10.606(b)(2), the submission of relevant and pertinent evidence
not previously considered by the Office is sufficient to require the Office to review the merits of
the claim. The case will accordingly be remanded for an appropriate merit decision.
CONCLUSION
The Board finds that the Office improperly denied appellant’s application for
reconsideration without merit review of the claim. The case will be remanded for a merit
decision.

4

20 C.F.R. § 10.606(b)(2).

5

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 21, 2009 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: February 1, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
MEDICAL COMMAND, MADIGAN ARMY
MEDICAL CENTER, JOINT BASE
LEWIS-McCHORD, WA, Employer
__________________________________________

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Appearances:
Howard L Graham, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0555
Issued: March 4, 2022

Case Submitted on the Record

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

JURISDICTION
On February 24, 2021 appellant, through counsel, filed a timely appeal from a
November 16, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).

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.

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. 3
ISSUE
The issue is whether appellant has established that the acceptance of her claim should be
expanded to include additional or consequential conditions of major depression and anxiety, or a
cognitive disorder as a result of her accepted November 21, 2013 employment injury.
FACTUAL HISTORY
On December 13, 2013 appellant, then a 62-year-old social services assistant, filed a
traumatic injury claim (Form CA-1) alleging that on November 21, 2013 she sustained a right
shoulder strain with rotator cuff tearing when moving a large cabinet to retrieve documents which
had fallen from the printer while in the performance of duty. She did not initially stop work.
OWCP accepted the claim for right shoulder and upper arm acromioclavicular sprain, right
shoulder and arm rotator cuff sprain, right rotator cuff tear, and subsequently expanded acceptance
of the claim to include consequential conditions of right shoulder stress fracture and right shoulder
rotator cuff tear or rupture.4
OWCP paid appellant wage-loss compensation on the supplemental rolls as of
February 5, 2014. On June 28, 2016 it granted her a schedule award for 12 percent permanent
impairment of the right upper extremity for 37.44 weeks from April 12 through
December 30, 2016. OWCP paid appellant wage-loss compensation on the periodic rolls as of
October 15, 2017.
OWCP authorized a right shoulder arthroscopic rotator cuff repair, and biceps tendon repair
surgery, which occurred on February 7, 2014, a right shoulder rotator cuff repair and removal of
foreign body from humeral head, which occurred on January 23, 2015, and a right total shoulder
arthroplasty, which occurred on April 17, 2017. On October 4, 2018 appellant underwent an
OWCP authorized surgery for removal of right support implant.
In a letter dated November 20, 2018 appellant, through counsel, requested that the
acceptance of appellant claim be expanded to include additional conditions of major depression
and anxiety. In support of her request, appellant submitted a neuropsychological evaluation dated
March 9, 2016 from Philip Tate, Ph.D. and licensed clinical psychologist, which noted her mild
neurocognitive disorder and moderate-to-severe major depression. Dr. Tate related that she had
moderate-to-severe symptoms of depression that worsened during the holidays due to her
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the November 16, 2020 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.
4

Appellant retired from the employing establishment effective April 30, 2015.

2

daughter’s death four years prior. He also related that it was possible that depression and chronic
pain from appellant’s industrial injury adversely affected her auditory working memory somewhat,
but would not account for her deficits in visual and spatial memory. OWCP also received a work
capacity evaluation psychiatric/psychological conditions form (Form OWCP-5a) dated
November 15, 2018 from Vanessa J. Honn, Ph.D. and clinical psychologist, who noted severe
depression and anxiety, with chronic stress related to physical disability as a significant factor
contributing to depression and anxiety. In a work capacity evaluation musculoskeletal conditions
form (Form OWCP-5c) dated November 14, 2018 Dr. Matthew Jenkins, a Board-certified
orthopedic surgeon, related appellant’s permanent restrictions due to her accepted right shoulder
condition.
On January 3, 2019 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and a series of questions, to Dr. Michael Friedman, an osteopath and Board-certified
psychiatrist, for a second opinion examination. It requested that he address whether she suffered
from an emotional condition that was a direct and natural result of her accepted work conditions.
OWCP also requested that Dr. Friedman evaluate whether any diagnosed cognitive disorder was
an aggravation of a preexisting condition, and if so whether the aggravation was temporarily or
permanently aggravated by appellant’s employment-related conditions. In a report dated
February 12, 2019, Dr. Friedman reviewed her history of injury and medical reports of record. He
diagnosed mild neurocognitive disorder due to multiple factors, generalized anxiety disorder,
recurrent-moderate major depressive disorder, and predominant somatic symptoms disorder, pain
persistent. Dr. Friedman opined that appellant did not suffer from an employment-related
emotional condition. He also opined that her mild neurocognitive disorder was unrelated to her
employment injury and had not been aggravated by her accepted employment injury.
By decision dated March 8, 2019, denied appellant’s request to expand the acceptance of
her claim to include major depression and anxiety, or a cognitive disorder as causally related to
her November 21, 2013 work injury.
In a report dated March 20, 2019, John A. Ernst, Ph.D. and clinical neuropsychologist,
detailed treatment provided and attributed appellant’s neurocognitive functioning to medical and
psychosocial factors.
On April 6, 2019 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held on August 16, 2019.
In a report dated September 27, 2019, Dr. Honn agreed with Dr. Friedman’s diagnoses of
mild neurocognitive disorder due to multiple factors, generalized anxiety diso rder, somatic
symptoms disorder, recurrent major depressive disorder-of-moderate severity, and persistent
predominant pain. She opined that appellant “suffers from the consequences shoulder injury in
2013 and subsequent surgical treatment of this injury as well as limited use of [appellant’s] right
arm as a result of the injury have contributed substantially to the diagnosed conditions mentioned
above.” While appellant’s depression and anxiety were preexisting conditions, Dr. Honn
explained that the severity of these conditions had dramatically increased due to appellant’s pain,
loss of self-esteem after appellant stopped working, and financial worries. She noted that at the
time of appellant’s injury her depression was not disabling. Dr. Honn disagreed with
Dr. Friedman’s opinion that appellant’s diagnosed cognitive disorder had not been aggravated by

3

appellant’s employment injury. In support of her opinion, she explained that appellant’s pain and
distress due to the shoulder injury appeared very distracting for appellant, decreased her capacity
for functional cognitive capacity, and reduced her capacity to be gainfully employed.
By decision dated October 31, 2019, OWCP’s hearing representative found an unresolved
conflict in the medical opinion evidence between Dr. Honn and Dr. Friedman on the issue of
whether appellant’s preexisting depression and anxiety, or cognitive impairment had been
aggravated by the November 21, 2013 work injury. She vacated the March 8, 2019 decision and
remanded the case to OWCP for referral to an impartial medical examiner (IME).
On November 1, 2019 OWCP referred appellant along with the medical record, a SOAF,
and series of questions to Dr. Douglas Robinson, a Board-certified psychiatrist, to resolve the
conflict in the medical opinion evidence between Drs. Honn and Friedman . Dr. Robinson was
asked by OWCP to address whether appellant had sustained any emotional condition that was a
natural and direct result of her accepted employment injury. OWCP also asked him to address
whether her cognitive disorder was an aggravation of a preexisting condition and if so whether this
condition was temporary or permanent.
In a report dated October 13, 2020, Dr. Robinson noted appellant’s complaints of
depression and worsening cognitive loss. Appellant related that she first became aware of her
emotional problems before she retired. According to her she had cognitive problems at the time
of her injury, which she described as lapses of memory such as being unable to recall personal data
or her PIN number. Dr. Robinson diagnosed bereavement, possible history of major depressive
disorder currently resolved, and history of panic disorder, currently in remission. He noted a
history of depression beginning in 1981 when appellant’s brother died. At the date of the
examination, Dr. Robinson found no symptoms of depression, but noted that it was clear that her
bereavement over her daughter’s death, who died in 2011 from breast cancer, was substantial. He
reported appellant’s cognitive functioning appeared normal during his examination and there was
no evidence of any symptoms of depression. Based on his review of the records, Dr. Robinson
noted that her cognitive problems began in 2014 and were aggravated by her anxiety and panic
attacks. He opined that appellant’s panic attacks were unrelated to any pain from her accepted
work injuries because they tend to occur intermittently over the course of an individual’s life.
Thus, Dr. Robinson concluded that her panic attacks were unrelated to her work injury with an
unknown cause, which he opined that was most likely biological.
By decision dated November 16, 2020, OWCP denied appellant’s request to expand the
acceptance of her claim to include consequential conditions of major depression and anxiety, or a
cognitive disorder.

4

LEGAL PRECEDENT
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.5
To establish causal relationship between a condition and the employment event or incident,
the employee must submit rationalized medical opinion evidence based on a complete factual and
medical background, supporting such a causal relationship.6 The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.7
In discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, the question is whether compensability should be extended to a
subsequent injury or aggravation related in some way to the primary injury. The basic rule is that
a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is
compensable if it is the direct and natural result of a compensable primary injury. 8
In a case where a preexisting condition involving the same part of the body is present and
the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation, the
physician must provide a rationalized medical opinion that differentiates between the effects of the
work-related injury or disease and the preexisting condition. 9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that the
acceptance of her claim should be expanded to include additional or consequential conditions of
major depression and anxiety, or a cognitive disorder as causally related to the accepted
November 2, 2013 employment injury.
OWCP found a conflict in the medical opinion evidence between appellant’s treating
physician, Dr. Honn, who opined that appellant’s preexisting emotional and cognitive disorders
had been aggravated by the November 21, 2013 employment injury, and its second opinion
5

See D.E., Docket No. 20-0936 (issued June 24, 2021); S.L., Docket No. 19-0603 (issued January 28, 2020); T.E.,
Docket No. 18-1595 (issued March 13, 2019); T.F., Docket No. 17-0645 (issued August 15, 2018); Jaja K. Asaramo,
55 ECAB 200 (2004).
6

See D.E., id.; S.L., id.; T.E., id.; S.A., Docket No. 18-0399 (issued October 16, 2018).

7

See D.E., id.; S.L., id.; M.M., Docket No. 19-0061 (issued November 21, 2019); P.M., Docket No. 18-0287 (issued
October 11, 2018).
8

B.P., Docket No. 19-1376 (issued January 4, 2021); K.S., Docket No. 17-1583 (issued May 10, 2018).

9

M.O., Docket No. 18-0229 (issued September 23, 2019); J.F., Docket No. 19-0456 (issued July 12, 2019); Federal
(FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

5

physician, Dr. Friedman, who opined that appellant’s preexisting major depression and anxiety,
and cognitive disorder were unrelated to her accepted November 21, 2013 employment injury. It
properly referred appellant to Dr. Robinson, serving as the IME, to resolve the conflict, pursuant
to 5 U.S.C. § 8123(a).
In his October 13, 2020 report, Dr. Robinson found that appellant’s major depression and
anxiety, and cognitive disorder were not causally related to the accepted November 21, 2013
employment injury. He noted that her major depressive disorder began at the time of her brother’s
death in 1981. Dr. Robinson reported no current symptoms of depression and normal cognitive
functioning. He reported appellant’s first mention of panic attacks was in 2014. Dr. Robinson
indicated that her cognitive problems began in 2014 and that they had been aggravated by her
anxiety and panic attacks. He opined that appellant’s anxiety and cognitive issues were unrelated
to any pain from her accepted work injuries. Dr. Robinson explained that panic attacks tend to
occur intermittently over the course of an individual’s life and, thus, they were unrelated to her
work injury. He opined that the panic attacks were due to an unknown cause which he opined was
most likely biological.
The Board finds that Dr. Robinson’s impartial medical examination report represents the
special weight of the medical opinion evidence as his opinion is based on a proper factual and
medical history, and his report contained a detailed summary of appellant’s complex medical and
psychiatric history. Dr. Robinson addressed the medical records and provided his examination
findings to reach a reasoned conclusion regarding her employment-related conditions. 10 The
Board, therefore, finds that his opinion is entitled to the special weight accorded to an IME with
regard to the issue of whether acceptance of appellant’s claim should be expanded to include
depression and anxiety, or a cognitive disorder due to her accepted employment injury. 11
Consequently, appellant has not met her burden of proof to expand the accepted conditions of her
claim.
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 her burden of proof to establish that the
acceptance of her claim should be expanded to include additional or consequential conditions of
major depression and anxiety, or a cognitive disorder as a result of her accepted November 21,
2013 employment injury.

10
F.A., Docket No. 20-1652 (issued May 21, 2021); K.V., Docket No. 18-0947 (issued March 4, 2019); Michael S.
Mina, 57 ECAB 379 (2006); Kathryn Haggerty, 45 ECAB 383 (1994) (the opportunity for and thoroughness of
examination, the accuracy and completeness of the physician’s knowledge of the facts and medical history, the care
of analysis manifested, and the medical rationale expressed in support of the physician’s opinion are facts, which
determine the weight to be given to each individual report).
11

F.A., id; W.C., Docket No. 19-1740 (issued June 4, 2020); M.M., Docket No. 16-1655 (issued April 4, 2018).

6

ORDER
IT IS HEREBY ORDERED THAT the November 16, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 4, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


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

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

Docket No. 12-616
Issued: October 15, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 19, 2012 appellant filed a timely appeal from Office of Workers’
Compensation Programs’ (OWCP) decisions dated July 27 and November 30, 2011 denying her
claim for a traumatic injury. Pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
head and right shoulder injury in the performance of duty on May 17, 2011, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the November 30, 2011 OWCP decision, appellant submitted
new evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued
its final decision. See 20 C.F.R. § 501.2(c)(1).

On appeal appellant contends that she has a right to seek care from any licensed
physician, including a chiropractor, and that she has cervical x-rays denoting a spinal
subluxation. She also requests that OWCP pay outstanding medical bills for medical services
rendered by a chiropractor and a massage therapist.
FACTUAL HISTORY
On May 17, 2011 appellant, then a 46-year-old animal health technician, filed a traumatic
injury claim (Form CA-1) alleging that she sustained a head and right shoulder injury as a result
of being hit by a sheep while drawing blood in the performance of duty on May 17, 2011.
By letter dated June 17, 2011, OWCP requested additional factual and medical evidence.
It afforded appellant 30 days to submit additional evidence and respond to its inquiries.
Subsequently, appellant submitted reports dated June 15 and 23 and July 1, 2011 by an
unidentified physician.
By decision dated July 27, 2011, OWCP accepted that the May 17, 2011 incident
occurred as alleged but denied appellant’s claim finding that she failed to submit evidence
containing a medical diagnosis in connection with the injury or events. Thus, it concluded that
she had not established fact of injury.
On August 31, 2011 appellant requested reconsideration and submitted reports by
Dr. Thomas M. Crevar, a chiropractor, dated June 15 to September 12, 2011. In a July 22, 2011
report, he indicated that appellant was having a lot of crepitus and pain in the right shoulder and
right jaw popping. On August 8 and September 12, 2011 Dr. Crevar opined that appellant’s right
shoulder had resolved. Appellant also submitted notes from Juanita Rodriguez, a licensed
massage therapist, dated June 20 to August 30, 2011.
By decision dated November 30, 2011, OWCP denied modification of its July 27, 2011
decision finding that the evidence submitted failed to establish fact of injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury4 was sustained in the performance of duty, as alleged,

3

5 U.S.C. §§ 8101-8193.

4

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

2

and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury. An employee may establish that the employment incident
occurred as alleged but fail to show that his or her condition relates to the employment incident.6
ANALYSIS
OWCP has accepted that the incident of May 17, 2011 occurred at the time, place and in
the manner alleged. The issue is whether appellant’s head and right shoulder conditions resulted
from the May 17, 2011 employment incident. The Board finds that appellant did not meet her
burden of proof to establish that her conditions are related to the May 17, 2011 employment
incident.
On appeal appellant contends that she has a right to seek care from any licensed
physician, including a chiropractor, and that she has cervical x-rays denoting a spinal
subluxation. First, the Board finds that the record does not contain a cervical x-ray revealing a
spinal subluxation. Second, in assessing the probative value of chiropractic evidence, the initial
question is whether the chiropractor is considered a physician under 5 U.S.C. § 8101(2). The
Board has held that a chiropractor is a physician as defined under FECA to the extent that the
reimbursable services are limited to treatment consisting of manual manipulation of the spine to
correct a subluxation as demonstrated by x-ray to exist.7 Although Dr. Crevar indicated that
appellant was having a lot of crepitus and pain in the right shoulder and right jaw popping, his
reports are of no probative value. There is no indication in his reports that he diagnosed a
subluxation as demonstrated by x-ray to exist. Dr. Crevar is not a physician as defined under
FECA and thus his reports do not constitute competent medical opinion evidence.
The notes dated June 20 to August 30, 2011 from Ms. Rodriguez, a licensed massage
therapist, are of no probative value as she is not a physician under FECA.8 As such, the Board
finds that appellant did not meet her burden of proof with these submissions.
5

T.H., 59 ECAB 388 (2008).
1143 (1989).

See Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB

6

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

7

20 C.F.R. § 10.311(a). Cf., D.S., Docket No. 09-860 (issued November 2, 2009).

8

5 U.S.C. § 8101(2). Section 8101(2) of FECA provides as follows: “(2) ‘physician’ includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope
of their practice as defined by State law.” See also Paul Foster, 56 ECAB 208, 212 n.12 (2004); Joseph N. Fassi,
42 ECAB 677 (1991); Barbara J. Williams, 40 ECAB 649 (1989).

3

As appellant has not submitted any medical evidence to support her claim that she
sustained an injury related to the May 17, 2011 employment incident, she has failed to meet her
burden of proof to establish the medical component of fact of injury.
OWCP, however, did not adjudicate the issue of appellant’s incurred medical expenses.
On appeal appellant requested that OWCP pay outstanding medical bills for medical services
rendered by a chiropractor and a massage therapist. Ordinarily, the employing establishment
will authorize treatment of a job-related injury by providing the employee a properly executed
Form CA-16 within four hours.9 In this case, the record does not contain a Form CA-16 or any
other authorization from OWCP for medical treatment. Additionally, there is no evidence of an
emergency or other unusual circumstance.10 Therefore, the Board finds the evidence does not
support reimbursement for the medical expenses.
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 established that she sustained an injury in the
performance of duty on May 17, 2011, as alleged. Therefore, appellant has failed to meet her
burden of proof to establish a claim for compensation.

9

Val D. Wynn, 40 ECAB 666 (1989); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Authorizing
Examination and Treatment, Chapter 3.300.3(a)(3) (August 2011).
10

Under section 8103 of FECA, OWCP has broad discretionary authority to approve unauthorized medical care
which it finds necessary and reasonable in cases of emergency or other unusual circumstances. 5 U.S.C. § 8103; 20
C.F.R. § 10.304. See L.B., Docket No. 10-469 (issued June 2, 2010); see also Federal (FECA) Procedure Manual, at
Chapter 3.300.3(a)(3).

4

ORDER
IT IS HEREBY ORDERED THAT the November 30 and July 27, 2011 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: October 15, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE ARMY,
)
Fort Campbell, KY, Employer
)
___________________________________________ )
S.R., Appellant

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

Docket No. 07-901
Issued: September 6, 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 14, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ January 25, 2007 decision, which affirmed a June 8, 2006 schedule
award.1 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
schedule award determination.
ISSUE
The issue is whether appellant has met her burden of proof in establishing entitlement to
a schedule award.
1

The record contains a separate decision, also dated June 8, 2006, which denied appellant’s request to change
physicians and a July 17, 2006 decision, which denied reconsideration related to appellant’s request to change
physicians. The record also contains a July 14, 2006 decision, which denied appellant’s request for a schedule
award. However, appellant’s representative has not indicated that they are appealing these decisions. See 20 C.F.R.
§ 501.3(c). The record also contains an October 6, 2006 decision, in which the Office reduced appellant’s
compensation as the position of a nurse supervisor was medically and vocationally suitable. However, appellant
requested reconsideration on December 5, 2006 and the Office has not rendered a final decision. Thus, there is no
appeal with respect to any interlocutory matter. See 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
On January 28, 2005 appellant, then a 46-year-old operating room nurse, filed an
occupational disease claim alleging pain to her right and left thumb and wrist while in the
performance of duty. She first realized the condition was related to her employment on
January 31, 2004. On March 22, 2005 the Office accepted appellant’s claim for bilateral
de Quervain’s syndrome. The Office authorized a left wrist de Quervain tenosynovitis release.
Appellant received appropriate compensation benefits.
In a note dated November 2, 2005, appellant’s treating physician, Dr. Keith Starkweather,
a Board-certified orthopedic surgeon, opined that she could return to modified duty and provided
restrictions.
Dr. Starkweather opined that appellant had reached maximum medical
improvement and had an impairment of zero percent. He noted that, while she had discomfort in
her wrists, she had good mobility in her wrists. In a November 10, 2005 work capacity
evaluation report, Dr. Starkweather opined that appellant could return to her previous position
working eight hours per day with permanent restrictions of 20 to 25 pounds of occasional force,
and 10 to 25 pounds of frequent force, and 10 pounds of consistent force. He also provided
restrictions which included limited typing of 4 hours per day, with 1-hour typing periods
followed by 15-minute breaks.
On February 3, 2006 appellant filed a claim for a schedule award.
In a report dated February 23, 2006, Dr. Starkweather opined that he could not offer
appellant an assessment based on her pain. He noted that the functional capacity evaluation of
May 16, 2005 demonstrated that she had a medium work physical capacity and could exert 20 to
50 pounds of force. Dr. Starkweather indicated that appellant could exert 10 to 25 pounds of
force frequently with no greater than up to 10 pounds of force constantly to move objects. He
noted that it was “difficult … to apply an impairment to an individual in which [he could not]
demonstrate objective physical findings.” Dr. Starkweather indicated that he had utilized the
American Medical Association, Guides to the Evaluation of Permanent Impairment, (5th ed.
2001) (A.M.A., Guides). He noted that the A.M.A., Guides did not provide for an impairment
when an individual had a negative magnetic resonance imaging (MRI) scan and full range of
motion of the wrist despite poor grip strength. Dr. Starkweather indicated that the A.M.A.,
Guides did not allow grip strength impairment in an individual with pain and subsequent grip
weakness.
In a June 6, 2006 report, the Office medical adviser opined that an impairment rating
could be made on the basis of decreased grip strength according to Chapter 16.8b of the A.M.A.,
Guides.2 He indicated that it was to be used with Tables 16-32 and 34.3 The Office medical
adviser indicated that appellant had 50 pounds or 21.2 kilograms in the right hand and 60 pounds

2

A.M.A., Guides 508.

3

Id. at 509.

2

or 27.3 kilograms on the left hand. He noted that applying the formula on page 5094 would
result in a strength loss index of zero and resulted in a zero percent impairment.5
By decision dated June 8, 2006, the Office denied appellant’s claim for a schedule
award.

6

By letter dated June 27, 2006, appellant requested reconsideration and enclosed
additional evidence. She alleged that her claim should be expanded to include cervical
radiculopathy. In a June 1, 2006 report, Dr. W. Copper Beazley, a Board-certified orthopedic
surgeon, diagnosed bilateral cervical radiculopathy with arthritis at the C5 level. He opined that
it would be very difficult for appellant to perform her duties as a nurse with her limitations. On
June 20, 2006 Dr. Beazley diagnosed a cervical herniation and opined that appellant needed a
20-pound lifting restriction at work and might eventually need surgery on her neck. A June 12,
2006 MRI scan of the cervical spine, read by Dr. Sean T. Willgruber, a Board-certified
orthopedic surgeon, diagnosed discogenic disease with discogenic changes, spinal canal
narrowing, a broad-based disc protrusion at C5/6 superimposed on discogenic disease which
caused moderate spinal cord and mild neuroforaminal narrowing (left greater than right) and
small left central herniation at C3/4 without cord or nerve root impingement.
By letter dated September 26, 2006, appellant requested reconsideration. She enclosed
an August 3, 2006 report from Dr. Starkweather, who noted that appellant had severe bilateral
de Quervain’s tenosynovitis. Dr. Starkweather determined that appellant had good range of
motion of the wrist, but significant pain and weakness of grip. He noted that she had a painful
condition and should undergo a functional capacity evaluation to see if there was any change in
her functional capacity “because she continues to hurt.” Dr. Starkweather opined that appellant
“probably has a 10 [percent] right and left upper extremity grip strength impairment, even
though this does go outside the guidebook because this is grip strength impairment that is
secondary to a painful condition.” He indicated that it really was “not a fair evaluation for her.”
Dr. Starkweather recommended a functional capacity evaluation, which appellant underwent on
August 21, 2006.7
In a September 6, 2006 report, Dr. Starkweather noted that he was going to diminish
appellant’s work capacity to a forward knuckle lift of 25 pounds occasional, 10 pounds frequent,
knuckle to shoulder of 20 pounds, occasional and 20 pounds frequent, carrying of 15 pounds
occasionally and 10 pounds frequently. He indicated that this was “basically to maintain
diminished carrying capacities which had decreased over the last few years….”
Dr. Starkweather indicated that appellant could not write for extended periods and that she had a
4

Id.

5

The Office medical adviser also determined that it was reasonable to request a new functional capacity
evaluation and opined that the treatment that appellant received from her treating physician was reasonable,
necessary and adequate.
6

In a separate decision also dated June 8, 2006, the Office denied appellant’s request for a change of physicians;
however, as noted above, appellant has not appealed this decision.
7

Appellant was found capable of medium work.

3

weight lifting limitation because of pain. He determined that was the reason for appellant’s
diminished capacity. Dr. Starkweather also indicated that typing caused her pain, that she had
trouble with standing and walking and that her back was problematic. He opined that she needs
to be in a more sedentary work position.
In a December 1, 2006 report, Dr. Paul R. McCombs, a Board-certified neurological
surgeon, indicated that appellant should not sit for more than one half hour at a time without a
break, avoid heavy lifting in excess of 12 pounds on any occasion or 10 pounds of a repetitive
basis. He also recommended that appellant should avoid standing for more than a half hour
without a break and opined that “[a]ny type of repetitive twisting, bending or stooping should be
guarded against.”
On January 23, 2007 the Office medical adviser noted appellant’s history of injury and
treatment. He indicated that it included a left wrist tendon release for de Quervain’s
tenosynovitis on August 19, 2005 and that she regained full wrist mobility with great pain relief
postoperatively. Appellant underwent a functional capacity evaluation on August 21, 2006
which “failed to demonstrate any findings for rating purposes including manual muscle testing
and range of motion testing on the wrists.” The Office medical adviser also noted that appellant
had a three-level anterior cervical discectomy fusion on October 25, 2006 for three herniated
discs discovered on January 2006. This was not considered part of the accepted condition. The
medical adviser opined that it may be the cause of some of the pain symptoms in the upper
extremities of which appellant was complaining. He concluded that appellant had no impairment
to either upper extremity.
In a January 25, 2007 decision, the Office denied modification of the June 8, 2006
decision.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act8 sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.9 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice for all claimants under the law, good administrative practice requires the use of
uniform standards applicable to all claimants.10 The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.11

8

5 U.S.C. §§ 8101-8193.

9

5 U.S.C. § 8107.

10

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

11

20 C.F.R. § 10.404.

4

ANALYSIS
The evidence of record is insufficient to establish that appellant is entitled to a schedule
award in accordance with the fifth edition of the A.M.A., Guides. The Board finds that appellant
did not submit any medical reports from a physician explaining how her accepted conditions for
bilateral de Quervain’s syndrome and the left wrist de Quervain tenosynovitis release caused a
permanent impairment to any scheduled member of her upper extremities.
In a treatment note dated November 2, 2005, Dr. Starkweather, a Board-certified
orthopedic surgeon, opined that appellant had reached maximum medical improvement and had
zero percent impairment. He explained that, despite the discomfort to her wrists, appellant had
good mobility in her wrists. On February 23, 2006 Dr. Starkweather opined that he could not
offer appellant an assessment based on her pain. He noted that appellant had a medium work
physical capacity and could exert 20 to 50 pounds of force and that she could exert 10 to 25
pounds of force frequently with no greater than up to 10 pounds of force constantly to move
objects. Dr. Starkweather noted that it was “difficult to apply impairment to an individual in
which [he could not] demonstrate objective physical findings. He indicated that he had utilized
the A.M.A., Guides but it did not provide for an impairment when an individual had a negative
MRI scan and full range of motion of the wrist despite poor grip strength. Dr. Starkweather
noted that the A.M.A., Guides did not allow a grip strength impairment in an individual with
pain and subsequent grip weakness. The Board notes that this report does not provide any
support that appellant is entitled to a schedule award as Dr. Starkweather opined that he could
not note her impairment. In an August 3, 2006 report, he noted that appellant had continued
problems and significant grip strength impairment. Dr. Starkweather opined that appellant
“probably has a 10 percent right and left upper extremity grip strength impairment,” but noted
that this rating went outside the guidebook because it was rating grip strength impairment
secondary to a painful condition. He indicated that it really was “not a fair evaluation for her.”
However, Dr. Starkweather’s opinion is speculative. The Board has held that speculative and
equivocal medical opinions regarding causal relationship have no probative value.12
Furthermore, Dr. Starkweather did not apply the protocols of the A.M.A., Guides. The Board
has held that not only should the physician’s opinion explain the physician’s reasoning it should
include a specific reference to the A.M.A., Guides.13 Thus, this report does not support
entitlement to a schedule award.
In a June 6, 2006 report, the Office medical adviser noted that a rating impairment could
be made on the basis of decreased grip strength according to Chapter 16.8b of the A.M.A.,
Guides.14 He noted that it was to be used with Tables 16-32 and 34.15 The Office medical
12

Ricky S. Storms, 52 ECAB 349 (2001) (while the opinion of a physician supporting causal relationship need not
be one of absolute medical certainty, the opinion must not be speculative or equivocal. The opinion should be
expressed in terms of a reasonable degree of medical certainty).
13

See Paul R. Evans, Jr., 44 ECAB 646 (1993) (an attending physician’s report is of little probative value where
the A.M.A., Guides were not properly followed). John Constantin, 39 ECAB 1090 (1988) (medical report not
explaining how the A.M.A., Guides are utilized is of little probative value).
14

A.M.A., Guides 508.

15

Id. at 509.

5

adviser indicated that appellant had 50 pounds or 21.2 kilograms in the right hand and 60 pounds
or 27.3 kilograms on the left hand and referred to page 509.16 He concluded that appellant would
be entitled to a strength loss index of zero and this resulted in a zero percent impairment.17 The
Board finds that this report does not indicate that appellant is entitled to any schedule award.
In a January 23, 2007 report, the Office medical adviser noted that appellant had regained
full wrist mobility following surgery. Appellant’s functional capacity evaluation of August 21,
2006 failed to demonstrate any findings for rating purposes including manual muscle testing and
range of motion testing on the wrists. The Office medical adviser noted that appellant had an
cervical surgery on October 25, 2006 for three herniated discs, that were not an accepted
condition. He opined that her cervical condition might be the cause of appellant’s pain
symptoms in the upper extremities. The medical adviser concluded that appellant had no
impairment to the upper extremities.
As noted above, the Office evaluates schedule award claims pursuant to the standards set
forth in the A.M.A., Guides. Appellant has the burden of proof to submit medical evidence
supporting that she has permanent impairment of a schedule member of the body.18 As such,
evidence has not been submitted and appellant has not established entitlement to a schedule
award.
CONCLUSION
The Board finds that the Office properly denied appellant’s claim for a schedule award.

16

Id.

17

The Office medical adviser also determined that it was reasonable to request a new functional capacity
evaluation and opined that the treatment that appellant received from her treating physician was reasonable,
necessary and adequate.
18

See Annette M. Dent, 44 ECAB 403 (1993).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 25, 2007 is affirmed.
Issued: September 6, 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