United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION FACILITY, Medford, OR,
Employer
__________________________________________

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

Docket No. 10-1006
Issued: January 14, 2011

Case Submitted on the Record

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

JURISDICTION
On March 1, 2010 appellant filed a timely appeal from a February 1, 2010 merit decision
of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
traumatic injury in the performance of duty on May 25, 2009.
FACTUAL HISTORY
On June 24, 2009 appellant, then a 54-year-old casual mail clerk, filed a traumatic injury
claim alleging that she sustained a pinched nerve and symptoms in her left hip and leg. She
stated that she was pushing, twisting and lifting at work on May 25, 2009 and woke up the
following morning with left leg cramps. Appellant stopped work on May 26, 2009 and received
medical treatment on May 29, 2009. She subsequently resigned.

In a June 23, 2009 letter, appellant’s supervisor recalled that, on or around May 26, 2009,
appellant notified him of back pain related to her sciatic nerve and requested light-duty work
until she moved to Bend, Oregon, where she was attempting to transfer to another employing
establishment processing facility. When told that no such work was available, appellant asked if
she should turn in her “papers.” The supervisor offered appellant a resignation form, which she
voluntarily completed and submitted to him. When he asked appellant whether she injured
herself on the job, she replied, “No, I hurt it at home, packing up my stuff, for the move to
Bend.” The supervisor denied telling appellant that she was required to resign or that “plenty of
work” was available.
In a July 8, 2009 letter controverting the claim, the employing establishment pointed out
that appellant’s resignation was effective June 1, 2009, that she did not file her claim until
June 24, 2009, and that no medical evidence was received on causal relationship.
In a July 9, 2009 letter, the Office informed appellant that the evidence submitted was
insufficient to establish her claim. It requested that she submit additional evidence to establish
her claim.
In a July 8, 2009 report, Dr. Kevin A. Rueter, a Board-certified family practitioner, noted
that appellant complained of posterior lateral pain in the left hip and leg for approximately two
months and was “injured working at the post office.” He added that appellant experienced pain
after a graveyard shift at the end of May 2009, which worsened when she awoke the next day
and hindered her ability to walk. Appellant mentioned that she had seen a medical provider
before and was told that she might have sciatica. On examination, she had tenderness to
palpation and decreased range of motion eliciting pain on palpation of the lateral joint and
posterior joint line over the sciatic notch. Dr. Rueter diagnosed joint pain involving the pelvic
region and thigh probably due to a repetitive motion injury versus osteoarthritis, dislocation or
relocation.
In a July 17, 2009 report, Dr. Rueter recalled seeing appellant on July 8, 2009 for an
injury that she sustained in late May. He advised that she related a nonspecific injury to her left
hip that caused extreme pain when she awoke the next day and was referred to orthopedics and
physical therapy. Dr. Rueter stated that “the timing of her pain suggests that the injury may have
occurred at work.” He attached a July 8, 2009 x-ray report from Dr. Robert E. Hogan, a Boardcertified diagnostic radiologist, noting mild degenerative joint disease of the left hip and no acute
injury.
A July 22, 2009 physical therapy report signed by Dr. Rueter noted that appellant was
evaluated on July 16, 2009 for symptoms of left hip and leg discomfort that arose while working
on May 25, 2009. Dr. Rueter diagnosed left low back and buttock pain, detailing gait
dysfunction and reductions in dorsiflexion, strength to the left hip flexors and knee extensors,
and sensory response to the left lateral leg and in L5-S1 distribution.
In a July 16, 2009 statement, appellant related that, on the night of May 25, 2009, due to
understaffing, she was working on a flat sorter at the employing establishment. Around 3 a.m.,
she felt pain in her left hip and limped a little bit as she was pushing a container of mail.
Appellant finished her shift and returned home to sleep, but woke up that afternoon with

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“horrible sharp pains and leg cramps.” On May 29, 2009 she sought medical treatment and was
taken off work for three days. On June 1, 2009 appellant returned to work, notified her
supervisor about a possible pinched nerve and requested other work. Her supervisor informed
her there was only 10 minutes of work and that she “had to sign a resignation form.” Appellant
initially refused, but relented when her supervisor told her that she was required to resign. She
noted that a coworker observed the exchange. Appellant denied having a prior condition or
telling her supervisor that she sustained the injury while packing at home.
Appellant also submitted a July 14, 2009 statement from George Seela, her partner, who
affirmed that on the afternoon of May 26, 2009 she awoke with pain and visited a physician on
May 29, 2009. Mr. Seela advised that appellant was not involved with the moving preparations.
In a May 29, 2009 work release, a nurse practitioner stated that appellant needed to be off work
for three more days.
By decision dated August 10, 2009, the Office denied appellant’s claim, finding that the
medical evidence was not sufficient to show that she sustained an injury due to the work
incident.
Appellant requested a telephonic oral hearing on August 20, 2009. She submitted an
October 23, 2009 report from Dr. Stephen L. Nelson, a Board-certified family practitioner, who
obtained a history that on May 25, 2009 appellant was pushing equipment without assistance at
the employing establishment and experienced soreness after it was caught on a rubber floor mat.
Appellant was unable to walk the next day. Dr. Nelson diagnosed left lumbar radiculopathy at
L4-L5. Appellant also submitted August 2009 physical therapy records.
At the November 10, 2009 hearing, Mr. Seela testified regarding his observation of
appellant since May 26, 2009. The hearing representative requested that appellant submit a
medical report from a physician describing the history of her claimed injury on May 25, 2009, a
definitive diagnosis, and how the reported work-related incident caused or contributed to the
diagnosed condition.
Appellant submitted an undated statement regarding the May 25, 2009 incident,
reiterating that she worked the graveyard shift that night, was pushing and pulling a container
when she sustained hip pain. She woke up the following afternoon with leg cramps and stiffness
and notified her supervisor about her condition on June 1, 2009. Appellant added that the wheels
of the container became caught on a rubber floor mat.
In an October 30, 2009 form report, Dr. Rueter commented that he saw appellant on
July 8, 2009 for left hip pain, found pain with palpation of the posterior hip and diagnosed “pain
in joint pelvis/thigh.” Appellant had no prior history or preexisting condition. Dr. Rueter noted
that the condition was work related and answered “Yes” to a form question asking for his
“opinion as to causal relationship between history of injury and diagnosis.”
A November 3, 2009 x-ray report of appellant’s pelvis from Dr. Laurie A. Martin, a
Board-certified diagnostic radiologist, revealed mild degenerative changes of the sacroiliac joints
and small osteochondroma along the right anterior iliac crest.

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In a December 8, 2009 report, Dr. Nelson advised that appellant sustained a low back
injury at work on May 25, 2009. He noted that she had worked at the employing establishment
for many years and that her job entailed pushing equipment around. Dr. Nelson stated that, over
the years, this is taken a toll on her back to the point that she has required chiropractic treatment
to keep working. On May 25, 2009 he reported that appellant was working alone and that “the
equipment got caught on a rubber mat and she twisted her back” and had significant low back
pain radiating down her left leg. Dr. Nelson stated that the pain had persisted since that time and
rendered her unable to work. In another December 8, 2009 report, he advised that he was
treating appellant for lumbar radiculopathy and listed her work restrictions.
By decision dated February 1, 2010, the hearing representative denied appellant’s claim
finding that the reports from Drs. Rueter and Nelson were insufficient to establish that her
diagnosed condition was due to the May 25, 2009 work incident.
LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act1
has the burden of establishing the essential elements of her claim by the weight of reliable,
probative and substantial evidence,2 including that she is an “employee” within the meaning of
the Act and that she filed her claim within the applicable time limitation.3 The employee must
also establish that she sustained an injury in the performance of duty as alleged and that her
disability for work, if any, was causally related to the employment injury.4
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 she actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.5
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty and must be supported by medical

1

5 U.S.C. §§ 8101-8193.

2

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

3

R.C., 59 ECAB 427 (2008).

4

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

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

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rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.6
ANALYSIS
The evidence supports that appellant was pushing a mail container at the employing
establishment on May 25, 2009. The Board finds that she has not submitted sufficient medical
evidence to establish a low back, left hip or leg condition caused or aggravated by this workrelated incident.
Dr. Nelson’s October 23 and December 8, 2009 reports stated that appellant sustained left
lumbar radiculopathy as a result of twisting her back after pushing an OTR caught on a rubber
floor mat on May 25, 2009. In the December 8, 2009 report, Dr. Nelson commented that
appellant had pushed equipment for years and that the activity had taken a toll on her back such
that she needed chiropractic treatment to keep working.” Although Dr. Nelson opined that
appellant’s diagnosed left lumbar radiculopathy was related to the May 25, 2009 incident, he did
not offer sufficient medical rationale explaining how pushing a mail container caused or
aggravated her condition. Medical reports not containing rationale on causal relation are of
diminished probative value and generally insufficient to meet an employee’s burden of proof.7
The need for rationalized medical opinion evidence regarding causal relationship was
particularly important in this case where two x-ray reports from July 8 and November 3, 2009
suggested that appellant had mild degenerative joint disease in the pelvic region. Dr. Nelson
noted that appellant had a prior history of chiropractic treatment for her back, which conflicted
with her prior statement that she did not have any preexisting condition before the May 25, 2009
incident. Medical opinions based on an incomplete or inaccurate history are also of diminished
probative value.8
Similarly, Dr. Rueter did not provide a fully-rationalized medical opinion as to causal
relationship. His July 8, 2009 report noted that appellant experienced pain after a graveyard shift
at the end of May 2009 due to “probable repetitive motion injury” as opposed to osteoarthritis or
dislocation not a medical diagnosis.9 Dr. Rueter did not offer sufficient medical reasoning
addressing how appellant’s employment caused or aggravated her condition. His finding that the
condition was attributable to “probable repetitive motion injury” is speculative10 and failed to
address the May 25, 2009 incident described by appellant, namely the mail container pushing.11
The fact that appellant’s condition became apparent during a period of employment does not
6

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

7

S.S., 59 ECAB 315, 322 (2008); George Randolph Taylor, 6 ECAB 986, 988 (1954).

8

M.W., 57 ECAB 710 (2006); James A. Wyrick, 31 ECAB 1805 (1980).

9

Robert Broome, 55 ECAB 339, 342 (2004).

10

Kathy A. Kelley, 55 ECAB 206, 211 (2004) (the use of speculative terms diminishes the probative value of
medical opinion evidence).
11

See John W. Montoya, 54 ECAB 306, 309 (2003) (a physician’s opinion must discuss whether the employment
incident described by the claimant caused or contributed to diagnosed medical condition).

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establish causation.12 On July 17, 2009 Dr. Rueter opined that “the timing of appellant’s pain
suggests that the injury may have occurred at work” while in his October 30, 2009 report he
answered “Yes” to a form question asking whether her injury was causally related to her
employment. These reports also fail to offer sufficient medical reasoning explaining the
pathophysiological process by which pushing an OTR on May 25, 2009 caused or aggravated
appellant’s condition.13 Dr. Rueter did not provide an unequivocal opinion explaining the
reasons why the May 25, 2009 incident caused or aggravated a diagnosed medical condition.14
Other medical reports of record are insufficient to establish the claim because they do not
specifically address whether appellant’s work activities on May 25, 2009 caused or aggravated a
diagnosed medical condition.15
Appellant argues on appeal that the Office’s decision was contrary to fact and law. As
stated above, the medical evidence did not sufficiently explain how pushing an OTR at work on
May 25, 2009 caused or contributed to appellant’s condition.
CONCLUSION
The Board finds that appellant did not establish that she sustained a traumatic injury in
the performance of duty on May 25, 2009.

12

Robert G. Morris, 48 ECAB 238, 239 (1996).

13

See Alberta S. Williamson, 47 ECAB 569 (1996) (an opinion on causal relationship which consists only of a
physician checking “yes” on a medical form report without further explanation or rationale is of little probative
value).
14

Drs. Rueter and Nelson also indicate that appellant’s condition occurred over time. The Board notes the matter
on appeal involves a claim for a traumatic injury; whether appellant sustained an injury on May 25, 2009 and not
whether she sustained a condition over a period of time. See 20 C.F.R. § 10.5(ee) (defines 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); 20 C.F.R. § 10.5(q) (defines an occupational disease or illness as a condition produced by the work
environment over a period longer than a single workday or shift).
15

J.F., 61 ECAB ___ (Docket No. 09-1061, issued November 17, 2009) (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).

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ORDER
IT IS HEREBY ORDERED THAT the February 1, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 14, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Carol Stream, IL, Employer
__________________________________________

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

Docket No. 09-1349
Issued: March 22, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 30, 2009 appellant timely appealed a December 17, 2008 merit decision of the
Office of Workers’ Compensation Programs denying her consequential injury claim. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
hernia condition as a consequence of her January 26, 2004 employment injury.
FACTUAL HISTORY
The Office accepted that on January 26, 2004 appellant, then a 43-year-old mail
processing clerk, injured her left shoulder when reaching for a tape dispenser. Appellant stopped
work on April 19, 2004 and did not return. The Office accepted the claim for internal
derangement of the left shoulder and placed her on the periodic rolls. On August 24, 2005
appellant underwent subacromial decompression surgery. The Office authorized physical
therapy treatment and a work conditioning program.

The reports from physical therapy and the work conditioning program, dated January 23
to July 2006, noted appellant’s progress and her frequent absenteeism but did not reference any
complaints relative to hernia symptoms. On June 19, 2006 appellant missed all her appointments
that week except for one. The June 26, 2006 notes stated appellant was scheduled for 24
appointments up to June 23, 2006, but only made 11 of the appointments. On July 3, 2006
appellant missed an appointment that week and had cancelled her other appointments early due
to her schedule. A July 11, 2006 letter noted that appellant began a work conditioning program
on May 23, 2006 and she attended only two appointments that week. It noted appellant’s
complaints of being sore and tight through her upper back and anterior shoulders. The work
conditioning/hardening progress reports noted her complaint of low back pain and shoulder
irritation after each session and that her program was modified to accommodate her. Appellant
was discharged from the work hardening/conditioning program on July 14, 2006 with a lightduty physical capacity.
In a July 27, 2006 report, Dr. Steven C. Chudik, a Board-certified orthopedic surgeon,
noted that appellant had not been reporting for her work conditioning program. Appellant
advised him that she had reaggravated an abdominal hernia and that it was too painful and
difficult for her to do the work or heavy lifting. Dr. Chudik noted that the physician who treated
appellant’s hernia did not have a clear recommendation about her continuing with work
conditioning. In an August 3, 2006 report, he recommended that appellant continue work
conditioning with restrictions on lifting and no core exercises. Dr. Chudik indicated that she
remained disabled from work.
In an August 12, 2006 report, Dr. Geoffrey M. Silver, a Board-certified general surgeon,
noted appellant had a hernia repaired the previous year. Appellant was undergoing physical
therapy for a shoulder injury and noticed pain and bulging in her abdominal wall, which was
painful with lifting. Dr. Silver assessed probable abdominal wall hernia and recommended no
lifting until the next evaluation. On November 6, 2006 he noted seeing appellant several times
for abdominal pain. Dr. Silver diagnosed an abdominal wall hernia and recommended that it be
repaired.
On November 20, 2006 appellant filed a claim alleging that she sustained a recurrence of
disability on July 20, 2006 due to her January 26, 2004 employment injury. She asserted that her
participation in the work conditioning program and physical therapy for five days a week four
hours a day resulted in a hernia. Prior to the work injury, appellant had a hernia repaired and
experienced abdomen pain in June and July 2006. She stated that her doctors and physical
therapist were aware of her pain and her physician advised her to discontinue her work
conditioning exercises on August 1, 2006.
In a December 21, 2006 report, Dr. Chudik advised that appellant could not complete her
work conditioning due to her hernia. Appellant was scheduled to have surgery on
January 10, 2007 and remained totally disabled.
On January 31, 2007 the Office requested appellant to submit additional medical
evidence in support of her claim. This included a rationalized report from her physician
explaining how her condition worsened and how the newly diagnosed hernia condition was
causally related to the accepted work-related condition involving her left upper extremity. The
Office developed the matter as a claim for a consequential injury.
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In a February 8, 2007 report, Dr. Chudik provided a history of appellant’s work-related
shoulder injury and medical treatment. He stated that through her work-conditioning program,
appellant developed an abdominal hernia which precluded her from completing the program.
Dr. Chudik opined that the abdominal hernia could be closely related to her work-conditioning
exercises which became necessary treatment following her left shoulder surgery.
On April 4, 2007 the Office denied the claim on the grounds that appellant did not submit
sufficient medical evidence to establish that her hernia or disability were a consequence of her
January 26, 2004 work injury.
Appellant requested an oral hearing, which was held on August 27, 2007.
In an April 17, 2007 report, Dr. Chudik stated that appellant’s preexisting abdominal
hernia significantly worsened during her work conditioning, by strenuous activity. On April 27,
2007 he indicated that appellant was performing work-conditioning activities after her shoulder
surgery and apparently tore the mesh that was holding her abdominal hernia repair. Dr. Chudik
indicated the tearing of the mesh and recurrence of the abdominal hernia was due to performing
work-conditioning exercise, which was part of her treatment for her shoulder injury. He
recommended no further work conditioning until her hernia was repaired.
In a June 1, 2007 report, Dr. Richard Sidwell, Jr., a Board-certified general surgeon and
Office referral physician, noted the history of injury, appellant’s treatment and provided findings
on examination. He diagnosed left shoulder pain, status post distal clavicle resection left
shoulder with probable minimal rotator tendinopathy. With regard to the recurrence of
appellant’s hernia condition, Dr. Sidwell opined that there was no reason to consider the hernia
related in any way to the accepted condition. He advised that, if appellant is cleared by the
treating general surgeon, she should be able to do light exercises involving the left upper
extremity or at least perform range of motion exercises that would optimize her recovery.
In a February 22, 2007 report, Dr. Jennifer Buhrke, appellant’s primary care physician,
advised appellant’s needed surgery for a ventral abdominal hernia. She opined that the hernia
occurred secondary to weight lifting and abdominal exercise that was part of a work conditioning
program for which appellant was sent for rehabilitation after shoulder surgery.
By decision dated November 13, 2007, an Office hearing representative vacated the
April 4, 2007 decision, finding a conflict of medical opinion between Dr. Chudik and
Dr. Buhrke, the treating physicians, and Dr. Sidell, the second opinion physician, regarding the
claimed abdominal hernia condition.
To resolve the conflict, the Office referred appellant, together with a statement of
accepted facts, a list of questions and the medical record, to Dr. Scott Kale, a Board-certified
internist. In a February 18, 2008 report, Dr. Kale reviewed the medical records, appellant’s
treatment following her work injury and her claimed hernia injury. He noted that appellant
related a history of an aggravation of a preexisting otherwise asymptomatic abdominal hernia
during physical therapy for her injured shoulder. It appeared from her history that the
aggravation occurred at some point in June or July 2006; however, thorough review of
appellant’s therapy record revealed no complaints of any abdominal pain or any incident in
which her abdomen was injured, aggravated or otherwise affected by her physical therapy.
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Moreover, appellant’s description that she engaged in 200 sit-ups at each session was not
verified or supported in the medical record, which noted that she may have done no more than
several sets of eight sit-ups. There was no evidence that appellant engaged in core exercises that
would reasonably have injured her abdomen in the course of physical therapy or evidence of
appellant injuring her abdomen. Dr. Kale noted that there was considerable evidence of
appellant having missed multiple physical therapy appointments because of an upper respiratory
infection, low back pain, and for reasons that were not specified. He noted that, while her
physicians dutifully recorded that she injured her abdomen during physical therapy, there was no
independent support for this history other than appellant’s narrative. Dr. Kale found that there
was no relationship between appellant’s physical therapy for her left shoulder condition and her
abdominal hernia. He stated that there was no medical record of appellant injuring her abdomen
at her place of therapy. Dr. Kale advised the preexisting nature of a ventral hernia increased the
likelihood of future herniations, which could occur with any activity, including activities of daily
living. He found that appellant’s hernia prevented her from working but was not work related.
Dr. Kale stated that appellant was medically capable of returning to full-time limited-duty work
with regard to her shoulder injury.
By decision dated March 12, 2008, the Office denied appellant’s claim for a
consequential hernia injury based on the report of Dr. Kale, the impartial medical specialist.
Appellant disagreed with the Office’s decision and requested an oral hearing, which was
held September 30, 2008. No new medical evidence was submitted.
By decision dated December 17, 2008, an Office hearing representative affirmed the
March 12, 2008 decision.
LEGAL PRECEDENT
The general rule respecting consequential injuries is that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause, which is attributable to the employee’s own intentional conduct.
The subsequent injury is compensable if it is the direct and natural result of a compensable
primary injury. With respect to consequential injuries, the Board has stated that, where an injury
is sustained as a consequence of an impairment residual to an employment injury, the new or
second injury, even though nonemployment related, is deemed, because of the chain of causation
to arise out of and in the course of employment and is compensable.1
A claimant bears the burden of proof to establish a claim for a consequential injury.2 As
part of this burden, he must present rationalized medical opinion evidence, based on a complete
factual and medical background, showing causal relationship. Rationalized medical evidence is
evidence which relates a work incident or factors of employment to a claimant’s condition, with
stated reasons of a physician. The opinion must be one of reasonable medical certainty and must
1

S.S., 59 ECAB ___ (Docket No. 07-579, issued January 14, 2008).

2

J.J., 60 ECAB ___ (Docket No. 09-27, issued February 10, 2009); Charles W. Downey, 54 ECAB 421 (2003).

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be supported by medical rationale explaining the nature of the relationship of the diagnosed
condition and the specific employment factors or employment injury.3
Section 8123(a) of the Federal Employees’ Compensation Act provides in pertinent part:
If there is disagreement between the physician making the examination for the United States and
the physician of the employee, the Secretary shall appoint a third physician who shall make an
examination.4 In situations where there exist opposing medical reports of 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
upon a proper factual background, must be given special weight.5
ANALYSIS
The Office accepted that appellant sustained internal derangement of the left shoulder on
January 26, 2004. Following surgical repair of her left shoulder, appellant underwent physical
therapy and a work conditioning/hardening program. She subsequently claimed that her hernia
condition and disability on July 20, 2006 was due to her participation in the physical therapy and
work conditioning/hardening program.
The Office found a conflict in medical opinion between Dr. Chudik and Dr. Buhrke,
appellant’s treating physicians, and Dr. Sidell, the second opinion physician, regarding whether
she sustained a consequential abdominal hernia condition. Pursuant to section 8123(a) of the
Act, it properly referred appellant to Dr. Kale, a Board-certified internist, for an impartial
medical examination and an opinion on the matter.
Dr. Kale provided an accurate factual and medical history. He indicated that the history
that appellant provided to her treating physicians -- that she had sustained an abdominal injury
while participating in physical therapy exercises -- was not supported by the objective evidence
of record. Dr. Kale noted the physical therapy records did not indicate any complaints of
abdominal pain or any incidents in which her abdomen was injured, aggravated or otherwise
affected by her workouts at physical therapy. He further noted there was no evidence that
appellant engaged in the frequency of exercise claimed or had engaged in core exercises which
reasonably would have injured her abdomen, which was susceptible to future herniations because
of the preexistence of a ventral hernia.6 Dr. Kale opined there was no relationship between
appellant’s physical therapy arising out of her left shoulder injury and her abdominal hernia. He
explained that herniations could occur with any activities of daily living and not just from sit-ups
and that the amount and frequency appellant claimed was not supported by the record. Dr. Kale

3

Charles W. Downey, supra note 2.

4

5 U.S.C. § 8123(a).

5

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

6

The Board notes that the record reflects that appellant’s progress in the work-conditioning program was
hindered by multiple absenteeism and the physical therapy reports do not reference any complaints by appellant
relative to hernia symptoms. Additionally, the record does not contain any evidence that appellant attended physical
therapy on or about July 20, 2006, when her claimed total disability began.

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found no basis on which to attribute appellant’s hernia condition to her conditioning program to
treat her accepted left shoulder condition.
The Board finds that the opinion of Dr. Kale is sufficiently well rationalized and based
upon an accurate history such that it is entitled to special weight and establishes that appellant
did not sustain an abdominal hernia as a consequence of her January 26, 2004 employment
injury.
Dr. Kale found that appellant’s hernia condition was not a consequence of her
January 26, 2004 employment injury.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a hernia condition or disability as a consequence of her July 20, 2004 employment
injury.
ORDER
IT IS HEREBY ORDERED THAT the December 17, 2008 Office of Workers’
Compensation Programs’ decision is affirmed.
Issued: March 22, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 17-0450
Issued: June 20, 2018

Case Submitted on the Record

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

JURISDICTION
On December 23, 2016 appellant filed a timely appeal from an August 1, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last OWCP merit decision dated December 11, 2015, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On December 14, 2011 appellant, a 52-year-old window service technician, filed an
occupational disease claim (Form CA-2) alleging that she sustained an aggravation of her cardiac
1

5 U.S.C. § 8101 et seq.

conditions, including atrial tachycardia, flutter, and fibrillation, due to her federal employment
duties. She stated that the repetitive stress of her window clerk duties of handling customer
complaints resulted in an aggravation of her conditions. Appellant indicated that she first became
aware of her condition and attributed it to her federal employment on April 26, 2010. Initially, on
April 2, 2012, OWCP disallowed her claim as a new injury, administratively doubled it with a
previous work injury under File No. xxxxxx655, and closed the claim. Thereafter, an OWCP
hearing representative found that the claim should be considered as a new occupational disease
claim and reversed the April 2, 2012 decision. By decision dated June 26, 2012, OWCP accepted
appellant’s claim for atrial flutter, paroxysmal atrial tachycardia, and atrial fibrillation. It placed
her on the periodic rolls effective August 26, 2012 for part-time wage loss, noting that she was
working as a window service technician five hours per day, five days a week.
On January 16, 2014 appellant accepted a modified window clerk position for five hours
per day, five days a week. The duties included working on bid assignments and required lifting,
carrying, standing, walking, simple grasping, and fine manipulation for four to five hours per day.
In a June 17, 2014 report, Dr. Christopher Cole, a Board-certified cardiologist, noted that
appellant continued to have intermittent palpitations caused by work-related stress. He opined that
appellant’s established window clerk duties caused her autonomic nervous system to produce
catecholamines, which drove her arrhythmias. Dr. Cole advised that appellant was capable of
working five hours per day without any work restrictions.
On October 23, 2014 appellant filed claims for disability compensation (Form CA-7) for
the period September 29 to November 18, 2014. She submitted a September 29, 2014 report from
Dr. Cole who noted that appellant’s arrhythmias were caused by employment-related stress and
anxiety due to her federal duties. Dr. Cole found that appellant had recently been experiencing an
exacerbation of her arrhythmias, which was correlated with a work-related stress pattern. He
recommended that appellant work three hours per day, five days a week, until her next clinical
visit on October 22, 2014.
In a September 26, 2014 report, a physician assistant noted that appellant sustained atrial
fibrillation due to work-related stress and had been advised to curtail her work shifts to three hours
per day, five days a week, until her next visit to see if it improved her symptoms.
On November 4, 2014 Dr. Cole indicated that appellant had been under his care since
January 2006 for arrhythmias caused by work-related stress from her federal window clerk duties.
He found that appellant had recently been experiencing an increase in the frequency and duration
of her palpitations secondary to having increased responsibilities and stress from persistent
understaffing at the employing establishment. Dr. Cole explained that the decision to decrease her
work hours “was to protect her from the stress that ha[d] been established to cause her
arrhythmias.” He found that symptomatically appellant had been doing much better with this
temporary decrease in hours and would return to working five hours per day on
November 30, 2014.
Appellant accepted a modified job offer as a lead sales and services associate on
December 5, 2014. The position required five-hour work shifts, five days a week, with the
following restrictions: lifting one to two hours per day; standing, walking, and sitting for four to

2

five hours per day; bending, twisting, pushing, and pulling for one hour per day; and grasping for
three hours per day.
OWCP referred appellant to Dr. Adam Strunk, a Board-certified cardiologist, for a second
opinion evaluation to determine the nature and extent of her employment-related conditions. In
his December 9, 2014 report, Dr. Strunk found that appellant was capable of returning to her dateof-injury position. He noted Dr. Cole’s opinion that appellant’s condition was due to stress at
work and explained that it was likely that she would continue to have arrhythmias when working
longer and busier shifts.
By decision dated December 29, 2014, OWCP denied appellant’s claim for disability
compensation for the period September 29 to November 18, 2014. It found that she had been
placed on the periodic rolls and received wage-loss compensation based on three hours of wage
loss per day and subsequently claimed an additional two hours of wage-loss compensation. OWCP
explained that her request to add an additional two hours of wage loss for the period September 29
to November 18, 2014 was denied because the medical evidence of record failed to establish
disability for the additional period claimed.
Appellant requested a review of the written record by a representative of the Branch of
Hearings and Review and resubmitted a June 17, 2014 report from Dr. Cole in support of her claim.
By decision dated June 9, 2015, an OWCP hearing representative conducted a review of
the written record and affirmed the prior decision, finding that no medical evidence of record
established that appellant sustained a recurrence of disability such that her partial disability
increased for the period September 29 to November 18, 2014 due to her employment injury.
OWCP referred appellant to Dr. John Boerner, a Board-certified cardiologist, for another
second opinion evaluation to determine the nature and extent of her employment-related
conditions. In his July 7, 2015 report, Dr. Boerner diagnosed atrial and ventricular arrhythmias
and found that appellant was capable of working five hours per day in a position with no significant
emotional or physical stress.
On September 2, 2015 appellant accepted a modified job offer as a lead sales and services
associate working five hours per day, five days a week, with the following restrictions: lifting one
to two hours per day; standing, walking, and sitting for four to five hours per day; bending,
twisting, pushing, and pulling for one hour per day; and grasping for three hours per day.
On October 29, 2015 appellant requested reconsideration and submitted hospital records
dated June 17, 2015 regarding her emergency room visit for rapid heartbeat, palpitations,
lightheadedness, and shortness of breath. She also submitted an October 21, 2015 report from
Dr. Cole who noted that she was working three hours a day from September 29 to November 18,
2014 due to an exacerbation of her arrhythmias, which were caused by stress at work. Dr. Cole
opined that appellant’s exacerbation of her arrhythmias were consequential to her prior work
injury.
By decision dated December 11, 2015, OWCP denied modification of its prior decision.

3

On February 17, 2016 appellant requested reconsideration, arguing that OWCP had failed
to consider all the evidence properly submitted and that her arrhythmias were consequential to her
prior injury. In support of her request, she submitted a July 31, 2008 report from Dr. Cole
reiterating her medical history and a September 26, 2014 report opined that she had sustained atrial
fibrillation induced by work-related stress. Dr. Cole advised appellant to work no longer than
three hours per day, five days a week. Appellant also resubmitted her modified job offer dated
September 2, 2015, hospital records dated June 17, 2015, and a June 17, 2014 report from
Dr. Cole.
By decision dated August 1, 2016, OWCP denied appellant’s request for reconsideration
of the merits of her claim because she failed to advance a relevant legal argument or submit any
relevant and pertinent new evidence.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.2 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.3 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.4
A timely application for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously
considered by OWCP.5 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.6
ANALYSIS
Appellant’s February 17, 2016 request for reconsideration neither alleged nor
demonstrated that OWCP erroneously applied or interpreted a specific point of law. Additionally,
the Board finds that she did not advance a relevant legal argument not previously considered by
OWCP. Appellant argued that OWCP had failed to consider all the evidence properly submitted
and that her arrhythmias were consequential to her prior injury. The Board, however, finds that
2
This section provides in pertinent part: “[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.” 5 U.S.C. § 8128(a).
3

20 C.F.R. § 10.607.

4

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
“received” by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the “received date” in the Integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
5

20 C.F.R. § 10.606(b)(3).

6

Id. at § 10.608(a), (b).

4

OWCP properly considered all of the evidence of record before denying appellant’s claims for
disability in its December 11, 2015 decision. Consequently, appellant is not entitled to further
review of the merits of her claim based on the first and second above-noted requirements under
section 10.606(b)(3).
Appellant also failed to submit relevant and pertinent new evidence not previously
considered by OWCP. Along with her reconsideration request, appellant submitted reports dated
July 31, 2008 and September 26, 2014 from Dr. Cole who reiterated her medical history and
opined that she had sustained atrial fibrillation induced by work-related stress. Dr. Cole advised
her to work no longer than three hours per day, five days per week. The Board finds that
submission of these reports did not require reopening appellant’s case for merit review. As OWCP
denied appellant’s claim based on the lack of supportive medical evidence establishing an
additional two hours of wage-loss compensation for disability during the period September 29 to
November 18, 2014 and these reports repeat evidence already in the case record, they are
cumulative and fail to constitute relevant and pertinent new evidence. Therefore, they are not
sufficient to require OWCP to reopen appellant’s claim for consideration of the merits.7
In support of her request for reconsideration, appellant resubmitted a June 17, 2014 report
from Dr. Cole and hospital records dated June 17, 2015. The Board finds that the submission of
this evidence did not require reopening appellant’s case for merit review because appellant had
submitted the same evidence, which was previously reviewed by OWCP in its prior decisions.
More specifically, the Board finds that the content of Dr. Cole’s June 17, 2014 report was
considered by OWCP in its decisions dated December 29, 2014 and June 9, 2015 and the June 17,
2015 hospital records were considered by OWCP in its decision dated December 11, 2015. As the
documents repeat evidence already in the case record, it is duplicative and does not constitute
relevant and pertinent new evidence. Thus, appellant has not established a basis for reopening her
case.8
Appellant also resubmitted her modified job offer dated September 2, 2015. The Board
finds that the submission of this document did not require reopening appellant’s case for merit
review because appellant had submitted the same evidence, which was previously reviewed by
OWCP in its December 11, 2015 decision. As the statement repeats evidence already in the case
record, it is duplicative and does not constitute relevant and pertinent new evidence.9
The Board finds that OWCP properly determined that appellant was not entitled to further
review of the merits of her claim pursuant to any of the three requirements under section
10.606(b)(3). Thus, it properly denied her request for reconsideration.

7

See L.H., 59 ECAB 253 (2007).

8

See D.K., 59 ECAB 141 (2007).

9

Id.

5

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the August 1, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 20, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.Y., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kansas City, MO, Employer
__________________________________________

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

Docket No. 11-1881
Issued: March 21, 2012

Case Submitted on the Record

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

JURISDICTION
On August 15, 2011 appellant filed a timely appeal from the June 23, 2011 Office of
Workers’ Compensation Programs’ (OWCP) decision that denied his claim and an August 1,
2011 OWCP decision denying his request for reconsideration. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained an occupational disease; and (2) whether OWCP properly refused to reopen appellant’s
case for further review of the merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 7, 2011 appellant, then a 55-year-old carpenter, filed an occupational disease
claim alleging that he had tingling and pain in his fingers and forearms for about 12 years and
was diagnosed with carpal tunnel syndrome. He first became aware of the condition and its
relation to his work on March 29, 2011. Appellant did not stop work. The employing
establishment advised that he was still working without any restrictions.
In letters dated April 15, 2011, OWCP requested additional factual and medical evidence
from appellant and the employing establishment.
In an April 19, 2011 statement, appellant described his job duties since 1985 as including
carpentry, blacksmithing, and welding with use of tools such as hammers, drills and nail guns.
He also performed custodial duties that involved mopping, sweeping and dumping trash.
Appellant listed volunteer carpentry work at Christmas for Habitat for Humanity, although he
last did this in 2005. He did not have any hobbies or recreational activities due to a hip
replacement in 1998. Appellant began having problems in his forearms and wrists many years
prior and, more recently, would be awakened by a tingling sensation and numbness. He saw his
physician on March 29, 2011. Appellant also noted that he had arthritis.
In a March 29, 2011 report, Dr. Salman N. Malik, a Board-certified neurologist, noted
that appellant related a 20-year history of tingling, numbness and paresthesias in his hands,
which had worsened in the past few months. Appellant stated that repetitive hand motion
worsened his symptoms. Dr. Malik examined appellant and obtained nerve conduction and
electromyography (EMG) studies. He diagnosed moderate right and left carpal tunnel syndrome
and no evidence of entrapment neuropathy, peripheral neuropathy, myopathy or radiculopathy.
Dr. Malik indicated that motor effort was limited during the EMG examination due to pain.
By decision dated June 23, 2011, OWCP denied appellant’s claim. While the evidence
supported that the claimed work exposures occurred appellant failed to submit the sufficient
medical evidence in support of his claim. The only medical evidence submitted diagnosed
bilateral carpal tunnel syndrome but did not address causal relation.
Appellant requested reconsideration on July 5, 2011. He submitted a July 14, 2011 claim
for compensation requesting that wage-loss compensation be paid for 12.11 hours from June 20
to July 6, 2011.
By decision dated August 1, 2011, OWCP denied appellant’s request for reconsideration
without a review of the merits finding that it was insufficient to warrant further review.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 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 injury was sustained in the performance of duty as alleged and
that any disability and/or specific condition for which compensation is claimed are causally related
2

to the employment injury.2 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.3
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; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that 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. The medical
evidence required to establish causal relationship, generally, is rationalized medical opinion
evidence. Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. 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.4
ANALYSIS -- ISSUE 1
Appellant alleged tingling and pain in his fingers and forearms due to carpentry,
blacksmithing, welding and custodial work that involved use of hammers, drills and nail guns.
He also performed mopping, sweeping and dumping trash. There is no dispute that appellant
performed these duties over a number of years. The Board finds that appellant has not
established his claim as he did not submit sufficient medical evidence to establish that he
sustained bilateral carpal tunnel syndrome (CTS) due to his employment duties.
In a March 29, 2011 report, Dr. Malik noted that appellant related that he had a 20-year
history of tingling, numbness, and paresthesias in his hands, which had worsened in the past few
months. Appellant stated that repetitive hand motion worsened his symptoms. Dr. Malik noted
findings and diagnosed moderate right and left carpal tunnel syndrome. He provided no
discussion explaining how any particular factors of appellant’s employment, such as his 20-year
history of duties as a carpenter and mechanic, would cause or contribute to the carpal tunnel
condition. Appellant presented no other medical evidence prior to OWCP’s June 23, 2011 denial
of his claim which supported that specific work factors caused or aggravated his claimed
condition. OWCP informed appellant of the type of medical evidence needed to establish his
claim in a letter dated April 15, 2011. However, appellant did not submit a medical report from
his physician that explained how specific duties of his federal employment caused or aggravated
his diagnosed condition.
2

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

3

Victor J. Woodhams, 41 ECAB 345 (1989).

4

Id.

3

The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.5
Neither the fact that the condition became apparent during a period of employment nor the belief
that the condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.6 Causal relationship must be substantiated by reasoned medical
opinion evidence, which is appellant’s responsibility to submit.
On appeal, appellant contended that his injury was work related. He also noted that on
July 19, 2011, his family physician submitted a report on causal relationship to OWCP. The
Board notes that subsequent to OWCP’s August 1, 2011 decision, OWCP received a July 19,
2011 report from Dr. James R. La Salle, a Board-certified family practitioner and osteopath. The
Board has no jurisdiction to review this evidence for the first time on appeal.7 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.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,8
OWCP’s regulations provide that a claimant’s application for reconsideration must be submitted
in writing and set forth arguments or contain evidence that either: (1) shows that OWCP
erroneously applied or interpreted a specific point of law; (2) advance a relevant legal argument
not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not
previously considered by OWCP.9 To be entitled to a merit review of OWCP’s decision denying
or terminating a benefit, a claimant must file his or her application for review within one year of
the date of that decision.10 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.11
ANALYSIS -- ISSUE 2
Appellant requested reconsideration on July 5, 2011. However, he offered no legal
argument or new medical evidence to support his reconsideration request. The only evidence
submitted was appellant’s claim for compensation. As noted, his claim was denied because of
5

See Joe T. Williams, 44 ECAB 518, 521 (1993).

6

Id.

7

20 C.F.R. § 501.2(c); James C. Campbell, 5 ECAB 35 (1952).

8

5 U.S.C. § 8128(a). Under section 8128(a) of FECA, the Secretary of Labor may review an award for or against
payment of compensation at any time on his own motion or on application.
9

20 C.F.R. §§ 10.609(a) and 10.606(b).

10

Id. at § 10.607(a).

11

Id. at § 10.608(b).

4

insufficient medical evidence addressing how particular employment factors caused or
aggravated his diagnosed carpal tunnel syndrome. A claim for compensation is not relevant to
the point at issue in this claim.
Appellant did not show that OWCP erroneously applied or interpreted a specific point of
law, did not advance a relevant legal argument not previously considered by OWCP or submit
relevant and pertinent new evidence not previously considered, OWCP properly denied his
reconsideration request.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained an injury in the performance of duty. The Board further finds that OWCP properly
denied appellant’s request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the August 1 and June 23, 2011 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 21, 2012
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.G., Appellant
and
U.S. POSTAL SERVICE, PRIORITY MAIL
ANNEX, Kent, WA, Employer
__________________________________________

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

Docket No. 19-1616
Issued: March 10, 2020

Case Submitted on the Record

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

JURISDICTION
On July 22, 20191 appellant filed a timely appeal from a January 24, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the Federal Employees’

1
Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from January 24, 2019, the date of OWCP’s last decision, was
July 23, 2019. Since using July 25, 2019, the date the appeal was received by the Clerk of the Appellate Boards would
result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S. Postal
Service postmark is July 22, 2019, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1); X.Y., Docket No.
19-1290 (issued January 24, 2020).
2

The Board notes that, during the pendency of this appeal, OWCP issued a September 30, 2019 decision, which
denied appellant’s request for a review of the written record by the Branch of Hearings and Review of the January 24,
2019 decision that is the subject of the current appeal. The Board and OWCP may not simultaneously exercise
jurisdiction over the same issue(s). 20 C.F.R. §§ 501.2(c)(3), 10.626. See J.A., Docket No. 19-0981 (issued
December 30, 2019); Arlonia B. Taylor, 44 ECAB 591 (1993); Douglas E. Billings, 41 ECAB 880 (1990).
Consequently, OWCP’s September 30, 2019 decision is set aside as null and void.

Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.4
ISSUE
The issue is whether appellant has met his burden of proof to establish a low back condition
causally related to the accepted July 3, 2018 employment incident.
FACTUAL HISTORY
On July 10, 2018 appellant, then a 56-year-old small parcel bundle sorting clerk, filed a
traumatic injury claim (Form CA-1) alleging that he sustained an injury to his lower back on July 3,
2018 while lifting flat tubs, which weighed more than 20 pounds, while in the performance of
duty. He stopped work on July 6, 2018 and returned to work July 16, 2018 performing modified,
limited-duty work.
In a July 16, 2018 narrative statement, appellant described the July 3, 2018 incident, and
further explained that, after he lifted the tubs of mail, he carried them to hampers, at which time
he felt radiating pain in his back. He also described his continuing symptoms since the incident.
On July 6, 2018 appellant sought chiropractic treatment from Dr. Alex Selinsky, D.C., a
chiropractor. In a July 6, 2018 note, Dr. Selinsky indicated that appellant had spinal sprain/strain
and requested that he be excused from work from July 6 through 12, 2018 to avoid aggravation of
his condition. In a report signed July 10, 2018, he noted appellant’s report of a July 3, 2018 lower
back injury due to lifting at work. Based on appellant’s July 6, 2018 examination findings of
muscle spasms, segmental dysfunction, restricted range of motion, positive orthopedic tests and
x-ray findings, Dr. Selinsky diagnosed sprain of pelvis, sprain of lumbar spine, and sprain of
thoracic spine. In July 11, 2018 progress notes, he indicated a July 3, 2018 date of injury and
provided diagnosis codes for sprain of pelvis, sprain of lumbar spine, and sprain of thoracic spine.
Dr. Selinsky requested that appellant be excused from work from July 13 through 16, 2018 to
avoid aggravation of his spinal condition. In a July 14, 2018 note, he indicated that appellant could
return to light-duty work with restrictions on July 16, 2018.
In a July 26, 2018 development letter, OWCP advised appellant that the evidence submitted
was insufficient to establish his claim and requested that he provide additional factual and medical
information. It specifically advised that it had received evidence from a chiropractic physician,
but that under FECA a “physician” included a chiropractor only if there was a diagnosed spinal
subluxation and it was demonstrated by x-ray evidence. Appellant was afforded 30 days to submit
additional evidence.

3

5 U.S.C. § 8101 et seq.

4

The Board notes that, following the January 24, 2019 decision, additional evidence was received by OWCP and
the Board on appeal. 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.

2

In response, appellant submitted copies of Dr. Selinsky’s chart notes from July 6 through
August 1, 2018. These notes reflected that appellant had received spinal adjustments for
subluxations at the thoracic and lumbar regions, for relief of mid and low back pain. OWCP also
received an August 13, 2018 report from Dr. Selinsky which noted that appellant had been released
to full-duty work on August 14, 2018. An unsigned radiological report, dated “June 8, 2018,”
noted that July 6, 2018 x-rays of appellant’s cervical, thoracic, and lumbar areas of the spine were
negative for recent fracture or gross osteopathology. Calcification was noted throughout the
cervical spine and the right and left ilium were rotated due to spasms. No diagnosis was provided.
OWCP also received Dr. Selinsky’s July 11, 2018 referral for massage therapy. A massage
therapist’s report dated July 11, 2018 set forth appellant’s symptoms.
By decision dated August 29, 2018, OWCP denied appellant’s claim, finding that the
medical evidence of record was insufficient to establish a diagnosis in connection with the accepted
July 3, 2018 employment incident. Thus, it found that appellant failed to establish the medical
component of fact of injury.
On September 17, 2018 appellant requested a review of the written record by a
representative of OWCP’s Branch of Hearings and Review.
In a September 17, 2018 letter, Dr. Selinsky indicated that a thoracic subluxation at T10T11, lumbar subluxation at L3-4, and a subluxation of the right sacroiliac articulation were
objectively detected during physical examination and that an x-ray that was performed on July 6,
2018 revealed subluxations at the same levels. He indicated that those findings were included in
an updated x-ray report. Dr. Selinsky indicated that appellant lifted a tub of letters and flats that
weighed approximately 20 pounds and that, while lifting this tub, appellant bent forward and
twisted to transfer the load into a hamper and experienced sharp pain in the thoracolumbar region
(T10-T11), pain and spasms at the L3-4 lumbar region, and sharp pain in the right sacroiliac joint
and in the mid thoracic spine to the lower buttock area. He indicated that spasms and restricted
motion were evident on examination. Dr. Selinsky noted that, while appellant originally had leg
pain, this had resolved. Additional work excuse notes dated November 5, 2018 were provided.
By decision dated January 24, 2019, an OWCP hearing representative affirmed OWCP’s
August 29, 2018 decision, finding that appellant had not established a medical condition causally
related to the accepted July 3, 2018 employment injury.
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 timely filed within the applicable
time limitation period of FECA,5 that an injury was sustained in the performance of duty, as
alleged, and that any disability or medical condition for which compensation is claimed is causally

5
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).

3

related to the employment injury.6 These are the essential elements of each and every
compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.7 To determine whether a federal employee has sustained a traumatic injury
in the performance of duty, it must first be determined whether fact of injury has been established.8
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.9 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.10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a lower back
condition related to the accepted July 3, 2018 employment incident.
The record contains reports and notes from Dr. Selinsky, appellant’s treating chiropractor,
who indicated that appellant had subluxations based on x-ray evidence. However, chiropractors
are only considered “physicians” under FECA, and their reports considered medical evidence, to
the extent that they treat spinal subluxations as demonstrated by x-ray to exist, 5 U.S.C.
§ 8101(2).11 The x-ray relied on by the chiropractor must be signed by a physician.12 OWCP’s
regulations at 20 C.F.R. § 10.5(bb) have defined subluxation as an incomplete dislocation, offcentering, misalignment, fixation or abnormal spacing of the vertebrae which must be
demonstrable on any x-ray film to an individual trained in the reading of x-rays.13 If the diagnosis
of a subluxation as demonstrated by x-ray is not established, the chiropractor is not considered a
6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

R.B., Docket No. 17-2014 (issued February 14, 2019); B.F., Docket No. 09-0060 (issued March 17, 2009);
Bonnie A. Contreras, 57 ECAB 364 (2006).
9

S.F., Docket No. 18-0296 (issued July 26, 2018); D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

10
A.D., Docket No. 17-1855 (issued February 26, 2018); C.B., Docket No. 08-1583 (issued December 9, 2008);
D.G., 59 ECAB 734 (2008).
11

Section 8101(2) of FECA provides that medical opinion, in general, can only be given by a qualified physician.
This section 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. 5 U.S.C. § 8101(2). Section
8101(3) of FECA, which defines services and supplies, limits reimbursable chiropractic services to treatment
consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist and subject
to regulation by the Secretary. 5 U.S.C. § 8101(3). See H.K., Docket No. 19-0429 (issued September 18, 2019); K.J.,
Docket No. 18-1520 (issued June 13, 2019); Thomas W. Stevens, 50 ECAB 288 (1999); George E. Williams, 44 ECAB
530 (1993).
12

See T.W., Docket No. 17-1819 (issued March 14, 2018).

13
20 C.F.R. § 10.5(bb); see also D.C., Docket No. 19-0363 (issued July 18, 2019); Bruce Chameroy, 42 ECAB
121 (1990).

4

physician as defined under FECA and his or her report is of no probative value to the medical issue
presented.14
While Dr. Selinsky indicated that he was providing manual manipulation based upon x-ray
evidence of subluxation, the Board finds that the only radiological report of record is an unsigned
report, dated “June 8, 2018” which noted July 6, 2018 x-ray findings. Furthermore, there were no
findings which noted subluxations or any of the attributes which define a subluxation. A report
that is unsigned or bears an illegible signature lacks proper identification and cannot be considered
probative medical evidence as the author cannot be identified as a physician.15 The Board thus
finds that the evidence of record does not include an x-ray establishing the diagnosis of
subluxation.16 Accordingly, Dr. Selinsky is not considered a physician under FECA and his
reports, therefore, are of no probative value to establish appellant’s claim.
While Dr. Selinsky indicated in his September 17, 2018 report that an updated x-ray report
demonstrating that appellant had thoracic and lumbar subluxations at T10-11 and L3-4,
respectively, would be provided, no such x-ray report was of record at the time of the hearing
representative’s January 24, 2019 decision.
Appellant also submitted massage therapy notes. However, a report from a massage
therapist has no probative medical value as licensed massage therapists are not considered
physicians as defined under FECA.17 Consequently, this evidence is insufficient to establish
appellant’s claim.
As the medical evidence of record does not establish a medical condition causally related
to the accepted employment incident, the Board finds that appellant has not met his burden of
proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a lower back
condition related to the accepted July 3, 2018 employment incident.

14

Id.; see also T.W, supra note 12.

15

K.C., Docket No. 18-1330 (issued March 11, 2019).

16

See T.W., supra note 12.

17

See J.C., Docket No. 18-1390 (issued April 1, 2019); see A.M., Docket No. 18-0542 (issued November 1, 2018);
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).

5

ORDER
IT IS HEREBY ORDERED THAT the January 24, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 10, 2020
Washington, DC

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

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

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Perry Point, MD, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 18-1380
Issued: May 1, 2019

Case Submitted on the Record

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

JURISDICTION
On July 2, 2018 appellant, through counsel, filed a timely appeal from a May 21, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances of the case
set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts are
as follows.
On February 28, 1980 appellant, then a 28-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that, during a confrontation with a patient while in the performance of duty
on January 31, 1980, and was thrown into the edge of a table then fell to the floor, causing neck
and back injuries. OWCP accepted the claim for cervical, thoracic, and lumbar sprains and
lumbosacral neuritis. Appellant worked intermittently at the employing establishment through
July 2, 1980, then at a state hospital, and later at a private sector employer. By decision dated
May 18, 1989, OWCP found that appellant’s earnings in private sector employment properly
represented her wage-earning capacity.
By decision dated June 14, 2012, OWCP terminated appellant’s wage-loss and medical
compensation benefits, effective July 1, 2012, according Dr. Rosenfeld the special weight of the
medical evidence.4 By decision dated October 17, 2012, an OWCP hearing representative
affirmed the June 14, 2012 decision. Appellant then appealed to the Board.
By decision and order issued March 10, 2014,5 the Board affirmed OWCP’s May 18, 1989
wage-earning capacity determination and the hearing representative’s October 17, 2012 decision
affirming the termination of appellant’s wage-loss compensation and medical benefits, effective
July 1, 2012.
On October 6, 2014 appellant filed a schedule award claim (Form CA-7).6 In support of
her claim, she submitted a July 29, 2014 impairment rating from Dr. Arthur Becan, an orthopedic
surgeon. Dr. Becan provided a history of injury and treatment and reviewed medical records. He
opined that appellant had attained maximum medical improvement (MMI) on July 29, 2014. On
examination, Dr. Becan noted an antalgic gait, an inability to heel or toe walk, limited lumbar
motion, positive straight leg raising tests bilaterally, and absent left knee and ankle jerk reflexes.
3

Docket No. 13-0304 (issued March 10, 2014).

4

OWCP found a conflict of medical opinion between Dr. Robert Franklin Draper, Jr., a Board-certified orthopedic
surgeon, for the government, and Dr. Pierre L. LeRoy, a Board-certified neurosurgeon, for the appellant, regarding
whether appellant had residuals of the accepted conditions. To resolve the conflict, it selected Dr. Karl Rosenfeld, a
Board-certified orthopedic surgeon, for an impartial examination.
5

Docket No. 13-0304 (issued March 10, 2014).

6

In a letter dated September 4, 2015, OWCP advised counsel that it had not taken action on appellant’s schedule
award claim as her entitlement to medical and wage-loss benefits had been terminated as of June 14, 2012. On May 9,
2017 appellant again claimed a schedule award (Form CA-7).

2

He also found severe sensory loss in the L4-5 and L5-S1 nerve distributions bilaterally with
Semmes-Weinstein Monofilament Testing at a minimum 6.65 mgs. Dr. Becan administered a Pain
Disability Questionnaire (PDQ) with a score of 116, rated as severe. He noted that a July 14, 2014
electromyography and nerve conduction velocity (EMG/NCV) study of the lower extremities
demonstrated right-sided L5 radiculopathy. Dr. Becan diagnosed chronic lumbosacral sprain and
strain, multilevel lumbosacral degenerative disc disease, bulging discs at L1-2 and L2-3, large disc
bulges with spinal stenosis at L4-5 and L5-S1, and progressive bilateral L4-5 and L5-S1
radiculopathy.
Referring to the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides)7 and The Guides Newsletter, Rating Spinal
Nerve Extremity Impairment Using the Sixth Edition (July/August 2009) (The Guides Newsletter),
Dr. Becan found 13 percent permanent impairment of the right lower extremity for a class 1 II/V
motor strength deficit of the quadriceps (L4), the extensor hallucis longus (L5), and the
gastrocnemius (S1) respectively. He also found eight percent impairment for a very severe sensory
deficit in the right L4 nerve root, eight percent impairment for very severe sensory deficit of the
right L5 nerve root, and five percent impairment for very severe sensory deficit in the right S1
nerve root. Dr. Becan combined these impairments to find a total of 47 percent permanent
impairment of the right lower extremity.
With regard to the left lower extremity, Dr. Becan found 13 percent permanent impairment
of the right lower extremity for class 1 III/V motor strength deficits of the quadriceps (L4),
extensor hallucis longus (L5), and gastrocnemius (S1) respectively. He also found eight percent
impairment for a very severe sensory deficit in the left L4 nerve root, eight percent impairment for
very severe sensory deficit of the right L5 nerve root, and five percent impairment for very severe
sensory deficit in the left S1 nerve root. Dr. Becan combined these impairments to find a total of
47 percent permanent impairment of the left lower extremity.
In a report dated May 17, 2017, Dr. Michael M. Katz, a Board-certified orthopedic surgeon
acting as a district medical adviser (DMA), recommended that OWCP obtain a second opinion
regarding the appropriate percentage of any permanent impairment.
On June 12, 2017 OWCP obtained a second opinion regarding the appropriate percentage
of permanent lower extremity impairment from Dr. Robert Allen Smith, a Board-certified
orthopedic surgeon. Dr. Smith reviewed appellant’s history of injury and treatment. On
examination, he found nonphysiologic weakness and sensory loss throughout both lower
extremities. Dr. Smith noted that electrodiagnostic tests performed from June 27, 1985 through
December 3, 2008 documented steady improvement and resolution of mild bilateral lumbosacral
radiculopathy. He opined that appellant had no ratable permanent impairment of either lower
extremity as she had no objective neurologic deficits. Dr. Smith noted that he could not verify
Dr. Becan’s clinical findings and that his impairment rating was exaggerated.
By development letter dated June 22, 2017, OWCP requested that appellant submit an
updated narrative report from her attending physician regarding whether she had attained MMI,
7

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

3

with an impairment rating according to the sixth edition of the A.M.A., Guides. It afforded
appellant 30 days to submit the necessary evidence.
In response, appellant submitted a July 14, 2017 letter contending that a 2014
electrodiagnostic study was abnormal. She described severe, chronic bilateral lumbar
radiculopathy. Appellant noted that Dr. Uthaman no longer prepared narrative reports.
On July 24, 2017 OWCP found a conflict of medical opinion between Dr. Smith, for the
government, and Dr. Becan, for appellant, regarding the appropriate percentage of permanent
impairment of the lower extremities. To resolve the conflict, it selected Dr. Andrew Gelman, an
osteopathic physician Board-certified in orthopedic surgery, as an impartial medical specialist.
Dr. Gelman submitted an August 30, 2017 report in which he reviewed the medical record
and a SOAF. He noted that appellant presented wearing a lumbar brace and used a four-prong
cane for ambulation. On examination that day, Dr. Gelman observed a slow, deliberate gait,
normal heel and toe raises bilaterally, knee and ankle reflexes at five plus bilaterally, pain to light
touch on the paravertebral musculature, nonphysiologic pain with patellofemoral compression
bilaterally and left ankle dorsiflexion, and normal sensation in the L4, L5, and S1 dermatomes
bilaterally using the pin scratch method. He opined that appellant had no objective neurologic
abnormality of either lower extremity. Dr. Gelman attributed her symptoms to progressive
degenerative disc disease unrelated to the January 31, 1980 soft tissue injuries. He noted that
appellant exhibited positive Waddell’s signs and elements of symptom exaggeration.
By decision dated September 18, 2017, OWCP denied appellant’s schedule award claim,
finding that the medical evidence of record did not establish permanent impairment of either lower
extremity. It accorded the special weight of the medical evidence to Dr. Gelman, who provided a
well-rationalized report based on the medical record and SOAF.
On September 27, 2017 appellant, through counsel, requested a telephonic hearing before
an OWCP hearing representative, held March 8, 2018. During the hearing, counsel contended that
Dr. Smith and Dr. Gelman ignored the June 27, 1985 and January 2, 2002 electrodiagnostic studies
which demonstrated lumbar radiculopathy. Alternatively, he asserted that there was a conflict of
medical opinion between Dr. Gelman and Dr. Becan requiring selection of a new impartial medical
specialist. Counsel submitted additional evidence.
In a report dated November 3, 2017, Dr. Becan argued that Dr. Smith failed to understand
the importance of the electrodiagnostic studies of record and did not perform an adequate sensory
examination. He affirmed his prior impairment rating based on bilateral L4, L5, and S1
radiculopathy as demonstrated by EMG/NCV testing.
An August 9, 2017 magnetic resonance imaging (MRI) scan performed for Dr. Uthaman
demonstrated a disc bulge at L2-3 with left-sided neural foraminal narrowing, a small right-sided
disc protrusion at L3-4 with right-sided neural foraminal narrowing, progressive L4-5 lumbar

4

spondylosis with central canal stenosis, severe right and moderate left-sided neuroforaminal
narrowing, and severe bilateral neural foraminal narrowing at L5-S1.8
By decision dated May 21, 2018, an OWCP hearing representative affirmed OWCP’s
September 18, 2017 decision. She accorded Dr. Gelman’s opinion special weight as an impartial
medical examiner (IME), finding that his opinion was thorough, well-rationalized, and based upon
a SOAF and the complete medical record.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of proof to establish the
essential elements of his or her claim, including that he or she sustained an injury in the
performance of duty as alleged, and that an employment injury contributed to the permanent
impairment for which schedule award compensation is alleged.9
The schedule award provisions of FECA10 and its implementing regulations11 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides has been adopted by the implementing regulations as the appropriate standard for
evaluating schedule losses.12 It is well established that in determining the amount of a schedule
award for a member of the body that sustained an employment-related permanent impairment,
preexisting impairments of the body are to be included.13 A schedule award is not payable under
section 8107 of FECA for an impairment of the whole person.14
A schedule award is not payable for a member, function, or organ of the body not specified
in FECA or in the implementing regulations.15 As neither FECA, nor the implementing
8

An August 9, 2017 MRI scan of the cervical spine showed progressive multilevel cervical spondylosis.

9

See A.M., Docket No. 13-0964 (issued November 25, 2013) (where the employee claimed entitlement to a
schedule award for permanent impairment to the left lower extremity due to his employment-related lumbar condition,
the Board found that the medical evidence did not establish permanent impairment of the lower extremity resulting
from his spinal condition and, therefore, denied his schedule award claim).
10

5 U.S.C. § 8107

11

20 C.F.R. § 10.404

12

Id.

13

See Raymond E. Gwynn, 35 ECAB 247, 253 (1983); Federal (FECA) Procedure Manual, id. at Chapter
3.700.3(a)(3) (January 2010). This portion of OWCP’s procedures provides that the impairment rating of a given
scheduled member should include any preexisting permanent impairment of the same member or function.
14

See Gordon G. McNeill, 42 ECAB 140, 145 (1990).

15

See Tania R. Keka, 55 ECAB 354 (2004).

5

regulations, provide for the payment of a schedule award for the permanent loss of use of the back
or spine, no claimant is entitled to such an award.16 However, as FECA makes provision for the
extremities, a claimant may be entitled to a schedule award for permanent impairment of an
extremity even though the cause of the impairment originates in the spine, if the medical evidence
establishes impairment as a result of the employment injury.17
FECA provides that, if there is disagreement between an OWCP-designated physician and
the employee’s physician, OWCP shall appoint a third physician who shall make an examination.18
For a conflict to arise the opposing physicians’ viewpoints must be of virtually equal weight and
rationale.19 Where OWCP has referred the case to an IME to resolve a conflict in the medical
evidence, the opinion of such a specialist, if sufficiently well-reasoned and based upon a proper
factual background, must be given special weight.20
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
As previously noted, no schedule award is payable for injury to the spine, a claimant may
receive a schedule award for permanent impairment to the upper or lower extremities even though
the cause of the impairment originated in the spine.21
OWCP properly determined that there was conflict in the medical opinion evidence
between Dr. Becan22 and Dr. Smith, regarding appellant’s bilateral lower extremity permanent
impairment and referred appellant to Dr. Gelman for an impartial medical examination and opinion
relative to the impairment assessment, pursuant to 5 U.S.C. § 8123(a).23
The Board finds that the special weight of the medical opinion evidence rests with the wellrationalized August 30, 2017 report of Dr. Gelman, who properly determined that appellant had
16

See id. FECA itself specifically excludes the back from the definition of organ. 5 U.S.C. § 8101(19).

17

See George E. Williams, 44 ECAB 530 (1993). In 1966, amendments to FECA modified the schedule award
provision to provide for an award for permanent impairment to a member of the body covered by the schedule
regardless of whether the cause of the impairment originated in a scheduled or nonscheduled member.
18

5 U.S.C. § 8123(a); Shirley L. Steib, 46 ECAB 309, 317 (1994).

19

Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

20

T.C., Docket No. 17-1741 (issued October 9, 2018); Gary R. Sieber, 46 ECAB 215, 225 (1994).

21

Supra notes 16 and 17.

22
The Board notes that in his report dated July 29, 2014, Dr. Becan referred to an abnormal July 14, 2014
EMG/NCV study. Appellant also mentioned an abnormal 2014 EMG study in her letter dated July 14, 2017.
However, there is no July 14, 2014 EMG/NCV study report in the imaged case record as presented to the Board.
23

See supra notes 26 and 27. In a report dated July 29, 2014, Dr. Becan determined that appellant had 47 percent
impairment of each lower extremity under The Guides Newsletter. In contrast, Dr. Smith found on June 12, 2017 that
appellant had zero percent permanent impairment of each lower extremity under The Guides Newsletter.

6

no permanent impairment of either lower extremity under the standards of the sixth edition of the
A.M.A., Guides.24 In his August 30, 2017 report, Dr. Gelman reported a normal physical
examination of both lower extremities at the time of his evaluation with no objective neurologic
deficit. He attributed appellant’s symptoms to age-related degenerative disc disease and opined
that appellant had a zero percent permanent impairment of each lower extremity according to The
Guides Newsletter.
The Board further notes that Dr. Gelman provided medical rationale in support of his
opinion explaining that appellant had no motor/sensory loss of the lower extremities detectable on
examination. Dr. Gelman emphasized that she was able to heel and toe raise normally, knee and
ankle reflexes were present and symmetric bilaterally, and sensation was intact in the L4, L5, and
S1 dermatomes of the lower extremities bilaterally.
The Board thus finds that Dr. Gelman properly determined that appellant had no ratable
impairment of either lower extremity, and that his report constitutes the special weight of the
medical opinion evidence.25 As such appellant did not meet her burden of proof to establish
permanent impairment of a scheduled member or function of the body, warranting a schedule
award.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.

24

See supra note 28.

25

Id.

7

ORDER
IT IS HEREBY ORDERED THAT the May 21, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 1, 2019
Washington, DC

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

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

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

8