United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.B., Appellant
and
DEPARTMENT OF AGRICULTURE, FOREST
SERVICE, PLUMAS NATIONAL FOREST,
Placerville, CA, Employer
__________________________________________

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

Docket No. 07-1402
Issued: December 6, 2007

Case Submitted on the Record

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

JURISDICTION
On May 1, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated April 12, 2007 denying modification January 17,
2007 decision denying his occupational disease claim. 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 his burden of proof in establishing that he sustained an
injury in the performance of duty.
FACTUAL HISTORY
On October 9, 2006 appellant, a 25-year-old forestry technician, filed an occupational
disease claim alleging that he was exposed to an airborne fungus at work. He first became aware
of his exposure on September 16, 2006 and indicated that the illness could manifest itself years
after exposure.

In a November 16, 2006 statement, appellant noted that he worked the “day fire” from
September 16 to 26, 2006 and was advised to get tested for the disease valley fever. He stated
that his test was negative for the disease and he received no medical treatment at that time.
Copies of an October 3, 2006 occupational exposure report from the employing establishment,
an October 3, 2006 supervisor’s report of injury/illness and an October 26, 2006 incident
summary report confirmed that appellant was exposed to valley fever from September 16
to 26, 2006.
By letter dated December 6, 2006, the Office advised appellant of the factual and medical
evidence needed to establish his claim and requested that he submit a physician’s reasoned
opinion containing a diagnosis and addressing the relationship of his claimed condition and
specific employment factors. No additional evidence was received.
In a decision dated January 17, 2007, the Office denied appellant’s claim on the grounds
that he failed to establish fact of injury.
In a letter dated February 6, 2007, appellant requested reconsideration. In an October 3,
2006 report, Dr. Ross E. Morgan, a Board-certified family practitioner, noted that appellant had
significant dust inhalation and exposure at the Los Padres fire at Los Padres National Forest from
September 16 to 26, 2006 and was instructed by personnel there to be tested for valley fever.
Dr. Morgan indicated that appellant’s examination was normal and that a chest x-ray was
negative. He found that appellant’s exposure to coccidioides showed no evidence of an active
infection and stated that there were no restrictions to appellant’s work at this time. In the event
of a positive test indicating new acute exposure, treatment with antibodies was recommended.
Copies of an October 3, 2006 chest x-ray, an October 3, 2006 laboratory out-patient requisition
and the final report of the testing results which showed a negative result for the presence of
coccidioides “Abs, IgG/IgM” and “EIA” were also submitted.
In an April 12, 2007 decision, the Office denied modification of its January 17, 2007
decision. The Office found that appellant established the employment incident of being exposed
to a soil fungus. However, he did not sustain an injury in the performance of duty as a medical
condition had not been diagnosed as a result of the employment exposure.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 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 the Act; that the claim was
filed within the applicable time limitation; that an injury was sustained while in the performance
of duty as alleged; and that any disability and/or specific condition for which compensation is
claimed are causally related to the employment injury.2 These are the essential elements of each

1

5 U.S.C. §§ 8101-8193.

2

Caroline Thomas, 51 ECAB 451 (2000); Elaine Pendleton, 40 ECAB 1143 (1989).

2

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;4 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;5 and (3) medical evidence establishing the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.6
Generally, causal relationship may be established only by rationalized medical opinion
evidence. Rationalized medical opinion evidence is medical evidence that 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.7 The opinion of the physician must
be based on a complete factual and medical background of the claimant,8 must be one of
reasonable medical certainty9 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.10
ANALYSIS
The Board finds that the work incident occurred during the period September 16 to 26,
2006, which consisted of appellant being exposed to dust inhalation from fungus or coccidioides
from the soil of the Los Padres National Forest.11
Appellant submitted a report from Dr. Morgan, dated October 3, 2006, who noted that
appellant had significant dust inhalation and exposure during the Los Padres fire from
September 16 to 26, 2006 and was instructed by personnel there to be tested for valley fever.
3

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

4

Solomon Polen, 51 ECAB 341 (2000).

5

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

6

Ernest St. Pierre, 51 ECAB 623 (2000).

7

Conard Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

8

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

9

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

10

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

11

An employee’s statement alleging that an incident or exposure occurred at a given time and in a given manner
is of great probative value and will stand unless refuted by strong or persuasive evidence. See Edward W. Malaniak,
51 ECAB 451 (2000).

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Dr. Morgan indicated that, while the testing revealed appellant was exposed to coccidioides,
there was no evidence of an active infection as the physical examination and testing was normal.
His recommended treatment only in the event of a positive coccidioides IgM test which was not
present at the time appellant was examined.
Appellant therefore has not established that he contracted any disease resulting from his
exposure to coccidioides. His claim was for exposure to an airborne fungus, but all the tests he
underwent for a resulting disease arising from such exposure were negative. None of the
medical evidence of record establishes that appellant contracted a disease from his exposure to
coccidioides or that he sustained any personal injury at work.
To the extent that appellant may be seeking reimbursement for the medical testing which
“was recommended by an agency person … to get it checked,” the Board notes that Office
regulations12 recognize that “[e]mployers may be required under other statutes or regulations to
provide their employees with medical testing” in situations of workplace hazard exposures such
as here.13
CONCLUSION
Appellant has not met his burden of proof in establishing that he developed an
occupational disease in the performance of duty.

12

20 C.F.R. §10.303(b).

13

On appeal, appellant expresses his concern that, should this workplace exposure cause injury in the future, he
“would like to be protected.” Since the employer has received notice of exposure and the Office has accepted
exposure, appellant may, at any time in the future, present medical evidence of any injurious effects which may
develop along with a claim for compensation for disability or medical treatment from the accepted exposure.

4

ORDER
IT IS HEREBY ORDERED THAT the April 12 and January 17, 2007 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: December 6, 2007
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF VETERANS AFFAIRS,
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MUSKOGEE VETERANS MEDICAL CENTER, )
Muskogee, OK, Employer
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__________________________________________ )
Y.C., Appellant

Appearances:
Aaron B. Aumiller, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1138
Issued: January 20, 2022

Case Submitted on the Record

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

JURISDICTION
On July 16, 2021 appellant, through counsel, filed a timely appeal from a February 2, 2021
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180
days has elapsed from the last merit decision dated August 5, 2019 to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On February 8, 2019 appellant, then a 44-year-old nurse, filed an occupational disease
claim (Form CA-2) alleging that she experienced an asthma attack as a result of factors of her
employment. She recounted that she was sitting at her desk when housekeeping began cleaning
the vents next to her and over her head. Appellant indicated that she first became aware of her
illness and realized its relationship to her federal employment on January 18, 2019.
In a February 15, 2019 development letter, OWCP informed appellant of the deficiencies
of her claim. It advised her of the type of factual and medical evidence required and provided a
questionnaire for her completion. OWCP afforded appellant 30 days to submit the requested
evidence.
Appellant submitted a note dated February 25, 2019 from an osteopathic physician with an
illegible signature who requested that the ventilation and walls be inspected for mold and asbestos
due to appellant’s health.
By decision dated March 18, 2019, OWCP denied appellant’s claim, finding that the
factual component of fact of injury had not been established. It concluded, therefore, that the
requirements had not been met to establish an injury as defined by FECA.
On April 15, 2019 appellant requested review of the written record by a representative of
OWCP’s Branch of Hearings and Review.
Appellant submitted diagnostic testing reports. A January 18, 2019 chest x-ray
examination report showed no acute cardiopulmonary process. A February 20, 2019 computerized
tomography scan of the chest demonstrated no large central pulmonary embolus and normal
pulmonary artery and thoracic aorta. A February 25, 2019 magnetic resonance imaging (MRI)
scan of the brain revealed high-grade, near occlusive stenosis of the transverse sinuses at the lateral
margins bilaterally.
OWCP also received additional medical evidence. In a January 18, 2019 occupational
health progress note, Joyce E. Dorsey, a physician assistant, indicated that appellant was seen for
complaints of “having a tickle in [appellant’s] throat.” She recounted that appellant had informed
her that the overhead vents were cleaned in her area. On physical examination Ms. Dorsey
reported mild wheezing on the left upper lobe.
A February 26, 2019 emergency room discharge report noted that appellant was admitted
on February 21, 2019 and discharged on February 26, 2019 with diagnoses of fever, pseudo tumor,
bacterial sepsis, chest pain, elevated bilirubin, obesity, and acute hypokalemia.
In a March 4, 2019 progress report, Dr. Larissa F. Giuliano, a family medicine specialist,
indicated that appellant was evaluated for follow up of acute exacerbation of asthma and breast
2

nodule. She provided examination findings and assessed tension-type headache, neck pain,
nocturia, overweight, and lump in right breast.
In a March 11, 2019 report and letter, Dr. Jeanne M. Edwards, a neurologist, recounted that
appellant was treated for complaints of ringing in the ears, headaches, light sensitivity, double
vision, blurred vision, and neck pain and stiffness. Neurological examination revealed 2+ deep
tendon reflexes and intact sensation. Dr. Edwards advised that appellant had a medical condition
that prevented her from working until March 21, 2019.
In a March 13, 2019 progress report, Dr. Giuliano noted appellant’s complaints of
persistent cough, tightness in her chest, and headaches. Upon physical examination of appellant’s
lungs, she observed normal breath sounds and good air movement. Dr. Giuliano assessed nausea,
headache, and cough.
On April 11, 2019 appellant submitted her completed OWCP development questionnaire.
She indicated that she was exposed to and inhaled dust when workers were cleaning out vents over
her head. Appellant recounted that her chest became tight and she could not breathe. She noted
that she eventually sought treatment at the hospital.
By decision dated August 5, 2019, OWCP’s hearing representative modified the March 18,
2019 decision to find that appellant had established that she was exposed to dust on January 18,
2019, but denied the claim finding that the medical evidence of record was insufficient to establish
a medical diagnosis causally related to the accepted employment factors.
On November 20, 2020 appellant, through counsel, requested reconsideration. Counsel
noted that he was submitting a medical report, which provided a comprehensive discussion
regarding causal relationship. He acknowledged that the reconsideration request was submitted
more than one year after the date of OWCP’s decision and explained that, due to the COVID-19
pandemic, appellant was unable to secure a report until after the one year deadline.
In an August 20, 2020 report, Dr. Karin Pacheco, a Board-certified internal, occupational,
and allergy and immunology physician, noted that appellant began working for the employing
establishment in 2009. She recounted that, in January 2019, a maintenance worker dusted the
ventilation outlets located near appellant’s desk and appellant developed a persistent cough and
was unable to catch her breath. Dr. Pacheco indicated that appellant’s symptoms continued to
persist and she later developed fever, chills, cough, and myalgias. She reported that, in
February 2019, appellant developed an onset of severe head pressure with fever and was diagnosed
with idiopathic hypertension/pseudo tumor cerebri. Dr. Pacheco discussed the medical treatment
that appellant received. She indicated that appellant’s symptoms returned when appellant returned
to the old portion of the employing establishment’s hospital and improved when appellant was
away from the hospital. Dr. Pacheco reported that, whenever appellant went to the employee
health clinic, she developed headache and shortness of breath. Upon physical examination of
appellant’s respiratory system, she noted normal chest symmetry and expansion with normal
respiratory effort. Dr. Pacheco assessed overweight, pseudo tumor cerebri, and shortness of breath
with cough and myalgias consistent with a history of hypersensitivity pneumonitis. She indicated
that the symptoms were associated with occupancy of the old portion of the hospital with a history
of water damage and probable mold contamination.

3

By decision dated February 2, 2021, OWCP denied appellant’s reconsideration request,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.3 To be entitled to a merit review of an OWCP decision, a request for reconsideration
must be received by OWCP within one year of the date of OWCP’s decision for which review is
sought.4 Timeliness is determined by the document receipt date of the request for reconsideration
as is indicated by the “received date” in the Integrated Federal Employees’ Compensation System
(iFECS).5 The Board has found that the imposition of this one-year filing limitation does not
constitute an abuse of discretion.6
OWCP may not deny a request for reconsideration solely because it was untimely filed.
When a request for reconsideration is untimely filed, it must nevertheless undertake a limited
review to determine whether the request demonstrates clear evidence that OWCP’s most recent
merit decision was in error.7 OWCP’s procedures provide that it will reopen a claimant’s case for
merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the
claimant’s request demonstrates clear evidence of error on the part of OWCP. 8 In this regard,
OWCP will limit its focus to a review of how the newly submitted evidence bears on the prior
evidence of record.9
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue decided by OWCP. The evidence must be positive, precise, and explicit, and it must manif est
on its face that OWCP committed an error. 10 It is not enough merely to show that the evidence
could be construed so as to produce a contrary conclusion. 11 This entails a limited review by
OWCP of how the evidence submitted with the reconsideration request bears on the evidence
3

5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
4

20 C.F.R. § 10.607(a).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (September 2020).

6

G.G., Docket No. 18-1074 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
7

See 20 C.F.R. § 10.607(b); R.S., Docket No. 19-0180 (issued December 5, 2019); Charles J. Prudencio, 41 ECAB
499, 501-02 (1990).
8

L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010); see also
id. at § 10.607; supra note 5 at Chapter 2.1602.5(a) (September 2020).
9

J.M., Docket No. 19-1842 (issued April 23, 2020); J.W., Docket No. 18-0703 (issued November 14, 2018);
Robert G. Burns, 57 ECAB 657 (2006).
10

20 C.F.R. § 10.607(b); B.W., Docket No. 19-0626 (issued March 4, 2020); Fidel E. Perez, 48 ECAB 663,
665 (1997).
11

See G.B., Docket No. 19-1762 (issued March 10, 2020); Leona N. Travis, 43 ECAB 227, 240 (1991).

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previously of record and whether the new evidence demonstrates clear evidence of error on the
part of OWCP. 12 To demonstrate clear evidence of error, the evidence must not only be of
sufficient probative value to create a conflict in medical opinion or establish a clear procedural
error, but must be of sufficient probative value to shift the weight of the evidence in favor of the
claimant and raise a substantial question as to the correctness of OWCP’s decision. The Board
makes an independent determination of whether a claimant has demonstrated clear evidence of
error on the part of OWCP such that it abused its discretion in denying merit review in the face of
such evidence.13
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed.
OWCP received appellant’s request for reconsideration on November 20, 2020 more than
one year after the last merit decision dated August 5, 2019.14 The Board notes, however, that
OWCP’s regulations unequivocally require that a request for reconsideration must be received by
OWCP within one year of the date of OWCP’s decision for which a review is sought in order to
be entitled to a merit review. 15 Since the reconsideration request was untimely, appellant has the
burden of proof to demonstrate clear evidence of error on the part of OWCP. 16
The Board further finds that appellant has not demonstrated clear evidence of error on the
part of OWCP.
In support of her untimely reconsideration request, appellant submitted a new report from
Dr. Pacheco dated August 20, 2020. Although Dr. Pacheco addressed the issue of causal
relationship, the Board finds that this report does not demonstrate clear evidence of error because
it does not show that OWCP committed an error in finding that appellant failed to establish causal
relationship between her medical condition and the accepted work exposure. As such, it does not
raise a substantial question as to the correctness of OWCP’s August 5, 2019 merit decision.17
Evidence such as a detailed, well-rationalized medical report that, if submitted before the denial
was issued, would have created a conflict in medical opinion requiring further development, is not
clear evidence of error. 18

12

B.W., supra note 10.

13

U.C., Docket No. 19-1753 (issued June 10, 2020); Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma
Matthews, 44 ECAB 765, 770 (1993).
14

Supra note 5.

15

Supra note 4.

16

Supra note 8.

17

See D.R., Docket No. 21-0061 (issued May 24, 2021).

18

W.R., Docket No. 20-1197 (issued February 3, 2021); A.R., Docket No. 15-1598 (issued December 7, 2015).

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The Board finds, therefore, that appellant has not raised an argument or submitted any
evidence that manifests on its face that OWCP committed an error in denying her occupational
disease claim. Consequently, OWCP properly found that her November 20, 2020 request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error. 19
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the February 2, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 20, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

19

O.K., Docket No. 21-708 (issued September 29, 2021); S.C., Docket No. 19-1424 (issued September 15, 2020).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.K., Appellant
and
U.S. POSTAL SERVICE, TIMES PLAZA
STATION, Brooklyn, NY, Employer
__________________________________________

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Appearances:
Greg Dixon, for the appellant
Office of Solicitor, for the Director

Docket No. 09-1385
Issued: March 9, 2010

Case Submitted on the Record

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

JURISDICTION
On November 20, 2008 appellant filed an appeal of the October 8, 2008 and April 14,
2009 decisions of the Office of Workers’ Compensation Programs that terminated his wage-loss
compensation on the grounds that he refused an offer of suitable work. 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 the Office properly terminated appellant’s compensation benefits
effective October 11, 2008 pursuant to 5 U.S.C. § 8106.
On appeal, appellant’s representative asserts that the opinion of the impartial specialist is
insufficient and that the offered modified letter carrier position was not suitable.
FACTUAL HISTORY
On May 6, 1999 appellant, then a 46-year-old letter carrier, sustained an employmentrelated lumbar strain when he injured his back pulling buckets of mail. He stopped work that
day and returned to modified duty on October 14, 1999. Appellant missed intermittent periods

thereafter and the claim was expanded to include lumbar radiculopathy. On September 18, 2004
he sustained a recurrence of disability that was accepted by the Office. Appellant was placed on
the periodic rolls.
A lower extremity electromyographic (EMG) and nerve conduction study (NCS) on
January 21, 2005, conducted by Dr. Leonard A. Langman, a neurologist, was interpreted as
abnormal with evidence of bilateral L4-5 and left L5-S1 lumbosacral radiculopathies. A
magnetic resonance imaging (MRI) scan on January 25, 2005 demonstrated a small central disc
herniation at L4-5 with moderate foraminal encroachment and a small disc osteophyte complex
at L3-4. On March 16, 2005 Dr. Langman provided examination findings and diagnosed lumbar
radiculopathy. He advised that appellant was totally disabled. Dr. Leo E. Batash, a physiatrist,
provided reports in which he advised that appellant had been under his care since May 27, 1999.
He diagnosed lumbosacral derangement and noted that appellant had severe restrictions to his
physical activity.
On February 1, 2007 appellant was referred to Dr. Robert Israel, a Board-certified
orthopedic surgeon, for a second opinion evaluation. In a February 27, 2007 report, Dr. Israel
reviewed the history of injury, medical treatment and appellant’s complaints of symptoms in his
back and left hip. Examination of the lumbar spine demonstrated no spasms or tenderness with
straight leg raising bilaterally negative, both sitting and supine. There was no lower extremity
atrophy or sensory deficit, and strength was 5/5. Left hip range of motion was normal with no
sensory loss. Dr. Israel diagnosed resolved sprain of the lumbar spine. He advised that there
were no objective findings of appellant’s accepted back conditions and no residuals, that
appellant could return to his regular letter carrier duties without restrictions and that he needed
no further orthopedic care. Dr. Langman continued to advise that appellant was totally disabled.
The Office determined that a conflict in medical opinion arose between Dr. Langman and
Dr. Israel regarding the residuals of appellant’s back condition and whether he continued to be
disabled due to the work injury. On July 10, 2007 it referred appellant to Dr. Stanley Soren, a
Board-certified orthopedic surgeon, for an impartial evaluation. In a July 23, 2007 report,
Dr. Soren reviewed the history of injury and appellant’s complaint of low back pain radiating to
the right knee, worse in damp weather, with intermittent numbness of the right big toe. He
reviewed the statement of accepted facts and medical records including the EMG and MRI scan
findings. On physical examination, Dr. Soren noted trace right-sided paralumbar spasm and mild
tenderness in the mid and right paralumbar area. Lumbar spine range of motion was decreased,
and straight leg raising was negative bilaterally in the seated position, equivocal in the supine.
Sensation was decreased in the first web space dorsum of the right foot. Dr. Soren diagnosed
acute lumbosacral sprain, lumbar/lumbosacral radiculopathy with NCS and EMG evidence, L4-5
central disc herniation and L5 lumbar radiculopathy. He advised that the lumbar sprain had
resolved but that appellant had residuals of lumbosacral radiculopathy and that up to three
lumbar epidural injections could be considered. Dr. Soren concluded that, even without the
epidurals, appellant could perform light duty for 8 hours a day with a restriction of 4 hours
sitting, 4 hours standing, no operating a motor vehicle at work, and a 30-pound lifting restriction
with 15-minute breaks twice daily.

2

On September 12, 2007 the employing establishment offered appellant modified duty that
conformed with Dr. Soren’s restrictions.1 Appellant refused the offered position and submitted
an October 18, 2007 report in which Dr. Langman advised that appellant could not perform the
duties of the offered position. He stated that appellant elected not to have epidural injections and
could not lift more than five pounds.
By letter dated September 20, 2007, the Office advised appellant that the modified job
offer was suitable. He was notified that, if he failed to report to work or failed to demonstrate
that the failure was justified, his right to compensation for wage loss or a schedule award would
be terminated pursuant to section 8106(c)(2).2 He was given 30 days to respond. In treatment
notes dated August 9 to November 29, 2007, Dr. Batash noted appellant’s complaint of constant
pain and provided findings on examination. In reports dated September 6 to December 4, 2007,
Dr. Langman advised that appellant was seen for neurological examination for chronic low back
pain.
On January 25, 2008 the Office advised appellant that his reasons for refusing to accept
the offered position were insufficient and he had an additional 15 days to accept the job offer.
Appellant submitted a September 6, 2007 EMG study that was interpreted by Dr. Langman as
abnormal with evidence of chronic right L5-S1 lumbosacral radiculopathy. In a February 1,
2008 report, Dr. Soren noted that he had reviewed the modified position and advised that, while
appellant could return to part-time light-duty work, he could not work eight hours per day and
could not sit or walk four hours per day, and could not push, pull or lift more than five pounds.
On March 18, 2008 he advised that appellant was totally disabled. On June 25, 2008 the
employing establishment advised that the modified position was still available. On June 30,
2008 Dr. Soren noted his review of the modified position. Based on his findings on July 23,
2007, appellant was capable of performing the full-time light-duty job.
In an August 18, 2008 letter, the Office again advised appellant that the position offered
was suitable and available. Appellant was notified of the penalty provisions of section 8106 of
the Federal Employees’ Compensation Act and given 30 days to respond. He rejected the
offered position on September 9, 2008, stating that he could not lift more than 10 pounds. In
reports dated June 17 to August 12, 2008, Dr. Batash advised that appellant was seen for
examination and treatment. In reports dated June 24 and August 26, 2008, Dr. Langman noted
that appellant was seen. On September 19, 2008 the Office advised appellant that the reasons
given for refusing to accept the offered position were insufficient and he was given an additional
15 days to accept. Appellant disagreed that the offered position was suitable, stating that he was
in severe pain. He submitted a June 24, 2008 EMG study interpreted by Dr. Langman as
abnormal with evidence of chronic right L5-S1 lumbosacral radiculopathy and coexistent left
tibialis neuropathy. In a September 30, 2008 report, Dr. Langman reiterated his conclusion that
appellant could not perform the modified assignment.
1

The modified assignment was a full-time carrier/technician position with duties of casing mail and tie-out no
more than four hours daily; street delivery no more than four hours daily; with physical requirements of sitting and
walking four hours each; twisting up to two hours; pulling and pushing 30 pounds for four hours; and lifting no
more than 30 pounds with two 15-minute breaks per day and no operating a motor vehicle at work.
2

5 U.S.C. § 8106(c)(2).

3

By decision dated October 8, 2008, the Office terminated appellant’s wage-loss
compensation on the grounds that he refused an offer of suitable work.
On October 31, 2008 appellant requested a hearing. He submitted evidence previously of
record and reports dated September 30 to December 2, 2008 in which Dr. Batash advised that
appellant was seen for examination and treatment. In reports dated September 30 to
December 18, 2008, Dr. Langman advised that appellant was seen for neurological evaluation.
In a work capacity evaluation dated October 7, 2008, Dr. Batash diagnosed lumbosacral sprain,
radiculopathy with radiation and numbness, and L4-5 disc herniation. He advised that appellant
could not perform his usual job and provided restrictions that appellant could sit, walk, stand,
reach, bend, squat and climb for one hour daily, operate a motor vehicle for two hours daily, and
push, pull and lift five pounds with no kneeling. Dr. Batash noted that appellant was using a
strong pain killer with side effects of drowsiness and dizziness.
At the hearing held on February 25, 2009, appellant contended that he could not perform
the carrier duties that were included in the modified job offer. Dr. Langman testified that
appellant had neurological findings consistent with a diagnosis of disc herniation and
radiculopathy and that he could not perform the modified-duty position. Appellant addressed his
postal route prior to his May 6, 1999 injury. In reports dated January 6 and February 23, 2009,
Dr. Langman advised that appellant had been seen for follow-up. The January 27 and
February 12, 2009 reports of Dr. Batash advised that appellant was seen for examination and
treatment. In a March 13, 2009 letter, the employing establishment noted that the modified
position offered appellant was within the physical restrictions provided by Dr. Soren.
By decision dated April 14, 2009, an Office hearing representative affirmed the
October 8, 2008 decision.
LEGAL PRECEDENT
Section 8106(c) of the Act provides in pertinent part, “A partially disabled employee who
(2) refuses or neglects to work after suitable work is offered ... is not entitled to compensation.”3
It is the Office’s burden to terminate compensation under section 8106(c) for refusing to accept
suitable work or neglecting to perform suitable work.4 The implementing regulations provide
that an employee who refuses or neglects to work after suitable work has been offered or secured
for the employee has the burden of showing that such refusal or failure to work was reasonable
or justified and shall be provided with the opportunity to make such a showing before
entitlement to compensation is terminated.5 To support termination, the Office must show that
the work offered was suitable and that appellant was informed of the consequences of his refusal
to accept such employment.6 In determining what constitutes “suitable work” for a particular
3

Id. at § 8106(c).

4

Joyce M. Doll, 53 ECAB 790 (2002).

5

20 C.F.R. § 10.517(a).

6

Linda Hilton, 52 ECAB 476 (2001); Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB
818 (1992).

4

disabled employee, the Office considers the employee’s current physical limitations, whether the
work is available within the employee’s demonstrated commuting area, the employee’s
qualifications to perform such work and other relevant factors.7 Office procedures state that
acceptable reasons for refusing an offered position include withdrawal of the offer or medical
evidence of inability to do the work or travel to the job.8 Section 8106(c) will be narrowly
construed as it serves as a penalty provision which may bar an employee’s entitlement to
compensation based on a refusal to accept a suitable offer of employment.9
The issue of whether an employee has the physical ability to perform a modified position
offered by the employing establishment is primarily a medical question that must be resolved by
medical evidence.10 It is well established that the Office must consider preexisting and
subsequently acquired conditions in the evaluation of suitability of an offered position.11
Section 8123(a) of the Act provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.12 When the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.13
ANALYSIS
The Office terminated appellant’s monetary compensation effective October 11, 2008 on
the grounds that he refused a June 25, 2008 offer of suitable work. It found that the weight of the
medical evidence established that the position was within appellant’s physical capabilities, based
on the referee opinion of Dr. Soren. The Office found that a conflict in medical opinion arose
between Dr. Langman, an attending neurologist, and Dr. Israel, a Board-certified orthopedic
surgeon, who performed a second opinion evaluation for the Office.
In a July 10, 2007 report, Dr. Soren provided examination findings and diagnosed acute
lumbosacral sprain, lumbar/lumbosacral radiculopathy, L4-5 central disc herniation and L5
lumbar radiculopathy. He advised that the lumbar sprain had resolved but that appellant had
residuals of lumbosacral radiculopathy and concluded that appellant could perform light duty for
8 hours daily with a restriction of 4 hours sitting, 4 hours standing, no operating a motor vehicle
at work, and a 30-pound lifting restriction with 15-minute breaks twice daily. In job offers dated
7

20 C.F.R. § 10.500(b); see Ozine J. Hagan, 55 ECAB 681 (2004).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.5.a(1) (July 1997); see Lorraine C. Hall, 51 ECAB 477 (2000).
9

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

10

Gayle Harris, 52 ECAB 319 (2001).

11

Richard P. Cortes, 56 ECAB 200 (2004).

12

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

13

Manuel Gill, 52 ECAB 282 (2001).

5

September 12, 2007 and June 25, 2008, the employing establishment offered appellant a
modified letter carrier position that comported with the restrictions provided by Dr. Soren14 and
in a June 30, 2008 report, Dr. Soren advised that he had reviewed the job offer and appellant was
capable of performing the position full time. The Board therefore finds that, based on
Dr. Soren’s July 10, 2007 and June 30, 2008 reports, the position offered appellant on June 25,
2008 was suitable work within his physical capabilities.
Following Dr. Soren’s July 10, 2007 evaluation, appellant submitted additional medical
reports from Drs. Langman and Batash. The Board, however, finds these reports are not
sufficient to overcome the special weight afforded Dr. Soren. Dr. Langman advised that
appellant was seen for neurological evaluation and reiterated that appellant could not perform the
duties of the offered position. These subsequent reports of Dr. Langman were lacking in
rationale on the issue of appellant’s incapacity for the selected position. The Board finds
Dr. Langman’s reports insufficient to overcome the special weight accorded Dr. Soren as an
impartial medical specialist.
Dr. Batash’s reports are also insufficient to overcome Dr. Soren’s evaluation. In his
reports, he noted appellant’s complaint of constant pain, provided examination findings and
advised that appellant had been seen for examination and treatment. Rationalized medical
evidence is medical evidence which includes a physician’s rationalized medical 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.15
Dr. Batash did not provide a rationalized explanation as to why appellant could not perform the
modified position or explain why the position offered was not suitable. The Board finds his
reports do not contain sufficient rationale and are of diminished probative value.16
Dr. Soren reviewed appellant’s complete medical history and provided a wellrationalized evaluation in which he clearly advised that appellant could return to modified duty.
His opinion is entitled to the special weight accorded an impartial examiner and therefore
constitutes the weight of the medical evidence.17
In order to properly terminate appellant’s compensation under section 8106 of the Act,
the Office must provide appellant notice of its finding that an offered position is suitable and
give appellant an opportunity to accept or provide reasons for declining the position.18 The
record in this case indicates that the Office properly followed the procedural requirements. By
14

Supra note 1.

15

Sedi L. Graham, 57 ECAB 494 (2006).

16

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

17

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

18

See Maggie L. Moore, supra note 6.

6

letter dated August 18, 2008, the Office advised appellant that the offered position was suitable.
He was notified that, if he failed to report to work or failed to demonstrate that the failure was
justified, his right to monetary compensation would be terminated, and he was allotted 30 days to
either accept or provide reasons for refusing the position. On September 19, 2008 the Office
advised appellant that the reasons given for not accepting the job offer were unacceptable, and he
was given an additional 15 days in which to respond. There is, therefore, no evidence of a
procedural defect in this case as the Office provided appellant with proper notice. He was
offered a suitable position by the employing establishment and such offer was refused. Under
section 8106 of the Act, appellant’s monetary compensation was properly terminated effective
October 11, 2008 on the grounds that he refused an offer of suitable work.19
After the Office established that the offered work is suitable, the burden shifted to
appellant to show that his refusal of suitable work was reasonable or justified.20 Appellant
submitted additional reports from Dr. Batash who noted examination findings but provided no
opinion regarding the offered position. Dr. Batash also provided an October 7, 2008 work
capacity evaluation in which he advised that appellant could not perform his usual job and
provided strict restrictions that appellant could only sit, walk, stand, reach, bend, squat and climb
for one hour daily and that appellant was using strong medications. The Board, however, finds
this report insufficient to establish the offered position unsuitable because Dr. Batash did not
provide any findings or rationale to explain why appellant could not perform the duties of the
modified position.21
Dr. Langman testified at the hearing that appellant had neurological findings consistent
with a diagnosis of disc herniation and radiculopathy and that he could not perform the modifiedduty position. The Board notes that Dr. Langman reiterated his opinion that had previously been
considered and found to conflict with that of Dr. Israel.
An employee who refuses or neglects to work after suitable work has been offered has
the burden of showing that such refusal to work was justified.22 The Board finds that the Office
properly terminated appellant’s monetary compensation due to his refusal of suitable work and
that he did not, thereafter, establish that his refusal of suitable work was justified.
CONCLUSION
The Board finds that the Office properly terminated appellant’s wage-loss compensation
pursuant to 5 U.S.C. § 8106(a).

19

Joyce M. Doll, supra note 4.

20

M.S., 58 ECAB 328 (2007).

21

S.S., supra note 16.

22

5 U.S.C. § 8106(c)(2).

7

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 14, 2009 and October 8, 2008 be affirmed.
Issued: March 9, 2010
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Prospect Park, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0743
Issued: April 10, 2019

Case Submitted on the Record

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

JURISDICTION
On February 23, 2018 appellant, through counsel, filed a timely appeal from an October 10,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish more than five
percent permanent impairment of the left upper extremity, for which she previously received a
schedule award.
FACTUAL HISTORY
On January 24, 1987 appellant, then a 33-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that day she slipped on ice and injured her left elbow and arm
while in the performance of duty. OWCP assigned the claim OWCP File No. xxxxxx312. It
initially accepted the claim for a left elbow contusion and injury to the left ulnar nerve.3
Effective September 12, 1992, appellant was reemployed as a modified clerk carrier.4 She
continued in the modified position until she retired effective January 31, 2013.5
On September 3, 2013 appellant filed a claim for a schedule award (Form CA-7). In
support of her schedule award claim, she submitted a May 23, 2013 report from Dr. Nicholas
Diamond, an attending Board-certified physical medicine and rehabilitation physician. Under the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides),6 Dr. Diamond calculated 22 percent left upper extremity permanent
impairment. The rating was based on the diagnoses of elbow fracture (3 percent); left ulnar nerve
entrapment (6 percent), brachial plexopathy (13 percent), and left median nerve entrapment (3
percent). Dr. Diamond indicated that appellant had reached maximum medical improvement
(MMI) on May 23, 2013.
OWCP routed Dr. Diamond’s report, a statement of accepted facts (SOAF), and the case
file to Dr. Arnold Berman, a Board-certified orthopedic surgeon serving as an OWCP District
Medical Adviser (DMA), for review as to whether appellant sustained permanent impairment as
a result of her accepted conditions.
In an October 21, 2013 report, Dr. Berman recommended a second opinion evaluation as
appellant’s medical records did not document a left radial head fracture and the left median nerve
entrapment was not an accepted condition. He also found appellant’s results from an
electromyogram (EMG) questionable, with no clinical evidence of thoracic outlet syndrome,
cervical strain, brachial neuritis, or traumatic arthropathy of the forearm and no evidence of
thoracic root lesion or pain in the thoracic area. Based upon the accepted left ulnar nerve injury,
3

In a separate claim, OWCP File No. xxxxxx820, OWCP accepted a May 17, 1989 injury for an acute
cervical/dorsal strain which occurred when appellant caught herself with her left arm as her right ankle twisted when
descending stairs. It combined the two claims with OWCP File No. xxxxxx312 serving as the master file.
4

By decision dated January 20, 1993, OWCP found that the modified clerk carrier position fairly and reasonably
represented appellant’s wage-earning capacity. It denied modification of its loss of wage-earning capacity
determination in decisions dated August 19, 2010 and April 12, 2011.
5

Appellant elected Office of Personnel Management (OPM) retirement benefits as of February 1, 2013.

6

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

2

Dr. Berman calculated five percent permanent impairment to the left upper extremity based on
Table 15-23 of the A.M.A., Guides. He indicated that MMI had been reached as of May 23, 2013.
By decision dated October 30, 2013, OWCP granted appellant a schedule award for five
percent permanent impairment of the left upper extremity. The award ran for 15.6 weeks for the
period May 23 to September 9, 2013. The decision was based on Dr. Berman’s October 21, 2013
report.
On November 4, 2013 counsel requested a hearing before an OWCP hearing
representative. A copy of a corrected version of Dr. Diamond’s May 23, 2013 report, dated
March 25, 2014, was submitted. A video hearing was held on April 14, 2014. By decision dated
July 7, 2014, an OWCP hearing representative set aside OWCP’s October 30, 2013 decision and
remanded the case to OWCP for a second opinion evaluation regarding the extent of appellant’s
permanent impairment causally related to the accepted conditions in the claim.
OWCP issued an updated December 3, 2015 SOAF and referred appellant to Dr. Willie
Thompson, a Board-certified orthopedic surgeon, for a second opinion evaluation. The
December 3, 2015 SOAF indicated that appellant’s January 24, 1987 claim was accepted for a left
elbow contusion and left ulnar nerve injury, as well as left brachial neuritis/radiculitis, left forearm
traumatic arthropathy, thoracic/lumbosacral neuritis/radiculitis, thoracic root lesion, and right
thoracic spine pain. It also noted that appellant’s claim under OWCP File No. xxxxxx820 was
accepted for an acute cervical/dorsal strain with radiculopathy.
In a January 15, 2016 report, Dr. Thompson opined that, while multiple diagnoses had been
listed in the SOAF, the only diagnosis which could be substantiated was an entrapment of the left
ulnar nerve at the left elbow consistent with cubital tunnel syndrome. He opined that appellant
had class 1, grade C or 5 percent permanent impairment to the left upper extremity. Dr. Thompson
referenced Table 15-21, Peripheral Nerve Impairments, on page 443 of the A.M.A., Guides.
In a February 15, 2016 report, Dr. Michael M. Katz, a Board-certified orthopedic surgeon
serving as a DMA, found that Dr. Thompson’s report lacked sufficient detail to be probative and
that the preferred method for calculating upper extremity peripheral nerve entrapment syndromes
(or cubital tunnel syndrome in this case) was under Table 15-23, not Table 15-21 as referenced by
Dr. Thompson. He noted that appellant’s prior positive electrodiagnostic test results for ulnar
nerve dysfunction qualified her for a rating under Table 15-23.
OWCP referred appellant to Dr. David R. Pashman, a Board-certified orthopedic surgeon,
for another second opinion impairment evaluation. In a March 21, 2016 report, Dr. Pashman noted
appellant’s history of injury and his review of her medical records including diagnostic testing.
He provided examination findings, noting that her only ongoing clinical diagnosis was that of a
possible ulnar neuropathy, as evidenced by a positive Tinel’s sign at the elbow and positive
Waddell’s signs. Under Table 15-23, Dr. Pashman calculated five percent permanent impairment
of the left upper extremity impairment, for four percent permanent impairment of the ulnar nerve
and one percent permanent impairment of the brachial plexus.
In an April 25, 2016 report, Dr. Arthur S. Harris, a Board-certified orthopedic surgeon
serving as a DMA, reviewed Dr. Pashman’s report and agreed with the five percent permanent

3

impairment left upper extremity rating. He found that appellant had reached MMI on
March 21, 2016. As appellant previously received a schedule award for five percent permanent
impairment of the left upper extremity, the DMA concluded that she did not have an increased
permanent impairment.
By decision dated April 26, 2016, OWCP denied an increased schedule award. It found
that the medical evidence submitted did not support an increase in appellant’s left upper extremity
permanent impairment.
On May 2, 2016 counsel requested a hearing before an OWCP hearing representative. A
video hearing was held on September 27, 2016. By decision dated November 16, 2016, an OWCP
hearing representative vacated OWCP’s decision and remanded the case for referral to an impartial
medical specialist as a conflict existed between Dr. Diamond and Dr. Pashman with regards to
appellant’s permanent impairment rating.
A December 6, 2016 iFECS Report: MEO23 -- Appointment Schedule Notification noted
that seven doctors within a 25-mile radius of appellant’s home were bypassed before
Dr. Stanley R. Askin, a Board-certified orthopedic surgeon, was chosen as the impartial medical
physician. The report indicated that he was 14.65 miles from appellant’s zip code. The iFECS
ME023 report further noted that the seven physicians were bypassed with bypass Code 0 -- other.
The explanations provided included that the bypassed physicians did not perform impairment
ratings, did not evaluate the spine, or only evaluated hands. No physicians were bypassed within
a 50-mile range.
On January 9, 2017 OWCP received a December 30, 2016 EMG report from Dr. Bruce H.
Grossinger, an osteopath and a Board-certified neurologist, which contained an impression of mild
bilateral carpal tunnel syndrome with denervation. Dr. Grossinger noted that appellant also had
vascular thoracic outlet syndrome and cervical facet syndrome. He concluded that these conditions
were caused by appellant’s January 24, 1987 employment injury.
In a January 12, 2017 impartial medical report, Dr. Askin discussed appellant’s medical
history, reviewed the December 3, 2015 SOAF, and her diagnostic testing, noting that the last
nerve conduction studies of record were from June 11, 2014. He provided findings on physical
examination and reported that the only diagnosis supported by clinical evidence was bilateral
carpal tunnel syndrome, which was a coincidental degenerative process solely based on her
demographic features that was not connected to her employment activities. Dr. Askin indicated
that the lack of treatment for her carpal tunnel condition accounted for the right upper extremity
symptomatology. He explained that it was a spontaneously occurring condition responsive to
treatment that had been managed in a neglectful fashion by her chosen healthcare providers.
Dr. Askin commented on each of the conditions accepted in appellant’s claims and found that there
was no clinical manifestation on examination, therefore he concluded that appellant had recovered

4

from those conditions.7 He found that MMI had been reached by January 12, 2017. Dr. Askin
opined that appellant had zero percent work-related permanent impairment of her arms and wrists
as no surgical procedures had been performed, range of motion of her arms and wrists were within
normal limits, and she had no objective motor or sensory impairment. He also opined that there
was no permanent impairment of the elbows as she had full range of motion of both elbows, no
motor deficit at either elbow, and no clinical suggestion of ulnar neuropathy.
On February 16, 2017 OWCP indicated that appellant needed an updated EMG and nerve
conduction velocity (NCV) studies. Appellant underwent an EMG/NCV on March 24, 2017.8
In an April 22, 2017 addendum report, Dr. Askin reviewed the March 24, 2017 EMG/NCV
report and found no evidence of thoracic outlet syndrome, cervical radiculopathy, or focal
neuropathies at the wrist or elbow. He noted that she had abnormal motor unit potential waveforms
and abnormal interference pattern in the right abductor pollicis brevis (a median nerve innervated
muscle) potentially supportive of carpal tunnel syndrome, which had been his clinical diagnosis.
Dr. Askin concluded that the study was consistent with his conclusion that appellant had no
evidence of continuing work-related conditions.
By decision dated June 1, 2017, OWCP denied an additional schedule award. It based its
decision on Dr. Askin’s medical findings.
On June 8, 2017 appellant, through counsel, requested an oral hearing before an OWCP
hearing representative. A video conference was held on August 29, 2017. Counsel presented
procedural arguments relating to the selection of the IME, Dr. Askin, along with substantive
arguments relating to OWCP’s reliance on Dr. Askin’s reports.
In a July 13, 2017 report, Dana Steiner, a certified physician assistant, noted diagnoses of
left and right median neuropathy; left ulnar neuropathy, bilateral brachial plexopathy/cervical
radiculopathy with radicular symptoms on left; and bilateral sympathetically mediated pain
syndrome.
By decision dated October 10, 2017, a hearing representative affirmed OWCP’s June 1,
2017 decision that appellant was not entitled to an additional schedule award. The hearing
representative found that OWCP followed proper procedure in the selection of Dr. Askin as the
impartial medical specialist as he was properly selected from the Medical Management
Application (MMA) and was within appellant’s initial zip code cluster. The hearing representative
further found that Dr. Askin’s reports were properly accorded the special weight of an impartial
medical specialist.

7
Dr. Askin found that the thoracic outlet was not implicated by appellant’s work injuries, but to the extent it was
accepted, there was no objectively determinable thoracic outlet syndrome condition on examination. He found that
she had fully recovered from the double-crush phenomenon as two areas of compression were not identified on
examination. For the brachial plexopathy and cubital tunnel syndrome, Dr. Askin opined that she had fully recovered
as there was no clinical manifestation on examination.
8

A copy of the March 24, 2017 EMG/NCV study was received on September 18, 2017.

5

LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations 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.9 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.10 As of May 1, 2009, the sixth edition of the A.M.A., Guides is used
to calculate schedule awards.11
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).12 Under the sixth edition, the evaluator identifies the impairment for the class
of diagnosis (CDX) condition, which is then adjusted by grade modifiers based on functional
history (GMFH), physical examination (GMPE), and clinical studies (GMCS). The net adjustment
formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).13 Evaluators are directed to provide
reasons for their impairment rating choices, including the choices of diagnosis from regional grids
and calculations of modifier scores.14
The A.M.A., Guides specifically indicate that, if multiple simultaneous neuropathies occur
in the same limb, both impairments may be rated, and the nerve qualifying for the larger
impairment is given the full impairment while the nerve qualifying for the smaller impairment is
rated at 50 percent.15 The A.M.A., Guides further indicate that Table 15-23 is to be used for rating
focal nerve compromise,16 and Appendix 15-B provides further guidance regarding
electrodiagnostic evaluation of entrapment syndromes.17

9

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

10

K.H., Docket No. 09-0341 (issued December 30, 2011). For decisions issued after May 1, 2009, the sixth edition
will be applied. B.M., Docket No. 09-2231 (issued May 14, 2010).
11
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.6 (March 2017); Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
12

A.M.A., Guides (6th ed. 2009) at 3, section 1.3, The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.
13

Id. at 411.

14

See R.V., Docket No. 10-1827 (issued April 1, 2011).

15

Id. at 448.

16

Id.

17

Id. at 487-90.

6

Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint a
third physician who shall make an examination.18 The implementing regulations state that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third
physician to make an examination. This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.19 When 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.20
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish more than five
percent permanent impairment of the left upper extremity, for which she has previously received
a schedule award.
OWCP properly determined that a conflict in the medical opinion evidence existed between
Dr. Diamond, a treating physician, and Dr. Pashman, an OWCP referral physician, regarding the
extent of appellant’s permanent impairment of the left upper extremity due to her accepted workrelated conditions.
Dr. Askin was selected as the impartial medical specialist, to resolve the conflict in medical
opinion, pursuant to 5 U.S.C. § 8123(a). On appeal and before OWCP counsel argued that
Dr. Askin was not properly selected as the impartial medical specialist. The Board has placed
great importance on the appearance, as well as the fact of impartiality in selecting a referee
physician, and only if the selection procedures designed to achieve impartiality are scrupulously
followed may the selected physician carry the special weight accorded to an impartial specialist.21

18

5 U.S.C. § 8123(a).

19

20 C.F.R. § 10.321.

20

V.G., 59 ECAB 635 (2008); Sharyn D. Bannick, 54 ECAB 537 (2003); Gary R. Sieber, 46 ECAB 215 (1994).

21

See T.D., Docket No. 16-0028 (issued November 28, 2016); L.W., 59 ECAB 471, 478 (2008).

7

The Board finds that the selection of Dr. Askin was made in accordance with OWCP’s
procedures.22 A December 6, 2016 ME023 report of file contains screen shots with Code 0 and
explanations why several physicians were bypassed during the referee selection process.
Specifically, seven doctors within a 25-mile radius of appellant’s zip code were bypassed as they
either did not perform impairment evaluations or specialized in areas different from that needed to
assess appellant’s conditions. The ME023 report further indicates that Dr. Askin was 14.65 miles
from appellant’s home and was thus within the initial zip code cluster, as were the seven doctors
who were bypassed. The ME023 report constitutes substantive evidence that the appointment with
Dr. Askin was scheduled through the use of the rotational system in the MMA and within
appellant’s initial zip code cluster.23 Accordingly, counsel’s argument that Dr. Askin was chosen
outside of the MMA and outside of appellant’s initial zip code cluster lacks merit.
In his January 12, 2017 report, Dr. Askin reviewed appellant’s medical records, including
diagnostic studies, and the SOAF. He provided examination findings and indicated that her arm,
wrist, and elbow range of motion was within normal limits, she had no objective motor or sensory
impairments, and she had not undergone any surgical procedures with respect to her arms and
wrists. Dr. Askin provided a discussion for each accepted condition, finding that since there was
no clinical manifestation on examination with respect to thoracic outlet syndrome, double-crush
phenomenon, brachial plexopathy and cubital tunnel syndrome, she had fully recovered from the
accepted conditions with no work-related impairment. He noted that while appellant had clinical
evidence of bilateral carpal tunnel syndrome, this was a coincidental degenerative process solely
based on her age-related demographic feature, which was not work related and for which she had
not been treated. Dr. Askin further opined that appellant reached MMI by January 12, 2017. In
an April 22, 2017 addendum report, Dr. Askin reviewed a March 24, 2017 EMG/NCV report. He
reported that there was no evidence of thoracic outlet syndrome, cervical radiculopathy or focal
neuropathies at the wrist or elbow, which was consistent with his conclusion that appellant’s
employment related conditions had resolved. Dr. Askin indicated that the study confirmed his
clinical diagnosis of carpal tunnel syndrome, a nonwork-related condition.
Counsel also argued on appeal and before OWCP that Dr. Askin ignored the December 30,
2016 EMG/NCV testing results, which Dr. Grossinger indicated showed bilateral carpal tunnel
syndrome, vascular thoracic syndrome and cervical facet syndrome causally related to appellant’s
22

See Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter
3.500.5 (May 2013). Congress did not address the manner by which an impartial medical referee is to be selected.
Rather, this was left to the expertise of the Director in administering the compensation program created under FECA.
Unlike second opinion physicians, the selection of referee physicians is made from a strict rotational system. In turn,
the Director has delegated authority to each OWCP district for selection of the referee physician by use of the Medical
Management Application (MMA) within iFECS. Selection of the referee physician is made through use of the
application by a medical scheduler. The claims examiner may not dictate the physician to serve as the referee
examiner. The medical scheduler inputs the claim number into the application, from which the claimant’s home zip
code is loaded. The scheduler chooses the type of examination to be performed (second opinion or impartial referee)
and the applicable medical specialty. The next physician in the roster appears on the screen and remains until an
appointment is scheduled or the physician is bypassed. If the physician agrees to the appointment, the date and time
are entered into the application. Upon entry of the appointment information, the application prompts the medical
scheduler to prepare a Form ME023, appointment notification report for imaging into the case file. Once an
appointment with a medical referee is scheduled the claimant and any authorized representative is to be notified.
23

Id.

8

employment injuries. While Dr. Grossinger opined that the diagnosed conditions were causally
related to the work injuries, his opinion is of limited probative value. He merely offered a
conclusion relative to causal relationship and failed to offer any rationalized medical explanation
on the issue of causal relationship.24 While the December 30, 2015 EMG/NCV test was not of
record at the time Dr. Askin’s appointment was scheduled, Dr. Askin reviewed a subsequent more
recent EMG/NCV test of March 24, 2017. He provided examination findings and found that there
was no clinical manifestation of appellant’s accepted conditions on which permanent impairment
could be based. Dr. Askin concluded that, based on the lack of objective findings, the accepted
employment injuries resolved with zero percent permanent impairment. The Board finds his
impartial medical opinion is sufficiently well rationalized and based upon a proper factual and
medical background such that it is entitled to special weight.25
The remaining evidence of record, a July 13, 2017 report from a certified physician
assistant, has no probative value. The Board has consistently held that physician assistants are not
competent to render a medical opinion.26 This report lacks probative value because a physician
assistant is not considered a “physician” as defined by section 8101(2) of FECA.27
There is no other evidence of record, conforming to the sixth edition of the A.M.A., Guides,
showing a greater permanent impairment. As Dr. Askin found that appellant had zero percent
permanent impairment due to her accepted employment conditions, she has not established greater
than five percent permanent impairment of the left upper extremity, for which she previously
received 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 greater than
five percent permanent impairment of the left upper extremity, for which she has previously
received a schedule award.

24

J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006).

25

See A.H., Docket No. 18-0050 (issued March 26, 2018); J.J., Docket No. 10-1758 (issued May 16, 2011).

26

See K.C., Docket No. 16-1181 (issued July 26, 2017); Janet L. Terry, 53 ECAB 570 (2002).

27

See K.C., id.; Allen C. Hundley, 53 ECAB 551 (2002).

9

ORDER
IT IS HEREBY ORDERED THAT the October 10, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 10, 2019
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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
U.S POSTAL SERVICE, POST OFFICE,
Dallas, TX,
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Michael E. Woods, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1576
Issued: July 15, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 20, 2012 appellant, through his attorney, filed a timely appeal from Office of
Workers’ Compensation Programs’ (OWCP) decision dated May 29, 2012. Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
October 3, 2010.
FACTUAL HISTORY
Appellant, a 41-year-old mail handler, filed a Form CA-1 traumatic injury claim on
October 5, 2010, alleging that she strained her left shoulder while lifting sacks of mail on
October 3, 2010. The employing establishment did not controvert the claim. It checked a box on
1

5 U.S.C. § 8101 et seq.

the form indicating that appellant’s injury occurred in the performance of duty and asserted that
the statements she made on the form were truthful.
In an October 7, 2010 report, Dr. Ronnie D. Shade, Board-certified in orthopedic surgery,
stated that appellant had complaints of moderate pain, pain with range of motion, muscle spasms,
stiffness and cramps. The pain was associated with lying down, lifting objects and overhead use.
Appellant had slightly decreased range of motion in the cervical area. Dr. Shade diagnosed
chronic cervical strain, left upper extremity radiculitis, thoracic outlet syndrome and bursitis of
the left shoulder. He placed appellant off work from October 7 through November 7, 2010 due
to numbness and a tingling sensation.
In a report dated October 20, 2010, Dr. Stephen Becker, a specialist in physical medicine
and rehabilitation, stated that appellant had experienced approximately six years of discomfort in
her upper extremities. Appellant recalled no specific onset of symptoms or trauma. She asserted
that she felt numbness and tingling in digits one through five extending into the left forearm.
Appellant also had numbness and tingling occurring in the right hand, particularly prolonged
positioning activity exacerbated her symptoms. Dr. Becker stated that appellant also experienced
significant cervical pain associated with her symptoms.
Appellant underwent electromyelogram/nerve conduction velocity testing, the results of
which showed bilateral C6-7 cervical radiculopathy. Dr. Becker recommended that she undergo
a magnetic resonance imaging (MRI) scan of the cervical spine to confirm his findings. He
stated that appellant could also be experiencing early thoracic outlet syndrome, although this was
not strongly suggested by her symptoms.
In a November 8, 2010 report, Dr. Shade reiterated his findings and conclusions. He
advised that appellant had complaints of severe cervical pain with moderate pain in her left hand.
Dr. Shade noted a history of bilateral numbness and tingling sensation in her hands. He
diagnosed suspected left carpal tunnel syndrome, chronic cervical strain, with left upper
extremity radiculitis and suspected thoracic outlet syndrome. Dr. Shade reiterated these findings
in a report dated November 22, 2010.
On December 1, 2010 OWCP advised appellant that it required additional factual and
medical evidence to determine whether she was eligible for compensation benefits. It asked her
to submit a comprehensive medical report from her treating physician describing his symptoms
and the medical reasons for her condition and an opinion as to whether her claimed condition
was causally related to her federal employment and a diagnosis of her claimed condition. OWCP
requested that appellant submit the additional evidence within 30 days.
In an October 5, 2010 report, Dr. Michael V. Rainer, a specialist in emergency medicine,
stated that appellant began experiencing constant, severe, neck pain two days prior. Appellant
lifted heavy objects at work but was not able to recall a specific injury. She related that her neck
began to hurt after work when she turned quickly in bed to answer her phone. Appellant had
severe sharp pain on the left side of her neck and shoulder.
In a report dated December 10, 2010, Dr. Sam S. Ahm, Board-certified in neurology,
stated that appellant underwent exploratory surgery to determine whether she had thoracic outlet

2

syndrome. He related that she experienced severe headaches as well as swelling and pain in the
upper extremities and the head/neck region.
By decision dated January 7, 2011, OWCP accepted that the October 3, 2010 incident
had occurred as alleged, but denied the claim, finding that appellant failed to submit sufficient
medical evidence relating the diagnosed condition to the work incident.
On January 24, 2011 appellant requested reconsideration.
In a report dated January 21, 2011, received by OWCP on January 28, 2011, Dr. Shade
stated that he saw appellant in 2004 for a problem regarding her hands which soon resolved.
Appellant did not experience another onset until October 3, 2010, when she sustained an injury
to her shoulders, her neck, left arm and left hand in the course of her employment. Dr. Shade
opined that the mechanism of injury was directly, causally related to the incident at work, which
resulted in neck, left shoulder, left hand and left arm pain.
In a report dated February 17, 2011, Dr. Shade stated that appellant’s symptoms were
unchanged. Appellant had complaints of severe bilateral arm pain, with numbness, a tingling
sensation and night pain in both arms; severe left shoulder pain and muscle spasms; and
significant left hand pain, with numbness and a tingling sensation. Dr. Shade stated that she
underwent an MRI scan on November 19, 2011 which showed cervical lordosis straightening
and right lateral recess discal substance protrusion at C4-5.
In a March 23, 2011 report, Dr. Shade noted that Dr. Ahm performed surgery on
February 18, 2011 to ameliorate thoracic outlet syndrome. He reiterated the diagnoses and
advised that an EMG showed cervical radiculopathy at C6-7.
By decision dated May 9, 2011, OWCP modified the January 7, 2011 decision to find
that appellant failed to establish the October 3, 2010 incident. It found that she presented
inconsistent, conflicting histories of how she sustained an injury to her medical examiners.
Although Dr. Shade believed lifting heavy sacks of mail on October 3, 2010 was what caused
appellant’s diagnosed conditions, he did not address Dr. Rainer’s October 5, 2010 report which
indicated that she could not recall a specific injury. Appellant began to have pain in her neck
and left shoulder when she turned to answer a telephone in bed on October 5, 2010. It further
found that this presented a gradual progression over time which would constitute an occupational
disease claim and not a traumatic injury.
In a May 20, 2011 report, Dr. Shade stated that appellant’s complaints and diagnoses
were directly, causally related to employment factors.
On June 1, 2011 appellant requested reconsideration.
On June 4, 2011 appellant filed a Form CA-2 claim for benefits based on occupational
disease, alleging that she developed neck, left shoulder, left chest cavity and left arm causally
related to employment factors. She stated that she was engaged in constant and continued
pushing, pulling, loading and casing mail which caused pain and resulted in the development of
her claimed conditions.

3

In a June 9, 2011 report, Dr. Shade reiterated his previous findings and conclusions.
By decision dated July 8, 2011, OWCP denied modification of the May 9, 2011 decision.
In a report dated August 2, 2011, Dr. Shade reiterated his opinion that appellant’s
conditions were work related. He initially saw her on October 7, 2010 for complaints of neck,
left shoulder, left hand and left wrist pain stemming from an occupational injury which occurred
on October 3, 2010, in which she was lifting a sack of mail. Dr. Shade reiterated his opinion that
the mechanism of injury was directly, causally related to the injury causing her neck, left
shoulder and left hand injuries. He reviewed Dr. Rainer’s October 5, 2010 emergency room
report and advised that when appellant indicated that she felt neck pain while reaching for the
telephone on that date she was only describing an “example, not an injury.” Dr. Shade noted that
there were inconsistencies in the record regarding the time, place and the manner in which
appellant sustained her occupational injury; however, her job duties as a mail handler required
constant lifting, pushing, pulling and overhead reaching for 14 years and caused numbness,
achiness, pain and spasms in her neck, left shoulder, left arm and left hand/wrist.
On August 22, 2011 appellant requested reconsideration. In a statement dated August 22,
2011, she requested that the claim be adjudicated as one for occupational disease based on
Dr. Shade’s August 2, 2011 report. Appellant stated that the incident on October 5, 2010 in
which she experienced a strain in her neck while reaching for a telephone was merely an
example of how the October 3, 2010 injury was affecting her, not a new injury. She also stated
that Dr. Shade wrote a letter supporting causal relationship. Appellant stated that October 3,
2010 was the date that her “occupational injury took a complete toll on [her] body.”
By decision dated September 8, 2011, OWCP denied modification of the July 8, 2011
decision. It noted that appellant had filed a Form CA-2 claim on June 4, 2011 occupational
disease, alleging that because of the constant pushing, pulling, loading and casing mail she
sustained injuries to her left upper extremities, neck, left shoulder and chest. OWCP found that
she had provided an inconsistent history of injury on her CA-1 and CA-2 forms and to her
physicians which undermined her credibility and the validity of her claim. It further found that
appellant failed to submit rationalized, probative and objective medical evidence sufficient to
support that she sustained an injury as described on her Form CA-1 and to establish that her
claimed work activities caused or contributed to her medical conditions.
By letter dated October 12, 2011, appellant’s attorney requested reconsideration. He
argued that appellant was not familiar with the process of filing claims and intended to file a
claim based on an occupational condition, not traumatic injury. Counsel contended that each
physician who had examined her stated that her diagnosed conditions developed not from a onetime, isolated incident but rather from a cumulative progression over a period of years, while she
was performing her duties as a mail handler at the employing establishment. Appellant was
unsure of the exact date of injury but was able to attribute her injuries to employment-related
factors.
By decision dated November 29, 2011, OWCP denied modification of the September 8,
2011 decision.

4

In a January 16, 2012 report, Dr. Becker reviewed the history of injury and reiterated his
previous findings, conclusions and diagnoses.
In a January 23, 2012 report, Dr. Shade related that appellant’s symptoms had not
changed since her February 18, 2011 surgery. Appellant sustained an occupational-type injury to
the left neck, left shoulder and left arm in addition to an acute traumatic injury to the neck, left
arm and shoulder while lifting a heavy sack at work. Dr. Shade opined that her various
diagnoses were supported by objective and diagnostic testing; he questioned why her claim had
not been accepted.
In a January 27, 2012 report, Dr. Shade opined that appellant sustained a traumatic,
chronic cervical strain injury on October 3, 2010 after lifting sacks of mail at work, which
revealed underlying latent occupational diseases of left carpal tunnel syndrome, cervical
radiculopathy and thoracic outlet syndrome. He advised that these were diseases/injuries which
had developed over time due to her 14 years of work as a mail handler. Dr. Shade asserted that
appellant’s various conditions were caused by bending, pulling, pushing containers, overhead
reaching, constant upper extremity movements and lifting sacks of mail for the employing
establishment, and not by a one-time act such as turning over in bed to answer a telephone.
On February 18, 2012 counsel requested reconsideration. He stated that appellant had
sustained two types of injuries, one for traumatic injury and one based on occupational condition,
developed over time as a mail handler. Counsel contended that Dr. Shade’s reports provided an
opinion of causal relationship between her various diagnosed conditions and her years of lifting
sacks as a mail handler, which OWCP had yet to consider.
In a March 19, 2012 report, Dr. Shade reiterated his previous findings and conclusions.
By decision dated May 29, 2012, OWCP denied modification of its prior decisions. It
found that appellant failed to submit sufficient medical evidence in support of her claim that she
sustained an injury in the performance of duty on October 3, 2010. While OWCP noted again
that she had filed a Form CA-2 claim for an occupational condition, it stated that because she
provided an inconsistent history of injury she had diminished her credibility and the validity of
her claim. OWCP found that appellant failed to submit rationalized, probative medical evidence
sufficient to support that she sustained an injury and to establish that her claimed work activities
caused or contributed to her medical conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing that 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 to the employment injury.3 These are the essential elements of each and every
2

5 U.S.C. §§ 8101-8193.

3

Joe Cameron, 42 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

5

compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
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.5 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.6
OWCP cannot accept fact of injury if there are such inconsistencies in the evidence as to
seriously question whether the specific event or incident occurred at the time, place and in the
manner alleged, or whether the alleged injury was in the performance of duty,7 nor can OWCP
find fact of injury if the evidence fails to establish that the employee sustained an “injury” within
the meaning of FECA. An injury does not have to be confirmed by eyewitnesses in order to
establish the fact that an employee sustained an injury in the performance of duty, as alleged, but
the employee’s statements must be consistent with surrounding facts and circumstances and her
subsequent course of action.8 Such circumstances as late notification of injury, lack of
confirmation of injury, continuing to work without apparent difficulty following the alleged
injury, and failure to obtain medical treatment may cast doubt on an employee’s statements in
determining whether he or she has established his or her claim.9
The medical evidence required to establish causal relationship is usually rationalized
medical 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.10
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.11
4

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

5

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

6

Id. For a definition of the term “injury,” see 20 C.F.R. § 10.5(a)(14).

7

Pendleton, supra note 3.

8

See Gene A. McCracken, Docket No. 93-2227 (issued March 9, 1995); Joseph H. Surgener, 42 ECAB 541,
547 (1991).
9

See Constance G. Patterson, 42 ECAB 206 (1989).

10

Id.

11

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

6

An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.12 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
ANALYSIS
In the present case, OWCP found that the record contained inconsistenious to support that
the October 3, 2010 incident occurred at the time, place and in the manner alleged. It concluded
that appellant did not establish that she sustained the injury in the performance of duty on that date.
The Board finds, however, that she presented sufficient evidence to establish that she lifted sacks
of mail in the manner alleged.13 The Board has held that an employee’s statement alleging that an
injury occurred at a given time and in a given manner is of great probative value and will stand
unless refuted by strong or persuasive evidence.14 The Board notes that appellant filed the claim
for the October 3, 2010 work incident in a timely fashion, on October 5, 2010. Appellant sought
medical attention on October 5 and 7, 2010. Although no one witnessed the incident, her statement
that she experienced left shoulder pain on October 3, 2010 while lifting sacks of mail was not
contradicted by her employing establishment or by substantial evidence in the record. Dr. Rainer
stated in an October 5, 2010 report that appellant experienced neck and left shoulder pain two days
prior while answering a telephone at home and was unable to recall a specific work injury.
Dr. Shade, appellant’s treating physician, related in several reports that appellant sustained an
injury to her shoulders, her neck, left arm and left hand on October 3, 2011 while lifting sacks of
mail. He asserted in a January 2011 report that the mechanism of injury was directly, causally
related to the October 3, 2010 work incident, which resulted in neck, left shoulder, left hand and
left arm pain. In his August 2, 2011 report, Dr. Shade reiterated his opinion that appellant’s
various conditions were work related and reviewed Dr. Rainer’s October 5, 2010 emergency
room report. He opined that when she stated that she felt neck pain while reaching for the
telephone on that date she was only describing an “example, not an injury.” Dr. Shade supported
that appellant sustained a traumatic cervical strain injury on October 3, 2010 while lifting sacks
of mail at work.
The Board finds that the totality of the evidence is sufficient to establish that appellant was
lifting mail sacks in the performance of duty on October 3, 2010. The employing establishment
did not controvert the claim. On the Form CA-1 that it accepted that appellant’s statements on the
form were truthful. The Board notes that the record contains no contemporaneous factual evidence
indicating that the claimed October 3, 2010 work incident did not occur as alleged.15 The Board
finds that the evidence of record is sufficient to establish that the incident in which appellant
sustained an injury on October 3, 2010 occurred at the time, place and in the manner alleged.
12

Id.

13

Id.

14

Patterson, supra note 9; Buffington, 34 ECAB 104 (1982).

15

See Thelma Rogers, 42 ECAB 866 (1991).

7

The Board finds, however, that appellant failed to submit sufficient medical evidence that
address how the October 3, 2010 lifting incident was competent to cause the claimed injury. In
this regard, 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.16
The question of whether an employment incident caused a personal injury can only be
established, however, by probative medical evidence.17 Appellant has not submitted rationalized,
probative medical evidence to establish the medical component of fact injury; i.e., that the
October 3, 2010 employment incident cause the claimed injury.
Appellant submitted numerous reports in support of her traumatic injury claim. Dr. Rainer
examined her in the emergency room on October 5, 2010 and advised that she began
experiencing constant, severe, neck pain on October 3, 2010. He advised that appellant lifted
heavy objects at work but was not able to recall a specific injury. Dr. Rainer also asserted that
she began to have neck and left shoulder symptoms on October 5, 2010 when she turned quickly
in bed to answer her phone and experienced pain on the left side of her neck and shoulder.
Dr. Becker submitted reports dated October 20, 2010 and January 16, 2012 in which he advised
that appellant had experienced six years of discomfort in her upper extremities but could not
recall any specific onset of symptoms or trauma. He advised that electromyogram/nerve
conduction velocity tests showed bilateral C6-7 cervical radiculopathy.
Dr. Ahm’s
December 10, 2010 surgical report diagnosed thoracic outlet syndrome, but did not indicate
whether this condition was work related. Dr. Shade submitted periodic reports from
October 2010 to March 2012 in which he related complaints of pain, stated findings on
examination and presented diagnoses of bilateral C6-7 cervical radiculopathy, thoracic outlet
syndrome, left upper extremity radiculitis, bursitis of the left shoulder, left carpal tunnel
syndrome and chronic cervical strain. He stated in his January 21, May 20 and August 2, 2011
reports that on October 3, 2010 appellant injured both shoulders, her neck, left arm and left hand
in the course of her employment with the employing establishment; he opined that the
mechanism of injury was directly, causally related to the incident at work in which she was
lifting a sack of mail, which resulted in neck, left shoulder, left hand and left arm pain. In a
report dated August 2, 2011, Dr. Shade reiterated his opinion that her various conditions were
work related.
The medical reports of record are not sufficient to meet appellant’s burden of proof.
None of the physicians sufficiently related the diagnoses to the October 3, 2010 incident at work.
Dr. Shade opined that appellant’s diagnosed conditions of bilateral C6-7 cervical radiculopathy,
thoracic outlet syndrome, left upper extremity radiculitis, bursitis of the left shoulder, left carpal
tunnel syndrome and chronic cervical strain conditions were causally related to her years of
working as a mailhandler but he did not provide a rationalized medical opinion addressing how
the claimed conditions or disability were causally related to lifting sacks of mail.18 The weight
of medical opinion is determined by the opportunity for and thoroughness of examination, the
16

See supra note 11.

17

Supra note 5.

18

William C. Thomas, 45 ECAB 591 (1994).

8

accuracy and completeness of physician’s knowledge of the facts of the case, the medical history
provided, the care of analysis manifested and the medical rationale expressed in support of stated
conclusions.19 Although Dr. Shade presented diagnoses of appellant’s condition and stated
generally that she experienced neck and left shoulder pain on October 3, 2010, he did not
adequately address how this condition and these findings were causally related to the October 3,
2010 work incident. The medical reports of record did not explain how medically she would
have sustained a neck and left shoulder injury because she was lifting sacks of mail on
October 3, 2010. There is insufficient rationalized evidence in the record that appellant’s neck
and left shoulder strains were work related. Dr. Shade’s reports thus did not constitute adequate
medical evidence to establish that her claimed conditions were causally related to the October 3,
2010 work incident.
OWCP advised appellant of the evidence required to establish her claim; however, she
failed to submit such evidence. It properly denied her claim for compensation.
For the reasons stated above the Board finds that appellant did not meet her burden of
proof to establish that she sustained an injury in the performance of duty on October 3, 2010.
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 10.607.20
CONCLUSION
The Board finds that appellant has failed to establish that she sustained an injury in the
performance of duty on October 3, 2010.

19

See Anna C. Leanza, 48 ECAB 115 (1996).

20

The Board notes that appellant filed a separate claim has not issued a final decision based on occupational
condition and has submitted medical evidence in support of this claim. OWCP based on this claim. This issue is
presently pending before OWCP and will not be discussed in the instant decision. See 20 C.F.R. § 501.2(e).

9

ORDER
IT IS HEREBY ORDERED THAT the May 29, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 15, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

10