United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.R., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Oakland, CA, Employer
__________________________________________

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

Docket No. 10-234
Issued: October 8, 2010

Case Submitted on the Record

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

JURISDICTION
On November 3, 2009 appellant filed a timely appeal from an August 4, 2009 decision of
the Office of Workers’ Compensation Programs concerning a schedule award. 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 has more than three percent permanent impairment of her
left leg, for which she received a schedule award.
FACTUAL HISTORY
On February 19, 2002 appellant, then a 42-year-old distribution clerk, filed a traumatic
injury claim alleging that on October 2, 2001 she injured her lower back while lifting a heavy
package. The Office accepted the claim for lumbar strain and lumbosacral radiculitis.
On October 23, 2008 Dr. Fulton S. Chen, appellant’s attending Board-certified physiatrist
with a subspecialty in pain medicine, diagnosed chronic low back pain with left sciatica, L5-S1
lumbar disc degeneration and probable left lumbar radiculopathy. He noted appellant

complained of low back pain going into her left leg. A physical examination revealed tenderness
at the left L5-S1, intact sensation on light touch on the left leg and positive left straight leg
testing and 60 degrees flexing.
On March 13, 2009 the Office referred the claim to the Office medical adviser for a
schedule award determination. In a March 21, 2009 report, Dr. Arthur S. Harris, an Office
medical adviser, reviewed the medical evidence and determined appellant had three percent left
lower permanent extremity impairment based on the 5th edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (5th ed. 2001). Dr. Harris stated
that appellant had Grade 3 pain/decreased sensation that interfered with some activity of the left
L5 nerve root and referenced Table 16-10, page 482 and Table 15-18, page 424 in finding a three
percent left lower extremity impairment.
In a March 27, 2009 decision, the Office granted appellant a schedule award for three
percent permanent impairment of her left leg. The award ran for 8.64 weeks from October 23 to
December 22, 2008.
In an April 15, 2009 report, Dr. Chen concluded that appellant had eight percent whole
person permanent impairment due to radicular pain based on Table 15-3, page 384 of the
A.M.A., Guides (5th ed.).
On April 20, 2009 appellant requested a review of the written record by an Office hearing
representative. In an attached letter dated April 19, 2009, she contended she was entitled to at
least eight percent left lower extremity impairment as found by Dr. Chen. Appellant also
contended the period of the award was incorrect, as she explained it should include the time
when her injury first occurred.
In an August 4, 2009 decision, the Office hearing representative affirmed the March 27,
2009 schedule award decision.1
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulations3 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

1

The Board notes that, following the August 4, 2009 decision, the Office received additional evidence. Appellant
also submitted new evidence with her appeal to the Board. However, the Board may not consider new evidence on
appeal. See 20 C.F.R. §§ 501.2(c); M.B., 60 ECAB ___ (Docket No. 09-176, issued September 23, 2009); J.T., 59
ECAB ___ (Docket No. 07-1898, issued January 7, 2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57
ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

2

the body.4 However, the Act does not specify the manner in which the percentage of loss shall
be determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
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.5
A schedule award is not payable for a member, function, or organ of the body not
specified in the Act or in the implementing regulations.6 As neither the Act nor the regulations
provide for the payment of a schedule award for the permanent loss of use of the back or spine,
no claimant is entitled to such an award.7 However, as the Act makes provision for the lower
extremities, a claimant may be entitled to a schedule award for permanent impairment to a lower
extremity even though the cause of the impairment originates in the spine, if the medical
evidence establishes impairment as a result of the employment injury.8
Section 15.12 of the fifth edition of the A.M.A., Guides describes a method to be used for
evaluation of impairment due to sensory loss of the extremities. The nerves involved are to be
first identified. Under Table 15-15, the extent of any sensory loss due to nerve impairment is to
be determined, to be followed by determination of the maximum impairment due to nerve
dysfunction applying Table 15-18 for the lower extremity. The severity of the sensory deficit is
to be multiplied by the maximum value of the relevant nerve.9
ANALYSIS
On appeal appellant generally contends that she has more than three percent permanent
impairment of the left lower extremity. The Office accepted appellant’s claim for lumbar strain
and lumbosacral radiculitis. In a March 27, 2009 decision, it granted appellant a schedule award
for three percent permanent impairment of her left leg. The award was based on calculations of
Dr. Harris, a Board-certified orthopedic surgeon serving as an Office medical adviser, who
reviewed the medical evidence of record, including the reports of Dr. Chen, an attending Boardcertified physiatrist.
On March 13, 2009 Dr. Harris stated that the medical evidence revealed that appellant
had decreased sensation of the L5 nerve root. He cited Table 16-10, page 482 and Table 15-18,
page 424, to find three percent left lower extremity impairment. The Board notes that Table 164

See Carol A. Smart, 57 ECAB 340 (2006). (Section 8107 of the Act authorizes the payment of schedule awards
for the loss or loss of use, of specified members or functions of the body. Such loss or loss of use is known as
permanent impairment).
5

See id.; P.C., 58 ECAB ___ (Docket No. 07-410, issued May 31, 2007); Jacqueline S. Harris, 54 ECAB
139 (2002).
6

W.C., 59 ECAB ___ (Docket No. 07-2257, issued March 5, 2008); Anna V. Burke, 57 ECAB 521 (2006).

7

D.N., 59 ECAB ___ (Docket No. 07-1940, issued June 17, 2008).

8

J.Q., 59 ECAB ___ (Docket No. 06-2152, issued March 5, 2008).

9

A.M.A., Guides 423.

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10, page 482, is used in calculating upper extremity impairment due to spinal nerve root
impairment and that Table 15-15, page 424, is to be used in calculating lower extremity
impairment due to spinal nerve root impairment. The Office medical adviser’s use of Table 1610 instead of Table 15-15 is harmless, as the grading classification, however, is the same.10 Both
Table 15-15 and Table 16-10 provide a classification system for impairments due to sensory
deficits. The classifications range from Grade 0 to 5. This classification system is used in
conjunction with Table 15-18 to determine the lower extremity impairment due to sensory loss.
Dr. Harris identified the grade for appellant’s sensory loss as Grade 3, for which he allowed 60
percent.11 According to Table 15-18, the maximum percentage loss of function due to sensory
deficit or pain is five percent.12 As set forth in the procedure for Table 15-15, the severity of the
sensory deficit multiplied by the maximum impairment value of the L5 nerve root (60 percent
times 5 percent) results in an impairment of 3 percent for sensory loss, as was found by
Dr. Harris.
The Board finds that Dr. Harris’ opinion is entitled to the weight of the evidence as his
report is sufficiently well rationalized and based upon a proper factual background. The Office
properly relied upon his report in finding that appellant was entitled to an impairment of three
percent to the left lower extremity. There is no probative medical evidence of record to establish
that appellant has more than three percent impairment to the left lower extremity.
On appeal appellant contends that Dr. Chen’s report showed that she had eight percent
impairment of her left leg. On April 15, 2009 Dr. Chen indicated that under Table 15-3 of the
A.M.A., Guides appellant had an eight percent impairment of her whole person due to persistent
symptoms related to her lumbar radiculopathy. However, Table 15-3 concerns diagnosis-related
estimates for impairments related to lumbar spine injuries and provides impairment values for
the whole person.13 Dr. Chen’s evaluation in this regard is of limited probative value because the
Act does not provide for a schedule award for impairment to the back or to the body as a
whole.14 Moreover, he failed to provide a full explanation of how his assessment of permanent
impairment was derived in accordance with the standards adopted by the Office and approved by
the Board for evaluating schedule losses.15

10

See id. at 423, 480-481. See Table 15-15, page 424, Table 16-10, page 482.

11

Id.

12

Id. at 424.

13

Id. at 384, Table 15-3.

14

See A.L., 60 ECAB ___ (Docket No. 08-1730, issued March 16, 2009); Marilyn S. Freeland, 57 ECAB
607 (2006).
15

See James Kennedy, Jr., 40 ECAB 620, 626 (1989)(finding that an opinion which is not based upon the
standards adopted by the Office and approved by the Board as appropriate for evaluating schedule losses is of little
probative value in determining the extent of a claimant’s permanent impairment).

4

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained more than a three percent impairment of the left lower extremity for which she
received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the August 4, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 8, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.A., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Philadelphia, PA, Employer
__________________________________________

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Appearances:
Jason S. Lomax, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-0937
Issued: August 17, 2015

Case Submitted on the Record

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

JURISDICTION
On March 17, 2015 appellant, through counsel, filed a timely appeal from a
September 22, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s compensation and
authorization for medical treatment effective March 9, 2014 as she had no further disability or
residuals of her January 27, 2011 employment injury.
FACTUAL HISTORY
On February 3, 2011 appellant, then a 44-year-old practical nurse, filed a traumatic injury
claim alleging that on January 27, 2011 she injured her low back, left hip, and both wrists when
1

5 U.S.C. § 8101 et seq.

she slipped and fell on ice in the parking lot of the employing establishment. She stopped work
on January 28, 2011. OWCP accepted the claim for lumbar sprain, bilateral wrist sprain,
bilateral carpal tunnel syndrome, and a bilateral lesion of the ulnar nerve. It paid appellant
disability compensation beginning March 15, 2011 and placed her on the periodic rolls beginning
October 23, 2011.
Dr. Asif M. Ilyas, a Board-certified orthopedic surgeon, performed a right carpal and
cubital tunnel release on October 14, 2011 and a left carpal and cubital tunnel release on
January 20, 2012. On June 4, 2012 he released appellant to resume work without restrictions.
In a work restriction evaluation dated June 7, 2012, Dr. Amelia L.A. Tabuena, who
specializes in pain management, found that appellant was disabled as a result of her back injury.
In a progress report dated July 16, 2012, she discussed appellant’s history of an injury to her
back in January 2011.2 Dr. Tabuena diagnosed unresolved chronic lumbar sprain/strain,
herniated discs at L5-S1, bulging discs at L4-5, lumbar radiculopathy, status post bilateral carpal
tunnel releases, and chronic bilateral wrist tendinitis. She opined that appellant should not work
to prevent an increase in back pain.
On October 1, 2012 OWCP referred appellant to Dr. Robert F. Draper, a Board-certified
orthopedic surgeon, for a second opinion examination. It enclosed a statement of accepted facts
(SOAF) listing the accepted conditions and noting that appellant had nonemployment-related
conditions of a herniated disc at L5-S1, a bulging disc at L4-5, and lumbar radiculopathy. In a
report dated November 13, 2012, Dr. Draper reviewed the history of injury and medical reports
of record. He diagnosed status post bilateral carpal and cubital tunnel releases, lumbar sprain,
and degenerative disc disease at L3-4 and L5-S1 not related to employment. Dr. Draper further
found a small disc herniation at L5-S1 that was “consistent with preexisting degenerative bulging
disc disease.” He determined that appellant could perform modified duty, lifting not more than
25 pounds frequently and 50 pounds occasionally, and standing and walking no more than six
hours per day. Dr. Draper stated, “These would be permanent restrictions due to the unrelated
degenerative spinal disease.”
On December 31, 2012 Dr. Tabuena disagreed with Dr. Draper’s opinion that appellant
had a degenerative condition. She attributed appellant’s lumbar radiculopathy and herniated disc
at L5-S1 to her January 28, 2011 work injury. Dr. Tabuena opined that appellant was unable to
resume her regular employment, but could perform sedentary duties.
Electrodiagnostic testing performed on February 25, 2013 revealed lumbar radiculopathy
at L3-4 on the left and L4-5 on the right.
An April 22, 2013 magnetic resonance imaging (MRI) scan study revealed mild
degenerative annular bulging at L3-4 with no herniation, mild annual fissuring and bilateral facet
arthropathy at L4-5 with no herniation, and a stable, small central disc herniation at L5-S1.
In a report dated May 16, 2013, Dr. Leonard Bruno, a Board-certified neurosurgeon,
evaluated appellant for low back pain radiating into her left lower extremity. He noted that she
2

Dr. Tabuena continued to provide progress reports listing findings on examination and discussing her treatment
of appellant from 2012 through 2014.

2

slipped and fell at work on January 27, 2012. Dr. Bruno reviewed an April 22, 2013 MRI scan
study and opined that it was an “age-appropriate study, and appears improved by the report from
March 14, 2011.” He diagnosed lumbar sprain and left spondylosis and radiculitis. Dr. Bruno
found that appellant had no need for surgery and had “no significant herniated nucleus
pulposus….”
OWCP determined that a conflict existed between Dr. Tabuena and Dr. Draper regarding
the extent of appellant’s employment-related disability. It referred her to Dr. Amir Fayyazi, a
Board-certified orthopedic surgeon, for an impartial medical examination. OWCP provided him
with a June 13, 2013 addendum to the SOAF that did not include the accepted conditions.
In a report dated July 18, 2013, Dr. Fayyazi discussed appellant’s history of injury and of
bilateral carpal tunnel and ulnar nerve releases. On examination he found a loss of motion of the
lumbar spine and “diffuse discomfort along the bilateral paraspinal muscles and bilateral PSIS
[posterior superior iliac spine].” Dr. Fayyazi further measured reduced wrist motion bilaterally
with full strength and normal sensation of the bilateral upper and lower extremities. He noted
that electrodiagnostic testing performed February 25, 2013 showed chronic lumbar
radiculopathy. Dr. Fayyazi diagnosed lumbar sprain, traumatic left carpal tunnel syndrome, right
wrist sprain, and an aggravation of preexisting right carpal tunnel syndrome due to the
January 27, 2011 employment injury. He advised that there was “no indication [appellant]
suffered any injury to her ulnar nerve” and opined that the cubital tunnel release “was not
medically reasonable and was unrelated to the injury that occurred on January 27, 2011.”
Dr. Fayyazi determined that appellant’s lumbar sprain, left carpal tunnel syndrome, right wrist
sprain, and aggravation of preexisting right carpal tunnel syndrome had resolved. He also
diagnosed preexisting degenerative lumbar disc disease unrelated to the work injury.
Dr. Fayyazi found symptom magnification and dependency to narcotic medication. He opined
that appellant had received “complete unreasonable” medical treatment, including excessive
physical therapy. Dr. Fayyazi noted that she originally received nonnarcotic pain management,
but began taking the narcotic medication on October 11, 2011. He stated, “At this time, I feel
that [appellant] should be weaned off all narcotics. She clearly demonstrates evidence of
narcotic dependency.” Dr. Fayyazi was asked to review the lumbar MRI scan study to “further
clarify the preexisting lumbar condition.” He concluded:
“At the time of my examination, [appellant] was not suffering from lumbar
radiculopathy. As stated above, her symptoms appeared to be exaggerated.
[Appellant] suffered a lumbar sprain and strain injury and she has fully recovered.
She has also fully recovered from bilateral carpal tunnel syndrome. At this time, I
see no reason why [appellant] cannot return to full, unrestricted duty.
Restrictions, however, will be necessary with respect to the current narcotic
dosage. As stated above, the narcotic usage should be limited and discontinued.
“[Appellant] does require restrictions with respect to her comorbidities. She is a
47-year-old overweight individual and appeared to be deconditioned. These
restrictions are outside the scope of the January 27, 2011 incident.”
On December 20, 2013 OWCP advised appellant that it proposed to terminate her
compensation and authorization for medical benefits based on the opinion of Dr. Fayyazi that she
had no further employment-related disability or need for medical treatment.
3

In a report dated January 14, 2014, Dr. Tabuena diagnosed displacement of a lumbar
intervertebral disc without myelopathy, a prolapsed lumbar intervertebral disc, thoracic or
lumbosacral neuritis or radiculitis, lumbosacral radiculitis, tenosynovitis of the wrist or hand,
wrist tendinitis, and status post carpal tunnel release. She stated, “I disagree with Dr. Fayyazi
that [appellant] is no longer disabled.” Dr. Tabuena advised that she could perform sedentary
employment but had “sustained a serious injury to the lumbar spine with consequent deficits in
bending, lifting, sitting, walking, standing, and pushing and pulling.”
On January 17, 2014 appellant related that her physicians diagnosed ulnar nerve damage
and bilateral carpal tunnel syndrome due to her January 27, 2011 falls. She noted that she was
also diagnosed with “herniated and bulging discs.” Appellant advised that both OWCP referral
physicians evaluated her for less than five minutes without performing an examination. She
challenged Dr. Fayyazi’s opinion that she was overweight, deconditioned, and addicted to
narcotics.
By decision dated February 11, 2014, OWCP terminated appellant’s compensation and
authorization for medical benefits effective March 9, 2014.
On February 17, 2014 appellant, through counsel, requested a telephone hearing with an
OWCP hearing representative.
At the hearing, held on August 4, 2014, counsel questioned why the impartial medical
examiner found no evidence of radiculopathy even though an EMG was positive for lumbar
radiculopathy. He also noted that a functional capacity evaluation showed that appellant had
restrictions and that she had put forth maximum effort. Counsel additionally noted that the
impartial medical examiner wanted to review an MRI scan study.
In a decision dated September 22, 2014, the hearing representative affirmed the
February 11, 2014 decision. He found that the opinion of Dr. Fayyazi, as impartial medical
examiner, represented the weight of the evidence and established that appellant had no further
residuals of her accepted employment injury.
On appeal appellant’s counsel argues that the impartial medical examiner, Dr. Fayyazi,
provided an ostensibly detailed report that was devoid of any medical rationale. He contends
that Dr. Fayyazi did not explain why appellant’s degenerative condition was unrelated to the
injury.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.3 It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.4
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing

3

Elaine Sneed, 56 ECAB 373 (2005).

4

Fred Reese, 56 ECAB 568 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

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rationalized medical opinion evidence based on a proper factual and medical background.5
Further, the right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.6 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.7
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.8 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, it 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.9 In situations where there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.10
OWCP procedures provide as follows:
“When the DMA [district medical adviser], second opinion specialist or referee
physician renders a medical opinion based on a SOAF which is incomplete or
inaccurate or does not use the SOAF as the framework in forming his or her
opinion, the probative value of the opinion is seriously diminished or negated
altogether.”11
ANALYSIS
OWCP accepted that appellant sustained lumbar sprain, bilateral wrist sprain, bilateral
carpal tunnel syndrome, and a bilateral lesion of the ulnar nerve as a result of a January 27, 2011
slip and fall on ice. Appellant underwent a right carpal and cubital tunnel release on October 14,
2011 and a left carpal and cubital tunnel release on January 20, 2012. OWCP paid her
compensation for disability beginning March 15, 2011 and placed her on the periodic rolls as of
October 23, 2011.

5

Gewin C. Hawkins, 52 ECAB 242 (2001).

6

T.P., 58 ECAB 524 (2007); Pamela K. Guesford, 53 ECAB 727 (2002).

7

Id.

8

5 U.S.C. § 8123(a).

9

20 C.F.R. § 10.321.

10

R.C., 58 ECAB 238 (2006); David W. Pickett, 54 ECAB 272 (2002); Barry Neutuch, 54 ECAB 313 (2003).

11

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(October 1990).

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OWCP determined that a conflict arose between Dr. Tabuena, an attending physician,
and Dr. Draper, an OWCP referral physician, regarding the nature and extent of appellant’s
disability from employment. It referred appellant to Dr. Fayyazi, a Board-certified orthopedic
surgeon, for an impartial medical examination.
When a case is referred to an impartial medical examiner for the purpose of resolving a
conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual and medical background, must be given special weight.12 The Board finds, however, that
Dr. Fayyazi’s report is of diminished probative value as it was not based on an accurate factual
history. In his July 18, 2013 report, Dr. Fayyazi found that appellant had reduced motion of the
lumbar spine and bilateral wrists and normal sensation and strength of the upper and lower
extremities. He diagnosed lumbar sprain, left carpal tunnel syndrome, an aggravation of
preexisting right carpal tunnel syndrome, and right wrist sprain due to the accepted work injury.
Dr. Fayyazi found that appellant did not sustain an ulnar nerve injury and did not require
bilateral cubital tunnel releases.
To assure that the report of a medical specialist is based upon a proper factual
background, OWCP provides information to the physician through the preparation of a SOAF.
One of the essential elements in the SOAF is a list of the conditions claimed.13 If the SOAF is
inaccurate or incomplete, the probative value of the physician’s opinion is greatly diminished.14
With its referral letter, OWCP provided Dr. Fayyazi with an addendum to the SOAF that did not
include the accepted conditions including bilateral wrist sprain, lumbar sprain, bilateral carpal
tunnel syndrome, and a bilateral lesion of the ulnar nerve. Consequently, Dr. Fayyazi based his
opinion on an incomplete factual history, and thus his report is insufficient to meet OWCP’s
burden of proof.15
Further, Dr. Fayyazi found that appellant did not sustain a bilateral ulnar nerve lesion and
sustained only an aggravation of right carpal tunnel syndrome due to the accepted employment
injury. OWCP, however, accepted her claim for bilateral ulnar lesions and right carpal tunnel
syndrome. Consequently, Dr. Fayyazi’s opinion is outside the SOAF and is of reduced probative
value.16
Additionally, it appears that Dr. Fayyazi found that appellant had work restrictions as a
result of employment-related narcotic dependency. He advised that she required work
restrictions due to her “current narcotic dosage,” and recommended that the medication be
gradually stopped. Dr. Fayyazi opined that appellant’s narcotic usage resulted in limitations, but
did not specifically address whether her narcotic dependency was causally related to her
accepted employment injury. As OWCP further developed the evidence by referring her to
12

See R.H., 59 ECAB 382 (2008); R.C., 58 ECAB 238 (2006).

13

Federal (FECA) Procedure Manual, Part 2, -- Claims, Statement of Accepted Facts, Chapter 2.809.5
(September 2009).
14

Id. at Chapter 3.600(3) (October 1990).

15

See V.A., Docket No. 14-722 (issued May 8, 2014); T.F., Docket No. 12-209 (issued June 18, 2012).

16

See Willa M. Frazier, 55 ECAB 379 (2004).

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Dr. Fayyazi, it has the obligation to resolve the pertinent issues raised by his report.17 As the
conflict in medical opinion remains unresolved, the Board finds that OWCP failed to meet its
burden of proof to terminate appellant’s compensation and authorization for medical treatment.
CONCLUSION
The Board finds that OWCP improperly terminated appellant’s compensation and
authorization for medical treatment effective March 9, 2014.
ORDER
IT IS HEREBY ORDERED THAT the September 22, 2014 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: August 17, 2015
Washington, DC

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

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

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

17

See generally Michael E. Hogue, Docket No. 03-1809 (issued November 13, 2003); Mae Z. Hackett, 34 ECAB
1421 (1983).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.R., Appellant
and
U.S. POSTAL SERVICE, PHILADELPHIA
BULK MAIL CENTER, Philadelphia, PA,
Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-419
Issued: August 17, 2011

Case Submitted on the Record

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

JURISDICTION
On December 9, 2010 appellant filed an appeal from a July 13, 2010 decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 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 a recurrence of total disability on November 18,
2009 causally related to a December 13, 2005 employment injury.
On appeal, appellant’s attorney asserts the recurrence claim needs further development
because OWCP erred in not accepting permanent aggravation of degenerative disc disease of the
cervical spine, rather than temporary aggravation.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On December 13, 2005 appellant, then a 46-year-old mail handler, sustained an
employment-related right rotator cuff sprain/strain while pulling a sack of mail.2 She stopped
work that day and returned to limited duty for eight hours a day on May 29, 2006. OWCP
accepted that appellant sustained a recurrence of disability on September 21, 2006 and she was
placed on the periodic compensation rolls.
OWCP referred appellant to Dr. Robert Franklin Draper, Jr., a Board-certified orthopedic
surgeon, and in a February 1, 2007 report, Dr. Draper provided examination findings and
diagnosed impingement syndrome of the right shoulder with partial tear of the supraspinatus
tendon and cervical strain with disc herniations at C2 through C6. Dr. Draper advised that
appellant could perform light-duty work with restrictions to her physical activity. Appellant’s
claim was expanded to include temporary aggravation of degenerative cervical disc disease. On
August 6, 2007 Dr. John M. Fenlin, a Board-certified orthopedic surgeon, performed
acromioplasty and right rotator cuff repair. In reports dated December 20, 2007 to February 26,
2009, Dr. Dennis W. Ivill, a Board-certified physiatrist who is an associate of Dr. Fenlin,
provided examination findings, diagnosed C6 cervical radiculopathy and rotator cuff tear. He
advised that appellant could not work.
An April 6, 2009 functional capacity evaluation was reported as invalid due to
sub-maximal effort. On May 20, 2009 Dr. Ivill advised that appellant could return to a
restricted-duty position for eight hours daily with sitting and standing at will, pushing 1 pound
and pulling and lifting 10 pounds. Appellant returned to a modified mail handler position on
June 23, 2009. The duties of the position consisted of rewrapping packages while sitting or
standing in front of a conveyor belt using a gun and debris-sorting letters and flats and placing
them into tubs and trays. Lifting was restricted to 10 pounds. On June 29, 2009 OWCP reduced
appellant’s monetary compensation to zero, effective June 23, 2009, based on her actual earnings
in the modified mail handler position and by decision dated December 3, 2009, determined that
her actual wages in the modified mail handler position fairly and reasonably represented her
wage-earning capacity.3
On December 7, 2009 appellant filed a recurrence claim, alleging that the recurrence
occurred on November 18, 2009 when she stopped work. She noted that she returned to limited
duty in pain and that on November 18, 2009 pain, numbness, tingling and burning in her neck,
that extended into her right arm, wrist and hand, became unbearable. Appellant submitted a
November 11, 2009 report in which Dr. Ivill noted her complaint of a flare-up of neck and right
upper extremity pain. Dr. Ivill provided physical examination findings and advised that she
could work full time in a modified position with a 10-pound weight restriction. An employing
2

The record indicates that, at the time the claim was filed, appellant was working modified duty for an accepted
left hand tendinitis, adjudicated by OWCP under number xxxxxx567.
3

On April 19, 2010 appellant filed an appeal with the Board of the December 2, 2009 decision, assigned Docket
No. 10-1407, that proceeded to adjudication separately. The record also contains an April 22, 2010 decision
denying her schedule award claim. On January 20, 2011 appellant requested reconsideration with OWCP of the
April 22, 2010 decision.

2

establishment supervisor advised that, over the few weeks prior to the weeks prior to the
recurrence claim being filed, appellant was spending a lot of time away from her assignment and
was reprimanded on November 14, 2009 for being away from her duties for an extended period
of time.
In letters dated December 14 and 15, 2009, OWCP informed appellant of the evidence
needed to support her claim. An unsigned disability slip from the office of Dr. Rita Carabello, an
osteopath who practices family medicine, advised that appellant had been under her care from
November 18, 2009 and could not work due to nerve damage and rotator cuff injury. In a
December 29, 2009 attending physician’s report, she diagnosed cervical degenerative joint
disease and degenerative disc disease with arm neuropathy, aggravated by repetitive motion of
the right arm. Dr. Carabello advised that appellant should not return to work until evaluated by
pain management. By report dated January 7, 2010, he noted examination findings of right-sided
weakness and swelling around the wrist joint when appellant was seen in November 2009 and
that on January 5, 2010 appellant still had a significant amount of swelling in her right hand.
Dr. Carabello advised that the question of when appellant could return to work should be left to
the pain specialist.
By decision dated January 19, 2010, OWCP denied appellant’s claim on the grounds that
the medical evidence did not establish that the claimed recurrence resulted from the employment
injury. On February 8, 2010 appellant requested a hearing and submitted an unidentified,
unsigned December 15, 2009 report. In a January 13, 2010 report, Dr. Jeffrey North, a Boardcertified physiatrist, provided examination findings. His diagnoses included right neck pain,
cervical-brachial syndrome, likely right carpal tunnel syndrome and possible carpometacarpal
arthropathy.4 In a February 15, 2010 report, Dr. Leonard B. Kamen, an osteopath who practices
physical medicine and rehabilitation, noted appellant’s complaint of severe right-sided neck pain
radiating into the arm and radial aspect of the hand with numbness and tingling. He provided
physical examination findings, noting no evidence of progressive atrophy or dystrophic
appearance of the upper extremities distally and no indication of a focal neurologic loss with
reflex, motor or sensory testing and hypersensitivity to palpation of the upper neck and shoulder
girdle. Right shoulder motion was restricted and painful and the carpometacarpal joints of both
hands were tender, right worse than left. Dr. Kamen advised that, as appellant had no change in
her condition since being off work, she could return to limited duty on March 1, 2010.
At the video hearing, held on May 19, 2010, appellant testified that she stopped work
because the pain became unbearable and that Dr. Carabello initially took her off work until she
could be seen by Dr. Kamen, who kept her off work until she returned on March 1, 2010. She
thereafter submitted a February 15, 2010 disability slip in which Dr. Kamen advised that she
could return to work on March 1, 2010 regarding her right shoulder and brachial plexus injury.
In a June 7, 2010 report, Dr. Carabello advised that first saw appellant on November 25, 2009 for
increasing pain in her right arm and hand. She stated that physical examination demonstrated
swelling of the right hand, especially the thumb, along with weakness if the right upper
extremity. Dr. Carabello noted that appellant stated that her job involved wrapping and
unwrapping letters and opined that this would aggravate the hand and arm. She stated that she
4

Portions of the report are illegible.

3

advised appellant not to return to work until seen by her pain specialists on December 15, 2009
because, in her medical opinion, the excessive use of appellant’s hand at work would only make
her condition worse.
By decision dated July 13, 2010, OWCP’s hearing representative affirmed the
January 19, 2010 decision.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.5 This term also means an inability to work when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to his or her
work-related injury or illness is withdrawn (except when such withdrawal occurs for reasons of
misconduct, nonperformance of job duties or a reduction-in-force) or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.6
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that, light duty can be performed, the employee has the burden to establish by the
weight of reliable, probative and substantial evidence a recurrence of total disability. As part of
this burden of proof, the employee must show either a change in the nature and extent of the
injury-related condition or a change in the nature and extent of the light-duty requirements.7
The Board has held that OWCP may accept a limited period of disability without
modifying a standing wage-earning capacity determination. This occurs when there is a
demonstrated temporary worsening of a medical condition of insufficient duration and severity to
warrant modification of a wage-earning capacity determination. This narrow exception is only
applicable for brief periods of medical disability.8
ANALYSIS
The Board finds that appellant has not established a recurrence of total disability on
November 18, 2009 causally related to the December 13, 2005 employment injury because she
did not establish that the nature and extent of her injury-related condition changed on
November 18, 2009 so as to prevent her from continuing to perform her limited-duty assignment
or establish that her light-duty restrictions were exceeded.

5

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

6

Id.

7

Shelly A. Paolinetti, 52 ECAB 391 (2001); Terry R. Hedman, 38 ECAB 222 (1986).

8

See Katherine T. Kreger, 55 ECAB 633 (2004).

4

The accepted conditions in this case are right rotator cuff sprain/strain and temporary
aggravation of cervical degenerative disc disease. Appellant stopped work on November 18,
2009, asserting that pain in her neck and right upper extremity became so unbearable that she
could not work. Her modified duties consisted of rewrapping packages while sitting or standing
in front of a conveyor belt using a gun and debris-sorting letters and flats and placing them into
tubs and trays. Lifting was restricted to 10 pounds.
While Dr. Ivill, an attending physician, noted on November 11, 2009 that appellant
complained of a flare-up in neck and right upper extremity pain, he advised that she could work
full time with a 10-pound weight restriction. Dr. North merely provided examination findings
and did not discuss her ability to work. Their reports are therefore insufficient to establish that
appellant sustained a recurrence of disability on November 18, 2009.
Dr. Carabello first advised on December 29, 2009 that appellant’s cervical degenerative
disc disease with neuropathy was aggravated by repetitive motion of the right arm and on
January 7, 2010 she noted continued examination findings of weakness and swelling about the
right wrist joint, present since November 2009. She, however, advised that appellant’s return to
work date should be left to a pain specialist and on February 15, 2010, Dr. Kamen, a pain
specialist, advised that, as appellant had no change in her condition after being off work, she
could return to work on March 1, 2010. Dr. Carabello later advised on June 7, 2010 that she
began treating appellant on November 25, 2009 and advised that the excessive use of appellant’s
hand at work would only make her condition worse. Permanent aggravation of degenerative disc
disease of the cervical spine has not been accepted by OWCP and Dr. Carabello did not explain
why the accepted employment injuries or employment factors caused appellant to stop work.
Dr. Carabello’s opinion is therefore of diminished probative value and insufficient to meet
appellant’s burden.9
Appellant did not assert that she was working outside her restrictions or that her modified
assignment changed. It is her burden of proof to submit the necessary medical evidence to
establish a claim for a recurrence.10 The record does not contain a medical report providing a
reasoned medical opinion that appellant’s claimed recurrence of disability was caused by the
December 13, 2005 employment injury.11
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that she sustained a recurrence of total
disability on November 18, 2009 causally related to a December 13, 2005 employment injury.
9

Supra note 7.

10

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

11

Cecelia M. Corley, 56 ECAB 662 (2005).

5

ORDER
IT IS HEREBY ORDERED THAT the July 13, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 17, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
DEPARTMENT OF COMMERCE, BUREAU
OF THE CENSUS, Dallas, TX, Employer
__________________________________________

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

Docket No. 11-2145
Issued: June 12, 2012

Case Submitted on the Record

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

JURISDICTION
On September 23, 2011 appellant filed a timely appeal from an August 29, 2011 merit
decision of the Office of Workers’ Compensation Programs’ (OWCP), which denied his claim
for an employment-related injury. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.2
ISSUE
The issue is whether appellant met his burden of proof to establish that he developed
upper right back, neck and right shoulder conditions in the performance of duty causally related
to factors of his federal employment.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the August 29, 2011 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On May 23, 2011 appellant, then a 56-year-old crew leader assistant, filed an
occupational disease claim (Form CA-2) alleging that he developed pain in the upper right back
and right shoulder due to factors of his federal employment, including working on a computer.
He first became aware of his condition on March 17, 2011 and realized it was caused by his
employment that same day. Appellant did not stop work.
Appellant submitted a March 22, 2011 report by Dr. Delbert L. Opie, a chiropractor, who
diagnosed brachial neuritis/radiculitis, not otherwise specified (NOS)/cervical radiculitis,
cervicobachial syndrome (diffuse), nonallopathic lesions of cervical region, myalgia and
myositis. Dr. Opie opined that appellant sustained these conditions while performing his work
duties for the employing establishment.
By letter dated June 13, 2011, OWCP requested additional evidence to support
appellant’s claim and allotted 30 days for submission. Appellant was advised as to the limitation
on chiropractors qualifying as a physician under FECA.
Subsequently, appellant submitted a March 22, 2011 x-ray report, which revealed
moderate degenerative joint disease and degenerative disc disease in the cervical and thoracic
spine.
On March 24, 2011 appellant filed a notice of traumatic injury (Form CA-1) alleging that
he sustained a pinched nerve in his right shoulder and neck due to over-use of a computer while
in the performance of duty on March 17, 2011.
Appellant submitted narrative statements dated March 28 to June 27, 2011 reiterating that
he conducted extensive work on a computer for 6 to 8 hours a day during the week of March 13
to 18, 2011.
In a June 24, 2011 report, Dr. Opie advised that as of April 10, 2011 appellant was able to
do the same type of work he performed at the time of injury.
On June 27, 2011 Dr. Tyrone Hanks, an osteopath specializing in family medicine,
diagnosed neuralgia/myalgia.
Appellant submitted a July 13, 2011 report by Kurt Giles, a physician’s assistant, which
provided notes from an initial evaluation.
A July 15, 2011 x-ray of the right shoulder showed no fracture or subluxation and mild
degenerative changes in the acromioclavicular joint.
A July 15, 2011 x-ray of the thoracic spine revealed no compression fracture and mild
degenerative changes in the mid and lower thoracic spine.
A July 15, 2011 x-ray of the cervical spine showed no fracture or subluxation, mild
degenerative disease at C5-6 and C6-7 and mild degenerative facet disease at C3-7.

2

Appellant also submitted physical therapy notes dated July 15 and 25, 2011.
In an August 18, 2011 report, Dr. Brian D. Belnap, an osteopath Board-certified in pain
medicine and physical medicine and rehabilitation, opined that appellant’s electromyogram
(EMG) and nerve conduction studies were abnormal. He stated that there was electrodiagnostic
evidence of a mild-to-moderate right demyelinating sensory and motor median neuropathy
across the wrist or carpal tunnel syndrome. There was no evidence of radiculopathy or
polyneuropathy. Dr. Belnap reported that clinically it appeared that appellant may have some
radiculitis in his right lower cervical nerve roots and trigger points to the right rhomboids. He
stated that appellant’s neck pain with right radicular arm pain began while doing several hours of
computer work at his job approximately five months prior.
By decision dated August 29, 2011, OWCP acknowledged appellant’s notices of
occupational disease and traumatic injury and accepted them as a single occupational disease
claim. It denied the claim on the grounds that the medical evidence submitted was not sufficient
to establish causal relationship.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA and that an injury4 was sustained in the performance of duty. These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.5
To establish that, an injury was sustained in the performance of duty in a claim for an
occupational disease claim, an employee must submit the following: (1) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; (2) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence. Rationalized medical opinion
evidence is medical evidence which includes a physician’s rationalized opinion on whether there
is a causal relationship between the employee’s diagnosed condition and the implicated

3

5 U.S.C. §§ 8101-8193.

4

OWCP’s regulations define an occupational disease or illness as a condition produced by the work environment
over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
5

See J.C., Docket No. 09-1630 (issued April 14, 2010). See also Ellen L. Noble, 55 ECAB 530 (2004).

6

Id. See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

3

employment factors.7 The opinion of the physician must be based on a complete factual and
medical background of the employee, 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 employee.8
ANALYSIS
The Board finds that appellant failed to meet his burden of proof to establish that he
developed an occupational disease in the performance of duty. The record reflects that he has
right shoulder, cervical and thoracic conditions. Further, appellant’s federal employment
requires extensive use of a computer. However, he did not establish that his conditions are
causally related to the factors of his federal employment.
Appellant submitted a June 27, 2011 report by Dr. Hanks, who diagnosed neuralgia and
myalgia. Dr. Hanks failed to directly address the issue of causal relationship as he did not
provide a rationalized medical opinion explaining how factors of appellant’s federal
employment, such as computer usage, caused or aggravated her neuralgia and myalgia. The
Board has held that medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.9 Lacking
thorough medical rationale on the issue of causal relationship, the medical report of Dr. Hanks is
insufficient to establish that appellant sustained an employment-related injury.
On August 18, 2011 Dr. Belnap opined that appellant’s EMG and nerve conduction
studies were abnormal. He noted that there was electrodiagnostic evidence of a mild-tomoderate right demyelinating sensory and motor median neuropathy across the wrist or carpal
tunnel syndrome. Dr. Belnap reported that clinically it appeared that appellant may have some
radiculitis in his right lower cervical nerve roots and trigger points to the right rhomboids. He
stated that appellant’s neck pain with right radicular arm pain began while doing several hours of
computer work at his job approximately five months prior. Dr. Belnap failed to directly address
the issue of causal relationship. He did not provide a rationalized medical opinion explaining
how factors of appellant’s federal employment, such as computer usage, caused or aggravated
the conditions found in diagnostic testing. The Board has held that the mere fact that appellant’s
symptoms arise during a period of employment or produce symptoms revelatory of an
underlying condition does not establish a causal relationship between his condition and his
employment factors.10 Lacking thorough medical rationale on the issue of causal relationship,
the medical reports of Dr. Belnap are insufficient to establish that appellant sustained an
employment-related injury.
The reports of Dr. Opie, a chiropractor, are of no probative medical value. Under FECA
a chiropractor is a physician to the extent that the reimbursable services are limited to treatment
7

See D.N., Docket No. 10-1762 (issued May 10, 2011).

8

See D.E., Docket No. 07-27 (issued April 6, 2007). See also Victor J. Woodhams, 41 ECAB 345 (1989).

9

See C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

10

See Richard B. Cissel, 32 ECAB 1910, 1917 (1981); William Nimitz, Jr., 30 ECAB 567, 570 (1979).

4

consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray
to exist.11 There is no indication from the reports of Dr. Opie that he diagnosed a subluxation as
demonstrated by x-ray to exist. He is not a physician as defined under FECA and thus his
reports do not constitute competent medical opinion evidence.
The physical therapy notes dated July 15 and 25, 2011 are similarly of no probative value
as physical therapists are not physicians under FECA.12 The July 13, 2011 report by Mr. Giles is
of no probative value as physician’s assistants are not physicians under FECA.13 As such, the
Board finds that appellant did not meet his burden of proof with these submissions.
As appellant has not submitted any rationalized medical evidence to support his
allegation that he sustained an injury causally related to the indicated employment factors, he
failed to meet his burden of proof to establish a claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
developed upper right back, neck and right shoulder conditions in the performance of duty
causally related to factors of his federal employment.

11

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

12

5 U.S.C. § 8101(2). Section 8101(2) of FECA provides as follows: “(2) ‘physician’ includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope
of their practice as defined by State law.” See also Paul Foster, 56 ECAB 208, 212 n.12 (2004); Joseph N. Fassi,
42 ECAB 677 (1991); Barbara J. Williams, 40 ECAB 649 (1989).
13

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the August 29, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 12, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.L., Appellant
and
U.S. POSTAL SERVICE, OKLAHOMA
PERFORMANCE CLUSTER,
Oklahoma City, OK, Employer
__________________________________________

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

Docket No. 11-276
Issued: August 11, 2011

Case Submitted on the Record

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

JURISDICTION
On November 16, 2010 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) June 25, 2010 merit decision denying his claim for an
increased schedule award. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained more than a one percent permanent impairment
of his right lower extremity for which he received a schedule award.
FACTUAL HISTORY
On December 1, 2006 appellant, then a 60-year-old automotive mechanic, injured his
lower back when he slipped and fell in the performance of duty. OWCP accepted his claim for
1

5 U.S.C. § 8101 et seq.

lumbar sprain and sciatica, right. It also authorized decompressive laminectomy L4-5 and L4-5
discectomy, which occurred on January 29, 2008. Appellant returned to limited duty on
June 16, 2008.
On August 29, 2008 appellant requested a schedule award.
Appellant submitted a September 10, 2008 report from Dr. Randall L. Hendricks, a
Board-certified orthopedic surgeon, who found that appellant had motor and sensory deficits due
to his accepted injury. Pursuant to the fifth edition of the American Medical Association, Guides
to the Evaluation of Permanent Impairment (A.M.A., Guides), Dr. Hendricks concluded that
appellant had nine percent whole person impairment.
In a December 22, 2008 second opinion report, Dr. Sri K. Reddy, a Board-certified
physiatrist, provided examination findings which revealed residual pain in both legs and sensory
loss in the right L5 distribution. Referring to section 15.12 on page 423 of the fifth edition of the
A.M.A., Guides, he concluded that appellant had a one percent sensory loss for the right lower
extremity.
In a March 10, 2009 decision, OWCP granted appellant a schedule award for one percent
impairment of his right lower extremity. The period of the award was from December 22, 2008
to January 11, 2009. OWCP determined that the date of maximum medical improvement was
January 2, 2008.
On March 11, 2009 appellant requested reconsideration. By decision dated March 27,
2009, OWCP denied his request for merit review.
On April 10, 2009 appellant submitted a request for an additional schedule award. In
support of his request, he submitted an April 6, 2009 report from Dr. Hendricks who opined that
appellant had 7 percent permanent impairment of the right lower extremity as a result of
numbness and 7 percent impairment from mild dorsiflexor weakness (L5 nerve root), for a
combined right lower extremity impairment of 14 percent. Dr. Hendricks’ report did not contain
examination findings, an explanation of his opinions or references to the A.M.A., Guides.
In an October 28, 2009 second opinion report, Dr. Dennis E. Foster, a Board-certified
orthopedic surgeon, provided examination findings which revealed restricted range of motion of
the lumbosacral spine and “resultant weakness in the right lower extremity.” He opined that
appellant had 13 percent whole body impairment relative to his low back.
Pursuant to the district medical adviser’s request, OWCP asked Dr. Foster to clarify his
report in order to determine whether appellant had an abnormality due to the accepted injury that
would result in permanent impairment to the lower extremity. On January 20, 2010 Dr. Foster
indicated that his 13 percent rating took into consideration any residual effects of the right lower
extremity as it related to the lower back condition. He stated that there was no reason to
apportion an additional impairment for the right lower extremity.
OWCP forwarded Dr. Foster’s reports to the district medical adviser for review. On
March 1, 2010 the district medical adviser stated that Dr. Foster’s reports were not adequate to

2

permit a proper impairment rating and recommended an evaluation by another second opinion
physician.
OWCP referred appellant, together with the case record and a statement of accepted facts,
to Dr. Christopher Jordan, a Board-certified orthopedic surgeon, for a second opinion evaluation.
In an April 14, 2010 report, Dr. Jordan reviewed appellant’s history and described his findings
on examination. Appellant demonstrated normal gait, no pain with palpation or flexion, and no
spasm. Neurological examination was normal with intact motor and sensory function in both
legs. Examination of the lower extremities revealed normal range of motion in all joints, no
swelling or redness and no atrophy. Any radiculopathy had resolved. Pulses were 2+. He
opined that pursuant to Tables 17-4, 17-6 and 17-7 of the sixth edition of the A.M.A., Guides,
appellant had seven percent whole person impairment. He acknowledged, however, that OWCP
does not accept whole person impairments as a basis for a schedule award. As appellant had “no
extremity findings,” he was unable to provide a rating for the lower extremities.
In a May 26, 2010 report, the district medical adviser stated that there was no basis for
rating any impairment based on appellant’s accepted conditions. He noted that Dr. Jordan had
provided a rating for the spine or whole person, neither of which was permissible under the
A.M.A., Guides. The medical adviser noted that Dr. Jordan’s neurological examination was
normal, with intact motor and sensory function in both legs. Accordingly, appellant had a zero
percent permanent impairment of the lower extremities.
By decision dated June 25, 2010, OWCP denied appellant’s request for an increased
schedule award based upon the reports of Dr. Jordan and the district medical adviser.
LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. OWCP evaluates the degree of permanent impairment according to the standards
set forth in the specified edition of the A.M.A., Guides.4 The A.M.A., Guides has been adopted
by the implementing regulations as the appropriate standard for evaluating schedule losses.5

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

Id. For impairment ratings calculated on and after May 1, 2009, the Office should advise any physician
evaluating permanent impairment to use the sixth edition of A.M.A., Guides. Federal (FECA) Procedure Manual,
Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.6.a (January 2010).
5

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

3

No schedule award is payable for a member, function or organ of the body not specified
in the Act or in the implementing regulations.6 FECA and its implementing regulations do not
provide for the payment of a schedule award for the permanent loss of use of the back or the
body as a whole.7 The Board notes that section 8101(19) specifically excludes the back from the
definition of organ.8 However, a claimant may be entitled to a schedule award for permanent
impairment to an upper or lower extremity even though the cause of the impairment originated in
the neck, shoulders or spine.9
ANALYSIS
Appellant’s claim was accepted for lumbar sprain and sciatica, right. On March 10, 2009
OWCP granted a schedule award for a one percent impairment of his right lower extremity based
on sensory loss. Appellant subsequently requested an additional schedule award. The medical
evidence of record, however, does not establish that he has any permanent impairment to his
lower extremities causally related to his accepted lumbar sprain and sciatica. As FECA does not
provide for a schedule award based on impairment of the back or spine, the Board finds that
appellant has no more than a one percent permanent impairment of his right lower extremity for
schedule award purposes.
In his April 6, 2009 report, Dr. Hendricks opined that appellant had 7 percent permanent
impairment of the right lower extremity as a result of numbness and 7 percent impairment from
mild dorsiflexor weakness (L5 nerve root), for a combined right lower extremity impairment of
14 percent. His report did not contain examination findings, an explanation of his opinions or
references to the A.M.A., Guides. It is therefore of limited probative value.
On October 28, 2009 Dr. Foster provided examination findings which revealed restricted
range of motion of the lumbosacral spine and “resultant weakness in the right lower extremity.”
He opined that appellant had three percent whole body impairment relative to his low back. On
January 20, 2010 Dr. Foster indicated that his 13 percent rating took into consideration any
residual effects of the right lower extremity as it related to the lower back condition and stated
that there was no reason to apportion an additional impairment for the right lower extremity. As
Dr. Foster failed to explain how appellant’s accepted conditions were causally related to a
permanent impairment of a lower extremity, his report is of diminished probative value. Further,
FECA and its implementing regulations do not provide for the payment of a schedule award for
the permanent loss of use of the back or the body as a whole. Therefore, Dr. Foster’s reports
cannot form the basis of a schedule award.10

6

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

7

See Jay K. Tomokiyo, 51 ECAB 361 (2000).

8

5 U.S.C. § 8101(19).

9

Thomas J. Engelhart, supra note 6.

10

See supra notes 7 and 8 and accompanying text.

4

Dr. Jordan’s April 14, 2010 neurological examination was normal, with intact motor and
sensory function in both legs. Examination of the lower extremities revealed normal range of
motion in all joints, no swelling or redness and no atrophy. Any radiculopathy had resolved.
Pulses were 2+. Dr. Jordan stated that as appellant had “no extremity findings,” he was unable to
provide a rating for the lower extremities.11 The medical adviser reviewed Dr. Jordan’s report,
noting that appellant’s neurological examination was normal, with intact motor and sensory
function in both legs. Based upon Dr. Jordan’s report, the district medical adviser concluded that
appellant had a zero percent permanent impairment of the lower extremities. He noted that
Dr. Jordan had provided a rating for the spine or whole person, neither of which was permissible
under the A.M.A., Guides.
The Board finds that Dr. Jordan’s report was well rationalized and provided a sufficient
basis for a schedule award determination. The Board further finds that Dr. Jordan and the district
medical adviser properly considered the medical evidence under the standards of the A.M.A.,
Guides and properly concluded that appellant had no permanent impairment of the lower
extremities as of March 3, 2010. Therefore, OWCP properly denied appellant’s request for an
additional schedule award.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he has
more than a one percent impairment of his right lower extremity.

11

The Board notes that Dr. Jordan concluded that appellant had a seven percent whole person impairment, based
upon Table 17-4, Table 17-6 and Table 17-7 of the sixth edition of the A.M.A., Guides, which address impairment
related to a cervical spine injury. As noted, FECA and its implementing regulations do not provide for the payment
of a schedule award for the permanent loss of use of the back or the body as a whole. Id.

5

ORDER
IT IS HEREBY ORDERED THAT the June 25, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 11, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
CLAIMS DIVISION, Roanoke Rapids, NC,
Employer
__________________________________________

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

Docket No. 07-844
Issued: September 5, 2007

Case Submitted on the Record

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

JURISDICTION
On February 6, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ March 24 and November 14, 2006 merit decision concerning the
termination of her compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s wage-loss
compensation effective April 16, 2006 on the grounds that she had no disability due to her
accepted employment injuries after that date.
FACTUAL HISTORY
On January 15, 2002 appellant, then a 46-year-old claims clerk, filed an occupational
disease claim alleging that she sustained injury to her arms due to the repetitive duties of her job,
including typing and handling case files. She first became aware of her condition in

January 1990 and first realized that it was caused or aggravated by her employment in
June 1990. Appellant did not stop work at the time she filed her claim, but she began performing
limited-duty work for the employing establishment. The Office accepted that she sustained
bilateral carpal tunnel syndrome and arthritic changes of the first carpometacarpal joints of the
thumbs.
The record contains a description of the claims clerk position from early 1991 which
indicates that the position involved such duties as reviewing claim files, scheduling
appointments, entering data into the computer, processing incoming mail, and using the
computer to create and edit documents. The position required use of the computer to perform
such tasks as preparing periodic and special workload inventories and reports, extracting data
from documents to complete required items on forms, coding evidence per agency requirements,
completing forms to ensure that future benefits are protected, and making routine data entries to
change records regarding entitlement to benefits. Appellant first began to complain of right hand
problems in 1990. Electromyogram (EMG) and nerve conduction studies conducted on
August 20, 1990 showed normal results in the right arm. The record contains medical records
from 1992 which showed that appellant was diagnosed with de Quervain’s tendinitis of the right
wrist and on December 28, 1992 she underwent a surgical release of the first extensor
compartment of the right wrist. The findings of January 15, 2002 EMG and nerve conduction
studies showed bilateral carpal tunnel syndrome.
On April 29, 2002 appellant underwent right carpal tunnel release surgery and, on
June 24, 2002, she underwent left carpal tunnel release surgery. Both procedures were
authorized by the Office. After stopping work for her surgeries, appellant returned to limitedduty work for the employing establishment on a full-time basis in August 2002. She returned to
regular duty in February 2003 and stopped work in July 2003.
In February 2004, the Office referred appellant to Dr. Ganesh Bissram, a Board-certified
orthopedic surgeon, for further evaluation of her condition. In a February 27, 2004 report,
Dr. Bissram diagnosed status post bilateral carpal tunnel release with median nerve neuritis,
more on the left, and degenerative arthritic changes of the first carpometacarpal joint of both
wrists. He noted that these conditions were related to appellant’s employment and indicated that,
due to her weak grip strength and wrist pain, appellant could not engage in heavy lifting,
repetitive hand motion or heavy gripping. In a February 27, 2004 work restriction form,
Dr. Bissram indicated that appellant could move her wrists, push, pull, reach, or lift up to eight
pounds for two hours per day. On April 13, 2004 Dr. Bissram indicated that he had reviewed the
description of the claims clerk position and determined that appellant could perform the position.
On May 12, 2004 Dr. Gilbert G. Whitmer, an attending Board-certified orthopedic
surgeon, indicated that he agreed with the employment-related diagnoses detailed by Dr. Bissram
but noted that he did not agree with Dr. Bissram’s opinion on appellant’s ability to work as
described in his recommended work restrictions. In various prior reports, including a
December 18, 2003 report, Dr. Whitmer had indicated that appellant had severe weakness and
pain in her hands and wrist and was unable to return to work.
The Office determined that there was a conflict in the medical opinion between
Dr. Bissram and Dr. Whitmer regarding the effect of appellant’s employment-related conditions

2

on her ability to work. It indicated that it would refer appellant to Dr. Eduardo Oscar Marsigli, a
Board-certified orthopedic surgeon, for an impartial medical examination and opinion on this
matter. The Office actually referred appellant to Dr. Adolfo Hector Marsigli, a Board-certified
orthopedic surgeon. On October 5, 2004 Dr. Adolfo Hector Marsigli determined that appellant
could return to the claims clerk position if she took a 15-minute break every 2 hours.
Appellant claimed that she sustained depression and hypertension due to the pain from
her accepted employment injuries. In support of her claim, she submitted brief reports of
Dr. Gerardo Maradiaga, an attending Board-certified internist, and Dr. Scott Cunningham, an
attending Board-certified psychiatrist. In an April 4, 2005 decision, the Office denied appellant’s
claim on the grounds that she did not submit sufficient medical evidence to establish her claim.
In an April 19, 2005 decision, the Office terminated appellant’s disability compensation
effective April 18, 2005 based on the opinion of Dr. Adolfo Hector Marsigli. In a decision dated
and finalized October 4, 2005, an Office hearing representative reversed the Office’s termination
of compensation because appellant was improperly referred to Dr. Adolfo Hector Marsigli rather
than Dr. Eduardo Oscar Marsigli. The hearing representative directed the Office to refer
appellant to another impartial medical specialist for an opinion on her ability to work.1
On October 17, 2005 the Office referred appellant to Dr. Paul H. Wright, a Boardcertified orthopedic surgeon, for an impartial medical examination and opinion on the effect of
her employment-related conditions on her ability to work. On December 1, 2005 Dr. Wright
detailed appellant’s factual and medical history and indicated that he had received a description
of the claims clerk position. He noted that appellant exhibited tenderness to palpation over the
radial aspect of the right wrist and a pulling sensation in each palm which extended into the
thumbs upon Allen’s testing. Dr. Wright indicated that appellant continued to have employmentrelated bilateral thumb arthritis as well as bilateral wrist tendinitis which was part of her accepted
condition of bilateral carpal tunnel syndrome. He stated that, due to the effects of her accepted
conditions, appellant needed to avoid activities that would aggravate her wrists and thumbs.
Dr. Wright indicated that appellant should not lift more than 10 pounds with each hand or
squeeze more than 10 pounds of grip pressure and should avoid repetitive use of her hands to
include finger and wrist flexion. In a December 1, 2005 work restriction form, Dr. Wright stated
that appellant should not engage in any repetitive wrist or elbow motions.
In January 2006 the employing establishment provided an additional description of the
claims clerk position that appellant held when injured. Appellant was required to spend 60
percent of her time engaged in intermittent typing usually consisting of fewer than 100 strokes
per interview. She had to perform about 134 interviews per week. Appellant spent less than five
percent of her time pulling files and less than five percent of her time lifting file folders which on
average weighed less than three pounds. The employing establishment later indicated that the
name of the position changed from claims clerk to claims assistant but that the duties and
physical demands remained the same.

1

The hearing representative also affirmed the Office’s April 4, 2005 decision denying appellant’s emotional
condition. In an April 13, 2006 decision, the Office affirmed this finding of the October 4, 2005 decision.

3

On January 23, 2006 Dr. Wright stated that he had reviewed the additional description of
the claims clerk position provided by the employing establishment. He indicated that, taking the
accepted conditions into consideration, appellant was capable of performing the claims clerk
position. Dr. Wright stated that it appeared that appellant’s failure to return to work was mainly
due to her depression, hypertension and chronic pain syndrome.
In a February 21, 2006 notice, the Office advised appellant of its proposed termination of
her disability compensation on the grounds that she no longer had disability due to her accepted
employment injuries. The Office informed appellant of its determination that the weight of the
medical evidence regarding this matter rested with the opinion of the impartial medical
examiner, Dr. Wright.
In a March 7, 2006 letter, appellant’s attorney argued that the description of the claims
clerk position contained in the record was not sufficiently detailed to accurately identify all the
physical activity appellant was required to perform. Appellant’s attorney asserted that
Dr. Wright’s prescription against engaging in repetitive wrist and finger motion prevented
appellant from performing the position. Appellant submitted May 18, 2005 and March 1, 2006
reports in which Dr. Raviner Mamedi, an attending Board-certified psychiatrist, discussed her
emotional condition.
In a March 28, 2006 decision, the Office finalized its proposed termination of appellant’s
wage-loss compensation effective April 16, 2006. Appellant remained entitled to compensation
for medical treatment related to the accepted conditions. She submitted an August 21, 2006
report of Dr. Mamedi. Appellant requested a hearing before an Office hearing representative
and, at the August 28, 2006 hearing, she argued that the position she performed at the time of her
injury was more demanding than the position detailed in the job description found in the record.
In a November 14, 2006 decision, the Office hearing representative affirmed the Office’s
March 24, 2006 decision.
LEGAL PRECEDENT
Under the Federal Employees’ Compensation Act,2 once the Office has accepted a claim
it has the burden of justifying termination or modification of compensation benefits.3 The Office
may not terminate compensation without establishing that the disability ceased or that it was no
longer related to the employment.4 The Office’s burden of proof includes the necessity of
furnishing rationalized medical opinion evidence based on a proper factual and medical
background.5
Section 8123(a) of the Act provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
2

5 U.S.C. §§ 8101-8193.

3

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

4

Id.

5

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

4

the Secretary shall appoint a third physician who shall make an examination.”6 In situations
where there exists 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.7
ANALYSIS
The Office accepted that appellant sustained bilateral carpal tunnel syndrome and
arthritic changes of the first carpometacarpal joints of the thumbs. In a March 28, 2006 decision,
the Office terminated appellant’s disability compensation effective April 16, 2006 on the
grounds that she had no disability due to her accepted employment injuries after that date. The
Office based its termination on the opinion of Dr. Wright, a Board-certified orthopedic surgeon
who served as an Office referral physician. Dr. Wright determined that appellant could perform
the claims clerk position she held when injured.
The Office properly determined that there was a conflict in the medical opinion between
Dr. Bissram, a Board-certified orthopedic surgeon acting as an Office referral physician, and
Dr. Whitmer, an attending Board-certified orthopedic surgeon, regarding the effect of appellant’s
employment-related conditions on her ability to work.8
On February 27, 2004 Dr. Bissram indicated that appellant had weak grip strength and
wrist pain due to her employment-related conditions and stated that she could move her wrists,
push, pull, reach, or lift up to eight pounds for two hours per day. On April 13, 2004
Dr. Bissram indicated that he had reviewed the description of the claims clerk position and
determined that appellant could perform the position. In contrast Dr. Whitmer noted on May 12,
2004 that he agreed with the employment-related diagnoses detailed by Dr. Bissram but
indicated that he did not agree with Dr. Bissram’s opinion on appellant’s ability to work as
described in his recommended work restrictions. In various prior reports, including a
December 18, 2003 report, Dr. Whitmer had indicated that appellant had severe weakness and
pain in her hands and wrist and was unable to return to work.
In order to resolve the conflict, the Office properly referred appellant, pursuant to section
8123(a) of the Act, to Dr. Wright, a Board-certified orthopedic surgeon, for an impartial medical
examination and an opinion on the matter.9 The Board finds that the opinion of Dr. Wright is not
sufficiently well rationalized to resolve the conflict in the medical opinion regarding the effect of
appellant’s employment-related conditions on her ability to work. Dr. Wright ultimately
6

5 U.S.C. § 8123(a).

7

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

8

See supra note 6 and accompanying text.

9

See id. The Office had previously referred appellant to Dr. Eduardo Oscar Marsigli for an impartial medical
examination. An Office hearing representative properly found that the referral was improper because appellant was
referred to Dr. Adolfo Hector Marsigli rather than Dr. Eduardo Oscar Marsigli. The hearing representative then
correctly directed the Office to refer appellant to another impartial medical specialist.

5

determined that appellant could perform the claims clerk position she held when injured, but he
did not provide adequate rationale for this determination.
On December 1, 2005 Dr. Wright noted that appellant continued to have employmentrelated bilateral thumb arthritis as well as bilateral wrist tendinitis which was part of her accepted
condition of bilateral carpal tunnel syndrome.10 He stated that due to the effects of her accepted
conditions, appellant needed to avoid activities that would aggravate her wrists and thumbs.
Dr. Wright indicated that appellant should not lift more than 10 pounds with each hand or
squeeze more than 10 pounds of grip pressure and should avoid repetitive use of her hands to
include finger and wrist flexion. In a December 1, 2005 work restrictions form, Dr. Wright
provided an even more restrictive assessment of appellant’s ability to work in that he stated that
appellant should not engage in any repetitive wrist or elbow motions.
In January 2006 the employing establishment provided additional description of the
claims clerk position that appellant held when injured. Appellant was required to spend 60
percent of her time each day engaged in intermittent typing of interviews. She was required to
conduct about 134 interviews per week with each interview usually requiring the performance of
fewer than 100 strokes per interview. Appellant spent less than five percent of her time pulling
files and less than five percent of her time lifting file folders which on average weighed less than
three pounds. On January 23, 2006 Dr. Wright stated that he had reviewed the additional
description of the claims clerk position provided by the employing establishment. He indicated
that, taking the accepted conditions into consideration, appellant was capable of performing the
claims clerk position.
Dr. Wright did not adequately explain his opinion that appellant could perform the claims
clerk position. On December 1, 2005 Dr. Wright provided an extremely restrictive assessment of
appellant’s ability to use her wrists, hands and fingers. Moreover, his December 1, 2005 opinion
is equivocal in that he indicated in the text of his narrative report that appellant should avoid
repetitive use of her hands, but stated in his work restrictions form that appellant should not
engage in any repetitive wrist or elbow motions. Dr. Wright did not explain this discrepancy in
his January 23, 2006 supplemental report. The claims clerk position involves duties that require
a significant amount of wrist, hand and finger motion and Dr. Wright has not explained how
appellant’s medical condition would allow her to perform these duties given his opinion that she
could only use her hands to a limited degree. Appellant’s recording of interviews would usually
require her to perform thousands of keystrokes per day. Her handling of case files for about 10
percent of the day would require her to engage in such activities as thumbing through case
records to locate documents.
Moreover, there are a number of other duties of the claims clerk position which would
require appellant to move her wrist, hands and fingers. For example, appellant was required to
use the computer to perform such tasks as preparing periodic and special workload inventories
and reports, extracting data from documents to complete required items on forms, coding
evidence per agency requirements, completing forms to ensure that future benefits are protected,
and making routine data entries to change records regarding entitlement to benefits. These duties
10

Dr. Wright noted that appellant exhibited tenderness to palpation over the radial aspect of the right wrist and a
pulling sensation in each palm which extended into the thumbs upon Allen’s testing.

6

would also appear to be in contravention of Dr. Wright’s restrictive assessment of appellant’s
ability to use her hands and Dr. Wright has not adequately explained how appellant would be
able to perform these and similar duties.
For these reasons, Dr. Wright’s reports do not provide a well-rationalized opinion that
appellant could perform the claims clerk position she held when injured. Therefore,
Dr. Wright’s opinion does not show that appellant no longer had disability due to her accepted
employment injuries and his opinion is not entitled to special weight on this matter. The Board
finds that since the Office relied on the opinion of Dr. Wright to terminate appellant’s disability
compensation effective April 16, 2006 without having resolved the existing conflict in the
medical evidence, the Office has failed to meet its burden of proof in terminating appellant’s
disability compensation.11
CONCLUSION
The Board finds that the Office did not meet its burden of proof to terminate appellant’s
disability compensation effective April 16, 2006 on the grounds that she had no disability due to
her accepted employment injuries after that date.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
November 14 and March 24, 2006 decisions are reversed.
Issued: September 5, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
11

See Gail D. Painton, 41 ECAB 492, 498 (1990); Craig M. Crenshaw, Jr., 40 ECAB 919, 922-23 (1989).

7