United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.F., Appellant
and
DEPARTMENT OF THE ARMY,
COMMISSARY, Fort Meyer, MD, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 12-1092
Issued: October 11, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 23, 2012 appellant filed a timely appeal from the April 12, 2012 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 appellant has more than a 10 percent impairment of his right upper
extremity, for which he received a schedule award.
FACTUAL HISTORY
On June 23, 2010 appellant, a 45-year-old meat cutter, sustained a traumatic injury in the
performance of duty when a u-boat full of box meat rolled into his right shoulder. OWCP
accepted his claim for a complete right rotator cuff rupture and right shoulder impingement.
1

5 U.S.C. § 8101 et seq.

Appellant filed a claim for a schedule award. On May 31, 2011 Dr. Easton L.
Manderson, a Board-certified orthopedic surgeon and OWCP referral physician, examined
appellant and diagnosed right rotator cuff, rotator cuff tear and impingement with an abnormal
hypertrophic arthritic acromiovascular joint contributing to the rotator cuff syndrome.
Findings on physical examination of the right shoulder showed 100 degrees of flexion,
100 degrees of abduction, 54 degrees of internal rotation and 54 degrees of external rotation.
Dr. Manderson determined that these represented upper extremity impairments of 3, 3, 2 and 2
respectively, for a total upper extremity impairment of 10 percent due to loss of shoulder motion.
An OWCP medical adviser agreed with Dr. Manderson’s method of evaluation and
determination of impairment.
On July 7, 2011 OWCP issued a schedule award for a 10 percent impairment of
appellant’s right upper extremity.
Appellant requested reconsideration. Noting that the number of weeks of compensation
continues when the loss has worsened, he requested a continuation of the schedule award for his
loss. “The [permanent partial impairment] rating has increased and the number of weeks of
compensation must continue.”
A November 30, 2011 preoperative examination of appellant’s right shoulder showed that
forward flexion was 180 degrees and abduction was 180 degrees. This was the same range of
motion found in a September 9, 2011 treatment note.
In an April 12, 2012 decision, OWCP reviewed the merits of appellant’s case and denied
modification of his schedule award. It found that the additional medical evidence submitted had
no probative value on the extent of his impairment rating, as it did not discuss impairment or
schedule award calculations.
On appeal, appellant argues that the number of weeks of compensation continue when the
loss of a member worsens.
LEGAL PRECEDENT
FECA authorizes the payment of schedule awards for the loss or loss of use of specified
members, organs or functions of the body.2 Such loss or loss of use is known as permanent
impairment. OWCP evaluates the degree of permanent impairment according to the standards
set forth in the specified edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment.3

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404. For impairment ratings calculated on and after May 1, 2009, OWCP should advise any
physician evaluating permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.6.a (January 2010).

2

ANALYSIS
The sixth edition of the A.M.A., Guides, Table 15-34, page 475, shows upper extremity
impairment due to loss of shoulder motion. As Dr. Manderson, the Board-certified orthopedic
surgeon and OWCP referral physician, found that flexion to 100 degrees represents three percent
impairment of the upper extremity. Abduction to 100 degrees also represents three percent
impairment. Internal rotation to 54 degrees and external rotation to 54 degrees both represent
two percent impairment.4 As all values for the joint are added,5 appellant’s total impairment is
10 percent, which OWCP awarded.
This entitled appellant to 31.2 weeks of compensation. Appellant seeks a continuation of
his schedule award, or additional weeks of compensation, because his impairment has worsened.
The medical evidence, however, does not support this assertion. Indeed, the findings on physical
examination obtained during appellant’s November 30, 2011 preoperative examination showed
full range of motion in both flexion and abduction, both having improved considerably from 100
degrees to 180 degrees six months after Dr. Manderson’s evaluation.
As the record supports that OWCP properly calculated appellant’s July 7, 2011 schedule
award, and as the medical evidence does not show a worsening of his impairment, the Board
finds that OWCP properly denied an increased schedule award. The Board will affirm OWCP’s
April 12, 2012 decision.
Appellant argues that the number of weeks of compensation continue when the loss of a
member worsens. He has not shown that he has more than a 10 percent impairment of his right
upper extremity. If anything, the record indicates that appellant has less.
CONCLUSION
The Board finds that appellant has no more than a 10 percent impairment of his right
upper extremity.

4

Measurements should be rounded up or down to the nearest number ending in zero. A.M.A., Guides 464.

5

Id. at 473.

3

ORDER
IT IS HEREBY ORDERED THAT the April 12, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 11, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, St. Louis, MO,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 12-931
Issued: November 13, 2012

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 March 20, 2012 appellant filed a timely appeal from a December 12, 2011 decision of
the Office of Workers’ Compensation Programs (OWCP) denying his occupational disease
claim. The Board also has jurisdiction over the nonmerit January 25, 2012 decision denying
reconsideration. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant established that he sustained a right shoulder and
arm injury causally related to his employment duties; and (2) whether OWCP properly refused to
reopen appellant’s case for further review of the merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 18,2 2011 appellant, then a 58-year-old supervisor of transportation
operations, filed an occupational disease claim alleging that on November 1, 2010 he realized
that he sustained a right shoulder and arm injury due to his employment duties.
In correspondence dated October 5, 2011, OWCP informed appellant that the evidence of
record was insufficient to support his claim. Appellant was advised as to the additional medical
and factual evidence needed and given 30 days to provide this information. OWCP subsequently
received medical and factual evidence including a position description and a September 6, 2011
magnetic resonance imaging (MRI) scan.
On April 27, 2011 Dr. David J. King, a treating Board-certified orthopedic surgeon,
diagnosed right shoulder impingement, subacromial bursitis and acromioclavicular arthrosis.
Appellant related that he has had right shoulder pain for a while. The physical examination
revealed mild pain in the acromioclavicular joint, pain in the impingement position and no
significant weakness. A review of x-ray interpretations showed no significant glenohumeral or
acromioclavicular degeneration.
On August 31, 2011 Dr. King reported seeing appellant for right shoulder pain. He
provided physical findings and recommended an MRI scan be performed. Dr. King’s assessment
of appellant’s condition included possible rotator cuff pathology, subacromial bursitis and right
shoulder pain from impingement. A September 6, 2011 MRI scan reported findings of right
acromioclavicular joint hypertrophy and diffuse right supraspinatus tendon interstitial tear
without full thickness tear.
On September 7, 2011 Dr. King diagnosed right shoulder interstitial rotator cuff
degeneration, subacromial impingement and bursitis and symptomatic right shoulder
acromioclavicular arthrosis. The physical examination revealed continuing pain in the
impingement position, some rotator cuff weakness and extreme pain in the acromioclavicular
joint with palpation and adduction. A review of an MRI scan showed acromioclavicular joint
hypertrophy and interstitial tearing of the supraspinatus with no full thickness tear.
By decision dated December 12, 2011, OWCP denied appellant’s claim on the grounds
that the medical evidence was not sufficient to establish causal relation to his employment.
On December 29, 2011 appellant requested reconsideration. He noted that, prior to
moving to a new location, he had to use three two-way radios daily instead of one two-way
radio. Appellant contended that the constant reaching for the telephone and radios were the
cause of his shoulder problems.
By decision dated January 25, 2012, OWCP denied reconsideration without merit review.

2

The date appellant filed his claim is not clear. OWCP noted the date of filing as September 18, 2011 while the
employing establishment noted it as September 15, 2011.

2

LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his claim, including the fact that the individual is an employee of the United States
within the meaning of FECA; that the claim was filed within the applicable time limitation; that
an injury was sustained while in the performance of duty as alleged and that any disability and/or
specific condition for which compensation is claimed are causally related to the employment
injury.4 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.5
OWCP regulations define the term occupational disease or illness as a condition
produced by the work environment over a period longer than a single workday or shift.6 To
establish that an injury was sustained in the performance of duty in an occupational disease
claim, a claimant must submit: a detailed description of the employment factors or conditions,
which the claimant believes caused or adversely affected the condition or conditions for which
compensation is claimed. If a claimant does establish an employment factor, he must submit
medical evidence showing that a medical condition was caused by such a factor.7 The medical
evidence required to establish causal relationship is generally rationalized medical opinion
evidence from a physician. 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 -- ISSUE 1
OWCP denied appellant’s claim on the grounds that the evidence was insufficient to
establish a causal relation between the diagnosed right upper extremity conditions and his
employment. The medical evidence diagnosed of right shoulder interstitial rotator cuff
degeneration, subacromial impingement and bursitis and symptomatic right shoulder
acromioclavicular arthrosis. The Board finds that the medical evidence is insufficient to
establish that the diagnosed conditions were caused by appellant’s employment.
Dr. King obtained an MRI scan that revealed right acromioclavicular joint hypertrophy
and diffuse right supraspinatus tendon interstitial tear without full thickness tear. As a diagnostic
test, causal relationship was not addressed. In his various progress notes, Dr. King set forth
physical finding and diagnosed right shoulder impingement, subacromial bursitis,
3

5 U.S.C. § 8101 et seq.

4

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

5

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

6

20 C.F.R. § 10.5(ee).

7

C.D., Docket No. 09-1881 (issued April 20, 2010); Effie Morris, 44 ECAB 470 (1993).

8

D.S., Docket No. 09-860 (issued November 2, 2009); I.J., 59 ECAB 408 (2008); B.B., 59 ECAB 234 (2007);
Solomon Polen, 51 ECAB 341 (2000); Victor J. Woodhams, 41 ECAB 345 (1989).

3

acromioclavicular arthrosis, acromioclavicular joint hypertrophy and interstitial tearing of the
supraspinatus with no full thickness tear. He did not address the issue of causal relationship in
his reports. Dr. King did not explain how appellant’s work duties caused or contributed to the
diagnosed right upper extremity conditions. 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 Dr. King’s reports are insufficient to establish
appellant’s claim.
By letter dated October 5, 2011, OWCP informed appellant of the medical and factual
evidence required to support his claim. Appellant failed to provide a medical report adequately
explaining how his right arm condition was causally related to his employment. An award of
compensation may not be based on surmise, conjecture or speculation. Neither the fact that work
activities may produce symptoms revelatory of an underlying condition nor the belief that her
condition was caused, precipitated, or aggravated by his employment is sufficient to establish
causal relationship.10 Such a relationship must be shown by rationalized medical opinion
evidence.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.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,12
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.13 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.14 When a claimant fails to meet one of the above standards, OWCP

9

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009); Jaja K.
Asaramo, 55 ECAB 200 (2004).
10

See Dennis M. Mascarenas, 49 ECAB 215 (1997)

11

Patricia J. Bolleter, 40 ECAB 373 (1988).

12

5 U.S.C. §§ 8101-8193. Section 8128(a) of FECA provides that the Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.
13

20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB
630 (2006).
14

Id. at § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB 657 (2006).

4

will deny the application for reconsideration without reopening the case for review on the
merits.15
ANALYSIS -- ISSUE 2
In his December 29, 2011 request for reconsideration, appellant asked only that his case
be reviewed. He did not allege or demonstrate that OWCP erroneously applied or interpreted a
specific point of law, or advance a relevant legal argument not previously considered by OWCP.
In support of his request for reconsideration, appellant submitted his statement regarding his
duties. The statement from him is irrelevant to the underlying medical issue of causal
relationship. The Board has held that submission of evidence that does not address the particular
issue involved does not constitute a basis for reopening a case.16 Consequently, appellant is not
entitled to further merit review of his claim under section 10.606(b)(1)-(3).17
Appellant did not show that OWCP erroneously applied or interpreted a specific point of
law, advance a relevant legal argument not previously considered by OWCP, or submit relevant
and pertinent new evidence not previously considered. OWCP did not abuse its discretion by
denying her reconsideration.18
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained a right shoulder condition causally related to his federal employment. The Board
further finds that OWCP properly refused to reopen his claim for further review of the merits
pursuant to 5 U.S.C. § 8128(a).

15

Id. at § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB
598 (2006).
16

R.M., 59 ECAB 690 (2008); Betty A. Butler, 56 ECAB 545 (2005).

17

20 C.F.R. § 10.606(b)(1)-(3). See L.D., 59 ECAB 648 (2008); Desiderio Martinez, 55 ECAB 245 (2004).

18

See Susan A. Filkins, supra note 13.

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 25, 2012 and December 12, 2011 are affirmed.
Issued: November 13, 2012
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.W., Appellant
and
U.S. POSTAL SERVICE, OLD GREENWICH
POST OFFICE, Old Greenwich, CT, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 20-0767
Issued: January 13, 2021

Case Submitted on the Record

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

JURISDICTION
On February 25, 2020 appellant filed a timely appeal from a February 10, 2020 merit
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 has met his burden of proof to establish right thumb, hand,
and wrist conditions causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On June 28 and July 11, 2019 appellant, then a 64-year-old window clerk, filed an
occupational disease claim (Form CA-2) alleging that he developed right-sided wrist, thumb, and
index finger pain causally related to factors of his federal employment, including the usage of a
1

5 U.S.C. § 8101 et seq.

computer. He indicated that he first became aware of his condition and its relationship to his
federal employment on June 25, 2019. Appellant stopped work on that date and returned to work
on July 9, 2019.
In a report dated June 28, 2019, Dr. Edmund Ganal, Board-certified in orthopedic surgery
and orthopedic sports medicine, indicated that he had examined appellant for complaints of right
thumb pain. Appellant recounted to Dr. Ganal that his right thumb pain began on June 25, 2019
and that it had occurred due to overuse at work. On physical examination of the right wrist and
hand Dr. Ganal observed tenderness to palpation and pain with movement at the right thumb
carpometacarpal (CMC) joint. An x-ray performed on that date demonstrated unremarkable soft
tissues and no evidence of significant arthritic changes or acute fractures. Dr. Ganal diagnosed
right thumb CMC pain without significant degenerative changes demonstrated by x-ray, likely
synovitis. He administered a steroid injection to the right thumb CMC joint.
On July 5, 2019 Dr. Ganal noted that appellant’s right thumb pain had somewhat improved
after the injection. On physical examination of the right wrist and hand he observed tenderness to
palpation over the CMC joint. Dr. Ganal diagnosed right thumb CMC pain secondary to synovitis,
noting no significant degenerative changes on x-ray. In a certificate of care of even date, he
diagnosed right thumb CMC synovitis and recommended that appellant return to work on
July 9, 2019.
In a development letter dated July 25, 2019, OWCP informed appellant that the evidence
of record was insufficient to establish his claim. It advised him of the type of factual and medical
evidence needed and provided a questionnaire for his completion. The questionnaire requested
that appellant describe in detail the employment duties which he believed contributed to his
condition and requested that he provide a physician’s opinion, supported by medical rationale, as
to how those duties caused or aggravated his medical condition. It afforded him 30 days to submit
additional evidence and to respond to its inquiries.
On August 1, 2019 appellant completed the questionnaire. He explained that he used a
computer to perform his employment duties five days per week, eight hours per day and that he
sometimes lift boxes that weighed between 5 and 70 pounds.
In an August 26, 2019 report, Dr. Ganal noted complaints of unchanged right wrist pain.
On physical examination of the right wrist and hand he observed mild edema, diffuse tenderness
to palpation, and limited range of motion secondary to pain. Dr. Ganal diagnosed right wrist pain,
noting minimal relief after steroid injection.
In a report dated September12, 2019, Dr. Robert Yaghoubian, a Board-certified orthopedic
hand surgeon, noted that appellant had a history of right basal joint osteoarthritis. On physical
examination of the right wrist and hand he observed full range of motion, a positive grind test, and
a positive shelf deformity. Dr. Yaghoubian indicated that x-rays previously obtained had
demonstrated basal joint osteoarthritis. He also related that he had administered an additional
steroid injection to treat appellant’s condition.

2

By decision dated October 15, 2019, OWCP denied appellant’s claim, finding that the
medical evidence of record was insufficient to establish that his diagnosed condition was causally
related to the accepted factors of his federal employment.
On November 12, 2019 appellant requested reconsideration of OWCP’s October 15, 2019
decision. With his request, he resubmitted the June 28, July 5, and August 26, 2019 reports from
Dr. Ganal, as well as the September 12, 2018 report from Dr. Yaghoubian.
On October 17, 2019 Dr. Yaghoubian treated appellant for right basal joint osteoarthritis.
He noted that two steroid injections had provided no relief. Dr. Yaghoubian opined that
appellant’s condition was a work-related injury. On physical examination of the right hand and
wrist he observed full range of motion of the wrist and thumb, with pain at the base of the right
thumb and a positive grind test. Dr. Yaghoubian diagnosed right basal joint osteoarthritis.
In a letter dated November 4, 2019, Dr. Yaghoubian indicated that he had evaluated
appellant most recently on October 17, 2019. He explained that appellant’s federal employment
included duties of repetitive use of the hand, wrist, and fingers to operate a computer. Appellant
experienced “insidious onset of severe pain to the right hand/wrist on June 25, 2019 without direct
trauma.” Dr. Yaghoubian diagnosed right basal joint osteoarthritis. Steroid injections by
Dr. Ganal and Dr. Yaghoubian provided minimal relief of symptoms. On physical examination
Dr. Yaghoubian had observed significant tenderness to palpation about the basal joint without
gross instability. He further observed a positive grind test and shelf examination. Dr. Yaghoubian
noted that x-rays indicated evidence of basal joint osteoarthritis. He opined that, within reasonable
medical probability, appellant’s osteoarthritis was secondary to repetitive use as mandated by
duties of his employment. Dr. Yaghoubian recommended right basal joint arthroplasty.
By decision dated February 10, 2020, OWCP denied modification of its decision of
October 15, 2019.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA, that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.3 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
2

Id.

3
C.K., Docket No. 19-1549 (issued June 30, 2020); R.G., Docket No. 19-0233 (issued July 16, 2019); Elaine
Pendleton, 40 ECAB 1143 (1989).

3

(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 identified employment factors.4
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.5 The opinion of the physician must be based on a complete factual
and medical background, must be one of reasonable medical certainty, and must be supported by
medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment incident.6
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.7
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish right thumb,
hand, and wrist conditions causally related to the accepted factors of his federal employment.
On June 28, 2019 Dr. Ganal diagnosed right thumb CMC pain. On August 26, 2019 he
diagnosed right wrist pain. Under FECA, the assessment of pain is not considered a diagnosis, as
pain merely refers to a symptom of an underlying condition.8
In a report dated July 5, 2019, Dr. Ganal diagnosed right thumb CMC pain secondary to
synovitis. In a certificate of care of even date, he diagnosed right thumb CMC synovitis. The
Board has held that medical evidence that does not offer an opinion regarding the cause of an
employee’s condition is of no probative value on the issue of causal relationship.9 As Dr. Ganal’s

4

L.D., Docket No. 19-1301 (issued January 29, 2020); S.C., Docket No. 18-1242 (issued March 13, 2019); Victor J.
Woodhams, 41 ECAB 345, 352 (1989).
5
I.J., Docket No. 19-1343 (issued February 26, 2020); T.H., 59 ECAB 388 (2008); Robert G. Morris, 48 ECAB
238 (1996).
6

D.J., Docket No. 19-1301 (issued January 29, 2020).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013); see
L.C., Docket No. 19-1301 (issued January 29, 2020); R.D., Docket No. 18-1551 (issued March 1, 2019).
8
M.V., Docket No. 18-0884 (issued December 28, 2018). The Board has consistently held that pain is a symptom,
not a compensable medical diagnosis. See P.S., Docket No. 12-1601 (issued January 2, 2013); C.F., Docket No. 081102 (issued October 10, 2008).
9
D.C., Docket No. 19-1093 (issued June 25, 2020); see L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).

4

reports did not offer any opinion on the cause of appellant’s right wrist and hand conditions, they
are of no probative value on the issue of causal relationship.10
On September 12, 2019 Dr. Yaghoubian noted that appellant had a history of right basal
joint osteoarthritis. In a report dated October 17, 2019, he opined that appellant’s condition was a
work-related injury and diagnosed right basal joint osteoarthritis. However, Dr. Yaghoubian did
not offer any rationale for this opinion relative to causal relationship. The Board held that medical
opinion evidence should offer a medically-sound explanation of how the specific employment
incident or work factors physiologically caused the injury.11
On November 4, 2019
Dr. Yaghoubian opined that within reasonable medical probability, appellant’s osteoarthritis was
secondary to repetitive use as mandated by duties of his employment. As noted above, in any case
where a preexisting condition involving the same part of the body is present and the issue of causal
relationship therefore involves aggravation, acceleration, or precipitation, the medical evidence
must provide a rationalized medical opinion that differentiates between the effects of the workrelated injury or disease and the preexisting condition. As Dr. Yaghoubian did not specifically
differentiate between appellant’s preexisting condition and the effects of the accepted factors of
appellant’s federal employment, and he did not explain how appellant’s employment duties
aggravated his preexisting condition, his reports are insufficient to establish causal relationship.12
As appellant has not submitted rationalized medical evidence to establish that his
diagnosed conditions were causally related to the accepted factors of his federal employment, the
Board finds that he has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish right thumb,
hand, and wrist conditions causally related to the accepted factors of his federal employment.

10

Id.

11

See H.A., Docket No. 18-1466 (issued August 23, 2019); L.R., Docket No. 16-0736 (issued September 2, 2016).

12

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the February 10, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 13, 2021
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, Washington, DC,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 07-1472
Issued: December 11, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 8, 2007 appellant filed a timely appeal from a March 29, 2007 decision of the
Office of Workers’ Compensation Programs denying his claim for a cervical disc condition.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
claim.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he sustained a
cervical disc condition at C3-4 causally related to his February 4, 2005 employment injury.
FACTUAL HISTORY
On April 28, 2005 appellant, then a 49-year-old management analyst, filed an
occupational disease claim alleging that he injured his neck and arms beginning
February 4, 2005. He had to turn his head frequently to see his computer monitor and had to
extend his arm to reach his computer mouse. The Office accepted appellant’s claim for a sprain

and strain of the neck, unspecified other soft tissue injuries of the neck and myalgia and
myositis.1 On January 9, 2006 appellant asked the Office to accept a disc protrusion at C3-4 as
causally related to his February 4, 2005 employment injury.
In August 12 and October 20, 2005 magnetic resonance imaging (MRI) scans of
appellant’s cervical spine, Dr. Mark C. Lopiano, a radiologist, stated that he had a small focal
disc protrusion at C3-4.
In a report dated September 6, 2005, Dr. Robert G. Squillante, an orthopedist, stated that
appellant’s cervical MRI scan revealed a right-sided herniated disc at C3-4. He did not believe
that this disc problem was causing any of appellant’s upper extremity symptoms but might cause
neck pain. Dr. Squillante provided findings on physical examination which included reduced
cervical range of motion and some tenderness in the thoracic spine. However, appellant was
neurologically intact.
On December 21, 2005 Dr. Lee Berlad, a neurosurgeon, stated that appellant had muscle
spasms with knots in his neck. He opined that appellant had a herniated disc at C3-4 that could
explain some of his neck pain.
By decision dated January 19, 2006, the Office denied appellant’s claim for a disc
protrusion at C3-4.
In a January 19, 2006 report, Dr. Kostas J. Constantine, an attending orthopedic surgeon,
stated that he treated appellant for bilateral carpal tunnel syndrome and cubital tunnel syndrome.
He stated, “most likely,” appellant’s disc protrusion at C3-4 was causally related to his
February 2, 2005 employment injury. On July 6, 2006 Dr. Constantine stated that appellant had
no prior injuries or conditions before his February 2005 employment injury that could be
considered a contributing cause of his C3-4 herniated disc. He stated:
“From my experience, it is not unusual for a cervical strain and disc herniation to
be caused by the constant strain of repetitive activities performed in a
nonergonomic setting….
“Therefore, it is my medical opinion rendered within a reasonable degree of
medical certainty that [appellant’s] C3-4 disc herniation was a direct result of the
job activities he performed as a management analyst with the [employing
establishment] while working on a special project which involved a significant
amount of repetitive activity in a nonergonomic setting…. This job consisted of
six to seven hours of data entry per day ... at a workstation where [appellant] had
to continually turn his head to the right to look at a monitor that was off to the
side and use a keyboard that was on a desk that was higher than usual. Also, the
chair and keyboard were not ergonomically designed.”

1

Appellant has a separate claim accepted for a September 1, 2003 aggravation of displacement of a lumbar
intervertebral disc without myelopathy and a November 10, 2004 injury accepted for bilateral carpal tunnel
syndrome and bilateral cubital tunnel syndrome.

2

In reports dated January 27 and April 26, 2006, Dr. Stephanie A. Giorlando, a physiatrist,
stated that appellant had a history of performing intensive data entry work at a computer where
the setup was nonergonomic in that the keyboard was on one table and the monitor was on a
table perpendicular to the keyboard. She provided findings on physical examination.
Dr. Giorlando’s diagnoses included chronic cervicothoracic strain with marked soft tissue
tightness in a setting of a C3-4 disc protrusion.
On February 17, 2006 Dr. Michael E. Goldsmith, an orthopedic surgeon, stated that
appellant had used computer equipment during his 17-year employment. The equipment was not
ergonomically designed because he had to continually turn his head to look at a computer
monitor that was not in front of him. Dr. Goldsmith stated:
“[T]he clinical evaluation showed that [appellant] has lumbar L5-S1 degenerative
disc disease [and] cervical C3-4 disc herniation. These findings have been
demonstrated by MRI scan. The cervical disc herniation correlates to the side and
location of the pain. The etiology of both these diagnoses are often congenital,
but may be aggravated by environmental factors such as [apppellant’s] work
environment. Environments which involve heavy lifting, twisting, sitting in
[in]adequate chairs for long periods or bending often exacerbate degenerative disc
disease and result in disc herniation. Therefore, in my medical opinion[,]
[appellant’s] symptoms and diagnosis were aggravated by his work environment.”
Appellant requested a telephonic hearing that was held on May 31, 2006. By decision
dated August 4, 2006, an Office hearing representative set aside the January 19, 2006 decision
and remanded the case for further development of the medical evidence.
On February 15, 2007 the Office referred appellant, together with a statement of accepted
facts and copies of medical reports, to Dr. Robert A. Smith, a Board-certified orthopedic surgeon
and an Office referral physician, for an evaluation as to whether he had a disc protrusion or
herniation causally related to his February 4, 2005 employment injury.
In a report dated March 8, 2007, Dr. Smith reviewed a history of appellant’s condition
and provided findings on physical examination. He noted that an MRI scan in 2005 revealed a
small right-sided C3-4 disc osteophyte complex. Dr. Smith stated:
“With regard to the accepted conditions of soft tissue sprain/strain of the neck, the
clinical examination at this time is essentially normal in that regard and I would
conclude that [appellant] has long since reached maximum medical improvement
and recovered from the sprain/strain of the neck that was sustained sometime
around February 4, 2005. With regard to his complaints of diffuse myalgia,
myocytisi and soft tissue disorder, there does not appear to be any evidence of
abnormal soft tissue findings on the examination at this time and I would
conclude that those conditions have also resolved.
“The finding of the right paracentral disc protrusion at C3-4 ... [is] unrelated to
the work incident in question. I had the opportunity to review the cervical film
from October 20, 2005 and the C3-4 disc abnormality is extremely small and

3

appears to be chronic in nature and according to the record has not changed over
time, indicating [that] there was no aggravation of this finding from work
activities. The neurological examination, as well as [an] EMG study[,] show no
evidence of any radiculopathy from the neck, indicating that the C3-4 finding is
not clinically significant.
“Therefore, with regard to the accepted condition[s], I would conclude that
[appellant] is at maximum medical improvement and certainly could return to his
preinjury job as long as he has an ergonomic situation. It [is] unlikely that he
would require any further treatment related to the incident of
February 4, 2005….”
By decision dated March 29, 2007, the Office denied appellant’s claim that his C3-4 disc
condition was causally related to his February 4, 2005 employment injury on the grounds that the
weight of the medical evidence was represented by the report of Dr. Smith.
LEGAL PRECEDENT
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship, generally, is rationalized medical
evidence.2 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 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.3
ANALYSIS
The Board finds that appellant has failed to meet his burden of proof in establishing that
his C3-4 disc condition is causally related to his February 4, 2005 employment injury.
Regarding the diagnosis of appellant’s condition, the Board notes initially that the MRI
scan reported a disc protrusion at C3-4, not a disc herniation. Most of the physicians of record
offered a diagnosis of disc herniation, but offered no explanation as to how this diagnosis was
2

Michael S. Mina, 57 ECAB ___ (Docket No. 05-1763, issued February 7, 2006).

3

Gary J. Watling, 52 ECAB 278 (2001); Gloria J. McPherson, 51 ECAB 441 (2000).

4

made, given the MRI scan report of protrusion, not herniation. Dr. Squillante stated that a
cervical MRI scan revealed a herniated disc at C3-4. However, even if his diagnosis was
supported by the diagnostic testing, he did not explain how appellant’s disc problem at C3-4 was
causally related to his accepted conditions from his February 4, 2005 employment injury, a
sprain and strain of his neck, unspecified other soft tissue injuries of the neck and myalgia and
myositis. For these reasons, Dr. Squillante’s report is of diminished probative value and is not
sufficient to establish that appellant sustained a disc problem at C3-4 causally related to his
employment.
Dr. Berlad stated that appellant had a herniated disc at C3-4 that could be causing neck
pain. In addition to offering this unexplained diagnosis, his explanation as to how appellant’s
disc problem at C3-4 was causally related to his employment. For these reasons, Dr. Berlad’s
report is of diminished probative value and is not sufficient to establish that his disc problem at
C3-4 causally related to his employment.
Dr. Constantine stated that, “most likely,” appellant’s disc protrusion at C3-4 was
causally related to his February 2, 2005 employment injury. In a second report, he changed his
diagnosis to a disc herniation. Dr. Constantine opined that the disc herniation was a direct result
of appellant’s job activities which included turning his head to look at a monitor that was off to
the side and using a keyboard that was too high. His second diagnosis of a herniated disc is not
explained. Therefore, Dr. Constantine’s report is of diminished probative value. Even if he had
provided an accurate diagnosis, his opinion regarding causal relationship is speculative in that he
opined that appellant’s disc condition at C3-4 was “most likely” caused by his employment
activities. Due to these deficiencies, Dr. Constantine’s report is not sufficient to establish that
appellant had a disc problem at C3-4 causally related to factors of his employment.
Dr. Goldsmith stated that appellant’s computer equipment was not ergonomically
designed and that he had to continually turn his head to look at a computer monitor that was not
in front of him. He diagnosed a C3-4 disc herniation which could be caused or aggravated by
environmental factors such as heavy lifting, twisting, sitting in inadequate chairs for long periods
or bending. However, Dr. Goldsmith’s diagnosis of a herniated disc is contrary to the MRI scan
finding of a disc protrusion. Due to the unexplained diagnosis, his report is of diminished
probative value. Even if Dr. Goldsmith had provided an accurate diagnosis, he provided
insufficient medical rationale in support of his opinion regarding causal relationship. Therefore,
his report is not sufficient to establish that appellant sustained a disc problem at C3-4 that was
caused or aggravated by his employment.
Dr. Giorlando stated that appellant had a history of performing intensive data entry work
at a computer station where the keyboard was on one table and the monitor on a table situated
perpendicular to the keyboard. Her diagnoses included a C3-4 disc protrusion. However,
Dr. Giorlando did not opine that appellant’s disc protrusion was related to his employment. She
did not provide medical rationale explaining how the disc protrusion was causally related to his
job activities. Therefore, this report is insufficient to establish that appellant sustained a disc
protrusion at C3-4 that was caused or aggravated by his employment.
Dr. Smith reviewed a history of appellant’s condition and provided findings on physical
examination. He stated that the MRI scan findings of a disc protrusion at C3-4 was unrelated to

5

the February 4, 2005 employment injury. Dr. Smith noted that the C3-4 disc abnormality was
extremely small and appeared to be chronic in nature and had not changed over time, indicating
that there was no aggravation from work activities. Because he found that appellant’s disc
protrusion at C3-4 was not causally related to his employment, this report does not discharge
appellant’s burden of proof to establish a work-related cervical disc condition.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof in establishing that his
C3-4 disc condition is causally related to his February 4, 2005 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 29, 2007 is affirmed.
Issued: December 11, 2007
Washington, DC

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

David S. Gerson, 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.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tampa, FL, Employer
__________________________________________

)
)
)
)
)
)
)

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

Docket No. 06-1921
Issued: February 20, 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 August 15, 2006 appellant filed a timely appeal of a May 8, 2006 nonmerit decision
of the Office of Workers’ Compensation Programs, denying her request for reconsideration.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board does not have jurisdiction to review the
merits of this case.
ISSUE
The issue is whether the Office properly denied appellant’s request for further review of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board. In an August 20, 2001 decision, the
Board found that the Office properly denied appellant’s February 7, 2000 request for
reconsideration of a February 16, 1999 hearing representative’s decision. The hearing
representative found that appellant’s claimed bulging cervical disc was not caused by the
accepted August 2, 1994 employment-related injuries. The Board found that the evidence

submitted in support of the reconsideration request was repetitive and cumulative in nature and
insufficient to warrant reopening the claim for further merit review.1 The facts and the history of
the case, as set forth in the Board’s prior decision are incorporated by reference.2
On November 6, 2002 appellant filed a claim for compensation (Form CA-7) for the
period September 17 through December 4, 2002. In accompanying time analysis forms,
appellant stated that she was disabled from October 22 to December 4, 2002. By letter dated
November 22, 2002, the Office advised appellant that the claim was for the period beginning
October 22, 2002. It addressed the medical evidence she needed to submit to establish her claim.
Appellant submitted a December 16, 2002 medical report of Dr. Conrad P. Weller, an
attending Board-certified psychiatrist. He addressed appellant’s August 2, 1994 employmentrelated emotional condition and her symptoms, which included progressive worsening of her
susceptibility to stress. Dr. Weller stated that on October 22, 2002 appellant was threatened with
disciplinary action for being absent without leave (AWOL) after she requested leave under the
Family Medical Leave Act (FMLA). This reawakened and aggravated her chronic fears and
distrusts. Following this incident, Dr. Weller stated that she developed disruptive anxiety and
uncontrollable anger associated with persistent depression and very disruptive insomnia. He
believed that this aggravation could be permanent. Dr. Weller opined that appellant was
intensely phobic of the workplace. He concluded that she was unable to resume her work duties
due to persistent, major exacerbation of symptoms associated with her compensable emotional
condition.
On December 17, 2002 appellant filed a CA-7 form for the period December 5, 2002
through January 10, 2003. She submitted Dr. Weller’s October 31, 2002 progress note which
further described the October 22, 2002 incident. Appellant was on vacation from October 11
to 20, 2002. On Monday, October 21, 2002 she called in to work and requested time off under
FMLA due to back problems. On October 22, 2002 appellant called the employing
establishment to request additional leave under FMLA. Dr. Weller stated that the employing
establishment threatened her with disciplinary action for being AWOL and demanded medical
documentation in support of her absence. He stated that she felt outraged and angry. Appellant
experienced a significant exacerbation of anxiety which resulted in her being off duty on
October 22, 2002 and remaining off duty on workers’ compensation. Dr. Weller did not know
when she would be able to regain control and return to work. Appellant was very irritable and
continued to have difficulties controlling herself. Dr. Weller stated that, during their session, she
ventilated excessively and he repeatedly encouraged her to put the situation in perspective. He
concluded that appellant remained confused in this regard. In a December 5, 2002 treatment
note, Dr. Weller reported appellant’s symptoms which included continued extreme phobia of the
work site.
1

Docket No. 00-2500 (issued August 20, 2001).

2

On August 2, 1994 appellant, then a 32-year-old city carrier, filed a traumatic injury claim alleging that on that
date she strained her back and shoulders and experienced pain in her neck while in the performance of duty. She
stated that, during the course of the day: she loaded and delivered the route; carried bundles of flyers; and the
vehicle she used caused her difficulty in opening and closing both the driver and back doors. The Office accepted
appellant’s claim for cervical/thoracic strains and consequential adjustment disorder.

2

By decision dated January 3, 2003, the Office found that appellant did not sustain a
recurrence of disability beginning October 22, 2002 causally related to her August 2, 1994
employment injuries. The evidence of record established that she attributed her condition to the
intervening October 22, 2002 incident.3
In a letter dated December 8, 2003, appellant requested reconsideration. She contended
that the medical evidence of record established that she sustained a recurrence of disability on
October 22, 2002 causally related to her accepted employment-related emotional condition.
Appellant submitted Dr. Weller’s October 31, 1995 report, in which he opined that appellant’s
adjustment disorder with mixed anxiety and depressed mood were caused by the August 2, 1994
employment injuries. In a May 18, 2000 form report, he diagnosed “309.28” and set forth
appellant’s work restrictions. Dr. Weller’s December 8, 2003 report which stated that the
October 22, 2002 incident aggravated appellant’s August 2, 1994 employment-related
adjustment disorder with mixed anxiety and depressed mood. In a September 7, 2001 report, he
reiterated his prior diagnoses and opined that appellant was totally disabled from April 1998 to
February 1999 and January 19 to 31, 2000 due to work incidents.
By decision dated March 12, 2004, the Office denied modification of the January 3, 2003
decision. The evidence submitted by appellant failed to establish that she sustained a recurrence
of disability due to a spontaneous change in her work-related conditions. The Office found that
her disability was attributed to work factors that occurred on October 22, 2002.
On March 3, 2005 appellant requested reconsideration. She contended that her current
emotional condition was caused by the accepted employment-related adjustment disorder with
anxiety. Contrary to the Office’s finding, Dr. Weller’s October 31, 1995 and May 18, 2000
reports were pertinent to the alleged recurrence of disability as he stated that her condition would
worsen if the employing establishment did not adhere to her work restrictions which it failed to
do on several occasions. She submitted progress notes from Dr. Weller dated July 19, 2000
through March 22, 2005. This evidence addressed appellant’s symptoms and stated that she was
disabled for work. On February 14, 2005 Dr. Weller opined that the October 22, 2002 incident
permanently aggravated appellant’s work-related emotional condition because the employing
establishment disregarded her work restrictions. He concluded that she sustained a recurrence of
disability.
In an April 19, 2005 decision, the Office denied modification of the March 12, 2004
decision. The evidence of record failed to establish that appellant’s current disability was caused
by the August 2, 1994 employment-related conditions. The Office found that she attributed her
disability to the intervening October 22, 2002 incident.
The Office received Dr. Weller’s progress notes which covered intermittent dates from
May 19, 2005 to February 21, 2006 and addressed appellant’s symptoms regarding her emotional
condition and medical treatment. It also received copies of form reports dated October 17, 2001
3

On January 14, 2003 appellant filed a traumatic injury claim alleging that he sustained a cervical condition while
in the performance of duty on October 22, 2002. By decision dated November 17, 2003, the Office denied
appellant’s claim. In an April 8, 2005 decision, an Office hearing representative affirmed the November 17, 2003
decision.

3

and September 26, 2002 of Dr. Robert Martinez, a Board-certified neurologist, who stated that
appellant suffered from chronic cervical thoracic and lumbosacral strains and insomnia.
Dr. Martinez opined that she could work full time with physical restrictions but would need time
off work from one to three days, one to two times per month. In a March 7, 2006 report,
Dr. Weller diagnosed anxiety disorder and recurrent severe major depressive disorder. He
opined that appellant was totally disabled for work due to the diagnosed conditions.
By letter dated April 18, 2006, appellant requested reconsideration. She argued that the
October 22, 2002 incident worsened her employment-related conditions and resulted in her
disability. Appellant further argued that her work-related conditions worsened prior to
October 22, 2002 based on Dr. Weller’s July 19 and August 1, 2000, May 25, 2001 and
August 19, 2002 progress notes. She stated that this evidence supported a material change in her
medical condition. In a March 30, 2006 progress note, Dr. Weller stated that appellant continued
to be susceptible to intercurrent stresses. He reported her symptoms of depression, dejection and
tearfulness and treatment plan. In an April 18, 2006 report, Dr. Weller opined that the
October 22, 2002 incident aggravated appellant’s employment-related adjustment impairment.
He concluded that she sustained a recurrence of disability on the claimed date causally related to
her accepted employment-related injury.
By decision dated May 8, 2006, the Office denied appellant’s request for reconsideration.
It found that the evidence and argument submitted were cumulative in nature and insufficient to
warrant further merit review of the Office’s prior decisions.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128 of the Federal
Employees’ Compensation Act,4 the Office’s regulations provide that a claimant must: (1) show
that the Office erroneously applied or interpreted a specific point of law; (2) advance a relevant
legal argument not previously considered by the Office; or (3) constitute relevant and pertinent
new evidence not previously considered by the Office.5 To be entitled to a merit review of an
Office decision denying or terminating a benefit, a claimant also must file his or her application
for review within one year of the date of that decision.6 When a claimant fails to meet one of the
above standards, the Office will deny the application for reconsideration without reopening the
case for review of the merits.
ANALYSIS
In an April 19, 2005 decision, the Office denied modification of the finding that appellant
did not sustain a recurrence of disability beginning October 22, 2002 causally related to the
August 2, 1994 employment-related cervical/thoracic strains and consequential adjustment
4

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
5

20 C.F.R. § 10.606(b)(1)-(2).

6

Id. at § 10.607(a).

4

disorder. On April 18, 2006 she disagreed with this decision and requested reconsideration. The
relevant underlying issue is whether appellant sustained a recurrence of disability beginning
October 22, 2002 causally related to her accepted employment injuries.
Appellant contended that the October 22, 2002 incident worsened her employmentrelated conditions and resulted in her disability. She also contended that her work-related
conditions worsened prior to October 22, 2002 based on Dr. Weller’s progress reports.
Appellant stated that this evidence supported a material change in her medical condition. Her
contentions repeat those that she made in her March 3, 2005 reconsideration request regarding
causal relation. They were previously considered by the Office. The Board has held that
evidence or argument that repeats or duplicates evidence already in the case record and
considered by the Office does not constitute a basis for further merit review.7 Because the Office
previously considered appellant’s arguments, they are repetitive in nature and insufficient to
warrant further merit review.8
Dr. Weller’s April 18, 2006 report stated that the October 22, 2002 incident aggravated
appellant’s employment-related adjustment impairment and that she sustained a recurrence of
disability on that date causally related to her accepted employment-related injury. This evidence
is insufficient to warrant a reopening of appellant’s claim for further merit review. Dr. Weller
previously stated in December 16, 2002 and February 14, 2005 reports and an October 31, 2002
progress note that appellant’s employment-related emotional condition was aggravated by the
October 22, 2002 incident, resulting in a recurrence of disability. As noted, evidence that repeats
or duplicates evidence already in the case record and considered by the Office does not constitute
a basis for further merit review.9 Because the Office previously considered Dr. Weller’s opinion,
his April 18, 2006 report is repetitive in nature and insufficient to warrant further merit review.10
Dr. Weller’s progress notes, covering intermittent dates from May 19, 2005 to
February 21, 2006, addressed appellant’s emotional condition symptoms and medical treatment.
His March 30, 2006 progress note also addressed her symptoms and found that she continued to
be susceptible to intercurrent stresses. Dr. Weller’s March 7, 2006 report stated that appellant
was totally disabled for work due to anxiety disorder and recurrent severe major depressive
disorder. Dr. Martinez’s October 17, 2001 and September 26, 2002 form reports stated that
appellant suffered from chronic cervical thoracic and lumbosacral strains and insomnia and that,
although she could perform full-time work with restrictions, she would need to take time off
work from one to three days, one to two times per month. This evidence does not address the
relevant medical issue of whether appellant sustained a recurrence of disability beginning
October 22, 2002 causally related to her August 2, 1994 employment-related injuries. Evidence
which is irrelevant to the claim is insufficient to warrant a merit review of the case.11 For these
7

Edward W. Malaniak, 51 ECAB 279 (2000).

8

James A. England, 47 ECAB 115, 119 (1995).

9

Edward W. Malaniak, supra note 7.

10

James A. England, supra note 8.

11

Mark H. Dever, 53 ECAB 710 (2002).

5

reasons, the Board finds that Dr. Weller’s progress notes and report and Dr. Martinez’s reports
are irrelevant and insufficient to warrant reopening appellant’s claim for further merit review.
Appellant did not submit any relevant and pertinent new evidence not previously
considered by the Office in support of her request for reconsideration. Further, she did not show
that the Office erroneously applied or interpreted a specific point of law or advance a relevant
legal argument not previously considered by the Office. As appellant did not meet any of the
necessary regulatory requirements, the Board finds that the Office properly denied merit
review.12
CONCLUSION
The Board finds that the Office properly denied appellant’s request for further review of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the May 8, 2006 decision of Office of Workers’
Compensation Programs is affirmed.
Issued: February 20, 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

12

See James E. Norris, 52 ECAB 93 (2000).

6


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

)
)
)
)
)
)
)
)

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

Docket No. 08-862
Issued: August 7, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 31, 2008 appellant filed a timely appeal from a January 11, 2008 decision of
the Office of Workers’ Compensation Programs, denying his request for reconsideration and
June 5 and November 5, 2007 decisions denying his claim for a right hip condition. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant sustained a right hip condition in the performance
of duty; and (2) whether the Office abused its discretion in denying appellant’s request for
reconsideration.
FACTUAL HISTORY
On April 17, 2007 appellant, then a 58-year-old letter carrier, filed an occupational
disease claim alleging that he underwent a right hip replacement due to the cumulative effects of

his work activity beginning on March 4, 2004. He did not describe the specific activities that
contributed to his condition.1
In reports dated March 12 and April 13, 2007, Dr. R. Clio Robertson, an attending
orthopedic surgeon, noted the progress of appellant’s recovery from total hip arthroplasty on
January 17, 2006. He checked “yes” indicating the condition was work related.
On May 1, 2007 the Office requested additional evidence including a detailed description
of the employment activities which contributed to his right hip condition and a comprehensive
medical report containing a description of his symptoms, the results of examinations and tests, a
diagnosis, the treatment provided and medical rationale explaining how his right hip condition
was related to specific factors of his employment.
By decision dated June 5, 2007, the Office denied appellant’s claim on the grounds that
the factual and medical evidence was insufficient to establish that his right hip condition was
causally related to factors of his employment.
On July 30, 2007 appellant requested reconsideration and submitted additional evidence.
In a May 25, 2007 report, Dr. Roberson stated that appellant was recovering from right
hip total arthroplasty which was performed four and one-half months previously. He provided
findings on physical examination and indicated that appellant could return to work with
limitations.
In reports dated July 13 to September 19, 2007, Dr. Donald Barney, an attending general
practitioner, reviewed the history of appellant’s condition and provided findings on physical
examination. Appellant indicated to Dr. Barney that repetitive motions in his job as a letter
carrier for 16 years caused his right hip pain. He underwent right hip surgery on January 17,
2007 performed by Dr. Roberson. On May 14, 2006 appellant had undergone bilateral knee
surgery. Dr. Barney stated that appellant fell on March 4, 2004 and was off work for a few days.
In 2005 severe pain caused appellant to stop work again. Dr. Barney diagnosed right hip neuritis
secondary to a knee injury, right hip bursitis and right hip osteoarthritis. He stated:
“It is [my] opinion that [appellant’s] ongoing condition is causally related to his
work duties … as a letter carrier … with prolonged walking, standing, lifting,
pushing, pulling, resulting in cumulative trauma to the knees thence to his hip.”
By decision dated November 5, 2007, the Office denied modification of its June 5, 2007
decision.
On December 17, 2007 appellant requested reconsideration and submitted additional
evidence. He submitted reports dated October 31 to November 15, 2007 in which Dr. Barney
essentially repeated the information provided in his prior reports.

1

Appellant also has a separate claim accepted for a bilateral knee condition.

2

By decision dated January 11, 2008, the Office denied appellant’s request for
reconsideration on the grounds that the evidence submitted was insufficient to warrant further
merit review. It found that Dr. Barney’s reports merely reiterated information in his earlier
medical reports.2
LEGAL PRECEDENT – ISSUE 1
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship, generally, is rationalized medical
evidence.3 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 condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant.4
An award of compensation may not be based on surmise, conjecture, speculation or upon
appellant’s own belief that there is a causal relationship between his claimed injury and his
employment.5 To establish a causal relationship, appellant must submit a physician’s report in
which the physician reviews the employment factors identified by appellant as causing his
condition and, taking these factors into consideration, as well as findings upon physical
examination of appellant and his medical history, state whether the employment factors caused
or aggravated appellant’s diagnosed conditions and present medical rationale in support of his or
her opinion.6

2

Subsequent to the January 11, 2008 Office decision, appellant submitted additional evidence. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal.
3

Michael S. Mina, 57 ECAB 379 (2006).

4

Gary J. Watling, 52 ECAB 278 (2001); Gloria J. McPherson, 51 ECAB 441 (2000).

5

Donald W. Long, 41 ECAB 142 (1989).

6

Id.

3

ANALYSIS -- ISSUE 1
In his reports, Dr. Roberson described the progress of appellant’s recovery from total hip
arthroplasty on January 17, 2006. He checked “yes” indicating the condition was work related.
The Board has held that a physician’s opinion on causal relationship which consists only of
checking “yes” to a form report is of diminished probative value on the issue of causal
relationship.7 Therefore, Dr. Roberson’s opinion regarding causal relationship is not sufficient to
establish that appellant’s right hip condition was caused or aggravated by his employment.
Dr. Barney provided appellant’s opinion that unspecified repetitive motions in his job as
a letter carrier for 16 years caused his right hip pain. He diagnosed right hip neuritis secondary
to a knee injury, right hip bursitis and right hip osteoarthritis. Dr. Barney stated his opinion that
appellant’s ongoing right hip condition was causally related to his duties as a letter carrier which
included prolonged walking, standing, lifting, pushing and pulling which resulted in cumulative
trauma to his knees and then his right hip. However, his opinion is not based on a complete and
accurate factual background. The Office asked appellant to provide a detailed description of the
employment activities which he believed had contributed to his right hip condition. Appellant
did not provide the requested information regarding his job activities. Dr. Barney listed the
general physical requirements of a letter carrier but did not specify which activities caused or
aggravated appellant’s right hip condition or the mechanism of injury, the manner in which a
particular activity could have caused or aggravated right hip bursitis and right hip osteoarthritis.
He opined that appellant also had right hip neuritis that was related to a previous knee injury.
However, Dr. Barney did not provide specific details regarding the knee injury or explain how
the knee injury caused right hip neuritis. Appellant failed to provide a comprehensive medical
report based on a complete and accurate factual and medical background and containing
thorough medical rationale explaining the nature of the diagnosed right hip conditions to the
specific employment factors identified. Therefore, he failed to meet his burden of proof to
establish that his right hip condition was caused or aggravated by his federal employment.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Act8 vests the Office with discretionary authority to determine
whether it will review an award for or against compensation. The Act states:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on [her] own motion or on application. The Secretary,
in accordance with the facts found on review may -(1) end, decrease, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”

7

See Gary J. Watling, supra note 4.

8

5 U.S.C. § 8128(a).

4

The Code of Federal Regulations provides that a claimant may obtain review of the
merits of the claim by setting forth arguments that either: (1) shows that the Office erroneously
applied or interpreted a specific point of law; or (2) advances a relevant legal argument not
previously considered by the Office; or (3) constitutes relevant and pertinent new evidence not
previously considered by the Office.9 When an application for review of the merits of a claim
does not meet at least one of these requirements, the Office will deny the application for review
without reviewing the merits of the claim.10
ANALYSIS -- ISSUE 2
In support of his request for reconsideration, appellant submitted reports from Dr. Barney
dated October 31 to November 15, 2007 in which he merely repeated information provided in his
earlier reports. Evidence that repeats or duplicates evidence already of record does not constitute
a basis for reopening a claim for further merit review.11 Therefore, these reports from
Dr. Barney do not constitute relevant and pertinent evidence not previously considered by the
Office.
The Board finds that appellant did not submit arguments or evidence showing that the
Office erroneously applied or interpreted a specific point of law, advancing a relevant legal
argument not previously considered or constituting relevant and new pertinent evidence not
considered previously by the Office. Therefore, the Office properly denied his request for
reconsideration.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof in establishing that his
right hip condition was causally related to factors of his employment. The Board further finds
that the Office did not abuse its discretion in denying his request for reconsideration.

9

20 C.F.R. § 10.606(b)(2).

10

20 C.F.R. § 10.608(b).

11

See Freddie Mosley, 54 ECAB 255 (2002).

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 11, 2008 and November 5 and June 5, 2007 are affirmed.
Issued: August 7, 2008
Washington, DC

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

David S. Gerson, 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.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Wilkes-Barre, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-1857
Issued: June 3, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 13, 2009 appellant, through his representative, filed a timely appeal from the
June 29, 2009 merit decision of the Office of Workers’ Compensation Programs, which found a
five percent impairment of his right lower limb. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction to review the merits of the case.
ISSUES
The issues are: (1) whether appellant has more than a five percent impairment of his
right lower limb; and (2) whether appellant received Consumer Price Index (CPI) adjustments to
the June 8, 1991 pay rate used to calculate his June 29, 2009 schedule award.
FACTUAL HISTORY
On June 8, 1991 appellant, then a 34-year-old letter carrier, sustained an injury in the
performance of duty when he came down on his right ankle the wrong way while delivering

mail. He stopped work immediately and received compensation for intermittent disability based
on his date-of-injury pay rate of $610.80 per week.1
The Office accepted appellant’s claim for right ankle sprain. Appellant underwent
arthroscopy and debridement of the right ankle on October 7, 1993 with excision of two to three
Morton’s neuroma and exploration of the three to four web space. The Office expanded its
acceptance to include the Morton’s neuroma.
On January 20, 2009 Dr. Emmanuel E. Jacob, a Board-certified physiatrist, evaluated
appellant’s impairment. He related appellant’s chief complaint and history and reviewed the
medical record. Dr. Jacob described his findings on physical examination and diagnosed, among
other things, right ankle sprain and superficial peroneal nerve lesion of the right foot.
Dr. Jacob calculated a three percent impairment based on mild ligamentous laxity with no
modification based on functional history or clinical studies but with mild objective physical
findings. He also rated a two percent impairment based on a mild superficial peroneal nerve
lesion with no modification based on functional history.
Appellant filed a claim for a schedule award. An Office medical adviser reviewed
Dr. Jacob’s evaluation and confirmed that appellant had a five percent impairment of his right
lower limb.
On June 29, 2009 the Office issued a schedule award for a five percent impairment of
appellant’s right lower limb. The schedule award showed on its face that the Office applied no
cost-of-living adjustments to the June 8, 1991 pay rate used to calculate appellant’s
compensation.2
On appeal, appellant’s representative asks the Board to review the rating calculation and
questions the Office’s failure to apply cost-of-living adjustments to appellant’s June 8, 1991 pay
rate.
LEGAL PRECEDENT -- ISSUE 1
Section 8107 of the Federal Employees’ Compensation Act3 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the

1

A December 3, 2002 fiscal case history shows that appellant received $857.67 in disability compensation on the
daily rolls from October 7, 1991 to January 22, 1993.
2

“After Cost-of-Living Adjustments, Your Weekly Compensation is: $N/A.”

3

5 U.S.C. § 8107.

2

American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.
Guides).4
ANALYSIS -- ISSUE 1
Diagnosis-based impairment is the primary method of evaluation for the lower limb.5
Dr. Jacob, the evaluating physiatrist, diagnosed right ankle strain and applied Table 16-2, page
502 of the A.M.A., Guides. Table 16-2 gives a default impairment value of five percent for mild
ligamentous laxity. Following the adjustment formula on page 521, the default value is
decreased by one percent for a lack of functional interference and by another one percent for a
lack of relevant findings on clinical studies. The result is a three percent impairment of the right
lower limb due to mild ligamentous laxity.
Dr. Jacob also diagnosed a superficial peroneal nerve lesion of the right foot and applied
Table 16-12, page 534 of the A.M.A., Guides. Table 16-12 gives a default impairment value of
three percent for a mild sensory deficit of the superficial peroneal nerve. This default value is
decreased by one percent for a lack of functional interference. The result is a two percent
impairment of the right lower limb due to a mild superficial peroneal nerve lesion.
Peripheral nerve impairment may be combined with a diagnosis-based impairment of the
lower limb when the diagnosis-based impairment does not already include the nerve
impairment.6 Appellant’s three percent impairment for the right ankle sprain combines with his
two percent impairment for the superficial peroneal nerve lesion for a five percent total
impairment of his right lower limb.
The Board finds that Dr. Jacob properly applied the A.M.A., Guides and that the Office
properly found a five percent impairment of appellant’s right lower limb. The Board will
therefore affirm the Office’s June 29, 2009 decision on the issue of the percentage impairment.
LEGAL PRECEDENT -- ISSUE 2
Section 8146a of the Act provides that “compensation payable on account of disability or
death which occurred more than one year” before the effective date of a cost-of-living increase
(determined in accordance with the provisions of the section) shall be increased by the percent of
the increase.7 Legislative history shows that this phrase means compensation payable for an

4

20 C.F.R. § 10.404. For impairment ratings calculated on and after May 1, 2009, the Office should advise any
physician evaluating permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.6.a (January 2010).
5

A.M.A., Guides 497 (6th ed. 2008).

6

Id. at 531.

7

Id. at § 8146a.

3

employment-related condition where the entitlement to such compensation occurred more than
one year before the effective date of the cost-of-living increase.8
In cases of disability, a beneficiary is eligible for cost-of-living adjustments under section
8146a where injury-related disability began more than one year prior to the date the cost-ofliving adjustment took effect. The employee’s use of continuation of pay, as provided by section
8118, or of sick or annual leave during any part of the period of disability does not affect the
computation of the one-year period.9 The disability need not have been continuous for the whole
year before the increase.10
When an injury does not result in disability but compensation is payable for permanent
impairment, a beneficiary is eligible for cost-of-living adjustments under section 8146a where
the award for such impairment began more than one year prior to the date the cost-of-living
adjustment took effect.11 When there is prior injury-related disability, Office procedures indicate
that the CPI start date for the schedule award is the effective date of the applicable pay rate.12
ANALYSIS -- ISSUE 2
Appellant’s representative questions the Office’s failure to apply CPI adjustments to the
June 8, 1991 pay rate used to calculate the June 29, 2009 schedule award. He offers no argument
and cites no authority, but the implicit argument is that the Office should not pay appellant’s
2009 schedule award in 1991 in dollars. Office procedures support that appellant is entitled to
CPI adjustments to his June 8, 1991 pay rate. The early medical evidence shows that he was
totally disabled for work after June 8, 1991, and the fiscal history shows that he received
compensation for intermittent periods of disability. Given appellant’s history of prior injuryrelated disability, the CPI start date for his schedule award is June 8, 1991, the date of injury.13
The Board, however, cannot determine whether the Office applied CPI adjustments to
appellant’s June 8, 1991 pay rate. The schedule award indicates that cost-of-living adjustments
were not applicable. It appears the Office paid significantly more compensation than can be
calculated with an unadjusted pay rate.
8

Franklin L. Armfield, 29 ECAB 500 (1978) (holding that the claimant was not eligible for a cost-of-living
increase, as provided by section 8146a, unless the date of his entitlement to compensation occurred more than a year
before the effective date of the cost-of-living increase).
9

20 C.F.R. § 10.420(a). In general, if compensation has been paid in a disability case for over a year, CPI
adjustments are made to compensation. Federal (FECA) Procedure Manual, Part 2 -- Claims, General Provisions of
the FECA, Chapter 2.200.2.l (July 2004).
10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Computing Compensation, Chapter 2.901.12.a(1)
(December 1995).
11

20 C.F.R. § 10.420(b).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900, Exhibit 1
(January 2010) (Determining Effective Pay Rate Date for Schedule Awards).
13

Id.

4

The total loss of a lower limb, as with amputation at the hip, entitles an employee to 288
weeks’ compensation.14 A five percent impairment is five percent of 288 weeks, or 14.4 weeks’
compensation.15 Appellant’s June 8, 1991 pay rate was $610.80 per week, and he is entitled to
basic compensation under the schedule at the rate of two-thirds his pay.16 So two-thirds of
$610.80 per week is $407.20 per week, times 14.4 weeks equals $5,863.68. Yet the Office paid
$8,870.40 under the schedule award.
Because the Office did not explain how it calculated the amount of the award and did not
make clear whether it adjusted appellant’s June 8, 1991 pay rate to reflect applicable CPI
increases, the Board will set aside the Office’s June 29, 2009 decision on the issue of pay rate
and remand the case for further development. It shall review whether appellant’s injury-related
disability began more than one year prior to the date any CPI adjustments took effect, thereby
making him eligible for CPI adjustments under section 8146a of the Act. The Office shall then
issue an appropriate final decision on appellant’s entitlement to schedule award compensation
with a clear explanation of how it calculated the amount of the award, including the application
of CPI adjustments.
CONCLUSION
The Board finds that appellant has a five percent impairment of his right lower limb. The
Board also finds that this case is not in posture for decision on whether appellant received CPI
adjustments to the June 8, 1991 pay rate used to calculate his June 29, 2009 schedule award.
Further development is required.

14

5 U.S.C. § 8107(c)(2).

15

Id. at § 8107(c)(19) (partial losses are compensated proportionately).

16

Id. at § 8107(a).

5

ORDER
IT IS HEREBY ORDERED THAT the June 29, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further action consistent with this opinion.
Issued: June 3, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bolton, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-1516
Issued: December 6, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 12, 2013 appellant timely appealed the December 14, 2012 merit decision of the
Office of Workers’ Compensation Programs’ (OWCP), which granted a schedule award.
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 the schedule award claim.
ISSUE
The issue is whether appellant has greater than three percent bilateral lower extremity
impairment.
FACTUAL HISTORY
This case was previously before the Board.2 Appellant, a 72-year-old retired rural carrier,
was involved in an employment-related motor vehicle accident (MVA) on September 13, 1999.
1

5 U.S.C. §§ 8101-8193 (2006).

2

Docket No. 10-2359 (issued September 21, 2011).

He was struck from behind and thrown from his postal vehicle. Appellant’s accepted conditions
include aggravation of lumbar degenerative disc disease and aggravation of lumbar spinal
stenosis.3 OWCP also authorized a January 10, 2001 laminectomy at L4-5. When the case was
previously on appeal, appellant had filed a claim for lower extremity permanent impairment
which OWCP denied. The April 12, 2010 schedule award decision was based on the March 25,
2010 opinion to Dr. Edward R. Mulcahy, a Board-certified orthopedic surgeon and OWCP
referral physician.
In setting aside OWCP’s April 12, 2010 decision, the Board identified various
deficiencies in Dr. Mulcahy’s report. The Board explained that, once OWCP undertakes
development of the record, it must do a complete job in procuring medical evidence that will
resolve the relevant issues in the case. Because of deficiencies in Dr. Mulcahy’s second opinion
evaluation, the Board remanded the case for further development. Additionally, the Board
identified the appropriate methodology for rating spinal nerve extremity impairment. The
September 21, 2011 decision is incorporated herein by reference.
At OWCP’s request, Dr. Mulcahy reexamined appellant on January 12, 2012. He
diagnosed preexisting lumbar degenerative disc disease (DDD) and spinal stenosis, which were
permanently aggravated by the September 13, 1999 work-related MVA.4 Dr. Mulcahy explained
that appellant continued to suffer low back pain and right leg radiculopathy secondary to lumbar
spinal stenosis, DDD and surgery with postoperative scarring. On physical examination,
appellant exhibited significant limitation in lumbar range of motion and positive straight leg
raising test on the right side. Dr. Mulcahy also noted that appellant ambulated with an antalgic
gait favoring the right leg. Appellant used a cane in his left hand. Dr. Mulcahy stated that
appellant’s symptoms had been present for many years and were not expected to resolve. Based
on his examination and review of the record, he found 20 percent impairment of the right lower
extremity under the sixth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (A.M.A., Guides) (2008).5
In reports dated February 15 and April 9, 2012, the district medical adviser (DMA) found
three percent bilateral lower extremity spinal nerve impairment based on a moderate sensory
deficit at L5.6 It explained that Dr. Mulcahy applied an incorrect methodology for rating
appellant’s lumbar-related lower extremity impairment.

3

Appellant has additional accepted conditions involving both the upper and lower extremities. He also received a
schedule award for impairment of the left upper extremity. While this information is not germane to the current
issue on appeal, a more detailed account of all of appellant’s accepted conditions and OWCP-approved surgery is set
forth in the Board’s previous decision dated September 21, 2011.
4

All of appellant’s other employment-related conditions had reportedly resolved.

5

Dr. Mulcahy referenced Chapter 15, The Lower Extremities, A.M.A., Guides 493 (6th ed. 2008). However, he
did not identify which Figure(s) and/or Table(s) he relied on in finding 20 percent right lower extremity impairment.
6

Appellant reached maximum medical improvement on March 27, 2007.

2

By decision dated December 14, 2012, OWCP granted a schedule award for three percent
impairment of both the left and right lower extremity. The award covered a period of 17.28
weeks from March 27 to July 25, 2007.
LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.7 FECA,
however, does not specify the manner by which the percentage loss of a member, function or
organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.8 Effective May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2008).9
No schedule award is payable for a member, function or organ of the body that is not
specified in FECA or in the implementing regulations.10 The list of scheduled members includes
the eye, arm, hand, fingers, leg, foot and toes.11 Additionally, FECA specifically provides for
compensation for loss of hearing and loss of vision.12 By authority granted under FECA, the
Secretary of Labor expanded the list of scheduled members to include the breast, kidney, larynx,
lung, penis, testicle, tongue, ovary, uterus/cervix and vulva/vagina and skin.13
Neither, FECA nor the regulations provide for the payment of a schedule award for the
permanent loss of use of the back/spine or the body as a whole.14 However, a schedule award is
permissible where the employment-related spinal condition affects the upper and/or lower
extremities.15 The sixth edition of the A.M.A., Guides (2008) provides a specific methodology
for rating spinal nerve extremity impairment.16 It was designed for situations where a particular
7

For a total or 100 percent loss of use of a leg, an employee shall receive 288 weeks’ compensation. 5 U.S.C.
§ 8107(c)(2).
8

20 C.F.R. § 10.404 (2012).

9

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability
Claims, Chapter 2.808.6a (February 2013).
10

W.C., 59 ECAB 372, 374-75 (2008); Anna V. Burke, 57 ECAB 521, 523-24 (2006).

11

5 U.S.C. § 8107(c).

12

Id.

13

5 U.S.C. § 8107(c)(22); 20 C.F.R. § 10.404(b).

14

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

15

Federal (FECA) Procedure Manual, Part 2 -- supra note 9 at Chapter 2.808.6a(3).

16

The methodology and applicable tables were published in the July/August 2009 edition of The Guides
Newsletter, “Rating Spinal Nerve Extremity Impairment Using the Sixth Edition.”

3

jurisdiction, such as FECA, mandated ratings for extremities and precluded ratings for the spine.
FECA-approved methodology is premised on evidence of radiculopathy affecting the upper
and/or lower extremities. The appropriate tables for rating spinal nerve extremity impairment are
incorporated in FECA procedure manual.17
ANALYSIS
Pursuant to the Board’s September 21, 2011 instructions, OWCP obtained additional
medical evidence regarding the cause and extent of any lower extremity impairment.
Dr. Mulcahy reexamined appellant on January 12, 2012 and diagnosed lumbar DDD and spinal
stenosis. Both conditions preexisted appellant’s accepted employment injury, but according to
Dr. Mulcahy the September 13, 1999 work-related MVA permanently aggravated appellant’s
lumbar DDD and spinal stenosis. As a result, appellant continued to suffer low back pain and
right leg radiculopathy.18 The noted radiculopathy stemmed from the L5 nerve root.
Dr. Mulcahy further found that appellant had 20 percent impairment of the right lower extremity
(RLE) pursuant to the A.M.A., Guides (6th ed. 2008).
Dr. Mulcahy’s January 12, 2012 report established that appellant’s current lumbar and
lower extremity complaints are causally related to his September 13, 1999 employment injury.
However, Dr. Mulcahy’s 20 percent RLE impairment rating is inconsistent with FECA-approved
methodology for rating spinal nerve extremity impairment.19 The DMA instead found three
percent bilateral lower extremity spinal nerve impairment based on a moderate sensory deficit at
L5. Unlike Dr. Mulcahy, the DMA referenced the appropriate tables for rating spinal nerve
extremity impairment which have been incorporated in FECA procedure manual.20
The Board finds that the DMA’s impairment rating is consistent with FECA and the
A.M.A., Guides (6th ed. 2008) and thus, represents the weight of the medical evidence regarding
the extent of appellant’s bilateral lower extremity impairment. The record does not include any
credible evidence demonstrating that appellant has greater than three percent bilateral lower
extremity impairment.
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
Appellant has not established that he has greater than three percent bilateral lower
extremity impairment.

17

See Federal (FECA) Procedure Manual, Part 3 -- supra note 9 at Chapter 3.700, Exhibit 4.

18

All other injury-related conditions had reportedly resolved.

19

See supra note 17.

20

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the December 14, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 6, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5