United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.W., Appellant
and
DEPARTMENT OF THE TREASURY,
BUREAU OF THE MINT, Philadelphia, PA,
Employer
__________________________________________

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

Docket No. 07-244
Issued: October 25, 2007

Case Submitted on the Record

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

JURISDICTION
On November 6, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ December 6, 2005 and October 3, 2006 merit decisions regarding his
entitlement to schedule award compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he has
more than a 10 percent permanent impairment of his left leg and a 0 percent permanent
impairment of his right leg; and (2) whether he met his burden of proof to establish that he has
more than a 36 percent permanent impairment of his penis, for which he received a schedule
award.
FACTUAL HISTORY
On July 7, 1998 appellant, then a 50-year-old mechanic, filed a traumatic injury claim
alleging that he injured his back at work on July 6, 1998 when he was baring down with his arms

on a die press. He stopped work on July 7, 1998.1 The Office accepted that appellant sustained a
lumbosacral strain, dislocated thoracic vertebra and lumbar stenosis at L4-5.
The findings of a July 22, 1998 magnetic resonance imaging scan showed a disc bulge at
L4-5 with a superimposed broad-based paracentral disc herniation which compromised both
neural foramin. The findings of a January 14, 2000 computerized tomography scan revealed a
bulge of the annulus at L3-4 with mild acquired narrowing of the canal. On October 31, 2000
appellant underwent a laminectomy at L4-5 and a hemilaminectomy at L3. On April 3, 2002 he
underwent a revision laminectomy and fusion at L4-5 and L5-S1 with posterior supplemental
hardware and, on October 15, 2002, the hardware was surgically removed. These procedures
were authorized by the Office.
On June 2, 2003 Dr. Daryl Antonacci, an attending Board-certified orthopedic surgeon,
stated that appellant had pain over the ileac crest area of his back but had full strength in both
legs with negative findings upon straight leg raise testing. On August 1, 2003 appellant filed a
claim for a schedule award for permanent impairment to his legs due to his accepted employment
injury.
In an August 11, 2003 decision, the Office denied his claim on the grounds that he did
not submit sufficient medical evidence to establish any permanent impairment.
On October 16, 2003 Dr. George L. Rodriguez, Board-certified in physical medicine and
rehabilitation, stated that appellant had 4/5 strength in his left gluteus maximus, medius
maximus, quadriceps and biceps femoris muscles and 3/5 strength in his left anterior tibialis and
soleus muscles. He indicated that he was “suffering significantly from his low back pain with
radiation into the bilateral lower extremities and sexual dysfunction.” Dr. Rodrigeuz stated that
appellant reached maximum medical improvement on July 3, 2002. He provided calculations of
impairments due to leg weakness associated with the superior gluteal, inferior gluteal and sciatic
nerves on the right and the femoral, superior gluteal, inferior gluteal and sciatic nerves on the
left. Dr. Rodriguez indicated that, in performing his calculations, he made reference to Tables
15-16 and 17-37 of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (5th ed. 2001). He concluded that using the Combined Values Chart of the A.M.A.,
Guides to combine the impairment ratings for weakness associated with the implicated nerves
yielded a 30 percent permanent impairment in each leg.2 Dr. Rodriguez determined that under
Table 13-21 of the A.M.A., Guides appellant had a 20 percent permanent impairment of his
whole person due to erectile dysfunction. He indicated that he believed his impairments were
related to the July 6, 1998 employment injury.
In a June 29, 2004 decision, an Office hearing representative set aside the Office’s
August 11, 2003 decision and remanded the case to the Office for further development of the

1

Appellant retired and began to receive Office of Personnel Management benefits effective August 1, 2003.

2

It should be noted that combining the impairment ratings for weakness associated with the implicated nerves on
the right actually equals 31 percent and that combining the ratings for weakness associated with the implicated
nerves on the left actually equals 57 percent. See A.M.A., Guides 604-05, Combined Values Chart.

2

medical evidence. He found that there was sufficient evidence of lower extremity symptoms and
possible erectile dysfunction to require referral of appellant for a second opinion examination.
In August 2004, the Office referred appellant to Dr. Robert Smith, a Board-certified
orthopedic surgeon, and Dr. Stanford Feinberg, a Board-certified neurologist, for second opinion
examinations concerning his permanent impairment.
On August 19, 2004 Dr. Smith stated that appellant had no back spasms and noted that
neurological examination of the lower extremities was entirely normal with no atrophy and no
motor, sensory or reflex deficits. He indicated the straight leg raising maneuvers were negative
on both sides and that appellant had reached maximum medical improvement in November 2003.
Dr. Smith indicated that, under the standards of the A.M.A., Guides appellant did not have any
permanent impairment to his lower extremities. He stated that appellant’s claimed penile
dysfunction would have to be evaluated by an urologist as the condition was outside his scope of
practice.
On August 26, 2004 Dr. Feinberg stated that appellant reported that he had constant low
back pain which radiated into both thighs to the knees, that the pain was made worse by activity
and prevented running and that he had weakness in his left leg. He stated that on examination
appellant had 4/5 strength in the left quadriceps upon dorsiflexion of the left foot and indicated
that he had lumbar discogenic disease, mostly at L4-5 and a lumbar radiculopathy. Dr. Feinberg
stated that it was outside his level of expertise to comment on appellant’s penile dysfunction but
noted that it was unusual for an L4-5 radiculopathy to affect sexual dysfunction. He further
stated:
“According to the fifth [edition] to the [A.M.A., Guides], [appellant] meets the
[diagnosis-based estimate] lumbar category of 10 percent. This was derived from
Tables 15-16 and 15-18. [Appellant] demonstrated motor weakness which was
able to move against gravity and resistance in the L3, L4 and L5 lumbar
dermatones on the left. The maximum loss would be 37 percent with a 1 [to] 25
percent motor deficit. This would, therefore, lead to a 10 percent permanent
disability radiating from the left lower extremity.”
The Office referred appellant to Dr. Marvin H. Marx, a Board-certified urologist, for a
second opinion regarding the nature and extent of any penile dysfunction. On December 1, 2004
Dr. Marx discussed appellant’s reported sexual dysfunction and determined that under Table 1321 of the A.M.A., Guides he had a 10 percent permanent impairment of his whole person due to
a Class 3 erectile dysfunction which was employment related. He indicated that appellant
reported that he had a sudden loss of function after his July 6, 1998 injury and that the frequency
of sexual intercourse had diminished from twice per week to no more once a month.3 Dr. Marx
stated that appellant had reached maximum medical improvement, although all avenues of
sexual dysfunction treatment had not been attempted.
In an October 19, 2004 report, Dr. Feinberg stated that appellant had no deficits in his
right leg and, therefore, he did not have any impairment of the right leg.
3

Dr. Marx stated that appellant reported that he was able to maintain his ability to ejaculate.

3

In a November 3, 2004 decision, the Office determined that appellant did not establish
that he had permanent impairment of his right leg which entitled him to schedule award
compensation.
In a November 8, 2004 decision, the Office granted appellant a schedule award for a 10
percent permanent impairment of his left leg. The award ran for 28.8 weeks from November 1,
2003 to May 20, 2004.
Dr. Rodriguez examined appellant up through 2005 and reported findings similar to those
listed in his October 16, 2003 report. He indicated that appellant had erectile dysfunction of a
“high severity.”
In August 4 and October 12, 2005 reports, Dr. Willie E. Thompson, a Board-certified
orthopedic surgeon and an Office medical adviser, determined that appellant had a 10 percent
impairment of his whole person due to penile dysfunction under the standards found in Table 1321 of the A.M.A., Guides. He indicated that this impairment rating was based on the opinion of
Dr. Marx. Dr. Thompson found that, according to a formula dictated by Office procedure, this
whole person impairment equaled a 36 percent impairment of the penis.
In an October 20, 2005 decision, an Office hearing representative set aside the Office’s
November 3 and 8, 2004 decisions and remanded the case for further development. The hearing
representative found that there was a conflict in the medical evidence between Dr. Gonzalez and
Dr. Feinberg regarding whether appellant had more than a 10 percent permanent impairment to
his left leg and no impairment of his right leg.4 He determined that appellant should be referred
to an impartial medical specialist for examination and an opinion regarding the extent of the
impairment of his legs.
In a December 6, 2005decision, the Office granted appellant a schedule award for a 36
percent permanent impairment of his penis. The award ran for 73.8 weeks from December 1,
2004 to May 1, 2005.
On January 25, 2006 Dr. Rodriguez stated that electromyogram (EMG) and nerve
conduction studies obtained on that date suggested L4, L5 and S1 radiculopathies on the left and
a L4 radiculopathy on the right.
On remand the Office referred appellant to Dr. Howard Levin, a Board-certified
neurologist, for an impartial medical examination and opinion regarding the extent of the
impairment to his legs. On March 9, 2006 Dr. Levin described appellant’s medical history and
noted that he currently complained of pain that went down the front and back of both legs but
stopped at his knees. He indicated that he exhibited 5/5 strength throughout his legs but had 4/5
strength in his foot and ankle. Dr. Levin stated that he agreed with Dr. Feinberg that appellant
had weakness in his left foot and ankle but did not have any weakness in his right leg. He
indicated that because appellant consistently complained of pain that went down both legs but
4

The hearing representative stated that Dr. Gonzalez determined that appellant had 30 percent permanent
impairment of each leg and that Dr. Feinberg had determined that he had a 10 percent permanent impairment of his
left leg and a 0 percent permanent impairment of his right leg

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stopped at his knees it was not felt that there was involvement of the L4, L5 or S1 nerve roots,
despite recent EMG and nerve conduction studies which suggested otherwise. Dr. Levin
concluded that appellant had a “permanent impairment disability of 10 percent whole person due
to the weakness he is experiencing in his left lower extremity as a result of the injury he
reportedly sustained to his lumbar spine on July 6, 1998” and that there “was no evidence that he
is suffering from any permanent impairment in his right lower extremity.”5
On June 5, 2006 Dr. Morley Slutsky, Board-certified in occupational medicine and an
Office medical adviser, stated that the basis for Dr. Levin’s impairment rating of the left leg was
unclear. On September 8, 2006 Dr. Levin indicated that he applied Table 15-3 on page 384 of
the A.M.A., Guides which is entitled “Criteria for Rating Impairment Due to Lumbar Spine
Injury.” He indicated that appellant fell under Category 3 for diagnosis-related estimates and,
therefore, had a 10 percent whole person impairment. On September 19, 2006 Dr. Slutsky
indicated that it was inappropriate for Dr. Levin to apply Table 15-3.
In an October 3, 2006 decision, the Office found that appellant had no more than a 10
percent permanent impairment of his left leg and no permanent impairment of his right leg. The
Office based its determination on the opinions of Dr. Levin and Dr. Slutsky.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act6 and its
implementing regulation7 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.8
Section 8123(a) of the Act provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”9 In situations
where there exist opposing medical reports of virtually equal weight and rationale and the case is
referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of

5

Dr. Levin also questioned whether appellant’s erectile dysfunction was related to his employment injuries and
suggested that this dysfunction might be related to the medications he was taking.
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id.

9

5 U.S.C. § 8123(a).

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such specialist, if sufficiently well rationalized and based upon a proper factual background,
must be given special weight.10
It is well established that proceedings under the Act are not adversarial in nature, and
while the claimant has the burden to establish entitlement to compensation, the Office shares
responsibility in the development of the evidence.11
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained lumbar and thoracic strains and lumbar
stenosis at L4-5 on July 6, 1998 when he was baring down with his arms on a die press. It
authorized multiple surgeries for bulging or herniated discs at L3-4, L4-5 and L5-S1. The Office
awarded appellant a schedule award for a 10 percent permanent impairment of his left leg and
determined that he had a 0 percent permanent impairment of his right leg. It indicated that it
based on its determination that appellant did not have a greater impairment on the opinions of
Dr. Levin, a Board-certified neurologist, who served as an impartial medical specialist, and
Dr. Slutsky, a Board-certified occupational medicine physician, who served as an Office medical
adviser.
The Office had determined that there was a conflict in the medical evidence between the
October 16, 2003 opinion of Dr. Rodriguez, an attending Board-certified physical medicine and
rehabilitation physician, and the August 26, 2004 opinion of Dr. Feinberg, a Board-certified
neurologist, who served as an Office referral physician, which necessitated a referral to
Dr. Levin for an impartial medical examination. On October 16, 2003 Dr. Rodriguez stated that
appellant had a 30 percent impairment due to leg weakness associated with the superior gluteal,
inferior gluteal and sciatic nerves on the right and that he had a 30 percent impairment due to leg
weakness associated with the femoral, superior gluteal, inferior gluteal and sciatic nerves on the
left.12 On August 26, 2004 Dr. Feinberg determined that appellant had a 10 percent impairment
of his left leg due to weakness which was based on a “maximum loss” of 37 percent and “a 1 [to]
25 percent motor deficit” derived from Tables 15-16 and 15-18 of the A.M.A., Guides.
Dr. Feinberg also found that appellant did not have any impairment of his right leg.
The Board finds, however, that there was no conflict in the medical evidence13 at the time
of appellant’s referral to Dr. Levin. The opinions of Dr. Rodriguez and Dr. Feinberg were of
limited probative value in that the physicians failed to provide an explanation of how their
assessments of permanent impairment were derived in accordance with the A.M.A. Guides

10

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

11

Dorothy L. Sidwell, 36 ECAB 699, 707 (1985); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

12

It should be noted that combining the impairment ratings for weakness associated with the implicated nerves on
the right actually equals 31 percent and that combining the ratings for weakness associated with the implicated
nerves on the left actually equals 57 percent. See A.M.A., Guides 604-05, Combined Values Chart.
13

See supra note 9 and accompanying text.

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adopted by the Office and approved by the Board as appropriate for evaluating schedule losses.14
Dr. Rodriguez did not provide any explanation for his opinion that appellant’s leg weakness in
the superior gluteal, inferior gluteal and sciatic nerves on the right and the femoral, superior
gluteal, inferior gluteal and sciatic nerves on the left was related to the accepted employmentrelated injuries. Dr. Feinberg did not explain why he apparently felt that weakness associated
with the L5 nerve on the left was the only source of impairment.15 Although he suggested that
appellant had Grade 5 weakness on the left, he did not specify where that grade fell between 1
and 25 percent.16
For these reasons, Dr. Levin actually served as an Office referral physician rather than an
impartial medical specialist and his opinion is not entitled to special weight regarding appellant’s
leg impairment.17 The Board further finds that Dr. Levin’s opinion is in need of clarification and
the case will be remanded to the Office.
On March 9, 2006 Dr. Levin concluded that appellant had a “permanent impairment
disability of 10 percent whole person due to the weakness he is experiencing in his left lower
extremity as a result of the injury he reportedly sustained to his lumbar spine on July 6, 1998”
and that there “was no evidence that he is suffering from any permanent impairment in his right
lower extremity.” On September 8, 2006 Dr. Levin indicated that he applied Table 15-3 on page
384 of the A.M.A., Guides which is entitled “Criteria for Rating Impairment Due to Lumbar
Spine Injury” to determine that appellant had a 10 percent whole person impairment.18 The
Board notes, however, that it was inappropriate for Dr. Levin to use Table 15-3 because neither
the Act nor its implementing regulation provides for a schedule award for impairment to the back or
to the body as a whole.19 Dr. Levin indicated that appellant had left foot and ankle weakness and
the A.M.A., Guides includes methods for measuring such deficits, such as those found in Table 17-8
which pertain to weakness upon such ankle motions as flexion, extension, inversion and eversion.20
There is no indication that Dr. Levin attempted to apply the standards of Table 17-8 or some other
part of the A.M.A., Guides which would adequately evaluate this aspect of appellant’s condition.
Moreover, it is unclear whether he adequately considered whether the pain symptoms in both
appellant’s legs justified impairment ratings for sensory loss.
14

See James Kennedy, Jr., 40 ECAB 620, 626 (1989) (finding that an opinion which is not based upon the
standards adopted by the Office and approved by the Board as appropriate for evaluating schedule losses is of little
probative value in determining the extent of a claimant’s permanent impairment).
15

Dr. Feinberg indicated that he conducted his calculation under Table 15-18 using a maximum value of 37
percent. The only nerve root with a maximum value of 37 percent under Table 15-18 is the L5 nerve root. A.M.A.,
Guides 424, Table 15-18.
16

Id. at Table 15-16. Even if the 25 percent weakness grade were chosen, multiplying this value times the
maximum value for weakness associated with the L5 nerve would only equal a 9.25 percent impairment.
17

See supra note 10 and accompanying text. The Board further notes that the reports of Dr. Slutsky would not
support the Office’s determination as Dr. Slutsky actually indicated that Dr. Levin’s calculation was not appropriate.
18

See A.M.A., Guides 384, Table 15-3.

19

James E. Mills, 43 ECAB 215, 219 (1991); James E. Jenkins, 39 ECAB 860, 866 (1990).

20

See A.M.A., Guides 532, Table 17-8.

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As noted, the Office shares responsibility in the development of the evidence.21
Therefore, the case should be remanded to the Office for clarification of the permanent
impairment to appellant’s legs. After such development if deems necessary, the Office should
issue an appropriate decision.
LEGAL PRECEDENT -- ISSUE 2
The Act provides schedule award compensation for employment-related permanent
impairment of the sexual and urinary functions of the penis, but it must be shown that a claimant’s
sexual or urinary difficulties are related to employment factors through the submission of
rationalized medical evidence establishing such a causal relationship.22 Permanent impairment
must be based on a direct physiological connection between the employment injury and the part of
the body for which a schedule award is claimed.23
The Office’s procedure manual notes that, while the A.M.A., Guides expresses the
impairment of internal organs in terms of the whole person, schedule awards under the Act are
based on the percentage of impairment of the particular organ.24 The Office procedure manual
provides a formula to measure the percentage of impairment of an organ when the whole person
impairment is provided. The whole person impairment of the claimant, identified as A, is
divided by B, the maximum allowable impairment of the organ, which equals X, the impairment
rating, divided by 100.25
The Office procedure manual further provides:
“For organs such as the penis, which have more than one physiologic function,
the A.M.A., Guides provide whole person impairment levels for each function.
When calculating the impairment of these organs, the [district medical adviser]
must consider all functions as instructed in the A.M.A., Guides. In these cases,
the maximum whole person impairment ascribed to the particular organ (B) is
obtained by combining the maximum levels for all functions using the Combined
Values [Chart] in the current edition of the A.M.A., Guides. The actual whole
person impairment (A) is obtained by combining all functional impairments found
using the Combined Values [Chart] in the [A.M.A.,] Guides.
“For example: A claimant has a Class 2 sexual whole person impairment of the
penis amounting to 15 percent, and there is no objective urethral impairment. A
21

See supra note 11 and accompanying text.

22

See 20 U.S.C. § 10.404(a); Gordon G. McNeill, 40 ECAB 790, 795 (1989); William T. Trull, 36 ECAB 659, 66364 (1985).
23

Gregory C. Esparza, 42 ECAB 911, 915 (1991).

24

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4(c)(2)
(November 1998).
25

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4(c)(2)(a)
(August 2002).

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15 percent whole person sexual impairment combined with a 0 percent whole
person urethral impairment results in a whole person impairment of the penis of
15 percent. The maximum whole person impairment for the sexual and urethral
functions of the penis is 28 percent.”26
For the above-noted example, Office procedures provide that the Office medical
adviser should divide 15 by 28 which equals X divided by 100, for a total impairment of the
penis of 54 percent.27
ANALYSIS -- ISSUE 2
The Board finds that appellant did not meet his burden of proof to establish that he has
more than a 36 percent permanent impairment of his penis, for which he received a schedule
award. The Office based its determination regarding the impairment of appellant’s penis on the
December 1, 2004 opinion of Dr. Marx, a Board-certified urologist, who served as an Office
referral physician. The Board notes that Dr. Marx properly determined that under Table 13-21 of
the A.M.A., Guides appellant had a 10 percent permanent impairment of his whole person due to
a Class 3 erectile dysfunction which was employment related.28 Dr. Marx explained that
appellant reported that he had a sudden loss of function after his July 6, 1998 injury and that
frequency of sexual intercourse had diminished from twice per week to no more than once a
month.
The Board further finds that Dr. Thompson, the Office medical adviser, properly utilized
the above described formula to find that the 10 percent whole person impairment divided by the
28 percent maximum whole person impairment for the penis equaled X divided by 100 or a 35.7
percent permanent impairment of the penis. He then properly rounded this figure up to find a 36
percent penile impairment.29
In an October 16, 2003 report, Dr. Rodriguez determined that under Table 13-21 of the
A.M.A., Guides appellant had a Class 3 or 20 percent permanent impairment of his whole person
due to erectile dysfunction. The opinion of Dr. Rodriguez is of limited probative value in that
Dr. Rodriguez failed to provide an explanation of how his assessment of permanent impairment
was derived in accordance with the standards adopted by the Office and approved by the Board
as appropriate for evaluating schedule losses. He did not provide any explanation for
determining that appellant had such a high level of impairment of his penis. Such rationale is
particularly necessary because a Class 3 or 20 percent whole person impairment is intended for

26

Id.

27

Id.

28

See A.M.A., Guides 342, Table 13-21.

29

See supra note 25 through 27 and accompanying text.

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persons experiencing no sexual function and the record reveals that appellant had at least some
sexual function.30
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he has
more than a 36 percent permanent impairment of his penis, for which he received a schedule
award. The Board further finds that the case is not in posture for decision regarding whether he
has more than a 10 percent permanent impairment of his left leg and a 0 percent permanent
impairment of his right leg. The case is remanded to the Office for further development.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
October 3, 2006 decision is set aside and the case remanded to the Office for proceedings
consistent with this decision of the Board. The Office’s December 6, 2005 decision is affirmed.
Issued: October 25, 2007
Washington, DC

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

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

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

30

See A.M.A., Guides 342, Table 13-21. It should be noted that on March 9, 2006 Dr. Levin questioned whether
appellant’s erectile dysfunction was employment related but he did not provide a clear opinion on this matter. The
Board further notes that appellant was not referred to Dr. Levin for the purpose of evaluating the impairment of his
penis.

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fayetteville, NC, Employer
__________________________________________

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Appearances:
Antonio J. Cruz, for the appellant
Office of Solicitor, for the Director

Docket No. 11-1982
Issued: April 10, 2012

Case Submitted on the Record

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

JURISDICTION
On August 23, 2011 appellant, through his representative, filed a timely appeal from a
February 25, 2011 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP) denying his request for reconsideration. Since more than 180 days elapsed since the
most recent merit decision of September 7, 2010 to the filing of this appeal, the Board lacks
jurisdiction to review the merits of the claim pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.2
ISSUE
The issue is whether OWCP properly denied appellant’s January 9, 2011 claim for
reconsideration under 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

For OWCP decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal
of OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. See 20
C.F.R. §§ 501.2(c) and 501.3.

FACTUAL HISTORY
On October 9, 2009 appellant, then a 59-year-old mail processor, filed an occupational
disease claim alleging that he suffered from lumbar spondylosis as a result of constant twisting,
bending, reaching and sweeping as he worked on automation machines. He first became aware
of his condition on April 30, 2007 and realized it resulted from his employment on May 4, 2007.
In an October 20, 2009 letter, the employing establishment controverted appellant’s claim
contending that the medical evidence did not establish that his back condition was causally
related to his employment. Appellant had been on light duty since May 2007.
Appellant received medical treatment from Dr. Thirston Phillips, Board-certified in
physical medicine and rehabilitation. In a June 14 and 25, 2007 reports, Dr. Thirston diagnosed
lumbar spondylarthritis and radicular syndrome of the lower limbs.
In an April 28, 2007 record, Dr. Jorge L. Franco, a Board-certified family practitioner,
noted that appellant was seen in the emergency room with complaints of left leg pain. He
authorized appellant to return to light duty with restrictions. In an October 8, 2009 report,
Dr. Franco noted appellant’s history of chronic back pain and degenerative disc disease. He
related that appellant was doing well until an April 30, 2007 work injury, which resulted in disc
protrusion.
On October 26, 2009 OWCP advised appellant that the evidence submitted was
insufficient to establish his claim and requested additional factual and medical evidence.
Appellant submitted additional historical medical reports to the record. In a June 28,
2007 report, Dr. Robin F. Koeleveld, a Board-certified neurological surgeon, related that
appellant was at work several months prior when he developed a shooting pain from the right
foot up the right leg. Appellant received medical treatment, but a lumbar magnetic resonance
imaging (MRI) scan and x-rays did not reveal any conditions. Dr. Koeleveld reviewed his
history and noted that a 2007 lumbar spine MRI scan showed fairly mild degenerative changes
with no herniation or stenosis. She pointed out that appellant had unusual symptoms of shooting
pains in his right leg and sometimes his left leg. Dr. Koeleveld opined that this was not typical
for radiculopathy and concluded that she was not sure what the diagnosis was.
In an October 29, 2007 report, Dr. Michael M. Haglund, a Board-certified neurological
surgeon, noted that MRI scan studies revealed some degenerative changes with some mild
scoliosis. He stated that appellant would not benefit from any surgical intervention and would
best be treated in the pain clinic.
In an August 20, 2009 MRI scan report, Dr. Richard Falter, Jr., diagnosed chronic disc
extrusion at the T8-9 level with degenerative disc disease, osteophytosis and postoperative
changes at vertebral column S3-4.
In an October 14, 2009 MRI scan of the lumbar spine, Dr. Max H. Faykus, Jr., a
Board-certified diagnostic radiologist, noted appellant’s complaints of low back and abdominal
pain. He observed stable degenerative disc disease at L4-5 and L5-S1 and facet joint
degenerative changes in the lower lumbar spine. Dr. Faykus also noted bridging osteophytes
2

anteriorly within the mid and upper lumbar spine and some disc space narrowing in a lower
thoracic spine upper lumbar spine. He diagnosed stable diffuse chronic changes throughout the
lumbar spine.
In a decision dated January 13, 2010, OWCP denied appellant’s claim finding insufficient
medical evidence to establish that he sustained a back condition causally related to factors of his
employment.
On January 9, 2011 appellant, through his representative, requested reconsideration. In
an attached statement, counsel stated that the latest July 21, 2010 incident occurred while
appellant was working at the postal facility.
In a handwritten statement, a witness explained that she worked with appellant. She
described an incident where she observed that he was not walking very well and advised him to
go home because he was not going to make it that night.
In a May 6, 2010 statement, Antonio de Castro, an automation clerk, described a 2007
incident where appellant was reportedly hurt during work hours. He noticed that appellant was
moving slowly and having difficulty moving a specific piece of equipment. Appellant asked his
supervisor for permission to see his doctor. Mr. de Castro assisted him to his vehicle.
In a July 21, 2010 hospital report, Dr. Mark A. Boney, Board-certified in emergency
medicine, noted that appellant was treated in the emergency room for low back pain. Appellant
received ibuprofen for his back pain and discomfort and was seen by a physician’s assistant. He
was diagnosed with musculoskeletal low back pain. Dr. Boney stated that he agreed with the
physician’s assistant’s recommendation to discharge appellant and instructed him to follow-up
with his primary care provider.
In a July 27, 2010 MRI scan report, Dr. Faykus noted that appellant had a history of low
back pain and observed stable severe degenerative disc disease at L5-S1. He diagnosed stable
multilevel degenerative disc disease with no compression deformities.
By decision dated February 25, 2011, OWCP denied appellant’s request for
reconsideration finding that the additional evidence submitted was insufficient to warrant further
merit review under 5 U.S.C. § 8128(a). It determined that the materials submitted were
duplicative to the evidence already on record or immaterial to the issue of causal relationship.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation.3 OWCP’s regulations provide that OWCP may

3

5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

3

review an award for or against compensation at anytime on its own motion or upon application.
The employee shall exercise his right through a request to the district OWCP.4
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.5
A request for reconsideration must also be submitted within one year of the date of the
OWCP decision for which review is sought.6 A timely request for reconsideration may be
granted if OWCP determines that the employee has presented evidence or provided an argument
that meets at least one of the requirements for reconsideration. If OWCP chooses to grant
reconsideration, it reopens and reviews the case on its merits.7 If the request is timely but fails to
meet at least one of the requirements for reconsideration, OWCP will deny the request for
reconsideration without reopening the case for review on the merits.8
ANALYSIS
The Board has no jurisdiction to review OWCP’s January 13, 2010 merit decision
denying appellant’s occupational disease claim. As appellant did not file a timely appeal of that
decision, the Board may not review the merits of his case. The only decision the Board may
review is OWCP’s February 25, 2011 nonmerit decision denying appellant’s request for
reconsideration. The only issue before the Board, therefore, is whether OWCP properly denied
appellant’s January 9, 2011 request for reconsideration. The Board finds that OWCP properly
denied appellant’s request for reconsideration as he did not meet any of the requirements
sufficient to warrant merit review.
In his January 9, 2011 request for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law. He did not advance a relevant legal
argument not previously considered by OWCP. To support his request for reconsideration,
appellant submitted July 21, 2010 hospital records and a July 27, 2010 MRI scan report.
Although these medical records were not previously considered, they fail to provide any opinion
on causal relationship and are, therefore, irrelevant to his claim. The underlying issue on
reconsideration was whether appellant submitted sufficient medical evidence to establish that he
developed a back condition causally related to factors of his employment. The reports indicated
that he complained of back pain and suffered from degenerative disc disease, but neither
4

20 C.F.R. § 10.605; see also R.B., Docket No. 09-1241 (issued January 4, 2010); A.L., Docket No. 08-1730
(issued March 16, 2009).
5

Id. at § 10.606(b); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 (issued
December 9, 2008).
6

Id. at § 10.607(a).

7

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

8

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

4

physician provided any opinion on the cause of appellant’s bank symptoms. Accordingly, these
reports are not relevant as they do not address the underlying issue of causal relationship. The
Board notes that the submission of evidence that does not address the particular issue involved
does not constitute a basis for reopening a case.9 Similarly, the witness statements provided did
not address appellant’s back symptoms and its relationship to his employment. As the
underlying issue was medical in nature, these statements did not constitute relevant evidence.
Because appellant’s request for reconsideration failed to show that OWCP erroneously
applied or interpreted a specific point of law, failed to advance a relevant legal argument not
previously considered by OWCP and failed to provide relevant and pertinent new evidence not
previously considered by OWCP, the Board finds that OWCP properly denied further merit
review of his case. The Board will affirm the February 25, 2011 decision.
On appeal, appellant related his belief that the constant wear and tear of working for the
employing establishment for over 36 years caused his back symptoms. He did not, however,
show that OWCP erroneously applied a specific point of law nor advance any new legal
argument. Thus, appellant’s request did not meet any of the requirements warranting further
merit review.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board find that OWCP properly denied appellant’s January 9, 2011 request for
reconsideration pursuant to 5 U.S.C. § 8128(a).

9

Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

5

ORDER
IT IS HEREBY ORDERED THAT the February 25, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 10, 2012
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Orleans, LA, Employer
__________________________________________

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Appearances:
Gay Snyder, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1677
Issued: July 6, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On August 16, 2016 appellant, through counsel, filed a timely appeal from a June 7, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject
to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

Counsel requested an oral argument before the Board. By order dated January 12, 2017, the Board exercised its
discretion and denied the request as the arguments on appeal could be adequately addressed in a decision based on
review of the case record. Order Denying Oral Argument, Docket No. 16-1677 (issued January 12, 2017).

ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective May 6, 2012; and (2) whether appellant
has established continuing employment-related disability after May 6, 2012 causally related to
the October 14, 2010 employment injury.
FACTUAL HISTORY
On November 17, 2010 appellant, then a 61-year-old clerk, filed a traumatic injury claim
(Form CA-1) alleging that she sustained injuries when lifting heavy buckets in the performance
of duty on October 14, 2010. The reverse side of the claim form indicated that she stopped work
on October 29, 2010. On December 7, 2010 OWCP accepted the claim for sprains of the neck,
thoracic, and lumbar spine. Appellant began receiving wage-loss compensation and was placed
on the periodic compensation roll as of February 13, 2011.
OWCP referred appellant to Dr. Douglas Lurie, a Board-certified orthopedic surgeon, for
a second opinion examination to determine appellant’s work capacity. In a report dated April 25,
2011, Dr. Lurie provided a history and results on examination. He opined that the accepted
sprains had resolved. Dr. Lurie wrote that any residual symptoms were most likely the result of
preexisting degenerative changes in the back, which were likely aggravated by the lifting of
heavy buckets. He indicated that appellant should have a functional capacity evaluation (FCE)
prior to returning to work. The record indicates that appellant underwent an FCE on
June 8, 2011.
In a June 9, 2011 report, Dr. Lurie reported that appellant was capable of full-time
sedentary work, based on the FCE. He noted that appellant was “self-limited” on 38 percent of
the 16 tasks, and the FCE report noted that, if self-limiting exceeded 20 percent, then
psychosocial and motivating factors were affecting the result. In a July 5, 2011 report, Dr. Lurie
wrote that he did not feel he could “trump” the FCE and released appellant back to full-duty
work.
OWCP referred appellant for another second opinion examination. In a report dated
August 15, 2011, Dr. Christopher Cenac, Sr., a Board-certified orthopedic surgeon, summarized
appellant’s medical history and results on physical examination. He noted that he had reviewed
the FCE report. Dr. Cenac opined:
“[Appellant] can return to full duty with the restrictions noted on the FCE, eight
hours per day. The acute sprains have resolved; however, [she] has progressive
degenerative pathology which will continue to be symptomatic in the future,
unrelated to the incident. This patient’s long-term work prognosis is limited
because of her age, 63 years, and the progressive nature of the degenerative
pathology, nonwork related.”
Dr. Cenac completed an OWCP-5c work capacity evaluation dated August 15, 2011, outlining
work restrictions that included 10 pounds lifting.

2

In a letter dated August 31, 2011, OWCP requested that Dr. Sara Fernandez, a Boardcertified internist, review the August 15, 2011 report. On September 7, 2011 Dr. Fernandez
indicated that she agreed with the findings of Dr. Cenac. In a report dated October 31, 2011, she
provided results on examination. Dr. Fernandez reported a normal physical examination and
indicated that appellant complained of back and neck pain.
In a December 5, 2011 report, Dr. Mahmoud Sarmini, a physiatrist, reported that
appellant had lumbar degenerative disc disease and opined that appellant’s employment-related
injury had exacerbated her back pain. He reported on February 28, 2012 that appellant’s low
back pain restricted her from lifting more than 20 pounds, as well as from standing or walking
for long periods of time.
By letter dated March 30, 2012, OWCP advised appellant that it proposed to terminate
her wage-loss compensation and medical benefits. It indicated that the weight of the evidence
was represented by Dr. Cenac, who found that the accepted conditions had resolved.
On April 23, 2012 appellant submitted additional evidence, including an April 17, 2012
report from Dr. Sarmini. Dr. Sarmini again wrote that appellant had lumbar degenerative disc
disease and her job-related injury had aggravated low back pain.
By decision dated May 3, 2012, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective May 6, 2012. It found that the weight of the medical evidence
established that the accepted conditions had resolved.
On May 31, 2012 appellant requested a review of the written record by an OWCP hearing
representative. She submitted a May 29, 2012 report from Dr. Justin Lundgren, a Board-certified
physiatrist. Dr. Lundgren provided a history and results on examination. He wrote that if it is
true that appellant did not have neck or low back pain prior to the October 14, 2010 injury, then
“we can point to the work activities on [October 14, 2010] as the cause of her pain.”
Dr. Lundgren indicated that appellant had underlying degenerative disease in the neck and
lumbar back, as most 60-year olds did, but the work activity brought the onset of pain and she
never recovered. He also reported that results of an electromyogram/nerve conduction velocity
study (EMG/NCV) performed on May 29, 2012 was suggestive of a sensory motor
polyneuropathy.
In a report dated June 5, 2012, Dr. Walter Eversmeyer, a rheumatologist, diagnosed
fibromyalgia. He opined that, although trauma had never been shown to cause fibromyalgia, it
seemed likely that, if appellant was well until her on-the-job injury, the injury precipitated the
fibromyalgia.
By decision dated September 7, 2012, OWCP’s hearing representative affirmed the
May 3, 2012 decision. He found that OWCP had properly terminated appellant’s wage-loss
compensation and medical benefits based on the medical evidence of record. In addition, the
hearing representative found that the reports from Dr. Lundgren and Dr. Eversmeyer did not
establish any continuing employment-related conditions or disability.
Appellant, through counsel, requested reconsideration on January 22, 2013. She
submitted an August 20, 2012 report from Dr. Hendricks Whitman, a rheumatologist, who
3

provided a history, results on examination, and review of diagnostic studies. Dr. Whitman noted
that a May 28, 2012 magnetic resonance imaging (MRI) scan of the lumbar spine showed
multilevel degenerative disc and facet disease and a May 28, 2012 MRI scan of the cervical
spine showed C5-7 spondylosis. In a December 12, 2012 report, he opined that appellant had an
exacerbation of her osteoarthritis from lifting buckets at work. Dr. Whitman wrote that the
lifting caused pain, muscle spasms and probable change in anatomical alignment of her cervical
and lumbar spine, resulting in fibromyalgia, and chronic fatigue syndrome. He reported that
appellant had multilevel degenerative disc disease, spinal canal stenosis, and facet arthropathy as
documented on her imaging studies.
By decision dated September 3, 2013, OWCP reviewed the merits of the claim and
denied modification. It found that the medical evidence of record failed to establish any
additional employment-related conditions.
On December 3, 2013 appellant, through counsel, requested reconsideration. She
submitted a November 20, 2013 report from Dr. Whitman that provided a history and results on
examination. Dr. Whitman listed as compensable diagnoses: neck, thoracic and lumbar spine
sprains and muscle spasms, right leg radiculopathy, chronic pain, chronic insomnia, and
fibromyalgia. He further found that “Based on my medical rationale, physical examination,
review of history, [appellant] received an injury while she was employed at the [employing
establishment] related to multiple heavy lifting of 52 seventy-[pound] buckets incurring back
sprain, muscle spasms, and nerve root injury with pain down her leg.”
By decision dated December 10, 2013, OWCP reviewed the merits of appellant’s claim
and denied modification. It found that the evidence from Dr. Whitman was of limited probative
value.
On May 17, 2014 appellant, through counsel, again requested reconsideration. She
submitted a March 14, 2014 report from Dr. Whitman that provided results on examination.
Dr. Whitman diagnosed aggravation of neck and back osteoarthritis, fibromyalgia, chronic
fatigue syndrome (including episodic dysfunction of the central nervous system), spinal stenosis,
facet arthropathy, lumbar and cervical radiculopathy. He opined that appellant’s conditions were
causally related to the job injury of October 14, 2010. Dr. Whitman further reported, “[t]he
reason for my opinion is as follows: The initial lifting of approximately 52 seventy-pound
buckets would cause stress to the muscles and nerves in the lumbar and thoracic region. While
degenerative changes (osteoarthritis) of the lumbar spine and cervical spine have a certain
amount of age appropriateness, the repetitive lifting of extremely heavy buckets of mail would
cause an exacerbation and acceleration of this process.” Dr. Whitman asserted this was
consistent with the findings of Dr. Lurie. He wrote that, as a consequence of appellant’s extreme
pain at time of injury, she developed fibromyalgia, chronic fatigue syndrome, and episodic
dysfunction of her central nervous system. Dr. Whitman opined, “It was the inflammation of
these nerves that caused the fibromyalgia and episodic dysfunction of the central nervous system
being experienced by [appellant].” He concluded that the MRI scan findings were consistent
with the lifting injury of October 14, 2010.

4

By decision dated October 22, 2014, OWCP reviewed the merits of the claim, but denied
modification of its prior decision. It again found that the report from Dr. Whitman was of
diminished probative value and was insufficient to overcome Dr. Cenac’s opinion.
On October 6, 2015 appellant, through counsel, requested reconsideration. Counsel
argued that Dr. Cenac did not discuss whether appellant’s underlying degenerative condition was
aggravated by the October 14, 2014 injury. Appellant also submitted an August 9, 2015 report
from Dr. Whitman. In this report, Dr. Whitman again opined that appellant had additional
employment-related conditions. He concluded that there was no doubt that appellant’s work
environment exacerbated her age-appropriate degenerative arthritis causing chronic pain,
insomnia, and fibromyalgia and triggered her autoimmune disorder which caused a sensory
polyneuropathy. Dr. Whitman also explained that, unfortunately, appellant’s accelerated
degenerative arthritis, spinal stenosis, nerve root irritation all brought on by heavy lifting and,
sleep deprivation, and chronic stress had not improved and she remained totally and permanently
disabled despite comprehensive treatment with the state of the art medications.
By decision dated June 7, 2016, OWCP reviewed the merits of the claim, but denied
modification of its prior decision. It found that the evidence was insufficient to warrant
modification.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.4 It may not terminate compensation without establishing
that disability ceased or that it was no longer related to the employment.5 The right to medical
benefits is not limited to the period of entitlement to disability. To terminate authorization for
medical treatment, OWCP must establish that appellant no longer has residuals of an
employment-related condition that require further medical treatment.6
ANALYSIS -- ISSUE 1
In the present case, the only accepted conditions from the October 14, 2010 lifting
incidents were sprains of the cervical, thoracic, and lumbar spine. OWCP has the burden of
proof to terminate wage-loss compensation and medical benefits.7 As to the accepted sprains,
the medical evidence before OWCP as of the May 3, 2012 decision was of sufficient probative
value to terminate compensation.

4

Jorge E. Stotmayor, 52 ECAB 105, 106 (2000).

5

Mary A. Lowe, 52 ECAB 223, 224 (2001).

6

Frederick Justiniano, 45 ECAB 491 (1994).

7

OWCP has the burden of proof to establish that the accepted conditions had resolved. See L.Y., Docket No. 160774 (issued November 18, 2016); A.G., Docket No. 16-0356 (issued October 14, 2016). Appellant has the burden
of proof to establish other conditions are employment-related. K.H., Docket No. 16-0776 (issued October 19, 2016).

5

Dr. Cenac, the second opinion physician, found in his August 15, 2011 report that the
sprains had resolved. An attending physician, Dr. Fernandez, indicated on September 7, 2011
that she agreed with Dr. Cenac’s conclusions. Dr. Sarmini submitted reports dated December 5,
2011 and February 28, 2012, but did not discuss the accepted sprains.
The Board finds that the probative medical evidence of record established that appellant’s
accepted sprains had resolved by May 6, 2012. The evidence of record was therefore sufficient
to meet OWCP’s burden of proof to terminate wage-loss compensation and medical benefits as
of May 6, 2012.
On appeal counsel argues that OWCP did not meet its burden of proof to terminate
appellant’s compensation. He argues that Dr. Cenac did not address whether there was an
employment-related aggravation, but as noted, OWCP’s burden of proof relegated to the
accepted conditions which were sprains. For the reasons discussed, the Board finds that the
weight of the medical evidence was sufficient to meet OWCP’s burden of proof to terminate
wage-loss compensation and medical benefits as of May 6, 2012 based on the accepted
conditions.
LEGAL PRECEDENT -- ISSUE 2
After termination or modification of benefits, clearly warranted on the basis of the
evidence, the burden for reinstating compensation benefits shifts to appellant. In order to prevail,
appellant must establish by the weight of the reliable, probative, and substantial evidence that she
had an employment-related disability based on the accepted conditions which continued after
termination of compensation benefits.8
ANALYSIS -- ISSUE 2
As noted above, the accepted conditions in the case are sprains of the neck, thoracic, and
lumbar spine. It is appellant’s burden of proof to establish any continuing employment-related
disability after compensation benefits have been properly terminated. The Board finds that the
evidence of record is insufficient to establish that appellant had employment-related residuals or
disability after May 6, 2012.
Dr. Lundgren opined in his May 29, 2012 report that, while appellant had underlying also
they were speculative degenerative disc disease, he speculated that the work activity had
aggravated the condition and caused symptoms. He did not, however, provide supporting
medical rationale. Rationalized medical opinion evidence is medical evidence that is based on a
complete factual and medical background, of reasonable medical certainty, and supported by
medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the claimant.9

8

Talmadge Miller, 47 ECAB 673, 679 (1996); see also George Servetas, 43 ECAB 424 (1992).

9

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

6

Dr. Whitman opined in his March 14, 2014 report that the repetitive lifting of extremely
heavy buckets of mail would cause an exacerbation and acceleration of the degenerative process.
He also opined in his August 9, 2015 report that there was an employment-related aggravation.
Dr. Whitman referred to a number of diagnoses, including degenerative arthritis, spinal stenosis,
nerve root irritation, chronic pain, insomnia, fibromyalgia, and an autoimmune disorder. Again,
the evidence lacks medical rationale connecting any of these diagnosed conditions to the
October 14, 2010 injury.10
The Board notes that OWCP has not accepted an aggravation of degenerative disc
disease, or any of the other diagnoses reported by Dr. Whitman.11 Based on the evidence of
record, there is no rationalized medical evidence establishing an employment-related disability
after May 6, 2012. It is appellant’s burden of proof, and the Board finds that appellant did not
meet her 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 OWCP met its burden of proof to terminate compensation effective
May 6, 2012. The Board further finds that appellant has not established continuing employmentrelated residuals or disability after May 6, 2012, causally related to the October 14, 2010
employment injury.

10

Id.

11

Appellant may pursue the issue with OWCP of expanding the accepted conditions in this case.

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 7, 2016 is affirmed.
Issued: July 6, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.C., Appellant
and
U.S. POSTAL SERVICE, TOWNSEND POSTAL
CENTER, Townsend, CA, Employer
__________________________________________

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

Docket No. 11-2093
Issued: May 14, 2012

Case Submitted on the Record

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

JURISDICTION
On September 23, 2011 appellant filed a timely appeal of an April 28, 2011 merit
decision of the Office of the Workers’ Compensation Programs’ (OWCP) denying her claim for
an employment-related injury. Pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the
case.
ISSUE
The issue is whether appellant met her burden of proof to establish an injury in the
performance of duty on June 26, 2010.
On appeal, appellant alleged that she was assaulted by a customer and rendered
unconscious. She experienced severe head, scalp and neck pain as well as a chipped tooth,
which should have been included in her final diagnosis.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 28, 2010 appellant, then a 36-year-old supervisor of customer service, filed a
traumatic injury asserting that she sustained headache, neck pain and stiffness, pain on her scalp
and loss of memory on June 26, 2010 in the performance of duty. She stated that she was called
to the window to serve a customer. A coworker returned to the window after a brief absence and
found appellant on the ground crying.
Appellant sought treatment at the San Francisco General Hospital on June 26, 2010 and
was found unable to work for 14 days. In a form report dated June 26, 2010, a physician, whose
signature is illegible, stated that she was found unconscious. He reported appellant’s subjective
complaints of headache and spinal cord pain, loss of memory and pain in the cheeks. The
physician stated that her objective findings were normal except for amnesia. He diagnosed
traumatic global amnesia.
In a letter dated July 21, 2010, OWCP requested additional factual and medical evidence
and allowed 30 days for a response. Appellant submitted her hospital records. On June 26, 2010
she reported that a coworker found her on the ground on her knees, crying and unable to recall
the date or events of the day. Appellant denied any trauma or sexual assault. The notes indicate
that she repetitively asked “what happened?” There were no obvious signs of trauma and
appellant had no complaints or neurological defects except for short-term memory loss. A report
from the fire department indicated that there were several different versions of what happened to
her, including that she was assaulted and that a customer had a gun. On June 27, 2010 appellant
reported scalp tenderness and neck pain on the left. The physician noted that postal inspectors
stated that she may have been assaulted. He listed alternative diagnoses of transient global
amnesia and postconcussive syndrome.
In a report dated July 1, 2010, Dr. Marina Kasavin, a Board-certified neurologist, noted
that appellant had no memory of June 26, 2010 from the time she arrived at work until she found
herself in the hospital at 5:00 pm. Appellant and her husband gave the history that she talked
with a customer alone for two minutes at 9:50 a.m. and, when her coworker returned, she was
sitting on the floor crying. At that time she was unable to answer any questions and was very
agitated, asking the same question over and over. Appellant was transported to the hospital
where she was extremely agitated and repeatedly asking what the time was. She reported
headache and neck pain when she returned to baseline at 5:00 p.m. Appellant reported jaw pain
and was unable to open her mouth wide. She had one chipped tooth. Dr. Kasavin diagnosed
possible transient global amnesia and noted that it was unusual to have complaints of persistent
headaches and jaw pain as well as mild memory impairment associated with this diagnosis.
Appellant submitted additional hospital records including her discharge summary dated
June 28, 2010, which reported a history of injury and her complaint of neck pain, but no external
signs of head trauma. She was discharged with a diagnosis of acute anterograde and retrograde
amnesia, possible likely change in global amnesia. The notes included appellant’s report on
June 27, 2010 of left scalp tenderness and left neck pain.
Appellant completed a statement on August 12, 2010 that she had no memory of June 26,
2010 other than reporting to work. She became unconscious and lost her memory. Appellant

2

reported headache, neck pain and a chip on one of her upper left teeth. She stated that postal
inspectors were investigating whether a customer hit her and left the scene. Susan Lee, a mail
processing clerk, completed a witness statement on July 28, 2010 noting that the incident
happened on June 26, 2010 around 9:35 a.m. She explained that a customer reported that he had
not received his mail for a month and that she asked appellant to come to the caller window to
help the customer. Ms. Lee left the window to dispatch her mail and take it to the truck dock.
She returned to the window in two to three minutes and found appellant by herself sitting and
crying on the floor. Appellant’s hair clip and eyeglasses were also on the floor.
By decision dated September 1, 2010, OWCP found that appellant was a federal
employee who filed a timely claim, but denied her claim finding that she did not establish fact of
injury. The factual evidence was not sufficient to establish that the incident occurred as she
described. OWCP found that it was unclear what event occurred or how a work-related injury
occurred. It further found that appellant did not submit medical evidence of a diagnosed
condition causally related to her alleged work injury.
Appellant requested an oral hearing on September 20, 2010.
Appellant testified at the oral hearing on February 22, 2011. She had no recollection of
the events of June 26, 2010 and that she was unable to state whether she fell or was assaulted.
Appellant stated that the customer had a criminal record, that she was very frightened on
June 26, 2010 and that she believed that she would not have been so frightened if she had not
been assaulted. Her husband testified that at the hospital she had swelling in the back of her
head which was painful to touch. Appellant noted that she had a chip in her molar. She did not
know if she hit a postal cart or the floor.
Appellant submitted additional medical evidence following the hearing, including a
September 28, 2010 report from Dr. Aaron Grossman, a Board-certified neurologist, who noted
her episode of transient amnesia on June 26, 2010 related to either a traumatic head injury or an
extremely stressful encounter with a customer at the employing establishment. Her current
symptoms included difficulty concentrating, anxiety, difficulty multitasking, irritability, loss of
patience and impulsivity noting that these were consistent with postconcussive syndrome.
Dr. Grossman stated that the symptoms in concert with appellant’s initial complaints of neck
pain, right posterior headache and chipped tooth were suggestive of some form of head trauma
either as the result of an attack or a fall on June 26, 2010.
By decision dated April 28, 2011, an OWCP hearing representative found that the
evidence did not establish an injury resulting from the June 26, 2010 incident. The hearing
representative stated that there was no specific incident to accept as the evidence did not
establish either that appellant was assaulted by a customer or that she fell. He concluded that
OWCP could not accept the claim on the basis of an unexplained fall. The hearing
representative noted that there was no diagnosis of a physical trauma such as head contusion or a
neck condition.

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LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an “employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation
of FECA, that an injury was sustained in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed is causally related to the
employment injury.”2 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or occupational disease.3
Congress, in providing for a compensation program for federal employees, did not
contemplate an insurance program against any and every injury, illness or mishap that might befall
an employee contemporaneous or coincidental with her employment; liability does not attach
merely upon the existence of any employee/employer relation.4 FECA provides for the payment of
compensation for disability or death of an employee resulting from personal injury sustained while
in the performance of duty. The term “in the performance of duty” has been interpreted to be the
equivalent of the commonly found prerequisite in workers’ compensation law, “arising out of and
in the course of employment.”5 “In the course of employment” deals with the work setting, the
locale and time of injury.6 In addressing this issue, the Board has stated:
“In the compensation field, to occur in the course of employment, in general, an
injury must occur[:] (1) at a time when the employee may reasonably be said to be
engaged in her master’s business; (2) at a place where he may reasonably be
expected to be in connection with the employment; and (3) while he was reasonably
fulfilling the duties of his employment or engaged in doing something incidental
thereto.”7
This alone is not sufficient to establish entitlement to benefits for compensability. The
concomitant requirement of an injury “arising out of the employment” must be shown and this
encompasses not only the work setting but also a causal concept, the requirement being that the
employment caused the injury in order for an injury to be considered as arising out of the
employment, the facts of the case must show some substantial employer benefit is derived or an
employment requirement gave rise to the injury.8

2

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

3

Daniel J. Overfield, 42 ECAB 718, 721 (1991).

4

Christine Lawrence, 36 ECAB 422, 423-24 (1985); Minnie N. Heubner (Robert A. Heubner), 2 ECAB 20,
24 (1948).
5

James E. Chadden, Sr., 40 ECAB 312, 314 (1988).

6

Denis F. Rafferty, 16 ECAB 413, 414 (1965).

7

Carmen B. Gutierrez, 7 ECAB 58, 59 (1954).

8

See Eugene G. Chin, 39 ECAB 598, 602 (1988).

4

In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another.
The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred.9 The second component is whether the
employment incident caused a personal injury and generally can be established only by medical
evidence. To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence, based on a complete factual and medical background, supporting such
a causal relationship.10
Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant. The weight of medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested and the medical rationale expressed
in support of the physician’s opinion.11
ANALYSIS
Appellant, a federal employee, has alleged that she was injured at her regular work
station during her tour of duty or as frequently stated by the Board, during her employment at the
time and place her duties required. She must show that her injury arose out of her employment
and that her employment caused the injury.
If appellant’s injury was due to an idiopathic condition, the injury would not arise out of
her employment. OWCP has the burden of proof to submit medical evidence showing the
existence of a personal, nonoccupational pathology if it chooses to make a finding that a given
fall is idiopathic in nature. The fact that the cause of a particular fall cannot be determined does
not establish that it was due to an idiopathic condition and if the record does not establish a
particular fall was due to an idiopathic condition, it must be considered as merely an unexplained
fall, which is covered under FECA.12
Appellant has alleged that she sustained an employment incident on June 26, 2010 and
that she has no memory of this event. A coworker stated that she left appellant talking to a
9

Elaine Pendleton, supra note 2.

10

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

11

James Mack, 43 ECAB 321 (1991).

12

M.M., Docket No. 08-1510 (issued November 25, 2008); Jennifer Atkerson, 55 ECAB 317 (2004).

5

customer and when she returned two or three minutes later, appellant was on the floor crying
with her glasses and hairclip also on the floor. The factual evidence establishes that she was
found on the floor on June 26, 2010. There is no rationalized medical evidence in the record that
her employment incident on June 26, 2010 was due to an idiopathic condition. The medical
records do not provide a cause for the incident or the diagnosis of transient amnesia. Based on
the medical evidence of record, the Board finds that appellant’s fall on June 26, 2010 was an
unexplained fall. As an unexplained fall while she was engaged in activities incidental to her
employment duties, an injury resulting from this fall is compensable. The Board further finds,
however, that appellant did not establish any medical condition for which compensation is
claimed as a result of the June 26, 2010 incident.
Appellant alleged that she hit her head on June 26, 2010. Her husband testified that she
had a large lump on the back of her head and she testified that she had a chipped tooth after the
June 26, 2010 incident. Both the Board and OWCP’s procedures recognize that a claim may be
accepted without a medical report when the condition is a minor one which can be identified on
visual inspection. In clear-cut traumatic injury claims, such as a fall resulting in a broken arm, a
physician’s affirmative statement is sufficient and no rationalized opinion on causal relationship
is needed. In all other traumatic injury claims, a rationalized medical opinion supporting causal
relationship is required.13
In a signed but illegible medical report dated June 26, 2010, a physician noted appellant’s
subjective complaints of headache and spinal cord pain, loss of memory and pain in the cheeks.
He listed his diagnosis traumatic global amnesia. While the physician mentioned headache, back
pain and cheek pain, the Board has generally held that pain is a symptom, not a firm medical
diagnosis.14
In the hospital records dated June 27, 2010, appellant reported scalp tenderness and neck
pain on the left. The reviewing physician noted that postal inspectors stated that she may have
been assaulted and gave the alternative diagnoses of transient global amnesia and postconcussive
syndrome. While the physician offered a medical diagnosis or postconcussive syndrome, he
offered this diagnosis only in the alternative and did not clearly opine that this condition resulted
from the June 26, 2010 incident. This report is not sufficient to establish an injury resulting from
the June 26, 2010 event.
In the discharge summary dated June 28, 2010, appellant’s complaints of neck pain were
mentioned, but the physician found no external signs of head trauma. Her diagnosis was acute
anterograde and retrograde amnesia, possible likely change in global amnesia. This report does
not support appellant’s claim of head trauma and did not provide any opinion on the causal
relationship of her diagnosis of amnesia and her employment event of June 26, 2010. This report
is not, therefore, sufficient to establish a medical condition resulting from the June 26, 2010
event.

13

G.G., 58 ECAB 389 (2007).

14

G.B., Docket No. 10-2155 (issued June 1, 2011).

6

On July 1, 2010 Dr. Kasavin noted appellant’s reports of headache, neck pain, jaw pain, a
chipped tooth and the inability to open her mouth wide. She diagnosed possible transient global
amnesia, but noted that it was unusual to have complaints of persistent headaches and jaw pain
as well as mild memory impairment associated with this diagnosis. This report does not offer a
firm diagnosis, stating only possible transient global amnesia noting that appellant had additional
complaints not usually associated with this diagnosis. As Dr. Kasavin did not provide a firm
diagnosis this report is not sufficient to meet appellant’s burden of proof.
Dr. Grossman completed a report on September 28, 2010 opining that appellant’s episode
of transient amnesia on June 26, 2010 related to either a traumatic head injury or an extremely
stressful encounter with a customer at the employing establishment. He described her current
symptoms of difficulty concentrating, anxiety, difficulty multitasking, irritability, loss of
patience and impulsivity noting that these were consistent with postconcussive syndrome.
Dr. Grossman stated that these symptoms in concert with her initial complaints of neck pain,
right posterior headache and chipped tooth are suggestive of some form of head trauma either as
the result of an attack or a fall on June 26, 2010. This report does not offer a clear opinion
regarding the causal relationship between appellant’s June 26, 2010 event and her diagnosed
condition of transient amnesia. Dr. Grossman indicated that, rather than physical trauma,
appellant’s condition could be the result of stress. Given the speculative nature of his report, the
Board finds that his opinions are not sufficiently clear and based on the factual history available
to meet her burden of proof to establish that transient amnesia resulted from the event of
June 26, 2010.
The Board has carefully reviewed the factual evidence and accepted that appellant
sustained an unexplained fall on June 26, 2010 based on the evidence that she, her glasses and
her hair barrette were on the floor when her coworker returned after a brief absence. However,
given appellant’s amnesia and the lack of witnesses to the event, the Board is unable to accept
her hypothesis that she was assaulted in the performance of duty. Furthermore, the medical
evidence does not support any diagnosis other than amnesia as occurring on June 26, 2010.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof in establishing that she
sustained an injury in the performance of duty on June 26, 2010.

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ORDER
IT IS HEREBY ORDERED THAT the April 28, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed as modified.
Issued: May 14, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8