United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jackson, MS, Employer
__________________________________________

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Appearances:
David N. Gillis, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-98
Issued: September 10, 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 October 13, 2009 appellant filed a timely appeal from an April 17, 2009 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that she sustained an injury on May 4, 2007 in
the performance of duty.
FACTUAL HISTORY
On May 16, 2007 appellant, a 53-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that, on May 4, 2007 while pushing a buggy up a ramp, she sustained a
burning weakness in her right leg and lower back. She stopped work that same date.
Appellant underwent medical treatment. Dr. R.E. Williams, a radiologist, on May 8,
2007 reported that x-rays of her lumbar spine revealed an “essentially negative study” and that
x-rays of her sacrum revealed no abnormality.

Appellant submitted reports (Form CA-17), dated May 8, 17 and 21, 2007, in which
Dr. Kevin Hayes, Board-certified in family medicine, diagnosed low back pain that radiated into
her right leg. Dr. Hayes stated that this condition is employment related and occurred while
appellant was pushing a buggy on a ramp. In a separate report (Form CA-20), also dated
May 17, 2007, he again diagnosed low back pain that radiated into her right leg. Dr. Hayes
attributed this condition to lifting boxes of mail.1 On May 24, 2007 he diagnosed lower back
pain.
On May 25, 2007 Dr. Thomas McDonald, a Board-certified neurosurgeon, presented
findings on examination and diagnosed coccygeal, low back and limb pain.
In a May 30, 2007 note, appellant described the events of May 4, 2007 and explained
how this incident caused her condition. She also reviewed her medical history.
Appellant submitted a June 20, 2007 postoperative report, in which Dr. Robert
Thompson, Jr., a Board-certified anesthesiologist, diagnosed coccydynia.
By decision dated June 27, 2007, the Office accepted that the identified employment
incident occurred as alleged but denied the claim because the medical evidence of record did not
demonstrate that this incident caused a medically-diagnosed condition.
On July 5, 2007 Dr. McDonald diagnosed coccygeal pain and referred appellant for
treatment at a gastrointestinal clinic. He released [her] from work for 20 days because of
“[gastrointestinal] problems.”
Appellant submitted a July 5, 2007 report CA-17 form, in which Dr. McDonald
diagnosed coccydynia which, he opined, occurred while she was pushing a buggy on a ramp.
On July 12, 2007 Dr. Thompson diagnosed coccydynia.
Appellant submitted a note signed by a nurse practitioner.
On August 21, 2007 Dr. Bryan Givhan, a Board-certified neurosurgeon, reported findings
on examination and diagnosed low back strain with facet joint inflammation at the L5-S1 level.
He noted in his history that appellant sustained an employment-related back injury in 2004.
Dr. Givhan related that she was doing well until, on “May [2007],” while pushing a heavy object
at work, she experienced pain in her S1 joint that radiated into her hip, buttock and down her leg.
In an October 25, 2007 note, Dr. Hayes diagnosed back pain and constipation.
Appellant submitted a collection of notes, dated September 6 and 17, October 29,
November 12, December 3 and 26, 2007, in which Dr. Wesley Spruill, a Board-certified
anesthesiologist, diagnosed back pain, right sacroiliac joint dysfunction and right lower
1

The Board notes that the Office issued a (Form CA-16). A properly executed CA-16 form creates a contractual
obligation, which does not involve the employee directly, to pay the cost of the examination or treatment regardless
of the action taken on the claim. See Elaine M. Kreymborg, 41 ECAB 256, 259 (1989). The CA-16 form issued to
appellant authorized examination and was, therefore, properly executed.

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extremity radiculopathy. Dr. Spruill also diagnosed an L5-S1 postlaminectomy defect with
bulging disc and facet degeneration, epidural fibrosis surrounding the right nerve root and “mild
left and moderate right” neural foraminal narrowing. He noted that appellant’s pain had been
present since 2004. Dr. Spruill opined that she was injured on May 4, 2007 at work when she
was pushing a cart up a ramp.
Appellant submitted a January 21, 2008 report in which Dr. Fred Graham, a Boardcertified physiatrist, reported findings on examination and diagnosed low back pain and disc
disease.
On January 24, 2008 appellant, through her attorney, requested reconsideration. Her
attorney submitted a brief in which he argued that the evidence of record was sufficient to
establish that her conditions were causally related to the established employment incident.
On February 1, 2008 Dr. Givhan, a Board-certified neurosurgeon, reported findings
following a lumbar inter-body fusion. He diagnosed lumbar discogenic back pain.
On April 8, 2008 Dr. Chris Miller, a Board-certified diagnostic radiologist, reported that
x-rays of appellant’s lumbar spine revealed no abnormality.
On May 8 and August 12, 2008 Dr. Ronald C. Phelps, a Board-certified diagnostic
radiologist, reported that x-rays of appellant’s spine revealed no abnormality.
In a June 19, 2008 note, Dr. Hayes reviewed appellant’s history of injury, noting that
appellant had undergone a previous back surgery in 2004. More recently, a May 9, 2007
magnetic resonance imaging (MRI) scan revealed postsurgical changes at L5-S1, including a
right laminotomy defect. Dr. Hayes further noted that appellant had undergone an anterior
lumbar fusion on February 1, 2008. He concluded that she reinjured her back while pushing a
mail buggy on May 5, 2007.
Appellant submitted a June 24, 2008 report, in which Dr. Graham reviewed her history of
injury, presented findings on examination and diagnosed failed back syndrome and low back
pain. In subsequent reports, dated July 22 and August 19, 2008, Dr. Graham reviewed her
history of injury, presented findings on examination and diagnosed low back pain.
By decision dated July 30, 2008, the Office vacated its June 26, 2007 decision, in part
and accepted appellant’s claim for lumbar strain. It affirmed the remainder of its June 26, 2007
decision because she had not demonstrated the established employment incident caused any
other medically diagnosed condition.
In an August 19, 2008 report, Dr. Jason R. Bearden, a Board-certified diagnostic
radiologist, related that an MRI scan of appellant’s spine revealed no evidence of disc herniation.
Appellant also submitted the results from a December 31, 2008 functional capacity
evaluation.
In a January 8, 2009 note, Dr. Givhan reviewed appellant’s history of injury and course
of treatment. He reported that she injured her back at work in 2004 and underwent a lumbar

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discectomy in 2004. Dr. Givhan related that appellant was seen again in 2008 and it was felt that
her pain was coming from the disc which had been operated on. He noted that her “final
diagnosis is failed back syndrome with chronic low back pain and chronic radiculopathy.”
On January 19, 2009 Dr. Graham states:
“It has come to my attention that there is a question of whether or not
[appellant’s] current symptoms are related to her previous [w]orkers’
[c]ompensation claim of 2004. It is my professional opinion that her current
symptoms are all initially related to her complaints dating back to at least [five]
years ago. This was treated with dis[c]ectomy and followed in February 2008 by
fusion at L5-S1. I do not feel these [two] incidents can be separated. I do, again,
feel as though [appellant’s] current complaints are related dating back to 2004, if
not earlier. I would, therefore, be in support of her current treatment being a
[w]orkers’ [c]ompensation claim.”
In a note, dated January 23, 2009, Dr. Raymond G. Overstreet, a Board-certified
psychiatrist, related that appellant was unable to work because of her “increasing depression,
anxiety and continuing back pain.” He related that in 2005 she was charged with malicious
mischief for removing a mailbox, that she believes this criminal case was not properly handled
and that her supervisors did not support her throughout the criminal case. As of January 23,
2009, this criminal case had not been resolved and Dr. Overstreet states that appellant is
“worried” that she will be fired. He described her symptoms as “tearfulness,” anxiety,
depression, “difficulty sleeping” and “uncertain[ty] about her future.” Dr. Overstreet opines that
these conditions disabled her from work for 12 months.
Appellant submitted notes bearing an illegible signature and additional notes signed by a
nurse practitioner.
On January 27, 2009 appellant, through her attorney, requested reconsideration. Her
attorney submitted a brief in which he argued that the medical evidence of record demonstrated
that she sustained “much more than just ‘lumbar strain’” during the accepted employing incident.
He argued that the medical evidence of record demonstrated that appellant’s alleged conditions,
including failed back syndrome, chronic low back pain, chronic radiculopathy, stress,
tearfulness, anxiety and other emotional conditions were causally related to the May 4, 2007
incident.
By decision dated April 17, 2009, the Office denied modification of its June 30, 2008
decision because the evidence of record did not demonstrate that the established employment
incident caused appellant’s condition.

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LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of proof to establish the essential elements of his claim by the weight of the evidence,3
including that he sustained an injury in the performance of duty and that any specific condition
or disability for work for which he claims compensation is causally related to that employment
injury.4 As part of his burden, the employee must submit rationalized medical opinion evidence
based on a complete factual and medical background showing causal relationship.5 The weight
of medical evidence is determined by its reliability, its probative value, its convincing quality,
the care of the analysis manifested and the medical rationale expressed in support of the
physician’s opinion.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. 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.7
ANALYSIS
The Office accepted that the May 4, 2007 employment incident occurred as alleged. It
also accepted that appellant sustained lumbar strain, as related to this accepted incident. The
record also indicates that she had sustained a prior back injury at work in 2004, which required
lumbar fusion.
On appeal, counsel argues that appellant’s 2007 claim should also be accepted for
additional conditions, including “failed back syndrome,” chronic low back pain, chronic
radiculopathy and a variety of emotional symptoms, because the medical evidence of record
demonstrates these conditions are all causally related to the established May 4, 2007 employment
incident. The Board notes initially that she has not formally claimed any emotional conditions
resulting from the May 4, 2007 injury and the Office has not issued a decision denying an
2

5 U.S.C. §§ 8101-8193.

3

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
58 (1968).
4

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143,
1145 (1989).
5

Id.; Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

6

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

7

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).

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emotional condition. Therefore, counsel’s allegations on appeal in this regard are not before the
Board at this time.
Appellant’s burden is to demonstrate the established employment incident caused a
lumbar or lower extremity condition, other than the accepted lumbar sprain. Her lay opinion is
not relevant8 because causal relationship is a medical issue that can only be proven by probative
medical opinion evidence. The medical opinion evidence of record lacks the requisite reasoning
to establish the causal relationship between these additional conditions and the established
employment incident. Consequently, the Board finds that appellant has not established that she
sustained additional conditions on May 4, 2007, in the performance of duty causally related to
her employment.
The notes signed by the nurse practitioner and the notes bearing an illegible signature
have no probative value on the issue of causal relationship because they do not constitute
competent medical evidence. Because healthcare providers such as nurses, acupuncturists,
physician’s assistants and physical therapists are not considered “physicians” under the Act, their
reports, notes and opinions do not constitute competent medical evidence.9
Furthermore, notes bearing illegible signatures are not competent medical evidence
because they cannot be identified as having been prepared by a “physician,” as defined by the
Act.10 Thus, this evidence does not establish a causal relationship between the accepted
employment incident and the identified additional conditions.
The reports and notes signed by Drs. Bearden, Miller, Phelps, Thompson and Williams
have limited probative value on causal relationship because they lack a rationalized opinion
explaining how the established employment incident caused the conditions they diagnosed.11
These physicians all noted diagnoses of appellant’s condition, but offered no opinion regarding
the cause of the diagnosed conditions. As noted above, rationalized medical opinion evidence is
medical evidence which includes a physician’s rationalized opinion on whether there is a causal
relationship between the employee’s diagnosed condition and the compensable employment
factors. 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.12

8

Gloria J. McPherson, 51 ECAB 441 (2000).

9

5 U.S.C. § 8101(2); see also G.G., 58 ECAB 389 (2007); Jerre R. Rinehart, 45 ECAB 518 (1994); Barbara J.
Williams, 40 ECAB 649 (1989); Jan A. White, 34 ECAB 515 (1983).
10

Vickey C. Randall, 51 ECAB 357 (2000); Merton J. Sills, 39 ECAB 572 (1988) (reports not signed by a
physician lack probative value).
11

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal
relationship have little probative value).
12

Supra note 7.

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While Drs. Hayes, McDonald and Spruill note that appellant’s condition occurred while
pushing a buggy on a ramp or pushing a heavy object at work, such generalized statements do
not establish causal relationship because they merely repeat her allegations and are unsupported
by adequate medical rationale explaining how this physical activity actually caused the
diagnosed conditions.
Dr. Givhan and Dr. Graham provided a more extensive history of injury, as both noted
that appellant had a prior low back injury, for which appellant underwent lumbar fusion in 2004.
Both of these physicians opined that her condition in 2008 was related to the L5-S1 disc fusion
she underwent in 2004. They did not explain however what effect the May 4, 2007 injury, the
subject of the current appellant, had on her preexisting condition. As such Dr. Givhan’s and
Dr. Graham’s reports are insufficient to establish causal relationship between her failed back
syndrome, radiculopathy, coccydynia and the May 4, 2007 injury.
An award of compensation may not be based on surmise, conjecture or speculation.13
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor her belief that her condition was aggravated by her employment is sufficient to
establish causal relationship.14 The fact that a condition manifests itself or worsens during a
period of employment15 or that work activities produce symptoms revelatory of an underlying
condition16 does not raise an inference of causal relationship between a claimed condition and an
employment incident.
Because the medical evidence contains no reasoned discussion of causal relationship, one
that, soundly explains how the established May 4, 2007 employment incident caused or
aggravated a firmly diagnosed medical condition, the Board finds that appellant has not
established the essential element of causal relationship.
CONCLUSION
The Board finds that appellant has not established that she sustained “failed back
syndrome” or any other lumbar or lower extremity condition on May 4, 2007, in the performance
of duty causally related to her accepted employment incident.

13

Edgar G. Maiscott, 4 ECAB 558 (1952) (holding appellant’s subjective symptoms and self-serving declarations
do not, in the opinion of the Board, constitute evidence of a sufficiently substantial nature).
14

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

15

E.A., 58 ECAB 677 (2007); Albert C. Haygard, 11 ECAB 393, 395 (1960).

16

D.E., 58 ECAB 448 (2007); Fabian Nelson, 12 ECAB 155, 157 (1960).

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ORDER
IT IS HEREBY ORDERED THAT the April 17, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 10, 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

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

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

Docket No. 07-1184
Issued: January 8, 2008

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 March 29, 2007 appellant filed a timely appeal from a February 22, 2007 merit
decision of the Office of Workers’ Compensation Programs denying his traumatic injury claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
case.
ISSUE
The issue is whether appellant has established that he sustained an injury on January 1,
2007 in the performance of duty.
FACTUAL HISTORY
On January 2, 2007 appellant, then a 45-year-old electronic technician, filed a traumatic
injury claim alleging that on January 1, 2007 he sustained ringing in his ears and a mild headache
when a coworker blew an air horn in an enclosed space. On the reverse side of the claim form,
his supervisor noted that appellant was in the break room resting “when another employee
enter[ed] the break room and sounded an air horn.” Alfredo V. Enierga provided a witness

statement. He maintained that on January 1, 2007 he was in the break room with appellant when
Kenneth R. Eppele, Jr. suddenly blew a loud horn. Mr. Enierga experienced a ringing sensation
in his ears.
In an e-mail message dated January 2, 2007, Mr. Eppele related that every day appellant
came to work and within minutes went to the break room to sleep. He spoke with Ken Dixon, a
supervisor, about the matter. Mr. Eppele stated:
“I went into the break room with an air horn and gave it a short blast to wake
[appellant] and I told him that I wanted to ask him a question. All he did was
repeat everything I said to him. He was obviously startled awake and seemed to
not know what was going on with his surroundings. I asked him in a polite tone if
there was something going on outside of work that made him fall asleep as soon
as he got here.”
Appellant responded with profanity and Mr. Eppele “felt he was definitely threatening my
life….”
In a statement dated January 2, 2007, appellant related that he was speaking with
coworkers when Mr. Eppele “suddenly used an air horn in the lunch room.” He experienced a
mild headache and ringing in his ears due to the noise from the air horn.
In a report dated January 2, 2007, Dr. Duane Cox, a Board-certified internist, related the
history of injury as a coworker using an air horn in a confined space on January 1, 2007.
Appellant experienced a ringing in his ears and a mild earache. On examination, Dr. Cox listed
findings of a bulging, grey, abnormal tympanic membrane but no neurological symptoms or
dizziness. He diagnosed hearing loss not otherwise specified and checked “yes” that the findings
were consistent with appellant’s statement. Dr. Cox found that he could resume modified duty
with no restrictions on standing and walking for two hours.
On January 3, 2007 Dr. Cox diagnosed hearing loss not otherwise specified and found
that appellant could resume work with no restrictions.
By letter dated January 16, 2007, the Office requested additional information from
appellant, including a detailed medical report addressing the relationship of any diagnosed
condition and his employment.
In a report dated January 10, 2007, received by the Office on February 5, 2007, Dr. Cox
found that appellant related no further pain or ringing in his ears and that he was “doing fine
now.” He diagnosed bilateral tinnitus and discharged him as cured with no disability.
By decision dated February 22, 2007, the Office denied appellant’s claim on the grounds
that the medical evidence was insufficient to show that the claimed condition was due to the
established work event.

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LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act; that the claim
was filed within the applicable time limitation; that an injury was sustained while in the
performance of duty as alleged; and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.2 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.3
To determine whether an employee sustained a traumatic injury in the performance of
duty, the Office must determine whether “fact of injury” is established. First, an employee has
the burden of demonstrating the occurrence of an injury at the time, place and in the manner
alleged, by a preponderance of the reliable, probative and substantial evidence.4 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish a causal relationship between the employment incident and the alleged disability and/or
condition for which compensation is claimed.5 An employee may establish that the employment
incident occurred as alleged, but fail to show that his or her disability and/or condition relates to
the employment incident.6
ANALYSIS
Appellant alleged that he sustained a mild headache and ringing in his ears on January 1,
2007 when a coworker blew an air horn in an enclosed room. The evidence of record establishes
that the incident occurred at the time, place and in the manner alleged. Mr. Eppele confirmed
that he blew an air horn in the break room. The issue, consequently, is whether the medical
evidence establishes that appellant sustained an injury as a result of this incident.
On January 2, 2007 Dr. Cox discussed the history of injury as a coworker blowing an air
horn on January 1, 2007 in an enclosed room. He diagnosed hearing loss not otherwise specified
and checked “yes” that the findings were consistent with appellant’s statement. Dr. Cox found
that he could perform modified duty. The Board has held, however, that an opinion on causal
relationship which consists only of a physician checking “yes” to a medical form question on
whether the claimant’s condition was related to the history given is of little probative value.

1

5 U.S.C. §§ 8101-8193.

2

Anthony P. Silva, 55 ECAB 179 (2003).

3

See Ellen L. Noble, 55 ECAB 530 (2004).

4

Delphyne L. Glover, 51 ECAB 146 (1999).

5

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).

6

Id.

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Without any explanation or rationale for the conclusion reached, such report is insufficient to
establish causal relationship.7
On January 3, 2007 Dr. Cox again diagnosed hearing loss and found that appellant could
resume his usual employment. He did not, however, list any findings on examination or address
the cause of the diagnosed condition. The Board has held that medical evidence that does not
offer any opinion regarding the cause of an employee’s condition is of diminished probative
value on the issue of causal relationship.8
On January 10, 2007 Dr. Cox diagnosed bilateral tinnitus and found that appellant
required no further treatment. Again, as the physician did not address causation, his report is of
little probative value.9
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 condition and his
employment.10 He must submit a physician’s report in which the physician reviews those factors
of employment identified by him as causing his condition and, taking these factors into
consideration as well as findings upon examination and the medical history, explain how
employment factors caused or aggravated any diagnosed condition and present medical rationale
in support of his or her opinion.11 Appellant failed to submit such evidence and therefore failed
to discharge his burden of proof.
On appeal, appellant requests reimbursement of medical expenses. A claimant has the
burden of establishing that the expenditures were incurred for treatment of the effects of an
employment-related injury or condition in order to receive reimbursement for medical
expenses.12 As appellant has not established that he sustained an employment injury, he is not
entitled to reimbursement for medical treatment.
CONCLUSION
The Board finds that appellant has not established that he sustained an injury on
January 1, 2007 in the performance of duty.

7

Deborah L. Beatty, 54 ECAB 334 (2003) (the checking of a box “yes” in a form report, without additional
explanation or rationale, is insufficient to establish causal relationship).
8

Conrad Hightower, 54 ECAB 796 (2003).

9

Id.

10

Patricia J. Glenn, 53 ECAB 159 (2001).

11

Robert Broome, 55 ECAB 339 (2004).

12

See Dona M. Mahurin, 54 ECAB 309 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the February 22, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 8, 2008
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 09-1270
Issued: March 17, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 16, 2009 appellant filed a timely appeal from Office of Workers’ Compensation
Programs’ June 3, 2008 and February 17, 2009 decisions denying his claim for recurrence of
disability and request to expand his claim. Under 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 sustained a recurrence of disability on July 27,
2004 causally related to his accepted November 13, 1999 employment injury; and (2) whether he
sustained brachial plexopathy or ulnar neuropathies as a consequence of his accepted injury.
On appeal, appellant’s representative argues that the report of the impartial medical
examiner is insufficient to represent the weight of the medical evidence.
FACTUAL HISTORY
On November 13, 1999 appellant, then a 59-year-old mail handler, filed an occupational
disease claim alleging that he had developed pain in his hands, fingers and arms as a result of his

federal employment activities. The Office accepted his claim for bilateral carpal tunnel
syndrome (CTS) and bilateral median neuropathy. Appellant returned to full duty on or about
May 22, 2000.
Appellant filed claims for recurrences of disability on August 16 and September 2, 2003
He stopped work on August 5, 2003 due to the accepted injury. On October 29, 2003 appellant
asked the Office to expand his claim to include ulnar neuropathy and bronchial plexitis.
Appellant was treated by Dr. Scott O. Fried, a Board-certified osteopath specializing in
orthopedic surgery, who diagnosed traumatically-induced median and radial neuropathy and
bilateral brachial plexitis. Dr. Fried recommended that appellant be restricted to sedentary work
four hours per day, two days per week. On February 26, 2004 Dr. Richard Mandel, a Boardcertified orthopedic surgeon, and second opinion physician, found no evidence of ulnar
neuropathy or brachial plexopathy. He advised that appellant was capable of working four hours
per day, five days per week.
On August 13, 2004 appellant filed a notice of recurrence as of July 2, 2004 due to his
accepted injury. In a July 27, 2004 report, Dr. Fried found that he was totally disabled from
work. Examination revealed: positive brachial plexus; Tinel’s both supra and infraclavicular on
the right; supraclavicular tenderness on the left; significant bilateral upper trapezial spasm;
moderately positive ulnar nerve bilaterally; positive radial nerve bilaterally; and markedly
positive median at both wrists. Dr. Fried referenced a September 3, 2003 electromyogram/nerve
conduction study (EMG/NCS) report which demonstrated: “radial nerve right 44; median nerve
right 7.5, left 7.2; ulnar nerve right 45, left 43; upper plexus right 47, left 56.”
The Office found a conflict in medical opinion between Dr. Fried and Dr. Mandel
regarding appellant’s work capacity and the extent of his work-related injuries. It referred
appellant to Dr. Richard G. Schmidt, a Board-certified orthopedic surgeon, for an impartial
medical examination and an opinion as to whether appellant was partially or totally disabled due
to the accepted employment injury and whether he had any additional conditions as a
consequence of the injury. On September 13, 2004 Dr. Schmidt found no symptoms of ongoing
CTS and opined that appellant had no disability due to his accepted injury.
In a decision dated November 30, 2004, the Office denied appellant’s recurrence claims,
based on Dr. Schmidt’s referee report.
On December 2, 2004 appellant requested an oral hearing.
Dr. Fried provided additional reports finding appellant totally disabled secondary to his
work-related bilateral median neuropathies, tenosynovitis and proximal radiculopathies. On
September 12, 2005 he provided a narrative report, which included a detailed factual and medical
history. Dr. Fried noted that appellant’s EMG and nerve conduction studies objectively
corroborated his clinical complaints and showed severe median neuropathies bilaterally, as well
as proximal radiculopathy.
By decision dated November 14, 2005, the Branch of Hearings and Review set aside the
November 30, 2004 decision on the grounds that Dr. Schmidt’s report was not sufficient to
resolve the conflict in medical opinion. The hearing representative remanded for the Office to
2

obtain another impartial medical examiner. Dr. Schmidt was asked to address whether appellant
could perform modified duties four hours per day, five days per week; whether he sustained a
recurrence of disability in August 2004; and whether the diagnosis of brachial plexopathy was
related to the accepted injury. The Office was advised to instruct the impartial medical examiner
(IME) to obtain an EMG/NCS as necessary and to discuss its results.
On remand the Office referred appellant, together with a statement of accepted facts, to
Dr. William Kirkpatrick, a Board-certified orthopedic surgeon. In a June 5, 2006 report,
Dr. Kirkpatrick provided a history of treatment and examination findings. Appellant had full
active range of motion of both shoulders, elbows, wrists and digital joints in both hands, as well
as full rotation of both forearms. He had limited cervical extension because of “tightness.”
Appellant was able to fully flex his cervical spine to touch his chin to his chest, but limited his
cervical rotation to the right and left to approximately 30 degrees. He did not describe any
discomfort with palpation over the trapezius muscle on either side. Tinel’s testing was negative
over the brachial plexus on both sides and negative over both the supra clavicular and infra
clavicular areas. Provocative plexus maneuvers were essentially unremarkable. On Roos
testing, appellant described only a throbbing in both hands and elbows, as well as thumb pain
with this maneuver. Tinel’s testing was positive over both cubital tunnels. Elbow flexion testing
was positive bilaterally. There was no tenderness with palpation over the forearms and no
tenderness over the radial tunnels or pronator levels of the median nerves. There was no forearm
atrophy on either side. Tinel’s testing also was positive over both median nerves at the wrists.
Provocative wrist maneuvers were otherwise unremarkable bilaterally. Appellant had no
tenderness with palpation over the scapholunate or lunotriquetral joints or over the TFC regions.
There was no ECU tendon subluxation on either side. Appellant did have tenderness with
palpation directly over the palmar aspects of both thumb carpometacarpal joints. Grind testing
of the thumbs was positive bilaterally. There was no thenar or interosseous muscle atrophy in
either hand. Phalen’s testing was positive bilaterally. There was no triggering of any of the
fingers in either hand. No clawing was present in the hands and Wartenberg’s sign was negative
bilaterally. Appellant described slight tingling in the right thumb and index, as well as in the left
thumb and index fingers. Both hands were of similar color and warmth. No trophic changes
were present in the fingers, and there was no abnormal sweat or hair growth. Intrinsic muscle
strength was 5/5 in both hands. Dr. Kirkpatrick diagnosed bilateral median neuropathies at
wrists and bilateral ulnar neuropathies at elbows. He opined that appellant was able to perform
modified duties for four hours a per day, five days a week, as of March 14, 2003; that he was not
totally disabled in July 2004, as he was seen by Dr. Schmidt in September 2004, and there was
no evidence of an ongoing CTS. Dr. Kirkpatrick found no evidence of a brachial plexopathy on
either side. He did find evidence of bilateral ulnar neuropathies at the elbows, which was not
related to appellant’s employment.
The record contains a June 22, 2006 EMG report, which revealed marked right upper
brachial plexus level compromise, unchanged from his previous test result of September 30,
2003; moderate, bilateral radial nerve compromise at the radial tunnel levels (the right was
unchanged while the left previously was reported as normal); bilateral median nerve compromise
at the wrist levels (the right was markedly abnormal but unchanged from his previous test result,
and the left was moderately abnormal and relatively improved from his previous test); bilateral
lunar nerve compromise at the medial elbow levels, mild on the right and significant on the left

3

(the right was marginally improved while the left was moderately worse than reported on his
previous test).
By decision dated September 28, 2006, the Office denied appellant’s recurrence claim
and request to accept brachial plexopathy. It found that Dr. Kirkpatrick’s report represented the
weight of medical opinion. However, it approved appellant’s claim reducing his hours effective
August 5, 2003 to four hours a day, five days a week. On October 4, 2006 appellant requested
an oral hearing.
In a decision dated June 18, 2007, an Office hearing representative vacated the
September 28, 2006 decision, finding that Dr. Kirkpatrick’s June 5, 2006 report was insufficient
to resolve the conflict in medical opinion. The Office was instructed to obtain a supplemental
report from Dr. Kirkpatrick as to whether appellant was able to work limited duty four hours a
day after August 5, 2003 and, if so, whether he was able to perform the duties of a mail handler
after July 27, 2004; further explanation as to why the physician concluded there was no evidence
of brachial plexopathy, in light of appellant’s September 30, 2003 and June 22, 2006 EMG
reports; and medical rationale supporting his opinion that appellant’s diagnosed bilateral ulnar
neuropathies were not causally related to his accepted employment injury.
On July 25, 2007 the Office provided Dr. Kirkpatrick with an updated record and
statement of accepted facts. It requested that he clarify his June 5, 2006 report. Dr. Kirkpatrick
was asked to provide a well-reasoned medical opinion, based on objective findings, on the
following issues: whether appellant’s need for modified duty on March 4, 3003 was due to the
accepted bilateral carpal tunnel condition; whether appellant’s need to reduce his modified duty
to four hours per day on August 4, 2003 was due to the accepted condition; whether appellant’s
complete work stoppage on July 27, 2004 was due to the accepted bilateral carpal tunnel
condition; whether there was no evidence of brachial plexopathy on either side, in view of the
EMG reports of record; whether appellant’s bilateral ulnar neuropathies were not causally related
to his employment; whether the claimant was capable, on and after July 27, 2004 of performing
for four hours per day the modified work duties he had been performing since August 5, 2003
and whether appellant was capable of working with restrictions.
In a supplemental report dated August 6, 2007, Dr. Kirkpatrick responded to the Office’s
questions. He opined that the need for modified duty on Mach 4, 2003 was related to appellant’s
accepted bilateral carpal tunnel condition, based on Dr. Mandel’s December 23, 2002 findings,
which revealed ongoing bilateral median neuropathy with complaints of numbness in both hands
the thumb, index and long and ring fingers, as well as positive bilateral carpal tunnel
compression testing. Dr. Kirkpatrick also stated that the need to reduce his modified duty to four
hours a day on August 4, 2003 was related to his accepted condition, as he continued to have
ongoing symptoms and positive findings.
Dr. Kirkpatrick opined that appellant’s complete work stoppage on July 27, 2004 was not
solely due to the accepted bilateral carpal tunnel condition, as Dr. Fried was treating him for
multiple neuropathies not specifically related to his accepted bilateral carpal tunnel condition.
He further opined that he was not totally disabled on July 27, 2004 and would have been capable
of continuing to perform four hours a day in modified duty as he had been doing since August 5,

4

2003, in light of his accepted bilateral CTS. Dr. Kirkpatrick had not sustained any new work
injuries and was at maximum medical improvement with regards to his accepted bilateral CTS.
Dr. Kirkpatrick stated that there was no evidence of a brachial plexopathy on either side,
in view of electrodiagnostic studies performed on November 30, 1999 and on January 20, 2003,
which were unremarkable regarding the brachial plexus. Although subsequent EMGs performed
by a physical therapist suggested bilateral plexopathies, he stated, “In light of no objective
findings suggesting a brachial plexopathy on examination, clinical correlation supports the
absence of a bilateral brachial plexopathy as noted on his initial EMG studies.”
Dr. Kirkpatrick opined that the bilateral ulnar neuropathies at the elbows were not
directly related to appellant’s employment, as there was no evidence of bilateral ulnar
neuropathies until well after his evaluation by Dr. Mandel on February 26, 2004.
By decision dated August 17, 2007, the Office denied appellant’s request to expand his
claim to include brachial plexopathy or ulnar neuropathy and denied his claim for total disability
beginning August 2004. It found that appellant was entitled to compensation for four hours per
day, five days per week as of August 5, 2003. On August 29, 2007 appellant requested an oral
hearing.
By decision dated February 19, 2008, the Branch of Hearings and Review vacated the
August 17, 2007 decision and remanded the case for further development of the medical
evidence, including a rationalized opinion from Dr. Kirkpatrick as to whether both of the
accepted work-related conditions recurred and caused appellant to stop working on July 27,
2004, and whether he could perform the his duties for four hours a day, five days a week,
beginning August 5, 2003, as a result of the accepted conditions. The hearing representative also
instructed the Office to update the statement of accepted facts to include a detailed description of
appellant’s limited duties beginning in March 2003.
On March 4, 2008 the Office forwarded to Dr. Kirkpatrick an updated statement of
accepted facts, which included a detailed description of appellant’s limited duties beginning in
March 2003. Informing him that the issue for determination was whether appellant had
established that he sustained a recurrence of total disability on July 27, 2004 due to his
employment-related bilateral CTS and median neuropathy, the Office asked the IME to submit a
supplemental report which contained a well-reasoned medical opinion based on objective
findings on whether the accepted work-related conditions (bilateral CTS and bilateral median
neuropathy) recurred and caused appellant to stop working on July 27, 2004, and an opinion as to
whether he could perform the modified duties as described in the updated statement of accepted
facts for four hours a day, five days a week, beginning August 5, 2003, as a result of the accepted
conditions.
In a letter dated April 24, 2008, Dr. Kirkpatrick stated that he had “no evidence that the
accepted work-related condition of bilateral CTS recurred to cause Mr. Hubbard to stop working
on July 21, 2004,” noting that, according to Dr. Mandel, he was at maximum medical
improvement at that time with regards to his bilateral CTS, and there was no evidence of
recurrence. He stated that appellant “would have been able to continue in his modified-duty
employment. There was no evidence of a ‘spontaneous change’ in his medical condition.”

5

Dr. Kirkpatrick also stated that appellant would have been able to perform the modified duties
for four hours a day, five days a week, beginning on August 5, 2003, based upon the status of his
accepted work-related condition of bilateral CTS.
By decision dated June 3, 2008, the Office denied appellant’s claim for recurrence of
total disability beginning July 27, 2004. It found that the weight of medical evidence, which was
represented by Dr. Kirkpatrick’s well-rationalized opinion, supported the fact that appellant was
capable of working four hours per day, five days per week restricted duty beginning August 5,
2003 and was entitled to retroactive compensation for four hours per day, five days per week as
of that date. Further, as there was no objective evidence of brachial plexopathy or the
development of ulnar neuropathies, the Office denied appellant’s request to expand his claim.
On June 6, 2008 appellant requested an oral hearing. At the November 20, 2008 hearing,
appellant’s representative argued that Dr. Kirkpatrick’s reports were insufficient to carry the
weight of the medical evidence, in that he provided no medical rationale to support his opinions.
By decision dated February 17, 2009, the Office hearing representative affirmed the
June 3, 2008 decision, finding that Dr. Kirkpatrick’s well-reasoned opinion constituted the
weight of the medical evidence on the issues of recurrence of disability and expansion of
appellant’s claim.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work caused by a spontaneous change in a medical condition, which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.1 This term also means an inability to work that takes place when a light-duty
assignment made specifically to accommodate an employee’s physical limitations due to his or
her work-related injury or illness is withdrawn (except when such withdrawal occurs for reasons
of misconduct, nonperformance of job duties or a reduction-in-force), or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.2
Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence a causal relationship between his recurrence of disability and his employment
injury.3 This burden includes the necessity of furnishing medical evidence from a physician
who, on the basis of a complete and accurate factual and medical history, concludes that the
disabling condition is causally related to employment factors and supports that conclusion with
sound medical reasoning.4

1

20 C.F.R. § 10.5(x).

2

Id.

3

Carmen Gould, 50 ECAB 504 (1999).

4

Mary A. Ceglia, 55 ECAB 626 (2004).

6

Section 8123(a) of the Act provides, 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.5 The implementing regulations
state that, if a conflict exists between the medical opinion of the employee’s physician and the
medical opinion of either a second opinion physician or an Office medical adviser, the Office
shall appoint a third physician to make an examination. This is called a referee examination and
the Office will select a physician who is qualified in the appropriate specialty and who has no
prior connection with the case.6 When there exist opposing medical reports of virtually equal
weight and rationale and the case is referred to an IME for the purpose of resolving the conflict,
the opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.7
In a situation where the Office secures an opinion from an impartial medical examiner for
the purpose of resolving a conflict in the medical evidence and the opinion from such examiner
requires clarification or elaboration, the Office has the responsibility to secure a supplemental
report from the examiner for the purpose of correcting the defect in the original opinion.8 If the
IME is unable to clarify or elaborate on his original report, or if his supplemental report is also
vague, speculative or lacking in rationale, the Office must submit the case record and a detailed
statement of accepted facts to a second impartial specialist for the purpose of obtaining his
rationalized medical opinion on the issue.9
ANALYSIS
The Board finds that this case is not in posture for a decision as to whether appellant
sustained a recurrence of disability, in that there exists an unresolved conflict in medical opinion.
The Office accepted his claim for bilateral CTS and bilateral median neuropathy. Appellant
claimed that he sustained a recurrence of disability as of July 27, 2004. In order to resolve a
conflict between appellant’s treating physician, Dr. Fried, who opined that appellant was totally
disabled due to conditions causally related to his employment, and Dr. Mandel, who opined that
appellant was not disabled due to his accepted conditions, the Office referred appellant to
Dr. Kirkpatrick, who provided a total of three reports containing an opinion that appellant did not
sustain a recurrence of disability. The Board finds, however, that Dr. Kirkpatrick’s reports are
insufficiently rationalized to resolve the conflict.
In his initial June 5, 2006 report, Dr. Kirkpatrick provided examination findings and
diagnosed bilateral median neuropathies at wrists and bilateral ulnar neuropathies at the elbows,
5

5 U.S.C. § 8123(a).

6

20 C.F.R. § 10.321.

7

Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).

8

L.R. (E.R.), 58 ECAB 369 (2007); Phillip H. Conte, 56 ECAB 213 (2004); Guiseppe Aversa, 55 ECAB
164 (2003).
9

Nancy Keenan, 56 ECAB 687 (2005); Talmadge Miller, 47 ECAB 673 (1996); Harold Travis, 30 ECAB 1071
(1979); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence,
Chapter 2.810(11)(c)(1)-(2) (April 1993).

7

which he opined were not related to his employment. He opined that appellant was able to
perform modified duties for four hours a day, five days a week, as of March 14, 2003 and that he
was not totally disabled in July 2004. However, Dr. Kirkpatrick failed to provide an explanation
for his opinions; therefore, his report was of limited probative value.10
Following the June 18, 2007 decision of the Office hearing representative, which found
that the IME’s June 5, 2006 report was insufficient to resolve the conflict in medical opinion,
Dr. Kirkpatrick was asked to provide a supplemental report to clarify and explain the basis for
his opinions. In an August 6, 2007 response, Dr. Kirkpatrick opined that the need for modified
duty on Mach 4, 2003 was related to appellant’s accepted bilateral carpal tunnel condition; that
the need to reduce his modified duty to four hours a day on August 4, 2003 was related to his
accepted condition; that appellant’s complete work stoppage on July 27, 2004 was not solely due
to the accepted bilateral carpal tunnel condition, as Dr. Fried was treating him for multiple
neuropathies not specifically related to his accepted bilateral carpal tunnel condition; and that he
was not totally disabled on July 27, 2004 and would have been capable of continuing to perform
four hours a day in modified duty as he had been doing since August 5, 2003, in light of his
accepted bilateral CTS. He opined that the bilateral ulnar neuropathies at the elbows were not
directly related to appellant’s employment. Dr. Kirkpatrick’s blanket responses are devoid of
rationale and, therefore, are of minimal probative value.
On February 19, 2008 the Branch of Hearings and Review again remanded the case for
further development of the medical evidence, including a rationalized opinion from
Dr. Kirkpatrick as to whether both of the accepted work-related conditions recurred and caused
appellant to stop working on July 27, 2004 as a result of the accepted conditions. The Office
forwarded to Dr. Kirkpatrick an updated statement of accepted facts, which included a detailed
description of appellant’s limited duties beginning in March 2003 and asked him to provide a
supplemental report, which contained a well-reasoned medical opinion based on objective
findings on whether the accepted work-related conditions (bilateral CTS and bilateral median
neuropathy) recurred and caused appellant to stop working on July 27, 2004, and an opinion as to
whether he could perform the modified duties as described in the updated statement of accepted
facts for four hours a day, five days a week, beginning August 5, 2003, as a result of the accepted
conditions. In a one-page report dated April 24, 2008, Dr. Kirkpatrick stated that he had “no
evidence that the accepted work-related condition of bilateral CTS recurred to cause
Mr. Hubbard to stop working on July 21, 2004,” noting that, according to Dr. Mandel, he was at
maximum medical improvement at that time with regards to his bilateral CTS, and there was no
evidence of recurrence. Dr. Kirkpatrick stated that appellant “would have been able to continue
in his modified-duty employment. There was no evidence of a ‘spontaneous change’ in his
medical condition.” He also stated that appellant would have been able to perform the modified
duties for four hours a day, five days a week, beginning on August 5, 2003, based upon the status
of his accepted work-related condition of bilateral CTS. In spite of the Office’s specific request
for a well-reasoned medical opinion based on objective findings, Dr. Kirkpatrick provided no
examination findings or rationale for his opinions. Rather, he merely cited Dr. Mandel’s report

10

Michael E. Smith, 50 ECAB 313 (1999).

8

as support for his opinion that appellant was not disabled after July 27, 2004. The Board has
held that a medical opinion that is not fortified by rationale is of diminished probative value.11
As Dr. Kirkpatrick’s supplemental report was also lacking in rationale, the Office was
obliged to obtain an additional supplemental report or to submit the case record and a detailed
statement of accepted facts to a second impartial specialist for the purpose of obtaining his
rationalized medical opinion on the issue.12 The Office failed to do so.
The Office’s obligation to secure clarification of the IME’s report was not automatically
satisfied by its request for a supplemental report. The Office’s obligation continues until it
receives a proper report. Therefore, the case shall be remanded to the Office for a supplemental
opinion, which provides clarification and elaboration. If Dr. Kirkpatrick is unwilling or unable
to clarify and elaborate on his opinion, the case should be referred to another appropriate
specialist. After such further development as the Office deems necessary, an appropriate
decision should be issued regarding this matter.
LEGAL PRECEDENT -- ISSUE 2
It is an accepted principle of workers’ compensation law that when the primary injury is
shown to have arisen out of, and in the course of, employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause which is attributable to the employee’s own intentional conduct.
Once the work-connected character of any injury has been established, the subsequent
progression of that condition remains compensable so long as the worsening is not shown to
have been produced by an independent nonindustrial cause and so long as it is clear that the real
operative factor is the progression of the compensable injury, associated with an exertion that in
itself would not be unreasonable under the circumstances.13
ANALYSIS -- ISSUE 2
The Board finds that this case is not in posture for a decision as to whether appellant
developed brachial plexopathy or ulnar neuropathies as a consequence of his accepted injury, in
that there exists an unresolved conflict in medical opinion. The Office accepted appellant’s
claim for bilateral CTS and bilateral median neuropathy. On October 29, 2003 appellant asked
the Office to expand his claim to include ulnar neuropathy and bronchial plexitis. In order to
resolve the conflict in medical opinion between Dr. Fried, who opined that appellant had
developed the claimed conditions as a consequence of his accepted injury, and Dr. Mandel, who
found no evidence of ulnar neuropathy or brachial plexopathy, the Office referred appellant to an
impartial medical examiner. However, none of the referee physician’s reports are sufficiently
rationalized to resolve the conflict.

11

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

12

Supra note 9.

13

See Robert J. Wescoe, 54 ECAB 162 (2002).

9

In his June 5, 2006 report, Dr. Kirkpatrick opined that appellant had not developed
brachial plexopathy or ulnar neuropathies as a consequence of his accepted injury. He found no
evidence of a brachial plexopathy on either side. Although Dr. Kirkpatrick did find evidence of
bilateral ulnar neuropathies at the elbows, he opined that the condition was not related to
appellant’s employment. He provided no rationale for his opinions. Moreover, Dr. Kirkpatrick
did not obtain EMG and nerve conduction studies, as he was instructed; nor did he discuss the
results of EMGs of record, which suggested bilateral plexopathies.14 Therefore, his report is of
limited probative value.
The Office requested a supplemental report explaining his opinions that there was no
evidence of brachial plexopathy on either side, in view of the EMG reports of record, and that
appellant’s diagnosed bilateral ulnar neuropathies were not causally related to his employment.
In a supplemental report dated August 6, 2007, Dr. Kirkpatrick opined that there was no
evidence of a brachial plexopathy on either side, in view of electrodiagnostic studies performed
on November 30, 1999 and on January 20, 2003, which were unremarkable regarding the
brachial plexus. Although subsequent EMGs performed by a physical therapist suggested
bilateral plexopathies, he stated, “In light of no objective findings suggesting a brachial
plexopathy on examination, clinical correlation supports the absence of a bilateral brachial
plexopathy as noted on his initial EMG studies.” Dr. Kirkpatrick’s statement is an attempt to
support a negative conclusion. Further, he did not explain why he failed to obtain an updated
EMG/NCS performed by a physician, which would have assisted him in his determination.
Dr. Kirkpatrick did not provide the examination findings on which he based his opinion. He also
opined that the bilateral ulnar neuropathies at the elbows were not directly related to appellant’s
employment, as there was no evidence of bilateral ulnar neuropathies until well after his
evaluation by Dr. Mandel on February 26, 2004. Dr. Kirkpatrick did not explain, however, how
the lack of evidence of ulnar neuropathies until after February 26, 2004 led to his conclusion that
the condition was not a consequence of his accepted injury. Dr. Mandel’s April 24, 2008 report
does not address whether appellant developed a consequential condition as a result of his
accepted injury. Therefore, the report is of no probative value on this issue.
The Board finds that Dr. Kirkpatrick’s reports are insufficiently rationalized to resolve
the conflict in medical opinion as to whether appellant developed brachial plexopathy or ulnar
neuropathies as a consequence of his accepted injury. Therefore, the case shall be remanded to
the Office for a supplemental opinion, which provides clarification and elaboration. If
Dr. Kirkpatrick is unwilling or unable to clarify and elaborate on his opinion, the case should be
referred to another appropriate specialist. After such further development as the Office deems
necessary, an appropriate decision should be issued regarding this matter.
CONCLUSION
The Board finds that this case is not in posture for a decision as to whether appellant
sustained a recurrence of disability, or as to whether he developed brachial plexopathy or ulnar
neuropathies as a consequence of his accepted injury.
14

The Board notes that, while the EMGs referenced by Dr. Fried were performed by a physical therapist, rather
than a physician, their implications were sufficient to warrant follow-up testing by Dr. Kirkpatrick.

10

ORDER
IT IS HEREBY ORDERED THAT the February 17, 2009 and June 3, 2008 decisions
of the Office of Workers’ Compensation Programs are set aside and remanded for further
development of the medical evidence in accordance with the terms of this decision.
Issued: March 17, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
DEPARTMENT OF THE NAVY,
CHARLESTON NAVAL SHIPYARD,
Charleston, SC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 12-15
Issued: May 7, 2012

Case Submitted on the Record

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

JURISDICTION
On September 26, 2011 appellant filed a timely appeal from a July 27, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) granting 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 this case.
ISSUE
The issue is whether appellant has more than 39 percent bilateral hearing loss for which
he received a schedule award.
FACTUAL HISTORY
This case has previously been before the Board. OWCP previously accepted an
employment-related monaural hearing loss in appellant’s left ear in 1983.2 Appellant was
1

5 U.S.C. §§ 8101-8193.

2

File No. xxxxxx735.

granted a schedule award for 18 percent monaural hearing loss to his left ear. The period of the
award was for 7.80 weeks and ran from December 21, 1983 to February 24, 1984.
On February 4, 2011 the Board set aside OWCP’s February 4, 2010 decision denying
appellant’s claim that he sustained a loss of hearing in the performance of duty. The Board noted
that OWCP previously accepted employment-related hearing loss in his left ear and that a second
opinion examiner attributed his right ear low-to-mid frequency loss to his noise exposure in his
federal employment. The case was remanded for OWCP to consolidate appellant’s claims
relating to his binaural hearing loss and to further develop the medical evidence as to the extent
of permanent impairment related to his hearing loss.3 The facts of the case are set forth in the
Board’s prior decision and are incorporated herein by reference.
In an April 27, 2011 second opinion examination report, Dr. William R. Lomax, a Boardcertified otolaryngologist, noted appellant’s diagnoses of neural sensory hearing loss and tinnitus
and reviewed his medical records. He stated that a comparison of appellant’s preemployment
audiogram and his most current audiogram demonstrated a progression of bilateral hearing loss.
Upon examination, Dr. Lomax reported that appellant had a severe bilateral neurosensory
hearing loss consistent with acoustic trauma and presbycusis and opined that upon retirement his
hearing loss had increased and was calculated to be 39 percent. He stated that the abovedescribed sensory neural hearing loss had been caused by appellant’s history of noise exposure
while working for the Charleston Naval Shipyard. Dr. Lomax recommended no more exposure
greater than 85 decibels, ear protectors when exposed to loud noise and hearing aids.
An April 25, 2011 audiogram performed on his behalf showed the decibel losses at
frequencies of 500, 1,000, 2,000 and 3,000 hertz (Hz): 15, 25, 65 and 80 decibels for the right
ear and 25, 30, 70 and 90 decibels for the left ear. Dr. Lomax diagnosed bilateral neurosensory
hearing loss and bilateral tinnitus. He determined the date of maximum medical improvement as
April 25, 2011, the date of the audiogram on which the report was based and recommended
hearing aids.
On May 2, 2011 an OWCP medical adviser reviewed Dr. Lomax’s report and determined
that the audiograms were consistent with noise-induced hearing loss. Using the April 25, 2011
audiogram, the medical adviser determined that appellant had 31.88 percent monaural hearing
loss in the right ear, 43.13 percent monaural hearing loss in the left ear or 33.75 percent binaural
hearing loss pursuant to the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides). According to the results of the
April 25, 2011 audiogram, decibel losses at frequencies of 500, 1,000, 2,000 and 3,000 Hz were
15, 25, 65 and 80 decibels for the right ear (for a total of 185) and 25, 30, 70 and 90 decibels for
the left ear (for a total of 215). The average loss for the right ear was 46.25, which was reduced
by the fence of 25 to equal 21.25 decibels. This amount was then multiplied by 1.5 to equal
31.88 decibels, as the right monaural loss. The average loss for the left ear was 53.75, which
3

Docket No. 10-1013 (issued February 4, 2011). On November 9, 2009 appellant, then a 70-year-old former
supply technician, filed an occupational disease claim alleging an increase in hearing loss in both ears due to his
federal employment. In a decision dated February 4, 2010, OWCP denied his claim for binaural hearing loss finding
insufficient medical evidence to establish that his hearing loss was causally related to his federal employment. It
noted that appellant suffered from moderate-to-severe binaural mid-to-high frequency hearing loss in a pattern
consistent with noise exposure, but not as a result of his federal employment, with the exception of right ear low-tomid frequency.

2

was reduced by the fence of 25 to equal 28.75 decibels. This amount was then multiplied by 1.5
to equal 43.13 decibels, as the left monaural loss. To calculate binaural loss, the lesser loss of
31.88 decibel was multiplied by 5 to equal 159.4 and then added to the greater loss of 43.13 to
total 202.53. This sum was then divided by 6, resulting in binaural loss of 33.75. Since tinnitus
impacted appellant’s ability to perform activities of daily living, 5 percent was added to total
38.75, which was rounded to 39 percent. The medical adviser determined that the date of
maximum medical improvement was April 25, 2011, the date of the audiogram on which the
report was based. Since appellant was granted a previous schedule award, that amount should be
subtracted from the current schedule award.
In a decision dated May 3, 2011, OWCP accepted appellant’s claim for bilateral hearing
loss with tinnitus.
On July 25, 2011 appellant submitted a request for a schedule award.
By decision dated July 27, 2011, OWCP granted appellant a schedule for a 39 percent
bilateral hearing loss with tinnitus. The period of the award was for 78.0 weeks. As appellant
was previously paid a schedule award for 9.36 weeks, OWCP determined that he was entitled to
68.64 weeks. The period of the award ran from April 25, 2011 to August 17, 2012.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The
method used in making such determination is a matter which rests in the sound discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides (sixth edition 2009), has been adopted by OWCP for evaluating schedule losses
and the Board has concurred in such adoption.5
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 Hz, the losses at each
frequency are added up and averaged. Then, the fence of 25 decibels is deducted because, as the
A.M.A., Guides points out, losses below 25 decibels result in no impairment in the ability to hear
everyday speech under everyday conditions. The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss. The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied
by five, then added to the greater loss and the total is divided by six to arrive at the amount of the
binaural hearing loss. The Board has concurred in OWCP’s adoption of this standard for

4

Supra note 1.

5

R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB 143 (2000); see also 20 C.F.R. § 10.404.

3

evaluating hearing loss.6 The Board has also noted OWCP’s policy to round the calculated
percentage of impairment to the nearest whole number.7
Regarding tinnitus, the A.M.A., Guides provide that tinnitus is not a disease but rather a
symptom that may be the result of disease or injury.8 The A.M.A., Guides state that if tinnitus
interferes with Activities of Daily Living (ADLs), including sleep, reading (and other tasks
requiring concentration), enjoying of quiet recreation and emotional well-being, up to five
percent may be added to a measurable binaural hearing impairment.9
ANALYSIS
OWCP accepted appellant’s claim for bilateral hearing loss and referred appellant to
Dr. Lomax for a second opinion examination. In an April 27, 2011 second opinion report,
Dr. Lomax diagnosed severe bilateral neurosensory hearing loss caused by appellant’s history of
noise exposure while working for the employing establishment. After reviewing Dr. Lomax’s
April 27, 2011 audiogram and report, the medical adviser correctly applied OWCP’s
standardized procedures to the results. Testing for the right ear at frequencies of 500, 1,000,
2,000 and 3,000 Hz revealed decibel losses of 15, 25, 65 and 80 decibels for a total of 185. This
total was divided by 4 to obtain the average hearing loss of 46.25, which was reduced by the
fence of 25 to equal 21.25 decibels. This amount was then multiplied by 1.5 to equal 31.88
decibels, as the right monaural loss. Testing for the left ear at frequency levels of 500, 1,000,
2,000 and 3,000 Hz revealed decibel losses of 25, 30, 70 and 90 decibels for a total of 215. The
total was divided by 4 to obtain the average hearing loss of 53.75, which was reduced by the
fence of 25 to equal 28.75 decibels. This amount was then multiplied by 1.5 to equal 43.13
decibels, as the left monaural loss. To calculate binaural loss, the lesser loss of 31.88 decibel
was multiplied by 5 to equal 159.4 and then added to the greater loss of 43.13 to total 202.53.
This sum was then divided by 6, resulting in binaural loss of 33.75. Since tinnitus impacted
appellant’s ability to perform ADLs, 5 percent was added to total 38.75 percent, which was
rounded to 39 percent. The Board finds that the medical adviser applied the proper standards to
the April 25, 2011 audiogram and correctly determined that appellant had a 39 percent binaural
hearing loss. Thus, appellant has not established that he has more than 39 percent binaural
hearing loss, for which he received a schedule award.
A schedule award provides for payment of compensation for a specific number of weeks
as prescribed by the statute.10 FECA provides that a claimant is entitled to 52 weeks of
compensation for a 100 percent loss of hearing in one ear and 200 weeks’ compensation for 100
percent hearing loss in both ears. Multiplying 39 percent by the 200 weeks provided for binaural
hearing loss results in a total of 78 weeks of compensation. OWCP’s procedure manual further
provides that any previous impairment to the member under consideration is included in
6

E.S., 59 ECAB 249 (2007); Reynaldo R. Lichtenberger, 52 ECAB 462 (2001).

7

J.H., Docket No. 08-2432 (issued June 15, 2009); Robert E. Cullison, 55 ECAB 570 (2004). See Federal
(FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4(b)(2)(b) (September 2010).
8

See A.M.A., Guides 249.

9

Id. See also R.H., Docket No. 10-2139 (issued July 13, 2011); Robert E. Cullison, supra note 7.

10

5 U.S.C. § 8107.

4

calculating the total percentage of loss.11 As appellant already received compensation for 9.36
weeks in the 1983 monaural schedule award, this amount is deducted from 78 weeks to total
68.64 weeks of compensation. Thus, the Board finds that OWCP properly determined the
number of weeks of compensation.
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 sustained a 39 percent binaural hearing loss and is not
entitled to a greater schedule award than granted.
ORDER
IT IS HEREBY ORDERED THAT the July 27, 2011 schedule award decision of the
Office of Workers’ Compensation Programs is affirmed.
Issued: May 7, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.7(a)(2) (January 2010).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
U.S. POSTAL SERVICE, O’HARE AIR MAIL
CENTER, Chicago, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-1013
Issued: February 17, 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 March 10, 2011 appellant filed a timely appeal of the September 13, 2010 schedule
award decision of the Office of Workers’ Compensation Programs (OWCP).1 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.
ISSUE
The issue is whether appellant has more than three percent impairment of the left arm, for
which he received a schedule award.
1

Under the Board’s Rules of Procedure, the 180-day time period for determining jurisdiction is computed
beginning on the day following the date of OWCP’s decision. See 20 C.F.R. § 501.3(f)(2). As OWCP’s decision
was issued September 13, 2010, the 180-day computation begins on September 14, 2010. Since using March 16,
2011, the date the appeal was received by the Clerk of the Board, would result in the loss of appeal rights, the date
of the postmark is considered the date of filing. The date of the postmark is March 10, 2011, which rendered the
appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

On appeal, appellant contends that despite the medical opinion of an OWCP medical
adviser, he is entitled to a greater schedule award than that awarded due to permanent damage to
his left shoulder and diminished quality of life.
FACTUAL HISTORY
OWCP accepted that appellant, then a 43-year-old regular mail handler, sustained
adhesive capsulitis and a complete rotator cuff rupture of the left shoulder when he fell in the
performance of duty on September 8, 2008. It authorized left shoulder arthroscopic superior
labrum anterior and posterior (SLAP) repair and acromioplasty which were performed on
February 20, 2009 by Dr. Christos S. Giannoulias, an attending Board-certified orthopedic
surgeon.
In a July 7, 2009 medical report, Dr. Giannoulias noted appellant’s ongoing complaint of
left shoulder pain. Appellant was doing significantly better after conditioning and was basically
performing his regular work duties.
On physical examination of the left shoulder,
Dr. Giannoulias reported full elevation and external and internal rotation. He found some
soreness with compression anteriorly. There was normal strength in elevation and external
rotation. A belly-press test was negative. Appellant’s sensation and pulses were present.
Dr. Giannoulias diagnosed a left shoulder labral tear. He concluded that appellant could return
to his activities, work and sports, as tolerated.
On April 9, 2010 appellant filed a claim for a schedule award.
By letter dated April 27, 2010, OWCP requested that Dr. Giannoulias submit a medical
report determining the extent of appellant’s left upper extremity impairment under the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides).
In a May 4, 2010 report, Dr. Giannoulias again noted appellant’s complaint of pain and
grinding in the left shoulder. In general, appellant’s shoulder felt good, but he experienced
soreness and pain with changes in the weather. Dr. Giannoulias provided findings on physical
examination, including range of motion measurements for the left shoulder. He found 170
degrees of elevation and 80 degrees of external rotation. Internal rotation and extension each
lacked 20 degrees, abduction lacked 40 degrees. There was some crepitation with abduction and
internal rotation. Strength was 4/5. Elbow and wrist range of motion was normal. A belly-press
test was negative. There was no instability with anterior or posterior loading. Dr. Giannoulias
diagnosed left shoulder pain with degenerative changes. He rated appellant at 20 percent
impairment of the left shoulder. Dr. Giannoulias concluded that he had reached maximum
medical improvement in September 2009.
On July 5, 2010 Dr. David H. Garelick, an OWCP medical adviser, reviewed the medical
record including the reports of Dr. Giannoulias. He recommended that OWCP disregard
Dr. Giannoulias’ impairment rating because the physician did not cite the tables in the A.M.A.,
Guides he used to calculate impairment. Dr. Garelick determined that appellant had three
percent impairment of the left shoulder based on the default value for a SLAP repair performed
on February 20, 2009 with residual symptoms and normal range of motion under Table 15-5,

2

page 404 of the A.M.A., Guides. He stated that there was no change to this award with use of
the net adjustment formula. Dr. Garelick concluded that appellant had reached maximum
medical improvement on July 7, 2009, the date he was discharged from Dr. Giannoulias’ care.
In a September 13, 2010 decision, OWCP granted appellant a schedule award for three
percent impairment of the left upper extremity. The period of the award ran from July 7 to
September 10, 2009.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing federal regulations,4 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members, functions and organs of the body.
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 for all
claimants under the law, good administrative practice requires the use of uniform standards
applicable to all claimants.5 The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.6 Effective May 1, 2009,
OWCP adopted the sixth edition of the A.M.A., Guides7 as the appropriate edition for all awards
issued after that date.8
In determining impairment for the upper extremities under the sixth edition of the
A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the upper
extremity to be rated. With respect to the shoulder, the relevant portion of the upper extremity
for the present case, reference is initially made to Table 15-5 (Shoulder Regional Grid)
beginning on page 401. Then the associated class is determined from the Shoulder Regional
Grid and the adjustment grid and grade modifiers (including functional history, physical
examination and clinical studies) are used to determine what grade of associated impairment
should be chosen within the class defined by the regional grid. The evaluator then uses the
regional grid to identify the appropriate impairment rating value for the impairment class as
modified by the adjustments as calculated.9 Under Chapter 2.3, evaluators are directed to

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Ausbon N. Johnson, 50 ECAB 304 (1999).

6

Supra note 4.

7

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

8

Federal (FECA) Procedure Manual, Part 3 -- Claims, Schedule Awards, Chapter 3.700, Exhibit 1
(January 9, 2010).
9

See A.M.A., Guides 405-12.

3

provide reasons for their impairment rating choices, including choices of diagnoses from
regional grids and calculations of modifier scores.10
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.11
OWCP may follow the advice of its medical adviser or consultant where he or she has
properly utilized the A.M.A., Guides.12
ANALYSIS
OWCP accepted appellant’s claim for adhesive capsulitis and a complete rotator cuff
rupture of the left shoulder. On February 20, 2009 appellant underwent left shoulder
arthroscopic SLAP repair and acromioplasty. On September 13, 2010 he received a schedule
award for three percent impairment of the left upper extremity. The Board finds that appellant
did not meet his burden of proof to establish that he sustained greater impairment.
In a May 4, 2010 impairment evaluation, Dr. Giannoulias, an attending physician, found
that appellant had 20 percent impairment of the left shoulder and had reached maximum medical
improvement in September 2009. He noted appellant’s complaint of pain and grinding in the left
shoulder. Dr. Giannoulias also noted that appellant’s shoulder felt good, but he experienced
soreness and pain with changes in the weather. On physical examination, he reported range of
motion measurements for the left shoulder which included 170 degrees of elevation, 80 degrees
of external rotation, 20 degrees of internal rotation, 20 degrees of extension and 40 degrees of
abduction. Dr. Giannoulias found some crepitation with abduction and internal rotation. He
further found that strength was 4/5. Dr. Giannoulias reported normal elbow and wrist range of
motion and a belly-press test. He stated that there was no instability with anterior or posterior
loading. Dr. Giannoulias advised that appellant had left shoulder pain with degenerative
changes. He failed to explain how he arrived at his impairment rating for appellant’s accepted
conditions. Dr. Giannoulias did not refer to the sixth edition of the A.M.A., Guides or the
specific tables or figures he applied to support his rating. Further, he did not explain the basis for
the change in his prior July 7, 2009 opinion that appellant had full range of motion and normal
strength in his left shoulder such that he was released to return to work and his activities and
sports. The Board finds that Dr. Giannoulias’ opinion is of diminished probative value in

10

Id. at 23-28.

11

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002); L.H., 58 ECAB 561 (2007) (FECA’s procedures contemplate that, after obtaining
all necessary medical evidence, the file should be routed to an OWCP medical adviser for an opinion concerning the
nature and percentage of impairment in accordance with the A.M.A., Guides).
12

See Ronald J. Pavlik, 33 ECAB 1596 (1982); Robert R. Snow, 33 ECAB 656 (1982); Quincy E. Malone, 31
ECAB 846 (1980).

4

determining the extent of appellant’s permanent impairment.13 After receiving Dr. Giannoulias’
report, OWCP properly referred the matter to its medical adviser.14
In a July 5, 2010 report, Dr. Garelick, an OWCP medical adviser, discussed his review of
the medical records and provided an opinion that appellant had three percent impairment of left
upper extremity under the standards of the sixth edition of the A.M.A., Guides. The Board finds
that he properly applied these standards to reach his conclusion about appellant’s permanent left
shoulder impairment.15
Dr. Garelick noted Dr. Giannoulias’ July 7, 2009 examination findings of full range of
motion and strength in elevation and external rotation, soreness with anterior compression and
the presence of sensation and pulses. He determined that the default value for residual symptoms
of a SLAP repair performed on February 20, 2009 and normal range of motion resulted in three
percent impairment of the left shoulder (A.M.A., Guides 404, Table 15-5). Dr. Garelick did not
identify any modifiers based on functional history, physical examination or clinical studies that
warranted adjustment of the default rating.16 The Board notes that there is no other medical
evidence of record showing that appellant had more than three percent permanent impairment of
the left shoulder, for which he already received a schedule award. For these reasons, the Board
finds that the evidence does not establish entitlement to additional schedule award compensation.
Appellant’s contention on appeal is that he has greater impairment due to permanent
damage to his left upper extremity and a diminished quality of life. Dr. Garelick discussed the
physical findings of Dr. Giannoulias and properly applied the appropriate provisions of the
A.M.A., Guides to support his impairment rating. The Board finds that Dr. Garelick’s opinion is
entitled to the weight of the medical evidence.17
With regard to appellant’s assertion that his quality of life has been diminished, the Board
notes that the amount payable pursuant to a schedule award does not take into account the effect
that the impairment has on employment opportunities, wage-earning capacity, sports, hobbies or
other lifestyle activities.18 Under the schedule award provisions, Congress has specified a
maximum number of weeks of compensation payable for permanent impairment of the arm.
Since appellant was rated as having three percent impairment to his left shoulder, he is entitled to
three percent of 312 weeks19 or 9.36 weeks of compensation, the amount paid by OWCP.

13

See Richard Niedert, 57 ECAB 474 (2006); Tonya R. Bell, 43 ECAB 845, 849 (1992).

14

See supra note 11.

15

See cases cited supra note 12.

16

A.M.A., Guides 411 for the net adjustment formula.

17

See cases cited supra note 12.

18

Ruben Franco, 54 ECAB 496 (2003).

19

See 5 U.S.C. § 8107(c)(1).

5

Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has failed to establish that he has more than three percent
impairment of the left upper extremity, for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the September 13, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 17, 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