United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
NEW MEXICO HEALTHCARE SYSTEM,
Albuquerque, NM, Employer
__________________________________________

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Appearances:
Rosario D. Vega Lynn, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1847
Issued: April 4, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 31, 2017 appellant, through counsel, filed a timely appeal from a May 8, 2017
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met her burden of proof to establish an allergic reaction
causally related to the accepted January 14, 2016 employment incident.
FACTUAL HISTORY
On February 5, 2016 appellant, then a 52-year-old civilian pay supervisor, filed a traumatic
injury claim (Form CA-1) alleging that, on January 14, 2016, she developed a headache due to an
allergic reaction to latex in an elevator or a building at work.
OWCP received letters and e-mails dated March 2 and 4, 2016 from counsel which
indicated that on January 14, 2016 appellant and other employees were exposed to toxic fumes
from an elevator shaft in a building at work. Counsel further noted that appellant informed her
supervisor about her exposure and headache, dizziness, and nausea, for which she sought medical
treatment. She maintained that appellant was unable to work as of February 4, 2016 due to her
condition.
By development letter dated March 25, 2016, OWCP notified appellant of the deficiencies
of her claim and afforded her 30 days to submit additional medical and factual evidence. On the
same date it requested that the employing establishment provide a list of potentially harmful
substances to which she had been exposed, the tasks she performed which resulted in exposure,
and exposure data.
OWCP received a March 4, 2016 memorandum in which the employing establishment
noted that appellant’s absence from work from January 15 through February 28, 2016, due to her
disability or medical care for a disabling, job-related traumatic injury on January 14, 2016, should
be charged as an authorized absence pursuant to the VA Handbook.
OWCP also received medical records from the employing establishment’s medical facility
which included a January 14, 2016 progress note signed by Dr. Angeline G. Fitzgerald, Boardcertified in emergency medicine, indicating that appellant had returned to the emergency room for
worsening headache, changes in vision, vomiting, confusion, numbness or weakness in her arms
or leg, other problems, and fever. Dr. Fitzgerald examined her and provided a clinical impression
of allergic reaction and vascular headache.
A January 14, 2016 false fire alarm incident report noted that an elevator started to burn
and produced minor amounts of smoke. An onsite facility industrial hygienist verified the odors.
Onsite engineering electricians stated that the elevator belt produced the smells/odors. The belt
was replaced immediately by an onsite contractor. After consulting with the contractor it was
found that friction and slippage from the belt produced the minor smoke and odor.
OWCP received various reports from Dr. H. Preston Matthews, a family practitioner. In a
January 18, 2016 return to work certificate, Dr. Matthews noted that appellant was exposed to
toxins. He advised that she could return to work on January 25, 2016. In a January 25, 2016 return
to work certificate, Dr. Matthews advised that appellant could return to work on February 2, 2016
with no restrictions. On March 14, 2016 he noted that she had known depression. Dr. Matthews

2

indicated that appellant presented to recheck headaches possibly secondary to toxic exposures
from burning latex at work. He noted that she had seen Dr. Douglas Barrett, a Board-certified
neurologist and psychiatrist, who also suspected headaches triggered from previous toxic exposure
at work. Dr. Matthews reported examination findings and assessed depression, insomnia, and
migraine. In a March 14, 2016 return to work certificate, he recommended that appellant not work
for an indefinite period due to her current symptoms and illness. Dr. Matthews, in a March 21,
2016 attending physician’s report (Form CA-20), noted a history of her being exposed to an
elevator fire on January 14, 2016. He further noted that appellant developed a severe headache
and that she had previous migraines. Dr. Matthews discussed findings on examination and
diagnosed headache due to possible toxic exposure. He checked a box marked “Yes” indicating
that the diagnosed condition was caused or aggravated by an employment activity. Dr. Matthews
advised that appellant was totally disabled from January 14, 2016 for an indefinite period of time.
In a February 4, 2016 note, Dr. Justin L. Hazen, an employing establishment physician
Board-certified in emergency medicine, noted that appellant had returned to the emergency room
due to fever, chills, syncope, and chest pain. He diagnosed headache.
In another progress note dated February 4, 2016, James Bleen, an employing establishment
physician assistant, noted a history that possibly on January 14, 2016 appellant was exposed to
overheating/burning in an elevator in a building at work. He reported that appellant’s employee
was seen for a similar incident. Mr. Bleen reported her symptom of severe headache and that she
sought treatment in the employing establishment’s emergency department. In an employing
establishment report of employee’s emergency treatment also dated February 4, 2016, he related
that she had a reaction to items burning/overheating in a building elevator on January 14, 2016.
A February 8, 2016 medical excuse from appellant’s healthcare provider, signed by Tracey
Atma on behalf of Dr. Matthews, advised that appellant had persistent cough and ongoing
headaches. Appellant was placed off work indefinitely until examination by a pulmonary and
neurology specialist.
Counsel submitted a February 23, 2016 report from Dr. Barrett. He advised that he last
saw appellant on October 28, 2015 when she reported excellent migraine control with medication.
Dr. Barrett noted that on January 14, 2016 she had workplace smoke inhalation which created
upper respiratory symptoms with coughing, nasal congestion, and hives. Appellant was seen in an
emergency room and antihistamines helped clear her symptoms. She stayed off work for two
weeks since, concurrent with this incident, she had a continuous and unremitting headache. When
appellant’s condition seemed to improve, she returned to work. Dr. Barrett related, however, that
the work environment stimulated a recurrence of some upper respiratory symptoms and
intensification of her headache. Appellant had been off work since that time. Dr. Barrett noted
her treatment and related that she presented with chronic neck pain and migraines. He noted
findings and assessed status migrainosus with an impression that appellant’s condition was a result
of an inhalation insult that unmasked her latent migraine problems. Dr. Barrett found no evidence
of new intracranial pathology. On April 12, 2016 he reiterated a history of the claimed January 14,
2016 incident and his opinion that the incident not only caused pulmonary problems, but also a
marked exacerbation of appellant’s migraines. Dr. Barrett asserted that this resulted in a
conversion from episodic to chronic daily migraines. He reported that appellant’s condition was
gradually and progressively under control with treatment. Dr. Barrett maintained, nonetheless,

3

that she was now extremely sensitive to odors in her workplace which reportedly had not been
thoroughly cleaned. These odors triggered appellant’s recurrent migraines and for this reason she
could not return to work for an unknown period of time. Dr. Barrett advised that the duration of
this restriction was dependent on the workplace environment and her response to ongoing migraine
therapy. He concluded that appellant’s absence from work was medically necessary.
The employing establishment, in an April 13, 2016 letter, related that it did not know what,
if any, potentially harmful substances appellant may have been exposed to on January 14, 2016.
It had not received a safety data report from the elevator manufacturer or the inspection report for
the incident. The employing establishment noted that appellant became ill while at the employee
health unit where she had escorted one of her employees for treatment after the claimed January 14,
2016 incident. Appellant was then referred to the employing’s establishment emergency
department.
By decision dated April 29, 2016, OWCP denied appellant’s traumatic injury claim
because the medical evidence of record did not establish causal relationship between her diagnosed
medical condition and the accepted January 14, 2016 employment incident.
OWCP received a May 5, 2016 report from Dr. Matthews who assessed insomnia, posttraumatic stress disorder (PTSD), and headache. Dr. Matthews advised that appellant’s insomnia
and headache were uncontrolled and that her PTSD was most likely secondary to her traumatic
experience at work with toxic exposures. He suspected that her headache was also secondary to
her toxic work exposure.
On June 1, 2016 appellant requested a review of the written record by an OWCP hearing
representative. In a May 23, 2016 letter, she related a history of the January 14, 2016 work incident
and described her resultant headaches and medical treatment.
Appellant submitted a May 12, 2016 report from Dr. Barrett who noted her long-standing
history of migraines. Dr. Barrett noted seeing her on February 23, 2016 after the January 14, 2016
incident appeared to trigger a sequence of events which had unmasked her latent tendency for
migraine attacks. Appellant continued to have pulmonary symptoms for which she was being seen
by a lung specialist. She continued to experience frequent recurrent migraine attacks that were
difficult to control and required several trips to the emergency room. Dr. Barrett related that
appellant required aggressive therapy to control her migraines and that she could not work during
her treatment. He reported that her neurologic examination was intact and that there was no
evidence to suggest an alternative source to this problem. Dr. Barrett opined that, based on
appellant’s history, it was clear that the inhalational injury of January 14, 2016 had set in motion
a cascade of events leading to reactivation of her migraine disorder. On May 16, 2016 he reported
her history and findings on physical, neurological, and psychiatric examination. Dr. Barrett
diagnosed intractable migraine without aura without status migranosus. He advised that appellant
had evolved from well-controlled migraine attacks to chronic daily migraines that were not
responding well to standard medical therapy. There was no clinical evidence for intracranial
pathology and she had normal intracranial pressure. Dr. Barrett noted that by history this evolution
occurred concurrent with appellant’s inhalational injury at work in January 2017. In a May 31,
2016 return to work certificate, he noted that she was undergoing medical treatment for an on-thejob injury. Dr. Barrett noted that she was off work through June 30, 2016.

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Appellant submitted e-mails dated January 14 and 21, 2016 indicating that her subordinate
employee was exposed to fumes in a building at work on January 14, 2016. The employee
experienced light-headedness, headache, and throat pain and was treated at the employing
establishment’s health unit. Appellant also submitted e-mails dated April 5 through May 23, 2016
between her, counsel, OWCP, and the employing establishment concerning an investigation of her
exposure to toxic fumes, medical evidence supportive of causal relationship between her condition
and the accepted work incident, and her request for medical leave. Documents dated July 11 and
August 5, 2016 addressed the employing’s establishment request for medical documentation and
appellant’s request for accommodation.
By decision dated November 1, 2016, an OWCP hearing representative affirmed the
April 29, 2016 decision. The hearing representative found that the medical evidence submitted
failed to provide a rationalized medical opinion relating appellant’s diagnosed conditions to her
accepted January 14, 2016 employment incident.
On March 6, 2017 appellant, through counsel, requested reconsideration. She submitted
reports dated January 14, 2016 to February 24, 2017 from Dr. Donald K. Porter, a Board-certified
internist, who noted the January 14, 2016 work incident and discussed findings on examination.
Dr. Porter diagnosed mild reactive airways disease, post-nasal drip, chest discomfort,
gastroesophageal reflux disease without esophagitis, and need for pneumococcal vaccination. On
February 22, 2016 he advised that appellant probably developed some mild reactive airways
disease due to exposure to unknown fumes in mid-January at the employing establishment.
Dr. Porter reported that she had no idea about the cause of the fumes. He related that he hoped
appellant’s chest complaints would resolve with corticosteroid therapy. Appellant clearly had
some ocular nasopharyngeal irritation as a result of inhaling the fumes and now she was constantly
clearing her throat. Dr. Porter suspected post-nasal drip due to her fume exposure. On May 2,
2016 he noted appellant’s complaints of chest heaviness in the middle of the night and advised that
her post-nasal drip had been eliminated with the use of Flonase. In a September 14, 2016 progress
note, Dr. Porter opined that her mild reactive airways disease was induced by her fume exposure
in January 2016. He maintained that, while it was possible that appellant’s esophageal reflux with
post-nasal drainage could be contributing to her cough, she was on a very aggressive regimen and
it would be interesting to see if her cough disappeared completely over the next few months.
On May 2, 2016 Dr. Porter noted her complaints of chest heaviness in the middle of the
night. In a June 14, 2016 progress note, he related that he believed that appellant’s mild reactive
airways disease was likely a consequence of whatever fume exposure she had in January 2016.
On February 24, 2017 Dr. Porter advised that it appeared that her reactive airway disease had
resolved during her last visit in September 2016, but unfortunately she had redeveloped symptoms
very suggestive of asthma in the absence of any triggering event and despite proper use of her
Dulera. He maintained that her pulmonary condition was clearly related to her January 2016 fume
exposure. Dr. Porter indicated that appellant never had similar complaints in the past and,
unfortunately, he believed that she was now crossing the threshold of meeting the definition of
mild persistent asthma.
A February 22, 2016 spirometry report indicated that the test results were questionable due
to appellant’s inability to perform the maneuvers according to the American Thoracic Society
standards. Appellant indicated that she had a massive headache and that her throat felt like it was

5

closing up. The technician then stopped performing the test. Also provided was a February 16,
2016 chest x-ray report which was normal.
By decision dated May 8, 2017, OWCP denied modification of its November 1, 2016
decision. It found that appellant had not provided a rationalized medical opinion explaining how
her diagnosed condition was caused by the January 14, 2016 work incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence4 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability from work for which compensation is causally related to that
employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.6 There
are two components involved in establishing the fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged.7 Second, the employee must submit medical evidence to
establish that the employment incident caused a personal injury.8
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.9
ANALYSIS
It is undisputed that on January 14, 2016 appellant was working as a civilian pay supervisor
and was exposed to smoke and odor from a malfunctioning elevator. However, she has failed to
submit sufficient medical evidence to establish that her diagnosed medical conditions were
causally related to the accepted January 14, 2016 employment incident.

3

Id.

4

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

5

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

7

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

8

T.H., 59 ECAB 388 (2008).

9

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

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In a series of reports dated January 18 to May 5, 2016, Dr. Matthews noted a history of the
accepted January 14, 2016 employment incident and diagnosed, among other things, migraine,
unspecified without mention of intractable migraine, and headache due to “possible” toxic
exposure. He initially advised that appellant could return to work with no restrictions on
January 25 and February 2, 2016 and later placed her off work from March 14, 2016 through an
indefinite period of time. Dr. Matthews also indicated that she was totally disabled beginning
January 14, 2016. In a March 21, 2016 Form CA-20 report, he checked a box marked “Yes”
indicating that appellant’s headache due to “possible” toxic exposure was caused or aggravated by
the January 14, 2016 employment incident. The Board finds, however, that Dr. Matthews’ opinion
on causal relationship is speculative in nature. The Board has held that medical opinions that are
speculative or equivocal in character are of diminished probative value.10 Moreover, the Board
has held that a checkmark on a form report, without supporting rationale, is of limited probative
value, and is insufficient to establish the claim.11 Dr. Matthews did not explain why exposure to
smoke and odor from a malfunctioning elevator would cause or contribute to appellant’s diagnosed
condition and resultant disability from work. For these reasons, the Board finds that his reports
are insufficient to meet her burden of proof.
Dr. Barrett’s reports dated February 23 to May 31, 2016 reports noted a history of the
accepted January 14, 2016 work incident, diagnosed status migrainosus, and found that appellant
was totally disabled for work as of April 12, 2016 through an unknown period of time. He opined
that the accepted employment incident caused her migraine condition and pulmonary problems.
Dr. Barrett maintained that odors in appellant’s workplace, which had not been thoroughly
cleaned, triggered her recurrent migraines, and resulted in her inability to return to work. The
Board has found that a medical report is of limited probative value on the issue of causal
relationship if it contains a conclusion regarding causal relationship which is unsupported by
medical rationale.12 Dr. Barrett did not adequately explain how the accepted workplace exposure
caused appellant’s headaches and disability. The Board finds that the lack of medical rationale
diminishes the probative value of Dr. Barrett’s opinion.13
In a series of reports from January 14, 2016 to February 24, 2017, Dr. Porter diagnosed,
among other things, mild reactive airways disease. He failed, however, to sufficiently explain the
reasons why he opined that appellant’s condition was caused by the January 14, 2016 employment
incident. Furthermore, Dr. Porter’s opinion on causal relationship was also based on the fact that
she never complained of pulmonary problems in the past. The Board has held that an opinion that

10

D.D., 57 ECAB 734, 738 (2006); Kathy A. Kelley, 55 ECAB 206 (2004).

11

D.S., Docket No. 15-1930 (issued January 30, 2016).

12

S.E., Docket No. 08-2214 (issued May 6, 2009); T.M., Docket No. 08-0975 (issued February 6, 2009).

13

Deborah L. Beatty, 54 ECAB 340 (2003) (where the board found that in the absence of a medical report providing
a diagnosed condition and a reasoned opinion on causal relationship with the employment incident, appellant did not
meet her burden of proof).

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a condition is causally related because the employee was asymptomatic before the injury is
insufficient, without sufficient rationale, to establish causal relationship.14
Dr. Fitzgerald, in a January 14, 2016 progress note, found that appellant had an allergic
reaction and vascular headache, but failed to offer a medical opinion addressing whether the
diagnosed conditions were caused or aggravated by the accepted employment incident. The Board
has found that medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.15
Dr. Hazen, in a February 4, 2016 progress note, reported appellant’s complaints of fever,
chills, syncope, chest pain, or any other concern and prescribed short-term medications. He did
not provide a firm diagnosis of a particular medical condition,16 provide a history of injury,17 or
offer a specific opinion as to whether the accepted January 14, 2016 employment incident caused
or aggravated appellant’s condition.18 The Board finds, therefore, that Dr. Hazen’s progress note
is insufficient to establish her claim.
The progress note and report from a physician assistant found that appellant had a reaction
to items burning/overheating in a building elevator on January 14, 2016. This evidence does not
constitute competent medical evidence because physician assistants are not considered physicians
as defined under FECA.19 As such, this evidence is also insufficient to meet appellant’s burden of
proof. Ms. Atma’s February 8, 2016 report on behalf of Dr. Matthews is also of no probative
medical value. There is no indication that she is a physician and, therefore, she does not qualify
as a physician within the meaning of FECA.20 Diagnostic test reports of record are of limited
probative value on causal relationship as they do not contain a physician’s opinion addressing

14

K.P., Docket No. 17-1145 (issued November 15, 2017); T.M., supra note 12; Michael S. Mina, 57 ECAB
379 (2006).
15
See C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009);
A.D., 58 ECAB 149 (2006).
16

See supra note 13.

17

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history have little probative
value).
18

Supra note 14.

19

5 U.S.C. § 8101 (2); Roy L. Humphrey, 57 ECAB 238 (2005). Section 8102(2) of FECA provides that the term
physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic
practitioners within the scope of their practice as defined by State law. See also Sean O’Connell, 56 ECAB 195 (2004)
(physician assistants are not considered physicians as defined under FECA); Gloria J. McPherson, 51 ECAB 441
(2000); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (a medical issue such as causal relationship can only be
resolved through the submission of probative medical evidence from a physician).
20
5 U.S.C. § 8101(2); Sharon A. Marshall, Docket No. 02-0308 (issued June 21, 2002); Sheila G. Peckenschneider,
49 ECAB 430, 432 (1998); Arnold A. Alley, 44 ECAB 920-21 (1993).

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whether any diagnosed condition is causally related to the January 14, 2016 employment
incident.21
The Board finds that appellant has failed to submit rationalized, probative medical evidence
sufficient to establish that her accepted work exposure on January 14, 2016 caused or aggravated
a diagnosed medical condition.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish an allergic
reaction causally related to the accepted January 14, 2016 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the May 8, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 4, 2018
Washington, DC

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

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

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

21

See supra note 14.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HOSPITAL, Miami, FL, Employer
__________________________________________

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Appearances:
Appellant, pro se
No appearance, for the Director

Docket No. 08-1891
Issued: June 1, 2009

Oral Argument April 15, 2009

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

JURISDICTION
On June 24, 2008 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ merit decision dated March 14, 2008 denying a schedule award and a nonmerit
decision dated May 29, 2008 denying her request for an oral hearing.
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 sustained any permanent impairment of a
scheduled member entitling her to a schedule award; and (2) whether the Branch of Hearings and
Review properly denied her request for an oral hearing as untimely.
FACTUAL HISTORY
On September 19, 2005 appellant, then a 53-year-old medical support assistant, filed an
occupational disease claim alleging that she developed severe pain in the neck, cervical spine,
left shoulder, left arm, left knee and lower spine. She attributed her condition to answering the
telephone in the performance of her duties.

Appellant underwent a cervical magnetic resonance imaging (MRI) scan on October 29,
2004 which demonstrated multilevel degenerative disc disease resulting in mild canal stenosis
from C3-5. The Office accepted her claim for aggravation of spinal stenosis.
On July 27, 2006 appellant requested an impairment rating for her neck, cervical spine
and back. On December 17, 2006 she stated that her work-related injury was a herniated disc
resulting in headaches. Appellant again requested a schedule award. In a report dated
October 27, 2006, Dr. Ronald B. Tolchin, Board-certified in physical medicine and
rehabilitation, diagnosed advanced generalized spondylosis and posterior disc herniation
extending from C3-4 through C6-7, who found that appellant had 8 percent impairment of the
whole body due to cervical stenosis with herniated discs and myelopathy, 10 percent impairment
of each upper extremity due to carpal tunnel syndrome or 11 percent of the whole person, 10
percent of the lower extremities bilaterally due to chondromalacia of the patella or 8 percent of
the whole person, bilaterally shoulder impingement of 3 percent bilaterally or 4 percent of the
whole person and greater occipital neuralgia bilaterally 10 percent impairment of the whole body
for 35 percent impairment of the whole body. He attached an addendum to his report on
February 9, 2007 stating that he was correlating his findings with the American Medical
Association, Guides to the Evaluation of Permanent Impairment. Dr. Tolchin concluded that
appellant had 12 percent impairment to the whole person due to cervical stenosis and myelopathy
involving the upper extremities.
The Office referred appellant’s records to an Office medical adviser. In a report dated
June 1, 2007, he stated that Dr. Tolchin’s report did not provide the necessary objective
neurological findings to support a schedule award due to spinal stenosis.1
The Office accepted appellant’s claim for the conditions of displacement of cervical
intervertebral discs at C3-7 and cervical spinal stenosis. It found a conflict of medical opinion
evidence between Dr. Tolchin, appellant’s physician, and the Office medical adviser regarding
the nature and extent of any permanent impairment. The Office referred appellant for an
impartial medical evaluation by letter dated September 12, 2007.
In a report dated October 24, 2007, Dr. Holley Crowley, a Board-certified neurologist,
opined that appellant reached maximum medical improvement on that date. She found that there
was no impairment of appellant’s upper extremities due to loss of strength, sensory deficit, pain
or discomfort due to the accepted employment injury. Dr. Crowley noted that appellant had no
significant findings of cervical spine dysfunction or radiculopathies. She stated that appellant
had giveaway weakness and that her reflexes were intact.
By decision dated March 14, 2008, the Office denied appellant’s claim for a schedule
award finding that the medical evidence did not establish that she sustained any permanent
impairment to a scheduled member as a result of her accepted employment injuries.

1

The Office noted that appellant’s bilateral carpal and cubital tunnel syndromes and releases were accepted
conditions under a separate claim. Appellant’s case files have not been combined and the Board will not address
any permanent impairment of her upper extremities due to these additional accepted conditions.

2

Appellant requested an oral hearing in a form dated April 2, 2008 and postmarked
April 21, 2008. By decision dated May 29, 2008, the Branch of Hearings and Review denied her
request for an oral hearing as untimely and stated that the issue in her case could be addressed
through the reconsideration process.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulations3 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
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 regulations as the appropriate standard for evaluating schedule losses.4 Effective
February 1, 2001, the Office adopted the fifth edition of the A.M.A., Guides as the appropriate
edition for all awards issued after that date.5
A schedule award is not payable for a member, function or organ of the body not
specified in the Act or in the implementing regulations. As neither the Act nor the regulations
provide for the payment of a schedule award for the permanent loss of use of the back, no
claimant is entitled to such an award.6 However, as the schedule award provisions of the Act
include the extremities, a claimant may be entitled to a schedule award for permanent
impairment to an extremity even though the cause of the impairment originated in the spine.7
ANALYSIS -- ISSUE 1
The Office accepted that appellant developed cervical spinal stenosis and herniated discs
as a result of her employment activities. Appellant submitted an October 27, 2006 report from
Dr. Tolchin, Board-certified in physical medicine and rehabilitation. He diagnosed advanced
generalized spondylosis and posterior disc herniation extending from C3-4 through C6-7.
Dr. Tolchin found that appellant had 12 percent impairment of the whole body due to cervical
stenosis with herniated discs and myelopathy extending to the upper extremities. The Office
medical adviser reviewed this report and found that there were not sufficient findings to reach an
impairment rating under the A.M.A., Guides. The Act provides that if there is a disagreement
between the physician making the examination for the United States and the physician of the
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

Id.

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(a) (August 2002).
6

George E. Williams, 44 ECAB 530, 533 (1993).

7

Id.

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employee, the Secretary shall appoint a third physician who shall make an examination.8 The
implementing regulations states that if a conflict exists between the medical opinion of the
employee’s physician and the medical opinion of either a second opinion physician of an Office
medical adviser or consultant, the Office shall appoint a third physician to make an examination.
This is called a referee examination and it will select a physician who is qualified in the
appropriate specialty and who has had no prior connection with the case.9 The Office properly
found a conflict of medical opinion evidence regarding whether appellant had a permanent
impairment of a scheduled member entitling her to a schedule award and referred her to
Dr. Crowley, a Board-certified neurologist, to resolve this conflict.
It is well established that, when a case is referred to an impartial medical specialist for the
purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and
based on proper factual and medical background must be given special weight.10
Dr. Crowley reviewed the statement of accepted facts and performed a physical
examination. She noted that appellant had no sensory or motor deficits in the upper extremities
as a result of her accepted cervical condition. Dr. Crowley explained that appellant had normal
reflexes with only give away weakness of no clinical significance. She concluded that appellant
had no impairment of her upper extremities due to her accepted cervical spine condition.
The Board finds that the special weight of the medical evidence, as represented by the
impartial medical specialist Dr. Crowley, establishes that appellant has no impairment of her
upper extremities due to her cervical condition and that therefore she is not entitled to a schedule
award.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Act provides in pertinent part as follows:
“Before review under section 8128(a) of this title, a claimant for compensation
not satisfied with a decision of the Secretary … is entitled, on request made
within 30 days after the date of issuance of the decision, to a hearing on his or her
claim before a representative of the Secretary.”11
The claimant can choose between two formats: an oral hearing or a review of the written
record.12 The requirements are the same for either choice.13 The Board has held that
section 8124(b)(1) is “unequivocal” in setting forth the time limitation for requesting hearings or
8

5 U.S.C. §§ 8101-8193, 8123.

9

20 C.F.R. § 10.321.

10

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

11

5 U.S.C. §§ 8101-8193, § 8124(b)(1).

12

20 C.F.R. § 10.615.

13

Claudio Vazquez, 52 ECAB 496, 499 (2001).

4

reviews of the written record. A claimant is entitled to a hearing or review of the written record
as a matter of right only if the request is filed within the requisite 30 days as determined by
postmark or other carrier’s date marking14 and before the claimant has requested
reconsideration.15 However, when the request is not timely filed or when reconsideration has
previously been requested, the Office may within its discretion, grant a hearing or review of the
written record and must exercise this discretion.16
ANALYSIS -- ISSUE 2
The Office issued its decision in this case on March 14, 2008. Appellant requested an
oral hearing in materials postmarked on April 21, 2008. As she did not timely request an oral
hearing within the 30 days provided by regulation she is not entitled to an oral hearing as a
matter of right. The Branch of Hearings and Review proceeded to properly exercise its
discretion in denying appellant’s untimely request for an oral hearing by determining that the
issue in her case could be addressed through the reconsideration process.
CONCLUSION
The Board finds that the medical evidence does not establish permanent impairment of a
scheduled member entitling appellant to a schedule award. The Board further finds that the
Branch of Hearings and Review properly denied appellant’s request for an oral hearing as
untimely.

14

20 C.F.R. § 10.616(a). Tammy J. Kenow, 44 ECAB 619 (1993).

15

Martha A. McConnell, 50 ECAB 129, 130 (1998).

16

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the May 29 and March 14, 2008 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: June 1, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.D., Appellant
and
DEPARTMENT OF THE AIR FORCE, AIR
NATIONAL GUARD, Fort Dix, NJ, Employer
__________________________________________

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

Docket No. 17-0334
Issued: June 19, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 30, 2016 appellant, through counsel, filed a timely appeal from an
August 12, 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.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has established more than 16 percent permanent impairment
of the left lower extremity, for which he previously received a schedule award.
FACTUAL HISTORY
On September 6, 2002 appellant, a 33-year-old aircraft mechanic, filed a traumatic injury
claim (Form CA-1) alleging that he sustained a left knee injury that day, in the performance of
duty, as a result of slipping in a small puddle of fluid while repositioning a hydraulic test stand.3
He did not stop work. OWCP accepted the claim for left knee sprain. It authorized a surgical
arthroscopy of the left knee with subtotal medial and lateral meniscectomies and chondroplasty of
the patellofemoral articulation, which appellant underwent on November 6, 2002. OWCP further
authorized postoperative physical therapy to the left knee and paid wage-loss compensation.
Appellant returned to full-time, full-duty work without restrictions on January 9, 2003.
On January 26, 2004 appellant, through counsel, filed a claim for a schedule award (Form
CA-7) for his left knee condition.
In a November 17, 2003 report, Dr. David Weiss, an osteopath and Board-certified
orthopedic surgeon, diagnosed post-traumatic internal derangement to the left knee, tear of the
medial and lateral meniscus to the left knee, post-traumatic chondromalacia patella to the left knee,
status post arthroscopic surgery to the left knee with subtotal medial and lateral meniscectomy,
and status post arthroscopic surgery to the left knee with chondroplasty of the patellofemoral
articulation. Upon physical examination, he found well-healed portal arthroscopy scars and no
gross effusion. Range of motion (ROM) was 140 degrees and patellar inhibition and apprehension
signs were negative. Patellofemoral compression produced marked crepitus, but no pain. Valgus
and varus stress tests produces firm end points and Drawer and Lachman signs were negative.
Manual muscle testing of the gastrocnemius musculature was graded at 5/5 on the left and
quadriceps testing was graded at 4+/5 on the left. Dr. Weiss found that appellant had reached
maximum medical improvement (MMI) as of November 17, 2003. He determined that appellant
had 15 percent permanent impairment of the left lower extremity based on the fifth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides)4 due to 12 percent permanent impairment due to his motor strength deficit of the left
quadriceps (knee extension) and 3 percent permanent impairment due to his pain.
On November 18, 2004 an OWCP medical adviser reviewed Dr. Weiss’ November 17,
2013 report and concurred that appellant had reached MMI as of November 17, 2003, but
disagreed with his impairment rating. He found that Dr. Weiss improperly assigned three percent
3

The present claim was adjudicated under OWCP File No. xxxxxx543. The record establishes that appellant also
suffered an injury on January 21, 2004 when he slipped and fell on ice while moving a power unit. OWCP accepted
the claim for lumbar sprain and lumbar radiculopathy under File No. xxxxxx428. Appellant stopped work on the date
of injury and underwent a lumbar fusion at L4-5 on September 14, 2004. In a decision dated June 5, 2015, OWCP
granted him a schedule award for three percent permanent impairment of the right leg secondary to sensory deficits
based on a September 10, 2013 report from Dr. Weiss, a Board-certified orthopedic surgeon.
4

A.M.A., Guides (5th ed. 2001).

2

permanent impairment for pain. The medical adviser assigned five percent permanent impairment
for appellant’s marked crepitus produced by patellofemoral compression. He concurred with
Dr. Weiss’ 12 percent impairment rating for appellant’s 4+/5 motor strength deficit on the left
quadriceps and zero percent rating for his ROM of 140 degrees. The medical adviser combined
the total left lower extremity impairments using the Combined Values Chart on page 604 of the
A.M.A., Guides yielding 16 percent permanent impairment of the left lower extremity.5
By decision dated December 23, 2004, OWCP granted appellant a schedule award for 16
percent permanent impairment of the left lower extremity. The award ran for 40.08 weeks for the
period November 17, 2003 to October 4, 2004.
In a July 28, 2014 letter, counsel requested an additional schedule award and submitted a
September 10, 2013 report from Dr. Weiss who found, using the sixth edition of the A.M.A.,
Guides,6 that a sensory examination revealed a perceived sensory deficit over the L5 and S1
dermatomes involving the bilateral lower extremities. Manual muscle strength testing of the
gastrocnemius musculature was graded at 5/5 bilaterally. Hip flexors were graded at 5/5
bilaterally. Quadriceps were graded at 5/5 bilaterally. Examination of the left knee revealed wellhealed portal arthroscopy scars, patellofemoral compression producing crepitus, and tenderness
along the undersurface of the medial patellar facet. Dr. Weiss placed appellant in class 1 based on
his diagnosis of sensory deficit left L5 nerve root with a default value of one percent permanent
impairment. He assigned a grade modifier of 2 for Functional History (GMFH), Physical
Examination (GMPE), and Clinical Studies (GMCS). Using the net adjustment formula of
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX), Dr. Weiss found that (2-1) + (n/a) + (2-1)
resulted in a net grade modifier of 2, resulting in two percent permanent impairment of the left
lower extremity. He placed appellant in class 1 based on his diagnosis of sensory deficit left S1
nerve root with a default value of one percent permanent impairment. Dr. Weiss assigned a grade
modifier of 2 for functional history and clinical studies. Using the net adjustment formula of
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX), he found that (2-1) + (n/a) + (2-1) resulted in a
net grade modifier of 2, resulting in one percent permanent impairment of the left lower extremity.
Dr. Weiss placed appellant in class 2 based on his diagnosis of left knee subtotal medial and lateral
meniscectomy with a default value of 22 percent permanent impairment. He assigned a grade
modifier of 2 for functional history, physical examination, and clinical studies. Using the net
adjustment formula of (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX), Dr. Weiss found that (22) + (2-2) + (2-2) resulted in a net grade modifier of zero, resulting in 22 percent permanent
impairment of the left lower extremity. He concluded that appellant had a combined total of 25
percent permanent impairment of the left lower extremity.
On February 6, 2015 Dr. Henry J. Magliato, a Board-certified orthopedic surgeon serving
as an OWCP medical adviser, reviewed the medical evidence of record and a statement of accepted
facts (SOAF). He reviewed Dr. Weiss’ September 10, 2013 report and found that he improperly
utilized the A.M.A., Guides to determine appellant’s impairment rating. Dr. Magliato concurred
with Dr. Weiss’ one percent impairment rating for appellant’s sensory deficit left of the L5 nerve
root and two percent impairment rating for his sensory deficit of the left S1 nerve root. However,
5

Appendix A, pages 604-06 of the fifth edition of the A.M.A., Guides is entitled Combined Values Chart.

6

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

3

he disagreed with Dr. Weiss’ rating for left knee subtotal medial and lateral meniscectomy.
Dr. Magliato explained that the 22 percent impairment rating was incorrect because appellant did
not undergo a total medial and lateral meniscectomy. As appellant underwent a partial medial and
lateral meniscectomy, Dr. Magliato opined that he had 10 percent permanent impairment of the
left lower extremity under Table 16-3, page 509, of the sixth edition of the A.M.A., Guides.
Therefore, appellant had a total of 13 percent permanent impairment of the left lower extremity.
In a June 11, 2015 letter, OWCP advised appellant of the deficiencies of his claim for an
additional schedule award and requested an addendum report from Dr. Weiss clarifying his
impairment rating within 30 days. It did not receive additional evidence from Dr. Weiss.
By decision dated September 22, 2015, OWCP denied appellant’s claim for an additional
schedule award because the medical evidence of record failed to establish that he sustained more
than 16 percent permanent impairment of the left lower extremity, for which he previously
received a schedule award.
On September 30, 2015 counsel requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review.
In a September 24, 2015 addendum report, Dr. Weiss asserted that appellant, in fact,
underwent a subtotal medial and lateral meniscectomy and opined that he should be rated
according to class 2 left knee total medial and lateral meniscectomy, which better represented the
surgical procedure performed. He reiterated his conclusion that appellant had 25 percent
permanent impairment of the left lower extremity.
By decision dated December 7, 2015, an OWCP hearing representative set aside the prior
decision and remanded the case for further development, finding that Dr. Weiss’ September 24,
2015 report constituted new medical evidence warranting review by an OWCP medical adviser to
determine whether appellant had an increased permanent impairment of the left lower extremity.
On December 16, 2015 Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving
as an OWCP medical adviser, reviewed the medical evidence of record and Dr. Weiss’
September 24, 2015 report. He determined that appellant had 13 percent permanent impairment
of the left lower extremity resulting from the September 6, 2002 employment injury. Dr. Harris
found that the date of MMI was September 10, 2013, the date of Dr. Weiss’ examination. He
concurred with Dr. Weiss’ impairment ratings for residuals due to left L5 and S1 radiculopathy,
but disagreed with his determination that appellant had 22 percent impairment due to his medial
and lateral meniscectomy. Dr. Harris explained that subtotal medial and lateral meniscectomy was
the equivalent of a partial medial and lateral meniscectomy, which resulted in 10 percent
permanent impairment under the sixth edition of the A.M.A., Guides. Thus, he concluded that
appellant had 13 percent permanent impairment of the left lower extremity.
By decision dated March 15, 2016, OWCP denied appellant’s claim for an additional
schedule award, finding that he was previously paid a schedule award for 16 percent permanent
impairment of the left lower extremity and the medical evidence of record failed to establish an
increase in the impairment already compensated.

4

In a March 21, 2016 letter, counsel requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review. On July 8, 2016 he requested that his request for an
oral hearing be converted to a review of the written record.
By decision dated August 12, 2016, an OWCP hearing representative affirmed the prior
decision, relying upon Dr. Harris’ December 16, 2015 report.
LEGAL PRECEDENT
The schedule award provisions of FECA7 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. FECA, however,
does not specify the manner in which the percentage loss of a member shall be determined. The
method used in making such determination is a mater 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
has been adopted by OWCP as a standard for evaluation of schedule losses and the Board has
concurred in such adoption.8 For schedule awards after May 1, 2009, the impairment is evaluated
under the sixth edition of the A.M.A., Guides, published in 2009.9
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).10 Under the sixth edition, the evaluator identifies the impairment CDX
condition, which is then adjusted by GMFH, GMPE, and GMCS.11 The net adjustment formula is
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX). Evaluators are directed to provide reasons for
their impairment rating choices, including the choices of diagnoses from regional grids and
calculations of modifier scores.12
ANALYSIS
OWCP accepted that appellant sustained a left knee sprain at work on September 6, 2002.
On January 26, 2004 appellant, through counsel, filed a claim for a schedule award. By decision
dated December 23, 2004, OWCP granted appellant a schedule award for 16 percent permanent
impairment of the left lower extremity.

7

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

8

See Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

9
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5.a (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (March 2017).
10

A.M.A., Guides (6th ed. 2009), page 3, section 1.3, The of Functioning, Disability and Health (ICF): A
Contemporary Model of Disablement.
11

A.M.A., Guides (6th ed. 2009), pp. 494-531.

12

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

5

In a July 28, 2014 letter, counsel requested an additional schedule award and submitted a
September 10, 2013 report from Dr. Weiss who placed appellant in class 1 based on his diagnosis
of sensory deficit left L5 nerve root with a default value of one percent permanent impairment. He
assigned a grade modifier of 2 for functional history and clinical studies. Using the net adjustment
formula of (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX), Dr. Weiss found that (2-1) + (n/a)
+ (2-1) resulted in a net grade modifier of 2, resulting in two percent permanent impairment of the
left lower extremity. He placed appellant in class 1 based on his diagnosis of sensory deficit left
S1 nerve root with a default value of one percent permanent impairment. Dr. Weiss assigned a
grade modifier of 2 for functional history and clinical studies. Using the net adjustment formula
of (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX), he found that (2-1) + (n/a) + (2-1) resulted
in a net grade modifier of 2, resulting in one percent permanent impairment of the left lower
extremity. Dr. Weiss placed appellant in class 2 based on his diagnosis of left knee subtotal medial
and lateral meniscectomy with a default value of 22 percent permanent impairment. He assigned
a grade modifier of 2 for functional history, physical examination, and clinical studies. Using the
net adjustment formula of (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX), Dr. Weiss found that
(2-2) + (2-2) + (2-2) resulted in a net grade modifier of 0, resulting in 22 percent permanent
impairment of the left lower extremity. He concluded that appellant had a combined total of 25
percent permanent impairment of the left lower extremity. In a September 24, 2015 addendum
report, Dr. Weiss asserted that appellant underwent a subtotal medial and lateral meniscectomy
and opined that he should be rated according to class 2 left knee total medial and lateral
meniscectomy, which better represented the surgical procedure performed.
In accordance with its procedures, OWCP properly referred the evidence of record to its
OWCP medical adviser, Dr. Harris, who reviewed the clinical findings of Dr. Weiss on
September 10, 2013. Dr. Harris determined that appellant had 13 percent permanent impairment
of the left lower extremity resulting from the September 6, 2002 employment injury. He found
that the date of MMI was September 10, 2013, the date of Dr. Weiss’ examination. Dr. Harris
concurred with Dr. Weiss’ impairment ratings for residuals due to left L5 and S1 radiculopathy,
but disagreed with his determination that appellant had 22 percent permanent impairment due to
his medial and lateral meniscectomy. He explained that subtotal medial and lateral meniscectomy
was the equivalent of a partial medial and lateral meniscectomy, which resulted in 10 percent
permanent impairment under the sixth edition of the A.M.A., Guides. Thus, Dr. Harris concluded
that appellant had 13 percent permanent impairment of the left lower extremity.
The Board finds that OWCP’s medical adviser applied the appropriate tables and grading
schemes of the sixth edition of the A.M.A., Guides to Dr. Weiss’ clinical findings. The medical
adviser’s calculations were mathematically accurate. There is no medical evidence of record
utilizing the appropriate tables of the sixth edition of the A.M.A., Guides demonstrating a greater
percentage of permanent impairment. Dr. Harris’ report explained that Dr. Weiss’ 22 percent
impairment rating for the left lower extremity was erroneous because appellant did not undergo a
total medial and lateral meniscectomy. Therefore, OWCP properly relied on the medical adviser’s
assessment of 13 percent permanent impairment of the left lower extremity.13

13

See M.T., Docket No. 11-1244 (issued January 3, 2012).

6

As appellant had previously received a schedule award for 16 percent permanent
impairment of the left lower extremity and the medical evidence of record fails to establish an
increase in the impairment already compensated, the Board finds that appellant failed to establish
his claim for an additional schedule award.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established more than 16 percent permanent
impairment of the left lower extremity, for which he previously received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the August 12, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 19, 2018
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
D.N., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Worth, TX, Employer
__________________________________________

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Appearances:
Toni Dimas, for the appellant
Office of Solicitor, for the Director

Docket No. 13-38
Issued: August 28, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On October 5, 2012 appellant, through his representative, filed a timely appeal of an
August 15, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether OWCP properly determined that appellant’s loss of wage-earning
capacity (LWEC) was represented by the constructed position of surveillance system monitor.
On appeal, appellant’s counsel contended that the position of surveillance system monitor
did not represent appellant’s LWEC as the position was not available in his commuting area, not
within his medical restrictions and he did not have the appropriate training for the position. He
also argued that the evidence did not substantiate the wage used in making the determination.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
Appellant, then a 51-year-old flat sorter clerk, has an accepted disease claim based on
repetitive loading, pulling and lifting mail tubs. On February 9, 2006 OWCP accepted his claim
for unspecified disorder of the left shoulder bursae tendons. It also accepted sprain of the left
shoulder and left rotator cuff tear. On August 4, 2006 Dr. Larry Kjeldgaard, an osteopathic
surgeon, performed an arthroscopy of the left shoulder, subacromial decompression and insertion
of pain pump catheter. On September 1, 2006 he performed a left total shoulder bipolar
replacement arthroplasty with insertion of interarticular pain pump. On March 24, 2007
appellant returned to work at the employing establishment in a limited-duty position.
By decision dated March 5, 2008, OWCP determined that appellant’s actual wages fairly
and reasonably represented his LWEC and reduced his monetary benefits to zero. On June 11,
2008 it issued a schedule award for a 22 percent loss of use of the left arm extremity.
On February 27, 2010 OWCP withdrew appellant’s limited duty and on March 4, 2010
appellant filed a notice of recurrence. On the claim form, the employing establishment noted
that he fell under the National Reassessment Program (NRP) and that it was unable to
accommodate his medical restrictions.
On April 12, 2010 OWCP accepted appellant’s recurrence of disability as of
February 27, 2010. In a May 10, 2010 decision, it determined that the March 5, 2008 LWEC
was modified as the position he held was a “make work” position. OWCP returned appellant to
the compensation rolls in receipt of total disability.
In a May 12, 2010 report, Dr. Christopher Mann, an osteopath, stated that appellant could
not do continuous lifting or carrying, but could lift 10 to 20 pounds intermittently. Appellant
could not use his left arm at all. Dr. Mann noted that he could perform intermittent sitting of one
to four hours a day; intermittent standing, bending and stooping one to three hours a day;
intermittent walking, kneeling and twisting for one to two hours a day; intermittent pushing and
pulling with right arm only for one to two hours a day; simple grasping with right arm only for
one to four hours a day; and fine manipulation and reaching above shoulder for one to two hours
a day. He also prohibited operating machinery.
On May 14, 2010 OWCP referred appellant for vocational rehabilitation. In a June 9,
2010 initial vocational assessment report, the counselor evaluated appellant’s educational and
work history, his medical and disability-related information and transferable skills. He noted
that, in addition to working for the employing establishment, appellant had worked as a
construction worker from 1984 to 1985 and from 1974 to 1978 as a machine operator for the
Marine Corps at a Naval weapons station and nuclear station, monitoring the facility to ensure
only authorized personnel entered to the facilities.
On August 2, 2010 the vocational rehabilitation counselor listed jobs that were suitable
for appellant, including that of surveillance system monitor, referencing the Department of
Labor’s Dictionary of Occupational Titles (DOT) 379.367-010. The duties of this position were
listed as observing television screens that transmit, in sequence, views of transportation facility
sites; pushing hold button to maintain surveillance of location where an incident is developing;

2

telephoning police or other designated agency to notify authorities of the location of the
disruptive activity; and adjusting monitor controls when required. This job was listed as
sedentary with no climbing, stooping, kneeling, reaching, handling or fingering. The strength
level was listed as sedentary, which involved occasional lifting of up to 10 pounds. The
counselor noted that the position required a short demonstration of about 30 days. He noted that
appellant had a work history as a mail processor for 25 years and previously monitored the
employing establishment facility after his injury in modified duty. The counselor also noted that
appellant had experience working with people and was able to operate office machines with his
right upper extremity. This position description was updated by the vocational counselor on
October 12, 2011. The vocational counselor noted that nine employers in appellant’s commuting
area were hiring. He found that appellant was capable of earning $313.60 a week based on the
SkillTran Program on that date.
On December 6, 2011 OWCP proposed reducing appellant’s monetary compensation
based on his capacity to earn wages as a surveillance system monitor at the rate of $313.60 a
week, which it determined was the entry-level wage for this position.
The rehabilitation counselor submitted an updated employment survey dated
January 31, 2012. He found that appellant could earn up to $314.00 a week as a surveillance
system monitor. The rehabilitation counselor based on the Bureau of Labor Statistics statewide
search figures of May 17, 2011. This salary was based on the average wages for the lowest 10
percent of positions performing surveillance system monitor work. The rehabilitation counselor
noted that six employers in the commuting area informed him that they were hiring and three
were not hiring.
By decision dated February 10, 2012, OWCP reduced appellant’s monetary
compensation finding that he was able to work as a surveillance system monitor earning $313.60
a week. This resulted in a 30 percent wage-earning capacity.
On March 8, 2012 appellant requested review of the written record by an OWCP hearing
representative.
In a June 4, 2012 report, Dr. Mann noted that appellant had permanent left shoulder
restrictions of 20 pounds lifting, 4 hours grasping with the left shoulder and no overhead
reaching.
By decision dated August 15, 2012, OWCP’s hearing representative affirmed the
decision of February 10, 2012.
LEGAL PRECEDENT
Once OWCP has made a determination that a claimant is totally disabled as a result of an
employment injury and pays compensation benefits, it has the burden of proving that the
disability has ceased or lessened in order to justify termination or modification of compensation

3

benefits.2 Its burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.3
Under section 8115(a) of FECA, wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent his or her wageearning capacity. If the actual earnings do not fairly and reasonably represent his or her wageearning capacity or if the employee has no actual earnings, his or her wage-earning capacity is
determined with due regards to the nature of the injury, his or her degree of physical impairment,
his or her usual employment, his or her age, his or her qualifications for other employment, the
availability of suitable employment and other factors and circumstances which may affect his or
her wage-earning capacity in her disabled condition.4
OWCP procedure instructs that, in cases where a claimant has undergone vocational
rehabilitation, the vocational counselor will submit a final report to the vocation rehabilitation
specialist summarizing why vocational rehabilitation was unsuccessful and listing two or three
jobs which are medically and vocationally suitable for the claimant. Where no vocational
rehabilitation services are provided, the vocational rehabilitation specialist will have provided
this report. Included will be the corresponding job numbers from DOT (or OWCP specified
equivalent) and pay ranges in the relevant geographical area.5 Once this selection is made, a
determination of wage rate and availability in the open labor market should be made through
contact with the state employment service or other applicable service. Finally, application of the
principles set forth in Shadrick6 decision will result in the percentage of the employee’s LWEC.
In determining an employee’s wage-earning capacity based on a position defined suitable
but not actually held, OWCP must consider the degree of physical impairment, including
impairments resulting from both injury-related and preexisting conditions, but not impairments
resulting from post-injury or subsequently acquired conditions. Any incapacity to perform the
duties of the selected positions resulting from subsequently acquired conditions is immaterial to
the LWEC that can be attributed to the accepted employment injury and for which appellant may
receive compensation.7 Additionally, the job selected for determining wage-earning capacity
must be a job reasonably available in the general labor market in the commuting area in which
the employee lives.8

2

Bettye F. Wade, 37 ECAB 556 (1986); Ella M. Gardner, 36 ECAB 238 (1984).

3

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

4

5 U.S.C. § 8115(a); see Pope D. Cox, 39 ECAB 143 (1988).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.8 (October 2009).
6

Albert C. Shadrick, 5 ECAB 376 (1953); codified at 20 C.F.R. § 10.403(d)-(e).

7

James Henderson, Jr., 51 ECAB 268 (2000).

8

Albert L. Poe, 37 ECAB 684 (1986); David Smith, 34 ECAB 409 (1982).

4

ANALYSIS
OWCP accepted appellant’s claim for an unspecified disorder of the left shoulder bursae
tendons, sprain of the left shoulder and a left rotator cuff. On March 24, 2007 appellant returned
to work with the employing establishment in a limited-duty position. In a March 5, 2008
decision, OWCP determined that appellant’s actual wages fairly and reasonably represented his
wage-earning capacity and reduced his compensation benefits to zero. On February 27, 2010 the
employing establishment withdrew appellant’s limited duty under NRP as it could not
accommodate his physical restrictions available. On April 12, 2010 OWCP accepted appellant’s
claim for a recurrence of disability as of February 27, 2010. Appellant received compensation
on the periodic rolls for total disability. FECA Bulletin 09-05 provides that under NRP, when
placement with the previous employer is not a reasonable option, other disability management
efforts must be pursued with actions leading to a vocational referral. Once work tolerance
limitations are received that represent the weight of the medial evidence, a referral to vocational
rehabilitation should be made.9 FECA Pursuant to Bulletin 09-05, when an individual is
impacted by NRP and returned to the periodic rolls, if total disability is not medically established
but a partial capacity for work is defined through physical work restrictions, a constructed
LWEC will be issued.
On May 12, 2010 Dr. Mann advised that appellant was not totally disabled. Appellant
could lift and carry 10 to 20 pounds intermittently. He was restricted to intermittent sitting of
one to four hours a day; intermittent standing, bending and stooping one to three hours a day;
intermittent walking, kneeling for one to two hours a day; simple grasping with right arm only
for one to four hours a day; and fine manipulation and reaching above the shoulder for one to
two hours a day. In a June 4, 2012 update, Dr. Mann noted that appellant had permanent
restrictions on the left shoulder of up to 20 pounds lifting, four hours grasping and no overhead
reaching.
On October 12, 2011 the rehabilitation counselor identified the surveillance system
monitor position as a position that conformed to appellant’s restrictions, employment history,
education and skills. The position was listed as sedentary and did not require lifting over 10
pounds with no stooping or climbing. The counselor noted that appellant met the requirements
of specific vocational preparation. Further, the job was available in sufficient numbers so as to
make it reasonably available to claimant in his commuting area. He documented openings in the
area in multiple reports. The average weekly wage was determined to be $313.60 based on
review of statewide labor statistics.
The Board finds that OWCP considered the proper factors, such as vocational training
and availability the surveillance system monitor position, to determine that the position
represented appellant’s wage-earning capacity. The position was within the restrictions as set
forth by Dr. Mann. OWCP followed the established procedures under the Shadrick10 decision in
calculating appellant’s LWEC. The Board finds that OWCP properly determined that appellant
was medically and vocationally capable of working in the position of surveillance system
9

Id. at I.A.8.

10

Supra at n.6.

5

monitor. It properly adjusted appellant’s monetary compensation to reflect his capacity to earn
wages in the constructed position.
On appeal, appellant’s counsel contends that the employers selected by the vocational
counselor were not actually available. The vocational counselor found that numerous positions
as a surveillance monitor were available. OWCP is not obligated to actually secure a job for the
claimant; it must only present evidence that the selected position is performed in sufficient
numbers in the geographical area so as to be reasonably available.11 The Board gives great
weight to the vocational specialist’s expert opinion. Appellant’s counsel’s argument that the
position was not within appellant’s work restrictions is without merit. The position is sedentary
and Dr. Mann’s reports document that appellant could perform work with his right hand and not
exceed the restrictions set for his left shoulder. He also contends that the surveillance position
would require appellant to do more than monitor video cameras and was subject to greater
physical demands. Counsel also contended that the majority of workers doing surveillance-type
security work require greater skills and experience than listed by the vocational counselor. He
did not submit any evidence to support his contentions. As to the wages of the position, the
counselor determined that appellant could earn $313.60 a week based on SkillTran. The wage
information was supported by the Bureau of Labor Statistics for the State of Texas which, as
noted by the counselor, was $314.00 a week. The counselor noted that for appellant’s
commuting area, wages were higher, with the bottom 10 percent of the surveillance monitor
positions paying $347.00 per week. Accordingly, the Board finds that the record supports the
determination that appellant has the capacity to earn $313.60 a week as found.
Appellant may request a modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that OWCP properly determined that appellant’s LWEC was represented
by the constructed position of surveillance-system monitor.

11

C.G., Docket No. 13-808 (issued July 2, 2013).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 15, 2012 is affirmed.
Issued: August 28, 2013
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE NAVY, NORTH
)
ISLAND NAVAL AIR STATION, San Diego, CA, )
Employer
)
__________________________________________ )
R.L., Appellant

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

Docket No. 10-1893
Issued: May 19, 2011

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 July 21, 2010 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated January 14, 2010 which denied his claim.
Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
neck, back or right shoulder injury in the performance of duty.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On February 18, 2009 appellant, then a 54-year-old material handler, filed a claim for
traumatic injury to his neck, back and right shoulder on February 12, 2009 after lifting and
rearranging boxes of ammunition onto a pallet. He did not stop work.
Appellant submitted February 17 and 26, 2009 treatment notes from Dr. C.M. Schindler,
an osteopath, who treated him for pain at the base of the neck radiating into his back which
began on February 12, 2009 while loading ammunition boxes. He reported being a swimmer and
heavy weight lifter who was trying to cut back on his weight lifting. Appellant reported injuring
his neck and muscles at the base of his occiput which progressed later to his upper and mid back.
He noted lifting weights the prior Thursday and his neck pain began later that day into the next
day. Dr. Schindler noted appellant’s history was significant for degenerative disease in his hips,
lumbar spine, S1 joints and knees. He diagnosed thoracic back strain and stated that it was
unclear whether the injury was work related. Dr. Schindler treated appellant for neck pain with
radicular symptoms and diagnosed intervertebral cervical disc degeneration with radiculopathy.
He released appellant to work with restrictions.
Appellant was also treated by Dr. Paul A. Jain, a Board-certified internist, on
February 17, 2009, who noted that appellant presented with a subacute onset of neck and right
shoulder pain for three days. Dr. Jain noted that appellant was an active weight lifter and
swimmer and recently underwent a left medial meniscectomy in October 2008. He diagnosed
osteoarthritis of the cervical and lumbar spine, arthralgia and left medial meniscal tear. In
reports dated February 17 to March 16, 2009, Dr. Jain treated appellant for cervical pain
secondary to degenerative disc disease of the cervical spine and bilateral shoulder pain secondary
to joint osteoarthritis and rotator cuff tendinitis. He noted appellant could work with restrictions.
Appellant submitted dispensary notes signed by a physician’s assistant dated February 17, 2009,
which noted he was treated for pain in the right side.
On April 13, 2009 the employing establishment controverted the claim as the medical
evidence did not attribute appellant’s condition to a work injury but to degenerative changes and
weight lifting activities.
By letter dated April 30, 2009, the Office advised appellant that his claim was originally
received as a simple, uncontroverted case which resulted in minimal or no time loss from work.
Appellant’s claim was administratively handled to allow medical payments up to $1,500.00 but
that the merits of the claim had not been formally adjudicated. Since his employer challenged
the claim, it would formally adjudicate the claim. It requested that appellant submit additional
information including a comprehensive medical report that included a reasoned explanation of
how specific work factors or incidents contributed to his claimed neck, back or shoulder
conditions.
Appellant submitted May 16, 2009 statement noting that he was treated for cervical spine
spasms and was working subject to restrictions. He submitted an April 29, 2009 physical
examination performed by a physician’s assistant.

2

In a June 4, 2009 decision, the Office denied appellant’s claim finding that the medical
evidence was insufficient to establish that his claimed conditions were caused by the
February 12, 2009 incident at work.
On July 20, 2009 appellant requested an oral hearing which was held on
November 9, 2009. After the hearing, he submitted medical records from the employing
establishment and the Department of Veterans Affairs. Dispensary records from 1997 and 1998
noted appellant’s treatment for low back and right arm pain. A September 24, 2004 lumbar spine
x-ray revealed multilevel degenerative disc disease affecting the L4-S1 levels. An x-ray of the
cervical spine revealed multilevel degenerative changes, worse at C4-7. On March 1, 2004
appellant was treated by Juan C. Falls, Board-certified in occupational medicine, for an elbow
injury. A March 20, 2009 x-ray of the left shoulder revealed no evidence of fracture or
dislocation with osteophytosis. A March 28, 2009 magnetic resonance imaging (MRI) scan of
the shoulders revealed a moderate instrasubstance partial thickness tear of the left supraspinatus
and infraspinous tendons with tendinosis, a intrasubstance partial thickness tear of the right
supraspinatus and infraspinous tendons with tendinosis, and moderate bilateral glenohumeral
osteoarthritis with circumferential degenerative changes of the labrum bilaterally. The records
included documents from second physician’s assistants, nurses and nurse practitioners.
Appellant also submitted work injury reports from August 6, 2001 to September 14, 2005 in
which he alleged injuries to his hip, finger and elbow.
In a January 14, 2010 decision, an Office hearing representative affirmed the June 4,
2009 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Act2 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 of the Act, 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. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.3
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office 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.4 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,
2

5 U.S.C. §§ 8101-8193.

3

Gary J. Watling, 52 ECAB 357 (2001).

4

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

3

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.5
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.6 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.7
ANALYSIS
Appellant alleged that he sustained a back, neck and right shoulder injury while lifting
ammunition onto a pallet on February 12, 2009. The Board notes that the evidence supports that
the incident occurred as alleged. The Board finds, however, that the medical evidence is
insufficient to establish that appellant’s back, neck or right shoulder condition are causally
related to the February 12, 2009 work incident. On April 30, 2009 the Office advised him of the
medical evidence needed to establish his claim. Appellant did not submit a rationalized medical
report from a physician that explains how the February 12, 2009 work incident caused or
aggravated his claimed conditions.
Appellant submitted treatment notes from Dr. Schindler dated February 17 and 26, 2009,
who diagnosed thoracic back strain. He reported loading boxes of ammunition onto a pallet at
work on February 12, 2009 and experiencing neck and back pain. Dr. Schindler noted that
appellant was a swimmer and weight lifter who injured his neck and muscles at the base of his
occiput which progressed to his upper and mid back. Appellant had lifted weights the prior
Thursday and his neck pain began later that day into the next day. The Board finds that
Dr. Schindler’s reports do not provide any clear support that appellant’s neck, back or shoulder
conditions are work related. Rather, he opined that it was unclear whether the injury was work
related. Dr. Schindler treated appellant in follow-up for neck pain with radicular symptoms and
diagnosed intervertebral cervical disc degeneration and backache with radicular symptoms.
Dr. Schindler did not specifically address how appellant’s employment incident caused or
aggravated any diagnosed medical condition.8 His reports are insufficient to establish

5

Id.

6

Leslie C. Moore, 52 ECAB 132 (2000).

7

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).
8

A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).

4

appellant’s claim as he did not explain how lifting ammunition onto a pallet on
February 12, 2009 would cause or aggravate the diagnosed degenerative conditions.
On February 17, 2009 appellant was treated by Dr. Jain who diagnosed osteoarthritis of
the cervical and lumbar spine, arthralgia and left medial meniscal tear. Dr. Jain also noted that
appellant was an active weight lifter and swimmer. He treated appellant for cervical spine
symptoms and pain secondary to cervical spine degenerative disc disease and bilateral shoulder
pain secondary to joint osteoarthritis and rotator cuff tendinitis. Dr. Jain did not provide a
history of the February 12, 2009 incident or address how appellant’s work activities caused or
aggravated any diagnosed medical condition.9 Therefore, the reports are insufficient to meet
appellant’s burden of proof. The dispensary record of Dr. Falls noted physical restrictions but
did not address causal relationship.
The remainder of the medical evidence, including reports of diagnostic testing and
employer and VA records, is also insufficient to establish appellant’s claim. The x-ray and MRI
scan reports are insufficient as they fail to address causal relationship between appellant’s
diagnosed condition and the February 12, 2009 work incident. Other employing establishment
and VA medical records predate the February 12, 2009 traumatic incident and do not support that
it caused an injury. The Board also notes that the submitted medical records include documents
from physicians’ assistants and nurses. However, nurses and physicians’ assistants are not
physicians as defined under the Act. Their opinions are of no probative medical value.10 These
reports are insufficient to meet appellant’s burden of proof. Consequently, the medical evidence
is insufficient to establish that the February 12, 2009 lifting incident caused or aggravated a
diagnosed medical condition.
On appeal appellant contends that he sustained a muscle spasm at work on February 12,
2009 unrelated to his other injuries and that the Office incorrectly combined all of his injuries
together. The Board notes that his claim was denied because the medical evidence was
insufficient to establish that the February 12, 2009 lifting incident caused or aggravated a
diagnosed medical condition. The medical evidence submitted by appellant, does not provide a
rationalized opinion explaining how his diagnosed conditions were caused or aggravated by his
activities at work on February 12, 2009.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained a back, neck and right shoulder injury causally related to his February 12, 2009
employment incident.

9

Id.

10

S.E., Docket No. 08-2214 (issued May 6, 2009). See 5 U.S.C. § 8101(2) (this subsection defines a “physician”
as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners
within the scope of their practice as defined by State law. See also Charley V.B. Harley, 2 ECAB 208, 211 (1949)
(where the Board has held that a medical opinion, in general, can only be given by a qualified physician).

5

ORDER
IT IS HEREBY ORDERED THAT the January 14, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 19, 2011
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

6