United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
HINES VETERANS HOSPITAL, Hines, IL,
Employer
__________________________________________

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

Docket No. 11-1818
Issued: March 13, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 2, 2011 appellant filed a timely appeal from the April 15, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP) granting schedule award
compensation and the June 29, 2011 nonmerit decision of OWCP denying his hearing request.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over these decisions.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he has
more than a 10 percent permanent impairment of his right arm, for which he received a schedule
award; and (2) whether OWCP properly denied his request for a hearing under section 8124 of
FECA.

1

20 C.F.R. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on September 20, 2006 appellant, then a 49-year-old lead police
officer, sustained right shoulder impingement and de Quervain’s disease of his right wrist after
heavy objects slid off a truck and struck him. In December 2007, he underwent an arthroplasty
of his right shoulder which was authorized by OWCP.
In an August 24, 2009 report, Dr. Joseph G. Thometz, an attending Board-certified
orthopedic surgeon, reported findings on physical examination of appellant’s right wrist and
shoulder, including findings of range of motion testing. He stated that appellant continued to
have active signs of tendinitis in his right wrist with mild swelling over the first dorsal
compartment. There was no visible atrophy in the hand musculature and symmetric wrist range
of motion was observed.
On October 5, 2009 Dr. David H. Garelick, an attending Board-certified orthopedic
surgeon serving as an OWCP medical adviser, reviewed the findings of Dr. Thometz and
concluded that appellant had an eight percent permanent impairment of his right arm under the
standards of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (6th ed. 2009). He determined that, under Table 15-34 of page 477, appellant had a
seven percent impairment of his right arm comprised of a three percent impairment due to his
150 degrees of right shoulder flexion and a four percent impairment due to his 40 degrees of
right shoulder internal rotation. Dr. Garelick determined that, under Table 15-35 on page 477,
appellant’s minimal residual complaints meant that his range of motion impairment fell under
grade modifier 1 and that, under Table 15-36 on page 477, his functional history did not change
the grade modifier 1 value such that the seven percent impairment rating should be adjusted. He
indicated that, under Table 15-3 (Wrist Regional Grid) on page 395, appellant had one percent
impairment due to the diagnosis of de Quervain’s disease of the right wrist. The default value
for this diagnosis was one percent and application of the grade modifiers and adjustment grid,
found on pages 405 through 412, did not result in any adjustment of this impairment rating.
Dr. Garelick used the Combined Values Chart, beginning on page 604, to combine the seven
percent impairment related to the right shoulder with the one percent impairment related to the
right wrist and concluded that appellant had a total right arm impairment of eight percent.
In a November 3, 2009 decision, OWCP granted appellant a schedule award for an eight
percent permanent impairment of his right arm. The award ran for 24.96 weeks from April 28 to
October 19, 2009.
In a September 6, 2010 report, Dr. Jacob Salomon, an attending Board-certified surgeon,
provided a history of appellant’s right wrist and shoulder conditions and reported findings on
examination. With respect to right shoulder motion, he applied Table 15-34 of the sixth edition
of the A.M.A., Guides to the findings. Flexion was 142 degrees (three percent right arm
impairment), extension was 40 degrees (one percent impairment), internal rotation was 70
degrees (one percent impairment), external rotation was 62 degrees (no impairment), abduction
was 108 degrees (three percent impairment) and adduction was 38 degrees, (one percent
impairment). Adding up all range of motion impairments, appellant had a nine percent right arm
impairment. Dr. Salomon stated, “He does have a history of right [d]e Quervain’s tenosynovitis
and these values will be considered at a later date.”

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On December 6, 2010 Dr. Garelick stated that he had reevaluated appellant’s right arm
impairment after reviewing the findings of Dr. Salomon. He indicated that while range of
motion findings can be somewhat subjective based upon an individual’s efforts, Dr. Salomon’s
findings showed a deterioration of appellant’s right shoulder condition. Dr. Garelick stated:
“In reviewing his report, [Dr. Salomon] has correctly utilized the A.M.A., Guides
in recommending a total of [nine] percent RUE PPI [right upper extremity
permanent partial impairment] based on loss of shoulder motion. Given this is
relatively similar to my measurements from October 2009, I suggest [appellant’s]
award be increased to [nine] percent RUE PPI as it relates to the shoulder.
“The 9 percent award for shoulder ROM [range of motion] should be added to the
already established 1 percent award for the residual [d]e Quervain’s tenosynovitis
for a new TOTAL award of 10 percent RUE PPI. The date of MMI [maximum
medical improvement] will remain [April 28, 2009]….
“Right upper extremity PPI = 10 percent.”
In an April 15, 2011 decision, OWCP granted appellant a schedule award for an
additional two percent permanent impairment of his right arm. The award ran for 6.24 weeks
from October 20 to December 2, 2009. Appellant now had been compensated for a total right
arm impairment of 10 percent.
In a letter postmarked June 2, 2011, appellant requested a hearing before an OWCP
hearing representative.
In a June 29, 2011 decision, OWCP denied appellant’s request for a hearing under section
8124 of FECA noting that the request was untimely. It exercised its discretion with respect to
hearing requests by stating that it had considered the matter in relation to the issue involved and
had denied appellant’s hearing request on the basis that the case could be resolved by requesting
reconsideration and submitting additional medical evidence.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA2 and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404 (1999).

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appropriate standard for evaluating schedule losses.4 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.5
With respect to the shoulder, reference is first made to Table 15-5 (Shoulder Regional
Grid) beginning on page 401. A class of diagnosis (CDX) may be determined from the Shoulder
Regional Grid (including identification of a default grade value).6 Table 15-5 also provides that,
if motion loss is present for a claimant who has undergone a shoulder arthroplasty, impairment
may alternatively be assessed using section 15.7 (range of motion impairment). Such a range of
motion impairment stands alone and is not combined with a diagnosis impairment.7 Impairment
ratings for limited shoulder motion are derived from Table 15-34 on page 475.8 Under Table 1535 on page 477, a grade modifier value is assigned to the impairment ratings calculated from
Table 15-35. Table 15-36 on page 477 provides standards for adjusting the grade modifier value
based on a claimant’s functional history.9
ANALYSIS -- ISSUE 1
OWCP accepted that on September 20, 2006 appellant sustained right shoulder
impingement and de Quervain’s disease of his right wrist. In December 2007, he underwent an
OWCP-authorized arthroplasty of his right shoulder. In a November 3, 2009 decision, OWCP
granted appellant a schedule award for an eight percent permanent impairment of his right arm.
On April 15, 2011 it granted him a schedule award for an additional 2 percent permanent
impairment of his right arm, meaning that he had been compensated for a total right arm
impairment of 10 percent. This award was based on a September 6, 2010 report of Dr. Salomon,
an attending Board-certified surgeon, and a December 6, 2010 report of Dr. Garelick, a Boardcertified orthopedic surgeon serving as an OWCP medical adviser.10
In his September 6, 2010 report, Dr. Salomon evaluated appellant’s impairment due to
limited right shoulder motion under Table 15-34 on page 475 of the sixth edition of the A.M.A.,
Guides. Flexion was 142 degrees (three percent right arm impairment), extension was 40
degrees (one percent impairment), internal rotation was 70 degrees (one percent impairment),
external rotation was 62 degrees (zero percent impairment), abduction was 108 degrees (three
percent impairment) and adduction was 38 degrees, (one percent impairment). Adding up all
range of motion impairments, Dr. Salomon determined that appellant had a nine percent right
4

Id.

5

FECA Bulletin No. 09-03 (issued March 15, 2009).

6

See A.M.A., Guides (6th ed. 2009) 401-11.

7

Id. at 405, 475-78.

8

Id. at 475, Table 15-34.

9

Id. at 477, Table 15-35 and Table 15-36.

10

Dr. Salomon examined appellant’s right arm, reported findings on examination and provided an impairment
rating for his right arm. Dr. Garelick reviewed the evidence of record, including Dr. Salomon’s report and provided
an impairment rating for appellant’s right arm.

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arm impairment due to limited right shoulder motion. In his December 6, 2010 report,
Dr. Garelick indicated that he agreed with Dr. Salomon’s impairment rating due to limited right
shoulder motion.11
The Board notes that Dr. Salomon and Dr. Garelick properly evaluated appellant’s right
arm impairment due to limited right shoulder motion with the exception that, under Table 15-34,
appellant had a two percent impairment due to his 70 degrees of internal rotation, rather than a
one percent impairment.12 Therefore, appellant has a 10 percent permanent impairment of his
right arm due to limited right shoulder motion.
Dr. Salomon did not provide an assessment of appellant’s right arm impairment due to
his right wrist condition. However, Dr. Garelick properly determined that, under Table 15-3
(Wrist Regional Grid) on page 395, appellant had a one percent impairment due to the diagnosis
of de Quervain’s disease of the right wrist.13
Using the Combined Values Chart, beginning on page 604, combining appellant’s 10
percent impairment related to the right shoulder with the 1 percent impairment related to the
right wrist shows that appellant has a total right arm impairment of 11 percent.14 He has not
submitted any medical evidence showing entitlement to a greater level of schedule award
compensation. As appellant has been compensated for a 10 percent permanent impairment of his
right arm, he would now be entitled to receive a schedule award for an additional 1 percent
permanent impairment of his right arm.
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA, concerning a claimant’s entitlement to a hearing before an
OWCP representative, provides in pertinent part: “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 the issuance of the decision, to a hearing on his claim

11

Dr. Salomon and Dr. Garelick both felt that application of the standards of section 15.7 of the A.M.A., Guides
was an appropriate alternative to a diagnosis-based analysis. In the present case, appellant had undergone a right
shoulder arthroplasty and had limited right shoulder motion. See supra note 7. Both Dr. Salomon and Dr. Garelick
determined that appellant’s right shoulder condition did not warrant, under Table 15-35 and Table 15-36, any
adjustment from the finding of a nine percent right arm impairment due to limited right shoulder motion. See supra
note 9.
12

See supra note 8.

13

Id. at 395, Table 15-3. The default value for the diagnosis of de Quervain’s disease of the right wrist was one
percent and application of the grade modifiers and adjustment grid, found on pages 405 through 412, would not
result in any adjustment of this impairment rating. Id. at 395, 405-12.
14

Id. at 604, Combined Values Chart.

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before a representative of the Secretary.”15 As section 8124(b)(1) is unequivocal in setting forth
the time limitation for requesting a hearing, a claimant is not entitled to a hearing as a matter of
right unless the request is made within the requisite 30 days.16 The date of filing is fixed by
postmark or other carrier’s date marking.17
The Board has held that OWCP, in its broad discretionary authority in the administration of
FECA, has the power to hold hearings in certain circumstances where no legal provision was made
for such hearings and that OWCP must exercise this discretionary authority in deciding whether to
grant a hearing.18 Specifically, the Board has held that OWCP has the discretion to grant or deny a
hearing request on a claim involving an injury sustained prior to the enactment of the 1966
amendments to FECA which provided the right to a hearing,19 when the request is made after the
30-day period for requesting a hearing,20 and when the request is for a second hearing on the same
issue.21
ANALYSIS -- ISSUE 2
Appellant’s June 2, 2011 hearing request was made more than 30 days after the date of
issuance of OWCP’s prior decision dated April 15, 2011 and, thus, he was not entitled to a hearing
as a matter of right. He requested a hearing before an OWCP representative in a document sent in
an envelope postmarked June 3, 2011. Hence, OWCP was correct in stating in its June 29, 2011
decision that appellant was not entitled to a hearing as a matter of right because his June 3, 2011
hearing request was not made within 30 days of OWCP’s April 15, 2011 decision.
While OWCP also has the discretionary power to grant a hearing when a claimant is not
entitled to a hearing as a matter of right, OWCP, in its June 29, 2011 decision, properly exercised
its discretion by stating that it had considered the matter in relation to the issue involved and had
denied appellant’s hearing request on the basis that the case could be resolved by requesting
reconsideration and submitting additional medical evidence. The Board has held that as the only
limitation on OWCP’s authority is reasonableness, abuse of discretion is generally shown through
proof of manifest error, clearly unreasonable exercise of judgment or actions taken which are
contrary to both logic and probable deduction from established facts.22 The evidence does not
establish that OWCP abused its discretion in denying the hearing request.

15

5 U.S.C. § 8124(b)(1).

16

Ella M. Garner, 36 ECAB 238, 241-42 (1984).

17

See 20 C.F.R. § 10.616(a).

18

Henry Moreno, 39 ECAB 475, 482 (1988).

19

Rudolph Bermann, 26 ECAB 354, 360 (1975).

20

Herbert C. Holley, 33 ECAB 140, 142 (1981).

21

Johnny S. Henderson, 34 ECAB 216, 219 (1982).

22

Daniel J. Perea, 42 ECAB 214, 221 (1990).

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CONCLUSION
The Board finds that appellant has an 11 percent permanent impairment of his right arm.
The Board further finds that OWCP properly denied appellant’s request for a hearing under
section 8124 of FECA.
ORDER
IT IS HEREBY ORDERED THAT the April 15, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed as modified to reflect that appellant has an 11
percent permanent impairment of his right arm. The June 29, 2011 decision of OWCP is
affirmed.
Issued: March 13, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 14-1406
Issued: February 11, 2015

Case Submitted on the Record

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

JURISDICTION
On June 5, 2014 appellant, through his attorney, timely appealed the March 20, 2014
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether appellant’s claimed lumbar condition is causally related to
his December 21, 2011 employment injury; and (2) whether OWCP properly terminated his
wage-loss compensation and medical benefits effective May 16, 2012.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
This case was previously before the Board.2 Appellant, a 46-year-old registered nurse,
has an accepted traumatic injury claim for left mild patellar tendinitis, which arose on
December 21, 2011.3 He was using a foot pedal to manually raise a patient bed when he felt the
bone in his left knee pop out of place. Appellant also claimed to have injured his lumbar spine
on December 21, 2011. His lumbar-related diagnoses included left S1 radiculopathy, lumbar
stenosis, and lower back and left leg paresthesia. With respect to appellant’s accepted left knee
condition, Dr. Peter C. Vitanzo, Jr., a Board-certified family practitioner with a subspecialty in
sports medicine, released him to resume his regular nursing duties as of April 5, 2012.4
However, appellant did not return to work at that time because of his lumbar condition.5 He
ultimately resumed his full-time, regular nursing duties on May 23, 2012. Approximately, one
month later, appellant voluntarily resigned to pursue his education.6
When the case was last before the Board, OWCP had denied appellant’s claim for an
employment-related lumbar condition and had terminated wage-loss compensation and medical
benefits with respect to appellant’s accepted left knee condition. The Board set aside two
decisions from the Branch of Hearings and Review dated September 26 and December 4, 2012.
In both instances, the respective hearing representative overlooked December 2011 treatment
notes from Dr. Sherita M. Latimore-Collier, an internist and appellant’s spouse.7 Because of this
oversight, the Board found that the case was not in posture for decision.8
On remand, OWCP reviewed the record, including Dr. Latimore-Collier’s
December 2011 treatment notes and issued two decisions, both dated August 13, 2013. In one
decision, it declined to accept appellant’s lumbar condition as employment related. The other
decision terminated wage-loss compensation and medical benefits effective May 16, 2012.
2

Docket No. 13-568 (issued July 12, 2013).

3

A December 22, 2011 magnetic resonance imaging (MRI) scan revealed, inter alia, left knee mild patellar
tendinitis, a small interstitial tear, and early patellar chondromalacia.
4

Dr. Vitanzo initially examined appellant on February 16, 2012 and diagnosed left patellar tendinitis. He saw
appellant for follow up on March 15, 2012, at which time he noted appellant’s knee was not too bad. In an April 5,
2012 report, Dr. Vitanzo indicated that appellant was doing fine and was capable of resuming full-duty status with
regard to his knee. Appellant had reached maximum medical improvement, and Dr. Vitanzo did not think any
additional treatment was warranted for the knee. Dr. Vitanzo was aware that appellant was also being treated for a
lumbar condition and deferred to appellant’s other physician(s) regarding any lumbar-related work limitations.
5

Appellant previously tried to resume work in a limited-duty capacity on February 21, 2012, but stopped work
that same day.
6

Appellant resigned effective June 22, 2012.

7

Dr. Latimore-Collier examined appellant on December 21, 2011 for a work-related left knee injury, as well as
complaints of radiating left leg pain and a burning sensation in his lower back. She also conducted a follow-up
examination on December 27, 2011. In a report dated February 3, 2012, Dr. Latimore-Collier advised that the
December 21, 2011 employment incident not only caused damage to appellant’s left knee, but also compressed his
S1 nerve root resulting in lower back pain radiating down his left leg into his left foot.
8

The Board’s July 12, 2013 order remanding case is incorporated herein by reference.

2

Appellant requested an oral hearing, which he later changed to a request for review of the
written record.
By decision dated March 20, 2014, the hearing representative affirmed both August 13,
2013 decisions. She found that appellant failed to establish that he sustained a back injury on
December 21, 2011. The hearing representative also found that OWCP met its burden to
terminate wage-loss compensation and medical benefits with respect to appellant’s accepted left
knee condition.
As noted, Dr. Latimore-Collier examined appellant on December 21, 2011 for left knee,
left leg, and lower back complaints following a work incident where he was “pumping bed with
left foot.” Appellant had already been seen at the employing establishment’s occupational health
unit.9 A left knee x-ray was obtained, but the results were not yet available for Dr. LatimoreCollier’s review. Dr. Latimore-Collier ordered a left knee MRI scan, prescribed tramadol for
pain, and recommended heat and rest.
When appellant returned for follow up on December 27, 2011, Dr. Latimore-Collier
noted that his pain had gotten worse. She also noted that an x-ray revealed a possible
osteochondral lesion and a left knee MRI scan showed tendinitis and a possible meniscal tear.
On physical examination, appellant’s left knee was still tender on palpation and there was
numbness down the left leg to his toes. Dr. Latimore-Collier also reported lower back
tenderness. Her assessment was left knee trauma with neuropathic/radicular pain causing
numbness of toes. Appellant also experienced numbness in his penis. Dr. Latimore-Collier
prescribed both tramadol and Percocet for pain, and referred him to an orthopedic surgeon for
further evaluation.
Dr. Michael F. Harrer, a Board-certified orthopedic surgeon, examined appellant on
December 28, 2011. His initial impression was probable left lower back issue, creating left leg
radiculopathy with minimal patella tendinitis of the left knee. Dr. Harrer explained that this all
started when appellant was at work, manually pumping up a bed with a patient in it. He ordered
a lumbar MRI scan to rule out left-side L4-5 herniated nucleus pulposus, and advised that
appellant was unable to return to work until further notice.
A December 29, 2011 lumbar MRI scan revealed developmental narrowing of the central
canal at L3-4 through L5-S1 without evidence of nerve root compromise. There was also
evidence of mild dorsal epidural lipomatosis.
In a January 6, 2012 follow-up report, Dr. Harrer noted that appellant complained of
penis numbness and voiding on himself after completing urination. Appellant was concerned he
had neurologic issues. On physical examination, he continued to complain of extreme pain.
Appellant was noted to have been ambulating with a cane. Dr. Harrer also noted that the recent
lumbar MRI scan showed minimal congenital stenosis. There were no herniated discs or other
issues of an acute nature. Dr. Harrer indicated appellant’s problems were no longer orthopedic,
9

Sarah A. Foster-Chang, a nurse practitioner, examined appellant earlier that day. Her initial clinical impression
was possible patellar subluxation and/or joint effusion. Ms. Foster-Chang excused appellant from work and advised
against any weight bearing for two days. Appellant was to remain off duty until December 26, 2011.

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but maybe a neurologic dysfunction. As such, he referred appellant for a complete neurologic
examination. Appellant was to remain off work until seen by a neurologist.
Dr. Leila Hardware, a Board-certified family practitioner, examined appellant on
January 9, 2012. She noted that he was maneuvering a manual patient bed at work on
December 21, 2011 when his left knee gave out. Since then, appellant had been experiencing
severe pain in the left knee, left lower extremity, and lower back. The pain was aggravated by
walking and sitting/standing for short periods of time. Also, appellant’s pain made it
uncomfortable to sleep. Dr. Hardware further noted that he had been experiencing numbness,
tingling, and loss of sensation of his left lower extremity and penis. She stated that appellant
essentially had neuropathy as a result of his work-related injury. Dr. Hardware also noted the
results of his lumbar and left knee MRI scans. She indicated that in light of appellant’s
neuropathic symptoms, he required further evaluation and treatment with a neurologist as soon as
possible. Follow-up treatment notes from January 23, 2012 included diagnoses of left lower
extremity radiculopathy/paresthesia, patellar tendinitis, chondromalacia, lumbar stenosis, and
urinary incontinence.
Dr. Edward J. Gallagher, a Board-certified physiatrist, examined appellant on February 1,
2012 and administered an electromyography (EMG). He noted that appellant was employed as a
registered nurse and while at work on December 21, 2011, he was pumping up a stretcher with
his left lower extremity and fairly acutely developed knee pain. Later that same day, appellant
was seen by an occupational medicine nurse who manipulated his left knee, which resulted in the
worse pain of his life. He also reported having developed pain in the left buttock on
December 21, 2011, which spread to his left heel. Dr. Gallagher noted that appellant had not
been able to work since the December 21, 2011 incident. He further noted that appellant
currently had paresthesias, particularly in the lateral toes on the left, but also to an extent in the
ball of the foot, and also some paresthesias in the right toes. Dr. Gallagher indicated that
walking increased appellant’s symptoms in the left lower extremity. However, appellant was
able to ambulate independently without an assistive device. Dr. Gallagher also noted that
appellant had seen an orthopedic surgeon, but had not yet undergone physical therapy. Appellant
was currently being maintained on various pain medications. Most days his pain was a 6-7/10.
Dr. Gallagher also noted that appellant’s left knee and lumbar MRI scans were essentially
unremarkable. He described appellant as mildly overweight, but an otherwise healthy appearing
male in mild discomfort. Examination of the left knee revealed good range of motion and no
effusion. Tinel’s sign was negative over the bilateral tarsal tunnels and straight leg raising test
was weakly positive on the left. Deep tendon reflexes were trace at both knees, trace at the right
ankle, and absent at the left ankle.
Dr. Gallagher noted that appellant’s EMG was not consistent with polyneuropathy or
tarsal tunnel syndrome. There was also no evidence of radiculopathy in the right lower
extremity. However, Dr. Gallagher noted the EMG had suggested, but was not diagnostic
evidence of left L5 and/or S1 radiculopathy. He commented that despite the unimpressive nature
of the observed abnormalities, they were acute and probably clinically significant to appellant’s
pain, which radiated from his back ending up as paresthesias in the toes. Dr. Gallagher’s overall
diagnostic impression was “[p]robable acute left L5 and/or S1 radiculopathy.” He recommended
conservative treatment involving either physical therapy or referral for pain management
injections.

4

Dr. Dahlia J. Irby, a neurologist, examined appellant on February 2, 2012 and reviewed
his December 29, 2011 lumbar MRI scan and recent EMG results. Appellant reported having
injured himself at work on December 21, 2011. His chief complaints included lower back pain,
left leg pain, foot pain, numbness, tingling, and decreased penis sensation. Dr. Irby noted
appellant had been diagnosed with patellar tendinitis. She also noted that his lumbar MRI scan
showed developmental narrowing of the central canal at L3-4 through L5-S1 without evidence of
nerve root compromise, as well as mild dorsal epidural lipomatosis. Additionally, Dr. Irby noted
Dr. Gallagher’s diagnostic impression of probable acute left L5 and/or S1 radiculopathy. She
concluded that appellant had signs and symptoms of left S1 radiculopathy. Although there was
no significant impingement on the left at his L5-S1 nerve root region, Dr. Irby found that he
exhibited signs and symptoms of the condition. She recommended physical therapy.
In a report dated February 3, 2012, Dr. Latimore-Collier described appellant’s treatment
and various diagnostic studies administered since December 21, 2011. She indicated that the
December 21, 2011 employment incident not only caused damage to his left knee, but also
compressed his S1 nerve root resulting in lower back pain radiating down the left leg into his
foot. Dr. Latimore-Collier explained that appellant was manually pumping a bed and because of
his standing position, his left foot, knee, spine, and shoulders were unaligned and he was
unprepared for the pain or pressure that he exerted on his knee and spine. She further explained
that the unexpected pain and pressure caused damage to his left knee and compression to the S1
nerve, resulting in radicular pain from his lower back down his left leg to his foot.
On February 22, 2012 Dr. Hardware excused appellant from work until March 23, 2012.
She explained that he had been diagnosed with left S1 radiculopathy, which caused back pain
and paresthesia. Dr. Hardware also noted that appellant would be undergoing physical therapy
for the next four weeks. Her February 22, 2012 treatment notes also reflected a diagnosis of left
patellar tendinitis/chondromalacia.
When appellant returned on March 22, 2012, Dr. Hardware diagnosed S1 radiculopathy,
lower back pain, obesity, patellar tendinitis, anxiety, stress, lower back paresthesia, and left leg
paresthesia. She recommended a functional capacity evaluation, continued physical therapy, and
advised appellant to follow up with an orthopedist and/or neurologist regarding his left leg pain.
Dr. Hardware indicated that he could return to work in two months, May 23, 2012.
Dr. Hardware provided additional reports dated April 6 and August 30, 2012. Both
reports summarized the treatment she provided appellant beginning January 9, 2012.
Dr. Hardware noted that he initially presented with lower back pain radiating to his left lower
extremity, burning, and numbness, gait dysfunction, difficulty sleeping, left knee pain,
paresthesia in foot and toes, and urinary incontinence. Walking aggravated appellant’s
complaints and caused significant pain. Dr. Hardware stated that his complaints were all
secondary to a December 21, 2011 work-related injury. At the time, she had referred appellant
to a neurologist and recommended he follow up with an orthopedist. When appellant returned on
January 23, 2012, his symptoms were unchanged, but his pain was reduced with medications.
Dr. Hardware also noted that he returned to work on February 21, 2012, but continued to
experience left lower extremity pain with numbness. During a March 22, 2012 follow up, she
reported that appellant had better pain control and improvement with urinary issues, but minimal
relief with respect to his left lower left extremity complaints. Despite a reduction in pain,

5

Dr. Hardware observed his inability to sit or stand for prolonged periods without having to
change positions. She indicated that she saw appellant on two more occasions; April 12 and
May 17, 2012. Dr. Hardware noted that by May 17, 2012 his symptoms improved, and he was
cleared to return to work on May 23, 2012.
On appeal, counsel argues that appellant suffered a low back injury on December 21,
2011, and continues to suffer from the residuals of the work injury. In his May 29, 2014 brief,
counsel noted that the claims examiner found Dr. Latimore-Collier’s opinion irrelevant because
of her personal relationship with appellant. Counsel also argued that the hearing representative
failed to discuss in any detail the reports of Dr. Latimore-Collier.
LEGAL PRECEDENT ISSUE 1
A claimant seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.10
ANALYSIS -- ISSUE 1
OWCP has only accepted left knee mild patellar tendinitis as employment related.
Appellant claims to have also injured his lower back as a result of the December 21, 2011
employment incident. Where an employee claims that a condition not accepted or approved by
OWCP was due to an employment injury, he bears the burden of proof to establish that the
condition is causally related to the employment injury.11
Dr. Harrer, an orthopedic surgeon, examined appellant on December 28, 2011. At the
time, appellant reported left knee pain and left lower back pain radiating down his left buttock
into the left side of his knee. Dr. Harrer’s initial impression was probable left lower back issue,
creating left leg radiculopathy with minimal patella tendinitis of the left knee. He explained that
it all started when appellant was at work manually pumping up a bed with a patient in it.
Dr. Harrer ordered a lumbar MRI scan to rule out left-side L4-5 herniated nucleus pulposus.
After obtaining an MRI scan on December 29, 2011, appellant returned to him for follow up on
January 6, 2012. He continued to complain of extreme pain and was noted to be ambulating with
a cane. Dr. Harrer noted that appellant’s recent lumbar MRI scan showed minimal congenital
stenosis, but no herniated discs or other issues of an acute nature. He determined that the
problems were not orthopedic. Because of the possibility of neurologic dysfunction, Dr. Harrer
referred appellant for a complete neurologic examination.
10

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

11

Jaja K. Asaramo, 55 ECAB 200, 204 (2004). Causal relationship is a medical question, which generally
requires rationalized medical opinion evidence to resolve the issue. See Robert G. Morris, 48 ECAB 238 (1996). A
physician’s opinion on whether there is a causal relationship between the diagnosed condition and the implicated
employment factors must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB
345, 352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of
medical certainty, and must be supported by medical rationale, explaining the nature of the relationship between the
diagnosed condition and appellant’s specific employment factors. Id.

6

Although he ruled out an orthopedic condition, Dr. Harrer did not provide a definitive
diagnosis. Also, apart from noting a temporal relationship, he did not explain how the lower
back and left lower extremity complaints were causally related to the above-described
employment incident. A physician’s opinion on causal relationship must be supported by
medical rationale, explaining the nature of the relationship between the diagnosed condition and
appellant’s specific employment factors.12
Dr. Gallagher examined appellant on February 1, 2012 and administered an EMG. He
noted that on December 21, 2011 appellant was at work pumping up a stretcher with his left
lower extremity when he fairly acutely developed knee pain. Also that same day, appellant
reported developing pain in the left buttock, which spread to his left heel. Based on his
evaluation, Dr. Gallagher’s diagnostic impression was probable acute left L5 and/or S1
radiculopathy. Other than noting the reported December 21, 2011 onset of left buttock and left
heel pain, he did not specifically address the etiology of appellant’s radiculopathy.
Dr. Irby, who examined appellant on February 2, 2012, noted “[appellant] stated that he
injured himself at work on [December 21, 2011].” However, her report did not include a
description of the December 21, 2011 employment incident. Also, Dr. Irby did not specifically
attribute appellant’s “signs and symptoms of left S1 radiculopathy” to his employment injury.
Dr. Vitanzo saw appellant on February 16, March 15, and April 5, 2012. He diagnosed
left patellar tendinitis. By April 5, 2012, appellant reached maximum medical improvement, and
Dr. Vitanzo did not think any additional treatment was warranted for his knee. Dr. Vitanzo
released appellant to return to work at that time. Although Dr. Vitanzo was aware of appellant’s
back complaints and left-side radicular symptoms, he did not offer an opinion regarding the
cause of appellant’s lumbar condition. Additionally, Dr. Vitanzo deferred to appellant’s other
health care providers regarding any lumbar-related work limitations. Because his treatment was
limited to appellant’s left knee condition, his various reports do not establish an
employment-related lumbar condition.
In her April 6 and August 30, 2012 reports, Dr. Hardware stated that appellant’s
complaints were all secondary to a December 21, 2011 work-related injury. When she initially
examined appellant on January 9, 2012, she noted that he was maneuvering a manual patient bed
at work on December 21, 2011 when his left knee gave out. This is not entirely consistent with
appellant’s description of the December 21, 2011 employment incident. The February 21, 2011
Form CA-1 indicates that he was “trying to manually raise a bed containing a patient by using a
foot pedal” when the bone in his left knee popped out of place. In addition to an incomplete
history of injury, Dr. Hardware never fully explained how appellant’s complaints were secondary
to a work-related injury on December 21, 2011. A physician’s opinion on causal relationship
must be based on a complete factual and medical background and must be supported by medical
rationale.13

12

Victor J. Woodhams, id.

13

Id.

7

Dr. Latimore-Collier, appellant’s spouse, addressed causal relationship in her February 3,
2012 report. After describing appellant’s treatment, including the various diagnostic studies
administered since December 21, 2011, she indicated the accepted employment incident not only
damaged the left knee, but also compressed appellant’s S1 nerve root resulting in lower back
pain radiating down the left leg into his foot. Dr. Latimore-Collier explained that appellant was
manually pumping a bed and because of his standing position, appellant’s left foot, knee, spine,
and shoulders were unaligned and he was unprepared for the pain or pressure that he exerted on
his knee and spine.
Counsel noted that the claims examiner found Dr. Latimore-Collier’s opinion irrelevant
because she was appellant’s wife. Although he is correct regarding the claims examiner’s
assessment, the hearing representative did not similarly dismiss Dr. Latimore-Collier’s opinion
based on a perceived conflict of interest. Instead, she found that Dr. Latimore-Collier’s
February 3, 2012 report lacked probative value because she did not provide a specific diagnosis
for appellant’s back symptoms and because she failed to explain her opinion regarding S1 nerve
compression in light of contrary diagnostic evidence.
In her February 3, 2012 report, Dr. Latimore-Collier noted that appellant had been
referred for a lumbar MRI scan, but she did not specifically comment on the results of the
December 29, 2011 MRI scan. The study revealed mild dorsal epidural lipomatosis and
developmental narrowing of the central canal at L3-4 through L5-S1, without evidence of nerve
root compromise. Also, Dr. Latimore-Collier’s report indicated that appellant’s EMG “noted S1
radiculopathy.” Her characterization of the results is not entirely accurate. Dr. Gallagher, who
administered the February 1, 2012 EMG, and Dr. Irby, the neurologist who reviewed the study,
did not find definitive evidence of S1 radiculopathy. Dr. Gallagher noted that the study was
“suggestive,” but not complete diagnostic evidence supporting left L5 and/or S1 radiculopathy.
He characterized both the lumbar MRI scan and lower extremity EMG results as “unimpressive.”
Also, Dr. Irby noted that there was “no significant impingement on the left at [appellant’s] L5-S1
nerve root region.”
Dr. Latimore-Collier’s February 3, 2012 finding of employment-related S1 nerve root
compression does not adequately address the underlying diagnostic studies, which at least one
physician characterized as “unimpressive.” As noted, a physician’s opinion on causal
relationship must be based on a complete factual and medical background and must be supported
by medical rationale.14
Based on the above-noted medical evidence, OWCP properly found that appellant did not
establish a causal relationship between his claimed lumbar condition and the December 21, 2011
employment incident. Accordingly, the decision of OWCP denying his alleged lumbar condition
is affirmed.

14

Id.

8

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Once OWCP accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.15 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.16 After termination or modification of compensation benefits, clearly warranted on
the basis of the evidence, the burden for reinstating compensation shifts to the employee.17
The right to medical benefits for an accepted condition is not limited to the period of
entitlement to compensation for disability.18 To terminate authorization for medical treatment,
OWCP must establish that the employee no longer has residuals of an employment-related
condition that require further medical treatment.19
ANALYSIS -- ISSUE 2
Neither appellant nor counsel specifically challenges OWCP’s finding with respect to
entitlement to compensation and medical benefits regarding the accepted left knee condition.
When Dr. Vitanzo last examined appellant, he released him to return to full duty effective
April 5, 2012. Appellant’s left knee was noted to be “doing fine,” with good range of motion, no
significant pain over the patellar tendon, and a relatively normal gait. Dr. Vitanzo advised that
appellant reached maximum medical improvement, and he did not believe additional treatment
for the left knee was warranted. The Board finds that OWCP properly relied on Dr. Vitanzo’s
April 5, 2012 opinion as a basis for terminating compensation and medical benefits with respect
to appellant’s accepted left knee condition.
CONCLUSION
Appellant failed to establish that his claimed lumbar condition is causally related to his
December 21, 2011 employment injury. The Board further finds that OWCP met its burden in
terminating compensation and medical benefits effective May 16, 2012.

15

Curtis Hall, 45 ECAB 316 (1994).

16

Jason C. Armstrong, 40 ECAB 907 (1989).

17

I.J., 59 ECAB 408, 415 (2008). To prevail, the employee must establish by the weight of the reliable,
probative and substantial evidence that he had an employment-related disability that continued after termination of
compensation. Id.
18

Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas Olivarez, Jr., 32 ECAB 1019 (1981).

19

Calvin S. Mays, 39 ECAB 993 (1988).

9

ORDER
IT IS HEREBY ORDERED THAT the March 20, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 11, 2015
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.W., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Chamblee, GA, Employer
__________________________________________

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

Docket No. 09-2110
Issued: April 22, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 24, 2009 appellant filed a timely appeal from a May 27, 2009 merit decision
of the Office of Workers’ Compensation Programs denying her occupational disease 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 met her burden of proof to establish that she sustained an
injury in the performance of duty.
FACTUAL HISTORY
On March 13, 2009 appellant, then a 52-year-old tax technician, filed an occupational
disease claim alleging that she developed pain, numbness and tingling in her right hand, upper
arm and shoulder (carpal tunnel) causally related to her federal employment. She did not provide
a description of her work duties.

On March 30, 2009 the Office requested additional evidence, including a detailed
description of the employment activities which contributed to appellant’s alleged upper
extremity condition. It also requested a comprehensive medical report containing a diagnosis,
description of her symptoms, the results of examinations and tests and medical rationale
explaining how her diagnosed condition was causally related to specific factors of her
employment. There was no response from appellant.
By decision dated May 27, 2009, the Office denied appellant’s claim on the grounds that
the factual and medical evidence was insufficient to establish that her carpal tunnel syndrome
was causally related to factors of her employment.1
LEGAL PRECEDENT
To establish that an injury was sustained in the performance of duty in a claim for an
occupational disease claim, an employee must submit the following: (1) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; (2) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.2 Causal relationship is a medical issue and the medical evidence
generally required to establish causal relationship is rationalized medical evidence.3
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.4
An award of compensation may not be based on surmise, conjecture or speculation.
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.5

1

Subsequent to the May 27, 2009 Office decision, additional documents were associated with the file. The
Board’s jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See
20 C.F.R. § 501.2(c). The Board may not consider this evidence for the first time on appeal.
2

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

3

M.D., 59 ECAB ___ (Docket No. 07-908, issued November 17, 2007).

4

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
5

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

2

ANALYSIS
The Board finds that appellant failed to meet her burden of proof to establish that she
sustained an injury in the performance of duty.
The Office advised appellant to submit a detailed description of the employment
activities believed to have caused or contributed to her alleged upper extremity condition, as well
as a comprehensive medical report containing a diagnosis and an explanation as to how her
diagnosed condition was caused by the identified employment activities. Appellant failed to
submit a description of her employment activities or any medical evidence pertaining to her
alleged condition. Although the Office informed her of the deficiencies in the evidence, she did
not submit the factual and medical evidence necessary to establish a prima facie claim for
compensation.6
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she
sustained an injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the May 27, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 22, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6

See Donald W. Wenzel, 56 ECAB 390 (2005).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Macon, GA, Employer
__________________________________________

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

Docket No. 11-327
Issued: September 22, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 22, 2010 appellant filed an appeal of a merit decision of the Office of
Workers’ Compensation Programs (OWCP) dated September 29, 2010 denying her claim.
Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2 and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
injury in the performance of duty on August 14, 2010, as alleged.
FACTUAL HISTORY
On August 16, 2010 appellant, then a 39-year-old rural carrier associate, filed a traumatic
injury claim alleging that on August 14, 2010 the back of her right hand was struck by lightening
when she was delivering mail. She stopped work on August 14, 2010. Appellant submitted an
1

5 U.S.C. §§ 8101-8193.

August 16, 2010 statement and an August 14, 2010 accident investigation worksheet which
stated the cause was rain and lightening but there were no injury or sign of injuries on her hands.
In an August 14, 2010 patient summary and instructions from an emergency room, the chief
complaint was noted as being struck by lightening. Portions of the report including the diagnosis
and healthcare provider are illegible. The employing establishment controverted the claim. It
stated that appellant refused to identify the address where she was struck by lightening and that
an investigation of mailboxes did not show signs of a lightening strike.
In an August 23, 2010 letter, OWCP requested appellant provide additional factual and
medical evidence supportive of her claim, including medical evidence diagnosing a condition in
connection with the claimed injury and a medical explanation as to how the reported work
incident caused or aggravated a medical condition.
Appellant submitted an August 14, 2010 ambulance report and August 14, 2010 State of
Georgia -- Patient Care Report that noted she was struck by lightening while her right hand was
touching a metal mail box and that she was energized through right arm and immediately felt
tingling. Complaints of right arm pain/numbness was reported. Certificate of treatment and
return to work certificates from MedCenter Urgent Care and the urgent care centers of the
Medical Center of Central Georgia were provided.
In an August 14, 2010 report, Dr. Gloria Kayfan, an osteopath and emergency medicine
specialist, noted that appellant, a postal worker, was putting mail in a mailbox earlier in the day
when she believed she was struck in the right hand by lightening. Complaints of tingling and
numbness to the right hand were noted. A final diagnosis of possible electrocution was
provided. On August 16, 2010 Dr. Krishna Patel, Board-certified in family medicine, noted the
history of injury and diagnosed lightening accident/strike and right arm pain. On August 18,
2010 appellant presented to Dr. Timothy Longaker, Board-certified in family medicine, with
right arm/side pain, and chest pain when taking deep breath. He released appellant to work on
August 19, 2010. An August 18, 2010 x-ray report of the left ribs noted no fractures or
abnormalities. In an August 23, 2010 hospital discharge documents, Dr. Randal Sugerman, a
general surgeon, noted appellant had anxiety attacks since being struck by lightning on
August 14, 2010 and diagnosed anxiety.
In an August 24, 2010 report, Dr. J. Ray Grant, Board-certified in family medicine, noted
appellant had chest pain and right arm pain due to a possible lightening strike. He noted the
history of injury and that she went to the emergency room on the date of injury and received
x-rays and an electrocardiogram. Appellant was seen on three separate occasions for arm and
chest pain with anxiety. She initially attributed being anxious to her supervisor telling her that,
without physical evidence of injury from a lightening strike, workers’ compensation would not
cover the injury. Appellant later commented that she had been anxious from the date of the
injury. She expressed a desire to return to work and noted that she had not been put back on the
schedule. Dr. Grant noted that appellant was a substitute carrier who called in daily to check if
work was available. He diagnosed anxiety. Based on his review of the emergency rooms
reports, Dr. Grant opined that because there was no physical evidence of injury from a lightening
strike, the cause of appellant’s problems did not appear to be work related.

2

On August 30, 2010 Dr. Cornell Peters, Board-certified in family medicine, noted
appellant was struck by lightening on August 14, 2010. He diagnosed hand and wrist pain, neck
pain with radiculopathy and shoulder pain. X-rays of the right wrist and hand and right shoulder
were ordered. A return to work certificate was submitted together with referrals to other health
providers for blurred vision and a nerve conduction velocity (NCV) and electromyogram (EMG)
studies. In a September 13, 2010 report, Dr. Peters diagnosed right hand radiculopathy, nerve
pain and right hand weakness.
New NCV and EMG studies were recommended. In a
September 20, 2010 report, Dr. Peters diagnosed nerve pain with radiculopathy and mild neck
tenderness. In a September 22, 2010 report, he diagnosed nerve pain with right arm
radiculopathy which he opined was due to injury or sickness arising out of appellant’s
employment when lightning struck her. Dr. Peters advised that appellant was totally disabled
from August 30 to September 22, 2010.
Appellant submitted notes from The Emergency Center which indicated that she was seen
on September 2, 2010. A copy of a correction notation from a newspaper identified appellant as
being struck by lightening while delivering mail.
By decision dated September 29, 2010, OWCP denied appellant’s claim. It found that
while the lightning incident was established, the medical evidence was insufficient to support a
medical condition related to the August 14, 2010 incidents.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury2 was sustained in the performance of duty, as alleged,
and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a fact of injury has been established. A
fact of injury determination is based on two elements. 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. Second, the employee must submit sufficient evidence,
generally only in the form of medical evidence, to establish that the employment incident caused

2

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident,
or series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
3

E.K., Docket No. 09-1827, (issued April 21, 2010). See Steven S. Saleh, 55 ECAB 169 (2003); Elaine
Pendleton, 40 ECAB 1143 (1989).

3

a personal injury.4 An employee may establish that the employment incident occurred as alleged
but fail to show that his or her condition relates to the employment incident.5
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.6
ANALYSIS
OWCP accepted, and the record supports, that appellant experienced a lightning strike on
August 14, 2010. Several conditions were diagnosed in connection with the accepted
employment incident. The issue is whether appellant submitted sufficient medical evidence to
establish that the employment incident caused an injury. The Board finds that the medical
evidence is insufficient to establish that the lightning incident caused or aggravated a right hand
or other medical condition.
On August 24, 2010 Dr. Grant noted that appellant had chest pain and right arm pain due
to possible lightening strike and diagnosed an anxiety condition. Based on his review of the
emergency room records, he opined that the cause of appellant’s problems was not work related
as there was no physical evidence of a lightening strike.7 In relating the onset of the anxiety
condition, Dr. Grant additionally noted that appellant first attributed it to comments from her
supervisor regarding her claim and then to the day of her injury. This report, at best, provides
only equivocal support for an anxiety condition arising from the incident at work. Dr. Grant
provided more than one possible cause of appellant’s present condition.8 He did not provide
reasoning in which he explained to a reasonable degree of medical certainty how a diagnosed
anxiety condition resulted from the August 14, 2010 lightning strike. Dr. Grant’s report is
insufficient to establish that appellant sustained an anxiety condition.

4

In clear-cut traumatic injury claims where fact of injury is established and competent to cause the condition
described, such as a fall from a scaffold resulting in a broken arm, a physician’s affirmative statement is sufficient
and no rationalized opinion on causal relationship is needed. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.3d(2) (June 1995). In all other traumatic injury claims, a rationalized medical
opinion supporting causal relationship is required. Id. at Chapter 2.805.3d(3).
5

Id. See John J. Carlone, 41 ECAB 354 (1989); Shirley A. Temple, 48 ECAB 404 (1997).

6

See Gary J. Watling, 52 ECAB 278 (2001).

7

The Board notes that its precedent does not require a physical injury for an anxiety condition to be found
employment related.
8

D.D., 57 ECAB 734 (2006) (medical opinions that are speculative or equivocal in character are of diminished
probative value).

4

Dr. Peters diagnosed right hand/arm radiculopathy and mild neck tenderness. On
September 22, 2010 he opined that appellant’s nerve pain with right arm radiculopathy was due
to the lightening strike and that she was totally disabled from August 30 to September 22, 2010.
Dr. Peters failed to provide a rationalized opinion addressing how this condition was
employment related. This lack of rationale greatly reduces the probative value of his opinion to
the extent the condition affects appellant’s right upper extremity.9
Dr. Kayfan noted appellant’s complaints of tingling and numbness to the right hand on
August 14, 2010, the date of the incident. She did not offer any opinion regarding the cause of
appellant’s condition. To the extent that she supported causal relationship, Dr. Kayfan’s notation
of possible electrocution is speculative or equivocal in character. Dr. Kayfan offered no
explanation as to how the August 14, 2010 lightning strike caused or aggravated a diagnosed
condition. Dr. Sugerman diagnosed appellant with anxiety. While he noted that she had anxiety
attacks since being struck by lightening August 14, 2010, he failed to provide any explanation
how such a condition resulted from the accepted employment incident or her employment. The
reports from Drs. Patel and Longaker also did not explain how the August 14, 2010 lightning
strike caused or aggravated a diagnosed condition. Thus, these reports are not sufficient to meet
appellant’s burden of proof.
The diagnostic reports are insufficient to establish the claim as they fail to address the
medical issue of causal relationship.10 The documents from the urgent care centers and hospital
emergency rooms that are not from a physician are of no probative medical value in establishing
that the work incident caused or contributed to a medical condition.11
Appellant has not submitted sufficient rationalized medical evidence to support her claim
that she sustained an injury causally related to the August 14, 2010 employment incidents. She
has failed to meet her burden of proof. The Board has held that the mere fact that a condition
manifests itself during a period of employment does not raise an inference of causal relation.12
An award of compensation may not be based on surmise, conjecture, speculation or on the
employee’s own belief of causal relation.13 Causal relationships must be established by
rationalized medical opinion evidence. Appellant failed to submit such evidence and OWCP
properly denied her claim for compensation.
On appeal, appellant expressed her frustration regarding the processing of her claim. For
the reasons set forth, appellant’s claim was denied based on the finding that the medical evidence
of record was insufficient to establish causal relation. Appellant may submit new evidence or
9

Deborah L. Beatty, 54 ECAB 340 (2003).

10

See J.F., Docket No. 09-1061 (issued November 17, 2009) (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).
11

See 5 U.S.C. § 8101(2). This subsection defines the term “physician.” See also Charley V.B. Harley, 2 ECAB
208, 211 (1949) (where the Board held that medical opinion, in general, can only be given by a qualified physician).
12

Daniel O. Vasquez, 57 ECAB 559 (2006).

13

D.D., supra note 8.

5

argument with a written request for reconsideration to OWCP within one year of this merit
decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an injury on August 14, 2010, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the September 29, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 22, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.L., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Miami, FL, Employer
__________________________________________

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

Docket No. 17-1670
Issued: December 14, 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 July 28, 2017 appellant filed a timely appeal from a June 27, 2017 merit 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.3

1

Together with his appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R.
§ 501.5(b). By order dated February 1, 2018, the Board exercised its discretion and denied the request as appellant’s
arguments on appeal could be adequately addressed in a decision based on a review of the case as submitted on the
record. Order Denying Request for Oral Argument, Docket No. 17-1670 (issued February 1, 2018).
2

5 U.S.C. § 8101 et seq.

3
The Board notes that following the June 27, 2017 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for
the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish an injury on
April 30, 2017, in the performance of duty, as alleged.
FACTUAL HISTORY
On May 5, 2017 appellant, then a 63-year-old customs and border protection officer, filed
a traumatic injury claim (Form CA-1) alleging that, on April 30, 2017, he sustained a herniated
disc “while loading foreign mail parcels onto a conveyor belt for x-raying.” He stated that he bent
over to lift a box that was particularly heavy and felt a bad pain in his lower back, which worsened
over time. Appellant stopped work on May 4, 2017.
In an emergency room (ER) report dated May 3, 2017, Dr. Peter Aaron Oravitz, a Boardcertified emergency medicine specialist, diagnosed lumbar stenosis, osteoarthritis of the spine with
radiculopathy, lumbar region, and herniation of intervertebral disc of the lumbar spine.
In a note dated May 8, 2017, a healthcare provider released appellant to work, effective
May 15, 2017.4
In a May 11, 2017 work capacity evaluation (Form OWCP-5c), Dr. Alex Bertot, a Boardcertified orthopedic surgeon, diagnosed “severe lower back pain.” He indicated that treatment had
just been initiated, and a magnetic resonance imaging (MRI) scan was pending.
By development letter dated May 26, 2017, OWCP indicated that when appellant’s claim
was first received it appeared to be a minor injury that resulted in minimal or no lost time from
work and, based on these criteria and because the employing establishment did not controvert
continuation of pay or challenge the case, payment of a limited amount of medical expenses was
administratively approved. It stated that it had reopened the claim for consideration because it
received an indication that appellant had not returned to work in a full-time capacity. OWCP
requested additional evidence and afforded appellant 30 days to respond to its inquiries.
In response, appellant submitted a May 25, 2017 note from Trevor Kolski, a physician
assistant, who diagnosed lumbar herniated nucleus pulposus (HNP)/radiculitis.
A May 17, 2017 MRI scan of the lumbar spine revealed a central disc herniation and
annular disc with caudally extruded disc at L2-3 in moderate spinal canal stenosis of 5 millimeter
and traversing nerve root impingement.
A computerized tomography (CT) scan of the lumbar spine dated May 3, 2017
demonstrated multifactorial multilevel lumbar degenerative disc disease and facet arthropathy
contributing to varying degrees of central canal and bi-foraminal stenosis.
In an ER report dated May 3, 2017, Dr. Oravitz noted that appellant presented
“complaining of low back pain with intermittent bilateral loss of strength to the lower extremity
while walking that caused him to fall.” He found that appellant’s examination was consistent with

4

The signature of the healthcare provider is illegible.

2

some pain in the lower lumbar region. Appellant was hemodynamically stable and there was no
neurological deficit noted.
In a June 6, 2017 narrative statement, appellant stated that he informed his supervisor
directly after he tried to lift a heavier than usual box and injured his back. She asked whether he
had any previous back problems and he responded no. Appellant stated that he left early that day,
took a couple of days off work, and then went to the ER on May 3, 2017.
On May 11, 2017 Mr. Kolski found that appellant presented with progressive complaints
of lower back pain radiating to both the right and left posterior thigh area. He diagnosed lumbago
and indicated that appellant noted the onset of this pain beginning with a work-related activity on
May 2, 2017. Mr. Kolski reported that appellant went to the ER the following day due to the
significant increase in pain and numbness in the legs. Appellant also noted doing some heavy
lifting at work.
In a May 25, 2017 report, Mr. Kolski reiterated his diagnosis of lumbago and indicated that
appellant noted his symptoms started at the end of April with an injury date of April 30, 2017 when
he was lifting heavy boxes at work. He opined that appellant had significant radicular issues and
was “concerned for the extent of this disc herniation and nerve impingement that may be
occurring.” Mr. Kolski advised that appellant was totally disabled from work.
By decision dated June 27, 2017, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that the injury and/or events occurred on April 30,
2017, as alleged.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury5 was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether fact of injury has been established. A
fact of injury determination is based on two elements. First, the employee must submit sufficient
evidence to establish that he or she actually experienced the employment incident at the time and
place, and in the manner alleged. Second, the employee must submit sufficient evidence, generally
only in the form of medical evidence, to establish that the employment incident caused a personal

5

OWCP regulations define a traumatic injury as a condition of the body caused by a specific event or incident, or
series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the body
affected. 20 C.F.R. § 10.5(ee).
6

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

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injury. An employee may establish that the employment incident occurred as alleged, but fail to
show that his or her condition relates to the employment incident.7
An employee has the burden of proof to establish the occurrence of an injury by a
preponderance of the reliable, probative, and substantial evidence. An injury does not have to be
confirmed by eyewitnesses in order to establish the fact that an employee sustained an injury in
the performance of duty, as alleged, but the employee’s statements must be consistent with
surrounding facts and circumstances and his or her subsequent course of action.8 An employee
has not met his or her burden of proof to establish the occurrence of an injury when there are such
inconsistencies in the evidence as to cast serious doubt upon the validity of the claim. Such
circumstances as late notification of injury, lack of confirmation of injury, continuing to work
without apparent difficulty following the alleged injury, and failure to obtain medical treatment
may, if otherwise unexplained, cast substantial doubt on an employee’s statement in determining
whether a prima facie case has been established. The employee has not met his or her burden of
proof when there are such inconsistencies in the evidence as to cast serious doubt on the validity
of the claim.9 An employee’s statement alleging that an injury occurred at a given time and in a
given manner is of great probative value and will stand unless refuted by strong or persuasive
evidence.10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish an injury on
April 30, 2017, in the performance of duty, as alleged.11
On his claim form, appellant alleged that on April 30, 2017 he was loading foreign mail
parcels onto a conveyor belt for x-raying when he bent over to lift a box that was particularly heavy
and sustained a herniated disc. In his narrative statement, appellant stated that he left work early
on April 30, 2017, took a couple of days off work, and then went to the ER on May 3, 2017.
In his May 3, 2017 report, Dr. Oravitz noted that appellant presented to the ER
“complaining of low back pain with intermittent bilateral loss of strength to the lower extremity
while walking that caused him to fall.” On May 11, 2017 Mr. Kolski diagnosed lumbago and
stated that appellant “note[d] the onset of this pain started with a work-related activity on [May 2,
2017].” He reported that appellant went to the ER the following day due to the significant increase
in pain and numbness in the legs. In his May 25, 2017 report, Mr. Kolski reiterated his diagnosis
7

Id.

8

See Gene A. McCracken, Docket No. 93-2227 (issued March 9, 1995).

9

See R.E., Docket No. 17-0547 (issued November 13, 2018); Betty J. Smith, 54 ECAB 174 (2002).

10

See D.B., 58 ECAB 529 (2007).

11

See A.B., Docket No. 14-522 (issued November 9, 2015) (fact of incident not established where there was
substantial inconsistency between the employee’s account of events and the accounts of coworkers and supervisor
with regard to the time and place of his alleged injury); V.J., Docket No. 13-1460 (issued January 7, 2014) (claimed
incident not established where employing establishment investigation revealed inconsistencies between the
employee’s account of the claimed incident and those of coworkers); J.W., Docket No. 12-926 (issued October 1,
2012) (claimed incident not established where there were inconsistencies between the employee’s statements and
evidence at the scene of the alleged incident).

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of lumbago and asserted that appellant noted his symptoms started at the end of April with an
injury date of April 30, 2017 when he was lifting some heavy boxes at work. These inconsistencies
cast serious doubt on the validity of appellant’s claim. The evidence of record fails to establish
specific details of the date, time, and location of the incident in question. For these reasons, the
Board finds that the evidence of record is insufficient to establish that he was injured at work on
April 30, 2017 in the performance of duty, as alleged.
Since appellant failed to establish the first component of fact of injury, it is unnecessary to
discuss whether he submitted medical evidence sufficient to establish that a medical condition
existed and whether the condition was causally related to the employment exposure alleged.12
Thus, the Board finds that appellant has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an injury on
April 30, 2017, in the performance of duty, as alleged.

12

See Dennis M. Mascarenas, 49 ECAB 215, 218 (1997). As appellant failed to establish that the claimed event
occurred as alleged, it is not necessary to discuss the probative value of medical evidence. Id.

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ORDER
IT IS HEREBY ORDERED THAT the June 27, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 14, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Union, NJ, Employer
__________________________________________

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Appearances:
James Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-1163
Issued: January 4, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 24, 2010 appellant filed a timely appeal from a February 3, 2010 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 has more than a 12 percent left arm and an 8 percent right
arm permanent impairment, for which she received schedule awards.
FACTUAL HISTORY
The Office accepted that appellant sustained bilateral carpal tunnel syndrome, bilateral
lateral epicondylitis and a left shoulder condition causally related to her federal employment.1
Dr. F. Kennedy Gordon, an attending internist, provided treatment reports regarding her
1

The Office described the accepted left shoulder condition as “other affections of shoulder region, not elsewhere
classified.”

condition.2 In a report dated October 10, 2007, he diagnosed bilateral carpal tunnel syndrome
and indicated surgical intervention was not required at that time.
In a report dated July 21, 2008, Dr. Arthur Becan, an orthopedic surgeon, opined that
appellant had a 48 percent right arm impairment and a 40 percent left arm impairment under the
American Medical Association, Guides to the Evaluation of Permanent Impairment (5th edition).
The Office referred the case to an Office medical adviser for a review of the extent of permanent
impairment to the left arm. In a February 4, 2009 report, the Office medical adviser noted that
Dr. Becan’s findings were in marked contrast to Dr. Gordon, who provided a complete
evaluation in July 2007 where the neurological examination was normal. He suggested a referee
examination to resolve the conflict.
By letter dated July 13, 2009, the Office advised appellant that there was a conflict
between Dr. David Weiss and the Office medical adviser.3 Appellant was referred to
Dr. Richard Lebovicz, a Board-certified orthopedic surgeon, as a referee examiner. In a report
dated November 18, 2009, Dr. Lebovicz provided a history and results on examination. With
respect to permanent impairment, he identified Table 15-23 of the sixth edition of the A.M.A.,
Guides. Dr. Lebovicz identified grade modifier 1 for test findings and grade modifier 2 for
history and physical findings, resulting in an overall grade modifier 2. The default value is a five
percent arm impairment. Dr. Lebovicz found a six percent arm impairment for carpal tunnel
syndrome based on a functional scale (QuickDASH) of 74.25. As to lateral epicondylitis, he
referred to Table 15-4, which provides a range from zero to two percent for a Class of Diagnosis
(CDX) 1 impairment. The grade modifier for functional history (GMFH) was two, for physical
examination (GMPE) also two and for clinical studies (GMCS) a zero. Applying the adjustment
formula of (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX), the net adjustment was one, for
a two percent impairment. Dr. Lebovicz also provided calculations for left shoulder
impingement under Table 15-5, with a default value of a three percent impairment. With the
same method noted for Table 15-4, he found a net adjustment of one resulting in a four percent
left arm impairment. Dr. Lebovicz, therefore, concluded that combining the values of 6 and 2 for
the right arm was an 8 percent impairment and 6, 2 and 4 for the left arm resulted in a 12 percent
left arm impairment. He advised that the date of maximum medical improvement was
July 21, 2008.
In a January 10, 2010 report, an Office medical adviser reviewed the medical evidence
and found that Dr. Lebovicz properly applied the A.M.A., Guides. The date of maximum
medical improvement was July 21, 2008.
By decision dated February 3, 2010, the Office issued schedule awards for a 12 percent
left arm permanent impairment and an 8 percent right arm permanent impairment. The period of
the awards was 62.40 weeks from July 21, 2008.
2

Under the Office File No. xxxxxx094, an April 22, 2003 occupational claim accepted for right lateral
epicondylitis, which is designated as a master file. There is a July 14, 2007 report from Dr. Gordon with a diagnosis
of bilateral carpal tunnel syndrome, bilateral elbow epicondylitis and mild right de Quervain’s tenosynovitis.
Dr. Gordon reported positive Tinel’s and Phalen’s signs, with the “rest of the neurovascular system intact.”
3

The Board notes that this was a typographical error as Dr. Becan reported on appellant’s impairment.

2

LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act provides that, if there is
permanent disability involving the loss or loss of use of a member or function of the body, the
claimant is entitled to a schedule award for the permanent impairment of the scheduled member
or function.4 Neither the Act nor the regulations specify the manner in which the percentage of
impairment for a schedule award shall be determined. For consistent results and to ensure equal
justice for all claimants the Office has adopted the American Medical Association, Guides to the
Evaluation of Permanent Impairment as the uniform standard applicable to all claimants.5 For
schedule awards after May 1, 2009, the impairment is evaluated under the sixth edition.6
ANALYSIS
The schedule award in this case was based on the November 18, 2009 report from
Dr. Lebovicz. The Board notes that the Office found a conflict in the medical opinion as to the
extent of permanent impairment under 5 U.S.C. § 8123(a) and the referral was made as a referee
examiner.7 As to the degree of employment-related permanent impairment, there was no conflict
in the record. Dr. Becan provided an opinion on the issue, but the Office medical adviser did not
provide any contrary opinion. The Office medical adviser was asked only to review the extent of
permanent impairment to the left arm and the calculations he provided appeared to find the same
40 percent impairment as found by Dr. Becan. According to the medical adviser, there was a
conflict between Dr. Becan and Dr. Gordon as to the physical findings, but a conflict under 5
U.S.C. § 8123(a) cannot be based on two attending physicians.8
The Board finds, therefore, that the referral to Dr. Lebovicz was as a second opinion
physician. Even though the report of Dr. Lebovicz is not entitled to the special weight afforded
to the opinion of referee specialist resolving a conflict of medical opinion, his report can still be
considered for its own intrinsic value and can still constitute the weight of the medical evidence.9
In this case, Dr. Lebovicz provided a rationalized medical opinion as to permanent impairment
under the A.M.A., Guides. For carpal tunnel syndrome, he identified Table 15-23, which
provides impairments for entrapment and compression neuropathy. The table requires
identifying grade modifiers for test findings, history, and physical findings and then averaging
4

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
5

A. George Lampo, 45 ECAB 441 (1994).

6

FECA Bulletin No. 09-03 (March 15, 2009).

7

5 U.S.C. § 8123(a). This section provides if there is a disagreement between a physician making the
examination for the United States and a physician of the employee, a third physician shall be appointed to make an
examination.
8

See C.M., 61 ECAB ___ (Docket No. 09-1268, issued January 22, 2010); Roger W. Griffith, 57 ECAB 491
(2000); Noah Oaten, 50 ECAB 283 (1999).
9

Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

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the results for a final rating category.10 Dr. Lebovicz used the relevant findings to establish a
grade modifier 2 rating, which has a default of a five percent arm impairment. The default may
be modified up or down by one based on the functional scale and Dr. Lebovicz found the proper
impairment was six percent for each arm based on carpal tunnel.11 For elbow epicondylitis,
Dr. Lebovicz referred to Table 15-4, which specifically addresses lateral epicondylitis and
provides a default arm impairment of one percent for Class (CDX) 1.12 This may be adjusted
using the established formula of (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).13 In this
case, Dr. Lebovicz identified grade modifiers of 2 (moderate problems) for functional history
and physical examination, and 0 for clinical studies. Applying the formula resulted in 1 + 1 + (1), or a net adjustment of + 1, or a 2 percent arm impairment. For the left shoulder, Table 15-5
provides a default of three percent for impingement syndrome with “residual loss, functional
with normal motion.”14 The net adjustment uses the same formula as noted for epicondylitis and
Dr. Lebovicz added one for a four percent impairment.
Dr. Lebovicz provided a rationalized opinion that appellant had a 12 percent left arm
impairment (6 for carpal tunnel, 2 for lateral epicondylitis and 4 for left shoulder impingement)
and an 8 percent right arm impairment (6 for carpal tunnel and 2 for lateral epicondylitis) under
the A.M.A., Guides. The Office medical adviser concurred in his January 10, 2010 report and no
contrary evidence was submitted. The Board finds that Dr. Lebovicz represented the weight of
the medical evidence.
On appeal, appellant argues that, since the date of maximum medical improvement was
July 21, 2008, the Office should have used the fifth edition of the A.M.A., Guides. The proper
edition of the A.M.A., Guides to be applied is the date of the Office decision, not the date of
maximum medical improvement. For any Office decision issued after May 1, 2009, the sixth
edition of the A.M.A., Guides is to be used.15 The decision in this case was dated November 18,
2009 and was properly based on the sixth edition of the A.M.A., Guides. The date of maximum
medical improvement is the date the period covered by a schedule award commences.16 The
period of the award is determined by the compensation schedule at 5 U.S.C. § 8107(c). For
complete loss of use of the arm, the maximum number of weeks of compensation is 312 weeks.
Since appellant’s bilateral arm impairment totaled 20 percent, she is entitled to 20 percent of 312 or
62.40 weeks of compensation commencing July 21, 2008.

10

A.M.A., Guides 449, Table 15-23.

11

Id.

12

Id. at 398, Table 15-4.

13

Id. at 411.

14

Id. at 402, Table 15-5.

15

See W.D., 61 ECAB ___ (Docket No. 10-274, issued September 3, 2010).

16

Albert Valverde, 36 ECAB 233, 237 (1984).

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CONCLUSION
The Board finds the evidence does not establish that appellant has more than a 12 percent
left arm permanent impairment and an 8 percent right arm permanent impairment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 3, 2010 is affirmed.
Issued: January 4, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
DEPARTMENT OF THE NAVY, TRIDENT
REFIT FACILITY, Kings Bay, GA, Employer
__________________________________________

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

Docket No. 08-1652
Issued: December 9, 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 May 23, 2008 appellant timely appealed the May 8, 2008 merit decision of the Office
of Workers’ Compensation Programs, which suspended his compensation benefits. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether the Office properly suspended appellant’s wage-loss compensation
effective May 11, 2008.
FACTUAL HISTORY
Appellant, a 57-year-old former rigger, has an accepted claim for cervical sprain and
aggravation of degenerative disc disease of the cervical spine, which arose on
November 17, 1999. The Office placed him on the periodic compensation rolls effective
January 2, 2000. On July 25, 2005 appellant returned to work as a modified materials handler.

The Office subsequently adjusted his wage-loss compensation to reflect his actual earnings as a
modified materials handler.1
On April 3, 2008 the Office sent appellant an income and employment disclosure
(EN1032) form. The accompanying instructions advised him to “completely answer all
questions and return [the] statement within 30 days of the date of [the] letter.” The Office
advised appellant that, if he failed to comply, his benefits would be suspended in accordance
with 20 C.F.R. § 10.528. The record does not establish that appellant responded to the requested
information within the allotted time frame.
In a decision dated May 8, 2008, the Office suspended appellant’s wage-loss
compensation effective May 11, 2008 because of his failure to respond to the April 3, 2008
request to submit a Form EN1032. Appellant was advised that his compensation benefits would
be restored retroactively to the date of suspension once he submitted the requested information.
LEGAL PRECEDENT
The Office periodically requires each employee who is receiving compensation benefits
to complete an affidavit as to any work, or activity indicating an ability to work, which the
employee has performed for the prior 15 months.2 If an employee who is required to file such a
report fails to do so within 30 days of the date of the request, his or her right to compensation for
wage loss under 5 U.S.C. §§ 8105 or 8106 is suspended until the Office receives the requested
report.3 Upon receipt of the report, the Office will reinstate compensation retroactive to the date
of suspension if the employee remains entitled to compensation.4
ANALYSIS
On April 3, 2008 the Office advised appellant that he had 30 days within which to submit
material information pertaining to his receipt of compensation benefits on an EN1032 form. It
mailed the request to appellant’s address of record, which was the same address where appellant
received similar requests in 2006 and 2007. Appellant responded to both of those prior requests
in a timely manner. In its April 3, 2008 correspondence, the Office properly advised him of the
consequences for failing to timely submit Form EN1032. Appellant did not respond.
Accordingly, the Office properly suspended his wage-loss compensation effective
May 11, 2008.5

1

Appellant’s four-week compensation payment was reduced to $182.00 effective August 7, 2005.

2

20 C.F.R. § 10.528 (2008).

3

Id.

4

Id.

5

20 C.F.R. § 10.528 (2008); see Lucille A. Pettaway, 55 ECAB 228, 231 (2004).

2

CONCLUSION
The Board finds that the Office properly suspended appellant’s wage-loss compensation
effective May 11, 2008.
ORDER
IT IS HEREBY ORDERED THAT the May 8, 2008 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 9, 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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