United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.S., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL SHIPYARD, Portsmouth, VA, Employer
__________________________________________

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Appearances:
Daniel M. Goodkin, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1461
Issued: April 30, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 25, 2019 appellant, through counsel, filed a timely appeal from a June 12, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3

1

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

5 U.S.C. § 8101 et seq.

3
The Board notes that appellant has another appeal pending before the Board in Docket No. 20-0216. That appeal
is not addressed in this decision and will proceed under its own docket number.

ISSUE
The issue is whether appellant has met his burden of proof to establish an emotional
condition as a consequence of his accepted May 26, 2015 employment-related injury.
FACTUAL HISTORY
This case has previously been before the Board. 4 The facts and circumstances as set forth
in the prior decision of the Board are incorporated herein by reference. The relevant facts are as
follows.
OWCP accepted that, on May 26, 2015, appellant, then a 58-year-old rigger, sustained a
sprain of the left wrist carpal joint, left hip, left thigh, left ankle, left foot, left sacroiliac ligament,
and a contusion of the left chest wall when he stepped and fell into an uncovered hole aboard a
ship while in the performance of duty. Appellant stopped work on the date of injury and returned
to full-time light-duty work on March 22, 2016.
In a telephone call on August 17, 2016, appellant requested that OWCP expand the
acceptance of his claim to include a psychiatric condition. OWCP advised him to submit medical
evidence to establish a consequential condition.
OWCP received progress notes dated July 13 and August 23, 2016 and a letter dated
August 10, 2016 from Dr. Patrick D. Thrasher, an attending Board-certified psychiatrist.
Dr. Thrasher noted appellant’s history of injury and emotional symptoms that developed since his
injury, which included being signiﬁcantly anxious and depressed, having ﬂashbacks when he saw
ships and submarines, and having nightmares and dreams about falling. He indicated that appellant
could perform light-duty work away from piers and ships despite his post-traumatic stress disorder
(PTSD) and depression symptoms. However, Dr. Thrasher indicated that appellant experienced
increased anxiety and a deteriorated mood when his request to continue to work away from piers
and ships was denied by his supervisor and he was assigned to work on a guard shack on a pier.
Appellant continued to suffer from these symptoms when his supervisor gave him a hard hat to
wear on the pier that unbeknownst to him read “Ole Crip.” People began to call him “Ole Crip”
or “Crip” and, when he inquired about the reason, they told him what was written on the hard hat.
Appellant was extremely humiliated and embarrassed and stopped work for one week.
Dr. Thrasher noted appellant’s level of stress outside of work and reported findings on
psychological and physical examination. He diagnosed a single episode of severe major
depressive disorder and chronic PTSD and noted that appellant had no prior history of psychiatric
illness or treatment. Dr. Thrasher opined that the diagnosed conditions were consequential injuries
causally related to appellant’s accepted May 26, 2015 employment injury. He further opined that
appellant’s conditions were exacerbated by being humiliated by his supervisor and by his
supervisor’s attitude towards his physical injuries.
In a December 14, 2016 development letter, OWCP informed appellant that it had received
his “recurrence claim” for major depressive disorder, single-episode, severe, and PTSD, and
disability as a consequence of his accepted work-related conditions. It noted that according to its
4

Docket No. 18-0134 (issued July 23, 2018).

2

records he had returned to light-duty work on March 22, 2016. OWCP included a questionnaire
for appellant’s completion. It afforded him 30 days to submit the necessary evidence.
OWCP, in a separate December 14, 2016 letter, informed appellant that the prior
acceptance of his claim for sprain of the left wrist carpal joint was expanded to include sprain of
the carpal joint of the right wrist.5
In a January 13, 2017 letter, Dr. Thrasher opined that appellant’s current chronic PTSD
and severe major depressive episode were consequential conditions causally related to the accepted
diagnoses stemming from his May 26, 2015 work-related injury and hard hat incident. He noted
that appellant’s depressed mood had essentially resolved and his PTSD symptoms were minimal
when not exposed to triggers that reminded him of his injury. Dr. Thrasher reiterated his prior
findings that appellant experienced increased PTSD symptoms following his new work assignment
on the pier around ships and on the docks. Dr. Thrasher indicated that, although appellant’s anxiety
at work had not fully resolved, he could function reasonably well as long as he did not have to
work in the vicinity of ships on the docks. However, he remained apprehensive and vulnerable to
PTSD ﬂashbacks and being reminded of the humiliation of being called “Ole Crip.” Dr. Thrasher
also indicated that appellant continued to use leave to avoid work. He restricted him from working
onboard ships or on the docks where he was constantly exposed to ships or submarines that
reminded him of his fall and resultant injuries. Dr. Thrasher maintained that had appellant not had
his employment injury he would not have had ﬂashbacks and nightmares related to the accident.
He also maintained that appellant was asymptomatic prior to his May 26, 2015 employment injury,
noting that a prior episode of military service-related PTSD 30 to 40 years ago, and emotional
distress following his divorce in approximately 1985 had all fully resolved. Dr. Thrasher indicated
that appellant had not received treatment for either problem for decades prior to his May 26, 2015
employment injury. He advised that this new employment injury precipitated new episodes of
PTSD and depression.
Dr. Thrasher continued to diagnose submitted single severe episode of major depressive
disorder and chronic PTSD in his July 13 through December 21, 2016 progress notes.
By decision dated January 19, 2017, OWCP found the evidence of record insufficient to
establish that appellant sustained “a recurrence of disability” casually related to his accepted
May 26, 2015 work-related conditions. It noted that the medical evidence related his diagnosed
emotional conditions to “new work-related exposures” and he had not responded to the
December 14, 2016 factual questionnaire, and therefore, had not provided a detailed description
as to how his conditions developed.
On January 20, 2017 appellant responded to OWCP’s December 14, 2016 development
questionnaire and provided additional information regarding the emotional symptoms he
5

By decision dated December 15, 2016, OWCP granted appellant a schedule award for one percent permanent
impairment of the right upper extremity and one percent permanent impairment of the left lower extremity. By
decision dated May 17, 2018, it granted him an additional schedule award for 9 percent permanent impairment of the
right upper extremity and 12 percent permanent impairment of the left lower extremity. OWCP, in a June 7, 2019
decision, granted appellant a schedule award for an additional 5 percent permanent impairment of the right upper
extremity, totaling 15 percent permanent impairment of the right upper extremity and 13 percent permanent
impairment of the left lower extremity.

3

developed following his May 26, 2015 employment injury, and his prior history of depression and
work duties and restrictions. He noted that initially in February 2016 he returned to light-duty
work in a tool room, but later in the summer he was assigned to work at a guard shack on a pier
where he worked until he was restricted from doing so by Dr. Thrasher. Since approximately,
July 2016 appellant had been assigned to light-duty work in the tool room.
On February 8, 2017 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review regarding the January 19, 2017
decision.
In additional progress notes dated April 26 and June 7, 2017, Dr. Thrasher reiterated
appellant’s reaction to the work incidents set forth in his prior reports. He also reiterated his
diagnoses of recurrent episode of unspecified major depressive disorder and chronic PTSD.
Dr. Thrasher noted that appellant continued to report symptoms of PTSD related to being on the
docks around the ships at the employing establishment, but that medication allowed him to use
coping skills to calm his anxiety.
An OWCP hearing representative, by decision dated September 28, 2017, treated the
“recurrence claim” as a consequential injury claim based on counsel’s assertion during the July 28,
2017 hearing that appellant was claiming a consequential emotional condition causally related to
the accepted May 26, 2015 employment injury. However, he affirmed the January 19, 2017
decision finding that the medical evidence of record was insufficient to establish that appellant
sustained an emotional condition as a consequence of his accepted May 26, 2016 employment
injuries.
On October 23, 2017 appellant, through counsel, appealed to the Board. By decision dated
July 23, 2018, the Board affirmed the September 28, 2017 decision.6 The Board found that
Dr. Thrasher’s opinion on causal relationship was of diminished probative value as he did not
sufficiently explain how appellant’s diagnosed chronic PTSD and recurrent episode of severe
major depressive disorder were causally related to his accepted May 26, 2015 employment injuries.
The Board noted that, the need for medical reasoning or rationale was particularly important, given
that the medical evidence of record indicated that appellant had preexisting nonwork-related
emotional conditions. Additionally, the Board noted that rationale was needed as Dr. Thrasher
had attributed appellant’s conditions to a new intervening factor, for which appellant could file a
new occupational disease claim.
OWCP subsequently received additional reports dated October 4, 2017 and February 7,
April 11, June 13, and August 8, 2018 from Dr. Thrasher. Dr. Thrasher continued to diagnose
recurrent episodes of unspecified major depressive disorder and chronic PTSD. He noted that
appellant was more depressed and having stomach pain. Dr. Thrasher noted his stressors outside
of his work environment and at work which created a hostile environment. He discussed findings
on examination and advised that appellant’s mood was stable despite ongoing stressors at work

6

Supra note 3.

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and reduced use of psychotropic medications. Dr. Thrasher noted that appellant stopped work in
October 2017 and retired on March 31, 2018.
On March 20, 2019 appellant, through counsel, requested reconsideration of the denial of
his consequential injury claim and submitted a March 12, 2019 letter from Dr. Thrasher.
Dr. Thrasher continued to opine that appellant’s diagnosed major depressive disorder and chronic
PTSD were causally related to his May 26, 2015 employment injury. He noted that to his
knowledge his preexisting depression and PTSD related to his military service had not caused him
significant problems in many years or affected his ability to work at the employing establishment.
Dr. Thrasher further maintained that appellant never fully physically recovered from his significant
May 26, 2015 work-related injuries as he was unable to physically resume the full responsibilit ies
of his date-of-injury position. He also maintained that his employment-related fall and injuries
met the diagnostic criteria set forth in the fifth edition of the Diagnostic and Statistical Manual
(DSM-V) for PTSD.
Dr. Thrasher indicated that under the A-1 DSM-V criteria the experience of fear associated
with a threatened or actual injury caused toxic neurochemicals to be released in the brain that
changed the brain’s functioning. These changes could be adaptive in the presence of ongoing
external stress and threat where an individual was at risk of ongoing injury such as, in a warzone.
It caused the brain to become hypersensitized to potential threat so that the person would become
hypervigilant, always watching for potential threat, and leading to an avoidance of potential threats
to reduce the risk of having another traumatic experience. This caused a reduction in pleasure
neurotransmitters and an increase in adrenaline which could be released at the suggestion or
reminder of a possible danger even if the danger was not present. In an individual whose injuries
resulted in chronic pain or impairment, just going through day-to-day activities could result in
having pain that refreshed the memory and fears of the traumatic event. The brain plays back the
memories of the dangerous situation, reinforcing the fear. PTSD can develop abruptly or slowly
over time as problems linger and the dangerous scenario is replayed frequently and constantly over
many months, sometimes over many years. Dr. Thrasher noted that under the B-1 and B-2 DSM-V
criteria, appellant had recurrent involuntary distressing memories and recurrent dreams about his
fall that were upsetting. Under the C-1 and C-2 DSM-V criteria, he had avoidance behaviors. To
avoid the feelings of overstimulation, appellant tried to avoid going close to or even seeing ships
at the docks as he traveled to and from his light-duty positions. He took a path to his job that
offered the least exposure to the docks and views of ships. Appellant also tried to avoid talking
with people about his injuries. He reduced his socialization with coworkers who might want to
talk about his injury or their work on board ships. Under the D-5, D-6, and D-7 DSM-V criteria,
appellant had negative alterations in cognitions and mood. After the traumatic event, he
experienced a markedly diminished interest in participating in his usual social activities. Appellant
felt more distant from his family and friends. He had difficulty experiencing happiness and
satisfaction. Under the E-4, E-5, and E-6 DSM-V criteria, appellant had an alteration in his arousal
and reactivity. After his fall, he was more irritable toward his wife, experienced problems with
concentration, and had difficulty sleeping. Under the F DSM-V criteria, appellant’s symptoms
persisted for many months prior to and after coming under Dr. Thrasher’s care. He experienced
clinically significant distress when he could not avoid situations which increased his anxiety at
work and impaired his ability to function socially, as he withdrew from friends and family activities

5

which met the DSM-V criteria G. Under DSM-V criteria H there was no evidence that substance
abuse, medication, or other medical condition contributed to appellant’s symptoms.
Dr. Thrasher advised that appellant’s frustration with his residual physical limitations , in
addition to his PTSD, depleted his pleasure neurotransmitters which contributed to the
development of his major depression and PTSD. Appellant was able to function reasonably well
within his physical limitations and coped with his PTSD and depression reasonably well when he
was assigned to duties away from the docks. His assignment to the dock exacerbated his PTSD
symptoms as he became more anxious and apprehensive each day he went on the docks.
Appellant’s view of ships triggered memories of his fall with fearful panicky reactions.
Dr. Thrasher indicated that these symptoms of PTSD and depression were present before
appellant’s transfer to duty on the docks. He noted that being present on the docks triggered
anxiety and an increase in adrenalin release which exacerbated his PTSD. Dr. Thrasher indicated
that while the unsupportive reaction of appellant’s supervisor to appellant’s concern about being
assigned to the docks was upsetting, the increased exposure to the ships caused the exacerbation
of his PTSD, which caused further depletion of his pleasure neurotransmitters and worsened his
depressed mood. He maintained that while the “Ole Crip” hard hat experience humiliated and
angered appellant, it did not involve fear that would be necessary to precipitate or exacerbate
PTSD. Dr. Thrasher advised that his PTSD symptoms were present, but manageable until he was
forced to resume work on the docks. While appellant’s depression also worsened after assignment
to the dock, the “Ole Crip” experience may have exacerbated his preexisting depression.
Dr. Thrasher concluded that being on the docks was sufﬁcient in and of itself to increase his
depressive symptoms and it was not possible to quantify how much of his increased depression
was from being on the docks or the “Ole Crip” event. He added that his opinion was based on a
“reasonable degree of medical probability.”
OWCP, by decision dated June 12, 2019, denied modification of the decision denying
appellant’s consequential injury claim.
LEGAL PRECEDENT
When an injury arises in the course of employment, every natural consequence that flows
from that injury likewise arises out of the employment, unless it is the result of an independent
intervening cause attributable to the claimant’s own intentional misconduct.7 Thus, a subsequent
injury, be it an aggravation of the original injury or a new and distinct injury, is compensable if it
is the direct and natural result of a compensable primary injury. 8 A claimant bears the burden of
proof to establish a claim for a consequential injury. As part of this burden, the claimant must
present rationalized medical opinion evidence. 9

7

Arthur Larson & Lex K. Larson, The Law of Workers’ Compensation § 3.05 (2014); see Charles W. Downey, 54
ECAB 421 (2003).
8

Susanne W. Underwood (Randall L. Underwood), 53 ECAB 139, 141 n.7 (2001).

9

Charles W. Downey, supra note 7.

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Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant. 10
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested arbiter.
While it is appellant’s burden of proof to establish the claim, OWCP shares responsibility in the
development of the evidence. 11 It has the obligation to see that justice is done. 12
ANALYSIS
The Board finds that the case is not in posture for decision.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s September 28, 2017 decision. The Board
considered that evidence in its July 23, 2018 decision and found that it was insufficient to establish
his consequential injury claim. Findings made in prior Board decisions are res judicata absent any
further review by OWCP under section 8128 of FECA.13
On March 20, 2019 counsel requested reconsideration and submitted a March 12, 2019
report from Dr. Thrasher. Dr. Thrasher diagnosed major depressive disorder and chronic PTSD
as a consequence of the accepted May 26, 2015 employment injury. He explained that appellant’s
preexisting nonwork-related depression and PTSD had not caused him any significant problems
in many years and did not affect his ability to work at the employing establishment. Dr. Thrasher
further explained that his employment-related fall and injuries met the DSM-V criteria for PTSD.
Dr. Thrasher advised that his PTSD symptoms were present, but manageable until he was forced
to resume work on the docks. He also explained that although appellant’s assignment to the dock
exacerbated his PTSD symptoms, he had such symptoms and depression prior to his assignment.
Additionally, Dr. Thrasher reasoned that being on the docks was sufﬁcient in and of itself to
increase his depressive symptoms and it was not possible to quantify how much of his increased
depression was from being on the docks or the “Ole Crip” event.
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden of proof to establish entitlement to compensation,
OWCP shares responsibility in the development of the evidence to see that justice is done.14 The
10

See I.J., 59 ECAB 408 (2008); Donna Faye Cardwell, 41 ECAB 730 (1990).

11

C.W., Docket No. 19-0231 (issued July 15, 2019); D.G., Docket No. 15-0702 (issued August 27, 2015);
Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J. Cantrell, 34 ECAB 1233, 1237 (1983).
12

Id.

13

See B.R., Docket No. 17-0294 (issued May 11, 2018).

14

See supra note 10; John J. Carlone, 41 ECAB 354 (1989); E.J., Docket No. 09-1481 (issued February 19, 2010).

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Board finds that Dr. Thrasher’s opinion on causal relationship is supportive of the claim, based on
an accurate history of injury, and unequivocal. Although Dr. Thrasher’s opinion is insufficient ly
rationalized to meet appellant’s burden of proof, it raises an undisputed inference of causal
relationship sufficient to require further development by OWCP.15 Accordingly, the Board will
remand the case to OWCP for further development of the medical evidence. On remand, OWCP
shall create and provide a statement of accepted facts and the medical evidence of record to a
physician in the appropriate field of medicine. The chosen physician shall provide a rationalized
opinion as to whether appellant sustained an emotional condition as a consequence of the accepted
May 26, 2015 employment injury. Following this and any other further development as deemed
necessary, OWCP shall issue a de novo decision on appellant’s claim.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 12, 2019 decision of the Office of Workers’
Compensation Programs is set and aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: April 30, 2020
Washington, DC
Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board
Christopher J. Godfrey, Deputy Chief Judge
Employees’ Compensation Appeals Board
Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

15

K.D., Docket Nos. 17-1894 and 18-1237 (issued August 6, 2018).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Seattle, WA, Employer
__________________________________________

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

Docket No. 15-148
Issued: February 24, 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 October 20, 2014 appellant filed a timely appeal from a June 25, 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 to review the merits of this case.
ISSUE
The issue is whether OWCP properly denied authorization for surgery.
On appeal, appellant contends that she continues to suffer from lower back problems that
require the proposed surgery.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board with respect to OWCP’s denial of
authorization for a prior surgery.2 In a November 15, 2010 order, the Board granted the motion
of the Director of OWCP to set aside OWCP’s November 13, 2009 decision which denied
authorization for low back disc surgery at L5-S1 and its January 11, 2010 decision which denied
appellant’s request for a review of the written record by an OWCP hearing representative as
untimely filed. The Board remanded the case to grant appellant’s request for surgery and
provide her with appropriate compensation benefits. The relevant facts are set forth below.
In an April 4, 2006 decision, OWCP accepted that on April 6, 2003 appellant, then a
25-year-old transportation security screener, sustained lumbar strain and central disc herniation
at L4-5 as a result of lifting bags that contained sound equipment at work. It authorized a
laminectomy and foraminotomy at L5-S1 on the left performed on July 20, 2010 by Dr. Michael
Martin, a Board-certified orthopedic surgeon. OWCP also authorized a redo laminectomy and
discectomy at L5-S1 on the left for recurrent disc herniation performed on January 4, 2011 by
Dr. Martin.
On November 5, 2012 Dr. Martin requested that OWCP authorize a redo left L5-S1
laminectomy and discectomy. A November 5, 2012 follow-up note signed by a physician’s
assistant in Dr. Martin’s office noted appellant’s complaint of worsening chronic low back pain
and left leg pain, numbness, tingling, and weakness. Appellant was diagnosed as having lumbar
postlaminectomy syndrome and recurrent disc herniation at L5-S1 on the left.
On November 14, 2012 an OWCP medical adviser reviewed the matter and advised that
there was recurrent disc material noted on an April 8, 2011 magnetic resonance imaging (MRI)
scan. However, he opined that the condition was not likely to improve with the requested
surgery. The medical adviser noted that there were multiple “red flags” and stated, among other
things that, although it was possible for multiple recurrences of a disc herniation at the same
level, such a recurrence of symptoms suggested looking elsewhere. He related that MRI scans
and a discogram showed pathology at multiple levels and it was highly unlikely that appellant’s
back pain would be relieved by the requested procedure. The medical adviser noted that recent
examinations showed normal lower extremity strength and reflexes, and intact bilateral
sensation. Although sensation was reported to be decreased in the left leg, there was no report of
any dermatomal pattern. The medical adviser noted that there was no electromyogram (EMG)
documenting any radiculopathy. He recommended a second opinion examination prior to
approving the requested surgery.
By letter dated January 10, 2013, OWCP referred appellant, together with a statement of
accepted facts and the medical record, to Dr. William Dinenberg, a Board-certified orthopedic
surgeon, for a second opinion. In a February 13, 2013 medical report, Dr. Dinenberg provided a
history of the April 6, 2003 employment injuries and appellant’s medical treatment, a detailed
review of the medical record, and examination findings. He diagnosed lumbar herniated nucleus
pulposus related to the April 6, 2003 employment injury, status post laminectomy and
2

Docket No. 10-775 (issued November 15, 2010).

2

discectomy on the left L5-S1 and revision laminectomy and discectomy on the left L5-S1, and
recurrence of herniated nucleus pulposus at left L5-S1 with recurrence of bilateral lower
extremity symptomatology. Dr. Dinenberg ordered an EMG/nerve conduction study (NCS) to
determine whether the requested surgery was warranted. In an undated addendum to his
September 11, 2013 report, he advised that an EMG/NCS revealed very mild chronic left L5
radiculopathy, postlaminectomy syndrome, degenerative lumbar disc disease, and spondylosis.
Dr. Dinenberg opined that further surgery was not necessitated by the April 6, 2003 work injury
based on the absence of objective radicular findings on examination and the results of two
EMG/NCS. His opinion was also based on the failure to achieve long-term pain relief with the
two previous laminectomy/discectomies on the left at L5-S1. Dr. Dinenberg stated that no
further curative treatment was recommended for appellant’s chronic postlumbar laminectomy
syndrome and that she should modify her activities. He concluded that she was not totally
disabled due to the accepted employment injury.
On March 18, 2013 Dr. Martin reviewed Dr. Dinenberg’s findings. He disagreed with
Dr. Dinenberg’s diagnoses and recommendations. Dr. Martin stated that appellant had a
recurrent disc herniation with pain in her back with radiation into the legs, numbness in a
dermatomal distribution, and a positive straight leg raising test. He stated that one did not have
to have positive EMG findings to be symptomatic from a disc herniation or to be a candidate for
surgical intervention. Dr. Martin further stated that using the lack of nerve root damage as an
excuse to deny surgery was unreasonable and not based on any accepted medical practice in the
treatment of disc herniations. In notes dated May 1 and June 26, 2013, he reiterated that
appellant was a candidate for surgery based on meeting the bench marks for symptoms and signs,
and confirmatory radiographic and electrodiagnostic testing related to the recurrent disc
herniation at L5-S1. Dr. Martin noted that there was a fairly high likelihood of enough pain
postoperatively that she would not be able to return to her job of injury. However, he stated that
appellant noted that, after each of her prior surgeries, she had a period of time, 6 to 12 weeks,
that she was doing extremely well. Dr. Martin advised that she would likely still be left with
back and leg pain.
On July 16, 2013 OWCP found a conflict in medical opinion between Dr. Martin and
Dr. Dinenberg as to whether the proposed surgery was necessitated by the April 6, 2003
employment injuries. By letter dated August 13, 2013, it referred appellant, together with a
statement of accepted facts and medical record, to Dr. Timothy P. Daly, a Board-certified
orthopedic surgeon, for an impartial medical examination.
In a September 11, 2013 report, Dr. Daly provided a history of the April 6, 2003
employment injuries and appellant’s medical treatment, social background, and hobbies. He also
provided a detailed review of the medical record. Dr. Daly noted appellant’s current complaints
of back pain, numbness, pain, and tingling of the left lower extremity, and occasional numbness
on the right side. On examination, he found a well-healed lumbar incision over the L5-S1 level.
Spinal alignment was normal with no lateral, postural, or structural scoliosis. There was a
normal degree of lumbar lordosis and thoracic kyphosis. Pelvis and hips were level. A palpatory
examination was normal as the spinous processes and paraspinous musculature were nontender,
and there were no hypertonicity or muscle spasm, focal sciatic notch, or sacroiliac or trochanteric
tenderness. An examination of the back was also normal. There was normal strength of the
lower extremities. The knees appeared to be normal with stable ligament meniscal examination.

3

Range of motion measurements for the bilateral feet, ankles, knees, and hips were normal. A
vascular examination of the lower extremities was normal. Lasegue testing and a Patrick’s test
were negative bilaterally. A knee ligament examination, patellar tracking, and stress test
ligament showed stable knees in all planes. Circumferential measurements of the lower
extremities were normal. Dr. Daly diagnosed lumbar nucleus pulposus by history, and status
post laminectomy and revision related to the accepted employment injury.
Dr. Daly stated that his objective examination findings included a well-healed surgical
incision at L5-S1, the site of two previous laminectomies, after which, appellant was
postlaminectomy syndrome with continued sensory radicular symptoms in the entire left lower
extremity. He related that there was no anatomical explanation for having an entire left lower
extremity sensory deficit and certainly such a deficit was not attributable to the 2003 back
straining incident. Dr. Daly advised that a third surgery would not address the higher sensory
deficits reported by appellant, which were global and did not follow a nondermatomal
distribution. He opined that she would not likely benefit from a third surgical intervention based
on the presence of a really remarkable negative straight leg raise test which reported neither back
nor leg discomfort in either the sitting or supine position with an entirely symmetrical and
normal motor and reflex testing. Dr. Daly also opined that the subjective deficits reported by
appellant did not appear to represent any acute radiculopathy. He noted that on clinical
examination there was an entirely negative sciatic stretch test and provocative test for sciatic
radiculopathy. Dr. Daly did not objectively feel that appellant’s reported entire left lower
extremity sensory deficits were physiologic. Appellant had not experienced improvement and he
found no objective evidence that an additional surgery at the L5-S1 level would likely produce
any significant or curative benefit. Dr. Daly stated that the predictability of further postsurgical
problems outweighed the potential benefits of a third surgery, and opined that additional surgery
was no more likely to provide significant relief than an epidural steroid injection or judicious use
of nonsteroidal anti-inflammatories. He concluded that he agreed with Dr. Dinenberg, who had
similar examination findings.
In a decision dated September 25, 2013, OWCP denied authorization for appellant to
undergo lumbar surgery based on Dr. Daly’s impartial medical report which established that the
surgical procedure was not medically necessary.
On September 26, 2013 appellant requested an oral hearing before an OWCP hearing
representative, which was held telephonically on April 16, 2014.
In an April 14, 2014 note, Dr. Martin provided a history of appellant’s medical, family,
and social background. He listed findings on examination and advised that she had lumbar
strain/sprain and degenerative disc disease, lumbosacral spondylosis and radiculopathy, lumbar
herniated nucleus pulposus, and lumbar postlaminectomy syndrome. Dr. Martin disagreed with
Dr. Daly. He stated that Dr. Daly’s findings were different than his findings. Dr. Martin
summarized that an MRI scan showed that appellant had a recurrent disc herniation. Appellant
had sensory loss in a dermatomal distribution in her leg. She also had a positive straight leg
raising test. Dr. Martin stated that, based on all available and accepted practices and medical
literature, all of the above were indications to proceed with surgery. He advised that failure to
approve the surgery would result in ongoing time loss and inability to return to the workforce.

4

In a June 25, 2014 decision, the hearing representative affirmed the September 25, 2013
decision. She found that Dr. Martin’s report was insufficient to outweigh the special weight
accorded to Dr. Daly as the impartial medical specialist.
LEGAL PRECEDENT
Section 8103(a) of FECA provides for the furnishing of services, appliances and supplies
prescribed or recommended by a qualified physician who OWCP, under authority delegated by
the Secretary, considers likely to cure, give relief, reduce the degree or the period of disability or
aid in lessening the amount of monthly compensation.3 In interpreting section 8103(a), the
Board has recognized that OWCP has broad discretion in approving services provided under
FECA to ensure that an employee recovers from his or her injury to the fullest extent possible in
the shortest amount of time.4 OWCP has administrative discretion in choosing the means to
achieve this goal and the only limitation on OWCP’s authority is that of reasonableness.5 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 deductions from
established facts. It is not enough to merely show that the evidence could be construed so as to
produce a contrary factual conclusion.6
While OWCP is obligated to pay for treatment of employment-related conditions,
appellant has the burden of establishing that the expenditure is incurred for treatment of the
effects of an employment-related injury or condition.7 Proof of causal relationship in a case such
as this must include supporting rationalized medical evidence.8 Therefore, in order to prove that
the surgical procedure is warranted, appellant must submit evidence to show that the procedure
was for a condition causally related to the employment injury and that the surgery was medically
warranted. Both of these criteria must be met in order for OWCP to authorize payment.9
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.10 When the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such

3

5 U.S.C. § 8103(a).

4

See Dale E. Jones, 48 ECAB 648, 649 (1997).

5

See Daniel J. Perea, 42 ECAB 214, 221 (1990) (holding that abuse of discretion by OWCP is generally shown
through proof of manifest error, clearly unreasonable exercise of judgment or administrative actions which are
contrary to both logic and probable deductions from established facts).
6

See Minnie B. Lewis, 53 ECAB 606 (2002).

7

See Kennett O. Collins, Jr., 55 ECAB 648 (2004); Debra S. King, 44 ECAB 203, 209 (1992).

8

Id.; see also M.B., 58 ECAB 588 (2007); Bertha L. Arnold, 38 ECAB 282 (1986).

9

See R.C., 58 ECAB 238 (2006); Cathy B. Millin, 51 ECAB 331, 333 (2000).

10

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

5

specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.11
ANALYSIS
OWCP accepted appellant’s claim for lumbar strain and central disc herniation at L4-5.
It authorized two laminectomies and discectomies performed on July 20, 2010 and January 4,
2011 by Dr. Martin, appellant’s attending physician. On November 5, 2012 Dr. Martin
requested authorization for redo left L5-S1 laminectomy and discectomy. OWCP denied the
request for authorization of surgery. The Board finds that it did not abuse its discretion by
denying authorization for redo left L5-S1 laminectomy and discectomy.
OWCP determined that a conflict in medical opinion arose between Dr. Martin and
Dr. Dinneberg, the second opinion physician, as to whether the proposed redo left L5-S1
laminectomy and discectomy was necessitated by the accepted April 6, 2003 employment
injuries. To resolve the conflict, it properly referred appellant to Dr. Daly, pursuant to section
8123(a) of FECA, for an impartial medical examination and an opinion on the matter.12
The Board finds that the well-rationalized opinion of Dr. Daly constitutes the special
weight of the medical evidence regarding whether the requested redo left L5-S1 laminectomy
and discectomy would be necessitated by residuals of appellant’s April 6, 20013 work injuries.
In his September 11, 2013 report, Dr. Daly accurately described appellant’s history and
provided a detailed review of her medical records. He also provided normal findings on
examination of the lumbar spine and lower extremities. Dr. Daly diagnosed lumbar nucleus
pulposus by history, and status postlaminectomy and revision related to the accepted
employment injury. He opined that the proposed back surgery was not warranted based on the
absence of objective examination findings. Dr. Daly explained that straight leg raise, sciatic
stretch, and provocative tests were negative. He further explained that despite appellant having
postlaminectomy syndrome with continued sensory radicular symptoms in the entire left lower
extremity there was no anatomical explanation for this condition which was not attributable to
the accepted April 6, 2003 employment injuries. Dr. Daly advised that her subjective deficits did
not represent any acute radiculopathy. He noted that appellant had experienced no improvement.
Dr. Daly stated that the predictability of further postsurgical problems outweighed the potential
benefits of a third surgery. He opined that the proposed surgery was no more likely to provide
significant relief than an epidural steroid injection or judicious use of nonsteroidal
anti-inflammatories.
The Board further finds that the additional medical evidence submitted by appellant in
response to Dr. Daly’s report is insufficient to overcome the weight accorded to him as an
impartial medical specialist regarding this issue. Dr. Martin’s April 14, 2014 note stated that he
disagreed with Dr. Daly’s opinion. He related that appellant had recurrent disc herniation based
on an MRI scan, sensory loss in a dermatomal distribution in her leg, and a positive straight leg
11

Manuel Gill, 52 ECAB 282 (2001).

12

5 U.S.C. § 8123(a).

6

raising test which were indications to proceed with the surgery. While Dr. Martin continued to
recommend that she have lumbar surgery, he was on one side of the conflict in medical evidence.
The Board has long held that an additional report from a claimant’s physician, which essentially
repeats earlier findings and conclusions, is insufficient to overcome the weight accorded to an
impartial medical specialist’s report.13 The Board finds that Dr. Daly’s opinion that the
recommended lumbar spine surgery was not medically warranted is entitled to the special weight
accorded a referee examiner and represents the weight of the evidence.14 The evidence
establishes that the lumbar spine surgery was not medically necessary. OWCP did not abuse its
discretion in denying authorization.15
On appeal, appellant contends that she continues to suffer from lower back problems that
require the proposed surgery. As stated above, Dr. Daly provided a well-rationalized opinion
regarding the need for the proposed back surgery which constitutes the special weight of the
medical evidence and establishes that such surgery is not warranted due to the April 6, 2003
employment injuries.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly denied authorization for surgery.

13

Roger G. Payne, 55 ECAB 535 (2004).

14

Supra note 11.

15

L.D., 59 ECAB 648 (2008).

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ORDER
IT IS HEREBY ORDERED THAT the June 25, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 24, 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Portland, OR, Employer
__________________________________________

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

Docket No. 11-2013
Issued: July 24, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On September 7, 2011 appellant filed a timely appeal from an August 5, 2011 decision of
the Office of Workers’ Compensation Programs (OWCP) that denied his claim. Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he has a back
condition that was caused or aggravated by factors of his federal employment.
On appeal, appellant asserts that a March 1988 employment injury worsened through the
years, causing his current back condition.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On May 14, 2011 appellant, then a 52-year-old manual clerk, filed an occupational
disease claim alleging that his employment duties caused a lower lumbar degenerative condition.
He referenced a 1988 employment injury, stating that he returned to work in a permanent
light-duty position.2 Appellant stopped work on May 12, 2011. In attached statements, he stated
that since his 1988 injury he had continued back problems. Appellant indicated that the constant
turning, bending and lifting tubs of mail caused his condition.
In a May 19, 2011 letter, the employment establishment indicated that appellant had been
working in a permanent light-duty position since 1990 due to a back condition previously
deemed to be nonwork related by OWCP. Appellant’s light duty included a lifting restriction of
no more than 15 pounds at a time and no repetitive lifting of greater than 7.5 pounds.
By letter dated May 23, 2011, OWCP informed appellant of the type evidence needed to
support his claim. Appellant submitted medical evidence dated March 2, 1985 to April 18, 2011.
An April 3, 1986 employment establishment clinic report stated that he had been in an off-thejob motor vehicle accident on March 26, 1986. Dr. Robert P. Campbell, Board-certified in
occupational medicine, performed a fitness-for-duty examination on May 2, 1988. He stated that
appellant would not consent to a physical examination and noted that he was ambulatory and
able to sit and stand without difficulty and demonstrated considerable back flexibility.
Dr. Campbell recommended that appellant not return to his regular duties, based on his
subjective complaints and insistence on disability and concluded that he could perform sedentary
duty. On August 22, 1988 Dr. Edward A. Grossenbacher, Board-certified in orthopedic surgery,
diagnosed lumbar strain and advised that appellant was unemployable because of physical and
psychological factors involved in an injury to his lower back. On December 14, 1989
Dr. Thomas Martens, a Board-certified orthopedic surgeon, diagnosed chronic low back and leg
pain by history with no objective orthopedic or neurologic abnormality and severe functional
overlay. In a December 5, 1989 form report, Dr. Leslie Naman, a Board-certified internist,
diagnosed lumbosacral strain, severe and degenerative joint disease of the back and advised that
appellant was totally disabled.
On January 10, 1995 appellant reported that he had been in a car accident on
January 7, 1995. On April 22, 1997 Dr. Merrit L. Quarum, advised that he had degenerative disc
disease resulting in chronic back pain. An April 9, 1998 computerized tomography (CT) scan of
the lumbar spine noted no evidence of disc protrusion. By report dated September 12, 2000,
Dr. Carl Shrader noted that appellant was in a motor vehicle accident on July 30, 2000. He
provided physical examination findings and diagnosed chronic cervical strain with arthritic
changes and chronic lumbar pain.
In reports dated April 1, 2003 to March 6, 2006, Dr. John Alferes, Jr., Board-certified in
internal medicine, advised that appellant had been treated in his clinic for the past 10 years for
recurrent back pain secondary to degenerative facet disease as demonstrated on a magnetic
resonance imaging (MRI) scan. He provided restrictions to appellant’s physical activity. On
2

The record indicates that appellant sustained an employment injury to the low back on March 11, 1988.

2

April 5, 2007 and April 14, 2008 Dr. Alferes advised that appellant’s back pain was progressing
and recommended additional physical restrictions at work. A May 30, 2008 telephone
memorandum indicated that appellant was being accommodated under the National
Reassessment Process (NRP). On April 13, 2009 Dr. Alferes reported that appellant described
worsening back pain due to work activities and recommended work accommodations of lifting
restricted to 15 pounds occasionally and 7.5 pounds continuously. In reports dated April 14,
2010 and April 18, 2011, he repeated these restrictions and advised that he did not know how
much longer appellant would be able to continue to work. In treatment notes dated May 13 and
June 6, 2011, Dr. Alferes provided physical examination findings, reporting that appellant was
moving freely, with no tenderness on back examination, a negative straight leg raising and no
weakness. He diagnosed chronic intermittent back pain and noted that a previous MRI scan
study was unremarkable. In the latter report, Dr. Alferes advised that appellant’s condition was
more chronic and he was hoping to be disabled due to this.
In a May 17, 2011 report, Dr. Rachel C. Fischer, Board-certified in preventive and
occupational medicine, noted appellant’s report of the history of injury and that he was in a
motor vehicle accident in 1996. She stated that he described his job duties and complained that
he had pain and tingling down his right leg since the 1988 employment injury. Dr. Fisher
provided physical examination findings, noting good back range of motion, a negative straight
leg test and that appellant was able to fully squat and that he reported decreased sensation to
right foot along the lateral right foot and toes. She diagnosed chronic low back pain, noting that
he stated that this was aggravated by his job duties. Dr. Fisher concluded that she had a long
discussion with appellant and told him she was unable to give him restrictions because he
demonstrated good strength and reflexes.
On July 19, 2011 Dr. Alferes advised that appellant was unable to work at his previously
activity levels and physical work requirements. In a July 28, 2011 report, he reported that
appellant had some degenerative changes in his low back, “but I believe by [appellant’s] history,
the more severe episodes of disabling back pain are clearly directly related to his required work
activities that put excessive stress on his back.” Dr. Alferes advised that appellant needed
significant work modifications.
Employing establishment forms, dated from June 21, 1995 to April 19, 2011, described
appellant’s limitations. The April 18, 2012 form advised that lifting was limited to no more than
15 pounds with repeated lifting at 7.5 pounds. Bending, twisting and prolonged awkward
positioning were to be avoided. In July 2011, the employing establishment informed OWCP that
appellant had submitted an application for disability retirement.
By decision dated August 5, 2011, OWCP denied appellant’s claim on the grounds that
the medical evidence did not establish that the claimed medical condition was caused by his
federal employment.
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

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limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury. These are the essential elements of each and every
compensation claim, regardless of whether the asserted claim involves traumatic injury or
occupational disease, an employee must satisfy this burden of proof.3
OWCP regulations define the term “occupational disease or illness” as a condition
produced by the work environment over a period longer than a single workday or shift.”4 To
establish that an injury was sustained in the performance of duty in an occupational disease
claim, a claimant must submit the following: (1) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; (2) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant. The medical
opinion must be one of reasonable medical certainty and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.5
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical evidence.6 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.7 Neither the mere fact
that a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.8
ANALYSIS
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an additional low back injury caused by his federal employment because the medical
evidence is insufficient to establish causal relationship.

3

Roy L. Humphrey, 57 ECAB 238 (2005).

4

20 C.F.R. § 10.5(ee).

5

Roy L. Humphrey, supra note 3.

6

D.G., 59 ECAB 734 (2008).

7

Id.

8

Roy L. Humphrey, supra note 3.

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The April 9, 1988 CT scan of the lumbar spine did not provide a cause of any diagnosed
conditions and medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.9 The
various medical reports dated March 2, 1985 to September 12, 2000 and Dr. Fischer’s May 17,
2011 report, likewise, do not include an opinion as to the cause of any diagnosed condition.
Dr. Alferes, an attending internist, submitted a number of reports dated from April 1,
2003 to July 28, 2011 and advised that appellant had back pain secondary to progressive
degenerative disc disease of the lumbar spine. While he reported on April 18, 2011 that
appellant’s condition was worsening and that he did not know how much longer appellant could
work, in reports in May and June 2011, he indicated that appellant was moving freely, with no
tenderness on back examination and had a negative straight leg raising and no weakness.
Dr. Alferes diagnosed chronic intermittent back pain and noted that a previous MRI scan study
was unremarkable. In the latter report, he advised that appellant’s condition was more chronic
and he was hoping to be disabled due to this. On July 28, 2011 Dr. Alferes stated that appellant
had some degenerative changes in his low back and opined that the more severe episodes of
disabling back pain were directly related to his required work activities that put excessive stress
on his back. Medical opinions based upon an incomplete history or which are speculative or
equivocal in character have little probative value.10 The Board finds Dr. Alferes’ reports
insufficient to meet appellant’s burden as he did not provide an explanation or opinion as to how
the employment factors caused his degenerative back condition, did not demonstrate knowledge
of his job duties and did not explain the impact of the three motor vehicle accidents on his back
condition. The record contains medical reports from Drs. Campbell, Grossenbacher, Martens,
Naman, Quarum and Shrader, which were authorized between 1988 through 2000. These reports
are also insufficient to meet appellant’s burden of proof.
The opinion of a physician supporting causal relationship must be one of reasonable
medical certainty that the condition for which compensation is claimed is causally related to his
federal employment and such relationship must be supported with affirmative evidence,
explained by medical rationale and be based upon a complete and accurate medical and factual
background of the claimant.11 It is appellant’s burden to establish that his claimed back
condition is causally related to factors of his federal employment. In this case, he submitted
insufficient evidence to show that he sustained a degenerative lumbar condition caused by his
employment duties.
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.

9

Willie M. Miller, 53 ECAB 697 (2002).

10

Frank Luis Rembisz, 52 ECAB 147 (2000).

11

A.D., 58 ECAB 149 (2006).

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CONCLUSION
The Board finds that appellant did not establish that he sustained a back condition
causally related to factors of his federal employment in this occupational disease claim.
ORDER
IT IS HEREBY ORDERED THAT the August 5, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 24, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PATROL, Roma, TX,
Employer
__________________________________________

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

Docket No. 19-1958
Issued: June 12, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On September 24, 2019 appellant filed a timely appeal from a September 11, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish ratable binaural
hearing loss for schedule award purposes.
FACTUAL HISTORY
On September 26, 2018 appellant, then a 57-year-old customs and border patrol officer,
filed an occupational disease claim (Form CA-2) alleging binaural hearing loss due to factors of
1

5 U.S.C. § 8101 et seq.

his federal employment including daily exposure to loud noises from motor vehicles, construction
at bridges, gunfire, horns, x-ray equipment, and tractor trailers. He noted that he first became
aware of his condition and realized that it was caused or aggravated by factors of his federal
employment on January 1, 2011.
An October 13, 2016 employing establishment audiogram reflected testing at the frequency
levels of 500, 1,000, 2,000, and 3,000 hertz (Hz) and revealed findings for the left ear of 10, 10, 5,
and 10 decibels (dBs) and for the right ear 15, 10, 10, and 35 dBs. Appellant’s August 7, 2012
baseline audiometric results at the same frequency levels revealed 5, 10, 5, and 10 dBs for the left
ear and 5, 10, 10, and 30 dBs on the right.
On January 30, 2019 OWCP referred the case record, including a statement of accepted
facts (SOAF) and a list of questions to Dr. John R. Austin, a Board-certified otolaryngologist, for
a second opinion evaluation. In a February 20, 2019 report, Dr. Austin examined appellant and
administered an audiogram. The audiogram reflected testing at the frequency levels of 500, 1,000,
2,000, and 3,000 Hz and revealed findings for the right ear of 10, 10, 15, and 35 dBs and for the
left ear 15, 10, 20, and 30 dBs. Dr. Austin diagnosed a mild-to-moderately severe binaural high
frequency sensorineural hearing loss with tinnitus. He opined that appellant’s hearing loss was
related to noise exposure encountered in his federal employment. Dr. Austin further found that,
based on results of the February 20, 2019 audiogram, the impairment calculations under the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment2
(A.M.A., Guides) revealed a monaural loss of zero percent in each ear and zero percent binaural
hearing loss.3 He found zero percent impairment for tinnitus noting that there were no activities
of daily living assessment.
By decision dated March 18, 2019, OWCP accepted appellant’s claim for binaural
sensorineural hearing loss.
On June 12, 2019 appellant filed a claim for a schedule award (Form CA-7).
On June 21, 2019 OWCP referred the case record, including Dr. Austin’s February 20,
2019 report and audiogram, to a district medical adviser (DMA) to determine whether appellant
had a ratable hearing loss. In a September 7, 2019 report, Dr. Jeffrey M. Israel, a Board-certified
otolaryngologist serving as the DMA, reviewed appellant’s medical records, the SOAF, and
Dr. Austin’s February 20, 2019 report and audiogram. He found that the date of maximum medical
improvement was February 20, 2019 and agreed with Dr. Austin that appellant had hearing loss of
zero percent under the A.M.A., Guides. Based upon the audiogram the total for the left ear was
75, while the total for the right ear was 70. These totals were divided by four, resulting in 18.75
for the left ear and 17.50 for the right ear. These averages were reduced by the 25 dBs fence,
resulting in zero percent monaural loss for both ears, and zero percent binaural loss. The DMA
thus concluded that appellant did not have a ratable permanent hearing loss. He recommended
annual audiograms, noise protection for his ears, and authorization for hearing aids.

2

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

3

Dr. Austin noted that the audiometer had last been calibrated on August 23, 2018.

2

By decision dated September 11, 2019, OWCP found that appellant’s hearing loss was not
sufficiently severe to be considered ratable and he was therefore not entitled to schedule award
compensation. It further found that he was entitled to medical benefits including hearing aids, if
recommended by his physician.
LEGAL PRECEDENT
The schedule award provisions of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The method
used in making such determination is a matter which rests in the sound discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides has
been adopted by OWCP as a standard for evaluation of schedule losses and the Board has
concurred in such adoption.6 For schedule awards after May 1, 2009, the impairment is evaluated
under the sixth edition of the A.M.A., Guides, published in 2009.7
A claimant seeking compensation under FECA has the burden of proof to establish the
essential elements of his or her claim.8 With respect to a schedule award, it is the claimant’s burden
of proof to establish permanent impairment of a scheduled member or function of the body as a
result of his or her employment injury.9 The medical evidence must include a detailed description
of the permanent impairment.10
OWCP evaluates occupational hearing loss in accordance with the standards contained in
the A.M.A., Guides.11 Using the frequencies of 500, 1,000, 2,000, and 3,000 Hz, the losses at each
frequency are added up and averaged. Then, the fence of 25 dBs is deducted because, as the
A.M.A., Guides points out, losses below 25 dBs result in no impairment in the ability to hear
everyday speech under everyday conditions.12 The remaining amount is multiplied by a factor of
4

Supra note 1 at § 8107.

5

20 C.F.R. § 10.404.

6

Id.; see also Jacqueline S. Harris, 54 ECAB 139 (2002).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
8

C.U., Docket No. 18-1480 (issued February 6, 2019); John W. Montoya, 54 ECAB 306 (2003).

9
D.S., Docket No. 19-0292 (issued June 21, 2019); Edward Spohr, 54 ECAB 806, 810 (2003); Tammy L. Meehan,
53 ECAB 229 (2001).
10

See Vanessa Young, 55 ECAB 575 (2004).

11

T.O., Docket No. 18-0659 (issued August 8, 2019); R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB
143 (2000); see also supra note 5.
12

See A.M.A., Guides 250 (6th ed. 2009).

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1.5 to arrive at the percentage of monaural hearing loss.13 The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss and the lesser loss is multiplied
by five, then added to the greater loss and the total is divided by six to arrive at the amount of the
binaural hearing loss.14 The Board has concurred in OWCP’s adoption of this standard for
evaluating hearing loss.15
If tinnitus interferes with activities of daily living, including sleep, reading (and other tasks
requiring concentration), enjoyment of quiet recreation, and emotional well-being, up to five
percent may be added to a measurable binaural hearing impairment.16
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of permanent
impairment in accordance with the A.M.A., Guides, with the DMA providing rationale for the
percentage of impairment specified.17
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish ratable binaural
hearing loss for schedule award purposes.
In a February 20, 2019 report, second opinion physician Dr. Austin noted binaural
sensorineural hearing loss with tinnitus due to noise exposure encountered in appellant’s federal
employment. An audiogram he obtained at the frequency levels of 500, 1,000, 2,000, and 3,000
Hz, respectively revealed dB losses in the right ear of right ear of 10, 10, 15, and 35 dBs
respectively, and for the left ear 15, 10, 20, and 30 dBs, respectively.
OWCP’s DMA, Dr. Israel, on September 7, 2019, reviewed Dr. Austin’s report and
audiometric findings, properly applied OWCP’s standardized procedures, and concurred with
Dr. Austin in finding that appellant had no monaural or binaural hearing loss. He totaled the dB
losses to equal 75 on the left and 70 on the right. These values, when divided by four, resulted in
average hearing loss of 18.75 on the left and 17.50 on the right, which when reduced by the 25
dBs fence, resulted in zero percent loss.
The Board finds that, as the March 20, 2019 audiogram did not demonstrate that appellant’s
hearing loss was ratable, he is not entitled to a schedule award for his accepted hearing loss
condition. Both the DMA and Dr. Austin found appellant had no ratable impairment. There is no
other evidence of record establishing a ratable hearing loss.

13

Id.

14

Id.

15

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

16

A.M.A., Guides 249; G.G., Docket No. 18-0373 (issued September 25, 2019); see also R.H., Docket No. 10-2139
(issued July 13, 2011).
17

Supra note 7 at Chapter 2.808.6(f) (March 2017).

4

On appeal appellant contends that the accepted binaural hearing loss makes it difficult to
hear conversations and interferes with other activities of daily living. As explained above, he has
not established that the accepted hearing loss is ratable for schedule award purposes. Although
appellant has an employment-related hearing loss, it is not significant enough to be ratable for
schedule award purposes.18
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish ratable hearing
loss for schedule award purposes.
ORDER
IT IS HEREBY ORDERED THAT the September 11, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 12, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

18
See L.H., Docket No. 18-0696 (issued November 28, 2018); G.G., Docket No. 18-0566 (issued October 2, 2018);
D.G., Docket No. 16-1486 (issued December 16, 2016).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Levittown, PA, Employer
__________________________________________

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

Docket No. 10-1298
Issued: March 3, 2011

Case Submitted on the Record

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

JURISDICTION
On April 6, 2010 appellant filed a timely appeal from the December 9, 2009 merit
decision of the Office of Workers’ Compensation Programs finding an overpayment of
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.1
ISSUES
The issues are:
(1) whether appellant received a $2,183.09 overpayment of
compensation; (2) whether appellant was without fault with regard to the creation of the
overpayment; and (3) whether a waiver or compromise of the overpayment should be granted.

1

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

FACTUAL HISTORY
On December 30, 2002 appellant, then a 54-year-old letter carrier, filed a traumatic injury
claim alleging that on May 28, 2002 he sustained injury to his feet, legs and hands while
emptying mailboxes. The Office accepted that his work duties resulted in temporary aggravation
of diabetes which resolved approximately three months after the incident. Compensation for
wage loss and medical care was paid through August 31, 2002.2
Appellant submitted an August 17, 2006 report in which Dr. Nicholas Diamond, an
attending osteopath, opined that he had a 58 percent permanent impairment of his right arm, a 58
percent permanent impairment of his left arm, a 13 percent permanent impairment of his right leg
and a 26 percent permanent impairment of his left leg. On December 21, 2006 he filed a claim
for a schedule award. The Office requested that an Office medical adviser review the report of
Dr. Diamond.
In a February 14, 2007 decision, the Office granted appellant schedule awards for 12
percent impairment to both the left and right upper extremity, 5 percent impairment to the left leg
and 3 percent impairment of the right lower extremity.3 In a March 8, 2007 decision, it set aside
the February 14, 2007 decision on the grounds that the medical evidence was not sufficient to
support any permanent impairment as a result of the accepted conditions. In a March 8, 2007
letter, the Office advised appellant that it had made a preliminary determination that he received
a $17,943.38 overpayment of compensation because the medical evidence did not support
permanent impairment causally related to the accepted work-related condition.
In an April 12, 2007 decision, the Office set aside its March 8, 2007 decision as further
development of the evidence was needed. In a June 6, 2007 decision, it found that a
February 17, 2005 report of Dr. Leonard Kamen, an attending Board-certified physical medicine
and rehabilitation physician, represented the weight of the medical opinion. It supported that
appellant no longer had residuals of the accepted temporary aggravation of his preexisting
diabetes. Therefore, appellant had no permanent impairment as a result of the accepted
work-related condition and his schedule award claim was denied.
In a November 21, 2007 decision, an Office hearing representative found that
clarification should be obtained from Dr. Kamen and a de novo decision issued regarding
appellant’s entitlement to schedule award compensation. In a March 13, 2008 report, Dr. Kamen
provided additional discussion of how he concluded that appellant had a temporary aggravation
of his diabetes which had resolved. In a March 28, 2008 decision, the Office again found that
appellant had no permanent impairment as a result of the accepted work-related condition.
2

Appellant stopped work on May 28, 2002 and did not return. He had a prior claim for occupational disease in
which he claimed that his diabetes was aggravated by his work duties. This claim was accepted on December 7,
2001, under a separate claim number, for temporary aggravation of diabetes. Appellant alleged a recurrence of his
condition on May 29, 2002 and this claim was denied in an August 16, 2002 decision in which the Office found that
he had not submitted sufficient evidence to support a causal relationship between his condition on May 29, 2002 and
the previously accepted injury. In decisions dated December 13, 2002 and June 20, 2003, the Office affirmed its
August 16, 2002 decision.
3

The award ran for 97.92 weeks.

2

In a June 11, 2008 decision, an Office hearing representative determined that further
development by a more appropriate medical specialist was warranted. The Office was directed
to refer appellant for a second opinion evaluation with a Board-certified endocrinologist.
In July 22 and September 8, 2008 reports, Dr. Michael Cooperman, a Board-certified
endocrinologist who served as an Office referral physician, opined that appellant did not sustain
any permanent aggravation of his underlying diabetes as a result of the May 28, 2002 work
injury. The Office found that Dr. Cooperman’s opinion had the weight of medical evidence.
In an October 16, 2008 decision, the Office denied appellant’s schedule award claim
finding that the medical evidence did not support that he had sustained permanent impairment as
a result of the temporary aggravation of his preexisting condition. In an October 16, 2008 letter,
it advised appellant of its preliminary overpayment determination that he received a $17,943.38
overpayment of compensation due to the incorrect payment of a schedule award. The Office also
made a preliminary determination that he was not at fault in the creation of the overpayment.
In a May 19, 2009 decision, an Office hearing representative set aside the Office’s
October 16, 2008 decision and remanded the case for further development. The hearing
representative found that there was a conflict in the medical opinion between Dr. Cooperman, the
Office referral physician, and of Dr. Terry Kanefsky, an attending Board-certified
endocrinologist, regarding whether appellant’s diabetes was permanently aggravated.4 The case
was remanded for referral to an impartial medical specialist to examine appellant and to provide
an opinion on the matter. The Office hearing representative stated that following any further
required development, a de novo decision should be issued regarding whether appellant’s
“diabetic condition was aggravated, accelerated or exacerbated by his employment and/or the
May 28, 2002 work injury and therefore caused permanent impairment of the upper and lower
extremities.”
The Office hearing representative indicated that the Office’s “decision” regarding a
$17,943.38 overpayment of compensation should be “vacated” until a determination was made
regarding whether appellant continued to have an aggravation of his preexisting diabetes which
caused permanent impairment to his lower extremities.5 She concluded that his claim was not
accepted for an upper extremity condition and therefore the schedule award paid for a 24 percent
permanent impairment of the upper extremities was in error. The Office hearing representative
noted that neither the factual nor medical evidence supported an aggravation of the diabetic
neuropathies to the upper extremities and affirmed that an overpayment existed for this portion
of the schedule award. The Office was directed to recalculate the schedule award paid for the
upper extremities and to declare an overpayment for this amount.
In a May 22, 2009 letter, appellant was advised that a preliminary determination had been
made that he received a $2,183.09 overpayment of compensation because he had received
schedule awards totaling 24 percent permanent impairment of the upper extremities. It was
4

Appellant submitted a March 25, 2009 report of Dr. Kanefsky.

5

The Board notes that the Office had only made a preliminary determination that appellant received a $17,943.38
overpayment of compensation at this point.

3

noted that although the total period of the award was August 17, 2006 to July 2, 2008, only the
period August 17, 2006 to January 25, 2007 had actually been paid. Appellant had also been
found to have an eight percent lower extremity impairment which was still under development
by the Office. The Office determined that the eight percent impairment to the lower extremities
constituted 162 calendar days of the total days of compensation paid and equaled $15,760.29 in
compensation. It found that since only $17,943.38 had been paid, this resulted in an
overpayment of compensation for the upper extremities of $2,183.09. The Office made a
preliminary determination that appellant was without fault in the matter of this overpayment as
he had not accepted a payment that he knew or should have known was incorrect.
Appellant disagreed with the Office’s preliminary overpayment determination and
requested a prerecoupment hearing before an Office hearing representative.
At the
September 15, 2009 hearing, counsel argued that the prior Office hearing representative’s
decision was inconsistent and it was premature to declare an overpayment as a result of payment
of the schedule award for the upper extremity impairment when the Office had not finalized the
percentage of lower extremity impairment. Following the hearing, the Office received
information regarding appellant finances which showed $6,097.81 in total monthly income and
$5,178.91 in total monthly expenses.
In a December 9, 2009 decision, the Office hearing representative found that appellant
received a $2,183.09 overpayment of compensation as the medical evidence did not support that
he was entitled to schedule award compensation for permanent impairment of his upper
extremities. She found that he was not at fault in the creation of the overpayment but determined
that, given his financial circumstances, the overpayment was not subject to waiver. The
overpayment was to be repaid by paying $200.00 per month.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act6 provides that the United
States shall pay compensation for the disability or death of an employee resulting from personal
injury sustained while in the performance of duty.7 Section 8129(a) of the Act provides, in
pertinent part, “When an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations prescribed by the
Secretary of Labor by decreasing later payments to which an individual is entitled.”8
Section 8128 of the Act provides that the Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application.9 The Board
has upheld the Office’s authority to reopen a claim at any time on its own motion under section
8128 of the Act and, where supported by the evidence, set aside or modify a prior decision and

6

5 U.S.C. §§ 8101-8193.

7

Id. at § 8102(a).

8

Id. at § 8129(a).

9

Id. at § 8128.

4

issue a new decision.10 The Board has noted, however, that the power to annul an award is not
an arbitrary one and that an award for compensation can only be set aside in the manner provided
by the compensation statute.11
ANALYSIS -- ISSUE 1
The Office accepted that appellant’s work duties on May 29, 2002 resulted in temporary
aggravation of diabetes which resolved approximately three months after the work incident.
Compensation for wage loss and medical care was paid through August 31, 2002.12 In a
February 14, 2007 decision, the Office granted appellant schedule awards for a 24 percent upper
extremity impairment (12 percent to both the left and right upper extremity) and an 8 percent
lower extremity impairment (5 percent to the left lower extremity and 3 percent to the right lower
extremity).
On appeal, counsel argued that the Office made a premature determination that appellant
received a $2,183.09 overpayment of compensation because the matter of his upper extremity
impairment was still under development.
The Board finds that the Office prematurely made a determination that appellant received
a $2,183.09 overpayment of compensation based on its finding that he was not entitled to
schedule awards for upper extremity impairment (12 percent to each the left and right upper
extremity). In making such a determination, the Office effectively rescinded its prior schedule
award for a 24 percent upper extremity impairment. However, at the time of its December 9,
2009 overpayment decision, it had not yet developed the evidence to support a rescission of
appellant’s schedule award for the upper extremities.13
In a May 19, 2009 decision, the Office properly determined that there was a conflict in
the medical opinion between Dr. Cooperman and Dr. Kanefsky regarding whether appellant’s
diabetes was permanently aggravated due to work factors and whether he sustained permanent
impairment of his upper and lower extremities as a result.14 A portion of the May 19, 2009
decision suggested that there was no conflict in the medical opinion regarding whether he had
work-related permanent impairment of his upper extremities; however, the evidence of record
reflects that a conflict in the medical opinion did exist. Therefore, the Office did not meet its
burden of proof to rescind the schedule awards for impairment to the upper extremities.

10

John W. Graves, 52 ECAB 160, 161 (2000).

11

See 20 C.F.R. § 10.610.

12

Appellant had a prior claim for occupational disease in which he claimed that his diabetes was aggravated by
his work duties. This claim was accepted on December 7, 2001, under a separate claim number, for temporary
aggravation of diabetes.
13

See supra notes 9 through 11.

14

Section 8123(a) of the Act provides in pertinent part: “If there is disagreement between the physician making
the examination for the United States and the physician of the employee, the Secretary shall appoint a third
physician who shall make an examination.” 5 U.S.C. § 8123(a).

5

Given that the Office had based its finding of a $2,183.09 overpayment on its finding that
appellant was not entitled to schedule awards for a 24 percent upper extremity impairment, it was
premature for it to make such an overpayment determination. For these reasons, the
December 9, 2009 overpayment decision shall be set aside. The Office may not make an
overpayment determination based on compensation granted for upper extremity impairment until
it has established that appellant received compensation for upper extremity impairment to which
he was not entitled. The case is remanded to the Office for further development of the evidence
regarding this matter. After such development as it deems necessary, the Office shall issue an
appropriate decision.
CONCLUSION
The Board finds that the case is not in posture for decision regarding the fact, amount,
fault and waiver of an overpayment. The case is remanded to the Office for further development.
ORDER
IT IS HEREBY ORDERED THAT the December 9, 2009 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to the Office for further
proceedings consistent with this decision of the Board.
Issued: March 3, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Charleston, WV, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1123
Issued: December 23, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 24, 2009 appellant filed a timely appeal from a February 9, 2009 decision of
the Office of Workers’ Compensation Programs, which denied 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 developed
bilateral carpal tunnel syndrome or headaches while in the performance of duty.
FACTUAL HISTORY
On July 2, 2008 appellant, then a 52-year-old part-time temporary data conversion
operator, filed an occupational disease claim alleging that she developed bilateral carpal tunnel
syndrome as a result of performing her work duties. She became aware of her condition and
realized it was caused by her work on June 30, 2008. Appellant stopped work on June 21, 2008.
She stated that on June 21, 2008 she was keying and experienced pain and numbness in both

arms and headaches. Appellant was treated in the emergency room on June 30, 2008 where she
was diagnosed with bilateral carpal tunnel syndrome. She submitted a prescription slip of that
date, which noted that she was to be off work until July 8, 2008.
In a letter dated July 28, 2008, the Office advised appellant of the factual and medical
evidence needed to establish her claim. It requested that she submit a physician’s reasoned
opinion addressing the causal relationship of her carpal tunnel condition to specific employment
activities. The Office also requested the employing establishment submit comments from a
knowledgeable supervisor addressing appellant’s claim for compensation.
Appellant came under the treatment of Dr. Mahmood Partovi, a Board-certified
orthopedic surgeon, from June 27 to September 8, 2008. Dr. Partovi treated her for bilateral
carpal tunnel syndrome. In return to work certificates dated June 27 to August 6, 2008, he noted
that appellant was under his care from June 24 to 27, July 3 to August 21, 2008. On July 9, 2008
Dr. Partovi noted clinical findings of severe pain in both wrists and diagnosed tendinitis. He
advised that appellant was unable to perform her work duties. On August 8, 2008 Dr. Partovi
diagnosed bilateral wrist pain and carpal tunnel syndrome. Appellant reported severe pain and
numbness in both wrists and fingers radiating into the back of her neck. Dr. Partovi noted with a
checkmark “yes” that her condition was caused or aggravated by employment activity and that
her work duties included keying and typing. He found that appellant was totally disabled as of
July 9, 2008. In an August 25, 2008 return to work slip, Dr. Partovi advised that she was under
his care from August 21 to September 8, 2008 and was being referred to a neurologist.
Appellant underwent a electromyogram (EMG) on July 18, 2008 which revealed no
abnormalities.
In an August 7, 2008 statement, Michael J. Thompson, appellant’s manager, confirmed
that appellant was employed as a part-time temporary data conversion operator since
October 6, 2002. Appellant’s duties consisted of keying address information into a computer
while using a workstation with an ergonomically designed footstool and chair with wrist rests.
Mr. Thompson advised that she failed to inform her supervisor that she experienced arm pain.
Appellant reiterated her allegations and submitted a hospital discharge summary dated
June 30, 2008 for treatment of bilateral arm and shoulder pain. She reported that both arms were
aching due to typing and keying duties performed as a data conversion operator. Appellant was
diagnosed with paresthesia to both upper extremities, rule out carpal tunnel syndrome and was
discharged that day.
In a September 22, 2008 decision, the Office denied appellant’s claim, finding that the
medical evidence did not establish that she sustained an injury.
On October 7, 2008 appellant requested a review of the written record. On December 22,
2007 Dr. Sam Kalou, a Board-certified family practitioner, noted her complaint of neck pain and
diagnosed cervical spine degenerative joint disease and bulging disc at L4-5. An emergency
room report and discharge instructions dated June 30, 2008 from Dr. Craig Ausmus, a Boardcertified family practitioner, noted treatment for pain, numbness, tingling and paresthesias in the
hands radiating into the shoulders pain. Appellant reported working as a data entry operator
where she would key information into a computer for approximately eight hours per day.

2

Dr. Ausmus diagnosed paresthesias to both upper extremities and possible carpal tunnel
syndrome. On October 1, 2008 appellant was treated by Dr. H.S. Ramesh, Board-certified in
pain management, who diagnosed cervicalgia, cervical disc degeneration and rule out C6-7
herniated nucleus pulposus. Dr. Ramesh advised that she could return to modified duty on
October 2, 2008, with restrictions. A magnetic resonance imaging (MRI) scan of the cervical
spine dated October 3, 2008 revealed degenerative changes of the cervical spine, right
paracentral disc bulge osteophyte at C4-6 and diffuse posterior disc bulges at C5-6 and C6-7.
Appellant also submitted physical therapy records.
By decision dated February 9, 2009, the Office affirmed the September 22, 2008 decision
as modified. The hearing representative found that appellant was a part-time data conversion
operator who sat at a computer terminal and keyed information. However, the medical evidence
was insufficient to establish that her upper extremity condition or headaches were causally
related to her work duties.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that the injury was
sustained in the performance of duty as alleged and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury. These are the
essential elements of each and every compensation claim regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.1
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by claimant. The
medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.2

1

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

2

Solomon Polen, 51 ECAB 341 (2000).

3

ANALYSIS
It is not disputed that appellant’s duties as a data conversion operator include prolonged
sitting at a computer and keying information. However, she has not submitted sufficient medical
evidence to establish that she sustained bilateral carpal tunnel syndrome causally related to her
employment duties. On July 28, 2008 the Office advised appellant of the medical evidence
needed to establish her claim. Appellant did not submit a rationalized medical report from a
physician addressing how her employment caused or aggravated her condition.
Appellant submitted return to work certificates from Dr. Partovi, who noted that she was
under his care from June 24 to September 8, 2008. On July 9, 2008 Dr. Partovi diagnosed
tendinitis and noted that she was unable to perform her work duties. However, these reports are
insufficient to establish appellant’s claim as the physician did not provide a history of injury or
address how her employment activities had caused or aggravated a diagnosed medical
condition.3
On August 8, 2008 Dr. Partovi diagnosed bilateral wrist pain and carpal tunnel syndrome.
He noted with a checkmark “yes” that appellant’s condition was caused or aggravated by
an employment activity and indicated that she keyed information and used a typewriter at work.
Dr. Partovi further noted that she was totally disabled beginning July 9, 2008. The Board has
held that an opinion on causal relationship which consists only of a physician checking “yes” to a
medical form question on whether claimant’s condition related to the history given is of
diminished probative value. Without any explanation or rationale for the conclusion reached,
such report is insufficient to establish causal relationship.4 Dr. Partovi did not provide any
medical rationale to explain how keying or using a typewriter caused or aggravated carpal tunnel
syndrome.
In a June 30, 2008 hospital admission, Dr. Ausmus diagnosed paresthesias of the bilateral
upper extremities, rule out carpal tunnel syndrome. Appellant reported working as a data entry
operator for eight hours per day which caused pain, numbness, tingling and paresthesias in the
hands radiating into the shoulders. However, Dr. Ausmus merely addressed a history of injury as
reported by her. He did not provide any opinion regarding whether appellant’s condition was
work related. Moreover, Dr. Ausmus did not provide a firm medical diagnosis.
The other reports from Dr. Kalou and Dr. Ramesh noted appellant’s complaints of neck
pain and diagnosed cervical spine degenerative joint disease, bulging disc at L4-5 and
cervicalgia. However, neither Dr. Kalou and Dr. Ramesh addressed her claimed bilateral carpal
tunnel syndrome or headaches. These reports do not support appellant’s claimed condition or
provide any opinion relating her cervical disc disease to her federal employment

3

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006) (medical evidence which does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
4

Lucrecia M. Nielson, 41 ECAB 583, 594 (1991).

4

Appellant also submitted physical therapy notes. However, the Board has held that
records from a physical therapist do not constitute competent medical opinion in support of
causal relation as a physical therapist is not a physician as defined under the Act.5
Similarly, the EMGs and MRI scan reports are insufficient to establish appellant’s claim.
They do not provide a physician’s opinion on the causal relationship between her job factors and
a diagnosed medical condition.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither, the fact that appellant’s condition became apparent during a period of employment nor
the belief that the condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship.6 Causal relationships must be established by
rationalized medical opinion evidence. Appellant failed to submit such evidence and the Office
therefore properly denied her claim for compensation.
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
developed an employment-related injury in the performance of duty.

5

A.C., 60 ECAB ___ (Docket No. 08-1453, issued November 18, 2008).

6

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

5

ORDER
IT IS HEREBY ORDERED THAT the February 9, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 23, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6