United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hickory, NC, Employer
__________________________________________

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

Docket No. 10-1025
Issued: January 11, 2011

Case Submitted on the Record

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

JURISDICTION
On February 19, 2010 appellant filed a timely appeal of a January 19, 2010 decision of
the Office of Workers’ Compensation Programs terminating his compensation for wage-loss and
medical benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this claim.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation benefits
effective January 19, 2010 on the grounds that he no longer had any residuals or disability
causally related to his accepted September 4, 2006 injury.
FACTUAL HISTORY
On September 4, 2006 appellant, then a 36-year-old casual clerk, sustained an injury to
his left leg and shoulder in the performance of duty when he was jammed by a forklift. The
Office accepted the claim for left leg contusion; sprain of the left shoulder and upper arm; and

sprain of the left knee and leg. Appellant stopped work on the date of injury and was placed on
the periodic rolls for temporary total disability.
Appellant was treated by Dr. Peter T. Hurley, a Board-certified orthopedic surgeon, who
performed left shoulder arthroscopic surgery on February 19, 2008. On June 12, 2008
Dr. Hurley noted some pathology in the C5-6 region pursuant to a recent cervical magnetic
resonance imaging (MRI) scan and opined that appellant’s current complaints of pain were
coming more from his neck than from his shoulder.
Dr. Hurley referred appellant to Dr. Russell Gilcrest, an osteopath. In a June 24, 2008
report, Dr. Gilcrest noted appellant’s complaints of left shoulder and neck pain with radiation to
the left posterior shoulder, lateral arm and radial forearm and radiation to the first and second
digit. Appellant experienced symptoms since his September 4, 2006 employment injury.
Examination revealed no significant tenderness in the cervical, thoracic or lumbar paraspinal
musculature. Range of motion of all peripheral joints in the upper and lower extremities was
within normal limits. Examination of all upper and lower joints demonstrated no evidence of
effusion, pain on palpation or crepitus. Cervical range of motion was as follows: extension was
to 15 degrees, flexion was to 35 degrees, right rotation was to 55 degrees, left rotation was to 60
degrees, right-side bending was to 10 degrees and left-side bending was to 10 degrees. An
October 26, 2007 MRI scan of the cervical spine showed significant bilateral uncovertebral
spondylosis at the C5-C6 level with resulting moderate to severe bilateral foraminal narrowing at
the C5-C6 level. An August 30, 2007 MRI scan of the left upper extremity revealed a mild
partial tear of the rotator cuff. Dr. Gilcrest diagnosed left C6 radiculitis; left C7 radiculitis and
left shoulder rotator cuff tendinitis.
The Office referred appellant, together with a statement of accepted facts and the medical
record, to Dr. Harrison Latimer, a Board-certified orthopedic surgeon, for examination and an
opinion on whether he had continuing residuals and/or disability related to the September 4,
2006 employment injury and whether his diagnosed C6-7 radiculitis and radicular shoulder pain
was causally related to that injury. In an April 16, 2009 report, Dr. Latimer provided a history of
injury and treatment. He reviewed the medical records and provided findings on examination,
which revealed limited cervical flexion of only five degrees. Dr. Latimer noted that appellant
appeared to move his head a little more freely during conversations, turning his head to rotate 15
degrees to the left and 80 degrees to the right. Extension was to 40 degrees; lateral bending was
10 degrees to the left and 30 degrees to the right. Appellant had full range of motion of the right
shoulder and full passive motion of the left shoulder. Muscles were symmetric bilaterally, with
no muscle wasting in the trapezius, inferspinatus, supraspinous, deltoid, biceps or triceps regions.
There was no notable instability of the left shoulder and no numbness in the digits of the left
hand.
The knee examination was essentially normal with full motion, no crepitations, normal
patellofemoral tracking, normal Lachman’s, normal anterior posterior drawer, normal varus and
valgus stress. Dr. Latimer opined that appellant’s accepted left shoulder sprain, contusion of the
left leg and sprain of the left knee had fully resolved. He further opined that appellant’s current
condition was not related to the accepted factors, but rather was related to cervical radiculitis
explained by the MRI scan showing severe bilateral foraminal stenosis at C5-C6; that his
shoulder problems were always related to that entity; and that he had no significant rotator cuff

2

problem in the shoulder based on the findings arthroscopically by his operative surgeon.
Dr. Latimer stated that appellant’s knee findings were minimal and MRI scans showed no
evidence of any resultant sustained residual injury. He opined that appellant had no medical
restrictions as a result of his September 4, 2008 injury, as his cervical condition has not been
accepted by the Office.
The Office asked Dr. Latimer to clarify his opinion as to whether appellant’s cervical
condition was causally related to his accepted injury. In a September 30, 2009 supplemental
report, Dr. Latimer found that the diagnosed conditions of cervical radiculopathy and bilateral
foraminal stenosis at C5-C6 were not related to the September 4, 2006 injury. He stated that
appellant’s significant bilateral uncovertebral spondylosis at C5-C6 with severe bilateral
foraminal narrowing constituted degenerative changes, which were unrelated to his September 4,
2006 injury.
In an October 26, 2009 report, Dr. Hurley noted that appellant continued to experience
left shoulder pain but had positive functional passive motion of the shoulder.
On November 14, 2009 the Office proposed to terminate appellant’s compensation and
medical benefits. Based on Dr. Latimer’s reports, it found that appellant no longer had any
disability or residuals related to the accepted September 4, 2006 injury. Appellant was afforded
30 days within which to submit any additional evidence.
Appellant submitted reports from Dr. Jeffrey A. Knapp, a Board-certified orthopedic
surgeon. On November 13, 2009 Dr. Knapp reported appellant’s complaints of having
intermittent problems with left shoulder and left arm pain following a 2006 work injury, as well
as radicular complaints into his hand and arm. On examination, appellant complained of pain in
his neck and shoulder reproduced with Spurling’s maneuver, as well as altered sensation in a C5
distribution to his thumb and index finger. Motor strength was normal. Cervical spine MRI scan
from 2007 revealed uncovertebral joint hypertrophy and neuroforaminal narrowing at C5-6
secondary to spondylogenic disc disease. Dr. Knapp diagnosed cervical radiculopathy suspect
secondary to neuroforaminal stenosis, spondylogenic disc disease C5-6. On December 21, 2009
Dr. Knapp reviewed the results of a December 10, 2009 MRI scan, which showed worsening
disc disease, spondylogenic change asymmetric to the left causing nerve compression and some
cord deformation, as well as milder changes at C4-5 and no significant nerve compression. He
diagnosed spondylogenic disc disease at C5-6 with stenosis and radiculopathy. Appellant also
submitted a report of a December 10, 2009 MRI scan of the cervical spine.1

1

Appellant also submitted duplicates of medical reports previously submitted and reviewed by the Office.

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By decision dated January 19, 2010, the Office finalized the termination of appellant’s
compensation benefits. It found that the weight of the evidence rested with the opinion of
Dr. Latimer, the Office referral physician.2
LEGAL PRECEDENT
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.3 The Office may not terminate compensation without
establishing that disability ceased or that it was no longer related to the employment.4 The
Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.5
The right to medical benefits for an accepted condition is not limited to the period of
entitlement to compensation for disability. To terminate authorization for medical treatment, the
Office must establish that an employee no longer has residuals of an employment-related
condition which require further medical treatment.6
ANALYSIS
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits on the grounds that he no longer had residuals of his accepted
employment injury.
Dr. Latimer, the Office’s referral physician, reviewed various diagnostic and imaging
studies and conducted his own physical examination on April 16, 2009. Based upon his
examination and review of the record, he opined that appellant had no current objective residuals
that were directly or indirectly attributable to his work injury. Dr. Latimer provided a
documented and reasoned opinion attributing appellant’s current cervical condition to cervical
radiculitis and preexisting severe bilateral foraminal stenosis at C5-C6. He opined that
appellant’s accepted left shoulder sprain, contusion of the left leg and sprain of the left knee had
fully resolved. In a September 30, 2009 supplemental report, Dr. Latimer opined that the
diagnosed conditions of cervical radiculopathy and bilateral foraminal stenosis at C5-C6 was not
related to the September 4, 2006 injury, explaining that appellant’s significant bilateral
2

The Board notes that appellant submitted additional evidence after the Office rendered its November 18, 2005
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before the Office at the time of its
final decision. Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 501.2(c);
Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). Appellant may submit
this evidence to the Office, together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20
C.F.R. § 10.606(b)(2).
3

I.J., 59 ECAB 408 (2008); Fermin G. Olascoaga, 13 ECAB 102, 104 (1961).

4

J.M., 58 ECAB 478 (2007); Anna M. Blaine, 26 ECAB 351 (1975).

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T.P., 58 ECAB 524 (2007); Larry Warner, 43 ECAB 1027 (1992).

6

Id. Furman G. Peake, 41 ECAB 361, 364 (1990).

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uncovertebral spondylosis at C5-C6 with severe bilateral foraminal narrowing constituted
degenerative changes, which were unrelated to his September 4, 2006 injury. The Board finds
that Dr. Latimer’s medical report is comprehensive, well rationalized and based on an accurate
factual and medical history.7
There is no other contemporaneous medical evidence establishing that appellant remained
disabled or continued to experience residuals of his employment-related injury. On June 12,
2008 Dr. Hurley observed some pathology in the C5-6 region pursuant to a recent cervical MRI
scan and opined that appellant’s current complaints of pain were coming more from his neck
than from his shoulder. On October 26, 2009 he noted that appellant continued to experience left
shoulder pain but had positive functional passive motion of the shoulder. Dr. Hurley’s reports do
not contain an opinion as to the cause of appellant’s shoulder condition. Medical evidence which
does not offer any opinion regarding the cause of an employee’s condition is of limited probative
value.8
On June 24, 2008 Dr. Gilcrest provided examination findings and diagnosed left C6
radiculitis; left C7 radiculitis and left shoulder rotator cuff tendinitis. As his report fails to
provide an opinion as to the cause of appellant’s diagnosed conditions, it is of diminished
probative value. The Board notes that Dr. Gilcrest’s report is dated more than a year prior to the
Office’s decision terminating benefits. Therefore, it is of limited probative value as to
appellant’s medical condition on that date.
On November 13, 2009 Dr. Knapp reported appellant’s complaints of pain in his neck
and shoulder, as well as altered sensation in a C5 distribution to his thumb and index finger. He
provided examination findings and diagnosed cervical radiculopathy suspect secondary to
neuroforaminal stenosis, spondylogenic disc disease C5-6. On December 21, 2010 Dr. Knapp
reviewed the results of a December 10, 2009 MRI scan and diagnosed spondylogenic disc
disease at C5-6 with stenosis and radiculopathy. As these reports do not contain any opinion as
to the cause of appellant’s diagnosed condition, they are of limited probative value and are
insufficient to establish a causal relationship between his cervical condition and the September 4,
2006 injury.9 Other medical evidence of record, such as MRI scan reports, which lacks an
opinion on causal relationship, does not constitute probative medical evidence.
The Board finds that Dr. Latimer’s well-rationalized medical opinion constitutes the
weight of the medical evidence and establishes that appellant no longer has residuals from his
September 4, 2006 employment injury. Accordingly, the Office properly terminated appellant’s
wage-loss compensation and medical benefits based on his opinion.

7

See K.E., 60 ECAB ___ (Docket No. 08-1461, issued December 17, 2008).

8

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

9

Id.

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CONCLUSION
The Board finds that the Office properly terminate appellant’s wage-loss and medical
benefits, effective January 19, 2010, on the grounds that he had no residuals or disability related
to his accepted September 4, 2006 injury.
ORDER
IT IS HEREBY ORDERED THAT the January 19, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 11, 2011
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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EQUAL EMPLOYMENT OPPORTUNITY
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COMMISSION, FIELD OFFICE, Cleveland, OH, )
Employer
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__________________________________________ )
K.H., Appellant

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

Docket No. 09-1651
Issued: June 3, 2010

Case Submitted on the Record

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

JURISDICTION
On June 22, 2009 appellant, through her representative, filed a timely appeal from the
June 3, 2009 merit decision of the Office of Workers’ Compensation Programs which found no
compensable factors of employment. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of the case.
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of
duty.
FACTUAL HISTORY
On July 1, 2008 appellant, then a 57-year-old federal investigator, filed a claim for
compensation alleging that she sustained a psychological injury in the performance of duty. She
first became aware of a causal relationship between her condition and her federal employment on
June 2, 2005.

Appellant explained that in mid 2005 her ability to perform her duties competently
became increasingly difficult. She began to worry about her caseload, the unresolved cases and
dealing with new management. Each reorganization came with new policies, procedures and a
lecture that “everything we had been doing was wrong and we needed to ‘step it up.’” Appellant
alleged unwritten policies that pushed the settlement of cases as quickly as possible. She
implicated an increased workload due to the attrition of investigators and work coming in from
outside her region or the west coast. Appellant stated that a new procedure required all
investigators to handle intake duties for an entire week on a rotating basis while still handling the
same number of cases. She alleged retaliation by her local director for challenging one of the
director’s decisions and having it overturned. After receiving her first unsatisfactory
performance review, the director attempted to remove her telecommuting privileges. Appellant
summarized her claim, as follows:
“The combination [of] the unmanageable case load, bosses telling me to close
‘cause’ cases regardless of the facts involving the case, the frequency of having to
spend an entire week on intake and my supervision attempting to revoke my
telecommuting privileges, for reasons the union found were in violation of union
contract, I had a nervous break down.”
On September 9, 2008 the immediate supervisor responded to appellant’s claim, noting
that investigative procedures had not changed since 1995. She stated that a reorganization
occurred in 2006 but did not change the role of the investigators. The supervisor stated
employees were never told things were done wrong. They were informed that different forms
were being required with an emphasis on wisely using limited resources to effectively process
cases.
The supervisor acknowledged that budget restraints prevented filling investigator
vacancies and that workload distributions were made throughout the country to balance
workloads nationwide. “These cases were equally divided among all staff.” She explained that
individual investigators never had any numerical production goals and that whenever the field
office lost staff, any office goals were proportionately reduced. The supervisor added:
“[Appellant’s] problem was that she failed to contact witnesses, return [tele]phone
calls and failed to follow cases through to completion. [She] had no class cases
and cases in her workload during FY 2007 were not complicated. [Appellant’s]
pending inventory was average.”
The supervisor worked with appellant daily over many years and appellant never
complained of her workload being excessive. She removed appellant’s telecommuting privileges
after numerous complaints from members of the public regarding her unresponsiveness to
telephone calls and e-mails. The supervisor denied discouraging appellant or any investigator
from finding cause. She stated that appellant never worked overtime or availed herself of
working credit hours. The supervisor stated that the field office had numerical goals, which were
the responsibility of supervisory and management staff and which were exceeded for at least the
past 10 years. She added that cases are required to be processed in a timely manner.

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The supervisor stated that she did adjust deadlines on appellant’s cases on several
occasions. She stated that management began reviewing charges prior to assignment to
investigators and mailing correspondence to the charging parties, which in most cases resolved
the case. Therefore, the only thing left for the investigator to do was to tab the case and prepare
the closure documents, which would take approximately one hour.
The supervisor stated that in early 2007 appellant advised that she was depressed and told
her about some personal issues. During 2007, she stated, appellant’s attitude toward work and
management changed. “Some days [appellant] was able to produce cases like a machine. Other
times, she went for weeks without turning in any cases.” The supervisor stated that appellant
would not conduct on-site investigations and wanted only to stay in the office or take work
home.
On September 12, 2008 appellant stated that early in her career she averaged 20 to 30
cases, but beginning in 2006 her caseload had increased to 60 to 80 cases due to cases from other
offices, increasing pressure from management to take more charges and a decrease in
investigators from about 18 to 10 to 12. She stated that, doing a week of intake duties, a new
procedure that took place in 2005-2006, left little or no time to perform regular investigator
duties. Because of the loss of investigators, the rotation at the intake desk went from every
six to eight weeks to every four to five weeks in 2007. As a result, appellant stated that she was
not able to close as many cases and her inventory increased causing stress and anxiety. She
stated that the pressure to close cases was most prevalent at the end of the fiscal year, when it
was important to management to reduce caseload inventory.
Appellant stated that she had deadlines. Although the agency did not allow management
to set numerical quotas for the investigators, she stated: “Everything we did revolved around
closing cases and then being assigned more. Each group’s goal was to close 100 cases a month
and if we were falling short we had increased management supervision and harassment to get
cases closed.” If they managed to close more than 100 cases, appellant explained, certain
resolved cases would be held for closure counts the next month.
Appellant noted that they had only four government vehicles to use for their monthly
requirements of on-site visits. This caused scheduling problems, postponements or use of private
vehicles, which added to her anxiety because some cases warranted on-site visits before a
determination of cause or no cause. Appellant clarified that the purpose of her claim was that her
job caused her anxiety and that she developed depression brought on by a combination of hostile
workplace, ever-increasing caseload and added duties.
Appellant alleged that she was being held to a higher standard because she was
Caucasian. She believed that the director had encouraged a female coworker to file a sexual
harassment complaint against her, which resulting in the interviewing of all female employees,
which in turn embarrassed appellant.
In mid 2005 appellant stated that she had difficulty getting her computer fixed. The
computer technician agreed to fix it only if the request came from management and if she left the
room. The director agreed, which made appellant feel like he was treating certain individuals
better than others. “This made a great impact of the fairness in the job, on my health, which

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continued to get increasingly worse.” Appellant alleged a difficult working relationship with the
director, which was exacerbated by her refusal to write up cause cases when there was little or no
evidence.
Appellant stated that, it became increasingly difficult to function in September 2007, as
the end of the fiscal year and the deadline to turn in cases was approaching and her
telecommuting privileges were revoked. The union advised that this was a violation of the
contract, so the process was postponed for two weeks. Appellant filed a grievance and on
September 17, 2008 while working at home, she had a nervous breakdown or panic attack.
In an undated statement received by the Office on October 21, 2008, the director stated
that he had no idea what appellant was talking about when she said she went over his head on a
case. He did not recall any such incident and any reversal of a decision in a particular case
would not, in any case, result in an adverse action against an investigator or have any impact on
the overall performance rating of the members of the district team.
On October 29, 2008 appellant responded to her supervisor’s statement. She stated that,
while prioritization procedures had not changed since 1995, the Cleveland office went through
major processing changes. Appellant worked under six different directors or Acting directors,
who had their own procedure for investigators to follow. She worked under three different
supervisors who had their own way of running their group in regards to processing cases.
Appellant noted that she and other employees complained about increased caseloads during
office meetings when management was present. She stated that she was vocal about it and her
supervisor was aware that she had complained. “I also personally complained to her about the
effect of out of state cases and intake duties were having on my other cases and their
processing.”
Appellant stated that she did not know about proportional reductions of office goals.
However, every time an investigator left, the caseload of other employees went up. “You cannot
anticipate the number of charges that will come in that still needed to be assigned to and resolved
by fewer investigators.” Appellant stated that there were e-mails from the director and her
supervisor informing investigators of the additional out of state cases they would be receiving for
processing and the numbers, for example, were 200 from this state, 150 from another state. She
submitted computer printouts showing the number of cases assigned and resolved and the
significant increase in her assigned caseload.
Appellant took issue with several points made by her supervisor. She noted that cases
were distributed in piles and unless the supervisor reviewed every one of her cases in 2006-07,
she would have no idea if the cases were complicated. Appellant stated that she earned
numerous credit hours, many of which were noted in time and attendance logs. Eventually, she
stated that, they were noted or tracked in other ways because of inspection. Appellant informed
her supervisor as early as the fall of 2005 that she was depressed and had experienced anxiety
nearly a year prior to that. “My decline was due to my job increasing my anxiety and caused by
depression.” Appellant contended that the director treated certain minorities more favorably than
whites.

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In a decision dated November 10, 2008, the Office denied appellant’s claim for
compensation. It found that the evidence was insufficient to establish any compensable factor of
employment.
Appellant requested an oral hearing, which was held on March 19, 2009. She reiterated
many of the points raised in her correspondence, noting that 18 investigators became 10 to 12
and they started getting cases from New Orleans, New York and Seattle. When appellant tried to
talk to charging parties in Seattle, whose time zone was three hours later, she had to take her
cases home to try to talk to them at 8, 9 or 10 o’clock at night. She stated that working intake
duty for a week at a time meant that she could not work on her inventory and she became
frustrated with her inability to clear her caseload. Doing on-site visits to places such as
Columbus meant appellant could not work on her files.
After the hearing, appellant’s supervisor responded to the testimony. She first became
aware that appellant was taking anti-anxiety medication in 2005. Appellant told the supervisor
that she was having panic attacks and told her about some things that were upsetting her. “She
told me about some personal issues and her concern about changes the Philadelphia District
office was implementing in the Cleveland Field office.”
The supervisor stated that the manner in which she assigned cases changed. Rather than
assigning a new case every time an investigator closed one, each investigator received an equal
share every month. Additionally, the supervisor began working on cases to assist and gave the
investigators full credit for processing their cases. However, appellant’s caseload had increased
and her resolutions had decreased. She was no longer conducting on-site visits and her cases
were aging. The supervisor strongly disputed that the unavailability of automobiles led to
appellant’s inability to conduct on-site visits. When the automobiles were booked, the
investigator had the option of taking their private vehicles and receiving mileage and they were
required to conduct one on-site visit per month. The supervisor stated: “[Appellant’s]
performance problems stemmed from the fact that she was told on more than one occasion to
conduct an on-site on a particular case and failed to do so. This inability to follow instructions
led to her removal from participation in telecommuting.”
In a decision dated June 3, 2009, the Office hearing representative affirmed the denial of
appellant’s claim for compensation. The hearing representative found that she failed to establish
a compensable factor of employment. While it was accepted that caseloads increased due to the
loss of investigators and cases received from other districts, the supervisor noted that the work
was divided equally among the staff. The hearing representative found that, individual
investigators had no numerical production goals, office goals were proportionately reduced by
staff reductions and the agency extended appellant’s deadlines and assisted with her caseload.
On appeal, appellant contends that the June 3, 2009 Office hearing representative failed
to adequately address her allegations and relied on the response of her supervisor, especially with
respect to the numerous changes in the workplace and the size of her caseload. She added that
the mere fact that others were assigned approximately the same number of cases did not negate
the fact that her workload was too great.

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LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for disability of an
employee resulting from personal injury sustained while in the performance of duty.1 The phrase
“sustained while in the performance of duty” is regarded as the equivalent of the coverage
formula commonly found in workers’ compensation laws, namely, “arising out of and in the
course of performance.”2 “In the course of employment” relates to the elements of time, place
and work activity. To arise in the course of employment, an injury must occur at a time when
the employee may reasonably be said to be engaged in her employer’s business, at a place where
she may reasonably be expected to be in connection with her employment and while she was
reasonably fulfilling the duties of her employment or engaged in doing something incidental
thereto. The employee must also establish an injury “arising out of the employment.” To arise
out of employment, the injury must have a causal connection to the employment, either by
precipitation, aggravation or acceleration.3
When an employee experiences stress in carrying out her employment duties or has fear
and anxiety regarding her ability to carry out her duties and the medical evidence establishes that
the disability resulted from her reaction to such situation, the disability is generally regarded as
due to an injury arising out of and in the course of employment. This is true when the
employee’s disability resulted from her reaction to a special assignment or requirement imposed
by the employing establishment or by the nature of her work. By contrast, there are disabilities
having some kind of causal connection with the employment that are not covered by workers’
compensation because they are not found to have arisen out of employment, such as when
disability results from an employee’s fear of a reduction-in-force or frustration from not being
permitted to work in a particular environment or to hold a particular position.4
Workers’ compensation does not cover a psychological reaction to an administrative or
personnel action unless the evidence shows error or abuse on the part of the employing
establishment.5 The Board has held that actions of an employer which the employee
characterizes as harassment or discrimination may constitute a factor of employment giving rise
to coverage under the Act, but there must be some evidence that harassment or discrimination
did in fact occur. As a rule, allegations alone by a claimant are insufficient to establish a factual
basis for a psychological condition claim.6 Mere perceptions and feelings of harassment or
1

5 U.S.C. § 8102(a).

2

This construction makes the statute actively effective in those situations generally recognized as properly within
the scope of workers’ compensation law. Bernard D. Blum, 1 ECAB 1 (1947).
3

See Eugene G. Chin, 39 ECAB 598 (1988); Clayton Varner, 37 ECAB 248 (1985); Thelma B. Barenkamp
(Joseph L. Barenkamp), 5 ECAB 228 (1952).
4

Lillian Cutler, 28 ECAB 125 (1976).

5

Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991).

6

See Arthur F. Hougens, 42 ECAB 455 (1991); Ruthie M. Evans, 41 ECAB 416 (1990) (in each case the Board
looked beyond the claimant’s allegations of unfair treatment to determine if the evidence corroborated such
allegations).

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discrimination will not support an award of compensation. The claimant must substantiate such
allegations with probative and reliable evidence.7 The primary reason for requiring factual
evidence from the claimant in support of his or her allegations of stress in the workplace is to
establish a basis in fact for the contentions made, as opposed to mere perceptions of the claimant,
which in turn may be fully examined and evaluated by the Office and the Board.8
ANALYSIS
The Office denied appellant’s claim for compensation on the grounds that she failed to
establish a compensable factor of employment. In the June 3, 2009 decision, it accepted as
factual that she experienced an increased caseload due to the reassignment of cases from other
districts and a reduction in the number of investigations at her Office. The Board has held that
workload is a compensable factor of employment in an emotional reaction to a demonstrated
increase under Cutler.9 Appellant stated that her caseload went from 20 to 30 cases to 60 to 80
cases beginning in 2006. She was required to handle intake duties for a week at a time beginning
in 2005-06, giving her less time to perform her regular investigator duties. The reduction of
investigators in appellant’s group, increased her rotation to intake duties in frequency from every
six to eight weeks to four to five weeks in 2007.
Appellant’s supervisor did not dispute appellant’s characterization of her workload. She
acknowledged that budget restraints prevented filling investigator vacancies and that workloads
throughout the country were redistributed. The supervisor noted that these additional cases were
equally divided among the staff. The Office hearing representative relied on the equal
distribution of cases as grounds for finding that appellant’s increased caseload was not
compensable. It is well established, however, that an increased workload is no less compensable
because other employees experienced the same increase. While the individual investigators had
no numerical production quotas, the supervisor acknowledged that investigators faced deadlines
and were required to process cases in a timely manner. The fact that she extended appellant’s
deadlines and assisted with her caseload does not take appellant out of coverage under Cutler
with regard to her regular and specially assigned duties as an investigator.
The Board finds that appellant has established a compensable factor of employment. The
Board will set aside the Office’s June 3, 2009 decision and remand the case for further action.
The Office shall review the medical opinion evidence to determine whether a causal relationship
exists between the compensable factor of employment and appellant’s diagnosed condition.
After such further development as may be warranted, the Office shall issue an appropriate final
decision on appellant’s claim for compensation.

7

Joel Parker, Sr., 43 ECAB 220, 225 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990) (for harassment to
give rise to a compensable disability, there must be some evidence that harassment or discrimination did in fact
occur); Pamela R. Rice, 38 ECAB 838 (1987) (claimant failed to establish that the incidents or actions which she
characterized as harassment actually occurred).
8

Paul Trotman-Hall, 45 ECAB 229 (1993) (concurring opinion of Michael E. Groom, Alternate Member).

9

C.F., 60 ECAB ___ (Docket No. 08-1102, issued October 10, 2008).

7

Appellant explained that she had a nervous breakdown due to a combination of factors,
including her caseload and the frequency of her intake duties. As the latter contributed to the
difficulty she had with the former, these relate to the same factor of employment. Other factors
included her bosses telling her to close cause cases regardless of the facts. The supervisor
disputed this. This is not a compensable factor. Even if she were so instructed or encouraged to
resolve cases before the end of the quarter or fiscal year, appellant’s disagreement with how her
superiors managed the field office is not a compensable basis for the payment of compensation
benefits.
Appellant implicated the revocation of her telecommuting privileges. That was an
administrative decision and, in the absence of proof that management acted erroneously,
appellant has not established that it is a compensable factor of employment. Appellant alleged
that the action was in violation of the union contract and retaliatory, but she submitted no
evidence to substantiate her claim. She filed a grievance over the matter but submitted no
decision finding that management’s actions were in error. Appellant also alleged a hostile work
environment and discrimination based on race, but again, she submitted no proof. She has not
established her allegations against the director of the field office.
CONCLUSION
The Board finds that this case is not in posture for decision. Appellant has established a
compensable increase in her workload from 2005 to 2007. The Office, therefore, must evaluate
the medical opinion evidence to determine whether this factor of employment caused or
contributed to her diagnosed condition.

8

ORDER
IT IS HEREBY ORDERED THAT the June 3, 2009 decision of the Office of Workers’
Compensation Programs is set aside and the case remanded for further action consistent with this
opinion.
Issued: June 3, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
DEPARTMENT OF THE NAVY, KINGS BAY
SUBMARINE BASE, Kings Bay, GA, Employer
__________________________________________

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

Docket No. 11-775
Issued: October 11, 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 February 8, 2011 appellant, through his attorney, filed a timely appeal from an
October 4, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying his claim for an increased schedule award. Pursuant to the Federal Employees’
Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has more than a four percent permanent impairment of the
left leg for which he received a schedule award.
FACTUAL HISTORY
This case has previously been before the Board. On January 28, 2010 the Board affirmed
an April 13, 2009 nonmerit decision denying appellant’s request to reopen the case for further
1

5 U.S.C. § 8101 et seq.

merit review under 5 U.S.C. § 8128.2 The Board found that he had not submitted sufficient
evidence to warrant reopening his case for further merit review of OWCP’s May 30, 2007
decision granting him a schedule award for four percent permanent impairment of the left lower
extremity. The facts and circumstances of the case as set forth in the prior decision are hereby
incorporated by reference.
In an impairment evaluation dated March 14, 2010, Dr. William N. Grant, a Boardcertified internist, diagnosed a permanent aggravation of spondylolisthesis. On examination he
measured range of motion of the lumbar spine and discussed appellant’s complaints of left leg
pain and spasms and numbness in the left foot. Using the American Medical Association,
Guides to the Evaluation of Permanent Impairment (6th ed. 2009) (A.M.A., Guides), Dr. Grant
identified a class 1 impairment due to spondylolisthesis using Table 17-4 on page 570, which is
applicable to determining impairments of the lumbar spine. He applied grade modifiers and
concluded that appellant had nine percent impairment of the lumbar spine.
On March 19, 2010 appellant, through counsel, requested an increased schedule award.
OWCP’s medical adviser reviewed Dr. Grant’s report on March 25, 2010 and noted that FECA
did not provide an award for an impairment to the spine. He concluded that the medical
evidence did not establish an additional lower extremity impairment.
By decision dated April 21, 2010, OWCP denied appellant’s claim for an increased
schedule award. On April 27, 2010 counsel requested a telephone hearing.
In a report dated May 18, 2010, Dr. Grant noted that appellant experienced pain and loss
of sensation in the left leg and had reduced range of motion of the spine. He found that he had a
class 2 impairment due to a moderate motor deficit according to Table 16-12 on page 535.
Dr. Grant applied a grade modifier of two for Functional History (GMFH) and Physical
Examination (GMPE), to find no net adjustment from the default value for a class 2 impairment.
He concluded that appellant had 23 percent lower extremity impairment.
At the hearing, held on August 2, 2010, counsel argued that OWCP’s medical adviser
should review Dr. Grant’s May 18, 2010 finding of a 23 percent lower extremity impairment.
By decision dated October 4, 2010, OWCP’s hearing representative affirmed the
April 21, 2010 decision. He found that Dr. Grant provided no measurements or explanation in
support of his conclusion.

2

OWCP accepted that appellant sustained a permanent aggravation of spondylolisthesis at L5-S1 due to factors of
his federal employment. Appellant underwent a lumbar spinal fusion in April 2005. By decision dated May 30,
2007, OWCP granted him a schedule award for four percent permanent impairment of the left lower extremity.

2

LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing federal regulations4 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.5 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.6
The sixth edition requires identifying the impairment class for the Diagnosed Condition
(CDX), which is then adjusted by grade modifiers based on GMFH, GMPE and Clinical Studies
(GMCS).7 The net adjustment formula is GMFH-CDX + GMPE-CDX + GMCS-CDX.
Before the A.M.A., Guides can be utilized, a description of appellant’s impairment must
be obtained from his physician. In obtaining medical evidence required for a schedule award,
the evaluation made by the attending physician must include a description of the impairment
including, where applicable, the loss in degrees of active and passive motion of the affected
member or function, the amount of any atrophy or deformity, decreases in strength or
disturbance of sensation or other pertinent descriptions of the impairment. This description must
be in sufficient detail so that the claims examiner and others reviewing the file will be able to
clearly visualize the impairment with its resulting restrictions and limitations.8
ANALYSIS
OWCP accepted that appellant sustained a permanent aggravation of lumbar
spondylolisthesis at L5-S1. In April 2005 appellant underwent a lumbar spinal fusion. By
decision dated May 30, 2007, OWCP granted him a schedule award for four percent permanent
impairment of the left lower extremity under the fifth edition of the A.M.A., Guides.
On March 19, 2010 appellant requested an increased schedule award. He submitted a
March 14, 2010 impairment evaluation from Dr. Grant, who found that he had nine percent
permanent impairment of the lumbar spine. OWCP’s medical adviser reviewed Dr. Grant’s
impairment evaluation and properly found that FECA did not provide a schedule award for the
back. Thus, Dr. Grant’s March 14, 2010 impairment evaluation was insufficient to support
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id. at § 10.404(a).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
7

A.M.A., Guides 494-531.

8

Peter C. Belkind, 56 ECAB 580 (2005); Vanessa Young, 55 ECAB 575 (2004).

3

appellant’s schedule award claim as neither FECA nor the regulations authorize a schedule
award for a permanent impairment of the spine, neck or back.9
On May 18, 2010 Dr. Grant discussed appellant’s complaints of left leg pain and
decreased sensation and reduced spinal motion. He identified the diagnosis as a class 2 moderate
motor deficit of a peripheral nerve according to Table 16-12 of the sixth edition of the A.M.A.,
Guides. Dr. Grant did not specifically identify the nerve used. He further found a grade 2
modifier for GMFH and GMPE, which he determined yielded a net adjustment of zero in the
default value of 23 percent. Dr. Grant did not explain how appellant’s GMFH or the findings on
GMPE supported the grade modifiers. Further, it does not appear that a moderate motor deficit
of a peripheral nerve yields 23 percent impairment as a default value under Table 16-12. OWCP
procedures and Board precedent require that the record contain a medical report with a detailed
description of the impairment.10 This description must be in sufficient detail so that the claims
examiner and others reviewing the file will be able to clearly visualize the impairment with its
resulting restrictions and limitations.11 Dr. Grant did not provide detailed findings on physical
examination, identify the impaired peripheral nerve or explain how he chose the grade modifiers;
consequently, his opinion lacks the clinical findings necessary to determine the extent of
permanent impairment of the lower extremities.
Appellant has the burden of proof to establish that he is entitled to schedule award
compensation.12 As he has not submitted medical evidence sufficient to show that he has an
increased permanent impairment of the left lower extremity, he has not established his claim for
an increased schedule award.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no more than four percent permanent impairment of
the left lower extremity for which he received a schedule award.

9

5 U.S.C. § 8101(19); Timothy J. McGuire, 34 ECAB 189 (1982).

10

See Peter C. Belkind, supra note 9; Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and
Permanent Disability Claims, Chapter 2.808.6(c)(1) (August 2002).
11

See D.N., 59 ECAB 576 (2008); Robert B. Rozelle, 44 ECAB 615 (1993).

12

See D.H., 58 ECAB 358 (2007); Annette M. Dent, 44 ECAB 403 (1993).

4

ORDER
IT IS HEREBY ORDERED THAT the October 4, 2010 merit decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 11, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hartford, CT, Employer
__________________________________________

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

Docket No. 09-2217
Issued: September 8, 2010

Case Submitted on the Record

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

JURISDICTION
On September 4, 2009 appellant filed a timely appeal of an August 24, 2009 decision of
the Office of Workers’ Compensation Programs affirming an April 30, 2009 schedule award
decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of this case.
ISSUE
The issue is whether appellant is entitled to greater than 11 percent impairment of the
right lower extremity for which he received a schedule award.
FACTUAL HISTORY
On January 31, 1994 appellant, then a 44-year-old mail handler, filed a traumatic injury
claim alleging that on January 18, 1994 he dislocated his right knee after slipping on ice in the
performance of duty. He stopped work on January 18, 1994 and returned to restricted duty on

February 3, 1994. The Office accepted appellant’s claim for right knee dislocation and
authorized arthroscopic surgery.1
Initial reports from Dr. Michael Kruger, an orthopedic surgeon, diagnosed patella
subluxation secondary to violent contracture of quadriceps in a fall and quadriceps atrophy. He
recommended physical therapy. On July 21, 1994 Dr. Kruger performed an arthroscopic lateral
synovectomy on appellant’s right knee. In a January 16, 1995 report, he opined that appellant
had reached maximum medical improvement and that there would be little improvement with
further therapy. Dr. Kruger noted that appellant’s leg muscle had reached its maximum point
since his preexisting knee injury and surgery.
In a May 17, 1995 report, Dr. Kruger diagnosed lumbar sprain and mechanical back
symptoms. He noted that appellant had preexisting back symptoms that had bothered him since
using crutches following surgery. Dr. Kruger determined that appellant’s right knee had reached
maximum medical improvement, and that based on the fourth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) appellant had
eight percent impairment of the right knee.2
Appellant filed a schedule award claim for his right knee on March 21, 2008. He
submitted a March 13, 2008 report from Dr. Steven Selden, a Board-certified orthopedic
surgeon, whose examination revealed well-healed surgical scars for both knees, satisfactory gait,
difficulty with full extension of the knees and slight patellofemoral crepitus. Dr. Selden
indicated that appellant’s patellae were very loose. There was no gross varus or valgus
instability and no appreciable effusions. He opined that Dr. Kruger’s assignment of eight percent
right knee impairment was accurate and remained in effect.
In a December 15, 2008 report, Dr. George Cohen, an Office medical adviser, reviewed
Dr. Selden’s March 13, 2008 report and opined that it was not possible to determine appellant’s
impairment based on the record. Dr. Cohen requested a report with measurements of motions of
each knee as there appeared to be impairment for pain and loss of motion. He suggested that
such a report could be requested from Dr. Selden. In December 18, 2008 letter, the Office
requested that Dr. Selden provide a rationalized medical opinion regarding appellant’s
impairment rating using applicable figures and tables of the fifth edition of the A.M.A., Guides.
A December 29, 2008 statement from Dr. Selden disagreed with the Office’s statement
that his March 13, 2008 report was inadequate because it did not record appellant’s knee range of
motion. He noted that Dr. Kruger performed surgery on appellant’s right knee in July 1994 and
assessed eight percent impairment. Dr. Selden reiterated that the rating was appropriate. He
noted that the A.M.A., Guides were used but that it was not entirely reliable to completely and
adequately address the permanency of appellant’s condition.
1

The Office also accepted a recurrence of disability claim beginning March 8, 1994.

2

Appellant filed a traumatic injury claim for his left knee on May 20, 1995. This was developed as case number
xxxxxx740 and was combined with the present case. The Office accepted the claim for left knee strain and awarded
him a schedule award of seven percent impairment of the left lower extremity. There are no issues regarding this
claim presently before the Board.

2

On January 7, 2009 appellant asked that the Office help him find another physician due to
Dr. Selden’s refusal to provide a report in accordance to the A.M.A., Guides.
On January 16, 2009 the Office referred appellant to Dr. Thomas Stevens, a Boardcertified orthopedic surgeon, for a referee evaluation to resolve the conflict in medical opinion
between Dr. Selden, appellant’s treating physician, and Dr. Cohen, an Office medical adviser.
In a February 2, 2009 report, Dr. Stevens provided a detailed summary of appellant’s
history of injury and treatment received. Upon examination he measured 44 centimeters for
appellant’s left knee circumference and 41.5 centimeters for appellant’s right knee and noted
some atrophy of the right distal thigh as compared to the left thigh. Dr. Stevens found that both
patellae appeared to have excessive laxity and increased medial to lateral translation. He also
found no effusion in either knee and no medial or lateral instability. Dr. Stevens noted gross
deformity of the right knee consistent with early arthritis and some stiffness in both hips with
right worse than left. Extension strength of the right lower leg when sitting was 3.5 of 5 with
patella femoral crepitation and discomfort. Appellant’s neurovascular examination was within
normal limits. Dr. Stevens measured appellant’s right leg flexion to 130 degrees in the supine
position with full extension. X-rays of both knees with weight bearing upright and sunrise views
taken during examination revealed marked tilting of the right patella and an area of arthritic
change was present on the sunrise view of the right patella. Dr. Stevens noted bipartite patella,
arthritic changes under the right patellar joint and degenerative changes of the lower lumbar
spine. He indicated that appellant had reached maximum medical improvement. Dr. Stevens
opined that based on the x-rays and atrophy with gross deformity that appellant had 10 percent
right knee impairment based on the changes that had developed since Dr. Kruger last evaluated
him.
On February 13, 2009 the Office requested that Dr. Stevens provide page numbers, tables
and figures of the A.M.A., Guides that he used to support his impairment findings.
In a February 18, 2009 report, Dr. David Krohn, a Board-certified internist and an Office
medical adviser, reviewed Dr. Stevens’ findings dated February 2, 2009. He determined that
based on Table 17-6 on page 530 of the A.M.A., Guides, appellant’s right thigh atrophy
corresponded to 11 percent impairment. Dr. Krohn also determined that, based on Table 17-33
on page 546 of the A.M.A., Guides, appellant had seven percent impairment for patellar
subluxation with residual instability. He combined 11 percent right thigh atrophy impairment
with 7 percent patellar subluxation impairment to derive 17 percent right lower extremity
impairment based on the Combined Values Chart on page 604 of the A.M.A., Guides. Dr. Krohn
noted that appellant reached maximum medical improvement for his right knee on May 17, 2005
when Dr. Kruger indicated no further intervention was necessary. He disagreed with
Dr. Stevens’ opinion as Dr. Stevens claimed that appellant’s knee impairment was due to range
of motion, but the medical adviser found no impairment based on flexion and extension
measurements in his report. Dr. Krohn also noted that Dr. Stevens did not specifically indicate a
further basis upon which he established his impairment ratings. He further noted that
Dr. Stevens claimed the right knee impairment rating was based on x-rays, atrophy and
deformity findings but the medical adviser found an insufficient basis from x-ray reports of the
knees to claim impairment for joint space loss.

3

In a February 23, 2009 supplemental report, Dr. Stevens opined that based on Chapter 17
of the fifth edition of the A.M.A., Guides, appellant had 10 percent permanent impairment of
each knee. He found that appellant’s right knee had atrophy, weakness and arthritis as well as
2.5 centimeter atrophy of the right quadriceps 10 centimeters above the patella. Dr. Stevens
indicated that Table 17-6 gave him 3 to 4 percent whole person impairment that converted to 8 to
13 percent impairment of the right leg. He noted that, based on his evaluation and the A.M.A.,
Guides, appellant had 10 percent permanent impairment of the right leg.
On February 24, 2009 the Office asked that Dr. Krohn review Dr. Stevens’ February 23,
2009 report and indicate whether he agreed with Dr. Stevens and to explain any differences he
had with Dr. Stevens. In a February 24, 2009 report, Dr. Krohn opined that Dr. Stevens’
description of arthritic changes on the sunrise view of appellant’s right patella had no basis
within the A.M.A., Guides upon which to assign a schedule award for such a nonspecific
description of arthritis. He noted that Table 17-31 on page 544 of the A.M.A., Guides was very
specific regarding schedule award findings for arthritis on x-rays of the lower extremities.
Dr. Krohn opined that appellant did not fulfill the requirements for such impairment. He agreed
with Dr. Stevens that 2.5 centimeters atrophy of the right thigh was ratable. Dr. Krohn advised
that this corresponded to 11 percent impairment of the right leg in a range of potential
impairments from 8 to 13 percent.
In an April 20, 2009 report, Dr. Barry Levine, a Board certified internist and an Office
medical adviser3 noted that Dr. Stevens evaluated appellant on February 2, 2009 with findings of
44 centimeters of the left thigh and 41.5 right thigh circumference, 3.5 of 5 right extension
strength and 130 degrees right flexion. He opined that, based on right quadriceps atrophy,
appellant had 10 percent right lower extremity impairment according to Table 17.6 on page 530
of the A.M.A., Guides. Dr. Levine also noted that appellant reached maximum medical
improvement on February 2, 2009.
In an April 30, 2009 decision, the Office issued appellant a schedule award for 11
percent permanent impairment of the right lower extremity. It paid appellant compensation for
31.68 weeks from May 17 to December 24, 2005.4
Appellant requested a review of the written record on May 18, 2009. In a statement of
the same date, he noted that his former representative informed him that the Office had discretion
regarding “minimum and maximum time of payment for disability awards.” Appellant asserted
that he should be compensated “somewhere in the middle or maximum due to the amount of
pain” he suffered daily. He also asserted that the minimum amount he received was not fair.
In an August 24, 2009 decision, an Office hearing representative affirmed the April 30,
2009 decision finding that the Office medical adviser properly determined appellant’s
impairment rating as 11 percent right lower extremity impairment.
3

On April 17, 2009 the Office requested that the Office medical adviser evaluate Dr. Stevens’ February 18 and
23, 2009 reports regarding impairment.
4

On June 11, 2009 the Office adjusted appellant’s schedule award compensation to reflect payment rate at the
augmented 75 percent rate as he had a dependent.

4

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act5 and its
implementing regulations set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. The Act, however, does not specify the manner in which the percentage loss of a
member shall be determined. The method used in making such determination is a matter which
rests in the sounds discretion of the Office. 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 the Office for evaluating
schedule losses and the Board has concurred in such adoption.6
ANALYSIS
Appellant received a schedule award for 11 percent impairment for the right leg due to
his accepted right knee dislocation. The Office found that a conflict in medical opinion existed
between Dr. Selden, appellant’s treating physician, and Dr. Cohen, an Office medical adviser,
regarding the impairment rating for appellant’s right lower extremity. Section 8123(a) of the Act
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.7 A conflict under section 8123(a) cannot exist unless there is a
conflict between an attending physician and an Office physician.8 The Board finds that the
evidence from these physicians was not sufficient to create a conflict in medical opinion. In a
December 15, 2008 report, Dr. Cohen did not determine the percentage of appellant’s right leg
impairment; rather he requested a report with measurements regarding each knee. Additionally,
Dr. Selden’s March 13, 2008 report is of little probative value as he did not explain how his
impairment rating was made in accordance with the A.M.A., Guides.9 Based on the nature of the
reports from Drs. Selden and Cohen, there was no medical conflict and the Office improperly
designated Dr. Stevens as an impartial medical specialist.
However, the Board finds that, although Dr. Stevens’ report is not entitled to the special
weight afforded to the opinion of an impartial medical specialist resolving a conflict in medical
opinion, his report can still be considered for its own intrinsic value and can still constitute the

5

5 U.S.C. §§ 8101-8193. See 5 U.S.C. § 8107.

6

See 20 C.F.R. § 10.404; R.D., 59 ECAB ___ (Docket No. 07-379, issued October 2, 2007).

7

5 U.S.C. § 8123(a).

8

Delphia Y. Jackson, 55 ECAB 373 (2004).

9

See I.F., 60 ECAB ___ (Docket No. 08-2321, issued May 21, 2009) (an opinion which is not based upon the
standards adopted by the Office and approved by the Board as appropriate for evaluating schedule losses is of
diminished probative value in determining the extent of permanent impairment).

5

weight of the medical evidence.10 Also, as Dr. Stevens is an Office-referred physician, his
examination and opinion constitute a second opinion.11
Dr. Stevens’ February 2 and 23, 2009 reports constitute the most reliable and probative
evidence regarding whether appellant has more than 11 percent impairment of the right leg.
These are also the most recent reports from an examining physician that purport to rate
impairment under the A.M.A., Guides. Dr. Stevens reviewed the medical evidence and provided
detailed findings on examination in accordance with the A.M.A., Guides. In his February 2,
2009 report, he found right thigh atrophy as appellant’s left thigh measured 44 centimeters and
his right thigh measured 41.5 centimeters. Examination also revealed normal knee range of
motion as appellant had full extension and 130 degrees of flexion. Although Dr. Stevens noted
that x-ray findings revealed arthritic changes in the right patellar joint, he calculated 10 percent
right knee impairment based on appellant’s atrophy. In a February 23, 2009 supplemental report,
he explained that he determined 10 percent right knee impairment based on Table 17-6 on page
530 of the A.M.A., Guides. Dr. Stevens noted that 2.5 centimeters of right thigh atrophy12 fell
within a range of 8 to 13 percent lower extremity impairment, of which he assigned 10 percent
impairment within that range. He noted that this was also the total impairment for appellant’s
right leg.
In the February 18, 2009 report, Dr. Krohn found that appellant had 11 percent right thigh
atrophy impairment based on a 2.5 centimeter difference in circumference, according to Table
17-6 on page 530 of the A.M.A., Guides. He also opined that appellant had 7 percent
impairment for patellar subluxation with residual instability, citing Table 17-33 on page 546.
Using the Combined Values Chart on page 604, he concluded that appellant had 17 percent right
leg impairment. However, Dr. Krohn improperly combined these impairments as Table 17-2 on
page 526 indicates that atrophy cannot be combined with patellar subluxation, which is a
diagnosis-based estimate. With regard to the atrophy finding, his finding is generally consistent
with that of Dr. Stevens. Furthermore, in his February 24, 2009 report, based on a review of
Dr. Stevens’ February 23, 2009 report, Dr. Krohn opined that appellant had 11 percent right leg
impairment based on atrophy. Similarly, Dr. Levin, another Office medical adviser, opined in an
April 20, 2009 report that appellant had 10 percent right leg impairment based on atrophy.
Neither Office medical adviser set forth any basis, pursuant to a proper application of the
A.M.A., Guides, to support any greater impairment of the right leg. The Board finds that any
error in the discrepancy of the impairment rating due to thigh atrophy between Dr. Stevens and
Dr. Krohn is harmless as the discrepancy involves a range within Table 17-6 and appellant
received the benefit of an award for 11 percent impairment instead of 10 percent.

10

See Cleopatra McDougal-Saddler, 47 ECAB 480 (1996); see also Rosa Whitfield Swain, 38 ECAB 368 (1987).

11

See Pierre W. Peterson, 39 ECAB 955 (1988) (where the Board found that the opinion of a physician
improperly designated as an impartial specialist constituted a second opinion and was entitled to the same weight as
the other reports of record).
12

Dr. Stevens determined appellant’s right thigh atrophy by subtracting 44 centimeters of left thigh circumference
by 41.5 centimeters of right thigh circumference to derive 2.5 centimeters as the difference in circumference, in
accordance with Table 17-6.

6

For these reasons, the Board finds that the weight of the medical evidence rests with
Dr. Stevens whose opinion and findings support that appellant has no greater permanent
impairment of the right leg than that for which he has received a schedule award.
On appeal, appellant asserts that 30 weeks of schedule award compensation is insufficient
as he has daily pain and suffering. However, he was actually awarded 31.68 weeks of
compensation. Moreover, this award was properly calculated by multiplying 288 weeks of
compensation for total, or 100 percent, right leg loss by 11 percent permanent impairment of the
right lower extremity.13 Additionally, the Board has held that factors such as limitations on daily
activities are not considered in the calculation of a schedule award.14
CONCLUSION
The Board finds that appellant has no more than 11 percent impairment of the right lower
extremity for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated August 24 and April 30, 2009 are affirmed, as modified.
Issued: September 8, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

13

See 20 C.F.R. § 10.404; see also 5 U.S.C. § 8107(c)(2).

14

E.L., 59 ECAB ___ (Docket No. 07-2421, issued March 10, 2008).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.D., Appellant
and
DEPARMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Bronx, NY, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1136
Issued: November 9, 2017

Case Submitted on the Record

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

JURISDICTION
On May 2, 2017 appellant, through counsel, filed a timely appeal from a March 6, 2017
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.3
1

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

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the decision. Since the Board’s
jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the Board may not
consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57 ECAB
126 (2005). Appellant may submit that evidence to OWCP along with a request for reconsideration, pursuant to 5
U.S.C. § 8128(1) and 20 C.F.R. § 10.606(b)(3).

ISSUE
The issue is whether appellant met his burden of proof to establish cervical conditions
causally related to the accepted August 24, 2016 employment incident.
FACTUAL HISTORY
On August 30, 2016 appellant, then a 59-year-old laborer, filed a traumatic injury claim
(Form CA-1) alleging that on August 24, 2016 he sustained head and neck injuries, a fractured
cheek bone, bruised neck spasm, and back spasm when he fell while removing a lawn mower
from a large container. He stopped work on August 31, 2016.
OWCP received employing establishment medical reports dated August 24, 2016.
Appellant’s history of injury was related as “employee walking backwards removing lawn
mower from a container, he tripped, fell backwards into a hole and hit his head then hit the right
side of his face.” Computerized tomography (CT) scans of the cervical spine and maxillofascial
area were interpreted by Dr. Gabriel Pivawer, a Board-certified diagnostic radiologist, as
showing a mild depressed right zytomatic fracture and no evidence of cervical fracture. Cervical
x-rays were interpreted by Dr. Radoslav T. Toshkoff, an osteopathic physician, as showing some
reversal of normal cervical lordosis centered at C5, chronic degenerative changes, and no
definite evidence of acute fracture.
In a September 8, 2016 report, Dr. Surinder P. Jindal, an examining Board-certified
neurologist, diagnosed postconcussion syndrome and cervical myofascial pain. He reported that
appellant sustained head and neck injuries on August 24, 2016 when he tripped and fell at work
while removing a lawn mower from a metal container. A neurological examination was
performed which revealed decreased sensation in the C5-6 distribution, paraspinal cervical
muscle tenderness and spasm, 20 degrees right lateral flexion, 30 degrees extension, no muscle
hypertrophy or atrophy, no fasciculation, 4/5 left side strength and symmetrical bilateral deep
tendon reflexes, and bilateral toe flexor responses. A review of a CT scan showed no cervical
fracture. Dr. Jindal completed a work capacity evaluation musculoskeletal (Form OWCP-5c)
noting that appellant was disabled from work for four weeks due to cervical, head, and facial
trauma.
On a September 8, 2016 prescription note Dr. Jindal wrote that appellant was unable to
work for four weeks.
In a September 15, 2016 report, Dr. Jindal noted that appellant was seen for complaints of
cervical pain, headaches, and left-side pain. Neurological examination findings were provided
with a diagnoses of head and right facial, postconcussion syndrome, and cervical strain with
muscle spasms.
By letter dated September 28, 2016, OWCP informed appellant that the evidence of
record was insufficient to establish his claim. Appellant was advised regarding the medical and
factual evidence to submit and was afforded 30 days to provide this evidence.
In response to OWCP’s request, appellant submitted additional evidence.

2

Dr. Jindal, in reports dated September 23 and 30, 2016, diagnosed postconcussion
syndrome with radicular symptoms and history of head trauma. Neurological examination
findings were unchanged.
An October 7, 2016 magnetic resonance imaging (MRI) scan of the cervical spine
revealed C2-3 and C7 to T1 spondylosis associated with bulging and/or broad-based disc
herniations, C3-4 canal stenosis, C3-5 signal abnormality attributable to cord impingement from
disc disease and spondylosis, and straightening of cervical spinal cord lordosis due to muscle
spasms.
Dr. Jindal, in an October 7, 2016 report, provided physical and neurological examination
findings and noted that a September 23, 2016 MRI scan of the brain was unremarkable. He
diagnosed a history of head trauma and cervical radiculopathy. In an October 25, 2016 report,
Dr. Jindal diagnosed cervical strain with radiculopathy and a history of head trauma.
Examination findings were unchanged.
By decision dated November 4, 2016, OWCP denied appellant’s claim. It accepted that
the August 24, 2016 incident occurred as alleged, but found the evidence of record insufficient to
establish causal relationship between the diagnosed conditions and the accepted incident.
OWCP received reports from Dr. Jindal dated November 11 and 28, 2016. In the
November 28, 2016 report, Dr. Jindal noted that appellant sustained a work injury on August 24,
2016 and was evaluated for headaches and neck pain. He observed that appellant’s symptoms
began following his accepted August 24, 2016 work injury. Diagnoses included postconcussion
syndrome, head and facial trauma, and cervical myofascial pain, which Dr. Jindal attributed to
the accepted August 24, 2016 injury. Dr. Jindal further noted that appellant had been unable to
work since August 24, 2016 and had cervical and radicular pain complaints. He found that
appellant was disabled from his date-of-injury job, but was able to work with restrictions of no
lifting more than 10 pounds.
On December 6, 2016 appellant requested reconsideration of the November 29, 2016
decision.
Dr. Jindal, in reports dated December 2 and 23, 2016, provided appellant’s history of
injury and examination findings.
Diagnoses included headache with cervical strain,
radiculopathy, cervical disc disease, and a history of post-traumatic headache with
postconcussion syndrome. In the December 2, 2016 report, Dr. Jindal also recommended testing
to assess appellant’s radiculopathy.
On January 11 and February 1, 2017 Dr. Jindal noted that appellant was seen for posttraumatic headaches, postconcussion syndrome, dizziness, headache, and cervical disease. He
attributed appellant’s current symptoms to the accepted August 24, 2016 incident in the
January 11, 2017 report. A review of the cervical spines MRI scan showed cervical disc disease.
Dr. Jindal provided neurological and physical examination findings and diagnosed posttraumatic headache with cervical disc disease and cervical radiculopathy.
In a decision dated March 6, 2017, OWCP found the evidence sufficient to vacate the
November 4, 2016 decision. It found that, while the evidence of record was sufficient to support
acceptance of appellant’s claim for postconcussion syndrome and right zygomatic arch fracture,
3

it was insufficient to establish that the diagnosed cervical conditions were caused or aggravated
by the accepted August 24, 2016 injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.7 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is causal relationship between the employee’s diagnosed condition and the
compensable employment factors.8 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.9
ANALYSIS
By decision dated March 6, 2017, OWCP accepted that appellant sustained
postconcussion syndrome and right zygomatic arch fracture on August 24, 2016 when he fell
while removing a lawn mower from a large container. However, it found the evidence of record
insufficient to establish causal relationship between the diagnosed cervical conditions and the
accepted August 24, 2016 injury.
The Board finds that appellant has failed to meet his burden of proof to show that the
diagnosed cervical conditions were caused or aggravated by his accepted August 24, 2016 injury.
Appellant submitted a series of reports from Dr. Jindal. In a September 8, 2016 report,
Dr. Jindal opined that appellant sustained head and neck injuries as a result of the accepted
August 24, 2016 injury. In a November 28, 2016 report, he diagnosed postconcussion syndrome,
cervical myofascial pain, and head and facial trauma, which he attributed to the accepted
4

5 U.S.C. § 8101 et seq.

5

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

6

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

7

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
8

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

9

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

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August 24, 2016 injury. In a January 11, 2017 report, Dr. Jindal opined that appellant’s current
symptoms of post-traumatic headaches, cervical disease, dizziness, headache, and
postconcussion syndrome were due to the accepted August 24, 2016 injury. His opinion that the
diagnosed cervical conditions were due to the accepted August 24, 2016 work incident was,
however, unsupported by medical rationale. A mere conclusion without the necessary rationale
explaining how the accepted employment incident could result in the diagnosed condition is
insufficient to meet appellant’s burden of proof.10 Dr. Jindal’s opinion is of limited probative
value as it does not contain any medical rationale explaining how appellant’s fall while lifting a
lawn mower would have physiologically caused the diagnosed cervical conditions.11 Medical
opinions which contain no supporting rationale are of little probative value.12
The remaining reports from Dr. Jindal are as well insufficient to support appellant’s
claim. While the doctor diagnosed conditions including headache with cervical strain,
radiculopathy, cervical disease, cervical radicular and myofascial pain, postconcussion syndrome
with radicular symptoms, and history of head trauma and postconcussion, he offered no opinion
as to the cause of the diagnosed cervical conditions. The Board has held that medical evidence
that does not offer any opinion regarding the cause of an employee’s condition is of limited
probative value.13 In view of the lack of any rationale provided by Dr. Jindal on the issue of
causal relationship, the Board finds that his reports fail to establish that appellant’s cervical
conditions were caused or aggravated by the accepted August 24, 2016 injury.
The record also contains August 24, 2016 CT scans and x-rays showing no cervical
fracture; a September 23, 2016 MRI scan of the brain, which was unremarkable, and an
October 7, 2016 MRI scan revealing C2-3 and C7 to T1 spondylosis associated with bulging
and/or broad-based disc herniations, C3-4 canal stenosis, C3-5 signal abnormality attributable to
cord impingement from disc disease and spondylosis, and straightening of cervical spinal cord
lordosis due to muscle spasms. As these diagnostic tests do not specifically address whether the
diagnosed cervical conditions had been caused or aggravated by the accepted August 24, 2016
injury,14 they are of limited probative value and insufficient to establish his claim
The record before the Board is without rationalized medical evidence establishing that
appellant sustained cervical conditions causally related to the accepted August 24, 2016 injury.
OWCP advised appellant that it was his responsibility to provide a comprehensive medical report
which described his symptoms, test results, diagnosis, history of treatment, and a physician’s
opinion, with medical reasons, on the cause of his condition. Appellant failed to submit
appropriate medical documentation in response to OWCP’s request. The Board has held that the
10

See Beverly A. Spencer, 55 ECAB 501 (2004).

11

D.P., Docket No. 17-0148 (issued May 18, 2017).

12

F.T., Docket No. 09-0919 (issued December 7, 2009) (medical opinions not fortified by rationale are of
diminished probative value); Sedi L. Graham, 57 ECAB 494 (2006) (medical form reports and narrative statements
merely asserting causal relationship generally do not discharge a claimant’s burden of proof).
13

C.B., Docket No. 09-2027 (issued May 12, 2010); Jaja K. Asaramo, 55 ECAB 200 (2004).

14

See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Linda I. Sprague, 48 ECAB 386 (1997) (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).

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mere fact that a condition manifests itself during a period of employment does not raise an
inference of causal relation.15 An award of compensation may not be based on surmise,
conjecture, speculation, or on the employee’s own belief of causal relation.16
On appeal counsel contends that OWCP’s decision was contrary to fact and law. Based
on the findings and reasons set forth above, the Board finds that counsel’s arguments are not
substantiated.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof to establish cervical
conditions causally related to the accepted August 24, 2016 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 6, 2017 is affirmed.
Issued: November 9, 2017
Washington, DC

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

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

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board
15

L.D., Docket No. 09-1503 (issued April 15, 2010); D.I., 59 ECAB 158 (2007); Daniel O. Vasquez, 57 ECAB
559 (2006).
16

S.S., 59 ECAB 315 (2008); J.M., 58 ECAB 303 (2007); Donald W. Long, 41 ECAB 142 (1989).

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