United States Department of Labor
Employees’ Compensation Appeals Board
____________________________________________
)
)
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and
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DEPARTMENT OF VETERANS AFFAIRS,
)
JESSE BROWN VETERANS ADMINISTRATION )
MEDICAL CENTER, Chicago, IL, Employer
)
____________________________________________ )
T.T., Appellant

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

Docket No. 10-880
Issued: November 9, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 17, 2010 appellant filed a timely appeal from a December 8, 2009 merit
decision of the Office of Workers’ Compensation Programs granting him an increased schedule
award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule
award decision.
ISSUE
The issue is whether appellant has more than a three percent permanent impairment of the
left leg and a five percent permanent impairment of the right leg, or three percent of the right arm
for which he received schedule awards.
FACTUAL HISTORY
On December 31, 2008 appellant, then a 52-year-old health technician, filed a claim
alleging that on November 24, 2008 he injured his back, right shoulder and arms helping to move
a patient. The Office accepted the claim, assigned file number xxxxxx265, for a sprain of the

right acromioclavicular joint of the shoulder, a clavicle sprain, an upper back sprain and an
aggravation of a disc bulge at L3-4 and L5-6. Appellant stopped work on November 24, 2008
and received compensation for disability beginning February 1, 2009. He returned to modified
employment on March 9, 2009.1
On July 26, 2009 appellant filed a claim for a schedule award. In a September 2, 2009
impairment evaluation, Dr. Robert Fink, a Board-certified orthopedic surgeon, discussed his
symptoms of pain and weakness in the legs, greater on the right. On examination he found pain
with right leg extension, right shoulder motion and motion of the lower extremities. Citing to the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (6th ed. 2008) (A.M.A., Guides), Dr. Fink found that appellant had a 12 percent
permanent impairment of each lower extremity due to loss of extension. He referenced Table
17-8 on page 578 of the Spine and Pelvis chapter of the A.M.A., Guides, which describes
common radicular syndromes from lumbar and cervical discs. Dr. Fink further determined that
he had a 10 percent permanent impairment of the right upper extremity due to loss of flexion and
extension.
On November 9, 2009 an Office medical adviser opined that, according to Table 16-12
on page 535 of the A.M.A., Guides, appellant had five percent impairment of the right lower
extremity and a three percent impairment of the left lower extremity due to disc herniations with
radicular symptoms in an L3-5 distribution, right more than left. He further found that appellant
had one percent impairment due to tendinopathy of the right shoulder and two percent
impairment due to degeneration of the acromioclavicular joint pursuant to Table 15-5 on page
403 of the A.M.A., Guides.
On November 19, 2009 the Office noted that it previously granted appellant a schedule
award under file number xxxxxx464 for two percent permanent impairment of each lower
extremity.2 It requested that the Office medical adviser again review the evidence and explain
whether the lower extremities impairments he rated on November 9, 2009 were in addition to or
included in the previously awarded two percent impairments of each leg under file number
xxxxxx464. On December 3, 2009 the Office medical adviser asserted that the impairment
percentages represented appellant’s total impairment and included the conditions from file
number xxxxxx464.
By decision dated December 8, 2009, the Office granted appellant a schedule award for
an additional one percent impairment of the left lower extremity, an additional three percent

1

By decision dated May 20, 2009, the Office reduced appellant’s compensation to zero after finding that his
actual earnings as a modified health technician effective March 9, 2009 fairly and reasonably represented his wageearning capacity.
2

The Office accepted that appellant sustained a displacement of lumbar discs under file number xxxxxx464. On
June 20, 2008 an Office medical adviser determined that he had a two percent permanent impairment of each lower
extremity due to pain in the L5 nerve root. By decision dated August 15, 2008, the Office granted appellant a
schedule award for a two percent permanent impairment of the right and of the left lower extremity under file
number xxxxxx464.

2

impairment of the right lower extremity and a three percent impairment of the right upper
extremity.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act,3 and its
implementing federal regulations,4 set forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss, or loss of use, of scheduled members or
functions of the body. However, the Act does not specify the manner in which the percentage of
loss shall be determined. For consistent results and to ensure equal justice under the law for all
claimants, the Office has adopted the A.M.A., Guides as the uniform standard applicable to all
claimants.5 Effective May 1, 2009, the Office adopted the sixth edition of the A.M.A., Guides6
as the appropriate edition for all awards issued after that date.7
The sixth edition of the A.M.A., Guides provides a diagnosis based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).8 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition (CDX), which is then adjusted by grade modifiers based on functional
history (GMFH), physical examination (GMPE) and clinical studies (GMCS).9 The net
adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).
ANALYSIS
The Office accepted that appellant sustained a sprain of the right acromioclavicular joint
of the shoulder, a clavicle sprain, a sprain of the upper back and an aggravation of a disc bulge at
L3-4 and L4-5 due to a November 24, 2008 employment injury. On July 26, 2009 appellant filed
a claim for a schedule award.
In an impairment evaluation dated September 2, 2009, Dr. Fink found pain in the lower
extremities, worse on the right and pain with shoulder motion. He determined that appellant had
12 percent permanent impairment of each lower extremity using Table 17-8 of the sixth edition
of the A.M.A., Guides. Table 17-8, however, is relevant to determining impairments of the spine

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id. at § 10.404(a).

6

A.M.A., Guides (6th ed. 2008).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards, Chapter 3.700, Exhibit 1
(January 9, 2010).
8

A.M.A., Guides (6th ed., 2008), page 3, section 1.3, “The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.”
9

A.M.A., Guides (6th ed. 2008), pp. 405-12, 515-24.

3

and pelvis. The Act specifically excludes the back as an organ; therefore, the back or spine does
not come under the provisions for payment of a schedule award.10
Dr. Fink further determined that appellant had a 10 percent permanent impairment of the
right upper extremity due to loss of flexion and extension. He cited Table 16-40, however, such
a table does not appear in the sixth edition of the A.M.A., Guides. As Dr. Fink’s opinion does
not conform to the provisions of the A.M.A., Guides, it is of diminished probative value.11
An Office medical adviser reviewed Dr. Fink’s opinion and determined that appellant had
a five percent impairment of the right lower extremity and a three percent impairment of the left
lower extremity under Table 16-2 of the A.M.A., Guides as a result of radiculopathy at L3-5. He
did not, however, sufficiently explain how he applied the sixth edition of the A.M.A., Guides in
reaching his conclusion. The sixth edition of the A.M.A., Guides does not provide a separate
mechanism for rating spinal nerve injuries as an extremity impairment. Recognizing that certain
jurisdictions, such as under the Act, mandate ratings for extremities and preclude ratings for the
spine, the A.M.A., Guides has offered an approach to rating spinal nerve impairments consistent
with sixth edition methodology.12 The Office has adopted this approach for rating impairment to
the upper or lower extremities caused by a spinal injury.13 The Office medical adviser did not
apply this method in reaching his determination of the extent of appellant’s impairment from his
spinal injury. The Board will remand the case for proper application of the A.M.A., Guides and
further development of the evidence to determine whether appellant is entitled to a schedule
award for a permanent impairment of the lower extremities.
The Office medical adviser further determined that, for the right upper extremity,
appellant had a one percent impairment due to tendinopathy of the right shoulder cuff and a two
percent impairment for degeneration of the acromioclavicular joint, for a total of three percent
impairment under Table 15-5. He failed, however, to explain how he reached his conclusion.
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation. It
requires identifying the impairment class for the diagnosed condition (CDX), which is then
adjusted by grade modifiers based on functional history (GMFH), physical examination (GMPE)
and clinical studies (GMCS).14 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) +
(GMCS-CDX). The Office medical adviser identified only the table used without providing any
explanation of the diagnosis category, class rating or evaluation of the grade modifiers. As
discussed, grade modifiers should be considered for functional history, physical examination and
clinical studies and these grade modifiers can change the extent of a given impairment rating.15
10

Patricia J. Horney, 56 ECAB 256 (2005); Francesco C. Veneziani, 48 ECAB 572 (1997).

11

Mary L. Henninger, 52 ECAB 408 (2001).

12

Rating Spinal Nerve Extremity Impairment Using the Sixth Edition, The Guides Newsletter (A.M.A., Chicago,
IL), July/August 2009.
13

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.0700 (January 2010)
(Exhibit 1, 5).
14

Id. at 405-12.

15

Id.

4

Consequently, the Board finds that the opinion of the Office medical adviser requires further
clarification on the issue of appellant’s right upper extremity impairment. The case is remanded
for proper application of the A.M.A., Guides and, if necessary, further development of the
evidence to determine whether appellant is entitled to a schedule award for a permanent
impairment of the lower extremities and right upper extremities. Following such further
development as the Office deems necessary, it should issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the December 8, 2009 merit decision of the Office
of Workers’ Compensation Programs is set aside and the case is remanded for further
proceedings consistent with this decision of the Board.
Issued: November 9, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.L., Appellant
and
U.S. POSTAL SERVICE, Guntersville, AL,
Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-468
Issued: June 4, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On December 5, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ February 27, 2007 nonmerit decision denying her request for
reconsideration. Pursuant to C.F.R. §§ 501.2(c) and 501.3, the Board does not have jurisdiction
over the merits of appellant’s claim.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration.
FACTUAL HISTORY
On July 31, 2006 appellant, then a 37-year-old clerk, filed an occupational disease claim
alleging that she sustained carpal tunnel as a result of repetitive hand, wrist and forearm
movement in the performance of duty. Reports dated June 12, 13 and July 12, 2006 were
submitted from Dr. Pamela Quinn, a Board-certified neurologist. Appellant also submitted a
September 20, 2006 letter arguing that her condition was related to her employment.

In a November 16, 2006 merit decision, the Office denied appellant’s claim finding that
she had not submitted sufficient medical evidence to establish that her medical condition was
causally related to the established work-related activities.
In a February 5, 2007 letter, appellant requested reconsideration arguing that her claim
should be accepted as she has to have injections to control her pain and allow her to work. No
additional medical information was submitted.
In a February 27, 2007 nonmerit decision, the Office denied appellant’s request for
reconsideration finding that she did not raise substantive legal questions or include new and
relevant evidence which would warrant a review of the prior merit decision.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128 (a) of the
Federal Employees’ Compensation Act, the Office’s regulations provide that the application for
reconsideration, including all supporting documents, must set forth arguments and contain
evidence that either: (1) shows that the Office erroneously applied or interpreted a specific point
of law; (2) advances a relevant legal argument not previously considered by the Office; or
(3) constitutes relevant and pertinent new evidence not previously considered by the Office.1
ANALYSIS
The Office is required to reopen a case for merit review if appellant demonstrates that the
Office erroneously applied a specific point of law, puts forth relevant and pertinent new evidence
or presents a new relevant legal argument. Appellant did not argue that the Office erroneously
applied a point of law nor did she present a new relevant legal argument. She merely alleged
that she continued to have pain and undergo treatment for pain. This is not a legal argument
which is relevant to the issue of causal relationship. Appellant did not submit any medical
evidence after the Office issued its November 16, 2006 merit decision therefore she did not
submit relevant and pertinent new evidence. She is not entitled to review of the merits of her
claim based any of the requirements under section 10.606(b)(2).
As appellant is not entitled to a review of the merits of her claim, the Board finds that the
Office properly refused to reopen her case for further review of the merits of her claim.
CONCLUSION
The Board finds that the Office properly denied merit review.

1

20 C.F.R. § 10.606(b)(2)(iii) (2004).

2

ORDER
IT IS HEREBY ORDERED THAT the February 27, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 4, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-1190
Issued: March 11, 2019

Case Submitted on the Record

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

JURISDICTION
On May 21, 2018 appellant, through counsel, filed a timely appeal from an April 16, 2018
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
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 16, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for
the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish bilateral upper
extremity conditions causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On July 27, 2017 appellant, then a 43-year-old mail handler, filed an occupational disease
claim (Form CA-2) alleging that she developed bilateral wrist tendinitis and right wrist muscle
strain while in the performance of duty. She noted that she first became aware of her alleged injury
on July 21, 2017 and that she first realized that it was caused or aggravated by her federal
employment duties on July 26, 2017. Appellant stopped work on July 21, 2017.
By development letter dated August 2, 2017, OWCP informed appellant that it had not
received evidence in support of her claim. It advised her of the type of factual and medical
evidence needed and provided a questionnaire for her completion. OWCP afforded appellant 30
days to submit the necessary evidence.
OWCP subsequently received an emergency room report dated July 25, 2017 from
Dr. Robert Stanley Coleman, a physician Board-certified in internal medicine. Dr. Coleman
related that appellant had informed him that she was pulling out mail bins at work five days prior
when she felt tightness and pain in her right shoulder. He indicated that she denied trauma or a
fall. Dr. Coleman diagnosed right trapezius muscle spasm and musculoskeletal pain.
OWCP also received several reports dated July 26, 2017 from Dr. Daniel A. Breitenbach,
a specialist in internal medicine. In his initial report, Dr. Breitenbach noted that appellant indicated
that on July 21, 2017 she was moving mail on the robot and started feeling sharp pain in her right
hand, wrist, and arm. He advised that the next day she experienced sharp pain in her left hand and
wrist, and right shoulder. Dr. Breitenbach diagnosed: bilateral hand synovitis and tenosynovitis;
impingement syndrome of the right shoulder; and muscle, fascia, and tendon strain of the shoulder
and upper arm. Additionally, he completed a July 26, 2017 attending physician’s report (Form
CA-20) on which he checked a box marked “yes” indicating that the diagnosed conditions were
employment related. In duty status reports (Form CA-17) dated July 26 and August 2, 2017,
Dr. Breitenbach opined that appellant was unable to work.
In a supplemental statement dated August 4, 2017, appellant explained that, on July 21,
2017, she was performing her regular assigned work duties when she felt a sharp pain in her right
shoulder. She also noted that she saw her orthopedic surgeon who advised that her right hand was
progressing well following recent right hand surgery.
In a report dated August 10, 2017, Dr. Breitenbach related that he saw appellant on July 26,
and August 2 and 9, 2017. He explained that she experienced pain in her right shoulder, which
occurred while she was working with a robot moving mail. Dr. Breitenbach diagnosed
tenosynovitis of the right and left hands, impingement syndrome of the right shoulder, and right
shoulder strain. He opined “[t]he right shoulder impingement and strain along with bilateral hand
tendinitis was caused by the direct result of [appellant’s] moving mail.”

2

In a supplemental development letter dated August 24, 2017, OWCP requested that
appellant describe her job duties in detail and specifically explain how operating the mail robot
had caused pain in her right and left hands, and right shoulder. It also requested further information
regarding her recent right hand surgery.
In an August 29, 2017 response, appellant explained that she worked with a robot machine
that had 24 slots and held 28 to 34 trays. She explained that she pushed all-purpose containers
weighing 600 to 800 pounds into and out of the robot. Appellant also confirmed that on
February 8, 2017 she underwent a right carpal tunnel release surgery for a carpal tunnel condition
that preexisted her federal employment.
By decision dated September 8, 2017, OWCP denied appellant’s claim as the medical
evidence submitted was insufficient to establish causal relationship between the claimed medical
conditions and the accepted work factors.
On October 6, 2017 counsel requested a telephonic hearing before an OWCP hearing
representative. During the hearing, held on February 26, 2018, appellant further described her
employment duties and confirmed that she had returned to work on November 13, 2017 in a
limited-duty position.
OWCP continued to receive reports from Dr. Breitenbach dated September 6, 2017 to
March 27, 2018, in which he repeated his diagnoses of appellant’s upper extremity conditions.
In a March 15, 2018 report, Dr. Breitenbach advised that appellant was injured on July 21,
2017 while “pulling on a cage that was struck and [appellant] jerked the case with both hands
resulting in pain over both wrists at the radial aspects. [Appellant] also had pain over her right
shoulder as well from the jerking motion.” He related that she was initially seen in the emergency
room, which assessed pain and muscle spasms. Dr. Breitenbach explained that he first saw
appellant on July 26, 2017. He indicated that, at that time, she had bilateral positive Finkelstein
findings over the wrists at the radial aspect. Dr. Breitenbach indicated that this was associated
with tenosynovitis of the hand and wrists. He also found impingement of the right shoulder.
Dr. Breitenbach opined that there was a “high degree of medical certainty that the incident with
the cage on July 21, 2017 directly caused the tendon injuries in both wrists as well as her right
shoulder impingement.” He diagnosed right shoulder impingement, and bilateral hand
tenosynovitis. Dr. Breitenbach also explained that appellant’s previous carpal tunnel syndrome
had nothing to do with these injuries as she had negative Tinel’s and Phalen’s findings.
In a March 16, 2018 report, Dr. Breitenbach noted that appellant was working on July 21,
2017 and injured her right shoulder while pulling a cage that was stuck. He opined that the jerking
motion injured her right shoulder. Dr. Breitenbach explained that a recent magnetic resonance
imaging scan of appellant’s right shoulder demonstrated a small partial tear of the distal, anterior
aspect of the supraspinatus tendon and mild impingement at the acromioclavicular joint of the right
shoulder. He indicated that this would explain why she had pain in her right shoulder with
abduction at 90 degrees. Dr. Breitenbach further indicated that it also explained appellant’s
positive Neer and Hawkins signs. He opined that “the jerking motion of pulling the cage directly
caused the tear of the supraspinatus tendon and therefore the additional diagnosis of rotator cuff
tear should be accepted.”

3

By decision dated April 16, 2018, OWCP’s hearing representative affirmed the
September 8, 2017 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the essential
elements of his or her claim, including the fact that the individual is an employee of the United States
within the meaning of FECA, that the claim was timely filed within the applicable time limitation
period of FECA,4 that an injury was sustained in the performance of duty as alleged, and that any
disability or medical condition for which compensation is claimed is causally related to the
employment injury.5 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.6
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 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 the claimant.
The medical evidence required to establish causal relationship, generally, is 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.7
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish bilateral upper
extremity conditions causally related to the accepted factors of her federal employment.
Appellant was initially seen on July 25, 2017 by Dr. Coleman. Dr. Coleman provided a
report which contained a history of injury and noted her right trapezius muscle spasm and pain.
4
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

Victor J. Woodhams 41 ECAB 345.

4

The Board has long held that pain8 and spasm9 are symptoms of conditions, not medical diagnoses.
To establish a personal injury, the medical evidence of record must document a diagnosed
condition and explain how that condition is causally related to the accepted employment factors.
Lacking a firm diagnosis causally related to the accepted employment factors, Dr. Coleman’s
report is of limited probative value.10
OWCP also received several reports dated July 26, 2017 from Dr. Breitenbach.
Dr. Breitenbach diagnosed: bilateral hand synovitis and tenosynovitis; impingement syndrome of
the right shoulder; and muscle, fascia, and tendon strain of the right shoulder and upper arm level,
but did not offer an opinion regarding causal relationship. The Board has held that medical
evidence that does not offer an opinion regarding the cause of an employee’s condition is of no
probative value on the issue of causal relationship.11 These reports, therefore, are insufficient to
establish appellant’s claim.
On a July 26, 2017 attending physician’s form report, Dr. Breitenbach repeated his
diagnoses and checked a box marked “yes” indicating that the diagnosed conditions were
employment related. However, the checking of a box “yes” in a form report, without additional
explanation or rationale, is insufficient to establish causal relationship.12
In a report dated August 10, 2017, Dr. Breitenbach repeated his diagnoses and opined
that“[t]he right shoulder impingement and strain along with bilateral hand tendinitis was caused
by the direct result of [appellant] moving mail.” However, he did not explain how he arrived at
this conclusion. The Board has held that a report is of limited probative value regarding causal
relationship if it does not contain medical rationale explaining how a given medical
condition/disability was related to employment factors.13 Therefore, this report of Dr. Breitenbach
is insufficient to establish appellant’s claim.
Dr. Breitenbach provided additional rationale on the issue of causal relationship in reports
dated March 15 and 16, 2018. However, he referred to an incident that has not been alleged by
appellant in this claim.14 Dr. Breitenbach explained that she was injured on July 21, 2017 while
“pulling on a cage that was struck and jerked the case with both hands resulting in pain over both
wrists at the radial aspects. [Appellant] also had pain over her right shoulder as well from the
8

L.M., Docket No. 18-0473 (issued October 22, 2018).

9

D.K., Docket No. 17-1186 (issued June 11, 2018).

10
See K.V., Docket No. 18-0723 (issued November 9, 2018); B.P., Docket No. 12-1345 (issued November 13,
2012); C.F., Docket No. 08-1102 (issued October 2008).
11

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

12

See M.O., Docket No. 18-1056 (issued November 6, 2018); Deborah L. Beatty, 54 ECAB 3234 (2003);
Barbara J. Williams, 40 ECAB 649, 656 (1989).
13

See Y.D., Docket No. 16-1896 (issued February 10, 2017) (finding that a report is of limited probative value
regarding causal relationship if it does not contain medical rationale describing the relation between work factors and
a diagnosed condition/disability).
14
Appellant has also filed a notice of traumatic injury relative to the alleged traumatic incident on July 21, 2017,
which is not the subject of this appeal.

5

jerking motion.” He opined that there was a “high degree of medical certainty that the incident
with the cage on July 21, 2017 directly caused the tendon injuries in both wrists as well as
[appellant’s] right shoulder impingement.” The Board notes that, as Dr. Breitenbach’s report is
based on an inaccurate history of injury, this opinion is insufficient to establish that the work
incident caused the above noted diagnoses. It is well established that medical reports must be
based on a complete and accurate factual and medical background, and medical opinions based on
an incomplete or inaccurate history are of little probative value.15
OWCP received additional reports from Dr. Breitenbach dating from September 6, 2017
to March 27, 2018. However, as these reports also did not provide a rationalized opinion regarding
causal relationship, they are also of no probative value.16
On appeal, counsel asserts that causal relationship was established in this case. However,
for the above reasons set forth herein, the Board finds that appellant has not met her burden of
proof to establish her claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish bilateral upper
extremity conditions causally related to the accepted factors of her federal employment.

15

J.M., Docket No. 17-1002 (issued August 22, 2017); Douglas M. McQuaid, 52 ECAB 382 (2001).

16

See supra note 14.

6

ORDER
IT IS HEREBY ORDERED THAT the April 16, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 11, 2019
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE AIR FORCE,
)
STRATEGIC AIR COMMAND, VANDERBERG )
AIR FORCE BASE, CA, Employer
)
__________________________________________ )
L.R., Appellant

Appearances:
Richard A. Daniels, for the appellant
Office of Solicitor, for the Director

Docket No. 14-385
Issued: October 6, 2014

Case Submitted on the Record

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

JURISDICTION
On December 6, 2013 appellant, through his representative, filed a timely appeal from a
June 28, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP) which
denied his claim for disability. Pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish total disability from
March 14, 2006 through August 10, 2012.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before this Board. The facts as set forth in the Board’s
prior decision are hereby incorporated by reference.2 The relevant facts follow.
OWCP accepted that on August 16, 1980 appellant sustained a low back strain in the
course of his federal employment while lifting a box in a supply van. In a June 8, 1988 decision,
it denied his claim for reconsideration of a prior decision that the position of electronics
technician was medically and vocationally suitable for him, a decision that was affirmed by the
Board on September 27, 1988.3 The reduction of compensation benefits was based on
appellant’s ability to earn wages as an electronics technician. OWCP noted that he believed that
the medical evidence established that he had a herniated disc and there had been a worsening of
his medical condition and that compensation for total disability should be reinstated. Although
OWCP did not dispute that appellant had a herniated nucleus pulposus at L5-S1, it found that the
medical evidence of record did not establish that the herniated disc was related to the August 16,
1980 employment injury or to a worsening of the accepted low back strain. OWCP noted that a
magnetic resonance imaging (MRI) scan of November 27, 1992, which indicated that appellant
had a herniated disc, was obtained 13 years after the work injury. It denied reconsideration of
the June 8, 1988 decision on July 1, 1999. Appellant continued to receive wage-loss
compensation for a partial disability.
In an August 10, 2012 decision, OWCP accepted a recurrence of disability. It listed
appellant’s accepted conditions as sprain of the lumbar region of the back and displacement of
lumbar intervertebral disc without myelopathy.
On March 14, 2013 appellant requested compensation from March 14, 2006 through
August 10, 2012. In support of his claim, he submitted multiple reports by Dr. Patrick A. Noel, a
Board-certified orthopedic surgeon.
On April 5, 2006 Dr. Noel stated that appellant’s
employment-related diagnosis was a herniated lumbar disc at the L5-S1 level with L5-S1 nerve
root damage. He found that the condition had not resolved and no recovery was possible and
appellant was unlikely to survive a surgical attempt. Dr. Noel advised that appellant had no
capacity at that time for any kind of physical rehabilitation measures because of his inadequate
cardio respiratory reserve. Appellant was disabled for all work and would never be recovered
sufficiently to return to part-time or limited-duty work and was not a candidate for rehabilitation.
Dr. Noel noted that appellant’s cardiac arrhythmia, poor cardiac reserve and shortness of breath
were not caused by his employment. He listed a history that appellant was injured at work on
August 16, 1980 while lifting a bag of supplies.
In an April 7, 2008 report, Dr. Noel saw appellant in a follow-up on January 23, 2008
with back pain radiating to the left gluteus and both lower extremities with numbness, tingling,
weakness and an inability to walk without support. He noted that appellant’s condition started
2

Docket No. 88-1179 (issued September 27, 1988). The Board affirmed OWCP’s May 8, 1987 decision finding
that the position of electronics technician reasonably represented appellant’s wage-earning capacity effective
November 25, 1984.
3

Id.

2

on August 16, 1980 when he sustained an injury at work. An MRI scan noted a herniated lumbar
disc at the L5-S1 level and an electromyogram (EMG) and nerve conduction studies revealed
L5-S1 radiculopathy. On April 11, 2011 Dr. Noel stated that appellant was seen with low back
pain radiating to the left gluteus and both lower extremities with numbness, tingling and
weakness of the lower extremity. He was only able to get around with use of a cane. Dr. Noel
noted that appellant’s original MRI scan showed a herniated lumbar disc at the L5-S1 level and
the original EMG and nerve conduction studies showed evidence of chronic L5-S1
radiculopathy. In a November 3, 2011 report, he listed an impression of lumbar radiculopathy
secondary to an old employment-related injury. Dr. Rowe opined that appellant was totally and
permanently disabled and had no work capacity. Dr. Noel submitted reports through
March 13, 2013, noting that appellant had continued complaints of back pain radiating to the left
gluteus in both lower extremities with numbness, tingling, weakness of the lower extremity and
the inability to walk without support and marked difficulty climbing steps. He opined that the
work injuries of 1980 were the direct cause of appellant’s past and current spine problems to a
reasonable degree of medical certainty. Dr. Noel noted that MRI scan studies documented a
lumbar disc protrusion with stenosis and retrolisthesis and the EMG and nerve conduction testing
documented chronic ongoing lumbar radiculopathy.
By letter dated May 3, 2013, OWCP noted that the only medical reports
contemporaneous to appellant’s claim for compensation was dated April 5, 2006. The claims
examiner noted that there was nothing after this report until April 2008, which was followed by a
gap until 2011. The claims examiner noted that after 2011 all medical reports were current.
OWCP asked appellant to submit additional supportive medical reports within 30 days.
Appellant responded by submitting reports by Dr. Noel dated March 26 to July 16, 2012.
Dr. Noel reiterated that appellant suffered from chronic lumbar radiculopathy and that his
chronic low back pain, for which he has been taking medication for many years, is aggravated by
the activities of daily living and is present most of the time. In a May 1, 2012 report, he noted
that appellant had chronic low back pain for many years. Dr. Noel also noted that appellant was
holding his large dog by a strap when the dog broke away and he hurt his left shoulder. In a
July 16, 2012 report, he noted that appellant was injured on August 16, 1980, while lifting heavy
box of supplies weighing over 100 pounds off his truck, he tripped over a pipe and twisted his
back causing injury. Dr. Noel listed his impression as herniated lumbar disc with lumbar
radiculopathy. He noted that appellant is in constant low back pain, cannot stand up straight and
has to ambulate with a cane. Dr. Noel indicated that appellant had no work capacity and is
permanently impaired and should be retired. He noted that it was too late for surgery and that
appellant would never improve. Dr. Noel stated that appellant’s condition would worsen slowly
over time and the simple activities of daily living could cause a worsening in his condition. He
opined that appellant cannot lift, push, pull, carry or do anything related to his prior occupation.
Dr. Noel concluded that appellant was totally disabled.
By decision dated June 28, 2013, OWCP denied appellant’s claim for compensation for
the period March 14, 2006 through August 10, 2012.

3

LEGAL PRECEDENT
The term disability as used in FECA4 means the incapacity because of an employment
injury to earn the wages that the employee was receiving at the time of the injury.5 Whether a
particular injury caused an employee disability for employment is a medical issue which must be
resolved by competent medical evidence.6 When the medical evidence establishes that the
residuals of an employment injury are such that, from a medical standpoint, they prevent the
employee from continuing in the employment held when injured, the employee is entitled to
compensation for any loss of wage-earning capacity resulting from such incapacity.7 The Board
will not require OWCP to pay compensation for disability in the absence of any medical
evidence directly addressing the specific dates of disability for which compensation is claimed.
To do so would essentially allow employees to self-certify their disability and entitlement to
compensation.8
ANALYSIS
The Board finds that appellant has not established that he is entitled to compensation for
total disability from March 14, 2006 through August 10, 2012. Dr. Noel advised that appellant
was disabled causally related to the August 16, 1980 employment injury, he based his opinion on
causal relationship on the history that appellant’s claim was accepted for a herniated disc. In a
June 8, 1990 decision, however, OWCP denied appellant’s claim for reconsideration and noted
that the medical evidence did not establish that his herniated disc at LS-S1 was causally related
to the accepted injury of August 16, 1980. It noted that the herniated disc was not evident until
an MRI scan obtained on November 27, 1992, 13 years after the accepted injury. The fact that
Dr. Noel based his opinion that appellant’s disability during the period March 14, 2006 through
August 12, 2012 was causally related to the August 16, 1980 employment injury on the incorrect
history that OWCP had accepted appellant’s claim for a herniated disc. This renders Dr. Noel’s
opinion of diminished probative value.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor is his belief that his condition was caused by his employment sufficient to
establish causal relationship.9 As the medical evidence of record does not establish that
appellant was totally disabled from March 14, 2006 through August 10, 2012, OWCP properly
denied his claim for total disability during this time period.10
4

5 U.S.C. §§ 8101-8193; 20 C.F.R. § 10.5(f).

5

Paul Thams, 56 ECAB 503 (2005).

6

S.H., Docket No. 14-473 (issued August 11, 2014).

7

Id.

8

William A. Archer¸ 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

9

Walter D. Morehead, 31 ECAB 188 (1986).

10

See supra note 6.

4

Appellant may submit evidence or argument with a written request for reconsideration
within one year of this merit decision pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605
through 10.607.11
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish total disability
from March 14, 2006 through August 10, 2012.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 28, 2013 is affirmed.
Issued: October 6, 2014
Washington, DC

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

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

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

11

Counsel was notified by letter dated July 2, 2014 to file a brief or pleading by August 4, 2014. He did not
respond.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Brooklyn, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-1435
Issued: September 15, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 19, 2015 appellant filed a timely appeal from a June 1, 2015 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.2
ISSUE
The issue is whether appellant met his burden of proof to establish an injury as a result of
an April 2, 2015 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the June 1, 2015 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); 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(a) and 20 C.F.R. § 10.606(b)(2).

FACTUAL HISTORY
On April 3, 2015 appellant, then a 64-year-old city carrier, filed a traumatic injury claim
alleging that on April 2, 2015 he injured his lower back when he picked up a parcel at work. He
stopped work following this incident.
Appellant also submitted an April 3, 2015 Form CA-16 authorization for examination
and/or treatment issued to Dr. Howard J. Rosner, a chiropractor, for an April 2, 2014 lower back
injury. Dr. Rosner completed the form and related that on April 2, 2015 appellant had sustained
a lower back injury when he lifted a 25-pound package at work. He diagnosed lumbar sprain and
indicated “yes” that appellant’s condition was caused or aggravated by the April 2, 2015 work
incident. Dr. Rosner reported that appellant was totally disabled from April 3 to May 2, 2015
and could return to work on May 4, 2015. He included a duty status report which documented
that appellant could resume work with certain restrictions.
By letter dated April 28, 2015, OWCP informed appellant that his claim was initially
accepted as a minor injury but was now reopened because he had not returned to work. It
requested additional factual information to substantiate the factual elements of his claim and
medical evidence to establish that he sustained a diagnosed condition causally related to the
April 2, 2015 employment incident.
Dr. Rosner submitted a May 4, 2015 termination of disability form and indicated that
appellant could return to full duty on May 4, 2015.
In a decision dated June 1, 2015, OWCP denied appellant’s traumatic injury claim. It
accepted that the April 2, 2015 employment incident occurred as alleged, but denied the claim
finding insufficient medical evidence to demonstrate a low back condition causally related to the
accepted incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his claim by the weight of the reliable, probative, and substantial evidence4
including that he sustained an injury in the performance of duty and that any specific condition
or disability for work for which he claims compensation is causally related to that employment
injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether “fact of injury” has been established.6
There are two components involved in establishing the fact of injury. First, the employee must
3
4

5 U.S.C. §§ 8101-8193.
J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

5

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

6

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

2

submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged.7 Second, the employee must submit evidence,
generally only in the form of probative medical evidence, to establish that the employment
incident caused a personal injury.8 An employee may establish that the employment incident
occurred as alleged but fail to show that his disability or condition relates to the employment
incident.9
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.10 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.11 The weight of the medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested, and the medical rationale expressed
in support of the physician’s opinion.12
ANALYSIS
Appellant alleged that on April 2, 2015 he sustained a low back condition when he lifted
a heavy parcel at work. OWCP accepted that the incident occurred as alleged but denied his
traumatic injury claim finding insufficient medical evidence to establish a diagnosed back
condition causally related to the accepted incident. The Board finds that appellant did not meet
his burden of proof to demonstrate a back condition as a result of the April 2, 2015 employment
incident.
In support of his claim, appellant submitted an April 3, 2015 Form CA-16 and treatment
notes by Dr. Rosner, a chiropractor. Section 8101(2) provides that the term physician includes
chiropractors only to the extent that their reimbursable services are limited to treatment
consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray
to exist.13 OWCP regulations at 20 C.F.R. § 10.5(bb) have defined subluxation as an incomplete
dislocation, off-centering, misalignment, fixation, or abnormal spacing of the vertebrae which
must be demonstrable on any x-ray film to an individual trained in the reading of x-rays.14 If the
diagnosis of a subluxation as demonstrated by x-ray is not established, the chiropractor is not a
7

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

8

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

9

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

10

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

11

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

12

James Mack, 43 ECAB 321 (1991).

13

5 U.S.C. § 8101(2).

14

20 C.F.R. § 10.5(bb); see also Bruce Chameroy, 42 ECAB 121 (1990).

3

physician as defined under FECA and his or her report is of no probative value to the medical
issue presented.15 Because Dr. Rosner has not provided a diagnosis of subluxation nor provided
x-rays of appellant’s alleged back condition, he is not a physician as defined under FECA.
Accordingly, his reports lack probative value and are insufficient to establish appellant’s
traumatic injury claim. The Board therefore finds appellant has not met his burden of proof to
establish an injury as a result of the April 2, 2015 employment incident.
On appeal appellant notes the Form CA-16 authorization form of April 3, 2015 issued to
Dr. Rosner. A properly executed Form CA-16 can form a contractual agreement for payment of
medical expense, even if the claim is not accepted. See 20 C.F.R. § 10.300; Val D. Wynn, 40
ECAB 666 (1989). Upon return of the case record, OWCP shall review this aspect of the case.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish an injury as a
result of the April 2, 2015 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the June 1, 2015 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: September 15, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

15

See Jack B. Wood, 40 ECAB 95, 109 (1988).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Plainfield, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-918
Issued: August 18, 2014

Case Submitted on the Record

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

JURISDICTION
On March 11, 2014 appellant, through her attorney, filed a timely appeal from a
February 20, 2014 decision of the Office of Workers’ Compensation Programs (OWCP) and its
hearing representative that affirmed the termination of her wage-loss compensation and medical
benefits. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s
compensation benefits on July 17, 2013 on the grounds that the accepted condition had resolved
with no residuals.
On appeal, appellant’s attorney asserts that the claim should be accepted for a psychiatric
condition, based on the report of the impartial physician.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On April 17, 2009 appellant, then a 45-year-old clerk, sustained injury to her lower back
while spreading flats of magazines. She did not stop work. On May 7, 2009 OWCP accepted
the claim for a lumbar strain. It subsequently accepted displacement of a lumbar disc without
myelopathy at L3-4. Appellant stopped work on August 19, 2009 and underwent surgery for a
lumbar hemilaminectomy and discectomy at L3-4. She returned to part-time modified duty on
November 16, 2009.
A December 10, 2009 magnetic resonance imaging (MRI) scan study of the lumbar spine
demonstrated postoperative changes at L3-4. A March 19, 2010 lumbar discogram and
postdiscogram computerized tomography (CT) study of the lumbar spine demonstrated disc
degeneration and protrusion at L2-3, disc degeneration with superimposed postoperative changes
at L3-4, disc bulging and degeneration at L4-5 and normal disc morphology at L5-S1. The study
indicated that it was difficult to identify a single primary pain generator since appellant reported
pain at all levels, including at the normal L4-5 level.
On October 21, 2010 appellant filed a recurrence of disability claim. She stopped work
that day because the employing establishment had no work within her limitations. Appellant was
paid wage-loss compensation and placed on the periodic rolls.
In a November 18, 2010 report, Dr. Prempreet Singh Bajaj, Board-certified in physical
and pain medicine, reported that appellant had permanent restrictions and could work limited
duty for four hours daily. In progress notes dated December 9, 2010 and February 10, 2011, he
noted complaints of low back pain. Dr. Bajaj noted that physical examination demonstrated
bilateral lower extremity strength of 5/5 and negative straight leg raising test. He diagnosed
lumbar radiculitis, chronic low back pain and status post discectomy.
OWCP referred appellant to Dr. Allan M. Brecher, a Board-certified orthopedic surgeon,
for a second opinion evaluation. In a March 18, 2011 report, Dr. Brecher reported that physical
examination demonstrated 4/5 lower extremity strength and a positive straight leg raise
bilaterally with tenderness along the surgical scar. He diagnosed postlaminectomy syndrome
and advised that appellant’s ongoing back pain was caused by the employment injury.
Dr. Brecher found that she was capable of performing six hours of sedentary work daily with a
10-pound restriction on pushing, pulling and lifting and that she not climb. He recommended a
functional capacity evaluation and electrodiagnostic studies.
OWCP determined that a conflict in medical opinion arose between Dr. Bajaj and
Dr. Brecher regarding appellant’s residuals and capacity for employment. It referred appellant,
together with a statement of accepted facts and the medical record, to Dr. Steven E. Mather, a
Board-certified orthopedic surgeon, for an impartial evaluation. Dr. Mather was asked to address
her restrictions and work capabilities.
In an August 1, 2012 report, Dr. Mather reviewed the
record and appellant’s complaint of disabling lower back
demonstrated significant pain complaints with range of motion.
were normal. Seated straight leg raising was negative. Lower

2

history of injury, the medical
pain. Physical examination
Lower back sensation and gait
extremity strength was 5/5 and

sensation was normal bilaterally. No atrophy was present. Dr. Mather diagnosed status post left
L3-4 discectomy/hemilaminectomy at L3-4, back pain and functional overlay/psychogenic pain
syndrome. He advised that, based on the history, the mechanism of injury, the admission by
appellant of a preexisting condition, the April 17, 2009 employment injury was unlikely to cause
a disc herniation at L3-4 but noted that it had been accepted. Dr. Mather stated that the surgical
procedure, preoperative physical therapy and up to six weeks of postoperative physical therapy
was appropriate for this condition. He reported that, after careful review of the available medical
records, appellant’s complaints of back pain were not supported by objective physical findings or
imaging tests. Dr. Mather commented that back surgery relieved back and leg pain in the vast
majority of patients and those who did poorly generally had secondary gain due to psychosocial
factors and litigation. He indicated that appellant had many findings of nonorganic pain
behavior or Waddell findings and that her functional capacity evaluation on November 19, 2009
demonstrated several inconsistencies, including that she could lift 15 to 19 pounds, yet on
November 20, 2009 she reported that she could not even lift her 7-pound cat. Dr. Mather
advised that there were no objective findings on examination by any provider postoperatively
and stated that he did not believe she needed additional physical therapy or injections.
In a supplementary report dated August 3, 2012, Dr. Mather advised that appellant was
able to work eight hours a day and could lift, bend, twist, push and pull 10 pounds while at work.
He found no physical limitations on examination or imaging studies resulting from employment
activity and advised that the lifting restriction was not based on objective findings.
On December 11, 2012 Dr. Bajaj reported that appellant’s back pain had been constant
since the April 17, 2009 employment injury. He stated that her lumbar range of motion was
severely limited and that she had multilevel degenerative changes on x-ray and CT studies.
Dr. Bajaj advised that appellant could work four hours of sedentary duty daily with permanent
restrictions of no twisting, bending, stooping, pushing, pulling, lifting, squatting, kneeling or
climbing. Appellant could walk, stand and reach for one hour. On January 3, 2013 Dr. Bajaj
reported that she had fallen on stairs at home several months previously which caused an acute
flare up of pain.
By report dated April 12, 2013, Dr. Mather advised that the accepted conditions of
lumbar strain and lumbar disc herniation had resolved with no residuals. Appellant had no lifting
restrictions and could lift parcels up to 70 pounds. Dr. Mather reiterated that her lumbar disc
condition had been appropriately treated with surgery.
On June 4, 2013 OWCP found that the weight of the medical evidence rested with the
opinion of Dr. Mather, the impartial referee. It proposed to terminate appellant’s wage-loss
compensation and medical benefits on the grounds that she had no residuals or work limitations
due to the accepted lumbar conditions.
Appellant disagreed with the proposed termination, stating that she had not recovered
from chronic low back and leg pain.
In a June 19, 2013 progress note, Dr. Bajaj noted appellant’s complaint of continued back
pain and increased bilateral leg pain. He advised that straight leg raising was positive bilaterally
and diagnosed chronic back pain, lumbar facet arthropathy, lumbar radiculitis and failed back

3

surgical syndrome. Dr. Bajaj reiterated appellant’s work restrictions and his opinion that her
condition was related to the April 17, 2009 employment injury.
By decision dated July 17, 2013, OWCP finalized the termination of appellant’s
wage-loss compensation and medical benefits effective that day. It found that she had no
residuals of the accepted condition. OWCP noted that the weight of the medical evidence rested
with the opinion of Dr. Mather who performed an impartial evaluation.
Appellant, through her attorney, timely requested a hearing. She submitted a progress
report dated December 4, 2013 in which Dr. Bajaj reiterated his findings and conclusions. At the
hearing held on December 18, 2013 appellant testified that she continued to have disabling low
back and leg pain. Her attorney asserted that OWCP should develop the psychological
component of the claim.
After the hearing, appellant submitted a January 10, 2014 report from Timothy R.
Tumlin, Ph.D., a licensed clinical psychologist, who noted her report that her radiating back pain
began with a work injury in 2009 that resulted in a herniated disc and degenerative disc disease.
Dr. Tumlin stated that she described her pain treatment history and reported that the constant
pain decreased her activities of daily living. He performed pain inventory testing and provided
recommendations for coping with pain.
By decision dated February 20, 2014, an OWCP hearing representative found the weight
of the medical evidence rested with the opinion of Dr. Mather and affirmed the July 17, 2013
decision.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.2
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.3
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability. To terminate authorization for medical treatment, OWCP must
establish that a claimant no longer has residuals of an employment-related condition that require
further medical treatment.4
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.5 The implementing regulations
2

Jaja K. Asaramo, 55 ECAB 200 (2004).

3

Id.

4

T.P., 58 ECAB 524 (2007).

5

5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008).

4

states that, if a conflict exists between the medical opinion of the employee’s physician and the
medical opinion of either a second opinion physician or OWCP’s medical adviser, OWCP shall
appoint a third physician to make an examination. This is called a referee examination, and
OWCP will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.6 When there exist opposing medical reports of virtually equal weight
and rationale and the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.7
ANALYSIS
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation and medical benefits on July 17, 2013. OWCP determined a conflict in medical
evidence between Dr. Bajaj, an attending physiatrist, and Dr. Brecher, an OWCP referral
physician, regarding appellant’s work abilities. It properly referred appellant to Dr. Mather for
an impartial evaluation.
In a comprehensive report dated August 1, 2012, Dr. Mather noted the history of injury,
his review of the medical record and appellant’s complaint of disabling lower back pain. He
provided physical examination findings. Dr. Mather reported that appellant’s complaints of back
pain were not supported by objective physical findings or imaging tests, noting that there were
no objective findings on examination by any provider postoperatively. He indicated that he did
not believe appellant needed additional physical therapy or injections.
In supplementary reports dated August 3, 2012 and April 12, 2013, Dr. Mather advised
that the accepted conditions of lumbar strain and lumbar disc herniation had resolved with no
residuals and that appellant could work eight hours a day. He found no physical limitations at
examination or imaging resulting from employment activity and advised that she had no lifting
restrictions based on objective findings. As Dr. Mather provided a well-rationalized opinion that
appellant could work eight hours a day with no restrictions, his opinion is therefore entitled to
the special weight accorded an impartial examiner and constitutes the weight of the medical
evidence regarding whether appellant had any employment-related disability.8
The additional medical evidence appellant submitted is insufficient to overcome the
weight accorded Dr. Mather as an impartial medical specialist on this issue. Dr. Bajaj, who
furnished a December 4, 2013 report in which he reiterated his findings and conclusions, had
been on one side of the conflict in medical evidence regarding appellant’s work capabilities.
Reports from a physician who was on one side of a medical conflict that an impartial specialist
resolved, are generally insufficient to overcome the weight accorded the opinion of the impartial
physician or to create a new conflict.9 In his January 10, 2004 report, Dr. Tumlin provided no
6

20 C.F.R. § 10.321.

7

V.G., 59 ECAB 635 (2008).

8

See Sharyn D. Bannick, 54 ECAB 537 (2003).

9

Supra note 2.

5

opinion regarding appellant’s work ability. The Board has long held that a medical report that
does not address appellant’s degree of disability due to his accepted employment injury is of
diminished probative value and insufficient to overcome the weight accorded to the report of the
impartial medical examiner or to create a new conflict.10
The Board therefore concludes that Dr. Mather’s opinion that appellant had no
restrictions and could work eight hours a day at regular duty is entitled to the special weight
accorded an impartial medical examiner.11 The additional medical evidence submitted is
insufficient to overcome the weight accorded him as an impartial medical specialist regarding
appellant’s disability. OWCP therefore met its burden of proof to terminate appellant’s
compensation.
Dr. Bajaj was consistent in his opinion that appellant had chronic back pain, lumbar
radiculitis and degenerative disc disease, but the Board notes that none of these conditions was
accepted as caused by the April 17, 2009 employment injury. On April 12, 2013 Dr. Mather
specifically advised that the accepted conditions of lumbar strain and lumbar disc herniation had
resolved with no residuals.
Appellant also asserted that she sustained a consequential emotional condition due to
back pain. In discussing the range of compensable consequences, once the primary injury is
causally connected with the employment, Larson notes that, when the question is whether
compensability should be extended to a subsequent injury or aggravation related in some way to
the primary injury, the rules that come into play are essentially based upon the concepts of direct
and natural results and of claimant’s own conduct as an independent intervening cause. The
basic rule is that a subsequent injury, whether 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.12 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, based on a
complete factual and medical background, showing causal relationship.13
Dr. Mather noted that appellant had many findings of nonorganic pain behavior and
psychosocial issues. He did not relate these findings to the April 17, 2009 employment injury or
the accepted conditions. In his January 10, 2014 report, Dr. Tumlin did not provide a firm
diagnosis of any psychological condition, noting only that a pain inventory test was performed.
The Board has long held that medical evidence that does not offer any opinion regarding the
cause of an employee’s condition is of limited probative value on the issue of causal
relationship.14 Appellant therefore did not meet her burden of proof to establish that she
sustained a consequential emotional condition.
10

Id.

11

See supra note 9.

12

Larson, The Law of Workers’ Compensation § 1300; see Charles W. Downey, 54 ECAB 421 (2003).

13

J.J., Docket No. 09-27 (issued February 10, 2009).

14

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

6

The weight of the medical evidence is determined by its reliability, its probative value, its
convincing quality, the care of analysis manifested and the medical rationale expressed in
support of the physician’s opinion.15 The Board finds that the weight of the medical evidence
regarding whether appellant continued to have residuals of the accepted conditions on or after
July 17, 2013 rests with the opinion evaluation of Dr. Mather who provided reports dated
August 1 and 3, 2012 and April 12, 2013. The Board finds that OWCP met its burden of proof
in finding that the April 17, 2009 employment injury had resolved on July 17, 2013.
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 met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits on July 17, 2013 on the grounds that the accepted conditions
had resolved with no residuals.
ORDER
IT IS HEREBY ORDERED THAT the February 20, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 18, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board
15

C.B., Docket No. 08-1583 (issued December 9, 2008).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.S., Appellant
and
U.S. POSTAL SERVICE, CINCINNATI BULK
MAIL CENTER, Cincinnati, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 06-1689
Issued: January 22, 2007

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 July 18, 2006 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs dated June 12, 2006 in which an Office hearing representative
affirmed a schedule award decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the schedule award determination in this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that she has
greater than an three percent permanent impairment of the right upper extremity for which she
received a schedule award.
FACTUAL HISTORY
On March 15, 2001 appellant, then a 55-year-old casual mail handler, sustained an
employment-related right elbow radial head fracture, traumatic impingement of the right
shoulder and traumatic bicep tendinitis when she tripped on stacked wood at work. She

continued working limited duty until February 28, 2002 when she underwent right shoulder
acromioplasty. Appellant did not return to work and received appropriate compensation.
The Office continued to develop the claim and on August 22, 2003 referred appellant to
Dr. E. Gregory Fisher, a Board-certified orthopedic surgeon, for a second opinion evaluation.
Dr. Fisher was provided the medical record, a statement of accepted facts and a set of questions.
In a September 3, 2003 report, he noted the history of injury, his review of the record and
provided examination findings. Dr. Fisher advised that appellant’s work-related condition had
resolved, that she could perform her mail handler duties and that she needed no further medical
treatment. In an attached work capacity evaluation, he advised that appellant could work 8 hours
a day with a 50-pound lifting restriction. On October 16, 2003 appellant’s attending Boardcertified orthopedic surgeon, Dr. Keith Kenter, advised that she could return to full duty.
By letter dated October 31, 2003, the Office informed appellant that it proposed to
terminate her compensation benefits on the grounds that she had no residuals of her employment
injuries. In response, appellant submitted a November 10, 2003 treatment note in which
Dr. Kenter noted her continued complaint of right upper extremity pain. By decision dated
May 26, 2004, the Office terminated appellant’s compensation benefits on the grounds that
residuals of the employment injury had ceased. On May 28, 2004 appellant, through counsel,
requested a hearing. At the hearing, held on November 16, 2004 appellant’s attorney argued that
she had continuing residuals and requested a schedule award. Appellant thereafter submitted a
December 13, 2004 report in which Dr. Martin Fritzhand, a Board-certified urologist who
practices occupational medicine,1 advised that appellant was being followed by a “Dr. Hubbard.”
Dr. Fritzhand stated that in accordance with the fifth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides)2
appellant had a three percent right upper extremity impairment under Figure 16-37 due to a range
of motion deficit of supination diminished to 20 degrees. He found that under Table 16-10 she
had a Grade 4 sensory impairment to the radial nerve yielding a 1.25 percent impairment and
under Table 16-11 a Grade 4 motor impairment of 8.75 percent. Dr. Fritzhand also advised that
under Figure 18-1 appellant was entitled to a 5 percent impairment for pain, for a total right
upper extremity impairment of 18 percent.
By decision dated February 22, 2005, an Office hearing representative affirmed that the
Office met its burden of proof to terminate appellant’s compensation benefits on May 26, 2004
but that Dr. Fritzhand’s report was sufficient to establish a conflict in medical evidence with
Dr. Fisher’s opinion regarding whether appellant had any continuing residuals or disability from
her accepted conditions and regarding the degree of permanent impairment. The hearing

1

Dr. Fritzhand’s letterhead notes that he is a fellow in the American Academy of Disability Evaluating
Physicians and the American Board of Independent Medical Examiners.
2

A.M.A., Guides (5th ed. 2001); Joseph Lawrence, Jr., 53 ECAB 331 (2002).

2

representative also requested that appellant provide the medical reports from Dr. Hubbard. By
letter dated March 21, 2005, appellant’s attorney informed the Office that she had never been
treated by a Dr. Hubbard.
On April 8, 2005 appellant was referred to Dr. Stephen T. Autry, Board-certified in
orthopedic surgery, for an impartial evaluation. A statement of accepted facts, the medical
record and a set of questions were provided for his review. In a report dated May 26, 2005,
Dr. Autry noted the history of injury, his review of the medical records and appellant’s
complaints of pain. Examination findings included full range of motion of the right shoulder
with subjective pain in external rotation and no right upper extremity atrophy. Motor and
sensory examinations were intact. Elbow range of motion demonstrated full pronation and
supination, flexion to 165 degrees and a lack of 10 degrees of full extension with no focal
tenderness, crepitation or other abnormality of the elbow. Dr. Autry advised that weakness
appeared to be more of a giveaway type that was not quantifiable but was approximately 4/5. He
noted diffuse tenderness over the right wrist and that she had reached maximum medical
improvement. Dr. Autry stated that, under Table 16-34 of the fifth edition of the A.M.A.,
Guides, appellant was entitled to a 1 percent right upper extremity impairment for loss of
10 degrees of extension. He advised that the best way to assess appellant’s 4/5 giveaway
weakness and subjective shoulder pain was by using section 18.3d of the A.M.A., Guides,
finding that she had a two percent whole person impairment for her residual pain. In an attached
work capacity evaluation, Dr. Autry opined that appellant could work for 8 hours a day with a
25-pound lifting restriction.
In a report dated June 27, 2005, an Office medical adviser noted review of the medical
record, including Dr. Autry’s evaluation. He found that maximum medical improvement had
been reached in January 2003 and that, based on Dr. Autry’s range of motion measurements and
recommendations, under Figure 16-34 of the A.M.A., Guides, appellant had had a 1 percent right
upper extremity impairment for the 10 degrees loss of extension. The Office medical adviser
noted that Dr. Autry found full range of motion of the right shoulder and advised that, based on
his findings of no evidence of sensory or motor loss, appellant was not entitled to an impairment
rating under Tables 16-10 and 16-11, explaining that the physician’s finding of giveaway
weakness and an inconsistent examination was interpreted as normal strength and sensation. He
agreed that appellant was entitled to an additional two percent under section 18.3d of the
A.M.A., Guides, based on an increasing burden for pain, for a total three percent right upper
extremity impairment.
By decision dated July 12, 2005, appellant was granted a schedule award for a 3 percent
impairment of the right upper extremity, for a total of 65.52 days, to run from January 1 to
March 7, 2003.3 On July 13, 2005 appellant, through her attorney, requested a hearing that was
held on March 28, 2006. At the hearing appellant’s attorney argued that Dr. Fritzhand’s
impairment rating should be credited. In a June 12, 2006 decision, an Office hearing
representative affirmed the July 12, 2005 schedule award decision.

3

The Board notes that the July 12, 2005 schedule award decision contains a typographical error stating that the
award was for 65.52 weeks.

3

LEGAL PRECEDENT
Under section 8107 of the Federal Employees’ Compensation Act4 and section 10.404 of
the implementing federal regulation,5 schedule awards are payable for permanent impairment of
specified body members, functions or organs. The Act, however, does not specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice under the law for all claimants, good administrative practice necessitates the use of
a single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides6 has been adopted by the Office and the Board has concurred in such adoption,
as an appropriate standard for evaluating schedule losses.7
The standards for evaluating the percentage of impairment of extremities under the
A.M.A., Guides are based primarily on loss of range of motion. In determining the extent of loss
of motion, the specific functional impairments, such as loss of flexion or extension, should be
itemized and stated in terms of percentage loss of use of the member in accordance with the
figures and tables found in the A.M.A., Guides. However, all factors that prevent a limb from
functioning normally should be considered, together with the loss of motion, in evaluating the
degree of permanent impairment.8
Chapter 16 of the fifth edition of the A.M.A., Guides provides the framework for
assessing upper extremity impairments.9 Section 16.4 provides that in evaluating abnormal
motion both active and passive motion measurements are necessary to evaluate the joint motion
under the appropriate charts and these should be added to obtain the total motion impairment.10
Section 18.3b provides that pain-related impairment should not be used if the condition can be
adequately rated under another section of the A.M.A., Guides. Office procedures provide that, if
the conventional impairment adequately encompasses the burden produced by pain, the formal
impairment rating is determined by the appropriate section of the A.M.A., Guides.11 Section
18.3d of the A.M.A., Guides, however, provides guidance on how a pain-related impairment
should be rated, noting that an award of up to three percent whole person impairment may be

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

A.M.A., Guides, supra note 2.

7

See Joseph Lawrence, Jr., supra note 2; James J. Hjort, 45 ECAB 595 (1994); Leisa D. Vassar, 40 ECAB 1287
(1989); Francis John Kilcoyne, 38 ECAB 168 (1986).
8

Robert V. Disalvatore, 54 ECAB 351 (2003).

9

A.M.A., Guides, supra note 2 at 433-521.

10

Id. at 451-52.

11

FECA Bulletin No. 01-05 (issued January 29, 2001).

4

granted if pain increases the burden of the employee’s condition.12 While the A.M.A., Guides,
provides for impairment to the individual member and to the whole person, the Act does not
provide for permanent impairment for the whole person.13
Section 8123(a) of the Act14 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.15 When the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.16 Office procedures indicate that referral to an Office medical adviser is
appropriate when a detailed description of the impairment from a physician is obtained.17
ANALYSIS
The Board finds that this case is not in posture for decision. The Office found that a
conflict had been created regarding appellant’s degree of impairment. Dr. Fisher, who
performed a second opinion evaluation for the Office found that appellant’s employment-related
condition had resolved without residuals and Dr. Fritzhand, an attending physician, found an
18 percent right upper extremity impairment. On April 8, 2005 the Office referred appellant to
Dr. Autry for an impartial evaluation. In a report dated May 26, 2005, Dr. Autry advised that
appellant had reached maximum medical improvement. Right upper extremity examination
findings included full range of motion of the shoulder with subjective pain in external rotation
and no atrophy. Motor and sensory examinations were intact. Elbow range of motion
demonstrated full pronation and supination, flexion to 165 degrees and a lack of 10 degrees of
full extension with no focal tenderness, crepitation or other abnormality of the elbow. He
advised that under Table 16-34 of the fifth edition of the A.M.A., Guides, appellant was entitled
to a 1 percent right upper extremity impairment for the loss of 10 degrees of extension. In a
June 27, 2005 report, an Office medical adviser assessed appellant’s right upper extremity
impairment based on Dr. Autry’s physical findings and in accordance with the A.M.A., Guides
and agreed that appellant was entitled to a 1 percent right upper extremity impairment for
10 degrees loss of elbow extension. The Board, therefore, finds that, based on Dr. Autry’s
physical findings, appellant would be entitled to a one percent right upper extremity impairment
for loss of elbow extension.

12

A.M.A., Guides, supra note 2 (Errata March 2002) at 573, 588; see Richard B. Myles, 54 ECAB 379 (2003).

13

See Janae J. Triplette, 54 ECAB 792 (2003).

14

5 U.S.C. §§ 8101-8193.

15

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

16

Manuel Gill, 52 ECAB 282 (2001).

17

See Thomas J. Fragale, 55 ECAB 619 (2004). Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule
Awards and Permanent Disability Claims, Chapter 2.808.6 (August 2002), id.

5

Dr. Autry, however, also advised that appellant’s right upper extremity weakness
appeared to be more of a giveaway type that was not quantifiable but was approximately 4/5. He
opined that the best way to assess this weakness and her subjective shoulder pain was by using
section 18.3d of the A.M.A., Guides, concluding that she had a two percent whole person
impairment. As stated above, section 18.3b provides that pain-related impairment should not be
used if the condition can be adequately rated under another section of the A.M.A., Guides.18 The
Board finds that Dr. Autry did not adequately explain why appellant’s giveaway weakness and
pain could not be adequately rated under Chapter 16 of the A.M.A., Guides. The Board also
notes that the Act does not provide for permanent impairment of the whole person19 and
Dr. Autry awarded appellant a two percent whole person impairment under section 18.3b. When
the Office obtains an opinion from an impartial medical specialist for the purpose of resolving a
conflict in the medical evidence and the specialist’s opinion requires clarification or elaboration,
the Office must secure a supplemental report from the specialist to correct the defect in the
original report.20 The case must, therefore, be remanded to the Office to secure a supplementary
report from Dr. Autry for a further explanation as to why appellant’s right upper extremity
giveaway weakness and pain cannot be adequately assessed in accordance with Chapter 16 of the
A.M.A., Guides. After such further development as it deems necessary, the Office shall issue an
appropriate decision.21
CONCLUSION
The Board finds that this case is not in posture for decision regarding the degree of
appellant’s right upper extremity impairment.

18

A.M.A., Guides, supra note 11.

19

Janae J. Triplette, supra note 13. Table 16-3 provides a chart for converting upper extremity impairments to
the whole person. A.M.A., Guides, supra note 2 at 439.
20

See Adrienne L. Curry, 53 ECAB 750 (2002).

21

The record before the Board does not contain a final decision regarding whether appellant has any continuing
disability. The Board’s jurisdiction is limited to reviewing final decisions of the Office and extends only to those
final decisions issued within one year prior to the filing of the appeal. See Annett Louise, 54 ECAB 783 (2003).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 12, 2006 be vacated and the case remanded to the Office for
proceedings consistent with this opinion of the Board.
Issued: January 22, 2007
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

7