United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Staten Island, NY, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0527
Issued: September 20, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On February 19, 2021 appellant, through counsel, filed a timely appeal from a
September 9, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). 2

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

Appellant appealed the September 9, 2020 decision of record in which OWCP affirmed its July 11, 2019 decision,
in part, by denying appellant’s claim for cervical radiculopathy causally related to a December 19, 2018 employment
injury. The case record also contains a September 9, 2020 decision in which OWCP formally accepted appellant’s
claim for post-concussion syndrome. As this latter September 9, 2020 decision is not adverse to appellant, it is not
subject to appeal. See 20 C.F.R. § 501.3(a).

Pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case. 4
ISSUE
The issue is whether appellant has met her burden of proof to expand the acceptance of her
claim to include a cervical radiculopathy condition causally related to the accepted December 19,
2018 employment injury.
FACTUAL HISTORY
On December 19, 2018 appellant, then a 39-year-old customer service supervisor, filed a
traumatic injury claim (Form CA-1) alleging that on that date she sustained injury when, in an
attempt to separate two clerks during a physical altercation, she was punched on the top of her
head and on her left ear while in the performance of duty. She asserted that she sustained bruises
as a result of the alleged incident. Appellant stopped work on December 19, 2018. On the reverse
side of the claim form, appellant’s supervisor acknowledged that appellant was in the performance
of duty at the time of the claimed injury.
Appellant submitted a December 20, 2018 report from Dr. John Shiau, a Board-certified
neurosurgeon, who recommended that appellant engage in home exercises for cervical stretching
and strengthening.
In a January 11, 2019 development letter, OWCP informed appellant of the deficiencies of
her claim. It advised her of the type of medical evidence necessary to establish her claim and
attached a questionnaire for her completion. OWCP afforded appellant 30 days to submit the
necessary evidence.
Appellant submitted a statement in which she further discussed the incident on
December 19, 2018 when she was punched on the head and left ear while attempting to stop two
coworkers from fighting. In a December 20, 2018 report, a physician assistant, discussed the
December 19, 2018 incident and diagnosed post-concussion syndrome and cervicalgia. 5
In a January 21, 2019 report, Dr. Steven Lin, an osteopath Board-certified in neurology,
discussed the December 19, 2018 employment incident and appellant’s reported symptoms. He
indicated that appellant had post-concussive syndrome and possibly post-traumatic syndrome. In

3

5 U.S.C. § 8101 et seq.

4

The Board notes that, following the September 9, 2020 decision, appellant submitted additional evidence to
OWCP. 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 additional evidence for the first time on appeal. Id.
5
The report contains the name of Dr. Glenn Babus, an osteopath Board certified in anesthesiology, in the signature
block, but it is not signed by him.

2

a January 22, 2019 report, Dr. Lin noted that appellant was unable to return to work until her next
evaluation on March 4, 2019.
In an authorization for examination and/or treatment form (Form CA-16) completed on
January 22, 2019, a physician assistant indicated that appellant was assaulted by a coworker on
the job and diagnosed post-concussive syndrome and cervical spasm/pain.
By decision dated February 15, 2019, OWCP accepted the occurrence of the December 19,
2018 employment incident when appellant was hit on the top of her head and on her left ear while
attempting to separate two coworkers. However, it denied appellant’s claim for a December 19,
2018 traumatic injury, finding that she failed to submit sufficient medical evidence to establish she
sustained a diagnosed condition causally related to the accepted December 19, 2018 employment
incident.
On April 25, 2019 appellant requested reconsideration of the February 15, 2019 decision.
She submitted a December 19, 2018 statement in which she again recounted the December 19,
2018 employment incident.
Appellant submitted a December 19, 2018 emergency room report, which discussed her
initial treatment for the December 19, 2018 incident. The report contained a diagnosis of head
contusion. In a Form CA-16 report completed on February 12, 2019, Dr. Lin diagnosed postconcussive syndrome, which he indicated was caused by appellant being hit in the head on
December 19, 2018.
In an April 15, 2019 report, Dr. Lin indicated that appellant’s reported symptoms were
consistent with post-concussive syndrome. In a May 1, 2019 report, he diagnosed post-concussive
syndrome and cervical radiculopathy, and indicated that appellant was totally disabled from work.
Appellant also submitted March 3, April 4, and June 5, 2019 reports from physician
assistants. The reports contain Dr. Lin’s name in the signature block, but were not signed by him.
By decision dated July 11 2019, OWCP denied modification of the February 15, 2019
decision.
On June 23, 2020 appellant, through counsel, requested reconsideration of the July 11,
2019 decision. Counsel argued that an attached December 13, 2019 report from Dr. Lin
established appellant’s claim for a December 19, 2018 employment injury, including a cervical
radiculopathy condition.
In his December 13, 2019 report, Dr. Lin indicated that he first saw appellant on
January 21, 2019 following a December 19, 2018 work-related accident where appellant was
injured trying to break up a fight between coworkers. Appellant reported that she was struck on
the left ear, but did not lose consciousness. Dr. Lin noted that she further reported that she
developed symptoms of persistent headache, dizziness, neck pain shooting down her arms, trouble
sleeping/focusing/concentrating, and worsening depression and anxiety. He advised that appellant
developed symptoms of post-concussion syndrome and detailed diagnostic testing obtained to
evaluate this condition. Dr. Lin indicated that it was suspected that she had post-traumatic stress
disorder as she reported frequent nightmares and a fear of returning to work. He noted that
3

appellant’s complaints of neck pain shooting down her arms were suggestive of cervical
radiculopathy and indicated that on examination days appellant had signs of myelopathy including
hyperreflexia and positive Hoffman sign. Dr. Lin noted that, despite the physical examination
finding of hyperreflexia, a magnetic resonance imaging (MRI) scan of the cervical spine showed
no spinal cord involvement. He indicated that the MRI scan showed two new small, mild bulging
discs at C5-6 and C7-T1, which were not seen on an MRI scan from 2011. Dr. Lin noted that it
was unclear whether the new MRI scan findings were due to the December 19, 2018 accident, but
he advised that appellant’s “symptoms were causally related since she had not needed any medical
therapy for her neck until the accident.” He noted that to assess for nerve injury, electromyogram
and nerve conduction velocity (EMG/NCV) testing was done on March 22, 2019, which revealed
normal results. Dr. Lin indicated that appellant’s neck pain and stiffness did not respond to
medication. He opined that it was within a reasonable degree of medical certainty that appellant ’s
post-concussive syndrome and cervical radiculopathy were causally related to the “work-related
injury that occurred on [December 19, 2018].”
Appellant also submitted August 15 and September 12, 2019 reports from physician
assistants. The reports contain Dr. Lin’s name in the signature block, but were not signed by him.
By decision dated September 9, 2020, OWCP vacated the July 11, 2019 decision, in part,
by accepting that appellant sustained post-concussion syndrome causally related to the accepted
December 19, 2018 employment injury. It also affirmed its July 11, 2019 decision, in part, by
denying appellant’s claim for cervical radiculopathy causally related to the accepted December 19,
2018 employment injury.6
By separate decision dated September 9, 2020, OWCP formally accepted that appellant
sustained post-concussion syndrome due to the accepted December 19, 2018 employment
incident.
LEGAL PRECEDENT
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury. 7 The medical evidence required to establish causal relationship
between a specific condition, and the employment injury is rationalized medical opinion evidence.
The opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical rationale

6
OWCP noted that Dr. Lin discussed psychiatric conditions “in the history of treatment you have received,” but
further indicated that Dr. Lin was only qualified to treat conditions within the scope of his practice, i.e., neurology. It
did not make a final decision regarding whether appellant sustained a psychiatric condition related to the December 19,
2018 employment injury and this issue is not currently before the Board. See 20 C.F.R. § 501.2(c).
7
J.R., Docket No. 20-0292 (issued June 26, 2020); W.L., Docket No. 17-1965 (issued September 12, 2018); V.B.,
Docket No. 12-0599 (issued October 2, 2012); Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

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explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant. 8
The Board has held that when the medical evidence supports an aggravation or acceleration
of an underlying condition precipitated by working conditions or injuries, such disability is
compensable.9 However, the normal progression of untreated disease cannot be stated to constitute
“aggravation” of a condition merely because the performance of normal work duties reveals the
underyling condition.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to expand the acceptance
of her claim to include a cervical radiculopathy condition causally related to her accepted
December 19, 2018 employment injury.
Appellant submitted a December 13, 2019 report from Dr. Lin who detailed the nature of
the December 19, 2018 employment indicated. Dr. Lin advised that appellant’s complaints of neck
pain shooting down her arms were suggestive of cervical radiculopathy and noted that on
examination days appellant had signs of myelopathy including hyperreflexia and positive Hoffman
sign. He noted that, despite the physical examination finding of hyperreflexia, an MRI scan of the
cervical spine showed no spinal cord involvement. Dr. Lin indicated that the MRI scan showed
two new small, mild bulging discs at C5-6 and C7-T1, which were not seen on an MRI scan from
2011. He noted that it was unclear whether the new MRI scan findings were due to the
December 19, 2018 accident, but he advised that appellant’s “symptoms were causally related
since she had not needed any medical therapy for her neck until the accident.” Dr. Lin noted that
to assess for nerve injury, EMG/NCV testing was done on March 22, 2019, which revealed normal
results. He opined that it was within a reasonable degree of medical certainty that appellant ’s
cervical radiculopathy was causally related to the “work-related injury that occurred on
[December 19, 2018].”
The Board finds that, due to its lack of adequate medical rationale on causal relationship,
Dr. Lin’s December 13, 2019 report is of limited probative value regarding appellant’s request to
expand her accepted conditions to include a cervical radiculopathy condition causally related to
her accepted December 19, 2018 employment injury. Dr. Lin did not provide adequate medical
rationale explaining how the December 19, 2018 employment incident would have been competent
to cause a cervical radiculopathy condition. The Board has held that a report is of limited probative
value regarding causal relationship if it does not contain medical rationale explaining how an

8

See E.J., Docket No. 09-1481 (issued February 19, 2010).

9

C.H., Docket No. 17-0488 (issued September 12, 2017).

10

Id.

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employment activity could have caused or aggravated a medical condition. 11 Accordingly,
Dr. Lin’s December 13, 2019 report is insufficient to establish appellant’s expansion claim.
Appellant submitted reports of Dr. Shiau and additional reports of Dr. Lin, and some of
these reports diagnosed cervical radiculopathy and cervicalgia. However, these reports are of no
probative value regarding appellant’s expansion claim because they do not contain an opinion that
appellant sustained a cervical radiculopathy condition due to the December 19, 2018 employment
injury. The Board has held that medical evidence that does not offer an opinion regarding the
cause of an employee’s condition or disability is of no probative value on the issue of causal
relationship.12 Therefore, these reports are insufficient to establish appellant’s expansion claim.
Appellant also submitted December 20, 2018, January 22, March 3, April 4, June 5,
August 15, and September 12, 2019 reports from physician assistants. However, certain healthcare
providers such as physician assistants, nurses, nurse practitioners, physical therapists, and social
workers are not considered “physician[s]” as defined under FECA. 13 Consequently, their medical
findings and/or opinions will not suffice for purposes of establishing entitlement to FECA benefits.
As appellant has not submitted rationalized medical evidence establishing causal relationship
between her diagnosed cervical radiculopathy condition and the accepted December 19, 2018
employment injury, she has not met her burden of proof to establish expansion of the acceptance of
her claim.14
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.

11

M.R., Docket No. 19-1954 (issued March 1, 2021); V.L., Docket No. 20-0884 (issued February 12, 2021). See
Y.D., Docket No. 16-1896 (issued February 10, 2017).
12
T.H., Docket No. 18-0704 (issued September 6, 2018). See also L.B., Docket No. 18-0533 (issued August 27,
2018); D.K., Docket No. 17-1549 (issued July 6, 2018);Charles H. Tomaszewski, 39 ECAB 461 (1988).

Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship,
Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as
physician assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA). See
also C.P., Docket No. 19-1716 (issued March 11, 2020) (a physician assistant is not considered a physician as defined
under FECA); S.L., Docket No. 19-0603 (issued January 28, 2020) (nurse practitioners are not considered physicians
as defined under FECA).
13

14

The Board notes that the case record contains Form CA -16 reports completed on January 22 and
February 22, 2019. A properly completed Form CA-16 form authorization may constitute a contract for payment of
medical expenses to a medical facility or physician, when properly executed. The form creates a contractual
obligation, which does not involve the employee directly, to pay for the cost of the examination or treatment regardless
of the action taken on the claim. The period for which treatment is authorized by a Form CA -16 is limited to 60 days
from the date of issuance, unless terminated earlier by OWCP. 20 C.F.R. § 10.300(c); P.R., Docket No. 18-0737
(issued November 2, 2018); N.M., Docket No. 17-1655 (issued January 24, 2018); Tracy P. Spillane, 54 ECAB
608 (2003).

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CONCLUSION
The Board finds that appellant has not met her burden of proof to expand the acceptance
of her claim to include a cervical radiculopathy condition causally related to her accepted
December 19, 2018 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the September 9, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 20, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bellmawr, NJ, Employer
__________________________________________

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

Docket No. 08-1314
Issued: November 21, 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 March 25, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs October 30, 2007 decision, regarding her schedule award claim. She
also appealed a decision dated January 2, 2008, which denied a request for an oral hearing
pursuant to 5 U.S.C. § 8124(b)(1). Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant has more than a 14 percent permanent impairment
of the left upper extremity, for which she received a schedule award; and (2) whether the Office
properly denied appellant’s request for an oral hearing pursuant to 5 U.S.C. § 8124(b)(1).
FACTUAL HISTORY
On January 16, 2004 appellant, then a 32-year-old clerk, filed an occupational disease
claim alleging that she developed shoulder tendinitis as a result of performing her work duties.
The Office accepted appellant’s claim for left rotator cuff syndrome and left wrist tendinitis and

authorized arthroscopic surgery on the left shoulder, which was performed on March 21, 2005.
Appellant did not stop work but returned to a limited-duty job.
Appellant came under the treatment of Dr. Thomas P. Obade, a Board-certified
orthopedist, who treated her from June 30, 2004 to May 10, 2005 for an onset of left shoulder
pain beginning December 18, 2003. Dr. Obade diagnosed rotator cuff tendinitis, rule out tear
and recommended additional diagnostic testing. He noted that a magnetic resonance imaging
(MRI) scan of the left shoulder dated August 5, 2004, revealed a tendinopathy without evidence
of a full thickness rotator cuff tear. Dr. Obade recommended a course of physical therapy and
continued appellant on limited duty. On March 21, 2005 he performed arthroscopic debridement
of the supraspinatus tendon, bursal surface and subacromial decompression of the left shoulder
and diagnosed rotator cuff tendinitis of the left shoulder.
On December 5, 2005 appellant filed a claim for a schedule award.
In a letter dated March 13, 2006, the Office requested Dr. Obade provide the extent of
permanent impairment of the left upper extremity due to the employment injury in accordance
with the fifth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides).1
In reports dated November 4, 2005 to March 15, 2006, Dr. Obade noted that appellant
was progressing well postoperatively and could return to work with a five-pound weight
restriction. In a report dated March 23, 2006, he responded to the Office’s questionnaire for
impairment and noted that appellant experienced mild, frequent pain or discomfort in her
shoulder. Dr. Obade noted no deficit in range of motion and weakness in the rotator cuff. He
opined that appellant reached maximum medical improvement on May 10, 2005.
The Office referred Dr. Obade’s report and the case record to the Office’s medical
adviser who, in a report dated April 20, 2006, found that Dr. Obade provided no objective data to
calculate a schedule award.
On March 18, 2006 the Office referred appellant for a second opinion to Dr. Zohar Stark,
a Board-certified orthopedic surgeon, for an evaluation of the extent of permanent impairment in
accordance with the A.M.A., Guides. In a report dated June 13, 2006, Dr. Stark noted no
sensory or motor deficit in the upper extremities, the left shoulder revealed forward flexion of
170 degrees, extension of 40 degrees, abduction of 170 degrees, adduction of 30 degrees,
external rotation of 80 degrees and internal rotation of 70 degrees. Examination of the left wrist
revealed no swelling, no tenderness, normal range of motion and Tinel’s, Phalens and Finkelstein
tests were negative. Dr. Stark opined that appellant sustained four percent impairment to her left
upper extremity pursuant to the A.M.A., Guides and no impairment for her left wrist. He noted
that appellant reached maximum medical improvement as of March 26, 2006.

1

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

2

In a report dated November 25, 2006, an Office medical adviser found that appellant had
four percent impairment of the left upper extremity. He calculated that forward flexion was
170 degrees for one percent impairment,2 extension was 40 degrees for one percent impairment,3
abduction was 170 degrees for zero percent impairment,4 adduction was 30 degrees for one
percent impairment,5 internal rotation was 70 degrees for one percent impairment6 and external
rotation was 80 degrees for zero percent impairment.7
Appellant continued to submit reports from Dr. Obade dated March 15, 2006 to
January 3, 2007, who treated her for intermittent pain in the left shoulder.
In a decision dated February 15, 2007, the Office granted appellant a four percent
impairment of the left upper extremity. The period of the award was from June 13 to
September 8, 2006.
Appellant requested reconsideration. She submitted reports from Dr. Obade dated
January 3 to August 15, 2007, who noted appellant’s complaints of intermittent pain in the
shoulder, full range of motion and minimal anterior capsular tenderness. Appellant also
submitted a May 1, 2007 report from Dr. Steve M. Allon, a Board-certified orthopedist, who
evaluated appellant for an impairment rating for her accepted conditions. Dr. Allon noted that
physical examination of the left shoulder revealed a well-healed anterior medial and lateral
surgical scar, range of motion of the left shoulder revealed flexion of 110 degrees, abduction of
85 degrees, external rotation of 45 degrees and internal rotation of 45 degrees, all with pain. He
diagnosed acromioclavicular arthropathy with impingement to the left shoulder, left shoulder
rotator cuff tendinitis, status post arthroscopic debridement of the left supraspinatus tendon,
bursal surface on March 21, 2005 and status post arthroscopic subacromial decompression of the
left shoulder. Dr. Allon noted that based on the A.M.A., Guides appellant would receive a
26 percent permanent impairment of the left upper extremity. He calculated that forward flexion
was 110 degrees for 5 percent impairment,8 abduction was 85 degrees for 5 percent impairment,9
internal rotation was 45 degrees for 3 percent impairment10 and external rotation was 45 degrees

2

Id. at 476, Figure 16-40.

3

Id.

4

Id. at 477, Figure 16-43.

5

Id.

6

Id. at 479, Figure 16-46.

7

Id.

8

Id. at 476, Figure 16-40.

9

Id. at 477, Figure 16-43.

10

Id. at 479, Figure 16-46.

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for 1 percent impairment,11 left shoulder resection arthroplasty for 10 percent impairment12 and
3 percent for pain-related impairment.13
The Office found that a conflict of medical opinion existed between Dr. Allon,
appellant’s treating physician, and Dr. Stark, the Office referral physician, regarding the degree
of permanent impairment of the upper extremities due to her work-related injury.
To resolve the conflict, on September 13, 2007, the Office referred appellant to a referee
physician, Dr. Gregory S. Maslow, a Board-certified orthopedic surgeon, who indicated, in a
report dated September 27, 2007, that he reviewed the records provided to him and performed a
physical examination of appellant. Dr. Maslow noted a history of appellant’s work-related
injury. He noted findings upon physical examination of well-healed arthroscopic scars on the
left side, no evidence of brachial plexitis, no atrophy, range of motion was full on all planes with
the exception of internal rotation which had a deficit of 20 degrees. Dr. Maslow noted no
evidence of cuff or biceps tendinopathy on the left side other than mild subacromial crepitus,
strength testing of the left shoulder was normal with full range of motion of the elbows, wrists
and forearms. He opined that appellant had nine percent impairment of the left arm due to her
work injury. Dr. Maslow calculated one percent deficit for internal rotation deficit of
20 degrees.14 He noted that the A.M.A., Guides provide for a 10 percent impairment of the
upper extremity for resection arthroplasty of the distal clavicle;15 however, he opined that in this
case Dr. Obade did not perform a complete resection arthroplasty of the distal clavicle and
therefore would be entitled on only a five percent impairment for the resection of the distal
clavicle. He concurred with Dr. Allon’s determination of three percent impairment for painrelated impairment.16
Dr. Maslow’s report of September 27, 2007 and the case record were referred to the
Office’s medical adviser. In a report dated October 16, 2007, the Office medical adviser
determined that appellant was entitled to schedule award for 14 percent permanent impairment of
the left upper extremity. He noted that internal rotation deficit of 20 degrees was 1 percent
impairment;17 however, he advised that the A.M.A., Guides provide for 10 percent impairment
for acromioplasty clavicle resection18 and did not allow for splitting of the impairment as
indicated by Dr. Maslow. The Office medical adviser further concurred with Dr. Maslow’s

11

Id.

12

Id. at 506, Table 16-27.

13

Id. at 574, Figure 18-1.

14

Id. at 479, Figure 16-46.

15

Id. at 506, Table 16-27.

16

Id. at 574, Figure 18-1.

17

Id. at 479, Figure 16-46.

18

Id. at 506, Table 16-27.

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determination that appellant was entitled to a three percent impairment for pain-related
impairment.19
In a decision dated October 30, 2007, the Office granted appellant a schedule award for
14 percent permanent impairment of the left upper extremity. It noted that appellant was
previously granted four percent impairment and would be entitled to an additional award of nine
percent.
On November 7, 2007 appellant requested an oral hearing.
In a decision dated January 2, 2008, the Office’s Branch of Hearings and Review denied
appellant’s request for an oral hearing. The Branch of Hearings and Review found that, since
appellant had previously requested reconsideration on the same issue, she was not entitled to an
oral hearing as a matter of right. Appellant was informed that her case had been considered in
relation to the issues involved and that the request was further denied for the reason that the
issues in this case could be addressed by requesting reconsideration from the Office and
submitting evidence not previously considered.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act20 and its
implementing regulation21 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.22
ANALYSIS -- ISSUE 1
On appeal, appellant contends that she has more than 14 percent permanent impairment
of the left upper extremity. The Office accepted appellant’s claim for left rotator cuff syndrome
and left wrist tendinitis and authorized arthroscopic surgery on the left shoulder, which was
performed on March 21, 2005. It properly found that, a conflict in the medical evidence existed
between appellant’s attending physician, Dr. Allon, who disagreed with the Office referral
physician, Dr. Stark, concerning the extent of appellant’s impairment of the left upper extremity.
Consequently, the Office referred appellant to Dr. Maslow to resolve the conflict.

19

Id. at 574, Figure 18-1.

20

5 U.S.C. § 8107.

21

20 C.F.R. § 10.404.

22

Donald E. Stockstad, 53 ECAB 301 (2002), petition for recon., granted (modifying prior decision), Docket No.
01-1570 (issued August 13, 2002).

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Where there exists a conflict of medical opinion and the case is referred to an impartial
specialist for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently
well rationalized and based upon a proper factual background, is entitled to special weight.23
The Board finds that, under the circumstances of this case, the opinion of Dr. Maslow is
sufficiently well rationalized and based upon a proper factual background such that it is entitled
to special weight and establishes that appellant sustained no more than a 14 percent impairment
of the left upper extremity.
Dr. Maslow reviewed appellant’s history and reported findings. He noted findings upon
physical examination of no atrophy, full range of motion on all planes with the exception of
internal rotation, which had a deficit of 20 degrees. Dr. Maslow noted mild subacromial
crepitus, strength testing of the left shoulder was normal with full range of motion of the elbows,
wrists and forearms. He opined that appellant sustained a nine percent impairment of the left
upper extremity causally related to her work injury. Dr. Maslow calculated a one percent deficit
for internal rotation deficit of 20 degrees,24 five percent impairment for the resection of the distal
clavicle; and three percent impairment for pain-related impairment.25 He noted that the A.M.A.,
Guides provide for a 10 percent impairment of the upper extremity for resection arthroplasty of
the distal clavicle;26 however, he allocated a 5 percent rating because Dr. Obade did not perform
a complete resection arthroplasty of the distal clavicle. The Board notes that the A.M.A., Guides
provide for 10 percent impairment for a acromioplasty clavicle resection and there is no
provision in the A.M.A., Guides to divide the impairment value.
In an October 16, 2007 report, the Office medical adviser applied the A.M.A., Guides to
Dr. Maslow’s findings and determined that appellant was entitled to schedule award for
14 percent permanent impairment of the left upper extremity. He concurred with Dr. Maslow’s
determination that internal rotation deficit of 20 degrees was 1 percent impairment.27 The
medical adviser noted that the A.M.A., Guides provide for 10 percent impairment for
acromioplasty clavicle resection28 and do not allow for splitting of the impairment as indicated
by Dr. Maslow. The medical adviser further concurred with Dr. Maslow’s determination that
appellant was entitled to a three percent impairment for pain-related impairment.29
23

Aubrey Belnavis, 37 ECAB 206 (1985). See 5 U.S.C. § 8123(a).

24

A.M.A., Guides 479, Figure 16-46.

25

Id. at 574, Figure 18-1.

26

Id. at 506, Table 16-27.

27

Id. at 479, Figure 16-46.

28

Id. at 506, Table 16-27.

29

Id. at 574, Figure 18-1. The Board notes that each physician erroneously attributed pain-related impairment
under Chapter 18 of the A.M.A., Guides. See id. The Board has held that physicians should not use Chapter 18 to
rate pain-related impairments for any condition that can be adequately rated on the basis of the body and organ
impairment systems given in other chapters of the A.M.A., Guides. See Linda Beale, 57 ECAB 429 (2006);
Frantz Ghassan, 57 ECAB 349 (2006).

6

The Board finds that the report of Dr. Maslow is entitled to special weight and establishes
that there is no basis under the A.M.A., Guides for an award greater than the 14 percent
impairment previously granted. This evaluation conforms to the A.M.A., Guides and establishes
that appellant has no more than a 14 percent of the left upper extremity.
The Office properly noted that appellant was previously granted a schedule award for
4 percent permanent impairment of the left upper extremity therefore she was entitled to an
additional schedule 10 percent award for the left upper extremity.
On appeal, appellant asserts that the medical adviser improperly resolved the conflict of
opinion after referral to a referee physician. The Board finds this argument to be without merit.
To properly resolve a medical conflict, it is the impartial medical specialist who should provide a
reasoned opinion as to the extent of permanent impairment in accordance with the A.M.A.,
Guides. An Office medical adviser may review the opinion, but the resolution of the conflict is
the responsibility of the impartial medical specialist.30 In this case, the referee physician
resolved the conflict of opinion. The medical adviser concurred with the referee physician’s
impairment determination and applied the A.M.A., Guides to the referee physician’s report. He
corrected an error by Dr. Maslow in applying the A.M.A., Guides, noting that, although,
Dr. Maslow calculated 5 percent impairment for acromioplasty clavicle resection,31 the A.M.A.,
Guides provide for a 10 percent which would allow for an impairment rating of 14 percent.
Thus, the findings of Dr. Maslow establish that appellant has no greater permanent impairment
than that awarded by the Office.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Act provides that “before review under section 8128(a) of this
title, a claimant for compensation not satisfied with a decision of the Secretary ... is entitled, on
request made within 30 days after the date of the issuance of the decision, to a hearing on his
claim before a representative of the Secretary.”32 Section 10.615 of the federal regulations
implementing this section of the Act provides that a claimant shall be afforded a choice of an
oral hearing or a review of the written record.33 The Office’s regulations provide that the request
must be sent within 30 days of the date of the decision, for which a hearing is sought and also
that “the claimant must not have previously submitted a reconsideration request (whether or not
it was granted) on the same decision.”34
30

See Richard R. LeMay, 56 ECAB 341(2005) (where the Board found that the Office medical adviser may
review the opinion of the referee physician; however, the resolution of the conflict is the responsibility of the
impartial specialist). See Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter
3.500.5(c)(1) (provides that an Office medical adviser may review the report of a referee specialist where
determination of a schedule award is involved and that the medical adviser may note any medical errors found, such
as improper application of the A.M.A., Guides).
31

A.M.A., Guides, 506, Table 16-27.

32

5 U.S.C. § 8124(b)(1).

33

20 C.F.R. § 10.615.

34

Id. at § 10.616(a).

7

Additionally, the Board has held that the Office, in its broad discretionary authority in the
administration of the Act,35 has the power to hold hearings in certain circumstances where no
legal provision was made for such hearings and that the Office must exercise this discretionary
authority in deciding whether to grant a hearing.36 The Office’s procedures, which require the
Office to exercise its discretion to grant or deny a hearing when the request is untimely or made
after reconsideration, are a proper interpretation of the Act and Board precedent.37
ANALYSIS -- ISSUE 2
Appellant’s request for an oral hearing dated November 7, 2007 was denied on the grounds
that she had previously requested reconsideration pursuant to 5 U.S.C. § 8128(a) of the Act.38 The
Board finds that appellant’s request for an oral hearing was made after the Office issued its
October 30, 2007 decision on her request for reconsideration made pursuant to 5 U.S.C. § 8128.
Hence, the Office correctly found that appellant was not entitled to an oral hearing before an Office
hearing representative as a matter of right as she had previously requested reconsideration.
In its January 2, 2008 decision, the Office acknowledged that although there was no
entitlement to an oral hearing, it could allow such an oral hearing within its discretion. It properly
exercised its discretion by indicating that it had also denied appellant’s hearing request on the basis
that the case could be equally well addressed by requesting reconsideration and submitting
additional medical evidence. There is no evidence of an abuse of discretion in this case.39
CONCLUSION
The Board finds that the Office properly determined that appellant had no more than a
14 percent permanent impairment of the left upper extremity, for which she received a schedule
award. The Board further finds that the Office properly denied appellant’s request for an oral
hearing pursuant to 5 U.S.C. § 8124(b)(1).

35

5 U.S.C. §§ 8101-8193.

36

Marilyn F. Wilson, 52 ECAB 347 (2001).

37

Teresa M. Valle, 57 ECAB 542 (2006). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and
Reviews of the Written Record, Chapter 2.1601.4(b)(3) (June 1997).
38

See Peggy R. Lee, 46 ECAB 527 (1995) (where the Board found that appellant’s request for an oral hearing was
made after the Office issued its decision on his request for reconsideration made pursuant to 5 U.S.C. § 8128 and
therefore appellant was not entitled to an oral hearing before an Office hearing representative as a matter of right).
39

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

8

ORDER
IT IS HEREBY ORDERED THAT the January 2, 2008 and October 30, 2007
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: November 21, 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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
U.S. POSTAL SERVICE, MASSENA POST
OFFICE, Massena, NY, Employer
__________________________________________

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

Docket No. 12-1091
Issued: December 28, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 23, 2012 appellant filed a timely appeal of the April 13, 2012 merit decision of
the Office of Workers’ Compensation Programs (OWCP) denying her traumatic injury claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the April 13, 2012 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1). The Board also notes that after the April 23, 2012 filing of the current
appeal, OWCP’s Branch of Hearings and Review issued a final decision on June 13, 2012 denying appellant’s
April 24, 2012 request for an oral hearing before an OWCP hearing representative concerning the denial of her
traumatic injury claim, the same issue presently before the Board. An OWCP decision issued while the Board has
jurisdiction over the matter in dispute is null and void. Lawrence Sherman, 55 ECAB 359, 360 n.4 (2004); see also
20 C.F.R. § 501.2(c)(3). Because the Board had already obtained jurisdiction over the question of whether appellant
sustained a traumatic injury, the Branch of Hearings & Review could not simultaneously exercise jurisdiction over
that same issue. Accordingly, the June 13, 2012 final decision shall be set aside as null and void.

ISSUE
The issue is whether appellant established that she sustained left shoulder and hip injuries
in the performance of duty on February 16, 2012, as alleged.
On appeal, appellant contends that she sustained employment-related left shoulder and
hip injuries on February 16, 2012 for which medical treatment is warranted. She added that all
she desired was to obtain medical treatment and to return to work as soon as possible. Further,
appellant added that, if she had the proper insurance to pay for medical expenses, she would not
have appealed.
FACTUAL HISTORY
On February 17, 2012 appellant, then a 43-year-old rural carrier associate, filed a
traumatic injury claim alleging that on February 16, 2012 she slipped on the ice while loading
trays of mail into her long life vehicle (LLV). She stopped work on the date of injury.
Massena Memorial Hospital emergency room records dated February 16, 2012 contained
illegible signatures and stated that appellant fell at work. They also stated that she could return
to work on February 23, 2012 with no restrictions.
An unsigned and undated authorization for examination and/or treatment (Form CA-16),
bearing the stamp of the employing establishment, provided a history that on February 16, 2012
appellant injured her left hip when she fell while loading a tray of mail into her LLV.
In a February 22, 2012 report, Bunny French, a licensed practical nurse (LPN), obtained a
history that on February 16, 2012 appellant fell on ice at work and hurt her left shoulder and
entire arm.
In a February 29, 2012 duty status report (Form CA-17), Laura Rizzo, a nurse
practitioner (NP), obtained a history of the February 16, 2012 incident. She advised that
appellant had a left arm rotator cuff injury. Nurse Rizzo further advised that appellant could not
perform her regular work duties or use her left arm. Appellant could, however, return to work on
March 5, 2012. In an attending physician’s report (Form CA-20) also dated February 29, 2012,
Nurse Rizzo advised that appellant sustained a shoulder rotator cuff injury as a result of the
February 16, 2012 incident. Appellant was totally disabled for work from the date of injury
through March 5, 2012 when she could return to work with no use of the left shoulder. In
narrative reports dated February 22 and 29, 2012, Nurse Rizzo listed normal physical
examination findings and advised that appellant had pain and disorders in the left shoulder joint
area and cervicalgia.
In reports dated February 16, 2012, Dr. Gary L. Robbins, a Board-certified radiologist,
advised that x-rays of the left hip and shoulder showed no fracture. Also, on February 16, 2012
he advised that an x-ray of the cervical spine was negative.
By letter dated March 13, 2012, OWCP advised appellant that the evidence submitted
was insufficient to establish her claim. It requested that she submit medical evidence, including
a rationalized medical opinion from an attending physician describing a history of injury and
2

providing dates of examination and treatment, findings, test results, a diagnosis together with an
explanation as to how the February 16, 2012 incident caused her medical condition.
In a March 19, 2012 letter, appellant addressed her medical treatment and disability for
work. She submitted a February 17, 2012 notification of injury form describing the February 16,
2012 incident.
In a February 16, 2012 narrative statement, Ryan McGregor, an employee, related that on
that date appellant was on the ground near her vehicle when she called out for help. He helped
her get up and then she went inside the building to report her injury to Giselle Reynolds.
In reports dated February 22 and 29, 2012, Nurse French reiterated a history that
appellant fell on the ice at work on February 16, 2012. She diagnosed cervical strain.
In reports dated February 22 and 29, 2012, Nurse Rizzo advised that appellant had joint
pain in the shoulder, shoulder disorders otherwise specified, cervicalgia, cervical strain and left
shoulder rotator cuff tear.
In CA-20 and CA-17 forms dated March 12, 2012 a physician whose signature is
illegible stated that appellant had a left rotator cuff tear caused or aggravated by the February 16,
2012 incident. A disability certificate that was also dated March 12, 2012 contained the same
illegible signature. It stated that appellant could return to light-duty work on March 13, 2012
with no use of her left arm.
In an April 13, 2012 decision, OWCP denied appellant’s claim. It found that the
evidence established that the February 16, 2012 incident occurred as alleged. OWCP, however,
found that appellant failed to submit rationalized medical evidence from a qualified physician as
defined under FECA establishing a diagnosis causally related to the accepted employmentrelated incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was 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.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury of an occupational disease.5
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
3

5 U.S.C. §§ 8101-8193.

4

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

5

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999); Elaine Pendleton, id.

3

established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.6
In order to meet her burden of proof to establish the fact that she sustained an injury in the
performance of duty, an employee must submit sufficient evidence to establish that she actually
experienced the employment injury or exposure at the time, place and in the manner alleged.7
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.8 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.9 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.10
ANALYSIS
In an April 13, 2012 decision, OWCP accepted as factual that appellant loaded a tray of
mail into her LLV on February 16, 2012 while working as a rural carrier associate. The Board
finds, however, that the medical evidence of record is insufficient to establish that her left
shoulder and hip conditions were caused or aggravated by the February 16, 2012 employment
incident.
Dr. Robbins’ diagnostic test results regarding appellant’s left hip and shoulder and
cervical spine were negative. He did not provide a diagnosis that was caused or contributed to
by the accepted employment incident. The Board finds, therefore, that Dr. Robbins’ reports are
insufficient to establish appellant’s claim.
The unsigned Form CA-16 and hospital records, and the reports and disability certificate
which contained illegible signatures have no probative value, as the author(s) cannot be
identified as a physician.11 Further, the reports of Nurses French and Rizzo have no probative
medical value in establishing appellant’s claim as a nurse is not defined as a qualified physician
under FECA.12

6

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995).

7

Linda S. Jackson, 49 ECAB 486 (1998).

8

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined, respectively).
9

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

10

Charles E. Evans, 48 ECAB 692 (1997).

11

See R.M., 59 ECAB 690, 693 (2008); Merton J. Sills, 39 ECAB 572, 575 (1988).

12

See 5 U.S.C. § 8101(2); G.G., 58 ECAB 389 (2007).

4

The Board finds that there is insufficient rationalized probative medical evidence of
record to establish that appellant sustained left shoulder and hip injuries causally related to the
accepted February 16, 2012 employment incident. Appellant did not meet her burden of proof.
On appeal, appellant contended that she sustained left shoulder and hip injuries causally
related to the February 16, 2012 employment incident for which medical treatment is necessary.
For the reasons stated, the Board finds that she did not submit sufficiently rationalized probative
medical evidence 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.
Appellant also contended that all she wanted following the February 16, 2012
employment incident was to receive medical treatment to return to work as soon as possible and
had she possessed the proper insurance to cover the treatment, she would not have pursued an
appeal. OWCP, however, did not adjudicate the issue of her incurred medical expenses. It has
broad discretionary authority in the administration of FECA to achieve the objective of section
8103 of FECA.13 OWCP has discretionary authority to approve unauthorized medical care
which it finds necessary and reasonable and is required to exercise that discretion.14 Ordinarily,
when an employee sustains a job-related injury which may require medical treatment, the
designated agency official shall promptly authorize such treatment by giving the employee a
properly executed Form CA-16 authorizing medical treatment and expenses within four hours.15
The regulations provide that in unusual or emergency circumstances OWCP may approve
payment for medical expenses incurred otherwise than as authorized in section 10.303.16 It may
approve payment for medical expenses incurred even if a CA-16 form authorizing medical
treatment and expenses has not been issued and the claim is subsequently denied; payment in
such situations must be determined on a case-by-case basis.17
Although the record contains an unsigned and undated Form CA-16, it does contain the
employing establishment’s stamp. Additionally, immediately following the employment
incident of February 16, 2012, appellant sought medical treatment from the emergency room of
Massena Memorial Hospital. She received treatment from Nurse French, LPN and Nurse Rizzo,
NP. The Board notes that nonphysicians, such as nurse practitioners, “may also provide
authorized services for injured employees to the extent allowed by applicable Federal and State
law.”18 As OWCP did not determine whether appellant was entitled to reimbursement for
13

Id. at § 8103.

14

L.B., Docket No. 10-469 (issued June 2, 2010); see Thomas W. Keene, 42 ECAB 623 (1991); Val D. Wynn, 40
ECAB 666 (1989).
15

20 C.F.R. § 10.300(b).

16

Id. at § 10.304.

17

See L.B., supra note 14; see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Authorizing
Examination and Treatment, Chapter 3.300.3(a) (October 1990).
18

20 C.F.R. § 10.310 (2012).

5

expenses incurred for medical treatment rendered, the Board will remand the case for such
determination. Following any necessary further development, it shall issue a de novo decision on
the issue of reimbursement of medical expenses.
CONCLUSION
The Board finds that appellant has failed to establish that she sustained left shoulder and
hip injuries on February 16, 2012, as alleged. The case is remanded for a determination as to the
reimbursement of expenses for medical treatment rendered.
ORDER
IT IS HEREBY ORDERED THAT the April 13, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed. The case is remanded for consideration of the
issue of reimbursement of medical expenses for treatment rendered.
Issued: December 28, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
U.S. POSTAL SERVICE, ROCHESTER
PROCESSING & DISTRIBUTION CENTER,
Rochester, NY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0970 & Docket
No. 21-0972
Issued: March 3, 2022

Case Submitted on the Record

ORDER REMANDING CASE
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On January 3, 2021 appellant also filed a timely appeal from a November 24, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP) under OWCP File No.
xxxxxx550. The Clerk of the Appellate Boards docketed the appeal as No. 21-0972. On June 10,
2021 appellant filed a timely appeal from a December 29, 2020 merit decision of OWCP under
OWCP File No. xxxxxx896. The Clerk of the Appellate Boards docketed that appeal as No.
21-0970.
With regard to OWCP File No. xxxxxx550, on October 27, 2007 appellant, then a 45-yearold mail processor, filed an occupational disease claim (Form CA-2) alleging that she developed
neck, shoulder, and wrist conditions due to factors of her federal employment, including lifting
trays, pushing containers, and moving mail. She noted that she first became aware of her condition
and its relation to her federal employment on October 27, 2007. OWCP accepted the claim for
right biceps strain and sprain of the shoulder and upper arm. On November 12, 2008 OWCP
expanded the acceptance of appellant’s claim to include right lateral epicondylitis, lesion of the
left ulnar nerve, and bilateral carpal tunnel syndrome.
With regard to OWCP File No. xxxxxx896, on January 3, 2017 appellant, then a 54-yearold mail processor, filed an occupational disease claim (Form CA-2) alleging that she developed

a left wrist condition due to factors of her federal employment, including repetitive fixing and
bagging of the mail. On April 5, 2017 OWCP accepted the claim for left radial styloid
tenosynovitis (de Quervain’s) under OWCP File No. xxxxxx896.
On June 1, 2020 appellant filed claims for compensation (Form CA-7) for a schedule award
under both OWCP File Nos. xxxxxx896 and xxxxx550. By decision dated November 24, 2020,
under OWCP File No. xxxxxx550, OWCP granted appellant a schedule award for seven percent
permanent impairment of her right upper extremity and nine percent permanent impairment of her
left upper extremity. The award ran for 47.76 weeks during the period September 14, 2020 to
August 14, 2021. By decision dated December 29, 2020, under OWCP File No. xxxxx896, OWCP
denied appellant’s schedule award claim, finding that the evidence of record was insufficient to
establish permanent impairment of a scheduled member or function of the body.
The Board has duly considered the matter and finds that these cases are not in posture for
decision.
Under its procedures, OWCP has determined that cases should be administratively
combined where a new injury case is reported for an employee who previously filed an injury
claim for the same part of the body and where correct adjudication depends on frequent crossreferencing between files.1 This will allow OWCP to consider all relevant claim files in developing
these schedule award claims.2
Appellant has claimed schedule awards in two claims, both accepted for injuries to her left
upper extremity. Therefore, for full and fair adjudication, the cases must be remanded to OWCP
to administratively combine OWCP File Nos. xxxxxx896 and xxxxxx550.3 Following this and
other such further development as deemed necessary, OWCP shall issue a de novo decision on
appellant’s schedule award claims.

1

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
2

Id. at Chapter 2.400.8(c)(1); E.J., Docket No. 20-1556 (issued July 27, 2021); V.G., Docket No. 19-0670 (issued
April 30, 2020); L.P., Docket Nos. 18-1558, 18-1568 (issued June 21, 2019); L.S., Docket Nos. 17-1863, 17-1867,
17-1868 (issued April 18, 2018); W.S., Docket No. 15-0969 (issued October 5, 2015); C.C., Docket No. 14-1576
(issued March 9, 2015).
3

Id.

2

IT IS HEREBY ORDERED THAT the November 24 and December 29, 2020 decisions
of the Office of Workers’ Compensation Programs under OWCP File Nos. xxxxxx550 and
xxxxxx896 are set aside and the cases are remanded to OWCP for further proceedings consistent
with this order of the Board.
Issued: March 3, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.R., Appellant
and
U.S. POSTAL SERVICE, NETWORK
DISTRIBUTION CENTER, Jersey City, NJ,
Employer
__________________________________________

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Appearances:
Stephen Larkin, for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1388
Issued: January 9, 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 July 7, 2018 appellant, through her representative, filed a timely appeal from a March 1,
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.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a traumatic injury
causally related to the accepted September 8, 2016 employment incident.
FACTUAL HISTORY
On October 6, 2016 appellant, then a 45-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that, on September 8, 2016, she sustained bilateral carpal tunnel
syndrome and cervical radiculopathy in the performance of duty. She stopped work on
September 9, 2016. The employing establishment controverted the claim, noting that appellant
did not provide notice of the alleged injury until October 6, 2016. It further requested that OWCP
adjudicate the claim as one for an occupational disease.
In a September 28, 2016 prescription note, Dr. Mark A.P. Filippone, a Board-certified
physiatrist, indicated that appellant was under his care for numbness, pain, and tingling of the arm
and neck.3
Appellant, in an October 6, 2016 statement, related that she had injured her shoulder on
September 8, 2016 due to throwing mail repeatedly into containers. She advised that she did not
feel pain until she arrived home from work that day.
The employing establishment, on October 6, 2016, challenged appellant’s claim, noting
that she currently worked in a limited-duty capacity due to a prior injury, assigned OWCP File
No. xxxxxx451. It indicated that she had not reported her injury even though she had requested
leave under the Family and Medical Leave Act. The employing establishment advised that
appellant had notified the union, but not management, of the incident even though she was aware
of the proper procedure. The employing establishment asserted that she reported the injury only
after it questioned her leave usage, noting that she had no sick or annual leave balances. It provided
a copy of a modified assignment that appellant had accepted on April 26, 2016.
OWCP, in an October 21, 2016 development letter, requested that appellant provide
additional factual and medical evidence, including a detailed statement explaining how the injury
occurred and a comprehensive medical report addressing the causal relationship between a
diagnosed condition and the employment incident.
Thereafter, OWCP received a September 28, 2016 report from Dr. Filippone.
Dr. Filippone indicated that he had previously evaluated appellant on August 10, 2016 and advised
that her history was unchanged with no “history of trauma or injury.” He discussed her complaints
of neck pain, right hand pain, left hand numbness, and left shoulder crepitation. On examination,
Dr. Filippone found reduced neck and left shoulder motion, a bilateral positive Tinel’s sign at the
median and ulnar nerves, and a bilaterally positive Phalen’s sign. He diagnosed bilateral carpal
tunnel syndrome, internal derangement of the bilateral shoulders, worse on the left, and internal
derangement of the neck. Dr. Filippone interpreted an August 10, 2016 electromyogram as
showing cervical polyradiculopathy at C5 to C7 and bilateral carpal tunnel syndrome. He opined
3

The record indicates that appellant received treatment at the emergency department on October 5, 2016.

2

that appellant was disabled from employment beginning September 9, 2016 and could work with
restrictions on October 4, 2016.
In an October 27, 2016 attending physician’s report (Form CA-20), Dr. Filippone
diagnosed carpal tunnel syndrome and cervical radiculopathy, and checked a box marked “yes”
indicating that the condition was caused or aggravated by employment. He referred to a
November 30, 2009 report for the history of injury and findings.
On November 16, 2016 appellant described her modified work duties. She asserted that
she had repetitively lifted packages over her shoulders into containers on September 8, 2016.
When appellant returned home that evening, she began experiencing numbness, tingling, and pain
extending from her neck into her left shoulder and into her fingers. She believed that the condition
was not related to her prior injury, but noted that she had a history of surgery on her hand and
carpal tunnel syndrome bilaterally. Appellant asserted that she had tried using the automated
system to report her accident, but that it was difficult to use so she had waited until the union
returned from a convention to report the incident.
By decision dated December 15, 2016, OWCP denied appellant’s claim as the medical
evidence of record was insufficient to establish a diagnosed condition causally related to the
September 8, 2016 work incident. It found that she had not submitted medical evidence explaining
how the September 8, 2016 employment incident caused either bilateral carpal tunnel syndrome
or cervical radiculopathy.
Appellant, on January 12, 2017, requested a telephonic hearing before an OWCP hearing
representative.
During the telephonic hearing, held on July 17, 2017, appellant related that she had a
previously accepted workers’ compensation claim for bilateral carpal tunnel syndrome under
OWCP File No. xxxxxx451. She worked with restrictions under that claim beginning in 2005.
Dr. Filippone had treated appellant for her carpal tunnel syndrome since 2009. Appellant related
that on September 8, 2016 she did not perform her usual modified assignment, but instead threw
packages coming off a machine into containers. She performed the work for only one day.
Appellant asserted that Dr. Filippone found that she now had cervical radiculopathy, internal
derangement of the left shoulder, and an aggravation of her carpal tunnel syndrome.
In an August 1, 2017 report, Dr. Filippone related that he began treating appellant for her
“current injury of September 8, 2016” after previously treating her for bilateral carpal tunnel
syndrome under OWCP File No. xxxxxx451. He diagnosed right cervical radiculopathy at C5 to
C7, left cervical radiculopathy at C5-6, bilateral internal derangement of the shoulders worse on
the right, bilateral mechanical derangement of the bilateral wrists, bilateral de Quervain’s
syndrome, and an exacerbation of right carpal tunnel syndrome. Dr. Filippone noted that on
September 8, 2016 appellant repetitively threw packages weighing up to 50 pounds into containers.
He opined that performing this work for eight hours would inflame the cervical discs resulting “in
bulges to the disc and subsequent herniations to the disc.” Dr. Filippone further found that
repetitively throwing mail would cause irritation of the nerves into the arms and hands resulting in
cervical radiculopathy and would also cause the shoulder to “move out of proper alignment thus
resulting in the shoulder derangement.” He asserted that repetitively throwing packages would

3

cause mechanical derangement of the wrists and swelling of the tendons at the base of the thumb
resulting in inflammation and de Quervain’s syndrome. Dr. Filippone additionally opined that
repetitive use of the wrist on September 8, 2016 aggravated appellant’s right carpal tunnel
syndrome. He generally described the medical process through which the diagnosed conditions
occurred and advised that the conditions were consistent with his “examination of
September 28, 2016.”
By decision dated September 25, 2017, OWCP’s hearing representative affirmed the
December 15, 2016 decision. She found that appellant had not established fact of injury as the
factual and medical evidence contained inconsistencies sufficient to cast doubt on the occurrence
of the alleged September 8, 2016 employment incident. The hearing representative noted that
appellant had not advised the employing establishment of her injury until October 6, 2016 even
though she had required leave. She further found that the medical evidence of record was
insufficient to show that appellant had experienced an injury on September 8, 2016.
Dr. Filippone, in a November 5, 2017 report, repeated his findings from his August 1, 2017
report. He asserted that he had provided medical rationale supporting the September 8, 2017
employment incident had caused or aggravated the diagnosed conditions.
On December 1, 2017 appellant, through her representative, requested reconsideration.
Appellant submitted physical therapy reports dated January and February 2018.
By decision dated March 1, 2018, OWCP denied modification of the September 25, 2017
decision. It accepted that the September 8, 2016 incident occurred as alleged, but found that
Dr. Filippone’s opinion was speculative, conclusive, and generalized, and thus insufficient to show
that appellant had sustained a diagnosed condition resulting from the accepted September 8, 2016
employment incident.
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 or specific 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 on a traumatic injury or an occupational disease.6
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. There
are two components involved in establishing fact of injury. First, the employee must submit
4

Supra note 2.

5

See E.B., Docket No. 17-0164 (issued June 14, 2018); Alvin V. Gadd, 57 ECAB 172 (2005).

6

See P.S., Docket No. 17-0939 (issued June 15, 2018); Ellen L. Noble, 55 ECAB 530 (2004).

4

sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged.7 Second, the employee must submit medical evidence to
establish that the employment incident caused a personal injury.8
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.9 This medical opinion must include an accurate
history of the employee’s employment injury and must explain how the condition is related to the
injury. The weight of medical evidence is determined by its reliability, its probative value, its
convincing quality, the care of analysis manifested, and the medical rationale expressed in support
of the physician’s opinion.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a traumatic
injury causally related to the accepted September 8, 2016 employment incident.
Dr. Filippone, on September 28, 2016, advised that he had previously evaluated appellant
on August 10, 2016 and that since that time her history had not changed. He described her
complaints of pain in her neck and right hand, numbness in her left hand, and crepitation of the
left shoulder. Dr. Filippone diagnosed bilateral carpal tunnel syndrome, internal derangement of
the shoulders bilaterally, and internal derangement of the neck. He found that appellant was
disabled from employment. Dr. Filippone, however, did not provide a description of the
September 8, 2016 work incident or attribute the diagnosed conditions to the accepted employment
incident. 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
In an October 27, 2016 Form CA-20, Dr. Filippone diagnosed carpal tunnel syndrome and
cervical radiculopathy. He checked a box marked “yes” indicating that the condition was caused
or aggravated by employment, and referenced a November 30, 2009 report for the history of injury.
The Board has held that an opinion with a checkmark notation supporting causation, without
supporting medical rationale, is of limited probative value and insufficient to establish causal
relationship.12 Additionally, Dr. Filippone indicated that the history of injury was provided in a

7

See V.J., Docket No. 18-0452 (issued July 3, 2018); Bonnie A. Contreras, 57 ECAB 364 (2006).

8

Id.

9

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

10

S.H., Docket No. 17-1660 (issued March 27, 2018); James Mack, 43 ECAB 321 (1991).

11

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

12

See S.W., Docket No. 17-0811 (issued August 1, 2017).

5

report that predated the September 8, 2016 employment incident, and thus his opinion does not
support appellant’s traumatic injury claim.
Dr. Filippone, on August 1, 2017, advised that he was currently treating appellant for a
September 8, 2016 injury and that he had previously treated her for bilateral carpal tunnel
syndrome under OWCP File No. xxxxxx451. He diagnosed right cervical radiculopathy at C5 to
C7, left cervical radiculopathy at C5-6, bilateral internal derangement of the shoulders, mechanical
derangement of the bilateral wrists, bilateral de Quervain’s syndrome, and an exacerbation of right
carpal tunnel syndrome. Dr. Filippone described appellant’s work duties on September 8, 2016
repetitively throwing packages weighing up to 50 pounds into containers. He found that
performing such employment for eight hours would irritate the cervical discs causing bulging and
disc herniations. Dr. Filippone further opined that repetitively throwing mail would irritate the
nerves extending into the arms and hands resulting in cervical radiculopathy and also move the
shoulder out of alignment causing shoulder derangement. He explained that repetitively throwing
packages would cause wrist derangement and irritation and swelling of the tendons at the base of
the thumb resulting in de Quervain’s syndrome. Dr. Filippone found that appellant’s repetitive
use of her wrist on September 8, 2016 aggravated her right carpal tunnel syndrome. In a
November 5, 2017 report, he reiterated the findings set forth in his August 1, 2017 report.
Dr. Filippone described the September 8, 2016 work incident and offered an opinion
generally supporting causal relationship. The Board finds, however, that his reports are of
diminished probative value as he failed to offer sound medical reasoning in support of his
conclusions.13 While Dr. Filippone opined that the accepted employment incident of appellant
repetitively throwing mail for eight hours would result in the diagnosed conditions of right cervical
radiculopathy at C5 to C7, left cervical radiculopathy at C5-6, bilateral internal derangement of
the shoulders worse on the right, bilateral mechanical derangement of the bilateral wrists, bilateral
de Quervain’s syndrome, and an exacerbation of right carpal tunnel syndrome, he did not
sufficiently explain why employment factors occurring over the course of only one day caused or
contributed to the diagnosed conditions. The need for medical rationale is particularly important
given that he was treating appellant for a preexisting condition.14 In cases where a claimant has a
preexisting condition, the physician must provide a rationalized medical opinion that differentiates
between the effects of the work-related injury or disease and the preexisting condition.15
Dr. Filippone did not sufficiently explain how the accepted work incident altered appellant’s
preexisting conditions, and thus his opinion is of diminished probative value.16 Additionally, his
finding that the described work activities would result in the diagnosed conditions appears general

13
See S.T., Docket No. 17-1246 (issued November 2, 2017) (finding that a physician must offer a medically sound
explanation of how the specific employment incident caused or aggravated a diagnosed condition).
14

See C.D., Docket No. 17-2011 (issued November 6, 2018).

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

16

See K.C., Docket No. 17-1693 (issued October 29, 2018).

6

in nature rather than particular to appellant.17 The Board thus finds that the reports from
Dr. Filippone are insufficient to establish that appellant sustained an employment-related injury.
As appellant has not submitted sufficiently rationalized medical evidence to support her
allegation that she sustained an injury causally related to the accepted September 8, 2016
employment incident, she has not met her burden of proof to establish a claim.
Appellant’s representative argues on appeal that Dr. Filippone’s opinion is sufficient to
establish causal relationship. For the reasons set forth above, however, the Board finds that
appellant has not met her burden of proof to establish a diagnosed medical condition causally
related to the accepted September 8, 2016 employment incident. Therefore, appellant has not
established a traumatic injury causally related to the accepted employment incident.
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 a traumatic
injury causally related to the accepted September 8, 2016 employment incident.

17

R.A., Docket No. 17-0011 (issued March 20, 2018).

7

ORDER
IT IS HEREBY ORDERED THAT the March 1, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 9, 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Little Rock, AR, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-2078
Issued: March 10, 2008

Case Submitted on the Record

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

JURISDICTION
On August 6, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ June 5, 2007 merit decision concerning the termination of her
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation effective
November 14, 2005 on the grounds that she refused an offer of suitable work.
FACTUAL HISTORY
This is the second appeal in this case. The Board issued a decision on December 15,
2006 affirming the Office’s termination of appellant’s compensation effective November 14,

2005 for refusing an offer of suitable work.1 The Board found that the Office properly relied
upon the opinion of Dr. Joe W. Crow, a Board-certified orthopedic surgeon, who served as an
impartial medical specialist, in determining that the modified rural carrier associate position
offered by the employing establishment in September 2005 was suitable.2 In a report dated
August 15, 2005, Dr. Crow acknowledged that appellant continued to have residuals of her
employment injuries but indicated that he had reviewed the job offered by the employing
establishment3 and determined that she was medically capable of performing this modified-duty
position.4 The Board noted that Dr. Crow detailed appellant’s use of medications and diagnosed
narcotic habituation, but found that he provided no indication that her use of medications
prevented her from working as a modified rural mail carrier associate.5 The facts and the
circumstances of the case up to that point are set forth in the Board’s prior decision and are
incorporated herein by reference.
After the Board’s December 15, 2006 decision, appellant submitted additional medical
evidence. She argued that the modified rural carrier associate position offered by the employing
establishment was not suitable and that she was justified in refusing it in late 2005.
Appellant submitted a December 6, 2006 report of Dr. John W. Ellis, an attending
physician Board-certified in family practice and environmental medicine. Dr. Ellis provided a
discussion of appellant’s medical treatment for her back problems since the late 1990s. He
indicated that on examination appellant complained of pain, stiffness and tightness in her back
with pain radiating into both lower extremities. Appellant reported that no position was
comfortable for any length of time. Dr. Ellis found that she had limited back motion and
weakness in her lower extremities. He diagnosed various conditions related to her work for the
employing establishment, including muscle tendon unit strain of the lumbosacral spine, lumbar
disc herniation/derangement at L4-5 (status post multiple surgeries), arachnoiditis, failed back
1

Docket No. 06-1027 (issued December 15, 2006). On September 12, 1997 appellant, then a 32-year-old part-time
rural carrier associate, filed an occupational disease claim alleging that she sustained injury to her back by carrying
mail at work. She stopped work on August 30, 1997. The Office accepted that appellant sustained a lumbar sprain
and lumbar herniated nucleus pulposus. On December 17, 1997 appellant underwent a laminectomy and discectomy
at L4-5 and on September 13, 1998 she underwent a repeat laminectomy at L4-5.
2

The offered position, which was for 25 hours per week, required sitting, intermittent walking and simple
grasping for up to four hours per day and pushing a light-weight roll-around cart which could be pushed with one
finger, for up to 30 minutes per day. Appellant refused the offered position in October 2005.
3

Dr. Crow reviewed a description of a job that the employing establishment offered in May 2005 but this job had
the same work duties as the modified rural carrier associate position offered in September 2005. The job offered in
May 2005 involved working 17 hours per week. Both of the offered jobs had work hours which included nonwork
periods of about three to six hours between morning and afternoon work periods.
4

In an accompanying form, Dr. Crow stated that appellant could lift up to 10 pounds for two hours per day, push
up to 20 pounds for two hours per day, pull up to 20 pounds for two hours per day and operate a motor vehicle at
work for two hours per day. He indicated that appellant should spend less than an hour performing several
activities, including twisting, bending, stooping, squatting and kneeling and that she should not engage in climbing.
Dr. Crow stated that appellant could perform modified-duty work for eight hours per day.
5

The Board also found that the other medical evidence of record did not support a finding that appellant’s use of
medications prevented her from performing the offered position.

2

syndrome/post laminectomy syndrome (status post spinal cord stimulator placement and
removal), bilateral lower extremity radiculopathy/sciatica and chronic pain syndrome. Dr. Ellis
stated:
“I have received and reviewed an offer of modified assignment (limited duty) of
May 19, 2005. In my opinion, [appellant] cannot perform those duties nor can
she work a ‘split shift.’ [Appellant] continues to require medication with side
effects such as drowsiness, dizziness and problems focusing and concentrating,
etc.”
Appellant submitted a March 12, 2007 report in which Dr. Brian T. Nichol, an attending
Board-certified anesthesiologist, discussed her back condition and recommended treatment with
a spinal cord stimulator. She also submitted the findings of an April 30, 2007 magnetic
resonance imaging scan of her back and several brief treatment notes of Dr. Nichol from April
and May 2007.6
In a June 5, 2007 decision, the Office denied modification of its prior decision.
LEGAL PRECEDENT
Section 8106(c)(2) of the Federal Employees’ Compensation Act provides in pertinent
part, “A partially disabled employee who ... (2) refuses or neglects to work after suitable work is
offered ... is not entitled to compensation.”7 However, to justify such termination, the Office
must show that the work offered was suitable.8 An employee who refuses or neglects to work
after suitable work has been offered to him has the burden of showing that such refusal to work
was justified.9
Section 8123(a) of the Act provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”10 In situations
where 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.11

6

Appellant submitted additional evidence after the Office’s June 5, 2007 decision, but the Board cannot consider
such evidence for the first time on appeal. See 20 C.F.R. § 501.2(c).
7

5 U.S.C. § 8106(c)(2).

8

David P. Camacho, 40 ECAB 267, 275 (1988); Harry B. Topping, Jr., 33 ECAB 341, 345 (1981).

9

20 C.F.R. § 10.124; see Catherine G. Hammond, 41 ECAB 375, 385 (1990).

10

5 U.S.C. § 8123(a).

11

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

3

ANALYSIS
The Office accepted that appellant sustained a lumbar sprain and lumbar herniated
nucleus pulpous due to the performance of her work duties and authorized two surgeries at L4-5
which were performed in December 1997 and September 1998. It terminated appellant’s
compensation effective November 14, 2005 on the grounds that she refused an offer of suitable
work. The Office based its determination regarding the suitability of the modified rural carrier
associate position offered by the employing establishment in September 2005 on an August 15,
2005 report of Dr. Crow, a Board-certified orthopedic surgeon, who served as an impartial
medical specialist. In a December 15, 2006 decision, the Board affirmed the Office’s
termination of appellant’s compensation effective November 14, 2005 for refusing an offer of
suitable work.
Because the Office met its burden of proof to terminate appellant’s compensation
effective November 14, 2005 for refusing an offer of suitable work, it is appellant’s burden to
show that such refusal to work was justified.12 The Board finds that appellant did not meet her
burden of proof to establish that her refusal of the modified rural carrier associate position
offered by the employing establishment was justified. Therefore, the Office’s termination of her
compensation effective November 14, 2005 was proper.
Appellant submitted a December 6, 2006 report of Dr. Ellis, an attending physician
Board-certified in family practice and environmental medicine, who diagnosed various
conditions including muscle tendon unit strain of the lumbosacral spine, lumbar disc herniation/
derangement at L4-5 (status post multiple surgeries), arachnoiditis, failed back syndrome/post
laminectomy syndrome (status post spinal cord stimulator placement and removal), bilateral
lower extremity radiculopathy/sciatica and chronic pain syndrome. Dr. Ellis noted that he had
reviewed a May 19, 2005 offer of modified-duty work13 and stated, “In my opinion, [appellant]
cannot perform those duties nor can she work a ‘split shift.’ [Appellant] continues to require
medication with side effects such as drowsiness, dizziness and problems focusing and
concentrating, etc.”
The Board finds that Dr. Ellis’ opinion is of limited probative value on the relevant issue
of the present case in that he did not provide a clear opinion that appellant could not perform the
modified rural carrier associate position around the time that it was offered by the employing
establishment in September 2005. Dr. Ellis described appellant’s medical condition in
December 2006, i.e., a period more than a year after she refused the offered position in
October 2005. Even if [his] opinion could be interpreted as an opinion that appellant could not
perform the offered position in late 2005, Dr. Ellis did not provide sufficient medical rationale to
support this conclusion.14 He did not explain how appellant’s medical condition in late 2005
12

See supra note 9 and accompanying text.

13

Appellant actually refused the modified rural carrier associate position offered by the employing establishment
in September 2005. The two jobs offered in May and September 2005 had the same work duties. The job offered in
May 2005 required working 17 hours per week whereas the job offered in September 2005 required working 25
hours per week.
14

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (finding that a medical opinion not fortified by medical
rationale is of little probative value).

4

prevented her from performing the extremely limited duties required by the modified rural
carrier associate position. Dr. Ellis indicated that appellant had problems with medications but
he did not provide any detailed discussion of these problems or explain how they would have
prevented her from performing the offered position in late 2005.15
Given the limited probative value of Dr. Ellis’ report on the relevant issue of the present
case, the weight of the medical evidence regarding the suitability of the modified rural carrier
associate position would continue to rest with the well-rationalized opinion of the impartial
medical specialist, Dr. Crow.16 For these reasons, appellant did not show that her refusal of the
modified rural carrier associate position offered by the employing establishment was justified.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation effective
November 14, 2005 on the grounds that she refused an offer of suitable work.

15

In its December 15, 2006 decision, the Board noted that Dr. Crow detailed appellant’s use of medications and
diagnosed narcotic habituation, but found that he provided no indication that her use of medications prevented her
from working as a modified rural mail carrier associate, nor did Dr. Ellis explain how appellant’s medical condition
prevented her from working a “split shift.” The job offered by the employing establishment had work hours which
included nonwork periods of about three to six hours between morning and afternoon work periods.
16

See supra notes 10 and 11 and accompanying text. Appellant also submitted reports dated between March and
May 2007 of Dr. Nichol, an attending Board-certified anesthesiologist, and the findings of April 30, 2007 magnetic
resonance imaging of her back. However, none of these reports contained any opinion on appellant’s ability to work
in late 2005.

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
June 5, 2007 merit decision is affirmed.
Issued: March 10, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6