United States Department of Labor
Employees Compensation Appeals Board
__________________________________________
G.M., Appellant
and
DEPARTMENT OF THE NAVY, CORPS OF
ENGINEERS, Philadelphia, PA, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1032
Issued: January 4, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On April 20, 2016 appellant, through counsel, filed a timely appeal from a January 19,
2016 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 OWCP met its burden of proof to reduce appellant’s compensation
benefits, based on its finding that he had the capacity to earn wages in the selected position of
surveillance system monitor.
FACTUAL HISTORY
OWCP accepted that on January 20, 2000 appellant, then a 32-year-old marine oiler,
sustained a left ankle sprain when he slipped on a loose deck plate and fell into the bilge. On
November 17, 2000 he underwent left ankle arthroscopy with loose body removal and
chondroplasty of the talus. Appellant received total disability compensation for work absences.
He returned to limited, full-time duty on February 5, 2001.
OWCP accepted a recurrence of disability commencing February 11, 2002. Appellant
returned to limited, full-time duty on April 2, 2002. On November 6, 2002 Dr. Stuart G.
Dubowitch, an attending osteopathic physician Board-certified in orthopedics, diagnosed
post-traumatic osteochondritis dessicans of the left talus. He limited appellant to part-time,
sedentary-duty work.
Dr. Wen Chao, an attending Board-certified orthopedic surgeon, treated appellant
beginning on April 1, 2003. He diagnosed a loose body in the left ankle.
OWCP accepted that appellant sustained a second recurrence of disability commencing
April 8, 2003.3 Appellant received wage-loss compensation for temporary total disability
beginning on April 8, 2003 on the daily and later on the periodic rolls.
Dr. Chao explained on August 27, 2003 that narcotic medication hindered appellant’s
“ability to perform activities of daily living” or “performing any work duty.” He found that
appellant was able to work four hours a day as of March 17, 2004. Dr. Chao noted that
appellant’s functioning was affected by prescription narcotic pain medication. On June 2, 2004
he noted that appellant had built up a substantial tolerance to narcotics. Dr. Chao opined that
appellant had right knee, ankle, and lumbar pain due to compensating for his accepted injury and
prescribed a brace.
In a May 2, 2005 report, Dr. Chao noted that an August 3, 2004 MRI scan revealed
osteochondral fractures in the lateral corner of the talar dome with a small loose fragment. He
explained that, while surgery could remove the loose fragment, the osteochondral defect of the
talus was permanent. Dr. Chao found that appellant was totally and permanently disabled from
work.4
3

A July 3, 2003 magnetic resonance imaging (MRI) scan of the left ankle showed bone marrow edema around an
osteochondral defect of the talus and distal tibia. A January 27, 2004 MRI scan showed a persistent osteochondral
defect with marrow edema in the talus, consistent with a stress fracture.
4

A May 22, 2006 MRI scan demonstrated osteochondritis dessicans of the talar dome without a visible free
fragment, with tendinosis versus partial tear of the peroneus brevis.

2

In a May 29, 2007 report, Dr. Chao opined that appellant had attained maximum medical
improvement (MMI). He again found appellant totally and permanently disabled from work due
to an osteochondral defect of the talus with marrow edema. Appellant required an ankle brace
and a cane to walk. Dr. Chao noted that appellant needed narcotic medications for pain control.
He submitted periodic reports through 2009 finding appellant’s condition unchanged.
On June 24, 2009 OWCP obtained a second opinion from Dr. Kevin Hanley, a Boardcertified orthopedic surgeon. He reviewed the statement of accepted facts and the medical
record. On examination, Dr. Hanley found minimal atrophy of the left calf and mild loss of left
ankle motion. He diagnosed status post left ankle sprain with osteochondritis dessicans as a
direct consequence of the accepted left ankle sprain. Dr. Hanley found appellant able to perform
full-time sedentary duty.
On August 31, 2010 Dr. Chao found that appellant’s range of left ankle motion had
decreased. He continued to prescribe narcotic medications, use of an ankle brace, and a cane for
ambulation. Dr. Chao continued to submit periodic reports through November 16, 2012 finding
appellant totally disabled.5 Appellant remained on the periodic rolls.
OWCP obtained a second opinion on November 6, 2012 from Dr. Kenneth Heist, an
osteopath Board-certified in orthopedic surgery. Dr. Heist reviewed the medical record and a
statement of accepted facts. On examination, he found mildly limited motion of the left ankle.
In a December 27, 2012 supplemental report, Dr. Heist opined that appellant had attained MMI.
He released appellant to full-time medium-duty work.
OWCP found a conflict of medical opinion between Dr. Chao, for appellant, and
Dr. Heist, for the government. To resolve the conflict, it selected Dr. Thomas J. O’Dowd, a
Board-certified orthopedic surgeon, as impartial medical examiner.6 In a May 14, 2013 report,
Dr. O’Dowd reviewed the medical record and statement of accepted facts. On examination, he
observed that appellant was morbidly obese, had nearly equal callus formation on both feet
indicating significant weight bearing on both lower extremities, and slight limitation of left ankle
motion. Dr. O’Dowd opined that MRI scans between 2006 and 2012 showed very little change,
demonstrating a stable lesion. He found appellant able to perform full-time sedentary work, with
lifting limited to 10 pounds, walking less than one hour, and standing up to two hours.
Dr. O’Dowd reported that appellant was “very clearly addicted to long-term narcotic
medications,” with dosages out of proportion to his objective arthritic degeneration. He posited
that appellant’s “significant psychiatric illness,” requiring psychotropic medications, “may affect
his sensation and his perception of pain. This is of course unrelated to his underlying orthopedic
problem.” Dr. O’Dowd noted that, “The amount of narcotic medication [appellant] is taking
may preclude him from returning to gainful employment, but that is unrelated to the work-related
issue of January 20, 2000.”
5

A December 10, 2012 MRI scan showed an os trigonum with adjacent edema in the posterior talus,
osteochondral defect in the talar dome, and subchondral edema in the anterior distal tibia indicative of an old
fracture.
6

The record contains a Form ME023 appointment schedule notification form, and bypass screen captures
documenting Dr. O’Dowd’s selection.

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Dr. Chao provided July 15, 2013 reports continuing to find appellant permanently and
totally disabled for work. In a July 26, 2013 report, he found appellant permanently disabled due
to use of the ankle brace, cane, and narcotic medication. Dr. Chao reiterated that appellant had
attained MMI.
In a September 9, 2013 supplemental report, Dr. O’Dowd specified that appellant was
able to lift, push, and pull up to 10 pounds, and stand for up to two hours a day. He would also
require breaks “because of the arthritic condition of his ankle.” Appellant was unable to use a
clutch or “heavy devices of that type on the left side.”
Based on Dr. O’Dowd’s opinion that appellant was no longer totally disabled from work,
OWCP referred him for vocational rehabilitation services on November 7, 2013. In a
January 16, 2014 report, Dr. Sally Kneipp, a licensed clinical psychologist, administered
vocational testing. She noted that appellant graduated high school and was a boiler technician
for six years in the U.S. Navy prior to beginning work at the employing establishment.
Appellant did not have additional vocational training. Dr. Kneipp commented that appellant did
not have computer skills. She identified vocational goals of service dispatcher, food and
beverage order clerk, information clerk, and surveillance system monitor as within appellant’s
vocational aptitudes and physical limitations.
On February 10, 2014 a vocational rehabilitation counselor performed a labor market
survey and found that entry level positions as a Surveillance System Monitor, DOT# 379.367010, were reasonably available in appellant’s commuting area. The position required occasional
lifting up to 10 pounds and sitting for a minimum of three hours a day. The counselor identified
available positions and provided appellant job contacts from February through April 2014.
Appellant participated in a placement effort from April 17 to July 17, 2014. He cooperated in
following up on job contacts, and maintained detailed records of his efforts.
In July 1 and 18, 2014 reports, Dr. Chao found appellant’s condition unchanged, and that
he remained totally disabled. He noted in a December 12, 2014 report that appellant had injured
his right hip and ankle when he fell because his left leg gave way.
On February 4, 2015 the vocational rehabilitation counselor performed an updated labor
market survey. She confirmed that entry level Surveillance System Monitor positions remained
available in appellant’s commuting area, with wages of $437.00 a week.
By notice dated June 8, 2015, OWCP advised appellant that it proposed to reduce his
compensation, based on his ability to earn $437.00 a week in the constructed position of
Surveillance System Monitor.
Counsel responded by June 18, 2015 letter, contending that OWCP failed to develop the
psychological aspect of the claim, and the effect of prescribed narcotic pain medication on
appellant’s work capacity. He noted that Dr. O’Dowd agreed that the “amount of narcotic
medication [appellant] is taking may preclude him from returning to gainful employment,”
unrelated to the accepted injury.

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By decision dated July 21, 2015, OWCP finalized the June 8, 2015 notice, reducing his
compensation based on his ability to earn $437.00 a week in the constructed position of
surveillance system monitor.
In a July 24, 2015 letter, appellant, through counsel, requested a hearing, which was held
November 13, 2015. At the hearing, he asserted that he was severely limited in daily functioning
by bilateral ankle injuries, for which he wore braces and used a cane. Appellant explained that
he applied for paratransit services, but was found ineligible as he did not meet the criteria for age
or disability. He contended that job listings identified by the vocational rehabilitation counselor
were located at least five and a half miles from his home, and that there was no public
transportation available. Appellant submitted additional evidence.
In July 1 and September 1, 2015 reports, Dr. Chao found appellant’s condition
unchanged.
Counsel asserted in a December 10, 2015 letter that a new medical report from Dr. Louis
Spagnoletti, an attending Board-certified physiatrist, established that appellant was medically
unable to perform the selected surveillance system monitor position because he could not drive
to and from work, and no public transportation was available. He cited the Board’s precedent in
Donna M. Stroud,7 holding that “the inability to travel to work because of the residuals of an
employment injury is an acceptable reason for not accepting a position.”
In a December 1, 2015 report, Dr. Spagnoletti opined that appellant required prescription
opioid medications for pain control. He explained that it was possible for appellant’s medication
to cause problems with high-level executive skills. For this reason, Dr. Spagnoletti did not
believe that appellant was able to work nor would he be work eligible in the future because of the
chronic persistent nature of his injuries. He advised appellant not to drive a car if he were
impaired by the opioid medication.
By decision dated January 19, 2016, an OWCP hearing representative affirmed OWCP’s
July 21, 2015 decision, finding that the constructed position of Surveillance System Monitor was
within appellant’s educational and vocational capacities. The hearing representative further
found that Dr. O’Dowd’s opinion was sufficiently rationalized to represent the weight of the
medical evidence. The hearing representative noted that although the issue of appellant’s ability
to drive to and from work had been raised, there was insufficient evidence to support that there
was no public transportation available.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.8 An injured employee who is either unable to return to
the position held at the time of injury or unable to earn equivalent wages, but who is not totally
disabled for all gainful employment, is entitled to compensation computed on loss of wage7

Docket No. 98-0476 (issued January 5, 2000).

8

James M. Frasher, 53 ECAB 794 (2002).

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earning capacity.9 A wage-earning capacity decision is a determination that a specific amount of
earnings, either actual earnings or earnings from a selected position, represents a claimant’s
ability to earn wages. Compensation payments are based on the wage-earning capacity
determination.10
Section 8115 of FECA and OWCP regulations provide that wage-earning capacity is
determined by the actual wages received by an employee if the earnings fairly and reasonably
represent his or her wage-earning capacity. If the actual earnings do not fairly and reasonably
represent wage-earning capacity or the employee has no actual earnings, the wage-earning
capacity is determined with due regard to the nature of the injury, the degree of physical
impairment, the employee’s usual employment, age, qualifications for other employment, the
availability of suitable employment, and other factors or circumstances which may affect his or
her wage-earning capacity in the disabled condition.11
OWCP must initially determine a claimant’s medical condition and work restrictions
before selecting an appropriate position that reflects his or her wage-earning capacity. The
medical evidence upon which OWCP relies must provide a detailed description of the
condition.12 Additionally, the Board has held that a wage-earning capacity determination must
be based on a reasonably current medical evaluation.13 When OWCP makes a medical
determination of partial disability and of specific work restrictions, it may refer the employee’s
case to a vocational rehabilitation counselor authorized by OWCP for selection of a position
listed in the Department of Labor’s Dictionary of Occupational Titles or otherwise available in
the open market, that fits that employee’s capabilities with regard to his or her physical
limitations, education, age, and prior experience. Once this selection is made, a determination of
wage rate and availability in the open labor market should be made through contact with the state
employment service or other applicable service.14 Finally, application of the principles set forth
in Albert C. Shadrick,15 as codified in section 10.403 of OWCP regulations,16 will result in the
percentage of the employee’s loss of wage-earning capacity.17
In determining an employee’s wage-earning capacity based on a position deemed
suitable, but not actually held, OWCP must consider the degree of physical impairment,

9

20 C.F.R. §§ 10.402, 10.403; John D. Jackson, 55 ECAB 465 (2004).

10

See Sharon C. Clement, 55 ECAB 552 (2004).

11

5 U.S.C. § 8115; 20 C.F.R. § 10.520; John D. Jackson, supra note 9.

12

William H. Woods, 51 ECAB 619 (2000).

13

John D. Jackson, supra note 9.

14

Supra note 8

15

5 ECAB 376 (1953).

16

20 C.F.R. § 10.403.

17

Supra note 8

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including impairments resulting from both injury-related and preexisting conditions, but not
impairments resulting from post injury or subsequently acquired conditions.18
Section 8123(a) of FECA provides that when there is a disagreement between the
physician making the examination for the United States and the physician of the employee, a
third physician shall be appointed to make an examination to resolve the conflict.19 When there
are opposing medical reports of virtually equal weight and rationale, the case must be referred to
an impartial medical specialist, pursuant to section 8123(a), to resolve the conflict in the medical
evidence.20 In situations where there are 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 on a proper
factual background, must be given special weight.21
The Board has held that stale medical evidence cannot form the basis for current
evaluation of residual symptomatology, disability determination, or other medical
determinations. For example, in the case of J.A.,22 the Board held that medical reports from
November 2010 were of limited probative value regarding the claimant’s medical condition as of
October 2012.23
ANALYSIS
OWCP accepted that on January 20, 2000, appellant sustained a left ankle sprain when he
slipped on a loose deck plate and fell into the bilge. Following periods of limited-duty work,
appellant sustained a recurrence of disability commencing April 8, 2003. He stopped work and
did not return. Appellant received appropriate wage-loss compensation.
OWCP reduced appellant’s compensation effective July 21, 2015, based on his capacity
to earn wages in the constructed position of Surveillance System Monitor. The determination
that appellant was physically able to perform the position of Surveillance System Monitor was
based on the opinion of Dr. O’Dowd, a Board-certified orthopedic surgeon and impartial medical
examiner. OWCP found that his reports constituted the weight of the medial evidence and that
they resolved the conflict in medical opinion with respect to these matters.
18

R.M., Docket No. 15-0368 (issued August 24, 2015); John D. Jackson, supra note 9.

19

5 U.S.C. § 8123(a); Robert W. Blaine, 42 ECAB 474 (1991).

20

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

21

Anna M. Delaney, 53 ECAB 384 (2002).

22

Docket No. 13-1657 (issued February 3, 2014).

23

See also J.R., Docket No. 15-1847 (issued March 4, 2016); R.B., Docket No, 14-0594 (issued September 4,
2015); Keith Hanselman, 42 ECAB 680 (1991); Ellen G. Trimmer, 32 ECAB 1878 (1981) (reports almost two years
old deemed invalid basis for disability determination and loss of wage-earning capacity determination); Federal
(FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on a Constructed
Position, Chapter 2.816.4(d) (June 2013) (a wage-earning capacity determination must be based on a recently
current medical evaluation).

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The Board notes that OWCP properly referred appellant to Dr. O’Dowd, in that there was
a conflict of medical opinion between Dr. Chao, an attending Board-certified orthopedic
surgeon, and Dr. Heist, a Board-certified orthopedic surgeon and second opinion physician,
regarding appellant’s work capacity. However, OWCP improperly relied on Dr. O’Dowd’s
opinion to determine that appellant was physically able to work as a Surveillance System
Monitor. The medical evidence upon which OWCP relied to determine appellant’s ability to
work was stale.
Dr. O’Dowd’s opinion regarding appellant’s ability to work from an orthopedic
standpoint was based on a physical examination of appellant conducted on May 14, 2013. He
provided a supplemental report on September 9, 2013 to clarify the prior report. However,
Dr. O’Dowd did not reexamine appellant. The Board has had occasion to evaluate the probative
value of older medical reports, and, because cases differ, it has not adopted a rigid standard.
However, in J.A.,24 the Board held that in that case, medical reports from November 2010 were
of limited probative value regarding the claimant’s medical condition as of October 2012,
approximately two years. In this case, Dr. O’Dowd examined appellant on May 14, 2013, more
than two years before OWCP reduced appellant’s compensation effective July 21, 2015. His
opinion is therefore of very limited probative value, and was insufficient basis on which to
reduce appellant’s wage-loss compensation.
On appeal, counsel contends that Dr. O’Dowd’s opinion was stale, as he examined
appellant on May 14, 2013, more than two years before OWCP reduced his compensation on
July 21, 2015. He argues that OWCP’s reliance on Dr. O’Dowd’s May 14, 2013 examination
contravenes Board precedent in Carl C. Green, Jr.,25 Anthony Pestana,26 and Keith Hanselman27
against basing a finding regarding residual disability on medical evidence more than two years
old. As set forth above, Dr. O’Dowd’s opinion was stale at the time OWCP reduced appellant’s
wage-loss compensation. Therefore, OWCP’s January 19, 2016 decision affirming the prior
reduction of appellant’s compensation must be reversed.
CONCLUSION
The Board finds that OWCP has not met its burden of proof to reduce appellant’s
compensation benefits, based on its finding that he had the capacity to earn wages in the selected
position of surveillance system monitor.

24

Supra note 22.

25

40 ECAB 737 (1996).

26

39 ECAB 980 (1988).

27

42 ECAB 680 (1991).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 19, 2016 is reversed.
Issued: January 4, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS, VA
MEDICAL CENTER, Washington, DC,
Employer
__________________________________________

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

Docket No. 21-1060
Issued: March 11, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 5, 2021 appellant filed a timely appeal from a February 2, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). 1 Pursuant to the Federal Employees’

1

Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the Board’s Rules
of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In support of appellant’s
oral argument request, she asserted that oral argument should be granted because the evidence of record was sufficient
to establish that she was totally disabled from work due to her accepted employment-related condition. The Board, in
exercising its discretion, denies appellant’s request for oral argument because the arguments on appeal can adequately
be addressed in a decision based on a review of the case record. Oral argument in this appeal would further delay
issuance of a Board decision and not serve a useful purpose. As such, the oral argument request is denied and this
decision is based on the case record as submitted to the Board.

Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 3
ISSUE
The issue is whether appellant has met her burden of proof to establish disability from work
for the period November 13, 2020 through January 30, 2021 causally related to her accepted
March 23, 2020 employment injury.
FACTUAL HISTORY
On April 27, 2020 appellant, then a 60-year-old nurse, filed a traumatic injury claim (Form
CA-1) alleging that on March 23, 2020 she contracted COVID-19 while in the performance of
duty. She stopped work on the date of injury and has not returned. On July 20, 2020 OWCP
accepted the claim for COVID-19.
OWCP received hospital records dated April 2 through July 13, 2020, which indicated that
appellant was admitted to the intensive care unit (ICU) on April 2, 2020 and treated for acute
hypoxic respiratory failure and acute renal failure due to COVID-19. The hospital records also
addressed her subsequent physical and occupational therapy.
In a June 22, 2020 letter, Dr. Anna-Carson Rimer Uhelski, an internist, advised appellant
that she should not return to work while she was recovering in the hospital. She also advised that
appellant could be in the hospital through 2020 with a possible return -to-work date of
January 1, 2021.
Dr. Robert S. Mayer, Board-certified in physical medicine and rehabilitation, indicated in
a letter dated July 15, 2020 that appellant could benefit from a home health aide six to eight hours
per day over the next one to two months to assist her with the performance of activities of daily
living (ADLs).
In an undated response to a questionnaire, appellant noted her symptoms and/or conditions
of COVID-19, organ failure of the kidney, lungs, and heart, pneumonia in both lungs, high fever,
coughing, and bacterial infections. She also noted that she was on a ventilator and an
extracorporeal membrane oxygenation bypass portable machine for her lungs and heart and on
dialysis for her kidneys. Additionally, appellant took blood pressure medication, underwent a
tracheostomy, was incubated, and received blood transfusions. She indicated that her conditions
were caused by her employment. Appellant further indicated that she was disabled from work for
the period March 25 through December 31, 2020 due to her conditions.

2

5 U.S.C. § 8101 et seq.

3

The Board notes that, following the issuance of the February 2, 2021 decision, OWCP received additional
evidence. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id.

2

On December 15 and 16, 2020 appellant filed claims for compensation (Form CA-7) for
disability from work for the period November 13 through December 11, 2020.
OWCP, in a December 18, 2020 development letter, informed appellant of the deficiencies
of her wage-loss compensation claim. It advised her of the type of medical evidence needed and
afforded her 30 days to respond.
Appellant filed additional CA-7 forms for disability from work through January 30, 2021.
OWCP received additional medical evidence. In a progress note dated August 4, 2020,
Dr. Daniel R. A. Sova, a physiatrist, noted appellant’s history of injury and medical treatment. He
discussed examination findings. Dr. Sova provided assessments that included no signs of anxiety,
depression, or post-traumatic stress disorder (PTSD). He also noted a history of hypoxic
respiratory failure, noting that a tracheostmy tube had been removed, acute renal failure, noting
that appellant remained off dialysis, right and left upper extremity catheter-associated thrombosis,
atrial fibrillation with rapid ventricular response (RVR), klebsiella pneumonia for which she had
finished a course of treatment, Coagulase-negative staphylococci (CoNS) bacteremia, and that
there was a concern for seizure for which she took medication. Dr. Sova noted that she denied any
current COVID-19-related symptoms. He also noted that appellant received home physical and
occupation therapy treatment and treatment from a speech language pathologist. Appellant
reported that she was making progress with her physical function and endurance.
Dr. Ashral Fawzy, a pulmonologist, noted, in an August 12, 2020 progress note, that
appellant was treated for COVID-19-related symptoms of shortness of breath and voice
hoarseness, and screened for depression. He reported physical examination findings and
diagnostic and laboratory test results. Dr. Fawzy provided assessments of dyspnea, hoarse voice,
deep vein thromobosis (DVT), no significant depression or anxiety , 50 percent physical function,
and adequate cognitive function and no symptoms of memory loss. In a November 11, 2020
progress note, he concluded that, cognitively, appellant performed poorly with respect to her
memory, processing speed, and verbal ﬂuency. Dr. Fawzy noted that appellant denied problems
with mood, anxiety, trauma, or functional decline. He indicated that her scores suggested that she
may beneﬁt from a full neuropsychological examination given her pattern of cognitive deﬁcits.
In a September 4, 2020 report, Dr. Robert A. Wise, Board-certified in internal medicine
and pulmonology, noted that he performed a pulmonary function test, which demonstrated
moderate restrictive ventilatory defect, severe gas transfer defect, and variable extrathoracic
obstruction.
In a report of even date, Dr. Nathaniel Shalom and Dr. Stefan Zimmerman, both Boardcertified in diagnostic radiology, performed a computerized tomography (CT) scan of appellant’s
chest. Dr. Shalom and Dr. Zimmerman provided an impression of peripheral reticulations, ground
glass opacities, and consolidative opacities, which were compatible with the sequela of COVID19 infection; ground glass that could represent mild residual inﬂammation, areas of reticulation
and a cystic change compatible with mild ﬁbrosis, either secondary to COVID -19 infection or
preexisting; and additional multiple subcentimeter lymph nodes compatible with reactive change.
These physicians also provided: impressions of coronary artery calciﬁcations; dilatation of the
main pulmonary artery, which may be seen in the setting of pulmonary hypertension; incidental

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thyroid nodule measuring greater than or equal to 1.5 centimeters in a patient with age greater than
or equal to 35, recommendation for an evaluation with a thyroid ultrasound on a nonemergent
basis; postsurgical changes of sleeve gastrectomy; and findings suggestive of a small intralobar
pulmonary sequestration in the inferomedial right lower lobe.
In a September 21, 2020 diagnostic report, Dr. Eva K. Ritzal, a Board-certified neurologist,
conducted electroencephalogram (EEG) testing, finding that it was normal with no epileptiform
discharges or lateralizing signs. She noted that this did not rule ou t the presence of a seizure
disorder.
An October 7, 2020 progress note signed by Dr. George T. Kannarkat, a Board-certified
internist, and Dr. Brett M. Morrison, a Board-certified neurologist, indicated that appellant was
evaluated for seizures. Appellant’s history of injury and medical treatment, physical examination
findings and diagnostic test results were provided. Dr. Kannarkat and Dr. Morrison noted that
appellant was recently very critically ill and that she had made a remarkable recovery. She had a
seizure while critically ill and brain imaging was notable for subcortical T2 flair hyper intensities
(non-speciﬁc, but may be chronic ischemic with superimposed changes in setting of critical illness)
and diffuse micro hemorrhages (likely from extracorporeal membrane oxygenation). An EEG,
which was performed while appellant was an inpatient, was diffusely slow, but there was no clear
focality. Dr. Kannarkat and Dr. Morrison indicated that they would use an EEG to risk stratify
given that she had some underlying structural etiology that could predispose her to seizure
although seizure was only in the setting of her critical illness. As appellant was on anticoagulation
for atrial fibrillation, a seizure in this setting could theoretically put her at risk for intracerebral
hemorrhage so this will be weighed in a risk benefit analysis of continuing automated external
defibrillators. Additionally, she had signs of proximal weakness in the right upper extremity and
bilateral lower extremities, and bilateral foot drop, left greater than right. Appellant also had
sensory loss and weakness in the left distal tibial distribution. There was no Tinel’s sign over the
tarsal tunnel. Dr. Kannarkat and Dr. Morrison related that if this continued to improve there was
no need for evaluation as this was the likely sequela of her prolonged critical illness, compression
from positioning, and multiple venous thrombotic events.
In an October 8, 2020 progress note, Dr. Lee M. Akst, a Board-certified otolaryngologist,
reported appellant’s history of injury and medical treatment. He discussed examination findings
and provided an assessment of posterior glottic diastasis after prolonged intubation and
tracheostomy secondary to COVID-19. In a report of even date, Dr. Grace Snow, an
otolaryngologist, performed a transnasal videostrobolaryngoscopy to treat appellant’s dysphonia.
In a progress note dated November 10, 2020, Dr. Sima Rozati, Board-certified in internal
medicine and dermatology, provided findings on physical examination of appellant and diagnosed
acne vulgaris, primary, hair loss, seborrheic dermatitis of the scalp, and post-inﬂammatory
hyperpigmentation.
In a November 23, 2020 progress note, Dr. Nelson Maniscalco, a podiatrist, indicated that
appellant presented with complaints of persistent left foot numbness. He reported findings on
physical, neurological, and dermatologic examination. Dr. Maniscalco diagnosed left lower limb
mononeuropathy and neuropathic left foot pain, gait abnormality, and history of COVID-19.

4

Dr. Sova, in an additional progress note dated December 1, 2020, reiterated his prior
assessments of no signs of anxiety, depression, or PTSD, and he noted that appellant had been
scheduled for an evaluation of her cognitive status. He noted that appellant had a history of
hypoxic respiratory failure, right and left upper extremity catheter-associated thrombosis, atrial
fibrillation with RVR, concern for seizures, and left foot numb ness and intermittent pain in the
first and fifth toes.
In a December 10, 2020 progress note, Dr. Zachary D. Berger, a Board-certified internist,
diagnosed stage 3 chronic kidney disease, dyspnea on exertion, voice hoarseness, unspecified type
of atrial fibrillation, history of DVT in adulthood, chronic anticoagulation, and left foot
neuropathic pain.
A December 23, 2020 progress note from Dr. Vasanth Sathiyakumar, a cardiologist,
reported appellant’s history of injury and medical treatment. He discussed examination and
reviewed laboratory test results. Dr. Sathiyakumar provided an assessment of essential
hypertension, hyperlipdima, and obstructive sleep apnea.
Progress notes dated November 3 and 18, and December 15 and 29, 2020 from Kristine M.
Pietsch, a certified speech language pathologist, provided an assessment that appellant presented
with severe dysphonia secondary to posterior glottic diastasis that negatively impacted
communication. Dr. Pietsch advised that appellant’s prognosis was fair.
OWCP also received clinic treatment, and progress notes dated September 30, 2020
through January 8, 2021 signed by Caroline C. Griffin, a registered occupational therapist,
Casey A. Houlihan, Allison Nogi, and Julia L. Falkenklous, physical therapists, and Blakeney T.
Patterson, an occupational therapist.
By decision dated February 2, 2021, OWCP denied appellant’s claim for disability. It
found that the medical evidence of record was insufficient to establish disability from work during
the claimed period due to the accepted employment injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.5 For each period of
disability claimed, the employee has the burden of proof to establish that he or she was disabled

4

Supra note 2.

5

See D.S., Docket No. 20-0638 (issued November 17, 2020); F.H., Docket No. 18-0160 (issued August 23, 2019);
C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40
ECAB 1143 (1989). See also FECA Bulletin No. 20-05 (issued March 31, 2020) entitled Federal Employees
Contracting COVID-19 in Performance of Duty, which provides in pertinent part: “DISABILITY: FECA pays
compensation for partial or total disability of an employee resulting from injury in the performance of duty. Just as
with other conditions/claims, disability is claimed by the filing of a CA-7, Claim for Compensation, with the
employing agency and requires an incapacity because of an employment-related injury to earn wages.”

5

from work as a result of the accepted employment injury.6 Whether a particular injury causes an
employee to become disabled from work, and the duration of that disability, are medical issues
that must be proven by a preponderance of probative and reliable medical opinion evidence.7
Under FECA, the term disability means an incapacity because of an employment injury, to
earn the wages the employee was receiving at the time of the injury.8 When, however, the medical
evidence establishes that the residuals or sequelae of an employment injury are such that, from a
medical standpoint, prevent the employee from continuing in his or her employment, he or she is
entitled to compensation for any loss of wages.9
To establish causal relationship between the disability claimed and the employment injury,
an employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such causal relationship.10 The opinion of the physician must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the employee.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish disability from
work for the period November 13, 2020 through January 30, 2021 causally related to her accepted
March 23, 2020 employment injury.
In support of her claim for compensation, appellant submitted a June 22, 2020 opinion from
Dr. Uhelski. Dr. Uhelski found that appellant could not work while she was recovering in the
hospital and that she could be in the hospital through 2020. She advised that appellant could
possibly return to work on January 1, 2021. Dr. Uhelski’s opinion regarding appellant’s disability
status was speculative in nature. The Board has held that medical opinions that are equivocal or
speculative in nature are of diminished probative value. 12 Thus, the Board finds that Dr. Uhelski’s
June 22, 2020 opinion is insufficient to establish appellant’s disability claim.
The progress reports dated August 4 through December 23, 2020 from Drs. Sova, Fawzy,
Kannarkat, Morrison, Rozati, Maniscalco, Berger, Akst, Snow, Wise, and Sathiyakumar addressed
appellant’s diagnosed conditions, including COVID-19, and her medical treatment. However,
6

See L.F., Docket No. 19-0324 (issued January 2, 2020); T.L., Docket No. 18-0934 (issued May 8, 2019);
Fereidoon Kharabi, 52 ECAB 291, 293 (2001).
7

See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).

8

Id. at § 10.5(f); see, e.g., G.T., 18-1369 (issued March 13, 2019); Cheryl L. Decavitch, 50 ECAB 397 (1999).

9

G.T., id.; Merle J. Marceau, 53 ECAB 197 (2001).

10

See S.J., Docket No. 17-0828 (issued December 20, 2017); Kathryn E. DeMarsh, 56 ECAB 677 (2005).

11

C.B., Docket No. 18-0633 (issued November 16, 2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler,
45 ECAB 365 (1994).
12

See M.L., Docket No. 20-1682 (issued June 24, 2021).

6

these reports did not offer an opinion addressing whether appellant was totally disabled from work
during the claimed period due to the accepted injury. As such, the Board finds that this medical
evidence is of no probative value and insufficient to establish appellant’s disability claim. 13
Appellant also submitted a September 4, 2020 chest CT scan report and a September 21,
2020 EEG report. The Board has held, however, that diagnostic studies, standing alone, lack
probative value on the issue of causal relationship as they do not address whether the accepted
employment injury resulted in appellant’s period of disability on specific dates. 14
Progress notes from the speech language pathologists and physical and occupational
therapists were also received. Speech pathologists, physical therapists, and occupational therapists
are not considered physicians as defined under FECA. 15 As such, this evidence is also of no
probative value and insufficient to establish the claim.
As noted, for each period of disability claimed, the employee has the burden of proof to
establish that he or she was disabled from work during the claimed period due to the accepted
employment injury. 16 As appellant has not submitted rationalized medical opinion evidence
sufficient to establish employment-related disability during the period November 13, 2020 through
January 30, 2021due to her accepted employment injury, the Board finds that she has not met her
burden of proof to establish her claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

13

Medical evidence that does not offer an opinion regarding the cause of an employee’s condition or disability is
of no probative value. See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued
July 6, 2018).
14

D.M., Docket No. 20-0548 (issued November 25, 2020); O.C., Docket No. 20-0514 (issued October 8, 2020);
R.J., Docket No. 19-0179 (issued May 26, 2020).
Section 8101(2) of FECA provides that the term 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 S.S., Docket No. 18-0081 (issued August 22, 2018); P.Y., Docket No. 16-1324 (issued July 24,
2017) (a speech pathologist is not considered a physician under FECA); F.H., supra note 5; R.L., Docket No. 19-0440
(issued July 8, 2019) (a physical therapist is not considered a physician under FECA); S.J., Docket No. 20-1061 (issued
December 22, 2020); J.R., Docket No. 19-0812 (issued September 29, 2020) (an occupational therapist is not
considered a physician under FECA).
15

16

Supra note 6.

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CONCLUSION
The Board finds that appellant has not met her burden of proof to establish disability from
work for the period November 13, 2020 through January 30, 2021, causally related to her accepted
March 23, 2020 employment injury.17
ORDER
IT IS HEREBY ORDERED THAT the February 2, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 11, 2022
Washington, DC

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

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

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

17

The Board notes that OWCP has not adjudicated appellant’s claims for compensation for subsequent periods of
disability causally related to her accepted employment injury.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.C., Appellant
and
DEPARTMENT OF LABOR, MINE SAFETY &
HEALTH ADMINISTRATION, COAL
DISTRICT 4, Mount Hope, WV, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 16-0465
Issued: May 17, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 8, 2016 appellant, through counsel, filed a timely appeal of a December 21,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met his burden of proof to establish more than 28
percent binaural (both ears) hearing loss for which he received a schedule award.
On appeal counsel contends that appellant’s schedule award should have included an
additional impairment rating for tinnitus. He further argued that appellant’s audiogram
supported additional impairment on the left.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 12, 2015 appellant, then a 64-year-old mine safety and health inspector,
filed an occupational disease claim (Form CA-2) alleging that he developed hearing loss due to
his exposure to noise emitted by mining machinery while performing his job duties.
In letters dated February 23, 2015, OWCP requested that appellant and the employing
establishment provide additional factual and medical evidence supporting his claim. The
employing establishment responded and acknowledged that appellant was exposed to hazardous
noise in the performance of his job duties.
In a statement dated January 26, 2015, appellant indicated that he had noticed a
significant change in his hearing beginning in 2011. He also reported continuous ringing in both
ears. Appellant received an e-mail from the employing establishment on September 14, 2014
noting that the results of his 2014 audiogram were significantly worse than his baseline in 2007
and that of 2013. He submitted audiograms from the employing establishment hearing loss
conservation program.
On April 17, 2015 OWCP referred appellant for a second opinion evaluation with
Dr. Albert James Paine, Jr., a Board-certified otolaryngologist. On June 2, 2015 appellant
informed OWCP of the ringing in his ears which he stated made it difficult to hear and ruined the
quality of his life. He alleged that during OWCP’s scheduled audiogram, the audiologist berated
him for not indicating that he heard a tone. Appellant further noted that Dr. Paine did not
address the ringing in appellant’s ears, despite the fact that appellant mentioned this condition.
In a report dated June 2, 2015, Dr. Paine reviewed the statement of accepted facts and
noted that appellant’s initial audiogram in 2007 showed bilateral sensorineural hearing loss,
worse on the left. He found that appellant’s current audiogram demonstrated bilateral low, mid,
and high frequency sensorineural hearing loss worse at high frequencies. Dr. Paine concluded
that appellant’s hearing loss was in excess of what would normally be predicted on the basis of
presbycusis and that the workplace exposure was sufficient to have caused this loss. He noted
that appellant’s reliability was not good and recommended that appellant undergo another
audiogram to obtain good reliability in both ears.
Appellant’s audiogram demonstrated testing at 500, 1,000, 2,000, and 3,000 hertz
(Hz) and in the right ear resulting respectively in decibel losses of 30, 35, 40, and 55 while on the
left at the same levels demonstrated losses of 35, 45, 45, and 65.
OWCP’s medical adviser reviewed Dr. Paine’s report on June 18, 2015 and
recommended an additional audiogram.
On June 26, 2015 OWCP accepted appellant’s claim for bilateral sensorineural hearing
loss.
OWCP referred appellant for an additional second opinion evaluation with Dr. Charles
Abraham, a Board-certified otolaryngologist on June 24, 2015. In a report dated July 15, 2015,
Dr. Abraham reviewed the statement of accepted facts and described appellant’s hearing loss and
tinnitus. He opined, “Tinnitus is a problem [appellant] must deal with daily.” Dr. Abraham
2

found bilateral sensorineural hearing loss consistent with appellant’s employment history of
noise exposure. He recommended that appellant be evaluated for hearing aids.
Appellant’s July 15, 2015 audiogram demonstrated testing at 500, 1,000, 2,000, and
3,000 Hz and revealed on the right decibel losses of 40, 30, 45, and 55, respectively. On the left
his decibel losses at the above levels were 40, 40, 55, and 70, respectively. OWCP’s medical
adviser reviewed this test on July 27, 2015 and applied the hearing loss formula from the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides) (6th ed. 2009).2 He added the right decibel losses to reach 170 and averaged this sum to
reach 42.5. The medical adviser then subtracted the fence of 25 as directed by the A.M.A.,
Guides to reach 17.5 and multiplied this amount by 1.5 to reach a monaural loss on the right of
26.25 percent. He followed the same procedure with the audiographic results of appellant’s left
ear to reach 39.375 percent monaural hearing loss. The medical adviser then applied the formula
to reach binaural hearing loss by multiplying the lesser loss by 5 and dividing the sum of the two
losses by 6 to reach 28.437 percent binaural loss or 28 percent binaural hearing loss.
By decision dated August 18, 2015, OWCP granted appellant a schedule award for 28
percent binaural hearing loss. It based this award on the reports of Dr. Abraham and the medical
adviser.
Counsel requested reconsideration on September 22, 2015. He alleged that OWCP had
improperly omitted appellant’s diagnosed condition of tinnitus when calculating his schedule
award. Counsel further contended that based on appellant’s audiogram his decibel loss in the left
ear at 3,000 Hz was 70 not 65. He requested an additional audiogram to establish appellant’s
hearing loss.
By decision dated December 21, 2015, OWCP denied modification of the August 18,
2015 decision. It found that appellant’s (Form CA-2) did not include the condition of tinnitus.
OWCP further found that Dr. Abraham’s report did not address or support additional impairment
due to tinnitus. It further found that even if the audiogram demonstrated 70 rather than 65
decibel loss, this would not change the amount of the schedule award.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss of use of scheduled members or functions of the body. FECA, however, does not specify
the manner in which the percentage loss of a member shall be determined. The method used in
making such determination is a matter which rests in the discretion of OWCP. For consistent
results and to ensure equal justice, the Board has authorized the use of a single set of tables so
that there may be uniform standards applicable to all claimants. OWCP evaluates the degree of

2

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

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

3

permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides.5
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000, and 3,000 cycles per second, the
losses at each frequency are added up and averaged. Then, the fence of 25 decibels is deducted
because, as the A.M.A., Guides points out, losses below 25 decibel result in no impairment in the
ability to hear everyday speech under everyday conditions.6 The remaining amount is multiplied
by a factor of 1.5 to arrive at the percentage of monaural hearing loss. The binaural loss is
determined by calculating the loss in each ear using the formula for monaural loss; the lesser loss
is multiplied by five and then added to the greater loss and the total is divided by six to arrive at
the amount of the binaural hearing loss. The Board has concurred in OWCP’s adoption of this
standard for evaluating hearing loss.7 The Board has also noted OWCP’s policy to round the
calculated percentage of impairment to the nearest whole number.8
If tinnitus interferes with activities of daily living, including sleep, reading and other
tasks requiring concentration, enjoyment of quiet recreation and emotional well-being, up to five
percent may be added to a measurable binaural hearing impairment.9
ANALYSIS
The Board finds that this case not in posture for a decision.
OWCP’s medical adviser applied the A.M.A., Guides to the medical report submitted
from Dr. Abraham, which conforms to applicable criteria. The losses at the frequencies of 500,
1,000, 2,000 and 3,000 cycles per second were added and averaged and the “fence of 25 decibels
was deducted.10 The remaining amount was multiplied by 1.5 to arrive at the percentage of
monaural hearing loss. For a binaural hearing loss, the loss in each ear is calculated using the
above formula. The lesser loss is then multiplied by five and added to the greater loss. This
amount is then divided by six to arrive at the total binaural hearing loss. For levels recorded in
the right ear of 40, 30, 45, and 55, the above formula derives 26.25 percent monaural loss and for
levels recorded in the left ear of 40, 40, 55 and 70, the above formula derives 39.375 percent
5

For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.5a (February 2013); id., Part 3 -- Medical, Schedule Awards, Chapter
3.700, Exhibit 1 (January 2010).
6

See A.M.A., Guides 250.

7

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

8

J.H., Docket No. 08-2432 (issued June 15, 2009), Robert E. Cullison, 55 ECAB 570 (2004). See supra note 5 at
Chapter 3.700.4(b)(2)(b) (September 2010).
9

A.M.A., Guides 249.

10

The A.M.A., Guides points out that the loss below an average of 25 decibels is deducted as it does not result in
impairment in the ability to hear every day sounds under everyday listening conditions.

4

monaural loss. According to the accepted formula these combine to reach a 28 percent binaural
loss of hearing.
On appeal, counsel argued that there was ambiguity in the left ear loss at 3,000 Hz based
on the audiogram completed with Dr. Abraham’s report. The Board notes that the OWCP
medical adviser did utilize the higher value of 70 decibels as demonstrated on the audiogram
rather than the lesser amount of 65 decibels erroneously included by the audiologist on the
audiological report.
The Board notes that, regarding tinnitus, the A.M.A., Guides provides that tinnitus in the
presence of hearing impairment may impair speech discrimination. Therefore, up to five percent
may be added for tinnitus in the presence of measurable hearing loss if the tinnitus impacts the
ability to perform activities of daily living.11 Dr. Abraham noted that appellant experienced daily
tinnitus, however, the medical adviser did not address this aspect of appellant’s claim when
calculating his schedule award.
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence to see that justice is done.12 The Board
finds that the case is not in posture for decision regarding the award or extent of tinnitus.
On remand, OWCP should further develop the record regarding the extent and
impairment of appellant’s hearing due to tinnitus. After this and such other development as it
deems necessary, OWCP should issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for a decision.

11

See S.M., Docket No. 14-1688 (issued May 1, 2015); D.W., Docket No.14-931 (issued August 11, 2014).

12

Phillip L. Barnes, 55 ECAB 426 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the December 21, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for additional development
consistent with the Board’s decision.
Issued: May 17, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, North Chicago, IL, Employer
__________________________________________

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

Docket No. 11-1968
Issued: June 21, 2012

Case Submitted on the Record

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

JURISDICTION
On August 25, 2011 appellant filed a timely appeal from a February 28, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established a back injury causally related to factors of
his federal employment.
FACTUAL HISTORY
The case was before the Board on a prior appeal. By order dated April 6, 2009, the
Board remanded the case to OWCP for a proper decision based on all the evidence of record.2
1

5 U.S.C. § 8101 et seq.

2

Docket No. 09-34 (issued April 6, 2009).

OWCP had issued a September 16, 2008 decision finding that appellant’s occupational claim
dated May 15, 2008 was untimely filed under 5 U.S.C. § 8122. The Board directed OWCP to
consider the evidence received on September 15, 2008.
By decision dated September 8, 2009, OWCP again denied the claim on the grounds it
was not timely filed under 5 U.S.C. § 8122. An OWCP hearing representative, by decision dated
April 13, 2010, vacated the September 8, 2009 decision and found the claim was timely filed.
The case was remanded for an appropriate decision on the merits of the claim for compensation.
With respect to the underlying claim for compensation, appellant had submitted a
statement describing his federal work history through 2002.3 He indicated that he worked from
1978 to 1979 as a letter carrier, from 1980 to 1984 and again from 1987 to 1991 as an electronics
mechanic, from 1991 to 2000 as a boiler plant operator and from 2001 to 2002 as an electronics
mechanic. Appellant generally described his duties in these positions. According to him, on
October 10, 1996 he felt something pull in his back at work, but did not file a claim. Appellant
stated that on May 25, 1999 he lifted a heavy manhole cover and filed a compensation claim.
The record also indicates that he filed a claim for back injury on November 13, 2002. This claim
was accepted for lumbar strain, aggravation of lumbar stenosis and aggravation of neurogenic
claudication. Appellant received compensation through July 28, 2007, when his compensation
was terminated based on the medical evidence. The Board affirmed the termination of
compensation.4
With respect to medical evidence, appellant submitted a March 6, 2008 report from
Dr. John Ellis, Board-certified in family medicine, who provided a history of a 1996 incident
when appellant felt a pop in his back while working, and he also noted a 1999 lifting of a
manhole cover incident and a 2002 incident when appellant fell due to weakness in his legs.5
Dr. Ellis provided results on examination and diagnosed lumbar strain/sprain, disc derangement
with central canal narrowing at L4-5, disc derangement L5-S1 with left lateral and left foraminal
protrusion, lumbar spondylosis at L4-5 and L5-S1 aggravated by chronic lumbar strain/sprain,
and severe facet disease bilaterally at L3-4, L4-5, secondary to lumbar strain/sprain. He opined
that “the injuries and impairments set forth in my diagnosis and this report arose out of and in the
course of the employee’s employment with the above employers and that said employment and
work duties aggravated and/or caused said injuries and impairments. In addition, Dr. Ellis also
stated that “the multiple injuries to his lumbar spine that occurred in 1996, 1999 and 2002 caused
the structural damage to the lumbar spine that resulted in the disc derangement with central canal
narrowing, the disc derangement with foraminal protrusion and the lumbar spondylosis, which
also resulted in central anal nerve impingement at L4-5 as well as nerve root impingement at
L5-S1.”
By decision dated July 30, 2010, OWCP denied the claim for compensation. It found the
medical evidence was insufficient to establish a diagnosed condition causally related to work
factors.
3

The claim form indicated that appellant had stopped working on November 13, 2002.

4

Docket No. 09-35 (issued April 6, 2009). OWCP’s file for the November 13, 2002 claim indicated that
appellant did file a claim for a 1999 back injury, but the claim was denied.
5

This appears to be a reference to the November 13, 2002 incident.

2

On August 25, 2010 appellant requested a hearing before an OWCP hearing
representative. On August 26, 2010 he submitted numerous medical reports regarding back
treatment. The evidence included reports from Dr. Debbie Miller, an internist, from April 10,
1997 to September 10, 1998, Dr. Yogendra Bharat, an anesthesiologist, from December 3, 2002
to January 6, 2003, Dr. Steven Pagano, a neurologist, from October 9, 2002 to April 8, 2003,
Dr. Rafi Rafiullah, a neurosurgeon, from June 17, 2003 to February 23, 2004, Dr. Derek Turner,
an internist, from July 27, 2004 to January 26, 2005, and Dr. Lisa Wolf, a family practitioner,
from February 24 to September 28, 2005. In his February 24, 2004 report, Dr. Rafiullah stated
that appellant had chronic pain secondary to injuries in 1997 and 1999.
A hearing was held on December 7, 2010. On February 1, 2011 appellant submitted
additional medical evidence, including the following: a June 8, 2007 report from Dr. Ifteqar
Syed, an anesthesiologist, a July 15, 2008 report from Dr. J. Keith Preston, a neurologist, reports
from August 18, 2008 to September 3, 2010 from Dr. Norberto Vargas, a physiatrist, a January 7,
2009 report from Dr. Gregg Diamond, a physiatrist, and a December 2, 2010 report from Dr. J.P.
Benavides, an osteopath. The reports provide results on examination with respect to treatment
for pain. Appellant also submitted reports from a nurse practitioner.
By decision dated February 28, 2011, OWCP reviewed the case on its merits and denied
modification. It found the medical evidence was insufficient to establish the claim.
LEGAL PRECEDENT
A claimant seeking benefits under FECA6 has the burden of establishing the essential
elements of his claim by the weight of the reliable, probative and substantial evidence, including
that an injury was sustained in the performance of duty as alleged and that any specific condition
or disability claimed is causally related to the employment injury.7
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
and (3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant.8
Causal relationship is a medical question that can generally be resolved only by
rationalized medical opinion evidence.9 A physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors must be based on a complete factual and medical background of the claimant.10
6

5 U.S.C. §§ 8101-8193.

7

20 C.F.R. § 10.115(e), (f) (2005); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

8

Ruby I. Fish, 46 ECAB 276, 279 (1994).

9

See Robert G. Morris, 48 ECAB 238 (1996).

10

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

3

Additionally, in order to be considered rationalized the opinion must be expressed in terms of a
reasonable degree of medical certainty, and must be supported by medical rationale, explaining
the nature of the relationship between the diagnosed condition and appellant’s specific
employment factors.11
ANALYSIS
In the present case, the record indicates that appellant had stopped working in
November 2002 and filed a traumatic injury claim for a back injury. Appellant received wageloss compensation through July 2007. That claim is not before the Board on the current appeal.
The issue in the current claim is whether appellant sustained a back condition causally related to
work duties from 1978 through 2002 at jobs that included letter carrier, boiler plant operator and
electronics mechanic. Appellant has also stated that he felt back pain at work on October 10,
1996, and described a May 25, 1999 incident where he lifted a manhole cover and filed a
compensation claim. OWCP indicated that the 1999 claim was denied.
The medical issue is whether there is a rationalized medical opinion, based on a complete
and accurate background, between the identified employment factors and a diagnosed medical
condition. Although appellant submitted numerous medical reports, it is not the number of
medical reports but the probative value of the evidence to the issue presented that determines
whether he has met his burden of proof.12 The Board has reviewed the medical evidence and
finds that it does not contain a rationalized medical opinion based on a complete and accurate
factual and medical history.
In his March 6, 2008, Dr. Ellis did not provide a complete history. He did not, for
example, discuss any of appellant’s job duties or his work history. Dr. Ellis noted a 1996
employment incident, for which appellant did not file a claim, and a 1999 employment incident,
which was a claim denied by OWCP. He then provides numerous diagnoses, ranging from
lumbar strain/sprain, disc derangement, lumbar spondylosis and facet disease. With respect to
causal relationship, Dr. Ellis stated broadly that appellant’s “employment and work duties
aggravated and/or caused” these diagnoses. As noted above, he did not discuss work duties. In
addition, aggravation and direct causation are different concepts and Dr. Ellis did not explain his
statement as to aggravation “and/or” causation. He then refers to the “multiple injuries”
occurring in 1996, 1999 and 2002 as causing structural damage to the lumbar spine. The only
accepted employment injury was November 13, 2002 and that is a separate claim. It is not
established that there were employment injuries in 1996 and 1999.13 Dr. Ellis does not provide a
rationalized medical opinion establishing an injury causally related to prior work injuries or to
work duties.
The remainder of the medical evidence consists of treatment reports that do not provide a
rationalized medical opinion, based on an accurate and complete background, establishing causal
relationship between a diagnosed back condition and the identified employment factors.
11

Id.

12

See Geraldine Foster, 54 ECAB 435 (2003).

13

Appellant may pursue the 1999 claim with OWCP in an appropriate manner, but that claim is not before the
Board.

4

Dr. Rafiullah briefly stated that appellant had chronic pain from 1997 and 1999 injuries, without
further explanation. None of the other physicians of record provide an opinion with respect to
causal relationship between a diagnosed condition or conditions and federal employment. The
Board notes that the reports of a nurse practitioner are of no probative medical value.14 It is
appellant’s burden of proof on the issue, and the Board finds he did not prove his burden in this
case. 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 appellant did not meet his burden of proof to establish a back injury
causally related to identified employment factors.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 28, 2011 is affirmed.
Issued: June 21, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

14

Nurse practitioners are not considered physicians under FECA. See 5 U.S.C. § 8101(2); Sean O’Connell, 56
ECAB 195 (2004).

5


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS CANTEEN SERVICE, Danville, IL, )
Employer
)
___________________________________________ )
R.M., Appellant

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

Docket No. 08-75
Issued: June 6, 2008

Case Submitted on the Record

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

JURISDICTION
On October 9, 2007 appellant filed a timely appeal of the June 19, 2007 decision of an
Office of Workers’ Compensation Programs’ hearing representative, who affirmed a
December 1, 2006 decision terminating her compensation benefits. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merit decisions in this case.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s wage-loss
compensation effective December 1, 2006; and (2) whether appellant met her burden of proof to
establish that she was entitled to wage-loss compensation after December 1, 2006 causally
related to the May 21, 2004 employment injury.
FACTUAL HISTORY
On May 21, 2004 appellant, then a 47-year-old part-time head cashier, sustained a
traumatic injury when she fell on a wet floor and landed on her right side and arm. She also

alleged that her neck felt stiff. The employing establishment indicated that appellant declined
medical treatment. She did not stop work. On March 14, 2005 the Office accepted appellant’s
claim for thoracic or lumbosacral neuritis or radiculitis.
In a May 18, 2005 report, Dr. James J. Harms, a Board-certified orthopedic surgeon and
treating physician, noted appellant’s history of injury and treatment. He reviewed a magnetic
resonance imaging (MRI) scan dated February 1, 2005 and noted that it showed a slight
degenerative bulge at L5-S1. Dr. Harms opined that he did not believe that surgery would help
appellant, but advised that she should remain active. He diagnosed degenerative disc disease at
L5-S1 with a superimposed back strain. On September 26, 2005 Dr. Harms noted that appellant
had tailbone pain and tingling into the legs which bothered her at night. He also indicated that
she had neck pain, shoulder pain and aches in lots of places. Dr. Harms diagnosed low back pain
from premature degenerative disc disease at L5-Sl and leg tingling. He recommended that
appellant undergo electromyogram (EMG) and nerve conduction testing.
In an October 6, 2005 report, Dr. Victoria Johnson, a Board-certified physiatrist,
diagnosed myofascial pain syndrome with neuropathic symptoms in the lower extremities and no
evidence of radiculopathy. She recommended that appellant continue her current restrictions
which included a 15-pound lifting and pulling restriction and avoid repetitive bending.
In a November 16, 2005 report, Dr. Harms indicated that appellant’s leg and back were
still bothersome and that she was not responding to conservative treatment. He recommended a
discogram and spinal fusion surgery. On November 29, 2005 Dr. Harms determined that
appellant had degenerative disc disease at L4-5 and L5-S1 with a negative provocative test of
computerized tomography (CT) discogram of L4-5 and L5-S1. He opined that appellant’s upper
back, mid back, arm and leg pain might be due to her degenerative disc disease or from
peripheral neuropathy, arthritis or fibromyalgia. Dr. Harms recommended a second opinion
examination. He completed an undated duty status report advising that appellant was totally
disabled for work beginning January 8, 2006.1 In a March 22, 2006 report, Dr. Harms advised
that appellant continued to have tingling into her feet and hands, as well as back and left knee
pain. He indicated that appellant had not worked for some time. Dr. Harms reiterated that
appellant should be referred to a physician specializing in physical medicine and rehabilitation
for treatment of her symptoms.
In a June 13, 2006 report, Dr. Thomas Sutter, Board-certified in family medicine and an
associate of Dr. Harms, noted appellant’s history of injury and treatment. He conducted a
physical examination and noted that appellant had full range of motion of the cervical, thoracic
and lumbosacral spines with mild tenderness in the lumbosacral area. Dr. Sutter diagnosed
chronic back pain with a history of degenerative disc disease of the lumbosacral spine. He

1

Appellant stopped work on January 10, 2006. In a February 1, 2006 memorandum, the employing
establishment notified her that it proposed to remove her from her position as food service worker for failure to
register proper cash register sales for transactions from December 7 to 20, 2005 and for failure to follow
instructions. On February 27, 2006 the employing establishment issued a final decision and removed appellant from
her position effective March 7, 2006.
Appellant filed CA-7 forms for the period March 8 through
December 1, 2006. The Office paid appellant compensation for total wage loss for that period.

2

recommended restrictions of no lifting over 25 pounds and no twisting of the back. Dr. Sutter
recommended a functional capacity evaluation.
By letter dated August 9, 2006, the Office provided Dr. Sutter with a copy of appellant’s
position description and advised him that the physical requirements included: light lifting under
15 pounds; light carrying under 25 pounds occasionally; pushing occasionally; reaching above
the shoulder; use of fingers; both hands required; walking and standing four hours per day; and
repeated bending. The Office indicated that appellant had worked six hours per day, five days
per week. It requested that Dr. Sutter provide his opinion as to whether appellant could perform
the duties of the date-of-injury position.
In an August 16, 2006 response, Dr. Sutter indicated that he had seen appellant for one
visit and recommended a functional capacity evaluation. He opined that “appropriate restrictions
were no lifting over 25 pounds and avoid twisting her back.” Dr. Sutter also indicated that it
appeared that appellant’s restrictions were consistent with her current job position.
On September 28, 2006 the Office issued a notice of proposed termination of
compensation. It found that the report of Dr. Sutter established that appellant had no continuing
work-related disability as a result of her May 21, 2004 employment injury. Appellant was
allotted 30 days to submit additional evidence or argument.
In a September 28, 2006 report, Dr. Sutter indicated that he was examining appellant for
the purpose of obtaining an impairment rating for a schedule award. He noted that she did not
obtain functional capacity evaluation. Dr. Sutter determined that appellant had mild tenderness
in the lumbosacral area, no paravertebral spasm, normal range of motion, full extension and good
flexion of the lumbosacral spine, negative straight leg raising test, normal deep tendon reflexes,
normal sensory examination of the lower extremities and no muscle atrophy of the lower
extremities. He diagnosed chronic back pain and noted that she did not really have findings on
discogram or lumbar CT scan other than degenerative changes and there was no evidence of
spinal stenosis or foraminal stenosis.
Dr. Sutter determined that appellant’s physical
examination was normal. He indicated that she did not wish for him to complete the impairment
rating as she wished to have another physician do the rating.
On October 13, 2006 appellant underwent a functional capacity evaluation.
By decision dated December 1, 2006, the Office terminated appellant’s compensation
benefits effective that day. It found that she did not submit any medical documentation to negate
the opinion of her attending physician, Dr. Sutter. The Office found that the weight of the
medical evidence supported that appellant had no continuing disability or residuals due to the
injury of May 21, 2004.

3

On December 18, 2006 appellant requested a hearing, which was held by telephone on
April 11, 2007.2
The Office subsequently received an October 3, 2006 report from Dr. Jian Li, a Boardcertified physiatrist, who diagnosed chronic neck and low back pain and cervical and lumbar
spondylosis.
The Office also received a copy of a November 23, 2005 CT scan lumbar spine
discogram read by Dr. Joseph Barkmeier, a Board-certified diagnostic radiologist, who found
that appellant had degenerative disc disease at L4-5 and L5-Sl with a negative provocative test at
L4-5 and L5-S1.
In a report dated March 22, 2007, Dr. Srinivas Sunkavally, a Board-certified physiatrist,
indicated that electrodiagnostic findings were indicative of C6-7 root irritation with no evidence
of peripheral entrapment neuropathy. In a report dated March 26, 2007, he indicated that he
administered an epidural steroid injection that day at L5-S1. The Office also received a May 7,
2007 report from a mental health therapist.
In an undated letter, appellant listed her medications and contended that nothing
alleviated the pain in her low back and neck.
By decision dated June 19, 2007, the Office hearing representative affirmed in part the
December 1, 2006 decision which terminated appellant’s compensation for wage loss. The
Office hearing representative found that the medical evidence did not establish that appellant had
recovered from the accepted condition and vacated that portion of the Office’s December 1, 2006
decision which terminated her entitlement to medical benefits. The Office hearing representative
directed the Office to refer appellant for a second opinion examination to determine whether she
continued to have a medical condition causally related to the May 21, 2004 injury.3
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.4 Having determined that an employee has a disability
causally related to his or her federal employment, the Office may not terminate compensation
2

During the hearing appellant alleged that she was sent to Dr. Sutter by the employing establishment.
Subsequent to the hearing the Office received additional documents. They included court documents in which
appellant pled guilty to a charge of theft from the employing establishment in the amount of less than $300.00
between December 1, 2005 and January 31, 2006. Appellant entered the plea on April 3, 2007 and was fined and
placed on probation for one year and ordered to perform 40 hours of public service. The employing establishment
also provided a notification of personnel action dated March 7, 2006 indicating that appellant was removed that date
for failure to register proper cash register sales transaction on nine days between December 7 and 19, 2005 and
failure to follow instructions.
3

Any matters pertaining to the further development directed by the hearing representative are not before the
Board on the present appeal as the record contains no final decision of the Office on any such matter prior to the
filing of the present appeal on October 9, 2007. See 20 C.F.R. § 501.2(c).
4

Curtis Hall, 45 ECAB 316 (1994).

4

without establishing either that the disability has ceased or that it is no longer related to the
employment.5
ANALYSIS -- ISSUE 1
The Board finds that the weight of the medical evidence is represented by Dr. Sutter,
Board-certified in family medicine, who submitted a well-rationalized opinion based upon a
complete and accurate factual and medical history.
In a June 13, 2006 report, Dr. Sutter noted appellant’s history of injury and treatment and
conducted a physical examination. He determined that appellant had full range of motion of the
cervical, thoracic and lumbosacral spines with mild tenderness in the lumbosacral area.
Dr. Sutter diagnosed chronic back pain with a history of degenerative disc disease of the
lumbosacral spine and opined that she could work with restrictions of no lifting over 25 pounds
and no twisting of the back. He also recommended a functional capacity evaluation. On
August 16, 2006 Dr. Sutter noted that appellant’s restrictions were appropriate and consistent
with her current job position. In a September 28, 2006 report, he diagnosed chronic back pain.
Dr. Sutter determined that appellant had an essentially normal examination of the lower
extremities and noted that she did not have findings on discogram or lumbar CT scan other than
degenerative changes. There was no evidence of spinal stenosis or foraminal stenosis. The
Board finds that his report supports that appellant was able to perform the duties of her date-ofinjury position.
The Board notes that appellant submitted reports from other attending physicians.
However, Dr. Harms, the only physician who opined that appellant was totally disabled and
unable to work, noted disability beginning January 8, 2006. He did not offer any opinion
regarding her ability to return to work on or after December 1, 2006. Dr. Harms also indicated in
several reports that appellant’s condition was caused by several nonaccepted conditions, such as
degenerative disc disease at L5-S1, peripheral neuropathy, arthritis or fibromyalgia.6 The Board
notes that appellant was paid compensation for total wage loss from March 18 to
December 1, 2006. Thereafter, Dr. Harms did not submit any reports explaining how appellant
was disabled on or after December 1, 2006 as a result of her accepted condition, such that she
was unable to work. The record contains no other current medical evidence addressing whether
appellant’s accepted conditions of thoracic or lumbosacral neuritis or radiculitis caused any
continuing disability for work.
The Office properly accorded the weight of the evidence to Dr. Sutter. The Board finds
that Dr. Sutter’s reports establish that appellant had no work-related disability on or after
December 1, 2006, thereby supporting the Office’s December 1, 2006 termination of her wageloss compensation
5

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

6

The Office accepted appellant’s claim for thoracic or lumbosacral neuritis or radiculitis. See Jaja K. Asaramo,
55 ECAB 200 (2004) (where an employee claims that a condition not accepted or approved by the Office 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).

5

LEGAL PRECEDENT -- ISSUE 2
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation shifts to appellant. In order to
prevail, appellant must establish by the weight of the reliable, probative and substantial evidence
that she had an employment-related disability, which continued after termination of
compensation benefits.7
The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.8
ANALYSIS -- ISSUE 2
Following the termination of compensation, appellant submitted additional medical
evidence. In an October 3, 2006 report, Dr. Li diagnosed chronic neck and low back pain and
cervical and lumbar spondylosis. In reports dated March 22 and 26, 2007, Dr. Sunkavally noted
that appellant had C6-7 root irritation with no evidence of peripheral entrapment neuropathy.
However, these records do not address whether appellant’s work-related condition caused any
disability for work on or after December 1, 2006. The Board has long held that medical
evidence which does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship.9
The Office received a diagnostic report from Dr. Barkmeier who determined that
appellant had degenerative disc disease at L4-5 and L5-Sl with a negative provocative test at
L4-5 and L5-S1. However, this report merely reported findings and did not contain an opinion
regarding the cause of the reported condition or disability. The Office also received a May 7,
2007 report from a mental health therapist. However, a mental health therapist is not considered
a physician for the purposes of the Act.10
None of appellant’s physicians provided sufficient medical rationale explaining how and
why the accepted conditions of thoracic or lumbosacral neuritis or radiculitis caused or
contributed to her disability for work after December 1, 2006. Thereafter, appellant has failed to
meet her burden of proof.

7

Talmadge Miller, 47 ECAB 673, 679 (1996); Wentworth M. Murray, 7 ECAB 570, 572 (1955).

8

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

9

Michael Smith, 50 ECAB 313 (1999).

10

See Bradford L. Sutherland, 33 ECAB 1568 (1982).

6

CONCLUSION
The Board finds that the Office met its burden of proof in terminating appellant’s wageloss compensation benefits effective December 1, 2006. The Board finds that appellant did not
meet her burden of proof to establish that she was disabled on or after December 1, 2006
causally related to her May 21, 2004 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the June 19, 2007 decision of the Office of
Workers’ Compensation Programs’ hearing representative is affirmed.
Issued: June 6, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7