United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS
Jacksonville, FL, Employer
__________________________________________

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

Docket No. 07-2139
Issued: February 14, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 9, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated July 26, 2007 which denied his claim for an
occupational disease. Pursuant to C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of his claim.
ISSUE
The issue is whether appellant established that he sustained a degenerative cervical
condition causally related to his previously accepted occupational injury.
FACTUAL HISTORY
On February 25, 2004 appellant, then a 48-year-old claims examiner, filed an
occupational disease claim, alleging that he sustained carpal tunnel syndrome in the performance
of duty. His claim was accepted for bilateral carpal tunnel syndrome on April 5, 2004. On
March 1, 2004 appellant had surgery on his right wrist.

On March 12, 2006 appellant requested that his claim be expanded to include
“spondylosis L5-6.” It was subsequently determined that he was claiming spondylosis of the
cervical, not lumbar spine. Appellant claimed that his neurosurgeon told him he has a “double
crutch syndrome” whereby his two conditions are served by1 the same block of nerves and
therefore one condition can aggravate the other.
This is the second appeal of this claim before the Board. By decision dated May 17,
2007, the Board affirmed the Office’s November 21, 2006 decision on the grounds that appellant
had not met his burden of proof to establish that his cervical spondylosis was causally related to
his previously accepted carpel tunnel syndrome. The facts of this case, as set forth in the prior
decision, are incorporated herein by reference.
On May 24, 2007 appellant requested that the Office again reconsider his case. He
alleged that he had established a prima facie case and was therefore entitled to a second opinion
evaluation. Appellant also argued that he had obtained new medical evidence which established
his claim. The additional medical evidence submitted consisted of three reports. In an April 30,
2007 note, Dr. Ashutosh Pradhan, a neurosurgeon, stated that appellant would undergo surgery
on May 2, 2007 for ulnar neuropathy which was caused by repetitive use motion. In an April 2,
2007 note, he found that appellant demonstrated symptoms of both ulnar neuropathy and cervical
radiculopathy. In a May 23, 2007 letter, Dr. Keith Holden, a family practitioner, reviewed
appellant’s medical history. He opined that appellant was unable to perform his work duties due
to severe multilevel degenerative disc disease of the cervical spine with associated disc
herniation and neural impingement causing bilateral upper extremity radiculopathy symptoms.
Dr. Holden also opined that appellant’s multiple orthopedic and neurologic conditions were
aggravated by the repetitive arm and hand movements required by his federal work duties and
that he was totally disabled at this time.
On June 12, 2007 appellant filed a claim for compensation for leave without pay for the
time period June 10, 2007 and continuous. On June 28, 2007 he filed a claim for leave without
pay from June 23, 2007 continuous. On July 17, 2007 appellant filed a claim for leave without
pay from July 7, 2007 and continuing. He was placed on the periodic roll on July 21, 2007.
In a July 26, 2007 merit decision, the Office addressed appellant’s request for
reconsideration and denied modification of the prior decisions. The Office found that the
medical evidence did not offer medical rationale in support of the conclusion that appellant’s
cervical condition was caused or aggravated by appellant’s work duties or his bilateral carpal
tunnel syndrome.
LEGAL PRECEDENT
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that his condition was caused or adversely affected by his employment. As

1

Docket No. 07-432 (issued May 17, 2007).

2

part of this burden he must present rationalized medical opinion evidence, based on a complete
factual and medical background, showing causal relation.2
Causal relationship is a medical question that can generally be resolved only by
rationalized medical opinion evidence.3 Rationalized medical opinion evidence is medical
evidence that includes a physician’s rationalized opinion on whether there is a causal relationship
between the claimant’s diagnosed condition and the established incident or factor of
employment. The opinion 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
established incident or factor of employment.4
An award of compensation may not be based on appellant’s belief of causal relationship.
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.5
ANALYSIS
Appellant claimed that he sustained a cervical condition in the performance of duty
causally related to his previously accepted carpal tunnel syndrome. He requested that the
condition of cervical spondylosis C5-6 be accepted as an additional condition. The Office
denied expansion of the claim.
The issue is whether there is sufficient medical evidence to establish a causal relation
between appellant’s accepted conditions and his diagnosed cervical condition. The Board finds
that the medical evidence presented does not contain the necessary rationalized medical opinion
to establish that appellant’s cervical spondylosis is causally related to his accepted carpal tunnel
condition.
Appellant was diagnosed with cervical disc degeneration, degenerative disc disease, ulnar
neuropathy and cervical radiculopathy. The Office has accepted his claim for carpal tunnel
syndrome, cubital tunnel syndrome and left wrist ganglion cyst.

2

Kimper Lee, 45 ECAB 565 (1994).

3

See Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on the issue of causal relationship must be
based on a complete factual and medical background of the claimant. Victor J. Woodhams, 41 ECAB 345,
352 (1989). 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 claimant’s specific employment factors. Id.
4

John W. Montoga, 54 ECAB 306 (2003).

5

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

3

Since the last review of the evidence by the Board, appellant has submitted reports from
Drs. Pradhan and Holden and Dr. Dennis D. Dewey. Dr. Dewey diagnosed degenerative disc
disease. He also found a mild slowing of the ulnar motor conduction across the left elbow,
however, he stated that these findings did not fully explain appellant’s symptons. Dr. Dewey did
not identify a cause of appellant’s conditions in any of his reports. The Board has held that
medical opinions that are speculative or equivocal in character are of diminished probative
value.6 Dr. Pradhan diagnosed appellant with ulnar neuropathy and cervical radiculopathy but he
did not offer an opinion as to the cause of these conditions. 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.7 Dr. Holden diagnosed cervical disc degeneration. He also
presented appellant’s recent medical history of neck and arm problems since March 2004.
Dr. Holden opined that appellant’s orthopedic and neurologic conditions were aggravated by
repetitive arm and hand movements required by appellant’s federal work related to typing.
While he did opine that appellant’s typing at work aggravated his conditions, Dr. Holden did not
identify how much typing appellant performed in the course of his employment and he did not
explain how typing could aggravate appellant’s specific conditions. It is not enough to simply
state that appellant’s work aggravates his condition. Medical opinions must be supported by an
adequate medical rationale. Dr. Holden provided no rationale to support his opinion on causal
relation. In order to establish causal relationship, appellant must submit a physician’s report in
which the physician reviews the employment factors identified by appellant as causing his
condition and, taking these factors into consideration as well as findings upon examination, state
whether the employment injury caused or aggravated the diagnosed conditions and present
medical rationale in support of his or her opinion.8
Appellant argued that he did not have cervical degenerative disc disease prior to working
at his position but did a couple of years afterwards. The Board has held that the mere fact that a
condition manifests itself during a period of employment does not raise an inference that there is
a causal relationship between the two.9
As there is no probative, rationalized medical evidence addressing how appellant’s
claimed cervical condition was caused or aggravated by his employment he has not established a
prima facie claim and he has not met his burden of proof in establishing that he sustained an
injury in the performance of duty causally related to factors of his federal employment.
CONCLUSION
Appellant has not met his burden to establish that his cervical spondylosis is causally
related to his previously accepted carpal tunnel syndrome.

6

D.D., 57 ECAB ___ (Docket No. 06-1315, issued September 14, 2006).

7

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

8

Calvin E. King, 51 ECAB 394 (2000).

9

Roy L. Humphrey, 57 ECAB ___ (Docket No. 05-1928, issued November 23, 2005) citing Joe T. Williams, 44
ECAB 518, 521 (1993).

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ORDER
IT IS HEREBY ORDERED THAT the July 26, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 14, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
DEPARTMENT OF JUSTICE, FORT DIX
FEDERAL CORRECTIONAL INSTITUTION,
Fort Dix, NJ, Employer
__________________________________________

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

Docket No. 18-0746
Issued: November 26, 2018

Case Submitted on the Record

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

JURISDICTION
On February 23, 2018 appellant, through counsel, filed a timely appeal from an October 13,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction 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 continuing
employment-related condition or disability after May 15, 2013.
FACTUAL HISTORY
This case has previously been before Board.3 The facts and circumstances as set forth in
the Board’s prior decisions are incorporated herein by reference. The relevant facts are set forth
below.
On October 5, 2011 appellant, then a 47-year-old correctional officer, filed a traumatic
injury claim (Form CA-1), assigned OWCP File No. xxxxxx466, alleging that, on September 28,
2011, she sustained left elbow and shoulder injuries as a result of shooting firearms in the
performance of duty.4 She stopped work on September 29, 2011.
After initial development of the claim, by decision dated December 1, 2011, OWCP denied
appellant’s traumatic injury claim, finding that the medical evidence of record did not contain a
rationalized medical opinion explaining how her diagnosed medical condition was causally related
to the accepted September 28, 2011 employment incident.
In a December 7, 2011 letter, appellant, through counsel, requested a telephone hearing
before an OWCP hearing representative. The hearing was held on March 13, 2012. The hearing
representative noted that an emergency room report established a left elbow strain causally related
to the September 28, 2011 employment incident. By decision dated May 10, 2012, she reversed
the December 1, 2011 decision which denied appellant’s claim. Appellant received wage-loss
compensation retroactively to November 14, 2011.
Effective April 8, 2012, appellant began full-time limited-duty work as a legal assistant at
the employing establishment. She continued to receive compensation for wage loss, adjusted to
reflect her actual earnings.5
In a report dated July 6, 2012, Dr. Laura Ross, and osteopathic physician, provided results
on examination and diagnosed status post left elbow sprain with ulnar neuritis. In a form report
dated July 19, 2012, she diagnosed left lateral epicondylitis/ulnar neuritis and checked a box
marked “yes” indicating that the condition was causally related to using firearms. On
3

Docket No. 14-0472 (issued August 17, 2015).

4

Appellant has prior claims involving the left arm. She filed an occupational disease claim (Form CA-2) on
September 1, 2010 in which OWCP accepted that she sustained left shoulder bursae and tendon disorder and left
elbow enthesopathy due to continuous use of the left arm for lifting items such as files and mail buckets. OWCP
assigned that claim OWCP File No. xxxxxx526. Appellant filed a notice of recurrence (Form CA-2a) claiming
disability on September 8, 2010 due to lifting files and mail bins for five years. OWCP developed this incident as a
separate occupational claim, and on February 22, 2011 accepted the claim for left shoulder impingement syndrome,
left lateral epicondylitis, left lateral extensor tendon tear, and left elbow tendinitis. It assigned that claim OWCP File
No. xxxxxx608. OWCP File Nos. xxxxxx526 and xxxxxx608 have been administratively combined with the present
claim, with File No. xxxxxx608 serving as the master file.
5

The Board notes that OWCP did not issue a formal loss of wage-earning capacity determination.

2

September 10, 2012 Dr. Ross reported regarding her treatment of appellant’s condition. She then
opined that the trauma and force of the use of appellant’s firearm, while qualifying for a firearms
test at work on September 28, 2011 directly caused the exacerbation of her underlying lateral
epicondylitis of her left elbow, as well as left elbow ulnar neuropathy. Dr. Ross stated that her
findings were based on multiple physical examinations and diagnostic testing.
OWCP prepared a statement of accepted facts (SOAF) and referred appellant for a second
opinion examination with Dr. Stanley Askin, a Board-certified orthopedic surgeon, to determine
the status of appellant’s accepted condition. In a report dated December 21, 2012, Dr. Askin
provided examination findings. With respect to appellant’s accepted left elbow condition, he
stated that a sprain was a partial tear of the ligament and he opined that appellant’s clinical
presentation did not suggest that she continued to have a partial tear of a ligament at the left elbow.
As to a left lateral epicondylitis, Dr. Askin stated that appellant did not find any anatomic condition
consequential to her work activities. He concluded that there was no work-related reason to
prevent her from performing her regular duties as a correctional officer.
By decision dated March 4, 2013, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective that date, finding that she no longer had any condition or disability
causally related to her September 28, 2011 employment injury. It found that the weight of the
medical evidence rested with the December 21, 2012 medical opinion of Dr. Askin, who opined
that appellant no longer had any residuals of her accepted employment-related left elbow strain,
that she did not sustain an additional left elbow condition as a consequence of her accepted
condition, and that she could perform her regular duties as a correctional officer.
In a letter received by OWCP on March 12, 2013, appellant, through counsel, requested an
oral hearing before an OWCP hearing representative.
In a report dated May 15, 2013, Dr. Ross disagreed with Dr. Askin’s opinion and opined
that the September 28, 2011 employment injury caused an exacerbation of appellant’s underlying
left elbow lateral epicondylitis and caused her left ulnar neuropathy based on examination,
electromyogram and other test results.
By decision dated September 18, 2013, a second OWCP hearing representative affirmed
the March 4, 2013 termination decision. She found that the medical evidence submitted by
appellant was insufficient to outweigh the weight accorded to Dr. Askin’s medical opinion.
On December 26, 2013 appellant, through counsel, appealed to the Board. By decision
dated August 17, 2015, the Board affirmed in part and set aside in part the September 18, 2013
decision.6 The Board found that OWCP met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective March 4, 2013, as Dr. Askin’s opinion
represented the weight of the medical evidence. The Board determined, however, that a conflict
existed in the medical opinion evidence between Dr. Askin and Dr. Ross with respect to whether
appellant had established a continuing condition, left lateral epicondylitis or left ulnar neuritis, or
disability as causally related to the September 28, 2011 employment injury. Thus, the Board

6

Docket No. 14-0472 (issued August 17, 2015).

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remanded the case to OWCP for resolution of the conflict in the medical opinion evidence in
accordance with 5 U.S.C. § 8123(a).
Following the issuance of the Board’s August 17, 2015 decision, OWCP, on March 17,
2017, referred appellant, together with a SOAF, the medical record, and a list of questions, to
Dr. Robert W. Elkins, a Board-certified orthopedic surgeon, for an impartial medical evaluation.
In an April 26, 2017 report, Dr. Elkins related a history of the September 28, 2011
employment injury, appellant’s medical treatment and employment background.7 He noted her
current complaints of left shoulder, left arm, and left elbow, fourth and fifth finger pain,
discomfort, numbness, tingling, and pins and needles sensation. Appellant rated her left elbow
pain as 4 out of 10. She experienced increased pain when moving in bed and up/down in a chair,
sitting, driving a car, lifting from below the waist and at the waist to shoulder height, lifting above
the shoulders, carrying, and pushing/pulling. Appellant also had increased pain when pressure
was applied and in cold weather conditions. She further complained of pain in her central neck,
left shoulder, arm, and forearm, and numbness, tingling, and pins and needles which she rated as
5 out of 10 in intensity. Dr. Elkins reviewed the medical record and SOAF. He provided detailed
physical examination findings. Dr. Elkins reported negative impingement testing of the shoulder.
There was minimal tenderness over the medial and lateral epicondyle of the left elbow and a
negative Tinel’s sign. There was no particular tenderness in the neck, shoulder, scapula, or arm
area. A neurologic examination was equal with +2 equal reflexes in the biceps, triceps, and
brachioradialis. There was 5/5 strength in the shoulders, biceps, grip and pinch and equal
sensation. Dr. Elkins indicated that appellant had a score within physiologic limits on a pain
diagram. Appellant had a score of 54 on a pain questionnaire.
Dr. Elkins diagnosed resolved lateral epicondylitis, possible subjective complaints of ulnar
nerve neuropathy at the elbow, chronic left arm, shoulder, and elbow pain, and lateral
epicondylectomy performed on March 16, 2011. He noted appellant’s accepted conditions
contained in the SOAF, including the accepted impingement of the left shoulder, lateral
epicondylitis on the left, lateral extensor tear on the left, and tendinitis of the left elbow under
OWCP File No. xxxxxx608. In response to OWCP’s questions regarding appellant’s left elbow,
Dr. Elkins noted that at the present time there was no evidence of ulnar neuritis as there was a
negative Tinel’s sign at the elbow, unremarkable sensation in the hand, and full ROM and good
strength in the hand. He further noted that the accepted September 28, 2011 employment injury
had resolved. Dr. Elkins related that the accepted injury temporarily exacerbated appellant’s left
lateral epicondylitis and ulnar nerve neuritis for a limited time period which ceased on May 15,
2013, resulting in no permanent aggravation. He explained that appellant had minimal
symptomatology and a negative examination with no objective findings. Dr. Elkins advised that,
based on the left upper extremity appellant had no disability and she could perform her date-ofinjury correctional officer position with no restrictions. Regarding whether appellant had any
disability after March 4, 2013, he advised that she had no disability after May 15, 2013.

7

Dr. Elkins noted that appellant currently worked at the Department of Veterans Affairs in Florida.

4

By decision dated May 24, 2017, OWCP found that, based on Dr. Elkins’ report,
appellant’s employment-related injury had resolved, the temporary aggravation of her lateral
epicondylitis had ceased as of May 15, 2013,8 and she had no disability as of that date.
In a letter received by OWCP on June 2, 2017, appellant’s current counsel requested an
oral hearing before an OWCP hearing representative. The hearing was held on August 29, 2017.
By decision dated October 13, 2017, a third OWCP hearing representative affirmed the
May 24, 2017 decision. He found that the weight of medical evidence rested with Dr. Elkins’
impartial medical opinion that appellant no longer had any residuals, additional left elbow
conditions, or disability as a result of her September 28, 2011 work injury. The hearing
representative noted that since Dr. Elkins identified May 15, 2013 as the date that the work-related
aggravation of appellant’s left lateral epicondylitis ulnar neuritis conditions ceased, compensation
for a loss of wage-earning capacity was payable through that date.
LEGAL PRECEDENT
Once OWCP properly terminates a claimant’s compensation benefits, the burden of proof
shifts to the claimant to establish that he or she has continuing disability after that date related to
his or her accepted injury.9 To establish causal relationship between the condition as well as any
attendant disability claimed and the employment injury, a claimant must submit rationalized
medical evidence based on a complete medical and factual background, supporting such causal
relationship.10 Causal relationship is a medical issue and the medical evidence required to establish
causal relationship is rationalized medical evidence.11
Section 8123 (a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.12 The implementing regulations
state that, if a conflict exists between the medical opinion of the employee’s physician and the
medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall
appoint a third physician to make an examination. This is called a referee examination and OWCP
will select a physician who is qualified in the appropriate specialty and who has no prior connection
with the case.13 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

8
In its May 24, 2017 decision, OWCP incorrectly identified May 15, 2015 as the date on which appellant no longer
any disability or continuing work-related medical conditions.
9

Manuel Gill, 52 ECAB 282 (2001).

10

Id.

11

Paul Foster, 56 ECAB 208 (2004); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

12

5 U.S.C. § 8123(a).

13

20 C.F.R. § 10.321.

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the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight.14
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish continuing
employment-related residuals or disability after May 15, 2013.
As noted, in a prior appeal, the Board affirmed OWCP’s termination of appellant’s
compensation, effective March 4, 2013. However, the Board set aside OWCP’s hearing
representative’s September 18, 2013 decision as to whether appellant had established continuing
residuals or disability after March 4, 2013 causally related to the accepted September 28, 2011
employment injury of left elbow strain. The Board found that an unresolved conflict existed
between Dr. Askin, an OWCP referral Board-certified orthopedic surgeon, and Dr. Ross, an
attending osteopath, as to whether appellant had established that the accepted work injury caused
her left lateral epicondylitis, ulnar neuritis, or disability. The Board’s previous review of evidence
regarding the termination of appellant’s compensation benefits is res judicata.15
Following the Board’s decision, on March 17, 2017 OWCP referred appellant to Dr. Elkins
for an impartial medical examination. The Board finds that Dr. Elkins’ impartial medical opinion
is entitled to special weight and establishes that appellant had no continuing conditions or disability
due to the accepted employment injury.16 In an April 26, 2017 report, Dr. Elkins reviewed the
SOAF and the medical file and noted essentially normal findings on physical examination. He
opined that the accepted employment injury had resolved, that the temporary aggravation of
appellant’s left elbow lateral epicondylitis and ulnar nerve neuritis had ceased as of May 15, 2013
and that appellant could perform her regular duties as a correctional officer without restrictions as
of that date. Dr. Elkins reasoned that there were no objective findings consistent with her
subjective complaints.
The Board finds that Dr. Elkins provided a comprehensive, well-rationalized opinion in
which he clearly found that appellant could return to her preinjury job. Dr. Elkins had full
knowledge of the relevant facts and the course of appellant’s conditions. His opinions were based
on the SOAF and an accurate factual and medical history. Dr. Elkins’ report contained a detailed
summary of the history of the claim.17 Additionally, he addressed the medical records, examined
appellant, and reached a reasoned conclusion regarding appellant’s conditions.18 Dr. Elkins’
opinion is entitled to the special weight accorded an impartial examiner and constitutes the weight
14

See M.W., Docket No. 16-0959 (issued October 6, 2016); James P. Roberts, 31 ECAB 1010 (1980).

15
Findings made in prior Board decisions are res judicata absent any further review by OWCP under section 8128
of FECA. A.C., Docket No. 18-0484 (issued September 7, 2018).
16

See D.P., Docket No. 17-1097 (issued January 4, 2018); L.G., Docket No. 15-1334 (issued January 28, 2016).

17

See R.G., Docket No. 16-0271 (issued May 18, 2017).

18
Michael S. Mina, 57 ECAB 379 (2006) (the opportunity for and thoroughness of examination, the accuracy and
completeness of the physician’s knowledge of the facts and medical history, the care of analysis manifested, and the
medical rationale expressed in support of the physician’s opinion are facts, which determine the weight to be given to
each individual report).

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of the medical evidence.19 Thus, appellant has not met her burden of proof to establish a continuing
employment-related condition or disability due to the accepted injury.
On appeal counsel contends that OWCP improperly denied appellant’s entitlement to
ongoing benefits. As stated above, the special weight of the medical evidence, as accorded to
Dr. Elkins’ opinion, establishes that appellant had no continuing residuals or disability due to her
accepted September 28, 2011 employment injury and can return to her preinjury position.
Appellant failed to submit rationalized medical evidence sufficient to establish a medical condition
or disability after May 15, 2013 causally related to her September 28, 2011 accepted left elbow
condition. She, therefore, failed to meet her burden of proof.
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 continuing
employment-related condition or disability after May 15, 2013.
ORDER
IT IS HEREBY ORDERED THAT the October 13, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 26, 2018
Washington, DC

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

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

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

19

See Melvina Jackson, 38 ECAB 443 (1987).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.W., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. COAST GUARD, Baltimore, MD, Employer
__________________________________________

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

Docket No. 13-39
Issued: February 7, 2013

Case Submitted on the Record

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

JURISDICTION
On October 5, 2012 appellant filed a timely appeal from a September 11, 2012 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 schedule award decision.
ISSUE
The issue is whether appellant is entitled to a schedule award for a permanent impairment
of the right upper extremity causally related to his accepted employment injury.
FACTUAL HISTORY
This case has previously been before the Board. In a decision dated August 15, 2008, the
Board affirmed an October 26, 2007 decision denying appellant’s request to reopen his case for

1

5 U.S.C. § 8101 et seq.

further review of the merits under 5 U.S.C. § 8128.2 The facts and circumstances as set forth in
the prior decision are hereby incorporated by reference. The facts relevant to the instant appeal
will be set forth.
On December 25, 2006 appellant received treatment at the emergency room for right
shoulder and elbow pain after a fall. In a report dated January 8, 2007, Dr. Michael A.
Franchetti, a Board-certified orthopedic surgeon, found that appellant experienced “persistent
shoulder and elbow pain on the right side.” He diagnosed a right shoulder sprain and strain, a
rotator cuff injury and right elbow sprain. Dr. Franchetti noted that a magnetic resonance
imaging (MRI) scan study of the right shoulder showed degenerative changes and rotator cuff
tendinitis and tendinosis.
By letter dated January 22, 2007, appellant related that on December 25, 2006 his knees
gave out while he was walking down stairs at his home. He fell, injuring his right elbow and
shoulder. Appellant asserted that the fall was a consequential injury due to prior work injuries
on September 14, 1999 and January 14, 2000.
In a progress reports dated February 5, 2007, Dr. Franchetti noted that appellant’s right
shoulder pain had improved following physical therapy. In a progress report dated March 5,
2007, he listed findings on examination and diagnosed a right shoulder sprain, a rotator cuff
injury and right elbow sprain. Dr. Franchetti stated, “The above are related to his knees giving
way from his previous work injuries.” In an April 16, 2007 report, he indicated that appellant’s
right shoulder and elbow sprain and rotator cuff injury resulted from his knees giving out from a
prior injury on January 14, 2000.
In a report dated November 19, 2007, Dr. Franchetti opined that appellant’s right elbow
injury had resolved but that he continued to experience right shoulder pain with repetitive use or
exertion. He provided range of motion measurements for the right shoulder. Dr. Franchetti
diagnosed a chronic rotator cuff sprain/strain and rotator cuff injury due to the January 2000
employment injury. He stated, “As previously delineated, I feel to within a reasonable degree of
medical certainty and probability that [appellant’s] permanent right shoulder injury is directly
related to [the] January 14, 2000 injury due to his injured knee giving way due to the work injury
of that date.” Dr. Franchetti opined that appellant had a 34 percent impairment of the right
shoulder.
On December 17, 2007 appellant filed a claim for a schedule award. By letter dated
January 25, 2008, OWCP noted that he was claiming a schedule award based on a consequential
2

Docket No. 08-331 (issued August 15, 2008); petition for recon. denied, Docket No. 08-331 (issued
May 5, 2009). OWCP accepted that appellant sustained left shoulder strain and bilateral knee sprain due to a
January 14, 2000 work injury. Appellant had a prior injury to his leg on September 14, 1992. OWCP granted him
schedule awards for a 32 percent permanent impairment of the left lower extremity and a 15 percent permanent
impairment of the right lower extremity. By decision dated June 8, 2001, it granted appellant a schedule award for a
nine percent permanent impairment of the left upper extremity. On June 27, 2003 OWCP granted him a schedule
award for an additional 25 percent permanent impairment of the left upper extremity. In decisions dated March 23,
2004 and February 10, 2005, it denied modification of its June 27, 2003 decision. By decision dated October 26,
2007, OWCP denied appellant’s request for reconsideration of the June 27, 2003 decision as the evidence submitted
was insufficient to warrant reopening the case for further merit review.

2

right shoulder injury. It requested that appellant submit rationalized medical evidence
addressing the causal relationship between the work injury and the December 25, 2006 incident
and resulting right shoulder condition. OWCP further requested that he explain in detail the
circumstances surrounding his injury on December 25, 2006.
On April 26, 2008 an OWCP medical adviser reviewed the case record and advised that
appellant had no ratable impairment of the right upper extremity as there were no diagnostic
studies showing a rotator cuff injury.
By decision dated May 16, 2008, OWCP denied appellant’s request for a schedule award
for the right upper extremity. It found that the evidence was insufficient to show a permanent
impairment of the right upper extremity.
On May 23, 2008 appellant requested reconsideration of the May 16, 2008 decision. He
argued that Dr. Franchetti found a right upper extremity impairment and rotator cuff tendinitis
based on a January 4, 2007 MRI scan study.
On September 12, 2011 appellant again requested reconsideration. He argued that he
sustained a consequential injury to his right shoulder on December 25, 2006 and noted that he
had described the injury in his January 22, 2007 letter. Appellant reviewed the medical evidence
submitted from Dr. Franchetti and the actions taken by OWCP. He contended that OWCP failed
to properly develop the medical evidence.
In a decision dated September 23, 2011, OWCP denied appellant’s request for
reconsideration after finding that it was untimely filed and did not demonstrate clear evidence of
error. Appellant appealed to the Board. In an order dated August 15, 2012, the Board found that
he had timely requested reconsideration and remanded the case for OWCP to apply the standard
for timely reconsideration requests set forth at 20 C.F.R. § 10.606(b)(2).3
By decision dated September 11, 2012, OWCP denied modification of its May 16, 2008
decision. It found that the medical evidence was insufficient to show that he sustained a
condition of the right upper extremity due to his January 14, 2000 employment injury.
On appeal appellant argued that OWCP did not address the evidence he submitted in
September 2011. He maintained that OWCP erred in failing to consider whether he sustained a
consequential injury.
LEGAL PRECEDENT
A schedule award can be paid only for a condition related to an employment injury. The
claimant has the burden of proving that the condition for which a schedule award is sought is
causally related to his or her employment.4 The evidence generally required to establish causal
relationship is rationalized medical opinion evidence. The claimant must submit a rationalized
3

Order Remanding Case, Docket No. 12-701 (issued August 15, 2012).

4

See Veronica Williams, 56 ECAB 367 (2005); Annette M. Dent, 44 ECAB 403 (1993).

3

medical opinion that supports a causal connection between his current condition and the
employment injury.5 The medical opinion must be based on a complete factual and medical
background with an accurate history of the claimant’s employment injury and must explain from
a medical perspective how the current condition is related to the injury.6
The general rule respecting consequential injuries is that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause, which is attributable to the employee’s own intentional conduct.
The subsequent injury is compensable if it is the direct and natural result of a compensable
primary injury. With respect to consequential injuries, the Board has stated that, where an injury
is sustained as a consequence of an impairment residual to an employment injury, the new or
second injury, even though not related to employment, is deemed, because of the chain of
causation to arise out of and in the course of employment and is compensable.7 A claimant bears
the burden of proof to establish a claim for a consequential injury through the submission of
rationalized medical evidence.8
ANALYSIS
OWCP accepted that appellant sustained left shoulder strain and bilateral knee strain as a
result of a January 14, 2000 employment injury. On December 17, 2007 appellant filed a claim
for a schedule award for the right upper extremity. He maintained that on December 25, 2006 he
sustained a consequential injury to his right shoulder. Appellant related that he fell down and
hurt his right shoulder and right elbow when his knees gave way while he was walking up the
stairs at home. He attributed the failure of his knees to prior employment injuries, including his
injury of January 14, 2000. As discussed, appellant has the burden to establish that he sustained
a consequential injury to his right shoulder entitling him to a schedule award.9 He must submit
rationalized medical evidence establishing a diagnosed condition as a direct and natural result of
the accepted work injury.10
On December 25, 2006 appellant received treatment for pain in his right shoulder and
elbow after he fell. On January 8 and March 5, 2007 Dr. Franchetti diagnosed a right shoulder
sprain and strain, a rotator cuff injury and right elbow sprain. He found that an MRI scan study
showed degeneration of the right shoulder and rotator cuff tendinitis. Dr. Franchetti, however,
did not address the cause of the diagnosed condition. Medical evidence that does not offer any

5

Manuel Gill, 52 ECAB 282 (2001).

6

Yvonne R. McGinnis, 50 ECAB 272 (1999).

7

See S.S., 59 ECAB 315 (2008); Debra L. Dillworth, 57 ECAB 516 (2006).

8

Charles W. Downey, 54 ECAB 421 (2003).

9

Id.

10

See S.S., supra note 7.

4

opinion regarding the cause of an employee’s condition is of diminished probative value on the
issue of causal relationship.11
In a progress report dated March 5, 2007, Dr. Franchetti attributed appellant’s right
shoulder sprain, rotator cuff injury and right elbow sprain to his knees giving way due to prior
work injuries. On April 16, 2007 he indicated that appellant’s knees gave out due to an
employment injury on January 14, 2000. Dr. Franchetti did not discuss the history of the
January 2000 employment injury or provide any rationale for his causation finding. Medical
conclusions unsupported by rationale are of diminished probative value.12
On November 19, 2007 Dr. Franchetti evaluated appellant’s continued right shoulder
symptoms and measured range of motion. He determined that he had a 34 percent permanent
impairment of the right shoulder. Dr. Franchetti found that appellant’s right shoulder injury
resulted from his January 14, 2000 employment injury as the January 2000 injury caused his
knee to give out. He did not, however, provide a detailed medical history discussing the
January 14, 2000 work injury or explain how appellant’s knees giving way on December 25,
2006 resulted from the accepted employment injury. Causal relationship must be supported with
affirmative medical rationale and be based upon a complete and accurate medical and factual
background.13
As the weight of the evidence fails to establish that appellant sustained a consequential
injury to his right upper extremity, he is not entitled to a schedule award.
On appeal appellant argued that OWCP did not discuss all the evidence and did not
consider whether he sustained a consequential injury. OWCP, however, reviewed the medical
evidence from Dr. Franchetti and found that it was insufficient to show that he sustained an
employment-related right upper extremity injury.
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 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant is not entitled to a schedule award for a permanent
impairment of the right upper extremity causally related to his accepted employment injury.

11

See A.D. 58 ECAB 149 (2006); Conard Hightower, 54 ECAB 796 (2003).

12

See Jacquelyn L. Oliver, 48 ECAB 232 (1996).

13

See A.D., supra note 11.

5

ORDER
IT IS HEREBY ORDERED THAT the September 11, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 7, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., widow of J.B., Appellant
and
DEPARTMENT OF THE NAVY, PACIFIC
FLEET, Bremerton, WA, Employer
__________________________________________

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

Docket No. 08-406
Issued: September 2, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 2, 2007 appellant filed a timely appeal from the April 23, 2007 decision of
the Office of Workers’ Compensation Programs denying her request for reconsideration as
untimely and not establishing clear evidence of error. Because more than one year elapsed
between the most recent merit decision of December 3, 2003 and the filing of this appeal, the
Board lacks jurisdiction to review the merits of the claim under 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration as
it was untimely and did not establish clear evidence of error.
FACTUAL HISTORY
On March 24, 2003 appellant filed a claim for survivor benefits, Form CA-5, contending
that the employee’s death on July 4, 2002 was caused by stress at work which precipitated an
acute myocardial infarction.1 The employee worked as a motor vehicle operator. A copy of a
1

At the time of death, the employee was traveling as a passenger in a car with his wife and uncle in California.

July 9, 2002 death certificate was submitted to the record and listed the cause of death as
hypertension and atherosclerotic heart disease.
On June 3, 2003 the Office requested that appellant’s submit additional evidence in
support of her claim.
In a June 20, 2003 statement, appellant attributed the employee’s death to a failure on the
part of the employing establishment to honor his work restriction when it authorized use of a
motor car for travel from Bremerton, Washington to Emeryville, California.2
On July 8, 2003 Dr. Timothy R. Symonds, an attending family practitioner, reported that
the employee had died of a massive heart attack on July 4, 2002 while driving home from a
vacation.3 He noted that the employee had a history of diabetes mellitus and hypertension as
well as long-standing tobacco use. In light of appellant’s diagnosed conditions, Dr. Symonds
stated that he was unable to connect the employee’s death to any work-related exposures.4
In an undated physical limitation form, Dr. Edgar T. Briones, an attending physician,
noted that the employee was restricted from driving a car from May 3 to November 1, 2002.
In a December 3, 2003 decision, the Office denied appellant’s claim for survivor benefits
finding that the medical evidence did not establish that the employee’s death on July 4, 2002 was
causally related to his federal employment.
On January 31, 2006 appellant requested reconsideration. She submitted copies of
several medical surveillance examinations performed during 2001 and 2002, together with an
October 20, 1997 notification of abnormal physical examination. Appellant again contended that
the employee’s supervisors had ignored his physical restrictions and he had been required to
operate a motor vehicle a month prior to his death.
In a March 15, 2006 decision, the Office denied reconsideration finding that the request
was untimely filed and failed to establish clear evidence of error.
On January 23, 2007 appellant again requested reconsideration of the denial of her claim.
She addressed her January 31, 2006 request, contending that she had not received any decision.
On February 2, 2007 the Office forwarded a copy of the March 15, 2006 decision to appellant.
On March 9, 2007 appellant requested reconsideration. She again contended that the
employee had been issued travel orders by his supervisors after being restricted from driving.
2

The record reflects that on June 4, 2002 the employee was authorized to travel between Washington and
California. He departed on June 6, 2002 and returned on June 9, 2002.
3

A coroner’s investigation of July 4, 2002 noted that the employee was traveling north on Interstate 5 with his
wife and uncle. They had just eaten and were proceeding on their way to Washington when the employee started
coughing and became short of breath. His uncle called for paramedics, who responded and transferred the employee
to their vehicle. While on route to a local hospital, the deceased coded and the paramedics were unable to
resuscitate him.
4

The record contains several treatment records of Dr. Symonds from 1999.

2

Appellant argued that the Office had not reviewed all the evidence submitted in support of her
claim.
In an April 23, 2007 decision, the Office found that appellant’s request for
reconsideration was untimely filed and failed to establish clear evidence of error in the denial of
her claim for survivor benefits.
LEGAL PRECEDENT
The Office, through regulation, has imposed limitations on the exercise of its
discretionary authority under section 8128(a) of the Federal Employees’ Compensation Act.5
The Office will not review a decision denying or terminating a benefit unless the application for
review is filed within one year of the date of that decision.6 When an application for review is
untimely, the Office undertakes a limited review to determine whether the application presents
clear evidence that the Office’s final merit decision was in error.7 The Office procedures state
that the Office will reopen a claimant’s case for merit review, notwithstanding the one-year filing
limitation set forth in 20 C.F.R. § 10.607, if the claimant’s application for review establishes
clear evidence of error on the part of the Office.8 In this regard, the Office will limit its focus to
a review of how the newly submitted evidence bears on the prior evidence of record.9
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office. The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error. Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.10 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion. This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office. To show clear
evidence of error, the evidence submitted must be of sufficient probative value to prima facie
shift the weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of the Office’s decision.11 The Board makes an independent determination of

5

5 U.S.C. § 8128(a).

6

See 20 C.F.R. § 10.607; Alan G. Williams, 52 ECAB 180 (2000).

7

See Adell Allen (Melvin L. Allen), 55 ECAB 390 (2004); Valetta C. Coleman, 48 ECAB 367 (1997).

8

20 C.F.R. § 10.607(b) provides: “[The Office] will consider an untimely application for reconsideration only if
the application demonstrates clear evidence of error on the part of [the Office] in its most recent decision. The
application must establish, on its face, that such decision was erroneous.” See Alberta Dukes, 56 ECAB 247 (2005);
Gladys Mercado, 52 ECAB 255 (2001).
9

See Jack D. Johnson, 57 ECAB 593 (2006); Nelson T. Thompson, 43 ECAB 919 (1992).

10

Robert F. Stone, 57 ECAB 292 (2005); Leon D. Modrowski, 55 ECAB 196 (2004); Darletha Coleman, 55
ECAB 143 (2003).
11

Id.

3

whether a claimant has submitted evidence of clear error on the part of the Office such that it
abused its discretion in denying merit review in the face of such evidence.12
ANALYSIS
On December 3, 2003 the Office issued the most recent merit decision denying
appellant’s claim for survivor benefits. Her request for reconsideration was dated March 9,
2007, more than one year after the December 3, 2003 merit decision. Because her request was
not timely filed within one year of the Office’s most recent merit decision, she must establish
clear evidence of error in the denial of her claim.
The Office denied appellant’s claim for survivor benefits on the basis that it was not
established that the employee’s death was causally related to his federal employment. To
establish clear evidence of error, appellant must submit evidence relevant to this issue which
establishes that the Office clearly erred in the denial of her claim. This she has failed to do. On
reconsideration, appellant noted that the employee had been disqualified from driving beginning
May 3, 2002; however, he received travel orders authorizing a trip to California which was taken
June 6 to 9, 2002. Appellant noted that this was approximately one month prior to the
employee’s death on July 4, 2002, apparently arguing that this contributed to his death from the
acute myocardial infarction. The record before the Office at the time of the December 3, 2003
merit decision included the July 8, 2003 report of the employee’s attending physician,
Dr. Symonds. He noted that the employee had significant risk factors for heart disease, including
hypertension, diabetes mellitus and long-standing tobacco use. Based on these factors,
Dr. Symonds stated that he was unable to connect the employee’s death to any work-related
factors. Notwithstanding appellant’s contentions, the issue of whether an injury or death is
causally related to factors of federal employment is fundamentally a medical question.13 At the
time the Office denied her claim, the record failed to contain medical opinion relating the
employee’s death to any aspect of his federal employment. Moreover, in support of her request
for review, appellant did not submit any additional evidence relevant to the underlying issue in
this case. Her argument does not raise a substantial question as to the correctness of the Office’s
decision denying her claim or prima facie shift the weight of the evidence in her favor.

12

See Joseph R. Santos, 57 ECAB 554 (2006); John Crawford, 52 ECAB 395 (2001).

13

See, e.g., Sandra D. Pruitt, 57 ECAB 126 (2005); Beverly R. Jones, 55 ECAB 411 (2004).

4

CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration as
it was untimely and failed to establish clear evidence of error in the denial of her claim for
survivor benefits.
ORDER
IT IS HEREBY ORDERED THAT the April 23, 2007 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: September 2, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.A., Appellant
and
U.S. POSTAL SERVICE, SCHUYLKILL
STATION POST OFFICE, Philadelphia, PA,
Employer
__________________________________________

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

Docket No. 07-540
Issued: November 26, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 19, 2006 appellant, through her attorney, filed a timely appeal from the
July 17, 2006 merit decision of the Office of Workers’ Compensation Programs awarding
appellant a schedule award based on a two percent impairment of the left upper extremity.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant has established that she has more than a two percent
impairment of her left upper extremity, for which she received a schedule award.
FACTUAL HISTORY
On February 11, 2002 appellant, then a 36-year-old letter carrier, filed an occupational
disease claim alleging that as a result of carrying mail she aggravated a preexisting condition and

sustained left lateral epicondylitis. By letter dated January 20, 2004, the Office accepted
appellant’s claim for aggravation of left lateral epicondylitis.
In a medical report dated January 13, 2005, Dr. Nicholas Diamond, an osteopath,
diagnosed appellant with: (1) post-traumatic left elbow lateral epicondylitis/tennis elbow;
(2) status post left elbow lateral epicondylectomy/tennis elbow release; (3) left wrist
tenosynovitis; and (4) left wrist dorsal ganglion cyst. He found that appellant’s work-related
injury was “the competent producing factor for her subjective and objective findings.”
Dr. Diamond rated appellant’s impairment pursuant to the American Medical Association,
Guides to the Evaluation of Permanent Impairment as follows:
“Range of motion deficit left elbow pronation

=

1 percent1

“Range of motion deficit left elbow extension

=

1 percent2
2 percent

“Left elbow resection arthroplasty radial head

=

10 percent3

“Left grip strength deficit

=

20 percent4

“Combined left upper extremity

=

29 percent

“For the pain-related impairment

=

3 percent5

“Total left upper extremity

=

32 percent.

On May 2, 2005 appellant filed a claim for a schedule award.
By letter dated May 31, 2005, the Office referred appellant to Dr. Robert Allen Smith, a
Board-certified orthopedic surgeon, for a second opinion. In a medical report dated June 9,
2005, Dr. Smith concluded that appellant had a zero percent impairment of her left upper
extremity based on the A.M.A., Guides. He noted that there was “no strength loss, no range of
motion loss, no neurologic findings, no atrophy and no signs of joint derangement.”
By letter dated August 11, 2005, the Office referred appellant for an appointment with
Dr. Walter W. Dearolf, III, a Board-certified orthopedic surgeon, to resolve the conflict between
appellant’s physician, Dr. Diamond, and the second opinion physician, Dr. Smith, with regard to
the extent of impairment to appellant’s left upper extremity. In a medical report dated
1

A.M.A., Guides 474, Figure 16-37.

2

Id. at 472, Figure 16-34.

3

Id. at 506, Table 16-27.

4

Id. at 509, Table 16-34.

5

Id. at 574, Table 18-1.

2

September 19, 2005, Dr. Dearolf agreed with Dr. Smith that Dr. Diamond misstated the
procedure performed on appellant in that he documented a left elbow resection arthroplasty of
the radial head and gave her a 10 [percent] deficit for this. He noted that appellant did not have a
resection arthroplasty but rather, had a lateral epicondyle release and epicondylectomy and that,
therefore, this would negate the 10 percent deficit he attributed to that test. Dr. Dearolf noted
that appellant did not, on examination, show signs of carpal tunnel syndrome and that a magnetic
resonance imaging (MRI) scan of December 13, 2003 revealed no rotator cuff tear and a small
joint effusion. He noted that appellant’s lateral epicondylitis had resolved and that her symptoms
in the left upper extremity were unrelated to lateral epicondylitis. Dr. Dearolf concluded that
appellant does have residual weakness of grip strength and continued symptoms about the left
shoulder, but that her A.M.A., Guides impairment rating would be zero as he saw no evidence of
any mention of the shoulder being an accepted injury.
By memorandum dated October 14, 2005, the Office asked the Office medical adviser to
determine whether appellant had a left upper extremity impairment due to the accepted
condition. In a report dated October 14, 2005, the Office medical adviser opined:
“Dr. Diamond[,] in his letter of [January 13, 2005,] incorrectly stated that there
was a left elbow resection arthroplasty of the radial head resulting in a 10 percent
impairment. This is incorrect because resection of the radial head did not occur.
Instead[,] what occurred was resection of the lateral epicondyle.
“In addition, Dr. Diamond states that there is a two percent schedule award based
on deficit of supination pronation. Both Dr. Smith and Dr. Dearolf agree that
there is full range of motion with no range of motion deficit. Dr. Smith and
Dr. Dearolf both conclude that the schedule award should be zero percent.
“In reading the history section of each of the three reports, in Dr. Smith’s report[,]
it is noted that appellant takes Motrin or Advil for elbow, shoulder and wrist
discomfort and in Dr. Dearolf’s report[,] he notes that [appellant] still gets
tingling in her fingers and pain which is in an area more near her shoulders,
although she has had some elbow pain, as well. Dr. Diamond notes that
[appellant] has ongoing pain. In [his] report, [Dr. Diamond] suggests an award of
three percent for pain-related impairment. This is based on the [A.M.A., Guides],
page 574, [F]igure 18-1. Three percent would be the maximum award for pain.
However, it does not appear that [appellant] has a significant amount of pain
around her elbow, but she does have some.
“It is for this reason that I would recommend that she be awarded a two percent
[s]chedule [a]ward left upper extremity impairment based upon pain alone, page
574, [F]igure 18-1.
By decision dated January 12, 2006, the Office issued a schedule award for a two percent
impairment of the left upper extremity.
On January 18, 2006 appellant requested a hearing before an Office hearing
representative which was held on May 26, 2006.

3

In a decision dated July 17, 2006, the hearing representative affirmed the Office’s
decision of January 12, 2006.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act6 and its
implementing regulations7 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.8
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.9
ANALYSIS
Appellant’s claim was accepted for aggravation of left lateral epicondylitis. Due to the
conflict between her physician, Dr. Diamond, and the second opinion physician, Dr. Smith, with
regard to the extent of appellant’s impairment to her left upper extremity, the Office referred
appellant to Dr. Dearolf for an impartial medical examination. Dr. Dearolf rejected the
conclusion of appellant’s physician that she had sustained a 32 percent impairment to her left
upper extremity. Initially, he properly noted that Dr. Diamond erroneously indicated that
appellant had a left elbow resection arthroplasty of the radial head for which he suggested a 10
percent impairment as a result thereof. However, as properly noted by Dr. Smith, Dr. Dearolf
and the Office medical adviser, appellant did not have a resection arthroplasty but rather, had a
lateral epicondyle release and epicondylectomy. Accordingly, appellant was not entitled to a 10
percent rating for this operation. Although Dr. Diamond found that she had a two percent
impairment for range of motion deficit in the left elbow, Dr. Dearolf found that appellant had full
range of motion of her elbow. As the opinion of the impartial medical specialist is entitled to
special weight, the Board finds that appellant was not entitled to an award based on limited range
of motion of the elbow. Dr. Diamond found that appellant had a left grip strength deficit of 20
percent. The Office medical adviser properly noted that Dr. Diamond should not have used grip
strength in combination with range of motion pursuant to the A.M.A., Guides.10 Furthermore,
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

See id.; Jacqueline Harris, 54 ECAB 139 (2002).

9

Gloria J. Godfrey, 52 ECAB 486 (2001).

10

A.M.A., Guides 526, Table 17-2.

4

the impartial medical examiner noted no award based on grip strength. Accordingly, the Board
finds that appellant is not entitled to an impairment rating based on grip strength. With regard to
pain, Dr. Diamond would have allowed a three percent impairment for pain. Dr. Smith
commented that appellant’s reports of pain were based entirely on subjective factors. The
impartial medical examiner did not note an impairment due to pain, but did note that appellant
experiences tingling in her fingers as well as some elbow pain. The Office medical adviser
reviewed these reports and determined that appellant had some pain around her elbows and
recommended that appellant be issued a schedule award for two percent of the left upper
extremity based on pain alone pursuant to the A.M.A., Guides.11 The Board finds that the Office
medical adviser’s opinion that appellant had no more than a two percent impairment of her left
upper extremity based on the A.M.A., Guides is supported by the evidence of record and, in
particular, the opinion of the impartial medical examiner who was retained to resolve the conflict
in the evidence.
Appellant’s attorney’s argument that Dr. Dearolf’s opinion is flawed because he did not
take measurements with regard to, inter alia, appellant’s range of motion is without merit as
Dr. Dearolf found that appellant had full range of motion. Also, Dr. Dearolf found that
appellant’s lateral epicondylitis had resolved. Appellant’s attorney also asserted that there was
no proof that Dr. Dearolf, the impartial medical examiner, was selected properly from the
physician director system pursuant to section 3.500.7 of the procedure manual.12 However, he
submitted no evidence to support his assertion that any particular aspect of the selection created
bias. The Board has held that an impartial medical specialist properly selected under the Office’s
rotational procedures will be presumed unbiased and the party seeking disqualification bears the
substantial burden of proving otherwise; mere allegations are insufficient to establish bias.13
Appellant’s mere allegation that Dr. Dearolf was not properly selected does not establish the fact.
Therefore, the Board finds this argument to be without merit.
CONCLUSION
The Board finds that appellant has not established that she has more than two percent
impairment of her left upper extremity, for which she received a schedule award.

11

Id. at 574, Figure 18-1.

12

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.7
(September 1995).
13

See William Fidurski, 54 ECAB 146 (2002).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 17, 2006 is affirmed.
Issued: November 26, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.E., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMIMISTRATION MEDICAL
CENTER, Wilkes-Bare, PA, Employer
__________________________________________

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

Docket No. 06-2163
Issued: June 6, 2007

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 September 26, 2006 appellant filed a timely appeal from a merit decision of the
Office of Workers’ Compensation Programs dated April 3, 2006, in which an Office hearing
representative affirmed, as modified, the denial of appellant’s recurrence of disability claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she had disability,
beginning April 11, 2002, causally related to her accepted emotional condition.
FACTUAL HISTORY
On April 15, 2002 appellant, then a 34-year-old pharmacy technician, filed an
occupational disease claim alleging that she suffered from severe panic disorder, anxiety and
severe depression in the performance of duty. She alleged that her condition was related to
various factors of her employment, which included stress due to the pace of the job, being

overworked due to understaffing and deadlines. Appellant alleged that she first realized that the
condition was related to her employment on February 18, 2002. She stopped work on
March 28, 2002.1 Appellant was terminated by the employing establishment on April 19, 2002.2
On April 23, 2002 the employing establishment controverted the claim and alleged that
appellant related that her condition was not employment related.
In an April 25, 2002 attending physician’s report, Dr. Matthew Berger, Board-certified in
internal medicine, advised that appellant related that on February 12, 2002 she was at work when
she developed severe anxiety and panic attacks, tremors, palpations, shortness of breath and
depression. He checked the box “no” in response to whether appellant had a preexisting
condition and in response to whether he believed that appellant’s condition was caused or
aggravated by an employment activity. Dr. Berger diagnosed panic disorder and depression and
opined that appellant was totally disabled from March 29, 2002.
In a June 4, 2002 report, Dr. Bruce E. Jacobs, Board-certified in family medicine, noted
that on February 12, 2002 appellant was found to be anxious and depressed. He indicated that
she related that the increased stress from her new job, learning new skills and worries about
mistakes with her medication and the additional pressures of being quick and efficient had made
her worse. Dr. Jacobs opined that he was in “full agreement with her that job ‘pressures’ could
have contributed to an acute exacerbation of preexisting anxiety and depression and over the
course of multiple further visits to the present, that she might need to find other, less stressful
types of employment.” He opined that appellant’s symptoms from February 12 through
April 10, 2002 became bad enough that she needed to be out of work to receive treatment from
Dr. Berger.
In a June 6, 2002 disability certificate, Dr. Berger opined that appellant was under his
care since April 2, 2002 for major depression and opined that she was exhibiting symptoms that
prohibited her from returning to work.
By decision dated January 16, 2003, the Office denied appellant’s claim for
compensation on the basis that the medical evidence of record failed to establish a causal
relationship between the claimed emotional condition and factors of her federal employment.3
On February 13, 2003 appellant requested a hearing, which was held on
November 13, 2003.

1

In an October 16, 2002 memorandum, the employing establishment indicated that appellant was not at work
since February 28, 2002.
2

The record reflects that appellant began her employment with the employing establishment on
December 16, 2001. She received a notice of removal on April 8, 2002.
3

The Office accepted that appellant performed the duties of a pharmacy technician from December 16, 2001 until
April 12, 2002; that the section of the employing establishment in which appellant was employed was understaffed
during this time period; and that she was required to prepare and deliver medications to nurses within a prescribed
period of time.

2

In a February 13, 2003 report, Dr. Jacobs noted appellant’s history of injury and
treatment. He also advised that appellant related that she was fired from the employing
establishment on April 16, 2002 and that “this made her even more depressed and anxious.”
Dr. Jacobs also indicated that Dr. Berger switched medications and opined that the “severity of
the symptoms warranted [appellant] not performing any kind of work [un]til at least
July 1, 2002.” Dr. Jacobs noted that he had seen appellant seven more times for the same
symptoms but that Dr. Berger was predominantly handling her case. In addition, he advised that
on October 14, 2002 appellant was admitted to the hospital for a severe major depressive episode
and opined that appellant’s previous employment contributed to her depression and anxiety.
Dr. Berger recommended that appellant “should be granted disability at present until her
depression and anxiety symptoms improve significantly to the point where she can perform
useful work.”
In a report dated February 21, 2003, Dr. Berger advised that appellant was suffering from
symptoms of severe panic disorder and manifesting the symptoms of severe panic disorder. He
noted that these included shortness of breath, heart palpitations, diaphoresis, panic, lightheadedness, dizziness, shaking spells and excessive worrying. Dr. Berger indicated that, after
these attacks, appellant would become sleepy, sedated and unable to function. He opined that
appellant developed these symptoms after a work-related stress. Dr. Berger noted that appellant
was feeling “burned out” at work and overwhelmed and that “[e]ven simple tasks had become
overwhelming and she felt that she was no longer able to function because of the stress of the
environment at work.” He noted that her problems at work included severe staffing shortages,
personnel problems and equipment failure, which made her position even “more anxiety
provoking.” Dr. Berger also explained that appellant had no previous psychiatric history and
opined that the work-related stress lead to her current panic disorder and that she continued to be
under his care and unable to function. Furthermore, he noted that he had made a typographical
error on his April 18, 20024 report, when he checked the box that appellant’s condition was not
caused by her employment activity and added that it should have been marked “yes.”
In a December 29, 2003 statement, appellant clarified that her illness actually began on
February 12, 2002 and further described those factors of her employment which she believed
contributed to her condition. She alleged that she never received assistance from the supervising
pharmacist, although she did receive help from other pharmacists. Appellant explained that
scanning was comprised not only of scanning bar codes, but that it included making telephone
calls to patients and working the window. She also alleged that working mail order was very
stressful as she did not know where things were and she was not familiar with hospital items.
Appellant also alleged that the machine in the pharmacy was broken and it made her job harder.
By decision dated March 26, 2004, the Office hearing representative vacated the Office’s
January 16, 2003 decision denying appellant’s claim. The Office hearing representative found
that appellant had established a compensable factor related to her assigned duties and instructed
the Office to refer appellant for a second opinion examination.

4

It appears that he is referring to the April 25, 2002 report.

3

By decision dated June 1, 2004, the Office reissued its decision of January 16, 2003. The
Office explained that it attempted to receive the hospital records; however, it did not receive a
response to its request for the hospital records from appellant or her representative.
On June 7, 2004 appellant’s representative requested a hearing, which was held on
March 30, 2005.
The Office received several records related to a November 20, 2002 hospital visit. They
included a November 20, 2002 hospital record from Dr. Joseph Szustak, an osteopath, who
determined that appellant had a normal examination. In a separate report also dated
November 20, 2002, Dr. Berger diagnosed appellant with major depression, recurrent and panic
disorder.
By decision dated May 18, 2005, the Office vacated the June 1, 2004 decision and
referred appellant for a second opinion with Dr. Parcshkumar Solgama, a Board-certified
psychiatrist.
In a July 26, 2005 report, Dr. Solgama noted appellant’s history of injury and treatment
and opined that appellant’s “emotional condition was not caused but rather aggravated by the
factors of emp1oyment” while working at the employing establishment. He noted that a
previous history as far back as July 14, 2000, of anxiety related symptoms and noted that this
was documented in a March 7, 2001 treatment note in which appellant had complaints of
recurrent anxiety and depression, prior to the event in question. Dr. Solgama opined that
appellant’s symptoms of anxiety and depression existed prior to the event in question during her
work at the employing establishment and that the work stressors contributed to the increase of
symptoms. He opined that appellant’s “preexisting condition was aggravated due to the stress at
work during her employment at the employing establishment.” Dr. Solgama further noted that
appellant was not working at the employing establishment since April 12, 2002 and the workrelated stress was no longer a factor in aggravating her condition.
On September 8, 2005 the Office accepted the claim for temporary aggravation of
depression resolved.
In an October 4, 2005 attending physicians report, Dr. Berger advised that appellant was
working as a pharmacy technician and that she had panic, anxiety and depression due to the job
stress. He checked the box “yes” in response to whether appellant had a preexisting condition.
Dr. Berger also checked the box “yes” in response to whether he believed that appellant’s
condition was caused or aggravated by an employment activity and filled in that appellant’s
underlying “affective disorder was exacerbated by job stress.” He diagnosed depressive disorder
and panic disorder and opined that appellant was totally disabled from February 12, 2002 to the
present.
On October 14, 2005 appellant filed a Form CA-7, claiming compensation for wage loss
for the period February 12, 2002 through October 11, 2005.
By decision dated October 20, 2005, the Office denied appellants claim for
compensation, finding that there was no evidence that appellant was disabled after
February 12, 2002.
4

The Office subsequently received numerous treatment notes from Dr. Berger in which he
diagnosed appellant with ongoing anxiety and depression. They included reports dating from
April 18, 2002 to February 28, 2006. His early reports indicate that appellant’s condition was
related to situation stressors; however, in his October 8, 2005 report, Dr. Berger opined that
appellant’s condition was stable and unrelated to situational stressors.
On October 27, 2005 appellant’s representative requested a hearing, which was held on
February 8, 2006. During the hearing, appellant’s representative alleged that the evidence of
record supported that appellant was disabled due to the aggravation of her depression at least for
a temporary period. Furthermore, he alleged that the questions to the second opinion physician
were leading.
By decision dated April 3, 2006, the Office hearing representative reversed the Office’s
October 20, 2005 decision with respect to the denial of the period February 12 to April 10, 2002
and affirmed the denial of the period April 11, 2002 to the present.
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act5 has the
burden of proof to establish the essential elements of her claim by the weight of the evidence,6
including that she sustained an injury in the performance of duty and that any specific condition
or disability for work for which she claims compensation is causally related to that employment
injury.7
As used in the Act, the term “disability” means incapacity, because of an employment
injury, to earn the wages the employee was receiving at the time of injury.8 When the medical
evidence establishes that the residuals of an employment injury are such that, from a medical
standpoint, they prevent the employee from continuing in her employment, she is entitled to
compensation for any loss of wage-earning capacity resulting from such incapacity.9
Whether a particular injury causes an employee to become disabled for work and the
duration of that disability, are medical issues that must be proved by a preponderance of the
reliable, probative and substantial evidence.10 Generally, findings on examination are needed to
justify a physician’s opinion that an employee is disabled for work.11 The Board has held that
5

5 U.S.C. §§ 8101-8193.

6

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

7

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

8

Richard T. DeVito, 39 ECAB 668 (1988); Frazier V. Nichol, 37 ECAB 528 (1986); Elden H. Tietze, 2 ECAB
38 (1948); 20 C.F.R. § 10.5(f).
9

Bobby W. Hornbuckle, 38 ECAB 626 (1987).

10

Edward H. Horton, 41 ECAB 301 (1989).

11

See Dean E. Pierce, 40 ECAB 1249 (1989); Paul D. Weiss, 36 ECAB 720 (1985).

5

when a physician’s statements regarding an employee’s ability to work consist only of a
repetition of the employee’s complaints that he or she hurt too much to work, without objective
signs of disability being shown, the physician has not presented a medical opinion on the issue of
disability or a basis for payment of compensation.12 While there must be a proven basis for the
pain, pain due to an employment-related condition can be the basis for the payment of
compensation.13 The Board, however, will not require the Office to pay compensation for
disability in the absence of any medical evidence directly addressing the specific dates of
disability for which compensation is claimed. To do so would essentially allow employees to
self-certify their disability and entitlement to compensation.14
When employment factors cause an aggravation of an underlying condition, the employee
is entitled to compensation for the periods of disability related to the aggravation. When the
aggravation is temporary and leaves no permanent residuals, compensation is not payable for
periods after the aggravation has ceased.15
ANALYSIS
On September 8, 2005 the Office accepted appellant’s claim for temporary aggravation of
depression, which had resolved. An Office hearing representative on April 3, 2006 determined
that the evidence supported that appellant was disabled for the period February 12 to
April 10, 2002. However, the Office hearing representative affirmed the Office’s prior denial of
wage-loss compensation for the period beginning April 11, 2002. As noted, appellant bears the
burden of proof in establishing entitlement to such compensation.
In a July 26, 2005 report, Dr. Solgama, a Board-certified psychiatrist and second opinion
physician, noted appellant’s history which included anxiety-related symptoms in July 2000. He
indicated that appellant’s “emotional condition was not caused but rather aggravated by the
factors of employment.” Dr. Solgama opined that appellant’s “preexisting condition was
aggravated due to the stress at work during her employment at the employing establishment.”
He also noted that appellant had not worked at the employing establishment since April 12, 2002
and opined that the work-related stress was no longer a factor in aggravating her condition.
Dr. Solgama provided a rationalized opinion and explained the reasons for his conclusions. The
Board finds that his report supports that appellant no longer had any disability after April 11,
2002 as she was no longer exposed to the work-related stress. The Board also notes that this is
the only report from a psychiatrist, the relevant field in this matter,16 and his report is sufficient
to represent the weight of the evidence.
12

John L. Clark, 32 ECAB 1618 (1981).

13

Barry C. Peterson, 52 ECAB 120 (2000).

14

Fereidoon Kharabi, 52 ECAB 291 (2001).

15

See James L. Hearn, 29 ECAB 278 (1978); see also Raymond W. Behrens, 50 ECAB 221 (1999).

16

See Manohar Singh, 37 ECAB 821 (1986) (the opinions of physicians who have training and knowledge in a
specialized medical field have greater probative value concerning medical questions peculiar to that field than the
opinions of other physicians).

6

Appellant submitted several reports from Dr. Berger, a Board-certified internist, who
advised that appellant was totally disabled. On April 25, 2002 Dr. Berger diagnosed panic
disorder and depression and opined that appellant was totally disabled from March 29, 2002.
However, he did not address why appellant was totally disabled due to residuals of the accepted
employment injury. A claimant, for each period of disability claimed, has the burden of proving
by the preponderance of the reliable, probative and substantial evidence that he or she is disabled
for work as a result of the employment injury.17 In his June 6, 2002 disability certificate,
Dr. Berger found appellant disabled but he did not explain how appellant’s employment
condition caused her disability. In February 13 and 21, 2003 reports, Dr. Berger advised that
appellant had severe panic disorder and manifested symptoms after work-related stress and
opined that appellant was no longer able to function because of the stress of the environment at
work. While he described factors of appellant’s employment, which were considered by the
Office, he did not appear to be aware that appellant stopped work in February 2002 and thus his
opinion that she was being affected by factors of her employment is of limited probative value.
It is well established that medical reports must be based on a complete and accurate factual and
medical background and medical opinions based on an incomplete or inaccurate history are of
little probative value.18 In his October 4, 2005 report, Dr. Berger found appellant disabled and
indicated that she had a preexisting condition. He checked a box “yes” regarding whether
appellant’s condition was caused or aggravated by an employment activity, noting that
appellant’s underlying “affective disorder was exacerbated by job stress.” Dr. Berger’s report,
however, is of little probative value as the Board has held that the checking of a box “yes” on a
form report, without additional explanation or rationale, is insufficient to establish causal
relationship.19 He did not explain the reasoning behind his opinion on causal relationship. Other
treatment notes from Dr. Berger did not address the cause of any disability beginning on or after
April 11, 2002.
In a February 13, 2003 report, Dr. Jacobs, a family practitioner, advised that appellant
related that she was fired from the employing establishment on April 16, 2002 and that “this
made her even more depressed and anxious.” He noted that Dr. Berger switched medications
and opined that the “severity of the symptoms warranted [appellant] not performing any kind of
work [un]til at least [July 1, 2002].” However, Dr. Jacobs did not describe the findings that led
him to conclude that appellant could not perform any type of work until at least July 2002. For
example, he did not describe the symptoms that prevented appellant from performing any type of
work. Dr. Jacobs did not provide objective findings related to the accepted condition that
supported disability and the physician did not otherwise present medical rationale regarding
causal relationship for the period of disability. While Dr. Jacobs advised that being fired from
the employing establishment made appellant even more depressed, this would not relate to
compensable factors of appellant’s employment20 or be a result of an accepted condition.

17

Sandra D. Pruitt, 57 ECAB ___ (Docket No. 05-739, issued October 12, 2005).

18

Douglas M. McQuaid, 52 ECAB 382 (2001).

19

Calvin E. King, 51 ECAB 394 (2000).

20

See Sharon K. Watkins, 45 ECAB 290 (1994).

7

The record also contains several reports which did not address appellant’s alleged period
of disability from April 11, 2002 to the present. For this reason, these reports are not relevant to
the issue of her disability or need for medical treatment for the period April 11, 2002 to the
present and they are consequently of no probative value.21
Appellant also submitted reports from a social worker or therapist; however, these reports
cannot be considered medical evidence. Section 8101(2) of the Act 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 the
applicable state law. Only medical evidence from a physician as defined by the Act will be
accorded probative value. Health care providers such as nurses, acupuncturists, physician’s
assistants and physical therapists are not physicians under the Act. Thus, their opinions on
causal relationship do not constitute rationalized medical opinions and have no weight or
probative value.22
Thus, appellant has not submitted any reasoned medical evidence showing that she was
disabled beginning April 11, 2002 while Dr. Solgama’s well-reasoned report supports that she no
longer had any disability after April 11, 2002. She has not met her burden of proof. On appeal,
appellant’s representative also alleges that the questions posed to Dr. Solgama, were leading.
However, the Board finds that the evidence does not indicate that the Office acted
inappropriately and Dr. Solgama’s report indicates that he relied appropriately on a review of
appellant’s history and findings on examination in forming his opinion.
CONCLUSION
The Board finds that appellant failed to provide rationalized medical evidence
establishing that her claimed disability for the period April 11, 2002 to the present was causally
related to her employment-related psychiatric condition.

21

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

22

Jan A. White, 34 ECAB 515, 518 (1983).

8

ORDER
IT IS HEREBY ORDERD THAT the decision of the Office of Workers’ Compensation
Programs’ hearing representative dated April 3, 2006 is affirmed.
Issued: June 6, 2007
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

9