United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.F., Appellant
and
U.S. POSTAL SERVICE, MOBILE VEHICLE
REPAIR FACILITY, Peoria, AZ, Employer
__________________________________________

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Appearances:
John E. Goodwin, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 15-0506
Issued: August 12, 2016

Oral Argument January 12, 2016

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

JURISDICTION
On January 7, 2015 appellant, through counsel, filed a timely appeal of a July 11, 2014
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.
ISSUE
The issue is whether OWCP properly terminated appellant’s compensation benefits
effective June 19, 2013 pursuant to 5 U.S.C. § 8106(c)(2).

1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 5, 2010 appellant, then a 59-year-old automotive technician, filed a traumatic
injury claim (Form CA-1) alleging that he sustained a right shoulder and neck strain as a result of
closing an overhead door spring which broke and fell on him. On January 31, 2011 OWCP
accepted appellant’s claim for sprain of the right shoulder and upper arm as well as sprain of the
neck. Appellant received compensation benefits on the periodic rolls as of July 3, 2011.
On July 14, 2011 appellant underwent authorized surgical procedures of arthroscopic
debridement of the glenohumeral joint, open distal clavicle excision with anterior acromioplasty,
an open rotator cuff repair, and deltoid repair. Dr. Neil E. Motzkin, a Board certified orthopedic
surgeon, performed the procedures and noted diagnoses of right shoulder pain secondary to
acromioclavicular joint arthritis, a rotator cuff tear, intra-articular synovitis, chondromalacia, and
a superior labrum anterior and posterior lesion.
In a second opinion report dated October 12, 2011, Dr. Ronald M. Lampert, a Boardcertified orthopedic surgeon, examined appellant and diagnosed degenerative arthritis of the
cervical spine, neck pain, and a postoperative right shoulder. He reviewed appellant’s history of
present illness and appellant’s prior medical records. Dr. Lampert found that there were
objective findings related to these conditions, noting that appellant had undergone shoulder
surgery on July 14, 2011. In response to OWCP’s inquiry as to whether appellant required work
restrictions, Dr. Lampert noted that appellant needed to complete physical rehabilitation before it
could be determined what type of position was suitable.
On October 21, 2011 Dr. Ramoun D. Jones, an anesthesiologist, prescribed Oxycodone
at a dosage of one to two tablets every six hours as needed for pain, and noted restrictions of no
driving and no use of hazardous machinery.3 He explained that this medication could cause
drowsiness and therefore he should not use it at work.
By letter dated December 8, 2011, OWCP advised appellant that it proposed to terminate
his compensation for wage-loss and medical benefits for the condition of neck sprain. It noted
that this decision would not affect benefits for the accepted conditions of the right shoulder.
OWCP finalized the termination of appellant’s compensation for neck sprain effective March 23,
2012. On September 17, 2012 a hearing representative affirmed OWCP’s termination of benefits
for neck sprain, finding that OWCP met its burden of proof.
By letter dated August 24, 2012, appellant was notified of a second opinion examination
that had been scheduled on September 11, 2012.
On September 11, 2012 Dr. John A. Soscia, a Board-certified orthopedic surgeon,
reviewed appellant’s medical history and provided results on examination. He noted that
appellant had undergone arthroscopic surgery of the shoulder on July 14, 2011. Dr. Soscia noted
that appellant had no objective findings to support the condition of sprain of the shoulder, and
that the traction injury to his arm, due to the falling door, seemed to have resolved within a few
days. He noted that appellant had some weakness in external rotation of his right shoulder,
3

Dr. Jones’ certification in a medical specialty could not be confirmed with the American Board of Medical
Specialties or the American Osteopathic Association.

2

which could be a finding consistent with shoulder sprain, but could also be a post-surgical
change. Dr. Soscia concluded that appellant had reached maximum medical improvement
(MMI). He indicated that none of the treatments appellant had undergone to the present had
provided any lasting relief and commented that “[h]is medical regiment may be giving him some
relief of symptoms although I am concerned about his increasing use of [O]xycodone. It appears
that [appellant] is slowly increasing his usage over time. I don’t feel that any treatment will
increase the workers physical function.” Dr. Soscia concluded that appellant would not be able
to return to his position as an automotive technician without restrictions and suggested that a
functional capacity evaluation (FCE) be performed.
By letter dated October 4, 2012, Dr. Soscia examined the results of the FCE. He noted
that appellant exhibited self-limiting behavior on 67 percent of tasks, but reported that without
additional data supporting a higher functional level, appellant should be restricted to sedentary
work for an eight-hour day.
In a work capacity evaluation dated October 9, 2012, Dr. Soscia set forth work
restrictions including operating a motor vehicle to/from work no more than one hour per day;
sitting no more than six hours; walking no more than four hours; standing no more than two
hours; pushing and pulling 10 pounds no more than two hours; lifting 10 pounds no more than
three hours; twisting, squatting, kneeling, and climbing no more than one hour per day; no
reaching or reaching above the shoulder; and no operating a motor vehicle at work.
By letter dated October 19, 2012, the employing establishment offered appellant a
permanent modified position as an automotive mechanic. The duties of the position were
described in the offer as receiving and making telephone calls and performing clerical duties.
The physical requirements were described as intermittent lifting up to one hour per day,
continuous sitting of up to six hours per day, intermittent standing of up to one hour per day,
intermittent walking of up to one hour per day, intermittent simple grasping from four to six
hours per day, intermittent fine manipulation from four to six hours per day, and no climbing,
kneeling, bending, stooping, twisting, pushing, pulling, or reaching above the shoulder.
On November 1, 2012 appellant returned the modified job offer. He wrote, “On the
advice of counsel I neither accept or reject this job offer.”
By letter dated November 7, 2012, the employing establishment requested a suitability
ruling on the modified job offer, noting that appellant had not accepted the offer.
On February 13, 2013 OWCP advised appellant that it found that job offer from the
employing establishment to be a suitable position stating that the position as an Automotive
Mechanic Modified is found by OWCP to be suitable to your work capabilities. It determined
that the physical requirements of the job included intermittent lifting up to one hour per day,
intermittent to continuous sitting up to six hours per day, intermittent standing up to one hour per
day, intermittent walking up to one hour per day, intermittent grasping four to six hours per day,
intermittent fine manipulation four to six hours per day, and no climbing, kneeling, bending,
stooping, twisting, pulling/pushing or reaching above shoulder. OWCP further determined that
the work restrictions provided by Dr. Soscia are as follows: sitting 6 hours, walking 4 hours,
standing 2 hours, twisting 1 hour, operating a motor vehicle to/from work 1 hour, pushing and
pulling up to 10 pounds 1 to 2 hours, lifting 1-3 hours, squatting, kneeling and climbing 1 hour,
3

15-minute breaks every 3 to 4 hours, no reaching above shoulder with the right arm. Appellant
was advised of the provisions of 5 U.S.C. § 8106(c)(2), and notified that he should accept the
position or provide reasons for not doing so within 30 days.
By letter dated February 16, 2013, counsel requested a copy of the job offer from the
employing establishment. He acknowledged that job tasks in the offer were reasonable, but that
the physical requirements as outlined in OWCP’s letter of February 13, 2013 were unreasonable
as they did not contain restrictions on the amount of weight appellant would be required to lift or
restrictions on the amount of time appellant would be required to engage in nonoverhead
reaching.
On March 7, 2013 the employing establishment submitted a letter to clarify the job offer
of October 19, 2012. It noted that appellant would not be involved with casing or processing
mail. The employing establishment further noted that the offered position would not require him
to reach above his right shoulder, or reach with his right arm, as these tasks could be
accomplished with the left arm.
On March 11, 2013 OWCP responded to a request for a copy of the case record. It
further noted, “As a point of clarification: Though in my letter dated February 13, 2012 I
inadvertently omitted the weight restriction on lifting, the lifting requirement is clearly stated on
the U.S. Postal Service Job Offer of October 19, 2012 as LIFTING: Intermittent (zero to five
hours per day), which is well within the work restrictions provided by Dr. Soscia.”
By letter dated April 10, 2013, the employing establishment noted that appellant had still
not accepted the job offer, and asked the claims examiner when it could anticipate a final
termination order.
On April 18, 2013 OWCP notified appellant that it had found his reasons for not
accepting the offered position to be insufficient. It noted that the employing establishment had
confirmed that the offered position would not require reaching with his right arm or processing
of mail. OWCP afforded appellant 15 days to accept the position.
By letter dated March 15, 2013, appellant’s counsel requested that OWCP ask the
employing establishment to reoffer the modified position, including the clarifications of
March 7, 2013. He further noted that the lifting requirement of up to five hours per day was
unreasonable.
By decision dated June 19, 2013, OWCP terminated appellant’s compensation for wage
loss, effective that same date. It found that he had refused an offer of suitable work under
5 U.S.C. § 8106(c)(2).
By letter dated June 26, 2013, appellant advised OWCP that his address had changed as
of June 20, 2013.
On June 28, 2013 appellant, through counsel, requested an oral hearing before an OWCP
hearing representative.
The hearing was held on November 15, 2013. At the hearing, counsel noted that
appellant had a work restriction of driving to and from work no more than one hour per day. He
4

offered to send MapQuest results demonstrating that the commute from appellant’s home to the
employing establishment at the time of the job offer was more than 60 minutes per day. Counsel
further noted that the job offer contained duties of filing, but appellant was restricted from
kneeling, bending, stooping, pushing, or pulling. Counsel stated that he hoped the employing
establishment would explain how a person could file in a horizontal or vertical cabinet without
kneeling, bending, stooping, twisting, or pulling. Appellant noted at the hearing that the nearest
bus stop to his address as of the date of the job offer was 1.42 miles away and required four
transfers to arrive at the employing establishment. He explained that his new address was even
further from the employing establishment than his address as of the date of the job offer. The
hearing representative agreed to keep the record open for 15 days for the submission of
additional evidence.
On December 6, 2013 counsel submitted MapQuest driving directions from appellant’s
home as of the date of the job offer, demonstrating that the offered position was 26.54 miles
away, which was estimated to take 34 minutes in one direction. Hence, according to MapQuest,
the total time required to commute to and from work daily would be approximately one hour and
eight minutes.
By letter dated December 6, 2013, counsel noted that the offered position violated
appellant’s work restriction of driving to and from work no more than one hour per day. He
stated that if appellant accepted the position and arrived at work, he could be terminated the first
day for violating his medical restrictions.
On December 13, 2013 the employing establishment responded to appellant’s arguments
at the oral hearing. It attached driving directions from Google Maps, which demonstrated a
commute of 26.7 miles from appellant’s home as of the date of the job offer, which was
estimated to take about 30 minutes in one direction. Hence, according to Google Maps, the total
time required to commute to and from work daily would be one hour.
By decision dated December 20, 2013, the hearing representative affirmed OWCP’s
June 19, 2013 termination decision. He found that objections to the commuting distance from
appellant’s prior and current homes and the work site were unfounded, as the travel time between
these residences and the work site was less than one hour. The hearing representative noted that
Dr. Soscia’s one-hour driving restriction meant one hour each way. He found that OWCP
properly accorded weight to Dr. Soscia’s opinion, as the reports from appellant’s treating
physicians were not well rationalized and did not opine specifically as to appellant’s work
capacity. The hearing representative concluded that Dr. Jones had not opined as to appellant’s
capacity to drive.
On February 11, 2014 appellant requested reconsideration of OWCP’s December 20,
2013 decision. With his request, he enclosed a report from Dr. Jones. In a January 21, 2014
report, Dr. Jones noted, “The patient understands my recommendations not to operate a motor
vehicle, heavy machinery or make important legal decisions while on [pain medication.]”
On July 11, 2014 OWCP evaluated the evidence submitted on reconsideration and
declined to modify its prior decision. It noted that the January 21, 2014 report from Dr. Jones
did not specifically discuss why appellant would not be able to perform the permanent modified
position, which did not require driving or use of heavy machinery.
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LEGAL PRECEDENT
Section 8106(c) of FECA provides in pertinent part, “A partially disabled employee who
(2) refuses or neglects to work after suitable work is offered ... is not entitled to compensation.”4
It is OWCP’s burden to terminate compensation under section 8106(c) for refusing to accept
suitable work or neglecting to perform suitable work.5 The implementing regulations provide
that an employee who refuses or neglects to work after suitable work has been offered or secured
for the employee has the burden of showing that such refusal or failure to work was reasonable
or justified and shall be provided with the opportunity to make such a showing before
entitlement to compensation is terminated.6 To justify termination, OWCP must show that the
work offered was suitable and that appellant was informed of the consequences of his refusal to
accept such employment.7 In determining what constitutes suitable work for a particular
disabled employee, OWCP considers the employee’s current physical limitations, whether the
work is available within the employee’s demonstrated commuting area, the employee’s
qualifications to perform such work and other relevant factors.8 The issue of whether an
employee has the physical ability to perform a modified position offered by the employing
establishment is primarily a medical question that must be resolved by medical evidence.9
OWCP procedures state that acceptable reasons for refusing an offered position include
withdrawal of the offer or medical evidence of inability to do the work or travel to the job.10
When OWCP considers a job to be suitable, it shall advise the employee of its finding
and afford him 30 days to either accept the job or present any reasons to counter OWCP’s
finding of suitability.11 If the employee presents such reasons and OWCP determines that the
reasons are unacceptable, it will notify the employee of that determination and further inform the
employee that he has 15 days within which to accept the offered work without penalty. After
providing the 30-day and 15-day notices, OWCP will terminate the employee’s entitlement to
further wage-loss compensation and schedule award benefits.12 The employee, however,
remains entitled to medical benefits.
Section 8123(a) of FECA provides in pertinent part: If there is disagreement between the
physician making the examination for the United States and the physician of the employee, the
4

5 U.S.C. § 8106(c).

5

Joyce M. Doll, 53 ECAB 790 (2002).

6

20 C.F.R. § 10.517(a).

7

Linda Hilton, 52 ECAB 476 (2001); Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB
818 (1992).
8

20 C.F.R. § 10.500(b); see Ozine J. Hagan, 55 ECAB 681 (2004).

9

Gayle Harris, 52 ECAB 319 (2001).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.5 (June 2013); see Lorraine C. Hall, 51 ECAB 477 (2000).
11

20 C.F.R. § 10.516.

12

Id. at § 10.517(b).

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Secretary shall appoint a third physician who shall make an examination.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 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 issue is whether OWCP properly terminated appellant’s compensation benefits for
refusal to accept suitable work. The Board finds that OWCP did not meet its burden of proof to
terminate appellant’s compensation for refusal of suitable work.
OWCP terminated appellant’s compensation benefits relying upon the work restrictions
provided by Dr. Soscia, determining that the modified automobile mechanic position was a
suitable offer of employment as it fell within the work restrictions he had set forth. It found that
Dr. Soscia was the only physician of record to provide a clear and rationalized medical opinion
as to appellant’s work capacity and he was therefore afforded the weight of the evidence.
The Board finds that the work restrictions of Dr. Soscia are insufficiently rationalized to
be afforded the weight of the evidence, that the physical requirements of the offered position
have not been sufficiently explained, and that there exists a conflict in the medical record of
evidence as to appellant’s work restrictions.
In his medical reports Dr. Soscia noted appellant’s ongoing and increasing use of
Oxycodone, however he did not provide an opinion as to whether the use of this drug was
necessary nor did he explain how its use impacted appellant’s ability to work or commute to
work. Alternatively, Dr. Jones has consistently noted in his medical reports that appellant should
not operate a motor vehicle or heavy machinery or make important legal decisions while on the
pain medication. Also, in setting forth restrictions, Dr. Soscia indicates that appellant is capable
of operating a motor vehicle to/from work no more than one hour per day, yet he also indicates
that appellant is restricted from operating a motor vehicle at work. The vague nature of his
driving restrictions is insufficient. Clarification of the driving restriction is especially important
as the OWCP hearing representative interpreted Dr. Soscia’s one-hour driving restriction to and
from work to mean one hour each way, rather than one cumulative hour per day as had been
OWCP’s prior interpretation.15 Finally, Dr. Soscia provides no discussion as to whether the
restrictions he has set forth in his report of October 9, 2012 are consistent with his opinion that
appellant should be restricted to sedentary level work. The Board has found that medical
conclusions unsupported by medical rationale are of little probative value.16 The Board therefore
13

5 U.S.C. § 8123(a).

14

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

15

See B.S., Docket No. 09-1067 (issued February 2, 2010) (An acceptable reason, if supported by medical
evidence, for refusing an offer of suitable work is an inability to travel to work. Where OWCP has failed to develop
the issue of whether the claimant’s physical restrictions render the commute impossible, it has not met its burden of
proof in terminating compensation benefits for failure to accept suitable work.)
16

A.D., 58 ECAB 149 (2006); Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB
968 (1949).

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finds that the work restrictions set forth by Dr. Soscia are of limited probative value, should not
be afforded the weight, and therefore are insufficient for OWCP to meet its burden of proof to
terminate compensation benefits.
Furthermore, as noted, the physical requirements of the offered position of modified
automobile mechanic are found to be insufficiently detailed, thus precluding an accurate
determination of whether the offered position is suitable. In noting the clerical duties performed,
the description notes that light filing is a specific, required task. However, the offer of
employment does not set forth the extent or duration of the physical activities required to
perform filing. The description states that no kneeling, bending, stooping, twisting, pushing or
pulling are required, but does not explain how filing can be performed without these activities
even when asked to provide such an explanation. As OWCP bears the burden of proof to justify
termination of benefits, the failure to set forth an accurate and complete job offer precludes a
finding in support of termination.
Finally, in its decision dated December 20, 2013, the hearing representative found that
OWCP had afforded proper weight to Dr. Soscia’s report and work restrictions, as the reports of
Dr. Jones were not well rationalized. He found that Dr. Jones had not opined as to appellant’s
capacity to drive. In its decision upon reconsideration dated July 11, 2014, OWCP again noted
that the January 21, 2014 report from Dr. Jones did not specifically discuss why appellant would
not be able to perform the permanent modified position, which did not require driving or use of
heavy machinery.17 The Board finds that Dr. Jones specifically restricted appellant from driving
while using Oxycodone.
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.18 The work restrictions offered by Dr. Soscia and Dr. Jones differed, in
part, as to whether appellant was able to drive to and from work. In his report on work
restrictions dated October 9, 2012, Dr. Soscia noted that appellant was able to drive one hour per
day to and from work.19 Dr. Jones, in a report dated October 21, 2011, recommended restrictions
of no driving and no use of hazardous machinery while on Oxycodone. He explained that this
medication could cause drowsiness. Dr. Soscia, in a September 11, 2012 report, noted that
appellant’s prescribed dosage of Oxycodone had increased since that time. On reconsideration,
OWCP received a January 21, 2014 note from Dr. Jones stating, “The patient understands my
recommendations not to operate a motor vehicle, heavy machinery or make important legal
decisions while on [pain medication.]” The Board finds that the reports of Drs. Soscia and Jones
are of virtually equal weight and rationale on the issue of appellant’s work restrictions regarding
driving and therefore OWCP could not meet its burden of proof to justify termination of benefits.
17

The Board notes that work restrictions are not limited to the specific duties of the modified position, but may
also include restrictions regarding ability to travel to and from a work location. See supra note 7.
18

Supra note 14.

19

Contrary to the hearing representative’s assertion in the decision of December 20, 2013, Dr. Soscia’s work
restriction was one hour of driving to and from work each day total -- not one hour in each direction. The work
capacity evaluation form asks physicians to report the number of hours total a worker can perform a particular task
daily, and as such there is no basis for interpreting the number of hours spent operating a motor vehicle to and from
work daily any differently than the number of hours performing any other task with a limitation.

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Dr. Jones explained that the medication could cause drowsiness and recommended no driving,
whereas Dr. Soscia was inconsistent with his driving restrictions and expressed concern over
appellant’s increasing dosage of Oxycodone. OWCP failed to afford Dr. Jones’ recommended
work restrictions the proper probative value when it found that Dr. Soscia’s report constituted the
weight of medical evidence. Both reports contained virtually equal levels of rationale on the
issue of appellant’s restrictions for driving to and from work.
Therefore, the Board finds that OWCP did not discharge its burden of proof to justify
termination of appellant’s compensation under section 8106(c)(2). The Board will reverse
OWCP’s July 11, 2014 termination decision.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
compensation under 5 U.S.C. § 8106(c)(2).
ORDER
IT IS HEREBY ORDERED THAT the July 11, 2014 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: August 12, 2016
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
__________________________________________
D.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Middletown, CA, Employer
__________________________________________

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

Docket No. 12-1036
Issued: March 1, 2013

Case Submitted on the Record

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

JURISDICTION
On April 12, 2012 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ (OWCP) schedule award decision dated March 8, 2012. 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.
ISSUES
The issues are: (1) whether appellant has more than a 12 percent impairment of the left
arm, for which she received a schedule award; and (2) whether appellant sustained any
permanent impairment causally related to her accepted lumbar condition, thereby entitling her to
a schedule award under 5 U.S.C. § 8107.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 3, 2008 appellant, a 56-year-old postmaster, injured her left knee, left shoulder and
low back when she fell after slipping in a puddle of water. She filed a claim for benefits on June 7,
2008, which OWCP accepted for left shoulder sprain, lumbar sprain and left knee contusion. On
December 23, 2008 appellant underwent arthroscopic surgery for repair of left shoulder
impingement disease, subacromial bursitis and left rotator cuff tendinitis. The surgery was
authorized by OWCP.
On September 21, 2010 appellant underwent a magnetic resonance imaging (MRI) scan of
the lumbar spine, which showed disc space narrowing and desiccation at L3-4, L4-5 and L5-S1.
The report found no disc bulge or protrusion at L1-2 or L2-3 and a tear of the annulus fibrosis with
central disc protrusion/mild left-sided disc bulge deforming the ventral thecal sac at L3-4, with no
central or neural foraminal stenosis. Appellant also had a tear of the annulus fibrosis and a small
broad-based central disc protrusion deforming the ventral thecal sac at L4-5, with no significant
central or neural foraminal stenosis; the study demonstrated a tear of the annulus fibrosis and a
minimal disc bulge at L5-S1, with no narrowing of the central canal or neural foramina and no
significant facet arthropathy. The report concluded that she had lumbar spondylosis at L3-4, L4-5
and L5-S1, with no significant spinal stenosis or nerve root impingement.
On September 22, 2010 appellant underwent an electromyogram (EMG) and nerve
conduction study (NCS) following numbness in the left leg from her knee to her foot. She was
evaluated for lumbar radiculopathy and/or peripheral compressive neuropathy. The results of the
motor nerve conduction studies showed normal distal latencies and conduction velocities of left
tibial and peroneal nerves. Sensory nerve conduction studies indicated normal peak latencies and
amplitudes for left sural nerves. H-reflex studies were within the normal range. The EMG of the
left lower extremity also showed normal results.
On December 23, 2010 appellant filed a claim for schedule award based on a partial loss
of use of her left upper extremity and left lower extremity.
In an August 25, 2011 report, Dr. Shahzad K. Jahromi, Board-certified in family practice,
found that appellant had a 12 percent permanent impairment of the left upper extremity and a 7
percent whole person impairment of the lower extremities. He stated that he used the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (fifth
edition). Dr. Jahromi rated impairment based on loss of range of motion in the left shoulder. On
physical examination, appellant had 80 degrees of forward flexion; 80 degrees of abduction; and
that the remaining range of motion measurements were within normal limits. With regard to the
accepted lower back condition, Dr. Jahromi rated a seven percent whole person impairment
pursuant to Table 15-3 of the fifth edition of the A.M.A., Guides. He stated that appellant had
sustained an acute injury with a radiographically confirmed herniated disc at the level and site
noted on physical examination.
In a December 19, 2011 report, Dr. Christopher R. Bingham, a specialist in internal
medicine and an OWCP medical adviser, found that appellant had a 15 percent impairment of the
left arm under the sixth edition of the A.M.A., Guides from her accepted left shoulder
impingement condition. He noted that the diagnosis-based method was the preferred method for

2

determining impairment. Dr. Bingham also calculated impairment under the range of motion
method to determine the higher degree of impairment stemming from appellant’s accepted left
shoulder impingement condition.
Using the diagnosis-based method of impairment calculation, Dr. Brigham utilized Table
15-5, page 402 of the A.M.A., Guides, the Shoulder Regional Grid, to find that appellant had a
class 1 impairment for impingement syndrome of the ligament/bone/joint. He found that this
yielded a three percent upper extremity impairment for residual loss, functional with normal
motion. Applying the net adjustment formula at section 15.3, pages 406, 410 and 411 of the
A.M.A., Guides,2 Dr. Brigham found that the grade modifier at Table 15-7, page 406 for
functional history was 1, for a mild problem, pain/symptoms with strenuous/vigorous activity,
plus medication to control symptoms; the grade modifier for Physical Examination (GMPE) at
Table 15-8, page 408 was 2, for a moderate motion loss problem; and the grade modifier for
Clinical Studies (GMCS) at Table 15-9 was 1, for a mild problem, for a postoperative diagnostic
study, which confirmed mild degenerative changes. Pursuant to the formula set forth at Table
15-21, page 411, Dr. Brigham then subtracted the grade modifier 1 from grade modifier 2 for
both functional history at Table 15-7 and clinical studies at Table 15-9, which yielded a net
adjusted grade 0 plus 1 -- a total grade of plus 1, which moved the default position to D, which
represented a four percent impairment of the left upper extremity at Table 15-5, page 402.3 This
resulted in a total seven percent impairment of the left upper extremity based on the
diagnosis-based method of rating impairment.
Dr. Brigham stated that the footnote to Table 15-5, Shoulder Regional Grid, indicated
that “if motion loss is present, this impairment may alternatively be assessed using [s]ection
15.7, Range of Motion Impairment.” Using the range of motion measurements, Dr. Brigham
evaluated impairment using section 15.7g, Shoulder Motion and Table 15-34, Shoulder Range of
Motion. He properly rated a 9 percent impairment based on 80 degrees of flexion and a 6
percent impairment for 80 degrees of abduction, for a total 15 percent left upper extremity
impairment based on loss of range of motion. Because this method produced a higher
impairment rating than the diagnosis-based method, Dr. Brigham determined that appellant had a
15 percent left arm impairment from the accepted left shoulder impingement syndrome.
With regard to appellant’s lumbar spine/radiculopathy condition, Dr. Brigham advised
that spinal nerve impairment evaluations pertaining to radiculopathy, which affected the
extremities had been clarified in the July/August issue of The Guides Newsletter.4 The new
proposed tables outlined in The Guides Newsletter indicated that radiculopathy was ratable but
must be based on clinical findings, such as sensory or motor deficits of the spinal nerves.
Pursuant to the sixth edition of the A.M.A., Guides at page 576, a lumbar radiculopathy
supported by clinical facts, such as a herniated disc shown by an imaging study, was not
sufficient to constitute a ratable spinal nerve impairment. Dr. Brigham advised that, in order for
2

A.M.A., Guides 406, 410-11.

3

Id. at 402.

4

Dr. Brigham stated that the statement of accepted facts indicated that lumbar radiculopathy was listed as an
“accepted diagnosis.”

3

the radiculopathy to be ratable, the clinical findings must correlate with radiographic findings
such as motor weakness, loss of reflex and a positive root tension sign. He reviewed
Dr. Jahromi’s August 25, 2011 report and found that none of the applicable components
confirmed the diagnosis of radiculopathy. Although Dr. Jahromi noted decreased sensation in
the left lower extremity below the knee along the L5 nerve root, there was no evidence of a disc
herniation or stenosis that impinged on the left L5 nerve root or any other lumbar nerve root
based on the MRI scan results; nor were there any other findings that supported a left L5
radiculopathy. Dr. Brigham stated that appellant underwent electrodiagnostic studies of the
lower extremities on September 22, 2010 which produced normal results, with no nerve root
impingement.
In addition, Dr. Brigham noted that on examination appellant showed normal strength in
her lower extremities and normal and equal bilateral deep tendon reflexes of the knees and
ankles. He concluded that in the absence of a verifiable lumbar radiculopathy she had no ratable
impairment of the lower extremities under the sixth edition of the A.M.A., Guides based on
Dr. Jahromi’s August 25, 2011 report.
By decision dated March 8, 2012, OWCP granted appellant a schedule award for a 15
percent permanent impairment of the left upper extremity for the period August 25, 2011 to
July 17, 2012, for a total of 46.8 weeks of compensation.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law 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. A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.7 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.8
ANALYSIS -- ISSUE 1
OWCP accepted the conditions of left shoulder strain and impingement syndrome of the
left shoulder. Dr. Brigham reviewed Dr. Jahromi’s August 25, 2011 report and found that
appellant had a 15 percent left upper extremity impairment based on the range of motion method
outlined in the applicable tables of the sixth edition of the A.M.A., Guides, which yielded a
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404. Effective May 1, 2009, OWCP began using the A.M.A., Guides (6th ed. 2009).

7

Id.

8

Veronica Williams, 56 ECAB 367, 370 (2005).

4

higher impairment rating than the diagnosis-based method. The Board notes that the A.M.A.,
Guides stipulate that the examiner should use the methodology with the highest impairment
rating in that region that is causally related for the impairment calculation.9 Based on this
principle Dr. Brigham properly found that the loss of range of motion method for rating
impairments was the appropriate method for rating appellant’s accepted left shoulder conditions,
as opposed to the diagnosis-based method.
The Board has reviewed Dr. Brigham’s calculation of permanent impairment of
appellant’s left shoulder, utilizing the range of motion methodology and finds that he properly
utilized Table 15-34 of the A.M.A., Guides, at page 475, to conclude that she had a nine percent
impairment based on 80 degrees of flexion and a six percent impairment based upon 80 degrees
of abduction. Dr. Brigham properly calculated her permanent impairment of the left upper
extremity to be 15 percent.
The Board notes that Dr. Jahromi’s August 25, 2011 impairment rating was rendered in
conformance with the fifth edition of the A.M.A., Guides. Therefore, while the findings on
examination and measurements Dr. Jahromi calculated constituted a sufficient basis for
Dr. Brigham’s impairment rating, the impairment ratings Dr. Jahromi issued in his report were
not in conformance with the updated edition of the A.M.A., Guides. Accordingly, as OWCP’s
medical adviser provided the only impairment rating of record rendered in accordance with the
applicable protocols and tables of the A.M.A., Guides, it properly granted a schedule award for a
15 percent left upper extremity impairment in its March 8, 2012 decision.
LEGAL PRECEDENT -- ISSUE 2
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.10 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.11
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. For peripheral nerve impairments to the upper or
lower extremities resulting from spinal injuries, OWCP’s procedures indicate that The Guides

9

A.M.A., Guides 387.

10

Pamela J. Darling, 49 ECAB 286 (1998).

11

Thomas J. Engelhart, 50 ECAB 319 (1999).

5

Newsletter “Rating Spinal Nerve
(July/August 2009) is to be applied.12

Extremity

Impairment

using

the

sixth

edition”

In addressing lower extremity impairments, due to peripheral or spinal nerve root
involvement, the sixth edition requires identifying the impairment class for the diagnosed
condition (CDX), which is then adjusted by grade modifiers based on Factual History (GMFH)
and if electrodiagnostic testing were done, GMCS.13 The net adjustment formula is (GMFH CDX) + (GMCS - CDX).14
ANALYSIS -- ISSUE 2
OWCP accepted a lumbar sprain condition and a lumbar radiculopathy condition. The
Board notes that a schedule award is not payable under FECA for injury to the spine15 or based
on whole person impairment.16 However, a claimant may be entitled to a schedule award for
permanent impairment to an extremity even though the cause of the impairment originated in the
spine.17 Appellant must establish impairment to a scheduled member caused by the accepted
condition before an impairment due to a preexisting condition can be assessed.18 The instant
record is not sufficient to establish that appellant has any impairment caused by his accepted
lumbar strain or lumbar radiculopathy condition.
Dr. Brigham found that appellant had no ratable impairment for lumbar radiculopathy
under the sixth edition of the A.M.A., Guides. He advised that although the July/August issue of
The Guides Newsletter indicated that, radiculopathy was ratable based on motor or sensory
dysfunction of the spinal nerves, Dr. Jahromi’s August 25, 2011 report did not contain
documentation showing that appellant had any of these findings. Dr. Brigham stated that a
lumbar radiculopathy supported by clinical facts, such as a herniated disc shown by an imaging
study, was not sufficient to constitute a ratable spinal nerve impairment pursuant to the sixth
edition of the A.M.A., Guides at page 576. He noted that the September 2010 MRI scan and
EMG findings showed normal results and presented none of the applicable components to
confirm a diagnosis of radiculopathy. Dr. Brigham advised that, although Dr. Jahromi noted
decreased sensation in the left lower extremity below the knee along the L5 nerve root, there was
no evidence of a disc herniation or stenosis that impinged on the left L5 nerve root or any other
nerve root based on the September 21, 2010 MRI scan results; nor were there any other findings
12

See G.N., Docket No. 10-850 (issued November 12, 2010); see also Federal (FECA) Procedure Manual, Part 3
-- Medical, Schedule Awards, Chapter 3.700, Exhibit 1, note 5 (January 2010). The newsletter is included as
Exhibit 4.
13

A.M.A., Guides 533

14

Id. at 521.

15

Pamela J. Darling, 49 ECAB 286, n.10 (1998).

16

N.M., 58 ECAB 273, n.9 (2007).

17

Thomas J. Engelhart, 50 ECAB 319, n.11 (1999).

18

See generally Thomas P. Lavin, 57 ECAB 353 (2006).

6

that supported a left L5 radiculopathy. He stated that the September 22, 2010 EMG studies
produced normal results, with no nerve root impingement. In addition, Dr. Brigham advised that
on examination appellant showed normal strength in her lower extremities; normal and equal
bilateral deep tendon reflexes of the knees and ankles; and normal sensation, strength and tone in
the left lower extremity. Based on this objective evidence he found that she had no ratable
findings of sensory or motor loss impairment related to the L5 spinal nerve root in the left lower
extremity. Dr. Brigham properly concluded that in the absence of a verifiable lumbar
radiculopathy appellant had no ratable impairment of the lower extremities. Dr. Jahromi’s
August 2011 report merely found that she had a seven percent whole person impairment
stemming from the left lower extremity; the Board notes that FECA does not provide schedule
awards for permanent impairment of the whole person or body as a whole.19
The Board finds that OWCP properly found in its March 8, 2012 decision that appellant
had no permanent impairment of the left lower extremity. Dr. Brigham’s December 19, 2011
report, the only impairment rating rendered in conformance with the applicable protocols of the
A.M.A., Guides, represented the weight of the medical evidence in this case. The March 8, 2012
decision of OWCP is affirmed.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no more than a 15 percent permanent impairment of
the left upper extremity, for which she received a schedule award. The Board finds that
appellant has not sustained any permanent impairment to a scheduled member of her body
causally related to her accepted lumbar condition, thereby entitling her to a schedule award under
5 U.S.C. § 8107.

19

See B.M., Docket No. 09-2231 (issued May 14, 2010); D.J., 59 ECAB 620 (2008).

7

ORDER
IT IS HEREBY ORDERED THAT the March 8, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 1, 2013
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Tomah, WI, Employer
__________________________________________

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

Docket No. 11-1452
Issued: February 3, 2012

Case Submitted on the Record

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

JURISDICTION
On June 1, 2011 appellant filed a timely appeal from a May 23, 2011 decision of the
Office of Workers’ Compensation Programs (OWCP) granting a schedule award. 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 issue.2
ISSUE
The issue is whether appellant sustained more than six percent permanent impairment of
the right upper extremity for which he received a schedule award.

1
2

5 U.S.C. § 8101 et seq.

Appellant concurrently requested an oral telephonic hearing, but was advised by OWCP that he could not
request more than one avenue of appeal simultaneously. OWCP subsequently cancelled the hearing.

FACTUAL HISTORY
On July 22, 2009 appellant, then a 55-year-old psychiatric nursing assistant, injured his
right shoulder in the performance of duty. OWCP accepted his traumatic injury claim for right
shoulder joint pain and complete rotator cuff rupture.3
A December 10, 2009 magnetic resonance imaging (MRI) scan obtained by Dr. Joseph R.
Hooyman, a Board-certified diagnostic radiologist, exhibited a full-thickness rotator cuff tear
involving the anterior supraspinatus tendon and moderate acromioclavicular joint hypertrophy.
In December 28, 2009 and January 13, 2010 reports, Dr. John W. McDonough, an osteopath and
Board-certified orthopedic surgeon, observed right shoulder pain and discomfort on physical
examination. He noted that appellant’s range of motion (ROM) was symmetrical bilaterally.
Dr. McDonough reviewed the results of the December 10, 2009 MRI scan and added that
additional x-rays of the right shoulder demonstrated a Type 2 acromion process,
acromioclavicular joint space narrowing and reactive sclerosis. OWCP also received reports
from Dr. Katherine L. Kostamo, an employing establishment physician Board-certified in
internal and nuclear medicine, who noted appellant’s status and work restrictions.
On January 19, 2011 OWCP inquired of Dr. Kostamo regarding the extent of appellant’s
accepted conditions, the type of impairments that he had and whether he had reached maximum
medical improvement. In a February 7, 2011 work capacity evaluation form, Dr. Kostamo noted
appellant’s permanent work restrictions and advised that maximum medical improvement had
been reached as there was no change in appellant’s full-thickness supraspinatus tear on the right.
On January 31, 2011 appellant filed a claim for a schedule award.
In a February 14, 2011 report, Dr. David H. Garelick, an OWCP medical adviser and
Board-certified orthopedic surgeon, reviewed appellant’s file.
He pointed out that
Dr. McDonough was the most recent orthopedic surgeon to examine appellant and that his
January 13, 2010 report indicated that right shoulder pain and weakness was elicited during
several orthopedic maneuvers and that the December 10, 2009 MRI scan confirmed a large
rotator cuff tear with retraction. Dr. Garelick also noted “essentially normal” ROM and the
absence of muscular atrophy in the shoulder girdle. Applying Table 15-5 (Shoulder Regional
Grid) on page 403 of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (hereinafter A.M.A., Guides),4 he assigned a right upper extremity impairment rating
of six percent. Dr. Garelick explained that an adjustment was “due to grade 2 modifiers issued
for the MRI scan findings as well as the functional component (pain with activities of daily
living. A grade 0 modifier was issued for the normal physical examination.” He listed

3

On April 14, 2010 OWCP notified appellant that he erroneously received a check in the amount of $1,729.80 for
the period January 3 to March 27, 2010 and advised him to return it to avoid an overpayment. The disbursement
was not returned. By decision dated June 2, 2010, OWCP finalized that an overpayment of $1,729.80 occurred and
that appellant was at fault in the creation of the overpayment. In a November 3, 2010 wage-earning capacity
decision, it took into account his new job with the employing establishment and reduced his disability compensation
effective September 23, 2010.
4

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

2

January 13, 2010 as the date of maximum medical improvement, the date of Dr. McDonough’s
most recent examination.
By decision dated February 24, 2011, OWCP granted a schedule award for six percent
permanent impairment of the right upper extremity for the period February 13 to June 24, 2011.5
On May 23, 2011 it reissued the February 24, 2011 decision.6
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss of or loss of use of scheduled members or functions of the body.7 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law 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 regulations as the
appropriate standard for evaluating schedule losses.8
The A.M.A., Guides provides a diagnosis-based method of evaluation utilizing the World
Health Organization’s International Classification of Functioning, Disability and Health (ICF).
For upper extremity impairments, the evaluator identifies the impairment class for the diagnosed
condition (CDX), which is then adjusted by grade modifiers based on Functional History
(GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS). The net adjustment
formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).9 Evaluators are directed to
provide reasons for their impairment rating choices, including the choices of diagnoses from
regional grids and calculations of modifier scores.10
ANALYSIS
The Board finds that the case is not in posture for decision.
Appellant filed a traumatic injury claim, which OWCP accepted for right shoulder joint
pain and complete rotator cuff rupture. He thereafter filed a claim for a schedule award on
January 31, 2011. In a February 14, 2011 report, following a review of the medical file,
Dr. Garelick, an OWCP medical adviser, cited Table 15-5 of the A.M.A., Guides and calculated
5

OWCP pointed out that it deducted a portion of appellant’s schedule award to settle the remaining balance of the
overpayment. See supra note 2.
6

OWCP corrected two typographical errors found in the earlier decision.

7

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

8

K.H., Docket No. 09-341 (issued December 30, 2011). For decisions issued after May 1, 2009, the sixth edition
will be applied. B.M., Docket No. 09-2231 (issued May 14, 2010).
9

R.Z., Docket No. 10-1915 (issued May 19, 2011).

10

J.W., Docket No. 11-289 (issued September 12, 2011).

3

a right upper extremity impairment rating of six percent. He assigned a value of 2 for both
GMFH and GMCS based on Dr. McDonough’s January 13, 2010 report documenting appellant’s
complaints of pain and the December 10, 2009 MRI scan results, respectively. On the other
hand, Dr. Garelick selected a GMPE of 0 because Dr. McDonough’s report revealed normal
ROM and the lack of muscular atrophy on examination.
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the adviser providing
rationale for the percentage of impairment specified.11 In the instant case, it appears that
Dr. Garelick used a class one diagnosis for a full-thickness rotator cuff tear on page 403 of the
A.M.A., Guides, which provides for a default value of five percent impairment where there is
residual loss, functional with normal motion. The medical adviser noted moving the default
value one place to the right, for six percent impairment, but he did not sufficiently explain
specifically how he calculated each grade modifier score or use the net adjustment formula.12 In
the absence of a detailed impairment rating report comporting with the standards of the A.M.A.,
Guides, the Board cannot determine whether appellant sustained more than six percent
permanent impairment of the right upper extremity.13
On remand OWCP should refer the matter to an appropriate Board-certified specialist to
determine the extent of appellant’s right upper extremity impairment in accordance with the
A.M.A., Guides. After conducting such further development as deemed necessary, it shall issue
an appropriate merit decision on the issue of his entitlement to a schedule award.14
CONCLUSION
The Board finds that the case is not in posture for decision.

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims,
Chapter 2.808.6(d) (January 2010).
12

See J.H., Docket No. 10-1927 (issued June 1, 2011). See A.M.A., Guides 411-12 (describes the method for
determining impairment).
13

See R.G., Docket No. 10-2236 (issued July 8, 2011).

14

The Board notes that appellant submitted new evidence on appeal. The Board lacks jurisdiction to review
evidence for the first time on appeal. 20 C.F.R. § 501.2(c).

4

ORDER
IT IS HEREBY ORDERED THAT the May 23, 2011 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: February 3, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.P., Appellant
and
U.S. POSTAL SERVICE, NETWORK
DISTRIBUTION CENTER, Springfield, MA,
Employer
__________________________________________

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

Docket No. 19-0129
Issued: April 26, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 22, 2018 appellant filed a timely appeal from a September 25, 2018 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 review the merits of this case.2

1
2

5 U.S.C. § 8101, et seq.

The Board notes that, following the September 25, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish a left hand condition
causally related to the accepted June 12, 2018 employment incident.
FACTUAL HISTORY
On June 19, 2018 appellant, then a 44-year-old mail handler, filed a traumatic injury claim
(Form CA-1) alleging that on June 12, 2018 she sustained a left hand contusion/bruise while she
was pulling a full over-the-road (OTR) container out of a container loader while in the performance
of duty. She reported having felt pain in her left hand. On the reverse side of the claim form the
employing establishment noted that appellant did not stop working.
A statement from the supervisor of district operations, B.S., indicated that on June 19, 2018
appellant approached her and indicated that the bruise/contusion on her left palm had not gone
away, and that she wished to file a claim with OWCP. Appellant related that she would turn over
the medical paperwork to the supervisor after her appointment.
A June 21, 2018 left thumb x-ray was “Unremarkable” and noted that there was no bone,
joint, or soft tissue abnormality.
A July 17, 2018 request for medical authorization revealed appellant was scheduled for a
surgical procedure to excise a soft-tissue mass from her left hand to be performed by Dr. Jacqueline
Vanderzanden, a Board-certified orthopedic and hand surgeon.
A July 17, 2018 report from Dr. Vanderzanden related that on June 12, 2018 appellant
“[w]as moving a heavy piece of equipment when she felt … pain in the palm of her left hand and
has developed a soft tissue bump in that area which has not gone down since the date of injury….”
Appellant continued to work full-time regular duty despite the pain and bump. She noted that ice
occasionally decreased the size of the bump, whereas increased activity caused a recurrence of the
bump. Dr. Vanderzanden noted “no lacerations or abrasions, but there is a soft tissue mass volar
aspect of the thenar eminence. Slight blue discoloration to it … otherwise grossly neurovascularly
intact.” Her impression was left hand post-traumatic soft tissue mass after work-related injury and
that appellant had elected to proceed with surgical excision. She indicated that appellant likely
would be able to return to work light duty after the operation and suture removal.
In a development letter dated August 22, 2018, OWCP advised appellant of the need for
additional factual information and medical evidence to support her claim for compensation
benefits. It specifically inquired about the circumstances of the alleged causative employment
incident, including the immediate effect of the injury and the reasons for the delay in filing a claim.
The attached factual questionnaire also included queries as to the existence of any related
preexisting conditions. OWCP also requested that appellant provide a narrative report from her
attending physician, which was required to include a diagnosis and a medical explanation as to
how the reported work incident either caused or aggravated a medical condition. It afforded
appellant 30 days to submit the requested information.
Appellant did not respond.

2

By decision dated September 25, 2018, OWCP accepted that the June 12, 2018
employment incident occurred as alleged and that a medical condition had been diagnosed. It
denied the claim, however, as causal relationship had not been established between the diagnosed
condition and the accepted June 12, 2018 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established.7 Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.8 The second component is whether the employment incident caused a personal
injury.9 An employee may establish that an injury occurred in the performance of duty as alleged,
but fail to establish that the disability or specific condition for which compensation is being
claimed is causally related to the injury.10
Causal relationship is a medical question that generally requires rationalized medical
opinion evidence to resolve the issue.11 A physician’s opinion on whether there is causal
relationship between the diagnosed condition and the implicated employment factor(s) must be
based on a complete factual and medical background.12 Additionally, the physician’s opinion must
3

Supra note 1.

4

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

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

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

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

8

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

9

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

10

Shirley A. Temple, 48 ECAB 404, 407 (1997).

11

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

12

M.V., Docket No. 18-0884 (issued December 28, 2018).

3

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 factor(s).13
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a left hand
condition causally related to the accepted June 12, 2018 employment incident.
In a July 17, 2018 report, Dr. Vanderzanden diagnosed left hand soft tissue mass, which
she characterized as post-traumatic and work related. She reported that on June 12, 2018 appellant
“[w]as moving a heavy piece of equipment when she felt … pain in the palm of her left hand” and
subsequently “developed a soft tissue bump in that area….” While Dr. Vanderzanden notes a
temporal relationship between the onset of pain and the accepted incident, she does not offer a
definitive opinion that the left hand soft tissue mass was caused by the workplace incident. The
mere fact that a condition manifests itself or is discovered after an employment incident is
insufficient to establish a causal relationship between the condition and the incident.14 Temporal
relationship alone will not suffice for purposes of establishing causal relationship.15 Entitlement
to FECA benefits may not be based on surmise, conjecture, speculation, or on the employee’s own
belief of a causal relationship.16 Dr. Vanderzanden’s July 17, 2018 report does not discharge
appellant’s burden of proof to establish that her left hand condition is causally related to the
accepted June 12, 2018 employment incident as she has not explained how pulling a full OTR
container out of a container loader either caused or contributed to the development of appellant’s
diagnosed soft tissue mass. A physician’s opinion on causal relationship must be supported by
medical rationale, explaining the nature of the relationship between the diagnosed condition and
appellant’s specific employment factor(s).17 Consequently, the Board finds that the evidence of
record does not meet appellant’s burden of proof to establish causal relationship.
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 USC § 8128(a) and 20 CFR
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a left hand
condition causally related to the accepted June 12, 2018 employment incident.

13

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

14

L.T., Docket No. 18-1603 (issued February 21, 2019); Birger Areskog, 30 ECAB 571 (1979).

15

Id.

16

Id.

17

See supra notes 12, 13.

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ORDER
IT IS HEREBY ORDERED THAT the September 25, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 26, 2019
Washington, DC

Christopher J. Godfrey, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Painesville, OH, Employer
__________________________________________

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

Docket No. 10-369
Issued: October 18, 2010

Case Submitted on the Record

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

JURISDICTION
On November 23, 2009 appellant filed a timely appeal from an October 23, 2009 merit
decision of the Office of Workers’ Compensation Programs that denied her 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 has a back
condition that was caused or aggravated by factors of her federal employment. On appeal her
attorney asserts that the Office decisions are contrary to fact and law.
FACTUAL HISTORY
On July 12, 2007 appellant, then a 54-year-old city letter carrier, filed an occupational
disease claim alleging that the constant walking and weight bearing of her mail route caused
back problems including bulging discs and degenerative disc disease. The case was adjudicated
by the Office under file number xxxxxx099, and by decision dated October 2, 2007, the Office
denied the claim on the grounds that the medical evidence did not establish that the claimed

medical condition was employment related, noting that appellant was working light duty.
Appellant, through her attorney, requested a hearing that was held on February 6, 2008. At the
hearing appellant’s attorney argued that, as the Office had accepted lumbar radiculopathy under
file number xxxxxx604, the two claims should be doubled. Appellant testified that she did not
begin limited duty until the summer of 2006, stopped work completely on January 29, 2007 and
was on disability retirement. By decision dated March 27, 2008, an Office hearing
representative affirmed the October 2, 2007 decision. Appellant filed an appeal with the Board,
and in an order dated October 24, 2008, the Board found that the Office hearing representative
relied on evidence found in additional Office file numbers that were not contained in the case
record before the Board and remanded to the Office to obtain file number xxxxxx604 and for
further reconstruction and assemblage deemed necessary, to be followed by a de novo decision
on the merits of appellant’s claim.1 The law and the facts of the previous Board order are
incorporated herein by reference.
Following remand, the Office combined appellant’s claims, and in a February 10, 2009
decision, reviewed the combined medical evidence and denied appellant’s claim on the grounds
that the record did not contain a detailed and definitive medical opinion explaining that her
diagnosed back condition was causally related to her employment duties. Appellant, through her
attorney, timely requested a hearing, that was held on August 19, 2009. She described her job
duties, and her attorney argued that the letter carrier duties and altered gait caused by the
accepted foot conditions led to an aggravation of preexisting back conditions. In an October 23,
2009 decision, an Office hearing representative affirmed the February 10, 2009 decision.
The medical evidence relevant to appellant’s claimed back condition includes a treatment
note dated August 16, 2005 in which Dr. Mark A. Tozzi, a podiatrist, noted appellant’s
complaint of back pain aggravated by awkward walking. Dr. Tozzi observed an antalgic gait and
opined that it appeared that she was developing “flow through” problems causing acute
radiculitis and recommended MRI scan. Under Office file number xxxxxx604, on November 4,
2005, the Office accepted lumbar radiculopathy.2 A November 11, 2005 MRI scan of the lumbar
spine demonstrated bulging annuli at L2-3, L3-4 and L4-5 with degenerative facet joint disease
present at the lower two disc space levels. On November 17, 2005 Dr. Tozzi reviewed
appellant’s MRI scan and advised that the bulging discs were the main reason she was having
difficulty walking. He referred her to Dr. Jerome B. Yokiel, Board-certified in anesthesiology
and pain medicine.

1

Docket No. 08-1396 (issued March 27, 2008). The records indicate that under Office file number xxxxxx604
appellant’s claim was accepted for left ankle sprain and plantar fasciitis of the right foot. On October 25, 2002
Dr. Mark A. Tozzi, a podiatrist, performed a left ankle stabilization procedure. Under file number xxxxxx979, the
Office accepted bilateral heel spurs. Appellant accepted a limited-duty assignment on March 26, 2003. By report
dated August 16, 2005, Dr. Tozzi advised that appellant had radiculitis and recommended magnetic resonance
imaging (MRI) scan. On November 4, 2005 the Office expanded the xxxxxx604 claim to include lumbar
radiculopathy. On September 23, 2006 appellant filed a recurrence claim, stating that she had trouble walking and
her pain had increased. By decision dated March 21, 2007, the Office denied appellant’s recurrence claim. On
July 26, 2007 appellant filed an emotional condition claim and submitted reports dated February 28, 2007 and
June 19, 2009 in which Jill H. Mushkat, Ph.D., diagnosed depression and pain disorders.
2

Id.

2

In a December 13, 2005 report, Dr. Yokiel noted appellant’s past medical history
including a brain aneurysm and her complaint of worsening back pain with radiation to both
lower extremities. He provided findings on physical examination and diagnosed degenerative
lumbar disc disease and degenerative lumbar facet disease. Dr. Yokiel performed lumbar
epidural steroid injections on February 7 and 14, 2006, and on June 6, 2006 noted appellant’s
continued complaints of low back and right lower extremity pain. He performed right L3
through S1 lumbar facet injections on June 27, July 11 and 18, 2006. In reports dated
September 8, 2006, Dr. Yokiel advised that appellant had chronic back pain due to lumbar
degenerative disc disease and lumbar spondylosis that began years previously and stated that
appellant would be incapacitated for work possibly one to two days each month. He described
her medication regimen and stated that she could perform her regular job duties with restrictions
of no climbing and a 10- to 15-pound weight restriction. Dr. Yokiel continued to submit reports,
and on December 22, 2006 noted that appellant was having right upper quadrant pain, weight
loss, nausea and vomiting and referred her to a urologist. On December 24, 2006 he advised that
appellant was unable to carry mail and should case only.
On January 19, 2007 Dr. Yokiel noted appellant’s complaint that her medications were
not providing relief and that she was having difficulty with limited duty. He diagnosed lumbar
disc degeneration and lumbar facet arthrosis, again advised that she could work with restrictions,
stating:
“I believe that her current condition is an exacerbation of her previous condition
when she was injured at work. [Appellant] has had ongoing problems with her
back since that time. The type of work that she has been doing, even the light,
limited duty, does tend to aggravate her condition. [Appellant] has had to limit
her work activities to a certain number of hours rather than full time and also has
had to limit the types of activities she has been doing, not carrying mail but casing
mail only, because of this back condition.”
In a January 25, 2007 report, Dr. Yokiel advised that appellant had chronic back pain secondary
to degenerative disc disease and spondylosis, stating that the condition commenced 25 years
previously, “according to patient.” He recommended limited duty but advised that she was
presently incapacitated for three to six months.
By report dated February 5, 2007, Dr. Tozzi noted that appellant was first seen on
June 18, 2002 for an ankle sprain and described his subsequent care including an October 25,
2002 left ankle stabilization procedure and a right endoscopic plantar fasciotomy on
January 13, 2003. He opined that appellant’s ankle conditions and surgeries caused an altered
gait that affected her back adversely resulting in chronic low back pain with radicular symptoms
in both legs.
In reports dated February 16, 2007, Dr. Yokiel advised that appellant should remain off
work and she had applied for disability retirement. On March 15, 2007 he noted appellant’s
complaints of increasing back pain that made her work difficult, reiterated the diagnoses, and
described her treatment regimen. Dr. Yokiel opined that appellant’s condition had become
permanent and that she could not return to work in any capacity due to her chronic pain
condition. He continued to submit reports describing her condition and advising that she could

3

not work. On September 26, 2007 Dr. Yokiel further diagnosed cervical radiculopathy and on
April 9, 2008 diagnosed lumbar radiculopathy. In reports dated July 16, 2008 to June 29, 2009,
he reiterated his findings and conclusions.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. These are the essential
elements of each and every compensation claim, regardless of whether the asserted claim
involves traumatic injury or occupational disease, an employee must satisfy this burden of
proof.4
Office regulations define the term “occupational disease or illness” as a condition
produced by the work environment over a period longer than a single workday or shift.”5 To
establish that an injury was sustained in the performance of duty in an occupational disease
claim, a claimant must submit the following: (1) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; (2) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant. The medical
opinion 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.6
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.7 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical 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 Neither the mere fact
3

5 U.S.C. §§ 8101-8193.

4

Roy L. Humphrey, 57 ECAB 238 (2005).

5

20 C.F.R. § 10.5(ee).

6

Roy L. Humphrey, supra note 4.

7

D.G., 59 ECAB 734 (2008).

8

Id.

4

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.9
ANALYSIS
The Board finds that appellant did not meet her burden of proof to establish that the
diagnosed degenerative disc disease of the lumbar spine or other lumbar spine condition was
causally related to factors of her federal employment. The Board notes that the term physician,
as defined under section 8101(2) of the Act, includes podiatrists within the scope of their practice
as defined by state law.10 Ohio law provides that podiatrists may perform services of medical,
mechanical and surgical treatment of ailments of the foot, the muscles and tendons of the leg
governing the foot, and superficial lesions of the hand other than those associated with trauma.
The podiatrist may also treat the local manifestation of systemic disease as they appear in the
hand and foot, but the patient must be concurrently referred to a doctor of medicine or doctor of
osteopathic medicine and surgery for treatment of the systemic disease itself.11 Thus, Dr. Tozzi
is not qualified as a physician to render an opinion on the subject of a back condition.
An attending pain management specialist, Dr. Yokiel, submitted a number of reports
dating from December 13, 2005 to June 29, 2009, noting appellant’s complaints of radiating
back pain. He diagnosed degenerative lumbar disc disease, degenerative lumbar facet disease,
and lumbar spondylosis and noted appellant’s report that she had the condition for 25 years.
While he advised that appellant’s job duties including light or limited work aggravated her
condition, and that she could not return to any type work, the physician did not enumerate
specific duties or provide an explanation of a mechanism of injury.12 It is well established that
where employment factors cause an aggravation of an underlying physical condition, the
employee is entitled to compensation for periods of disability related to the aggravation. Where
the medical evidence supports an aggravation or acceleration of an underlying condition
precipitated by working conditions or injuries, such disability is compensable. However, the
normal progression of untreated disease cannot be said to constitute “aggravation” of a condition
merely because the performance of normal work duties reveal the underlying condition. For the
conditions of employment to bring about an aggravation of preexisting disease, the employment
must be such as to cause acceleration of the disease or to precipitate disability.13 A mere
conclusion without the necessary rationale explaining how and why the physician believes that a
claimant’s work exposure could result in a diagnosed condition is not sufficient to meet a
claimant’s burden of proof.14
9

Roy L. Humphrey, supra note 4.

10
11

5 U.S.C. § 8101(2).
Ohio Admin. Code § 5101:3-7-02 (2005).

12

See T.H., 59 ECAB 388 (2008).

13

A.C., 60 ECAB ____ (Docket No. 08-1453, issued November 18, 2008).

14

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

5

An award of compensation may not be based on surmise, conjecture, speculation, or
appellant’s belief of causal relationship.15 Appellant must submit a physician’s report in which
the physician reviews those factors of employment identified by him as causing the diagnosed
condition and, taking those factors into consideration as well as findings upon examination and
the medical history, explain how employment factors caused or aggravated any diagnosed
condition and present medical rationale in support of his or her conclusions. The Board finds
that, as Dr. Yokiel did not provide a probative medical opinion with sufficient rationale,
appellant has not established that her federal employment caused or aggravated her preexisting
degenerative lumbar spine condition.16
CONCLUSION
The Board finds that appellant did not establish under the instant claim that her diagnosed
lumbar spine condition was caused or aggravated by factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the October 23, 2009 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: October 18, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

15

Patricia J. Glenn, 53 ECAB 159 (2001).

16

A.C., supra note 13.

6