United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jenkintown, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-1445
Issued: May 6, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On June 24, 2019 appellant, through counsel, filed a timely appeal from an April 25, 2019
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 right shoulder
condition causally related to the accepted January 23, 2018 employment incident.
FACTUAL HISTORY
On February 2, 2018 appellant, then a 48-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on January 23, 2018 she injured her right shoulder when lifting tubs
and casing mail while in the performance of duty. In a February 2, 2018 narrative statement, she
noted that on January 23, 2018 she felt a tight pull in her right shoulder as she was casing mail.
Appellant also noted that on January 20 and 22, 2018 she worked with a truck that had an
emergency brake which was very difficult to pull. She stopped work on January 23, 2018.3
The record contains an employing establishment authorization for medical attention form,
dated January 23, 2018, which authorized appellant to seek medical treatment for right shoulder
pain.
On February 8, 2018 OWCP received an unsigned and undated duty status report (Form
CA-17) diagnosing right shoulder pain with an injury date of January 23, 2018.
In a development letter dated February 8, 2018, OWCP informed appellant that the
evidence of record was insufficient to establish her traumatic injury claim. It advised her of the
type of factual and medical evidence needed and provided a questionnaire for her completion.
OWCP afforded her 30 days to submit the necessary evidence.
In reports dated January 25 and 26 and February 1, 2, 6, 14, 15, and 28, 2018, chiropractors,
Dr. Edward Ceranto and Dr. David J. Craven diagnosed right shoulder sprain/strain. Physical
examination findings included tenderness and hypertonicity on palpation in the supraspinatus
insertion, supraspinatus, and superior trapezius. In an addendum note of February 14, 2018,
Dr. Ceranto noted that appellant had indicated that her injury occurred on January 20, 2018 when
pulling the brake on her truck. Appellant had also noted that her symptoms were aggravated on
January 23, 2018.
On February 20, 2018 appellant responded to OWCP. She noted that while casing mail
and lifting tubs on January 23, 2018 she felt her right shoulder pulling and continually getting
tighter. Appellant explained that on January 20 and 22, 2018 she had to push and pull on a tight
emergency brake, and that she was pushing and pulling the tight brake at every stop. She indicated
that she had a prior accepted claim from January 26, 2005 involving right shoulder impingement
and surgery.
In a March 1, 2018 report, Dr. Maxwell Stepanuk, Jr., an osteopath specializing in
orthopedic surgery, diagnosed right shoulder tendinitis and right shoulder impingement syndrome.
3

Appellant has a previously accepted right shoulder claim. OWCP assigned that claim File No. xxxxxx623 and
accepted that appellant’s right shoulder tendinitis and right shoulder impingement was due to a January 26, 2005
employment injury.

2

He noted that appellant had indicated that she began experiencing shoulder pain following driving
a truck with a tight hand brake for two days beginning on January 20, 2018. On January 23, 2018
appellant developed severe right shoulder pain with overhead use of her shoulder and had been off
work since then.
In a March 1, 2018 attending physician’s report (Form CA-20), Dr. Stepanuk diagnosed
right shoulder impingement and tendinitis and checked a box marked “yes” to the question of
whether it was employment related and assigned work restrictions on an accompanying work
capacity evaluation form (Form OWCP-5c).
In a March 5, 2018 report, Dr. Stephen P. Schmidt, an osteopath specializing in family
medicine, diagnosed right shoulder tendinitis. He reported that appellant was injured at work on
or about December 20, 2017. Dr. Schmidt also noted that appellant aggravated her previously
injured and repaired right shoulder from pulling and pushing and was seen on multiple dates
commencing January 23, 2018.
By decision dated March 16, 2018, OWCP denied appellant’s claim finding that the
evidence of record was insufficient to establish causal relationship between the diagnosed medical
condition and the accepted January 23, 2018 employment incident.
OWCP thereafter continued to receive medical evidence.
In progress notes dated March 9 and 20, 2018, Dr. Craven noted examination findings and
diagnosed right shoulder sprain/strain.
Dr. Stepanuk, in a March 15, 2018 report, diagnosed right shoulder tendinitis, right
trapezius strain/sprain, and cervical strain/sprain based on injury history, examination findings,
and review of x-ray interpretations. Examination findings included restricted right shoulder range
of motion with pain, cervical spasm, cervical range of motion, and right trapezius spasm. He
opined that appellant’s preexisting right shoulder injury/repaired right shoulder was aggravated by
employment activities performed on January 23, 2018, including pulling and pushing. In an
April 2, 2018 report, Dr. Stepanuk diagnosed right trapezius myositis.
On March 23, 2018 appellant was seen by Dr. Mark Pearson, a chiropractor, who provided
examination findings and diagnosed right shoulder strain/sprain.
On April 2, 2018 Dr. Schmidt released appellant to return to part-time work with
restrictions effective April 3, 2018.
In a form dated March 29, 2018, but postmarked April 21, 2018, appellant requested review
of the written record by an OWCP hearing representative.
In Form CA-17 reports dated April 4 and May 5, 2018, Dr. Schmidt released appellant to
return to work with restrictions effective April 5, 2018.
By decision dated July 20, 2018, OWCP denied appellant’s request for review of the
written record by an OWCP hearing representative as untimely filed.

3

In an August 7, 2018 report, Dr. Schmidt diagnosed right trapezius and cervical
sprains/strains, right shoulder tendinitis and impingement syndrome. He opined that appellant’s
right trapezius and cervical sprains/strains were directly caused by the accepted January 23, 2018
employment incident. Dr. Schmidt explained that she aggravated her prior injured/repaired
shoulder due to performing work duties including casing mail, as well as by pulling and pushing
on a stiff emergency brake.
On August 10, 2018 appellant requested reconsideration.
On August 24, 2018 OWCP received March 27 and August 7, 2018 reports from
Dr. Schmidt, which was repetitive of prior reports.
By decision dated November 5, 2018, OWCP denied modification.
On January 25, 2019 appellant, through counsel, requested reconsideration and submitted
additional medical evidence.
In a report dated January 23, 2019, Dr. Schmidt opined that appellant’s right shoulder
injury had been directly caused by repetitive use of a hand brake in her work. He described the
mechanism of injury as pulling a hand brake following repetitive stretching and reaching.
Dr. Schmidt explained that appellant had a prior work-related right shoulder injury, which required
surgery in 2011 and had resulted in a weakening of the shoulder.
By decision dated April 25, 2019, OWCP denied modification finding the medical
evidence of record was insufficient to establish that the diagnosed condition had been caused or
aggravated by the accepted January 23, 2018 employment incident. It noted that Dr. Schmidt had
identified two distinct causes, the repetitive motions and activities of appellant’s employment over
time, and her operation of a handbrake. However, the alleged event of January 23, 2018 only
referred to the lifting of tubs and casing mail.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,5 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

4

Supra note 2

5
J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).

4

the employment injury.6 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.7
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.8 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.9 The second component is whether the employment incident caused a personal injury.10
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.11
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.12 A physician’s opinion as to whether there is a causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.13 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).14
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-noted injury or disease and the preexisting condition.15
ANALYSIS
The Board finds that this case is not in posture for a decision.

6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7
R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

E.M., Docket No. 18-1599 (issued March 7, 2019); T.H., 59 ECAB 388, 393-94 (2008).

9

L.T., Docket No. 18-1599 (issued February 21, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

10

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

11

J.P., supra note 5; L.T., supra note 9; Shirley A. Temple, 48 ECAB 404 (1997).

12

E.M., supra note 8; Robert G. Morris, 48 ECAB 238 (1996).

13

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

14

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

15

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

5

Appellant filed a Form CA-1 alleging a January 23, 2018 traumatic injury arising from her
employment duties on January 23, 2018 involving casing mail and lifting tubs of mail. However,
in an accompanying narrative statement, she also alleged that her injury was due in part to pulling
on very tough emergency brake on January 20, and 22, 2018. Appellant also noted that she had a
prior accepted claim for right shoulder impingement and surgery. In response to OWCP’s
development letter, she again clarified that her current claim was related to both the pulling of the
emergency hand brake on January 20, and 22, 2018, as well as her repetitive lifting and casing
mail on January 23, 2018. The Board therefore finds that appellant indicated a traumatic injury by
filing a Form CA-1, but described an occupational disease.16 Under FECA, although it is the
employee’s burden of proof to establish his or her claim, OWCP also has a responsibility in the
development of the factual evidence.17 It is the duty of the claims examiner to develop a claim
based on the facts at hand and not solely on the basis of the type of claim form filed.18 OWCP’s
procedures provide that if the actual benefits claimed by the claimant cannot be determined from
review of the form, OWCP should develop the claim based upon the claim form filed and direct
questions to the claimant to determine the type of benefits claimed. Based upon the response to
the development letter, it should make a determination as to whether the correct claim was
established and, if not, it should convert the claim to the proper type of claim, and notify the
claimant and employing establishment (and any representative, if applicable) of the conversion.19
Appellant’s claim and subsequent statements relate circumstances of an occupational rather than
traumatic injury.
The Board further finds that the medical evidence of record also provides support for a
cumulative injury occupational disease claim. The reports from Drs. Schmidt and Stepanuk
attributed appellant’s right shoulder conditions to her use of a tight hand brake on January 20 and
22, 2018, as well as to her repetitive lifting and casing mail on January 23, 2018. However, OWCP
continued to adjudicate and deny appellant’s claim because she filed the claim as a traumatic injury
as it had allegedly occurred within a single workday or shift. Under the circumstances of the case,
appellant is alleging an occupational disease injury resulting from her work environment over a
period longer than a single workday or shift.
As noted, under OWCP File No. xxxxxx623 OWCP accepted that appellant’s right
shoulder tendinitis and right shoulder impingement was due to a January 26, 2005 employment
injury. OWCP’s procedures provide that cases should be administratively combined when correct
adjudication of the issues depends on frequent cross-referencing between files.20 For example, if

16
A traumatic injury is defined as a condition of the body caused by a specific event or incident, or series of events
or incidents, within a single workday or shift. 20 C.F.R. § 10.5(ee). An occupational disease is defined as a condition
produced by the work environment over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
17
See G.S., Docket No. 16-0908 (issued October 26, 2017); Willie A. Dean, 40 ECAB 1208, 1212 (1989); Willie
James Clark, 39 ECAB 1311, 1318-19 (1988).
18

Id.

19

Federal (FECA) Procedure Manual, Part 2 -- Claims, Development of Claims, Chapter 2.800.3(c)(2)(b)
(June 2011). S.N., Docket No. 12-1814 (issued March 11, 2013).
20

Id. at Chapter 2.400.8(c) (February 2000).

6

a new injury case is reported for an employee who previously filed an injury claim for a similar
condition or the same part of the body, doubling is required.21
Upon remand OWCP shall administratively combine the claim files and properly
adjudicate the claim as an occupational disease claim. After this and any other further development
as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 25, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded to OWCP for proceedings consistent
with this decision of the Board.
Issued: May 6, 2020
Washington, DC

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

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

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

21

Id.; N.S., Docket No. 19-0232 (issued July 11, 2019); K.T., Docket No. 17-0432 (issued August 17, 2018).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Munster, IN, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-1860
Issued: March 10, 2008

Case Submitted on the Record

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

JURISDICTION
On July 6, 2007 appellant filed a timely appeal from a June 1, 2007 merit decision of an
Office of Workers’ Compensation Programs’ hearing representative who affirmed a January 22,
2007 schedule award decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this schedule award.
ISSUE
The issue is whether appellant has more than a two percent right upper extremity
impairment and a two percent left upper extremity impairment, for which she received schedule
awards.
FACTUAL HISTORY
On August 10, 1999 appellant, then a 41-year-old letter carrier, filed an occupational
disease claim. She alleged that on July 14, 1999 she first realized the numbness and burning
sensation in her hands was employment related.1 The Office accepted the claim for bilateral
1

This was assigned claim file number 09-0456581.

carpal tunnel syndrome. In a second claim, also filed a August 10, 1999, appellant alleged that
on August 9, 1999 she first realized her left thumb condition was employment related.2 The
Office accepted this claim for left thumb tendinitis. On June 30, 2001 appellant filed an
occupational disease claim alleging that on December 19, 2000 she first realized her bilateral
carpal tunnel condition had been aggravated by her employment.3 The Office accepted the claim
for bilateral carpal tunnel syndrome on August 29, 2001.
On December 12, 2003 appellant filed an occupational disease claim alleging that on
November 30, 2003 she first realized her bilateral carpal tunnel condition was employment
related.4 The Office accepted her claim for exacerbation of bilateral carpal tunnel. The Office
paid appropriate compensation and authorized carpal tunnel surgery, which was performed on
April 28 and June 16, 2005.
On April 18, 2006 appellant filed a claim for a schedule award.
On June 13, 2006 the Office referred appellant to Dr. Richard H. Sidell, Jr., Boardcertified orthopedic surgeon, for an evaluation to determine the extent of her work-related
impairment. In a report dated July 14, 2006, Dr. Sidell reviewed the history of injury and
medical treatment. Appellant related that her carpal tunnel condition improved following
surgery, but she still experienced some residual minimal symptoms. Dr. Sidell noted no
electromyography (EMG) studies were available for review as none were performed following
her surgery. On examination, he noted no muscle atrophy, full range of motion in the hands and
wrists and a “minimally positive Tinel’s [s]ign at the right carpal area and a minimally positive
wrist compression test.” Dr. Sidell also found “normal sensation to pinprick, vibratory sensation
and two-point discrimination,” a negative bilateral Finkelstein test and “no tenderness over the
1st dorsal compartment bilaterally.” He reported minimal residual bilateral carpal tunnel
symptoms following her carpal tunnel surgery. Dr. Sidell opined that appellant had reached
maximum medical improvement. He stated:
“The [American Medical Association,] Guides to [the Evaluation of Permanent]
Impairment calls for ratings not to exceed [five] percent of the upper extremity. I
would recommend allowing [two] percent impairment of the right upper extremity
and [two] percent of the left upper extremity for a combined total of four percent
([four] percent) of the upper extremity using the [C]ombined [V]alues [C]hart on
[p]age 604.”

2

This was assigned claim file number 09-0456582. On July 26, 2000 the Office combined claim file numbers
09-0456581 and 09-0456582 with 09-0456581 as the master claim file number.
3

This was assigned claim number file 09-2010955. On May 22, 2006 the Office combined this claim file number
with 09-0456581. The master claim file number was listed as 09-0456581.
4

This was assigned claim file number 09-2041536. On May 22, 2006 the Office doubled this claim number with
claim file number 09-0456581. Claim file number 09-0456581 was the master file number.

2

In an August 30, 2006 report, an Office medical adviser noted his review of Dr. Sidell’s
July 14, 2006 report and found that appellant met the criteria found in scenario two on page 4955
of the A.M.A., Guides.6 He rated a two percent permanent impairment to each upper extremity,
resulting from the normal sensibility and residual carpal tunnel syndrome.
On January 22, 2007 appellant received a schedule award for a two percent permanent
impairment to both her right and left arms. The period of the award was for 12.48 weeks and ran
from July 14, 2006, the date of maximum medical improvement, to October 9, 2006.
On February 5, 2007 appellant requested review of the written record by an Office
hearing representative.7
By decision dated June 1, 2007, an Office hearing representative affirmed the January 27,
2007 schedule award determination.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act8 and its
implementing regulations9 sets 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 regulations as the appropriate standard for evaluating schedule losses.10
The A.M.A., Guides evaluates the permanent impairment caused by carpal tunnel
syndrome by determining whether such a condition falls within one of three categories discussed
in section 16.5d.11 Under the first category, if there are positive clinical findings of median
nerve dysfunction and an electrical conduction delay, the condition is rated under the standards
found earlier in Chapter 16 for evaluating sensory or motor deficits due to peripheral nerve
disorders. Under the second category, if there is normal sensibility (evaluated by two-point
discrimination and Semmes-Weinstein monofilament testing) and normal opposition strength
with abnormal sensory and/or motor latencies or abnormal EMG testing of the thenar muscles,
5

The Office medical adviser noted the page as 459, is appears to be a typographical error.

6

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

7

Appellant also requested an updated impairment rating for her left knee. However, as the Office has not issued
a final decision on this issue, it is not before the Board on this appeal. See 20 C.F.R. § 501.2(c).
8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404.

10

Id.; see Billy B. Scoles, 57 ECAB ___ (Docket No. 05-1696, issued December 7, 2005).

11

See A.M.A., Guides 495.

3

an impairment rating not to exceed five percent of the upper extremity may be justified. Under
the third category, if there is normal sensibility, opposition strength and nerve conduction
studies, there is no objective basis for an impairment rating.12
ANALYSIS
The Office accepted appellant’s claim for left thumb tendinitis, bilateral carpal tunnel
syndrome and bilateral carpal tunnel release. The Office granted her a schedule award for two
percent impairment of the right upper extremity and a two percent impairment of the left upper
extremity.
As noted, Office procedures13 provide that upper extremity impairment secondary to
carpal tunnel syndrome and other entrapment neuropathies should be calculated using section
16.5d and Tables 16-10, 16-11 and 16-15.14 Regarding carpal tunnel syndrome, section 16.5d of
the A.M.A., Guides evaluates the permanent impairment caused by this condition by determining
whether such a condition falls within one of three categories. The Board has noted that the fifth
edition of the A.M.A., Guides provides that impairment for carpal tunnel syndrome be rated on
motor and sensory impairments only.15 Thus, Dr. Sidell and the Office medical adviser properly
did not include an impairment rating for pain.
Dr. Sidell and the Office medical adviser agreed that appellant has two percent
impairment to both her left and right extremities. He classified appellant under scenario number
two of section 16.5d, noting that she had normal sensibility, normal opposition strength and
minimal residual symptoms following her carpal tunnel release with significant post surgery
improvement.16 The Office medical adviser agreed with Dr. Sidell’s impairment rating. Both
Dr. Sidell and the Office medical adviser properly applied the A.M.A., Guides in reaching this
determination. The A.M.A., Guides state that, when normal sensibility and opposition strength
with abnormal sensory and/or motor latencies or abnormal EMG testing of the thenar muscles, a
residual carpal tunnel syndrome is still present, an impairment rating is not to exceed five percent
of the upper extremity.17 Dr. Sidell, an examining physician, determined that, based on
appellant’s medical findings, she had a two percent impairment to the left upper extremity and a
two percent impairment to the right upper extremity. The Board finds that both physicians
properly applied the A.M.A., Guides. The Board notes that there is no other medical evidence of
record which establishes greater impairment to appellant’s upper extremities. The Board,
therefore, finds that the report of Dr. Sidell and the Office medical adviser establishes that
appellant has no greater than the two percent impairment awarded for each upper extremity.
12

Id.

13

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808 (August 2002)
14

Supra note 6.

15

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

16

Id.

17

See A.M.A., Guides 495.

4

CONCLUSION
The Board finds that appellant has failed to establish that she has more than two percent
impairment to for each upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 1, 2007 is affirmed.
Issued: March 10, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Southeastern, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-1549
Issued: April 24, 2008

Case Submitted on the Record

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

JURISDICTION
On May 21, 2007 appellant filed a timely appeal from a December 13, 2006 decision of a
hearing representative of the Office of Workers’ Compensation Programs that affirmed a
May 30, 2006 Office decision terminating her compensation benefits and denying her request for
a schedule award. She also appealed a March 5, 2007 decision, which denied her claim for a
recurrence of disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has
jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether the Office met its burden of proof to justify termination of
appellant’s benefits effective May 30, 2006; (2) whether appellant established that she had any
continuing employment-related disability or condition after May 30, 2006; (3) whether the
Office properly denied appellant’s claim for a schedule award for the left upper extremity; and
(4) whether the Office properly denied appellant’s claim for a recurrence of disability.

FACTUAL HISTORY
On July 28, 2000 appellant, then a 50-year-old bundle sorter operator, filed a recurrence
of disability claim alleging that she developed left shoulder and left hand pain while performing
her work duties. The Office advised appellant that this claim was a new condition and would be
developed as an occupational disease claim.1 The Office accepted the claim for left shoulder
bursitis, left carpal tunnel syndrome and cervical thoracic strain. Appellant did not stop work
and returned to a light-duty position.
Appellant came under the care of Dr. Scott M. Fried, an osteopath, who treated her since
June 2001. In his reports dated June 5 to July 19, 2002, Dr. Fried treated appellant for left
shoulder bursitis and bilateral carpal tunnel syndrome. He noted that appellant worked as a
bundle sorter and was required to perform repetitive hand, wrist and arm activity. Dr. Fried
diagnosed left shoulder capsulitis with auxiliary neuritis and scapular winging, brachial
plexopathy on the left and mild on the right, bilateral median neuropathy and radial tunnel left
with mild cubital tunnel. A June 20, 2002 functional capacity evaluation indicated restrictions
on lifting and overhead activity.
The Office referred appellant to Dr. Robert D. Aiken, a Board-certified neurologist, for a
second opinion. In a September 12, 2002 report, Dr. Aiken noted appellant’s history and listed
findings. He diagnosed cervical sprain and strain, lumbar sprain and a visibly enlarged upper left
arm. Dr. Aiken opined that appellant had residuals of her work injury characterized by neck, low
back and left arm pain. He recommended further evaluation regarding the enlarged upper left
arm. Dr. Aiken opined that appellant could work full time with restrictions. A November 13,
2002 electromyogram (EMG) revealed left brachial plexus level neuropathy and mild left radial
nerve segmental neuropathy of the elbow with borderline normal values on the right.
On January 20, 2003 appellant requested a schedule award. The Office referred
Dr. Aiken’s report to an Office’s medical adviser who, on March 18, 2003, noted that appellant
was not at maximum medical improvement and recommended an evaluation by a rheumatologist
to determined the etiology of appellant’s enlarged left upper extremity.
The Office referred appellant to Dr. Arthur Huppert, a Board-certified rheumatologist, for
a second opinion. In an August 15, 2003 report, Dr. Huppert diagnosed neck pain, shoulder pain,
rotator cuff syndrome and painful feet syndrome. He advised that appellant’s symptoms were
not due to a discrete work injury because they were too widespread and there was insufficient
specific trauma to cause such pain. Dr. Huppert opined that there was an underlying multifocal
degenerative joint disease in the cervical spine, hands and shoulders. He recommended an
extensive work-up to include x-rays, magnetic resonance imaging (MRI) scan and EMG.
Dr. Huppert opined that there was an unlikely relationship between appellant’s job and pain;
however, in the alternative, if significant abnormalities were found on the diagnostic testing, then
consideration of permanent or partial disability needed to be examined. In an October 1, 2003
supplemental report, Dr. Aiken recommended physical therapy for appellant’s neck, shoulders
1

The record reflects that appellant filed a claim which was accepted for right carpal tunnel syndrome, claim
number 03-2003692. She also filed a claim which was accepted for a left foot contusion, claim number 03-0247106.
These claims are not before the Board at this time.

2

and lower back with work hardening. He opined that, after a regimen of physical therapy,
appellant could return to work.
On December 11, 2003 appellant claimed a schedule award and submitted an August 14,
2003 report from Dr. David Weiss, an osteopath, who diagnosed cumulative and repetitive
trauma disorder, bilateral brachial plexopathy, left greater than right, left median nerve
neuropathy, bilateral radial tunnel syndrome, left greater than right, acromioclavicular
arthropathy with impingement to the left shoulder, chronic supraspinatus tendinitis to the left
shoulder, cumulative and repetitive trauma disorder with diffuse degenerative joint disease and
bilateral tarsal tunnel syndrome. Dr. Weiss opined that, under American Medical Association,
Guides to the Evaluation of Permanent Impairment, (A.M.A., Guides)2 appellant had 31 percent
impairment of the left arm, 13 percent impairment of the right arm and 15 percent impairment of
the left leg.
The Office referred Dr. Weiss’ report to the Office’s medical adviser who, in a report
dated January 2, 2004, recommended an impartial examination after reviewing the reports of the
second opinion physicians, Drs. Aiken and Huppert, who determined that there was no motor
impairment on a neurologic basis and appellant’s symptoms were not due to a work injury but an
underlying multifocal degenerative joint disease and Dr. Weiss, her physician, who opined that
she had work-related impairment of the both arms and the left leg. On January 21, 2004 the
Office found a conflict of medical opinion between Drs. Weiss and Fried, appellant’s physicians,
and Drs. Aiken and Huppert, Office referral physicians.
To resolve the conflict, the Office referred appellant to Dr. Barry Silver, a Board-certified
orthopedic surgeon. In a September 17, 2004 report, Dr. Silver reviewed the medical record,
noted a history of appellant’s work-related injury and examined her. He noted examination
findings of normal station and gait, negative Spurling test, thoracic and lumbar spine tenderness
but no spasm. Dr. Silver noted range of motion of the elbows and hands, with evidence of
atrophy of the thenar eminence, positive Tinel’s sign, normal motor power and normal range of
motion of the knees, ankles and feet. He opined that appellant’s multiple orthopedic problems
were rheumatological in origin and not work related. Dr. Silver disagreed with the conclusions
of Dr. Weiss and noted that appellant did not develop a repetitive trauma disorder or bilateral
plexopathy as a result of her work duties; rather, her inability to work was result of an underlying
rheumatological disorder which began in the mid 1990’s.
Appellant submitted an August 4, 2004 report from Dr. Fried who noted that appellant
remained symptomatic with pain, numbness and tingling in her arms and hands. Dr. Fried
repeated his previous diagnoses and noted a positive supraclavicular Tinel’s sign on the left and
at the median nerves of both wrists, positive Phalen’s bilaterally for dysesthesia. Also submitted
was a September 4, 2003 EMG that revealed marginal left brachial plexus level neuropathy of
the upper and lower trunks, moderate left ulnar nerve segmental neuropathy at the elbow level
and bilateral and moderate radial nerve segmental neuropathy at the dorsal elbow levels. Also
appellant submitted an MRI scan of the lumber spine dated September 22, 2004, which revealed
a mid level bulge at L4-5 and mild diffuse annular bulging at L5-S1.
2

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

3

On January 11, 2005 the Office proposed to terminate appellant’s compensation benefits
on the grounds that Dr. Silver’s report established no residuals of the work-related conditions.
Appellant’s attorney submitted a brief dated January 18, 2005 and advised that Dr. Silver did not
have a complete statement of accepted facts, that he had no history of her work duties and was
not properly selected from the physician’s directory system.
By decision dated February 17, 2005, the Office terminated appellant’s compensation
benefits effective February 17, 2005 on the grounds that the weight of the medical evidence
established that she had no continuing disability resulting from her work injury.
In a letter dated February 22, 2005, appellant requested an oral hearing which was held
on July 20, 2005. She submitted reports from Dr. Fried dated March 9 and July 16, 2005 that
provided a summary of treatment since February 1998. Dr. Fried indicated that appellant
remained symptomatic with ongoing evidence of work-related nerve injuries and repetitive strain
syndrome. He disagreed with the findings of Dr. Silver and asserted that appellant’s ongoing
limitations and conditions were caused by her work duties.
In a November 7, 2005 decision, the hearing representative set aside the February 17,
2005 decision, finding that the Office incorrectly found a conflict between the Office physicians,
Drs. Aiken and Huppert, and appellant’s physician, Dr. Fried. The hearing representative noted
that Dr. Huppert was speculative and Dr. Aiken did not address whether appellant had permanent
impairment or residuals of her accepted conditions. The hearing representative found that, since
there was no true conflict between Drs. Aiken and Huppert and Drs. Weiss and Fried,
Dr. Silver’s report would be considered a second opinion. The hearing representative
determined that there was a conflict between Dr. Fried, appellant’s treating physician, who noted
that she had continued work-related residuals and Dr. Silver who opined that her symptoms were
of a rheumatological origin and that she did not have an underlying brachial plexopathy and
radial tunnel neuropathy. The hearing representative instructed the Office to refer appellant to an
impartial medical specialist to resolve the medical conflict regarding any continuing residuals or
permanent impairment. The Office subsequently referred appellant to Dr. William H. Spellman,
a Board-certified orthopedic surgeon, to resolve the conflict.
In a February 11, 2006 report, Dr. Spellman noted appellant’s medical history since 1997
and also noted the history of her work-related injury. Physical examination revealed: no
asymmetrical atrophy of the neck, shoulder girdle and upper back; no scapular winging; full
painless range of motion of the neck and both shoulders with no impingement; full painless
range of motion of the elbows, wrist and all distal joints; full distal motor strength and negative
Tinel’s and Phalen’s signs at the wrist symmetrically with full distal motor strength.
Dr. Spellman opined that appellant’s physical examination was not consistent with sequelae in
her neck, upper back, shoulder girdle area or left upper extremity as a result of the reported
events of July 28, 2000. He noted that appellant fully recovered from the events of July 28, 2000
and required no further treatment or restrictions.
On February 23, 2006 the Office requested clarification from Dr. Spellman, specifically
requesting that he address whether appellant had residuals of the accepted left carpal tunnel
syndrome, left shoulder bursitis and cervicothoracic strain. In a March 7, 2006 addendum,
Dr. Spellman opined that appellant had no residuals of the accepted conditions of left carpal

4

tunnel syndrome, left shoulder bursitis and cervicothoracic strain. He noted that the physical
examination of appellant on February 11, 2006 revealed no abnormalities of her neck, upper
back or upper extremities and opined that she had no continuing residuals or permanent
impairment as a result of her accepted conditions.
On March 9, 2006 the Office issued a notice of proposed termination of all medical
benefits on the grounds that Dr. Spellman’s reports dated February 11 and March 7, 2006
established no residuals of the work-related employment injuries. Appellant submitted a
March 20, 2006 statement and noted that Dr. Spellman did not have a complete statement of
accepted facts and his conclusions were not supported by medical rationale. She submitted a
May 1, 2006 report from Dr. Fried who disagreed with Dr. Spellman and noted that
Dr. Spellman’s opinions were based on an examination that was not consistent with multiple
serial examinations performed by Dr. Fried which revealed scapular winging and a positive
Tinel’s sign. Dr. Fried noted that Dr. Spellman failed to account for the positive EMG nerve
conduction studies and he lacked an understanding of appellant’s work activities. He repeated
his previous diagnoses and opined that appellant continued to have residuals of her accepted
work injury and was not capable of returning to her previous job.
On April 10, 2006 the Office requested further clarification from Dr. Spellman. The
Office specifically noted that it had accepted that appellant developed an occupational disease at
work and asked that Dr. Spellman provide additional rationale to support his opinion that the
accepted conditions had resolved. In an addendum report dated May 16, 2006, Dr. Spellman
opined that appellant had no residuals of her accepted left carpal tunnel syndrome, left shoulder
bursitis and cervicothoracic strain and he based his opinion on the normal physical examination
which was consistent with her having fully recovered. He opined that appellant did not require
further treatment or restrictions for these conditions as they had resolved.
In a May 30, 2006 decision, the Office terminated appellant’s medical benefits effective
May 30, 2006 on the grounds that the weight of the medical evidence, represented by
Dr. Spellman, established that she had no residuals of her accepted conditions of left shoulder
bursitis, left carpal tunnel syndrome and cervical thoracic strain. The Office noted that, as
Dr. Spellman found that appellant had recovered from the work injury and had no continuing
residuals or impairment of the left arm, there was no basis for a schedule award.
Appellant requested an oral hearing which was held on October 25, 2006. In a
December 13, 2006 decision, the hearing representative affirmed the May 30, 2006 Office
decision, finding that appellant had no residuals due to her accepted conditions.
On August 31, 2006 appellant filed a recurrence of disability claim, alleging that on
August 25, 2006 she had worsening of her left shoulder pain and carpal tunnel syndrome and
stopped work. She noted that her last job at the employing establishment was light duty.
On January 29, 2007 the Office advised appellant of the type of factual and medical
evidence needed to establish her claim for a recurrence of disability. Appellant submitted a
February 8, 2007 statement noting that, since March 14, 2003, she worked limited duty until
August 25, 2006 when her supervisor instructed her leave the facility until she could perform the

5

full functions of her job description. She contended that the employing establishment could not
accommodate her medical restrictions beginning August 25, 2006.
In a decision dated March 5, 2007, the Office denied appellant’s claim for a recurrence of
disability.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.3 After it has determined that an employee has disability
causally related to his or her federal employment, the Office may not terminate compensation
without establishing that the disability has ceased or that it is no longer related to the
employment.4 The right to medical benefits for an accepted condition is not limited to the period
of entitlement for disability. To terminate authorization for medical treatment, the Office must
establish that a claimant no longer has residuals of an employment-related condition, which
requires further medical treatment.5
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for left shoulder bursitis, left carpal tunnel
syndrome and cervical thoracic strain. The Office subsequently developed the medical evidence
and determined that a conflict in medical opinion existed between appellant’s attending
physician, Dr. Fried, a Board-certified family practitioner, who disagreed with the Office referral
physician, Dr. Silver, a Board-certified orthopedist, concerning whether she had any continuing
work-related condition and permanent impairment. Consequently, the Office referred appellant
to Dr. Spellman to resolve the conflict.6
Where there exists a conflict of medical opinion and the case is referred to an impartial
specialist for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently
well rationalized and based upon a proper factual background, is entitled to special weight.7
The Board finds that, under the circumstances of this case, the opinion of Dr. Spellman is
sufficiently well rationalized and based upon a proper factual background such that it is entitled
to special weight and establishes that appellant’s work-related condition has ceased.
In his February 11, 2006 report, Dr. Spellman reviewed appellant’s history, reported
findings and noted that she exhibited no objective complaints or definite work-related
abnormality in her condition. He opined that there were no objective findings on examination to
3

Gewin C. Hawkins, 52 ECAB 242 (2001); Alice J. Tysinger, 51 ECAB 638 (2000).

4

Mary A. Lowe, 52 ECAB 223 (2001).

5

Id. Leonard M. Burger, 51 ECAB 369 (2000).

6

See 5 U.S.C. § 8123(a).

7

Aubrey Belnavis, 37 ECAB 206 (1985). See id.

6

support any residuals of the accepted conditions as examination of the neck, shoulder girdle and
upper back revealed no asymmetry or asymmetrical atrophy, no scapular winging, full painless
range of motion of the neck, both shoulders, elbows, wrist and all distal joints, full motor
strength was full and negative Tinel’s and Phalen’s signs. Dr. Spellman opined that appellant’s
physical examination was not consistent with sequelae in her neck, upper back, shoulder girdle
area or left upper extremity as a result of the reported events of July 28, 2000. He opined that
appellant fully recovered and required no further treatment or restrictions. In supplemental
reports dated March 7 and May 16, 2006, Dr. Spellman opined that appellant had no residuals or
permanent impairment of the accepted conditions of left carpal tunnel syndrome, left shoulder
bursitis and cervicothoracic strain. He noted that the physical examination of appellant on
February 11, 2006 revealed no abnormalities of her neck, upper back or upper extremities and
concluded that her conditions had resolved.
Appellant submitted a May 1, 2006 report from Dr. Fried who disagreed with
Dr. Spellman and asserted that Dr. Spellman’s opinions were based on an examination that was
not consistent with his findings and that Dr. Spellman did not understand appellant’s work
activities or account for the positive EMG and nerve conduction studies. Dr. Fried opined that
appellant continued to have residuals of her accepted work injury and could not return to her
previous job. However, he did not specifically explain how any continuing condition or medical
restrictions were causally related to the accepted employment condition. The Board has found
that vague and unrationalized medical opinions on causal relationship have little probative
value.8 Additionally, Dr. Fried’s reports are similar to his prior reports and are insufficient to
overcome that of Dr. Spellman or to create a new medical conflict.9
The Board finds that Dr. Spellman had full knowledge of the relevant facts and evaluated
the course of appellant’s condition. He is a specialist in the appropriate field. At the time
benefits were terminated, Dr. Spellman clearly opined that residuals of appellant’s accepted
conditions had resolved. His opinion as set forth in his reports is found to be probative evidence
and reliable. The Board finds that Dr. Spellman’s opinion constitutes the weight of the medical
evidence and is sufficient to justify the Office’s termination of benefits.
LEGAL PRECEDENT -- ISSUE 2
If the Office meets its burden of proof to terminate appellant’s compensation benefits, the
burden shifts to her to establish that she had continuing disability causally related to her accepted
employment injury.10 To establish a causal relationship between the condition, as well as any
disability claimed and the employment injury, the employee must submit rationalized medical
opinion evidence, based on a complete factual background, supporting such a causal relationship.
Rationalized medical opinion evidence is medical evidence, which includes a physician’s
8

Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
9

See Michael Hughes, 52 ECAB 387 (2001); Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992);
Dorothy Sidwell, 41 ECAB 857 (1990). The Board notes that Dr. Fried’s reports do not contain new findings or
rationale upon which a new conflict might be based.
10

Manuel Gill, 52 ECAB 282 (2001); George Servetas, 43 ECAB 424, 430 (1992).

7

rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant. The weight of medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested and the medical rationale expressed
in support of the physician’s opinion.11
ANALYSIS -- ISSUE 2
The Board finds that appellant has not established that she has any continuing residuals of
her left shoulder bursitis, left carpal tunnel syndrome and cervical thoracic strain. Subsequent to
the termination of benefits, appellant did not submit any new medical evidence.
The Board notes that, before the Office hearing representative and on appeal, appellant
asserted that the statement of accepted facts dated November 21, 2005 was inaccurate and
prejudicial. She asserted that Dr. Spellman was misdirected with regard to the nature of
appellant’s injury, his reports contained no rationale for his findings and he failed to reference
the EMG studies. The Board has reviewed Dr. Spellman’s reports. Dr. Spellman reviewed
appellant’s history in detail and, as noted above, demonstrated an awareness of the occupational
disease which commenced in July 2000 and her accepted conditions. Despite appellant’s
contention regarding the statement of accepted facts, the impartial medical examiner adequately
addressed her accepted injuries in this claim. Dr. Spellman provided findings on examination of
each of these areas and noted diagnostic testing. He found no basis on which to attribute any
continuing residuals to appellant’s accepted employment conditions. Consequently, appellant
has not established entitlement to continuing benefits.
LEGAL PRECEDENT -- ISSUE 3
The schedule award provision of the Federal Employees’ Compensation Act12 and its
implementing regulations13 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.14

11

See Connie Johns, 44 ECAB 560 (1993); James Mack, 43 ECAB 321 (1991).

12

5 U.S.C. § 8107.

13

20 C.F.R. § 10.404 (1999).

14

Id.

8

ANALYSIS -- ISSUE 3
On appeal, appellant alleges that she is entitled to a schedule award for permanent
impairment of her left upper extremity. The Office accepted appellant’s claim for left carpal
tunnel syndrome, left shoulder bursitis and cervicothoracic strain. As noted above, the Office
found that a conflict existed in the medical evidence between appellant’s attending physician,
Dr. Fried and Dr. Weiss, who disagreed with the Office referral physician, Dr. Silver concerning
whether appellant had any permanent impairment of the left upper extremity. Consequently, the
Office referred appellant to Dr. Spellman to resolve the conflict.
The Board finds that, under the circumstances of this case, the opinion of Dr. Spellman is
sufficiently well rationalized and based upon a proper factual background such that it is entitled
to special weight and establishes that appellant has no impairment of the left upper extremity.
Dr. Spellman reviewed appellant’s history, reported findings and noted an essentially
normal physical examination. He noted findings upon physical examination of no atrophy of the
neck, shoulder girdle and upper back, full painless range of motion of the neck, both shoulders,
elbows, wrist and all distal joints with no impingement present and full distal motor strength. In
his March 7, 2006 supplemental report, Dr. Spellman opined that, in accordance with the fifth
edition of the A.M.A., Guides, appellant did not have any permanent impairment of the left
upper extremity as a result of her accepted conditions.
The Board finds that Dr. Spellman properly determined that there was no basis under the
A.M.A., Guides for a schedule award for the left arm.15
LEGAL PRECEDENT -- ISSUE 4
A “recurrence of disability” means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
injury or illness without an intervening injury or a new exposure to the work environment.16
Where appellant claims a recurrence of disability due to an accepted employment-related injury,
she has the burden of establishing by the weight of reliable, probative and substantial evidence
that the recurrence of disability is causally related to the original injury.17 This burden includes
the necessity of furnishing evidence from a qualified physician who, on the basis of a complete
and accurate factual and medical history, concludes that the condition is causally

15

This does not preclude appellant from pursuing a schedule award for the right arm under claim
number 03-2003692.
16

20 C.F.R. § 10.5(x).

17

Robert H. St. Onge, 43 ECAB 1169 (1992).

9

related to the employment injury.18 Moreover, the physician’s conclusion must be supported by
sound medical reasoning.19
The medical evidence must demonstrate that the claimed recurrence was caused,
precipitated, accelerated or aggravated by the accepted injury.20 In this regard, medical evidence
of bridging symptoms between the recurrence and the accepted injury must support the
physician’s conclusion of a causal relationship.21 While the opinion of a physician supporting
causal relationship need not be one of absolute medical certainty, the opinion must not be
speculative or equivocal. The opinion should be expressed in terms of a reasonable degree of
medical certainty.22
ANALYSIS -- ISSUE 4
The Office accepted appellant’s claim for left carpal tunnel syndrome, left shoulder
bursitis and cervicothoracic strain. As noted above, the Office found that a conflict existed in the
medical evidence and referred appellant to an impartial medical examiner, Dr. Spellman, who
determined that she had no residuals or permanent impairment of the accepted conditions. On
May 30, 2006 the Office terminated appellant’s compensation.
Appellant did not submit any medical evidence in support of her claim for recurrence of
disability commencing August 25, 2006. Instead, she noted that the employing establishment did
not make light duty available after August 25, 2006. The Board notes that at the time of the
claimed recurrence of disability appellant was working a light-duty position. However, as noted
above, appellant’s compensation benefits were terminated on May 30, 2006 based on a referee
physician’s report which determined that she had no residuals or permanent impairment due to
her accepted work conditions. Therefore, the light-duty position was not based on restrictions
that were necessitated by an employment injury. While a claimant who is disabled from the job
held when injured on account of employment-related residuals, returns to a light-duty position,
the claimant can establish a recurrence by showing a change in the nature and extent of the
light-duty requirements.23 However, in this case, because appellant no longer had work-related
residuals after May 30, 2006 she had no need for light duty due to her work-related condition.
18

Section 10.104(a)-(b) of the Code of Federal Regulations provides that when an employee has received medical
care as a result of the recurrence, he or she should arrange for the attending physician to submit a detailed medical
report. The physician’s report should include the physician’s opinion with medical reasons regarding the causal
relationship between the employee’s condition and the original injury, any work limitations or restrictions and the
prognosis. 20 C.F.R. § 10.104.
19

See Robert H. St. Onge, supra note 17.

20

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.2 (June 1995).

21

For the importance of bridging information in establishing a claim for a recurrence of disability, see Robert H.
St. Onge, supra note 17; Shirloyn J. Holmes, 39 ECAB 938 (1988); Richard McBride, 37 ECAB 748 (1986).
22

See Ricky S. Storms, 52 ECAB 349 (2001); Morris Scanlon, 11 ECAB 384, 385 (1960).

23

Terry R. Hedman, 38 ECAB 222 (1986). See 20 C.F.R. § 10.5(x) for the definition of a recurrence of
disability.

10

As noted, appellant has the burden of proof to establish her claim for a recurrence of
disability and this burden includes the necessity of furnishing medical evidence from a physician
who concludes that the condition is causally related to the employment injury. In this instance,
she failed to submit medical evidence supporting a recurrence of disability beginning
August 25, 2006. Therefore, appellant has not met her burden of proof in establishing a
recurrence of disability.
CONCLUSION
The Board finds that the Office has met its burden of proof to terminate benefits effective
May 30, 2006 and that appellant failed to establish that she had any continuing disability after
May 30, 2006. It further finds that the Office properly denied appellant’s request for a schedule
award for the left upper extremity and that appellant failed to establish that she had a recurrence
of disability on August 25, 2006 causally related to her accepted work condition.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 5, 2007 and December 13, 2006 are affirmed.
Issued: April 24, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.Y., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Eureka, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 20-0470
Issued: July 15, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On December 30, 2019 appellant, through counsel, filed a timely appeal from a
November 4, 2019 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 to consider 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 back and right
shoulder conditions causally related to the accepted September 28, 2017 employment incident.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On October 1, 2017 appellant, then a 38-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that, on September 28, 2017, she sustained a back contusion, upper
back strain, and a right shoulder injury while in the performance of duty. She stopped work on
September 29, 2017.
Appellant submitted an undated letter describing the alleged September 28, 2017
employment incident. She explained that management directed her to change out overloaded
containers from a belt, but when she tried to pull a container forward weighing approximately 500
pounds, which was overloaded with parcels and magazines from the backside of the belt, it would
not move.4
OWCP, by decision dated November 20, 2017, accepted that the September 28, 2017
employment incident occurred as alleged, but denied appellant’s traumatic injury claim finding
that the medical evidence of record was insufficient to establish a medical condition causally
related to the accepted employment incident.
By decision dated August 2, 2018, OWCP’s hearing representative affirmed the
November 20, 2017 decision finding that the medical evidence of record did not contain a
rationalized opinion explaining causal relationship between appellant’s medical condition and the
accepted September 28, 2017 employment incident.
By decision dated April 18, 2019, the Board affirmed the August 2, 2018 decision finding
that appellant had not met her burden of proof to establish back and right shoulder conditions
causally related to the September 28, 2017 employment incident.5
On August 6, 2019 appellant, through counsel, requested reconsideration and submitted
additional evidence.

3

Docket No. 18-1814 (issued April 18, 2019).

4

On November 15, 2017 the employing establishment offered appellant a modified mail handler position, which
she accepted on that date.
5

Supra note 3.

2

In orthopedic notes dated March 19, 2018 to June 5, 2019, Dr. Erik McGoldrick, an
attending Board-certified orthopedic surgeon, noted a history that appellant had presented for
evaluation of right shoulder pain since September 2017 when she pushed an overloaded crate. He
reported findings on physical examination and provided diagnoses of partial tear of the rotator cuff
and right shoulder subluxation. In a March 19, 2018 orthopedic note, Dr. McGoldrick indicated
that appellant had a considerable degree of ligamentous laxity on examination and that he
suspected that she may have subluxed her shoulder while pushing a crate last year as her left
shoulder subluxed on examination with an O’Brien’s test. In an August 8, 2018 orthopedic note,
he reported that appellant had persistent instability which was consistent with the mechanism of
injury reported at work. Dr. McGoldrick, in a June 5, 2019 orthopedic note, indicated that she
may have had underlying ligamentous laxity, and the incident at work likely converted her normal
(for her) ligamentous laxity to pathologic ligamentous laxity, which resulted in pain unchanged
with physical therapy. He noted that appellant was very clear to him that her pain started after an
incident at work. Dr. McGoldrick also noted that while a magnetic resonance imaging (MRI) scan
report had not indicated a discrete tear, she had laxity clinically, which he deemed pathologic
because it elicited pain for her. He indicated that this had been addressed with surgery through a
capsular plication and noted that appellant had done reasonably well since surgery. In a
September 27, 2018 operative report, Dr. McGoldrick indicated that he performed a right shoulder
arthroscopic labral repair and posterior capsule plication. He provided a pre-procedure and postprocedure diagnosis of posterior labral tear and instability.
Dr. Stephen L. Viltrakis, a Board-certified diagnostic radiologist, reported that a June 1,
2018 MRI scan of the right shoulder revealed an impression of uncomplicated percutaneous right
shoulder arthrocentesis for injection of gadolinium into the joint space noted.
Dr. James B. Moore, a Board-certified diagnostic radiologist, indicated that a right
shoulder MRI arthrogram also performed on June 1, 2018 was normal. He noted that there were
no signs of rotator cuff tear, partial or full thickness, and no labral abnormality.
OWCP, by decision dated November 4, 2019, denied modification of the prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim, including 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,7 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

6

Supra note 2.

7

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).

3

employment injury.8 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.9
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. Second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.10
The medical evidence required to establish a causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.11 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee.12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish back and right
shoulder conditions causally related to the accepted September 28, 2017 employment incident.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
that was previously considered in its April 18, 2019 decision. Findings made in prior Board
decisions are res judicata, absent any further review by OWCP under section 8128 of FECA.13
Following the Board’s April 18, 2019 decision, appellant requested reconsideration of her
claim with OWCP and submitted additional medical evidence in support of her request. She
submitted a series of orthopedic notes from Dr. McGoldrick who noted an accurate history of the
September 27, 2018 employment incident and provided diagnoses of partial tear of the rotator cuff
and subluxation of the right shoulder. In an August 8, 2018 orthopedic note, Dr. Goldrick opined
8

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
9

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
10

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
11
S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019);
Robert G. Morris, 48 ECAB 238 (1996).
12

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
13

C.D., Docket No. 19-1973 (issued May 21, 2020); M.D., Docket No. 20-0007 (issued May 13, 2020).

4

that appellant had persistent instability which was consistent with the mechanism of injury reported
at work. The Board finds that Dr. McGoldrick’s opinion is generally supportive of causal
relationship, however, he has not provided adequate medical rationale explaining the basis of his
opinion. The Board has held that a report is of limited probative value regarding causal
relationship if it does not contain medical rationale explaining how a given medical
condition/disability was related to employment factors.14 In a March 19, 2018 orthopedic note,
Dr. McGoldrick found that appellant had a considerable degree of ligamentous laxity on
examination and indicated that he was suspicious that she “may” have subluxed her shoulder while
pushing a crate last year as her left shoulder subluxed on examination with an O’Brien’s test. In a
June 5, 2019 orthopedic note, he related that appellant may have had underlying ligamentous laxity
and opined that the accepted work incident “likely” converted her normal (for her) ligamentous
laxity to pathologic ligamentous laxity based on MRI scan findings. Dr. McGoldrick maintained
that she made it very clear to him that her pain started after an incident at work. The Board finds,
however, that these reports are speculative. It has long been held that medical opinions that are
speculative or equivocal in character have little probative value.15 Dr. McGoldrick’s remaining
September 27, 2018 operative report did not contain an opinion on the cause of appellant’s
diagnosed conditions. The Board has held that medical evidence that does not offer an opinion
regarding the cause of an employee’s condition is of no probative value on the issue of causal
relationship.16 For these reasons, the medical evidence from Dr. McGoldrick is insufficient to
satisfy appellant’s burden of proof.
Appellant also submitted diagnostic test reports dated June 1, 2018 from Dr. Viltrakis and
Dr. Moore. The Board has held that diagnostic studies, standing alone, lack probative value on
the issue of causal relationship as they do not address whether the employment incident caused
any of the diagnosed conditions.17 As such, these reports are insufficient to establish appellant’s
claim.
As there is no well-reasoned medical opinion establishing appellant’s claim for
compensation the Board finds that she has not met her burden of proof.18
On appeal counsel contends that Dr. McGoldrick’s June 5, 2019 medical note clearly
explained the pathophysiologic cause of appellant’s injury. However, as explained above,
14

See T.J., Docket No. 19-1339 (issued March 4, 2020); Y.D., Docket No. 16-1896 (issued February 10, 2017)
(finding that a report is of limited probative value regarding causal relationship if it does not contain medical rationale
describing the relation between work factors and a diagnosed condition/disability).
15

J.W., Docket No. 18-0678 (issued March 3, 2020); N.B., Docket No. 19-0221 (issued July 15, 2019); T.M.,
Docket No. 08-0975 (issued February 6, 2009).
16

T.J., supra note 14; F.D., Docket No. 19-0932 (issued October 3, 2019); A.L., Docket No. 18-1756 (issued
April 15, 2019); K.E., Docket No. 18-1357 (issued March 26, 2019); L.B., Docket No. 18-0533 (issued
August 27, 2018).
17

See T.J., id.; F.D., id.; B.C., Docket No. 18-1735 (issued April 23, 2019); J.S., Docket No. 17-1039 (issued
October 6, 2017).
18
T.J., id.; F.D., id.; D.N., Docket No. 19-0070 (issued May 10, 2019); R.B., Docket No. 18-1327 (issued
December 31, 2018).

5

Dr. McGoldrick has not provided adequate medical rationale in support of his opinion on 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 U.S.C. § 8128 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 back and right
shoulder conditions causally related to the accepted September 28, 2017 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the November 4, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 15, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Pharr, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 13-1089
Issued: November 5, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 3, 2013 appellant filed a timely appeal of a March 21, 2013 Office of Workers’
Compensation Programs’ (OWCP) merit decision denying his request for surgery. Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether OWCP abused its discretion in denying authorization for appellant’s
requested spine surgery.
FACTUAL HISTORY
On December 17, 2009 appellant, then a 45-year-old customs officer, filed a traumatic
injury claim alleging on December 14, 2009 that he sustained low back pain while inspecting the
1

5 U.S.C. § 8101 et seq.

floor area of a conveyance. In a note dated January 12, 2010, Dr. Benjamin Bujanda, a Boardcertified family practitioner, diagnosed musculoskeletal injury to the lower back with herniated
disc at L5-S1. OWCP accepted his claim for sprain of the lumbar back on January 28, 2010.
Appellant submitted additional medical evidence after the acceptance of his claim,
including a note from Dr. Bujanda dated January 4, 2010 which described the employment
incident. He stated that on December 14, 2009 he was working while squatting down under a
truck adjusting a screw when he experienced a sharp pain in his lumbar spine. A magnetic
resonance imaging (MRI) scan dated January 6, 2010 demonstrated a disc herniation with
impingement on the central aspect of the thecal sac at L5-S1 as well as a disc bulge at L3-4. On
August 30, 2010 OWCP accepted the additional condition of displacement of lumbar
intervertebral disc without myelopathy. An MRI scan dated September 13, 2011 demonstrated
mild lumbar spinal stenosis caused by a congenital condition as well as a central disc herniation
at L5-S1 and disc bulge at L3-4. A discogram dated November 14, 2011 suggested grade 3
radial tears anteriorly at L4-5 and L5-S1.
On November 23, 2011 appellant’s attending physician, Dr. Jose G. Dones, a Boardcertified neurosurgeon, noted appellant’s complaints of lower back pain that radiates to the left
leg and sometimes to the right leg. He noted that appellant’s discogram suggested grade 3 radial
tears at L4-5 and L5-S1. Dr. Dones stated that appellant had failed pain management and
injections. He recommended an anterior lumbar interbody fusion.
In a letter dated January 5, 2012, OWCP noted that Dr. Dones had requested
authorization for lumbar spine fusion. It stated that the evidence did not explain how the need
for the procedure resulted from appellant’s employment and requested additional information.
On August 30, 2010 OWCP updated its acceptance to include displacement of lumbar
intervertebral disc without myelopathy.
OWCP’s medical adviser noted appellant’s accepted conditions and reviewed the medical
evidence on February 8, 2012. He noted that Dr. Dones did not provide the specific levels for
the anterior lumbar interbody fusion and opined that the pain generator was not well identified.
The medical adviser recommended a second surgical opinion from a Board-certified
neurosurgeon or orthopedic surgeon.
In a note dated February 15, 2012, Dr. Dones stated that appellant had not improved with
epidural injections or physical therapy. He recommended anterior lumbar interbody fusion at
L5-S1. Dr. Dones opined that this surgery would give appellant a better chance at a normal life
without pain.
On March 9, 2012 OWCP referred appellant for a second opinion evaluation with
Dr. Jorge Tijmes, a Board-certified orthopedic surgeon.
On March 22, 2012 Dr. Bujanda examined appellant’s lower back. He found muscle
contraction on the left side of the lower back with weakness in the left lower extremity.
Dr. Bujanda diagnosed herniated disc at L5-S1 with controlled pain. On April 23, 2012 he
released appellant to return to regular full-time work.

2

In a report dated April 10, 2012, Dr. Tijmes listed appellant’s history of injury and the
accepted conditions. On physical examination, he found tenderness to palpation with
paravertebral muscle spasms and hypoesthesia over the left lateral calf and foot. Dr. Tijmes
noted that appellant’s left Achilles reflex was absent and that he had 4/5 muscle strength in the
left extensor hallucis longus, gastrocnemius and anterior tibials on the left. He reviewed
appellant’s diagnostic studies and diagnosed lumbar pain and lumbar disc herniation at L5-S1.
Dr. Tijmes opined that these conditions were due to appellant’s employment. He opined that the
proposed surgery was not medically necessary as the lateral lumbar flexion-extension radiograph
revealed no evidence of instability or abnormal motion and as appellant failed to show signs of
radiculopathy on electromyogram and nerve conduction velocity studies.
OWCP’s medical adviser reviewed this report on April 30, 2012 and noted the difference
of opinion between Drs. Dones and Tijmes. He found that surgery could not be authorized.
By decision dated May 11, 2012, OWCP denied appellant’s request for spine surgery. It
stated that he had not had an adequate trial of nonoperative treatment.
Appellant requested reconsideration on January 17, 2013. In support of his request for
reconsideration, he submitted a statement alleging that Dr. Tijmes had no history or records of
his treatment prior to his evaluation.
By decision dated March 21, 2013, OWCP reviewed the merits of appellant’s claim and
denied modification of its May 11, 2012 decision finding that his statement was not sufficient to
establish that Dr. Tijmes’ report was not based on a proper factual background.
LEGAL PRECEDENT
Section 8103 of FECA provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree or the period of disability or aid in lessening the amount of the monthly
compensation.2 While OWCP is obligated to pay for treatment of employment-related
conditions, the employee has the burden of establishing that the expenditure is incurred for
treatment of the effects of an employment-related injury or condition.3
Section 10.310(a) of the implementing regulations provide that an employee is entitled to
receive all medical services, appliances or supplies which a qualified physician prescribes or
recommends and which OWCP considers necessary to treat the work-related injury.4
In interpreting section 8103(a) of FECA, the Board has recognized that OWCP has broad
discretion in approving services provided under FECA to ensure that an employee recovers from
his or her injury to the fullest extent possible in the shortest amount of time. OWCP has
2

Id. at § 8103; see Dona M. Mahurin, 54 ECAB 309 (2003); J.T., Docket No. 13-452 (issued May 29, 2013).

3

Kennett O. Collins, Jr., 55 ECAB 648 (2004).

4

20 C.F.R. § 10.310(a).

3

administrative discretion in choosing the means to achieve this goal and the only limitation on
OWCP’s authority is that of reasonableness.5 In order to be reimbursed for medical expenses, a
claimant must establish that the expenditures were incurred for treatment of the effects of an
employment-related injury by submitting rationalized medical evidence that supports such a
connection and demonstrates that the treatment is necessary and reasonable.6 Proof of causal
relationship must include supporting rationalized medical evidence.7
When there are opposing reports of virtually equal weight and rationale, the case will be
referred to an impartial medical specialist pursuant to section 8123(a) of FECA which 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 and resolve the conflict of medical evidence.8 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.9
ANALYSIS
OWCP accepted that appellant sustained a sprain of the lumbar back and displacement of
lumbar intervertebral disc without myelopathy due to his December 14, 2009 employment injury.
It denied this request finding that the weight of the medical evidence rested with Dr. Tijmes, who
opined that the proposed surgery was not medically necessary.
The Board finds that the report of Dr. Tijmes represents the weight of the evidence on
whether the surgery is medically necessary and should be authorized.
Appellant requested authorization for spinal surgery based on the medical reports from
his attending physician, Dr. Dones. On November 23, 2011 and February 15, 2012 Dr. Dones
found that appellant had failed conservative treatment and recommended anterior lumbar
interbody fusion at L5-S1.
OWCP referred the case to Dr. Tijmes for a second opinion. In his April 10, 2012 report,
Dr. Tijmes opined that the proposed surgery was not medically necessary as the lateral lumbar
flexion-extension radiograph revealed no evidence of instability or abnormal motion and as
appellant failed to show signs of radiculopathy on electromyogram and nerve conduction
velocity studies. OWCP referred the medical evidence to OWCP’s medical adviser, who noted
that there was disagreement between the two physicians.

5

R.L., Docket No. 08-855 (issued October 6, 2008).

6

See Debra S. King, 44 ECAB 203 (1992).

7

M.B., 58 ECAB 588 (2007).

8

5 U.S.C. §§ 8101-8193, 8123; M.S., 58 ECAB 328 (2007); B.C., 58 ECAB 111 (2006).

9

R.C., 58 ECAB 238 (2006).

4

The Board finds that the reports of Dr. Dones and Dr. Tijmes are not of equal weight.
While Dr. Dones recommends surgery he does not explain how it would benefit appellant by
referring to specific diagnostic tests or clinical findings. He does not identify the modalities of
conservative treatment received by appellant and does not discuss which treatments have “failed”
and whether any other nonsurgical treatment options would be open to him. Finally, Dr. Dones
fails to acknowledge that appellant was released to return to work by Dr. Bujanda. It is
counterintuitive that an employee released to return to work is in serious need of a back fusion.
Dr. Dones fails to reconcile this apparent contradiction. A back fusion is a serious surgical
procedure and appellant needs a stronger and more detailed statement for why it is necessary
than that found in Dr. Dones reports.
CONCLUSION
The Board finds that appellant did not present accurate medical evidence with regards to
whether the proposed back surgery is medically necessary and that OWCP did not abuse its
discretion by denying it.
ORDER
IT IS HEREBY ORDERED THAT March 21, 2013 decision of the Office of Workers’
Compensation Programs is affirmed and the case remanded.
Issued: November 5, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5