United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Orleans, LA, Employer
__________________________________________

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

Docket No. 14-772
Issued: July 25, 2014

Case Submitted on the Record

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

JURISDICTION
On February 17, 2014 appellant, through counsel, filed a timely appeal from a
January 15, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying his claim for compensation. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant established that he sustained a traumatic injury in the
performance of duty on May 26, 2011, as alleged.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case was previously before the Board. On December 30, 2013 the Board issued an
Order Dismissing Appeal based on appellant’s request.2 The relevant facts are as follows. On
June 21, 2011 appellant, then a 45-year-old city carrier, filed an occupational disease claim for
low back pain he alleged arose from his federal duties. He indicated that he first realized his
condition and that it was caused or aggravated by his employment on May 26, 2011. Appellant
first received medical care for his condition on June 1, 2011. The employing establishment
challenged the claim, asserting that on June 1, 2011 he was receiving an investigative interview
for street performance, which could lead to disciplinary action, when he stated that he needed a
CA-17 because his back hurt. Appellant indicated that he injured his back on May 26, 2011, six
days prior to the interview. On June 28, 2011 he filed a traumatic injury claim alleging that on
May 26, 2011 he experienced lower back pain while picking up heavy boxes on route. Appellant
first received medical care for his condition on June 1, 2011. No other documentation was
submitted.
By letter dated July 7, 2011, OWCP advised appellant of the deficiencies in his claim.
He was asked to submit additional factual and medical evidence, including medical evidence
which contained a physician’s well-rationalized medical opinion to support that his condition
was causally related to the injury or event. Appellant was provided 30 days to submit the
requested information.
OWCP received an August 5, 2011 statement from appellant describing his duties as well
as delivering heavy boxes on a daily basis without a back brace. It also received a June 28, 2011
physical therapy order and authorization request; a July 27, 2011 initial physical therapy
evaluation report; a July 29, 2011 physical therapy report; a June 1, 2011 diagnostic test of
L-spine series; a June 10, 2011 magnetic resonance imaging (MRI) scan of the lumbar spine
without contrast; and a return to work slip from Dr. Louis V. Montelaro, a family practitioner,
which indicated that appellant had been under his care from June 7 to 14, 2011 and should not
work for one week.
A June 28, 2011 duty status report, progress notes and letter from Dr. Kevin P.
McCarthy, a Board-certified orthopedic surgeon, were also received. In his June 28, 2011
progress notes, Dr. McCarthy noted that appellant reported a one-month history of low back pain
and that he works as a mail carrier. He reported examination findings as well as his review of
the June 10, 2011 MRI scan of the lumbar spine. An impression of lumbar degenerative disc
disease and lumbar spondylosis was provided. Conservative treatment was recommended. In
his June 28, 2011 letter, Dr. McCarthy indicated that appellant was evaluated for low back pain.
He stated that it appears his symptoms are related to lumbar degenerative disc disease and
lumbar spondylosis and recommended conservative treatment, such as physical therapy.
By decision dated August 11, 2011, OWCP denied the claim as the medical evidence did
not establish a diagnosed condition or injury as a result of employment. It stated that appellant
had failed to provide medical evidence explaining an injury as a result of lifting a heavy box on
his route.
2

Docket No. 13-1982 (issued December 30, 2013).

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On September 7, 2011 appellant requested that an OWCP hearing representative perform
a review of the written record.
In an August 23, 2011 progress note, Dr. McCarthy continued to provide an impression
of lumbar degenerative disc disease and lumbar spondylosis. He indicated that he reviewed
appellant’s statement regarding his injury which occurred while at work as well as his check-in
paperwork on his initial visit and opined that it did appear that his present symptoms were
consistent with the above-stated injury. In a June 28, 2011 addendum, Dr. McCarthy indicated
that appellant’s paperwork at check-in indicated that his symptoms started after an injury at work
which occurred on May 26, 2011, which was mistakenly left out of the subjective portion of the
dictation.
In a November 29, 2011 report, Dr. McCarthy indicated that appellant first came to his
clinic on June 28, 2011 following a lifting injury which occurred at his employment on
May 27, 2011. At that time, he was diagnosed with lumbar degenerative disc disease and lumbar
spondylosis. Dr. McCarthy opined that the basis for both of those diagnoses are in part due to
repetitive back traumas most likely received throughout his military service and his employment
at the employing establishment. He further opined that the lifting injury reported on May 27,
2011 acutely exacerbated his overall condition. Dr. McCarthy indicated appellant has responded
favorably to his current treatment plan along with the work restrictions and that he was presently
at a workable baseline.
By decision dated December 20, 2011, an OWCP hearing representative affirmed the
denial of appellant’s claim. The hearing representative indicated that OWCP accepted that the
May 26, 2011 work event occurred but found that the medical evidence, specifically
Dr. McCarthy’s reports, failed to provide any medical rationale that appellant sustained,
developed or further aggravated a lumbar condition as a result of the accepted May 26, 2011
work event.
On April 6, 2012 appellant requested reconsideration. New evidence was submitted in
support of his request.
In a February 28, 2012 medical report, Dr. Eric K. Oberlander, a neurologist, noted that
appellant was a postal worker who has complaints of lower back pain following a work-related
injury on May 27, 2011, when he reportedly carried six heavy boxes and noted a sharp lower
back pain onset followed by severe right lower extremity pain. Appellant reported that prior to
May 27, 2011 he did not have any significant problems with back or lower extremity pain.
Dr. Oberlander noted that appellant was a disabled veteran secondary to an ankle fracture, elbow
fracture and high blood pressure. He presented examination findings and reviewed appellant’s
diagnostic studies. Dr. Oberlander opined that appellant’s back pain was probably coming from
the disc herniation at L5-S1 and the annular tear at that level. He also has some advanced
degenerative changes, including facet arthropathy at several levels. Dr. Oberlander indicated the
issue that could be acute as the disc herniation and annular tear at L5-S1 were probably from his
work-related injury. These issues did not appear to have been there indefinitely and were
probably not related to his military issues. Dr. Oberlander recommended conservative therapy
and a discogram.

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By decision dated June 29, 2012, OWCP denied modification of its prior decision. It
found that Dr. Oberlander did not provide a well-reasoned medical opinion causally relating his
diagnosis to the work-related injury.
On June 12, 2013 appellant, through his attorney, requested reconsideration. New
evidence provided in support of his claim included a note from the employing establishment’s
health unit which included hearing tests; a charge of discrimination arising on or about May 26,
2011 against the employing establishment by the National Labor Relations Board; congressional
inquiries and statements by appellant.
In a June 6, 2013 report, Dr. Oberlander advised that appellant was seen for lower back
pain on February 28, 2012. Appellant presented with complaints of back pain following a workrelated injury that occurred on May 26, 2011. Dr. Oberlander indicated that appellant was a
postal worker who, while carrying six heavy boxes, noticed a sharp lower back pain followed by
the onset of severe right lower extremity pain. Appellant denied any previous back or right leg
problems. Dr. Oberlander noted that a June 10, 2011 MRI scan of the lumbar spine revealed an
L5-S1 disc herniation and annular tear. Appellant’s symptoms were felt to be related to the acute
disc herniation and annular tear as a result of his work-related injury. Dr. Oberlander indicated
that prior to this consultation, appellant was seen and treated by Dr. McCarthy. He recounted the
results of appellant’s visits. On April 16, 2012 appellant was working modified duty with a
limited route and had significant improvement in symptoms. Recommendations were made to
continue modified duty at work for six weeks while progressively increasing his normal daily
activities outside work. On June 5, 2012 Dr. Oberlander noted that appellant had had a motor
vehicle accident in which he ran off the road. Appellant had an acute exacerbation of his
symptoms with worsening back and right leg pain. Dr. Oberlander’s examination was
unchanged and it was recommended that appellant begin physical therapy again. Due to a
change in his symptoms, appellant was scheduled for a new MRI scan of the lumbar spine. He
continued to work. The June 19, 2012 MRI scan of the lumbar spine showed moderate findings
of an L5-S1 disc bulge and annular tear with some degenerative changes and bilateral
neuroforaminal narrowing. Dr. Oberlander stated that appellant had continued back pain but
improvement of his leg symptoms. On September 18, 2012 appellant had increasing back pain.
It was noted that he was working a new route and was walking over eight hours a day. Appellant
was out of work for a few days because of his symptoms. Recommendations were given to
remain out of work for two more days with return to limited duty with a shorter route with no
more than seven hours on the street working. On November 13, 2012 appellant presented with
continued worsening back pain and subjective leg weakness despite his work restrictions. He
had to leave work over a weekend due to the severity of his symptoms. Appellant was not ready
for surgery and he was given a release to return to work on work assignment only. On
February 18, 2013 appellant had continued back pain. It was noted that he had retired because of
his back problems and was trying to lose weight, but began having knee problems. Symptoms
had improved since appellant was not working. On April 23, 2013 test results were discussed.
Discogram revealed concordant pain in the L3-4 and L4-5 levels with extravasation of contrast
dye at the L5-S1 level consistent with an annular tear. Dr. Oberlander’s recommendation that
appellant avoid surgery as long as possible was seconded by a Dr. Greg Fautheree. Appellant
was referred to pain management. Dr. Oberlander concluded that appellant sustained a workrelated injury while lifting boxes on May 26, 2011. Appellant had imaging that revealed an L5S1 disc herniation with an annular tear. He had no prior back complaints before that injury, even
4

through the course of his military service. Appellant had documentation of back pain in 2003
that resolved and he remained pain free without treatment for eight years until his work-related
injury of May 26, 2011. Due to the onset of appellant’s symptoms and imaging to support and
correlate them, Dr. Oberlander opined that it was more probable than not that appellant’s L5-S1
disc herniation was caused by his work injury.
By decision dated July 12, 2012, OWCP denied modification of the June 29, 2012
decision.
On December 2, 2013 appellant, through his attorney, again requested reconsideration.
New evidence included statements from appellant to his Senator and the attorney’s statement of
December 2, 2013.
In an August 5, 2013 letter, Dr. Oberlander stated that appellant had been followed at the
clinic for continued back problems as a result of a work-related injury of May 26, 2011.
Appellant had chronic back and leg pain as a result of this injury. He was now unable to work as
a result of the injury as the symptoms require medications which cause drowsiness, dizziness and
nausea. Dr. Oberlander stated that appellant would always have chronic pain and difficulties
sustaining any gainful employment as it was unlikely that a surgery would alleviate all of his
symptoms.
In his October 30, 2013 letter, Dr. Oberlander stated that appellant had no previous
symptoms of back pain. Appellant had an incident at work on May 26, 2011 in which he lifted
and carried six heavy boxes and immediately noticed sharp lower back pain and severe right
lower extremity pain. The lumbar MRI scan revealed L5-S1 disc herniation and annular tear.
Dr. Oberlander opined that the absence of symptoms preceding this incident, the sudden onset of
appellant’s symptoms immediately after that incident are pathophysiological for the abnormality
seen on imaging and demonstrates the causal relationship between appellant’s work injury and
the diagnosed condition.
By decision dated January 15, 2014, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4

3

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

4

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

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To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a fact of injury has been established. A
fact of injury determination is based on two elements. 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, the employee must submit sufficient evidence,
generally only in the form of medical evidence, to establish that the employment incident caused
a personal injury. An employee may establish that the employment incident occurred as alleged
but fail to show that his or her condition relates to the employment incident.5
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.6 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 the specific employment factors identified by
the employee.7 The weight of the 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.8 Neither the mere fact that a disease or condition
manifests itself during a period of employment nor the belief that the disease or condition was
caused or aggravated by employment factors or incidents is sufficient to establish causal
relationship.9
ANALYSIS
OWCP accepted that on or about May 26, 2011 appellant lifted a heavy box or boxes
while in the performance of duty. It denied his claim, however, finding insufficient medical
evidence to establish that his back condition was causally related to the May 26, 2011 event of
lifting heavy boxes or factors of his federal employment. The Board finds that appellant did not
meet his burden of proof to establish that his back condition was caused or aggravated from his
employment.
Appellant submitted a return to work slip from Dr. Montelaro, who failed to provide any
medical diagnoses or discussion on causal relationship. Therefore, this evidence does not
establish appellant’s claim.
Appellant submitted several reports from Dr. McCarthy. In his June 28, 2011 medical
report and letter, Dr. McCarthy stated that it appeared appellant’s symptoms are related to
lumbar degenerative disc disease and lumbar spondylosis. He, however, did not provide any
discussion of appellant’s work duties or provide an opinion on causal relationship. Medical
5

See Shirley A. Temple, 48 ECAB 404, 407 (1997); John J. Carlone 41 ECAB 354, 356-57 (1989).

6

See J.Z., 58 ECAB 529, 531 (2007); Paul E. Thams, 56 ECAB 503, 511 (2005).

7

I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

8

James Mack, 43 ECAB 321, 329 (1991).

9

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

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evidence that does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value.10 Dr. McCarthy subsequently noted that appellant’s symptoms started
after an injury at work on May 27, 2011 and opined that his symptoms were consistent with
lumbar degenerative disc disease and lumbar spondylosis. However, he again failed to provide
any discussion with regard to causal relationship. This report is insufficient to establish the
claim.11 In his November 29, 2011 report, Dr. McCarthy opined that the lifting injury of
May 27, 2011 acutely exacerbated appellant’s overall condition. While he opined that
appellant’s condition of lumbar degenerative disc disease and lumbar spondylosis was in part
due to repetitive back traumas due to his federal employment, Dr. McCarthy failed to provide
any medical rationale that appellant sustained, developed or further aggravated a lumbar
condition as a result of the accepted May 26, 2011 lifting incident. Thus, this report is
insufficient to meet appellant’s burden of proof.
Appellant submitted several reports from Dr. Oberlander. In his February 28, 2012
report, Dr. Oberlander noted the history of injury, presented examination findings and reviewed
appellant’s diagnostic studies. He opined that appellant’s back pain was properly coming from
the disc herniation at L5-S1 and the annular tear at that level, which are properly from his workrelated injury. Although Dr. Oberlander provided some support for causal relationship, his
opinion is insufficient to establish that the disc herniation at L5-S1 and the annular tear at that
level are causally related to the work incident. He offered equivocal support for causal
relationship. Dr. Oberlander qualified his opinion by stating the diagnoses are probably from the
work injury.12 He also provided insufficient medical reasoning to explain how the lifting
incident caused or contributed to the diagnosed medical conditions. Therefore, Dr. Oberlander’s
February 28, 2012 report is insufficient to meet appellant’s burden of proof.
Dr. Oberlander’s subsequent reports are likewise deficient. In his June 6, 2013 report, he
provided a history of appellant’s injury and recounted the results of appellant’s visits.
Dr. Oberlander opined that, due to the onset of his symptoms and imaging to support and
correlate them, it was more probable than not that appellant’s L5-S1 disc herniation with an
annular tear was caused by his work injury. He again provides only speculative support that
appellant’s diagnoses are causally related to his employment.13 In his August 5, 2013 report,
Dr. Oberlander stated that appellant has chronic back and leg pain as a result of the May 26,
2011 work injury. However, he offered no medical rationale to support causal relationship. In
his October 3, 2013 report, Dr. Oberlander opined that the absence of symptoms preceding the
work incident, the sudden offset of his symptoms immediately after the incident as well as the
abnormality seen on imaging demonstrates the causal relationship between appellant’s work
injury and the diagnosed condition. However, he provided no medical reasoning explaining how
the lifting incident caused or contributed to appellant’s diagnosed medical conditions. The fact
10

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

11

See J.F., Docket No. 09-1061 (issued November 17, 2009) (medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of causal relationship).
12

Medical opinions that are speculative or equivocal in character are of diminished probative value. D.D., 57
ECAB 734 (2006).
13

Id.

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that appellant was asymptomatic prior to the injury is not dispositive of whether his medical
conditions are causally related to the accepted incident. The Board had held that an opinion that
a condition is causally related because the employee was asymptomatic before the incident is
sufficient, without supporting rationale to establish causal relation.14 Dr. Oberlander has not
provided a well-reasoned medical opinion based on medical certainty that the diagnosed
conditions were definitively caused by the work-related incident of May 26, 2011.
Appellant also submitted notes from physical therapists. Physical therapy notes do not
constitute probative medical evidence, as physical therapists are not considered physicians under
FECA.15 The reports of diagnostic studies, MRI scan and x-rays, do not provide any opinion as
to the cause of appellant’s condition. These are also of diminished probative value and are
insufficient to establish his claim.16
Appellant has not submitted reasoned medical evidence explaining how and why his
diagnosed medical conditions were caused or aggravated by the May 26, 2011 work incident.
He has not met his burden of proof.
On appeal appellant’s attorney argues OWCP’s decision is contrary to fact and law. For
the reasons stated above, the Board finds that appellant has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained a medical condition causally related to the May 26, 2011 employment incident.

14

See John F. Glynn, 53 ECAB 562 (2002).

15

Section 8101(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by State law.
16

See Mary E. Marshall, 56 ECAB 420 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the January 15, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 25, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
BAY PINES VETERANS ADMINISTRATION,
St. Petersburg, FL, Employer
__________________________________________

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

Docket No. 18-0017
Issued: May 9, 2019

Case Submitted on the Record

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

JURISDICTION
On October 2, 2017 appellant filed a timely appeal from an April 13, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated July 22, 2013, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction to review the merits of appellant’s case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its April 13, 2017 decision.
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 OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On February 24, 2012 appellant, then a 49-year-old electronics technician, filed an
occupational disease claim (Form CA-2) alleging that he developed interstitial lung disease as a
result of working in an area with mold, asbestos, and moisture. He noted that he first became
aware of his condition on February 15, 2011 and realized that it was causally related to his federal
employment on September 30, 2011. Appellant stopped work on December 2, 2011.
In support of his claim, appellant submitted medical reports from Dr. Nathan Do, a Boardcertified internist and pulmonologist, Dr. Keith E. Sommers, a Board-certified thoracic surgeon,
Dr. Marela Velez, Board-certified in infectious disease, Dr. Gerald Boutin, Ph.D., a clinical
psychologist, and Dr. Sara C. Vizcay, a Board-certified family practitioner. He also submitted a
computerized tomography (CT) scan of the chest dated April 9, 2012, which revealed two areas of
opacity in the right upper lobe and right lower lobe, noncalcified nodular densities within the left
lung, and blebs noted throughout both lungs.
OWCP further developed appellant’s claim, including sending him to a second opinion
physician.
By decision dated September 25, 2012, OWCP denied appellant’s claim, finding that he
had not established that his claimed medical conditions were causally related to the established
employment factors.
Appellant subsequently requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review and submitted additional evidence, including correspondence
from the Occupational Safety & Health Administration (OSHA) dated February 16, 2012 to
March 31, 2013. In the correspondence OSHA informed the employing establishment that the
serious violations must be abated by June 10, 2013. Appellant also submitted a May 20, 2013
report, wherein Dr. Ginige Swanthri DeSilva, a Board-certified rheumatologist, noted treating
appellant in October 2012 for persistent cough and dyspnea secondary to an allergic reaction to
mold exposure in his work environment. Dr. DeSilva indicated that hypersensitivity pneumonia
testing was positive for Aspergillus, micropolyspora, and thermoactinomycetes, which suggested
appellant developed an allergic response to those agents.
A telephonic hearing was held on May 29, 2013. By decision dated July 22, 2013, an
OWCP hearing representative affirmed the September 25, 2012 decision.
On September 8, 2013 appellant requested reconsideration and submitted an affidavit from
a former colleague.
By decision dated September 17, 2013, OWCP denied appellant’s reconsideration request,
finding that the evidence submitted was cumulative and substantially similar to evidence already
contained in the case record and previously considered.
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Appellant continued to submit additional evidence, including a December 8, 2011 report
from Dr. Sommers, an attending physician’s report (Form CA-20) from Dr. Velez dated
January 31, 2012, a CT scan of the chest dated April 9, an August 8, 2012 report from Dr. Vizcay,
and correspondence from OSHA dated January 23, 2012 to May 14, 2013, all previously of record.
On January 20, 2012 Dr. Thomas V. Colby, a Board-certified pathologist, reviewed
pathological slides from appellant’s lung biopsy which revealed minor abnormalities in the small
airways that correlated with a cough. He also noted mural thickening and healed thromboemboli
indicative of pulmonary hypertension as appellant was also obese. Dr. Colby diagnosed patchy
vascular changes, mild subpleural inflammation and fibrosis.
Appellant also submitted medical articles detailing pneumonia caused by penicillin and
fungal spores.
In a March 11, 2013 report, Dr. Vizcay noted allergic bronchopulmonary Aspergillosis
fungal infection. She noted that appellant performed dirty jobs involving exposure to mold, moldy
odors, areas of duct work, air conditioning units, and filters and developed a work-related
occupational disease. Dr. Vizcay referenced an air sampling and testing done which revealed
predominantly Aspergillus. She noted a September 11, 2012 laboratory report for appellant
revealed a large concentration of Aspergillus hyphae and she opined that his contamination and
lung infection came from his work environment.
Dr. Vizcay diagnosed allergic
bronchopulmonary Aspergillosis, status post occupational fungal infection of lungs, and chronic
bronchopneumonia secondary to chronic lung infection and opined that he was totally disabled.
Appellant came under the treatment of Dr. Himanshu Chandarana, a Board-certified
internist, on May 24 and June 13, 2013 for persistent cough and shortness of breath.
Dr. Chandarana noted that appellant had an abnormal CT scan of the chest and underwent a lung
biopsy and was tentatively diagnosed with exposure to Aspergillus mold. OSHA correspondence
revealed that visible mold was seen in the air ducts where appellant worked. He opined that
appellant was apparently exposed to mold and mildew while working and had allergic
bronchopulmonary Aspergillosis, possibly Aspergillus pneumonia. Dr. Chandarana noted that
upon return to work appellant’s symptoms had worsened. In a report dated June 30, 2014, he
treated appellant for persistent respiratory symptomology with episodic cough and shortness of
breath. Dr. Chandarana reviewed all the medical records and extensive history and opined that
appellant had exposure to mold and mildew probably from his work in an aged building and
developed allergic bronchopulmonary Aspergillosis, and hypersensitivity pneumonitis.
On October 1, 2013 Dr. Do opined that appellant’s symptoms were related to
hypersensitivity pneumonitis secondary to mold exposure.
Appellant submitted an attending physician’s report (Form CA-20a) from Dr. Velez dated
June 6, 2014, who diagnosed hypersensitivity, and pneumonitis secondary to lung mold exposure.
Dr. Velez noted with a checked box marked “yes” that his condition was caused or aggravated by
an employment duty. She opined that based on her assessment appellant’s lung exposure to molds
was likely occupational as his condition improved while out of work. Dr. Velez recommended
that he avoid work-related mold exposure.

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In a July 1, 2014 report, Dr. DeSilva noted that appellant underwent a hypersensitivity
pneumonitis panel which was positive for Aspergillus, micropolyspora, and thermactonomyces.
Appellant was treated with antifungal mediation and prednisone. He reported the onset of
symptoms correlated with the increased mold exposure in his work environment. Dr. DeSilva
opined that the mold exposure was responsible for appellant’s lung disease. In an attending
physician’s report (Form CA-20) dated July 16, 2014, she diagnosed hypersensitivity pneumonia
and checked a box marked “yes” that his condition was caused or aggravated by an employment
activity. Dr. DeSilva opined that appellant was unable to return to the work environment if he
would be exposed to mold because the exposure exacerbates his coughing and difficulty
breathing.3
Appellant also submitted a January 25, 2013 employing establishment notice of separation
for medical inability to perform his position.
Appellant was examined by Dr. Angelo M. Alves, a Board-certified neurologist, on
May 20, 2015, who diagnosed cervical and lumbar radiculopathy, bilateral carpal tunnel
syndrome, bilateral ulnar entrapment neuropathy, peripheral neuropathy, and pituitary ademona.
Dr. Alves opined that appellant had significant musculoskeletal problems which prevented him
from returning to work.
An October 28, 2015 report from Dr. Boutin noted appellant’s treatment for depression and
anxiety related to his work environment.4
Appellant also submitted a newspaper article on mold and the employing establishment
facilities.
On April 5, 2017 appellant requested reconsideration and submitted additional evidence.
Appellant submitted reports from Dr. Chandarana dated August 16 and December 7, 2016,
and March 21, 2017, who treated him for persistent cough and worsening shortness of breath.
Dr. Chandarana diagnosed chronic cough, chronic bronchitis, chronic obstructive pulmonary
disease, and history of exposure to mold and mildew in the workplace.

3

On October 14, 2014 and June 16, 2015 appellant appealed the September 17, 2013 OWCP decision to the Board.
By orders dated December 23, 2014 and October 1, 2015, the Board dismissed his appeal finding that it was untimely
filed pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(a). Order Dismissing Appeal, Docket No. 15-0085 (issued
December 23, 2015); Order Dismissing Appeal, Docket No. 15-1419 (issued October 1, 2015).
4

On October 29, 2015 appellant filed a petition for reconsideration of the Board’s October 1, 2015 decision. On
November 4, 2015 he also filed an appeal of the Board’s October 1, 2015 decision and this appeal was inadvertently
docketed as Docket No. 16-0163. On June 22, 2016 the Board dismissed appellant’s appeal and denied the petition
for reconsideration. The Board found that his appeal docketed as Docket No. 16-0163 must be dismissed as it was
untimely filed pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(a). It further noted that the petition for reconsideration
was denied as appellant failed to establish any error of fact or law warranting further consideration by the Board.
Order Dismissing Appeal and Denying Petition for Reconsideration, Docket Nos. 15-1419 & 16-0163, (issued
June 22, 2016).

4

By decision dated April 13, 2017, OWCP denied appellant’s April 5, 2017 reconsideration
request, finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.5 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought.6 Timeliness is determined by the document receipt date of
the request for reconsideration as indicated by the received date in the integrated Federal
Employees’ Compensation System.7 Imposition of this one-year filing limitation does not
constitute an abuse of discretion.8
OWCP may not deny a reconsideration request solely because it was untimely filed. When
a claimant’s request for reconsideration is untimely filed, it must nevertheless undertake a limited
review to determine whether it demonstrates clear evidence of error.9 If an application
demonstrates clear evidence of error, OWCP will reopen the case for merit review.10
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP. The evidence must be positive, precise, and explicit and must
manifest on its face that OWCP committed an error. Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to demonstrate clear
evidence of error. It is not enough to merely show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence submitted must be of sufficient probative value to shift the weight of the
evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP’s
decision.11
OWCP’s procedures note that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP made
5

5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
6

20 C.F.R. § 10.607(a).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2016).

8

G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
9

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4 2018); Charles J. Prudencio, 41 ECAB
499, 501-02 (1990).
10

L.C., Docket No. 18-1407 (issued February 14, 2019); supra note 7 at Chapter 2.1602.5 (February 2016);
M.L., Docket No. 09-0956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b).
11

J.W., Docket No. 18-0703 (issued November 14, 2018); Robert G. Burns, 57 ECAB 657 (2006).

5

an error (for example, proof that a schedule award was miscalculated). Evidence such as a detailed,
well-rationalized medical report which, if submitted before the denial was issued, would have
created a conflict in medical opinion requiring further development, is not clear evidence of error.12
The Board makes an independent determination of whether a claimant has demonstrated clear
evidence of error on the part of OWCP.13
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
By decision dated April 13, 2017, OWCP determined that appellant’s request for
reconsideration was untimely filed. Its regulations provide that the one-year time limitation
period for requesting reconsideration begins on the date of the last merit decision.14 The last
merit decision in this case was dated July 22, 2013. Because appellant’s request for
reconsideration was received on April 5, 2017, more than one year after the July 22, 2013 merit
decision, OWCP properly determined that it was untimely filed.15 Therefore, h e must
demonstrate clear evidence of error on the part of OWCP with regard to its July 22, 2013
decision.
The Board finds that appellant failed to submit the type of positive, precise, and explicit
evidence which manifests on its face that OWCP committed an error in its July 22, 2013 merit
decision, which affirmed the denial of his claim. In support of his request for reconsideration
appellant submitted copies of medical reports from Drs. Sommers, Velez, Vizcay, and Colby as
well as OSHA reports, which were previously of record. The Board has held that repetitive or
cumulative evidence is insufficient to shift the weight of the evidence in favor of the claimant.16
Appellant has not sufficiently explained how the submission of this evidence raises a substantial
question concerning the correctness of OWCP’s decision.17 Therefore, they are insufficient to
demonstrate clear evidence of error.
Appellant also submitted new medical reports from Drs. Vizcay, Do, Chandarana, and
Alvez. 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.18 The Board finds that these medical reports do not provide medical
rationale to establish causal relationship and therefore they are insufficient to demonstrate error
12

J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 7 at Chapter 2.1602.5(a) (February 2016).

13

D.S., Docket No. 17-0407 (issued May 24, 2017).

14

Supra note 6.

15

Id. at § 10.607(a) (2011).

16

See P.B., Docket No. 18-0265 (issued September 5, 2018); M.P., Docket No. 17-0367 (issued March 12, 2018).

17

Id.

18

See Y.D., Docket No. 16-1896 (issued February 10, 2017).

6

with respect to the July 22, 2013 decision affirming the September 25, 2012 finding that appellant
had not established a medical condition causally related to the accepted factors of his federal
employment. The Board has held that the submission of a detailed, well-rationalized report which,
if submitted before the denial was issued, would have created a conflict in medical opinion
requiring further development, does not demonstrate clear evidence of error.19 Because these
reports do not raise a question as to the correctness of OWCP’s July 22, 2013 decision, they are
insufficient to demonstrate clear evidence of error.20
Drs. Velez and DeSilva provided medical opinions which consisted merely of a check mark
on a form report. The Board has held, however, that when a physician’s opinion on causal
relationship consists only of checking “yes” to a form question, without explanation or rationale,
that opinion has little probative value and is insufficient to establish a claim.21 These reports are
therefore insufficient to demonstrate that OWCP committed an error in denying appellant’s
occupational disease claim, nor raise a question as to the correctness of OWCP’s July 22, 2013
decision.22
The October 28, 2015 report from Dr. Boutin does not provide an opinion on the claimed
lung conditions and as it is irrelevant to the underlying issue of whether appellant has established
a condition causally related to the accepted factors of his federal employment. Therefore, this
report is also insufficient to demonstrate clear evidence of error.23
The various statements, personal records, and OSHA reports are also irrelevant to the
threshold issue of causal relationship as they were prepared by lay persons and do not constitute
competent medical evidence. Because these documents do not raise a question as to the correctness
of OWCP’s July 22, 2013 decision they are insufficient to demonstrate clear evidence of error.24
Consequently, the Board finds that OWCP properly denied appellant’s April 5, 2016
request for reconsideration as it was untimely filed and failed to demonstrate clear evidence of
error.
On appeal appellant argues that he submitted sufficient evidence to establish that his
workplace exposure to mold caused his lung condition. As previously noted, the Board does not
have jurisdiction over the merits of the claim and he has not presented evidence or argument that
raises a substantial question as to the correctness of OWCP’s decision for which review is sought.

19

E.K., Docket No. 18-0422 (issued August 22, 2018).

20

See P.B., supra note 16.

21

See M.O., Docket No. 18-1056 (issued November 6, 2018); Deborah L. Beatty, 54 ECAB 340 (2003).

22

See supra note 19.

23

See M.P., supra note 16.

24

Id.

7

CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed and failed
to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the April 13, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 9, 2019
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Arlington, MA, Employer
__________________________________________

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Appearances:
Daniel B. Shapiro, Esq., for the appellant
No appearance, for the Director

Docket No. 13-1526
Issued: August 1, 2014

Oral Argument May 21, 2014

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

JURISDICTION
On June 11, 2013 appellant, through his attorney, filed a timely appeal of a
December 20, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has more than 31 percent impairment of his right lower
extremity for which he received a schedule award.
On appeal, counsel argued that the grade modifier for functional history should have been
calculated as positive two based on the required subjective report, the American Academy of
Orthopedic Surgeons (AAOS) questionnaire, which is the highest component when compared to
a grade modifier of zero for gait derangement in accordance with the American Medical

1

5 U.S.C. § 8101 et seq.

Association, Guides to the Evaluation of Permanent Impairment2 (A.M.A., Guides) section 16.33
and would result in an impairment rating of 34 percent.
Following the oral argument, counsel submitted a memorandum arguing that all the
necessary factual evidence was present in the record before the Board and that it should make a
finding that the weight of the credible medical evidence rested with appellant’s attending
physician and establishes that appellant has a 34 percent impairment of the right lower extremity.
FACTUAL HISTORY
On December 19, 2008 appellant, then a 61-year-old letter carrier, filed a traumatic injury
claim alleging that on that date he slipped on ice causing his right knee to buckle. He underwent
a magnetic resonance imaging (MRI) scan of his right knee on April 14, 2009 which
demonstrated a tear in the posterior horn of the medial meniscus of the right knee involving both
articular surfaces.
OWCP accepted appellant’s claim for right quadriceps strain on
April 21, 2009. Appellant underwent an arthroscopic partial right medial meniscectomy on
May 11, 2009. He returned to regular duty on June 6, 2009.
Appellant requested a schedule award on November 29, 2011.
Beginning on
November 9, 2009 his physician recommended a right knee replacement due to bone-on-bone
arthritis of the right medial joint space noting that he had a total knee replacement on the left in
2006. Appellant underwent a right knee total arthroplasty on January 21, 2010.
Dr. Byron V. Hartunian, an orthopedic surgeon, completed a report on
November 18, 2011 and stated that he first examined appellant on September 1, 2011. He
described appellant’s job duties and history of injury. Dr. Hartunian noted that appellant
continued to experience discomfort and swelling in the right knee following his replacement as
well as restricted mobility and loss of sensation along the incision at the anterior part of the knee.
Appellant completed an AAOS questionnaire stating that he experienced moderate stiffness and
moderate swelling in his lower extremities as well as pain when walking on flat surfaces or
traversing stairs. He also reported moderate pain lying in bed and moderate difficulty donning
and removing socks.
On physical examination, Dr. Hartunian found a normal gait without a noticeable limp,
normal alignment of the knees and restricted squatting. He found palpable effusion of the knee
resulting in one-half inch increased circumference on the right. Appellant was found not to
demonstrate atrophy or ligament laxity. Range of motion with a goniometer on three attempts
was 108 degrees of flexion and 0 degrees of extension. Dr. Hartunian diagnosed total right knee
arthroplasty for end-stage degenerative arthritis. He opined that appellant reached maximum
medical improvement one year after his right knee arthroplasty in January 2011.

2

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

3

Id. at 516, section 16.3a.

2

Dr. Hartunian applied the A.M.A., Guides and found that a total knee replacement with
mild motion deficit was a class 3 impairment.4 He determined that physical examination was
used to determine the class and was not used as a modifier. Dr. Hartunian also found that
clinical studies adjustment was excluded as postoperative x-rays were only used to confirm the
diagnosis of a total knee replacement. He stated:
“The [f]unctional [h]istory [a]djustment per Table 16-6 using the gait
derangement analysis is [m]odifier 0 as there is no noticeable limp on [p]hysical
[e]xamination. However, using the AAOS Lower Limb Questionnaire there is a
[g]rade [m]odifier of 2, moderate deficit. Since the difference in these [m]odifiers
is 2, the [f]unctional [h]istory [a]djustment is considered unreliable and excluded
from the grading process.”
Dr. Hartunian determined that the net adjustment formula was not applicable and that appellant
had a default class 3, grade C impairment of 37 percent of the right lower extremity.
OWCP referred appellant’s claim for schedule award to Dr. David I. Krohn, a Boardcertified internist and OWCP medical adviser. In his report dated December 31, 2011,
Dr. Krohn noted appellant’s history of injury and medical treatment history. He opined that the
accepted conditions should be expanded to include acceleration of right knee osteoarthritis.
Dr. Krohn found that appellant reached maximum medical improvement in January 2011. He
applied the A.M.A., Guides and found that appellant’s total knee replacement resulted in a
class 3 impairment or fair result due to knee flexion of 108 degrees which correlated with 37
percent impairment. Dr. Krohn found that the functional history modifier was zero and that the
diagnosis grade was 3 resulting in -3 for a modifier. He based his conclusions on the findings
that appellant had no limp on examination.5 Dr. Krohn noted that the grade modifier for physical
examination was used to determine the class of the impairment and that the record did not
include a postoperative x-ray of the knee arthroplasty so that the grade modifier for clinical
studies could not be determined. He disagreed with Dr. Hartunian’s conclusions regarding
functional history class modifiers. Dr. Krohn stated:
“I do not believe that the AAOS lower limb instrument disqualifies the functional
history from being used. To quote the [A.M.A.,] Guides, ‘The examiner must
assess the reliability of the functional reports recognizing the potential influence
of behavioral and psychosocial factors. Therefore, the examiner must use
appropriate clinical judgment in interpreting subjective reports.’ The claimant’s
overall outcome is better than ‘fair’ by all objective criteria. It is not reasonable,
in my opinion, to empower the claimant’s subjective report on the AAOS
instrument to raise his impairment of the right lower extremity by [six percent] as
Dr. Hartunian has determined it should. There is no need for determination of
GMCS, [Grade Modifier Clinical Studies], in my opinion, as [Grade Modifier
Functional History] adjusts the CDX maximally to grade A correlation with a 31
percent impairment of the right lower extremity.”
4

Id. at 509-11, Table 16-3 and 549, Table 16-23.

5

Id. at 516, Table 16-6.

3

Dr. Hartunian completed an additional report on January 20, 2012. He opined that
appellant’s work injury resulted in excess stressing going through his knee during his work and
caused progression of his arthritis. Dr. Hartunian concluded that there was a direct causal
relationship between appellant’s work injury and his right knee arthroplasty. He also noted that
appellant had a diagnosis of degenerative arthritis which was a permanent condition.
Dr. Hartunian concluded that appellant’s right knee total arthroplasty was necessary.
By decision dated May 8, 2012, OWCP granted appellant a schedule award for 31
percent impairment of the right lower extremity. It accepted his right knee osteoarthritis and
right knee arthroplasty as related to his employment.
Counsel requested an oral hearing before an OWCP hearing representative on
May 24, 2012. He submitted a memorandum and argued that Dr. Krohn erroneously assigned a
functional history grade modifier of zero when the functional history grade modifier should have
been excluded as unreliable. Counsel argued that the A.M.A., Guides requires that grade
assignment for functional symptoms be based on subjective reports.6 He further argued that the
AAOS questionnaire supported a grade modifier of two which should be deemed unreliable as
the physical examination showed a gait derangement of zero and the AAOS supported a grade
modifier of two a difference of two.7
In a decision dated December 20, 2012, OWCP’s hearing representative found that
appellant had no more than 31 percent impairment of the right lower extremity for which he
received a schedule award. He found that appellant’s right knee total replacement had a default
impairment of 37 percent under the A.M.A., Guides. The hearing representative noted that, if
the functional history, physical examination and clinical studies modifiers were all excluded
appellant was entitled to an impairment rating of 37 percent. He found that the automatic
exclusion of the functional history modifier under section 16.3 of the A.M.A., Guides8 did not
apply as Dr. Hartunian did not apply the physical examination or the clinical studies grade
modifiers. The hearing representative further found that Dr. Hartunian did not provide adequate
explanation for why he relied on the AAOS questionnaire to exclude other factors including gait
which should be relied upon to calculate functional history modifiers. He found that Dr. Krohn
properly determined that the functional history modifier of -3 resulted in 31 percent impairment
and that this report was entitled to the weight of the medical evidence.

6

Supra note 3.

7

Id.

8

Id.

4

LEGAL PRECEDENT
The schedule award provision of FECA9 and its implementing regulations,10 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss of use of scheduled members or functions of the body. FECA, however, does not specify
the manner in which the percentage loss of a member shall be determined. The method used in
making such determination is a matter which rests in the discretion of OWCP. For consistent
results and to ensure equal justice, the Board has authorized the use of a single set of tables so
that there may be uniform standards applicable to all claimants. OWCP evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides.11
In addressing lower extremity impairments, the sixth edition of the A.M.A., Guides
requires identifying 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).12
ANALYSIS
Appellant’s diagnosis of total knee replacement, class 3, fair result including fair
position, mild instability or mild motion deficit was agreed upon by both physicians,
Drs. Hartunian and Krohn, due to his loss of range of motion. This diagnosis-based estimate
ranges from 31 for grade A to 43 for grade E.13
The A.M.A., Guides provide that the grade modifiers associated with functional history,
physical examination and clinical studies would be used to calculate a net adjustment, that
permits modification of the default value, grade C, up or down within a given class adjustment.14
The examiner is to assess each of the components of the adjustment when determining the grade
modifier and use the highest class modifier as the value for that adjustment in the net adjustment
calculation.15

9

5 U.S.C. §§ 8101-8193, 8107.

10

20 C.F.R. § 10.404.

11

For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.6a (January 2010); Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
12

A.M.A., Guides 521. J.B., Docket No. 09-2191 (issued May 14, 2010).

13

Id. at 511, Table 16-3.

14

Id. at 515.

15

Id.

5

Grade assignment for functional symptoms is based on subjective reports that are
attributable to the impairment. Table 16-6, Functional History Adjustment -- Lower Extremities
is divided into two categories, gait derangement and AAOS lower limb instrument. Appellant
demonstrated no gait derangement or grade modifier 0 and Dr. Hartunian found appellant
reported on the AAOS grade modifier 2 or moderate deficit.16 As noted above, the A.M.A.,
Guides provide that an examiner is to use the highest class modifier as the value for that
adjustment in the net adjustment calculation. In this situation the highest class modifier for
functional history is 2 for the AAOS instrument.
The Board finds that the case is not in posture for a decision. The Board would like
Dr. Krohn, as OWCP’s medical adviser, to explain how the application of the AAOS impacts the
functional grade modifier in this case. Dr. Krohn should review the A.M.A., Guides and explain
how the application of the AAOS would properly impact the functional history grade modifier
given to the claimant. The A.M.A., Guides specifically state that the AAOS instrument may be
used as part of the process of evaluating functional symptoms17 and also state that the highest
class modifier should be used as the value for that adjustment in the net adjustment calculation.18
Dr. Krohn should provide his findings, opinions and conclusions in accordance with the
applicable provisions of the A.M.A., Guides. The Board finds that it is necessary to secure
additional medical opinion evidence contrary to appellant’s most recent argument before the
Board. After this and such other development as OWCP deems necessary, OWCP shall issue a
de novo decision.
CONCLUSION
The Board finds that the case is not in posture for a decision as the medical evidence
must be further correlated with the applicable provisions of the A.M.A., Guides by OWCP’s
medical adviser.

16

Id. at 516, Table 16-6.

17

Id. at 516.

18

Supra note 14, example in the text.

6

ORDER
IT IS HEREBY ORDERED THAT the December 20, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further development consistent
with this decision of the Board.
Issued: August 1, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., Appellant
and
DEPARTMENT OF LABOR, EMPLOYMENT
STANDARDS ADMINISTRATION,
New York, NY, Employer
__________________________________________

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

Docket No. 12-987
Issued: November 27, 2012

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 3, 2012 appellant filed a timely appeal from a March 28, 2012 merit decision of
the Office of Workers’ Compensation Programs (OWCP) denying her claim for compensation.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she was injured in
the performance of duty on September 23, 2010, as alleged.
On appeal, appellant contends that OWCP did not properly discuss the medical reports.
She also noted that management was aware of increasing problems at computer workstations.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 24, 2010 appellant, then a 47-year-old claims examiner, claimed traumatic
injury to her right shoulder on September 23, 2010, while sitting at her desk indexing mail. The
employing establishment controverted her claim.
In a September 27, 2010 attending physician’s report, Dr. Carol Taylor, a Board-certified
family practitioner, noted that appellant described the sudden onset of right scapula pain with
radiation down her arm. She diagnosed a back disorder of the thoracic spine with spasm of the
right rhomboids and checked a box that the condition was causally related to the employment
activity described. In a September 30, 2010 duty status report, Dr. Taylor found appellant totally
disabled.
In a September 30, 2010 report, Dr. John M. Uhorchak, a Board-certified orthopedic
surgeon, noted that appellant stated that she was working on computer for hours and started
feeling pain while she was working and that this pain worsened on September 27, 2010. In
evaluating her right shoulder, he noted that Neer impingement test was negative and that the
Hawkin’s impingement test was mildly positive. Dr. Uhorchak noted that an x-ray of appellant’s
shoulder was normal. He diagnosed her with herniated cervical disc and cervical degenerative
disc disease. Dr. Uhorchak opined that her current symptoms were causally related to the injury
at work as her complaints are consistent with the history of injury and his objective findings. He
further opined that appellant had a 100 percent temporary impairment.
In an October 11, 2010 report, Dr. Esteban Cuartas, an orthopedic surgeon,2 noted that
appellant stated that she was at work when she adjusted herself at her desk and felt the sudden
onset of neck pain and that after she iced her neck it felt better but that her arm started to hurt
and she felt tingling and numbness down the arm. He noted that she showed radicular pain and
severe weakness in the right triceps, milder at the wrists and fingers.
In a November 26, 2010 report, Dr. Taylor indicated that appellant presented to her for
medical evaluation on September 27, 2010 reporting severe neck, upper back and right shoulder
pain with sudden onset of symptoms while working on computer. She diagnosed appellant at
that time with strain of the upper back. Dr. Taylor noted that an x-ray of the upper back showed
mild scoliotic deforming. She noted that she had not seen appellant since September 30, 2010.
In a December 1, 2010 decision, OWCP denied appellant’s claim because she failed to
submit evidence that showed that the diagnosed medical condition was causally related to the
established employment factors.
On December 6, 2010 appellant requested an oral hearing before an OWCP hearing
representative.
In a January 13, 2011 report, Dr. Cuartas noted that appellant’s symptoms were mild. He
noted axial neck pain and radicular pain. He noted that appellant’s symptoms had improved
somewhat and that her strength had improved significantly. Dr. Cuartas opined that the current
2

The Board cannot confirm that Dr. Cuartas is Board-certified.

2

symptoms were causally related to the injury at work because the complaints were consistent
with the history of injury and the history of injury was consistent with objective findings.
By decision dated January 25, 2011, OWCP’s hearing representative remanded the case
to OWCP for further development of the medical evidence. Specifically, the hearing
representative noted that, although the medical evidence submitted by appellant was insufficient
to discharge her burden of proof to establish causal relationship, it was sufficient to require
referral to a second opinion physician.
On February 8, 2011 OWCP referred appellant to Dr. Wayne J. Altman, a Board-certified
orthopedic surgeon, for a second opinion. In a March 8, 2011 report, Dr. Altman diagnosed
appellant with multiple cervical (neck) disc herniations with radicular symptomatology to the
right upper extremity. He opined that the mechanism of injury as related to him by appellant,
i.e., simply readjusting a chair with wheels, would not have caused the multiple disc herniations
in her cervical spine. Dr. Altman noted that it was a virtual impossibility that the multiple disc
herniations would occur from moving a wheeled chair closer to the desk. He opined that
appellant’s cervical disc herniations were preexisting and had nothing to do with the work injury.
Dr. Altman noted that, while she does require ongoing treatment, that treatment would not be
related to her employment as a claims examiner.
By decision dated March 25, 2011, OWCP denied appellant’s claim, finding the evidence
did not establish that appellant’s medical condition was causally related to the established work
events.
Appellant requested an oral hearing before an OWCP hearing representative.
In an April 5, 2011 report, Dr. Shahid Mian, a Board-certified orthopedic surgeon,
diagnosed appellant with herniations at C4-5, C5-6 and C6-7 discs, bulging of C3-4 disc,
thoracic strain, tear of the rotator cuff and impingement syndrome, right shoulder. In reports
dated June 7 and July 28, 2011, he indicated that these injuries were causally related to the
accident of September 23, 2010.
In an April 29, 2011 report, Dr. Naheed Van De Walle, a physiatrist,3 described
appellant’s history of injury and listed his impressions as cervical myofascial derangement, rule
out cervical radiculopathy. In a May 27, 2011 report, he gave her a trigger point injection.
In an August 25, 2011 decision, OWCP’s hearing representative remanded the case for
OWCP to request a clarification from Dr. Altman with regard to whether a combination of
computer use and moving her chair could have caused the injury.
In a September 19, 2011 supplemental report, Dr. Altman stated that one hour of
computer use on September 23, 2010 prior to moving her chair forward did not cause or
contribute to the accepted medical condition and that he saw no injury-related disability.

3

The Board cannot confirm that Dr. Van De Walle is Board-certified.

3

By decision dated October 4, 2011, OWCP again denied appellant’s claim for
compensation as the medical evidence did not demonstrate that the claimed medical condition
was related to the established work-related events.
On October 24, 2011 appellant requested an oral hearing before an OWCP hearing
representative. In reports dated November 2 and December 22, 2011, Dr. Mian again noted that
her injuries were causally related to the accident of September 23, 2010.
In a November 11, 2011 report, Dr. Cuartas noted that on September 23, 2010 appellant
was using the computer four hours and started feeling pain as she was working. He noted that
the pain worsened on September 27, 2010. Dr. Cuartas opined that appellant’s current symptoms
were causally related to the injury at work as the complaints were consistent with the history of
injury and his objective findings.
At the hearing held on February 13, 2012 appellant argued that her doctors clearly stated
that the employment incident caused her injury. She also mentioned a December 29, 2010 report
by Dr. Cuartas. When OWCP’s hearing representative informed appellant that this report was
not in the record, she submitted this report at the hearing.
In the December 29, 2010 report, Dr. Cuartas noted that he first saw appellant on
September 30, 2010 based on a referral from Dr. Taylor and that at that time appellant continued
to have severe pain in her right extremity inclusive of neck, upper back and right arm/shoulder
radiating pain. He reviewed his treatment of appellant. Dr. Cuartas opined that the complaint of
severe radiating pain down the arm/shoulder into the fingers was causally related to the incident
of September 23, 2010 and was work related according to the mechanism of the injury. He
explained that the fact that appellant was working at her desk on September 23, 2010 when she
used her body to move her chair closer to the computer screen created a sudden increase in
pressure and stress of the cervical spine which herniated the discs at levels C5-6 and/or C6-7,
within a reasonable degree of medical certainty. Dr. Cuartas noted that she denied having pain
prior to this episode. He continued that appellant’s work duties included sitting at a desk and it
was in the course of these duties that she developed her symptoms. Dr. Cuartas noted that it was
not unusual for disc herniations to occur with what otherwise appear to be low-energy
mechanisms. Consequently, he concluded that the diagnosed conditions of herniated disc,
cervical C5-6, C6-7 are causally related to the incident of September 23, 2010 within a
reasonable degree of medical certainty.
By decision dated March 28, 2012, OWCP’s hearing representative affirmed the denial of
benefits. The hearing representative found that the weight of the medical evidence was
represented by Dr. Altman’s report.
LEGAL PRECEDENT
OWCP’s regulations define a traumatic injury 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. Such
condition must be caused by external force, including stress or strain, which is identifiable as to

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time and place of occurrence and member or function of the body affected.4 An employee
seeking benefits under FECA5 has the burden of establishing the essential elements of his or her
claim, including the fact that the individual is an employee of the United States within the
meaning of FECA, that the claim was timely filed within the applicable time limitation period of
FECA, 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 claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a fact of injury has been established.
The employee must also submit sufficient evidence, generally only in the form of medical
evidence, to establish that the employment incident caused a personal injury. The medical
evidence required to establish causal relationship is usually rationalized medical evidence.
Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant.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 case.9
ANALYSIS
Appellant’s claim was denied because OWCP found that she did not establish an injury
causally related to the accepted employment event of September 23, 2010. Although she
submitted reports from her treating physicians, most of these reports do not constitute
rationalized medical opinions that linked her injury to her employment. Dr. Taylor saw appellant
on September 27, 2010 and described sunset onset of right scapula pain with radiation down her
4

20 C.F.R. § 10.5(ee).

5

5 U.S.C. §§ 8101-8193.

6

Jussara L. Arcanjo, 55 ECAB 281, 283 (2004).

7

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

8

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

9

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

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arm. She diagnosed back disorder thoracic spine and checked a box indicating that she believed
that this condition was causally related to appellant’s federal employment. However, neither in
this report or her report of November 26, 2010 does Dr. Taylor give a rationalized explanation as
to how she reached the conclusion that the strain of the upper back was related to her
employment incident. Dr. Uhorchak noted that appellant stated that she was working on
computer for hours and started feeling pain and opined that her current symptoms were related to
the history and his objective findings. However, this general statement is not sufficient to
establish causal relationship. Neither is the earlier opinion of Dr. Cuartes, who basically notes in
his October 1, 2010 report that appellant had sudden onset of pain when she adjusted herself at
her desk. None of these medical reports were sufficiently rationalized to meet appellant’s burden
of proof to establish causal relationship. However, as these reports were sufficient to require
further development of the medical evidence, OWCP referred appellant to Dr. Altman for a
second opinion. Dr. Altman diagnosed multiple cervical disc herniations with radicular
symptomatology to the right upper extremity. However, he did not believe that this was related
to the employment incident.
In a December 29, 2010 report, Dr. Cuartas discussed his treatment of appellant. He
noted that on September 23, 2010 she was using her body to move her chair closer to her
computer screen when she created a sudden increase in pressure and stress on the cervical spine
which herniated the discs at levels C5-6 and/or C6-7. Dr. Cuartas further noted that it was not
unusual for disc herniations to occur with what otherwise appear to be low-energy mechanisms.
Consequently, he concluded that the diagnosed conditions of herniated disc-cervical C5-6 and
C6-7 were causally related to the incident of September 23, 2010 within a reasonable degree of
medical certainty.
The Board finds a conflict in medical opinion between Dr. Cuartas and Dr. Altman, with
regards to whether appellant sustained injury causally related to the accepted employment factor.
Therefore, the case will be remanded to refer appellant to an impartial medical examiner to
resolve the conflict. Following this and any further development of the medical evidence,
OWCP shall issue an appropriate de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision due to an unresolved conflict
in medical opinion evidence.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 28, 2012 is set aside and the case is remanded for further
action consistent with this decision of the Board.
Issued: November 27, 2012
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

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