United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland, OH, Employer
__________________________________________

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

Docket No. 17-1141
Issued: September 21, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On May 2, 2017 appellant, through counsel, filed a timely appeal from a March 1, 2017
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant established an occupational disease causally related to the
accepted factors of his federal employment.
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.

On appeal counsel contends that appellant has submitted probative evidence such that his
claim should be allowed. He also contends that appellant was “getting whipsawed between
[appellant’s] two claims.”
FACTUAL HISTORY
On June 3, 2016 appellant, then a 53-year-old electronic technician, filed an occupational
disease claim (Form CA-2) alleging that he suffered pain in his right wrist, forearm, and elbow
as a result of the duties of his federal employment. He noted that he first became aware of the
disease on July 17, 2000 and first became aware of its relationship to his employment on
July 30, 2014. On the claim form, appellant explained his delay in filing the claim as “I thought
the original claim was still in effect.”3
In an October 12, 2015 progress note, Dr. Harry A. Hoyen, a Board-certified orthopedic
surgeon specializing in hand surgery, diagnosed pseudofolliculitis, open fracture of proximal
radius, ulnar nerve lesion, carpal tunnel syndrome, scar and fibrosis of skin, alopecia areata, and
pain in limb. On the same date, he reviewed an x-ray of the right forearm and wrist and found
mild residual deformity of the distal radial and ulnar shaft-metadiaphysis due to remote,
well-healed fractures. Dr. Hoyen also noted mild osteopenia.
In an October 12, 2015 progress note, Dr. Michael W. Keith, a Board-certified orthopedic
surgeon specializing in hand surgery, noted that appellant had been his patient for 15 years. He
noted that he reconstructed appellant’s forearm many years ago. Dr. Keith noted that appellant
made it through at work despite some deformity and issues with his wrist, but that it was now
becoming a bit excessive and that he was considering a change in position due to the level of
function and the repetitive nature of his job.
In an October 16, 2015 note, Dr. David R. Crowe, a Board-certified dermatologist, noted
that he saw and evaluated appellant on that day.
In a December 28, 2015 progress report, Dr. Hoyen noted a follow-up and listed
numerous problems, including pain in limb, ulnar nerve lesion, carpal tunnel syndrome,
pseudofolliculitis, and resolved open fracture of the proximal radius. He noted that the majority
of appellant’s symptoms were over the dorsal aspect of the wrist, and were worse with activity,
especially the repetitive nature of his work. Dr. Hoyen recommended a functional capacity
evaluation to help guide him in reaching a conclusion concerning appellant’s restrictions.
In a March 1, 2016 statement, appellant indicated that he had experienced soreness in his
right forearm, wrist, and elbow, as a well as a popping sensation since the middle to latter part of
2014. He noted that the pain in his elbow had been present since the latter part of January 2016,
3

Appellant had previously filed a claim wherein he alleged that on July 17, 2000 he got his right arm caught
between the roller and conveyer frame of a belt. This claim was assigned File No. xxxxxx543. OWCP accepted his
traumatic injury claim for open fracture of the right radius, open reduction right radius/ulna, fasiotomy of the right
volar compartment, and keloid scarring right forearm. Appellant stopped work on the date of injury and returned to
limited-duty work on June 22, 2001. He was off work again on July 15 and 16, 2002. OWCP found that appellant
had 23 percent permanent impairment of the right arm and paid a schedule award for the period November 5, 2003
to April 27, 2004.

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and the itching had been present for over five years. Appellant contended that the present
symptoms coincided with the exact area that was involved in the accepted employment injury
and the same area where multiple surgeries had been performed, and that he therefore believed
that the accepted employment injury was directly related to his present symptoms. He contended
that, as a result of his arm being pulled into a conveyer belt up to his elbow, the tendons
and ligaments in that area were weakened and this was responsible for his present symptoms.
Appellant contended that he had a loss of strength in his right arm which made performing his
job difficult. He described the duties of his work, which included the frequent use of hand tools
in order to loosen screws, bolts, and nuts, and using extreme force to pull new belts over rollers.
Appellant contended that he was not totally disabled from all work, but that there were certain
tasks that should be eliminated from his job duties.
By letter dated June 13, 2016, OWCP informed appellant that further information was
necessary to support his claim. Appellant was afforded 30 days to submit the necessary
evidence.
By letter dated July 5, 2016, the employing establishment controverted the claim based
on causal relationship and timeliness. In a separate letter of the same date, the human resources
specialist for the employing establishment noted that the medical documentation provided a
diagnosis of pseudofollicultiis, but did not provide medical rationale explaining how this illness
was causally related to appellant’s employment. She argued that findings of pain absent
explanatory medical evidence supporting how and why the underlying medical conditions were
caused by or affected by work activities is insufficient to establish fact of injury.
In a February 6, 2016 note, Dr. Peter J. Greco, an internist, indicated that he treated
appellant and had provided stretching exercises for him.
In an April 8, 2016 letter to appellant, in File No. xxxxxx543, OWCP noted that he was
now claiming a need for additional medical care due to the July 17, 2000 work-related injury, but
that, according to the evidence received, he was claiming a new injury and should therefore file a
new claim for an occupational disease.
By decision dated August 31, 2016, OWCP denied appellant’s claim. It determined that
he had timely filed his claim, but found that he had not submitted information sufficient to
establish that the employment events occurred as alleged. OWCP also noted that appellant had
not established a diagnosed medical condition causally related to an alleged employment event.
By letter received by OWCP on December 2, 2016, appellant, through counsel, requested
reconsideration. Counsel resubmitted the October 12, 2015 report from Dr. Keith.
In a January 27, 2017 internal memorandum, OWCP recommended doubling this case
with File No. xxxxxx543 for case management purposes. It noted that there was pertinent
evidence in File No. xxxxxx543 that had not been considered.
By decision dated March 1, 2017, OWCP determined that the evidence was sufficient to
modify the August 31, 2016 decision. It determined that the evidence supporting the factual
component of the fact of injury for appellant’s occupational disease claim was submitted under
File No. xxxxxx543. After reviewing this evidence, OWCP determined that, although the
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evidence was sufficient to support the factual component of fact of injury, the claim remained
denied because the evidence of record failed to establish a causal relationship between
appellant’s work exposure and a diagnosed medical condition.
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 the 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.4 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.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed, or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence must include 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.6
ANALYSIS
In File No. xxxxxx543, OWCP accepted that on July 17, 2000 appellant sustained an
employment-related fracture of the right radius, open reduction right radius/ulna, fasiotomy of
the right volar compartment, and keloid scarring of the right forearm. It issued a schedule award
for 23 percent impairment of the right arm. That case remains open for medical benefits. In the
instant case, appellant filed a claim for pain in his right wrist, forearm, and elbow as a result of
the duties of his employment. OWCP accepted that he filed a timely occupational disease claim
and that he experienced the employment factors alleged, but denied his case as he failed to
establish a causal relationship between his work exposure and a diagnosed medical condition.

4

Joe D. Cameron, 41 ECAB 153 (1989).

5

See Irene St. John, 50 ECAB 521 (1999).

6

Id.

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The Board finds that appellant failed to establish his occupational disease claim as the
medical evidence of record does not establish a causal relationship between the accepted
employment factors and a medical diagnosis.
Dr. Hoyen noted diagnoses of mild osteopenia and pseudofolliculitis, ulnar nerve lesion,
carpal tunnel syndrome, as well as appellant’s prior fracture of the proximal radius. Although he
noted that appellant’s symptoms were made worse with the repetitive nature of his employment,
he did not provide a well-rationalized explanation on causal relationship. A mere conclusion
without the necessary rationale explaining how and why the physician believes that a claimant’s
accepted exposure resulted in a diagnosed condition is insufficient to meet appellant’s burden of
proof.7
Dr. Keith discussed his treatment and noted that he had reconstructed appellant’s forearm
many years ago. He noted that appellant was considering a change in position, and he did note
the repetitive nature of appellant’s job, but he never provided a clear conclusion with regard to
causal relationship supported by rationalized medical opinion. Dr. Keith’s report is therefore of
limited probative value as it failed to provide a sufficient explanation as to the mechanism of
injury pertaining to this occupational disease claim.8
Dr. Crowe merely indicated in his report that he agreed with an undated, unspecified
medical report, while Dr. Greco indicated that he gave appellant stretching exercises. Neither
provided any explanation with regard to a medical diagnosis caused by appellant’s employment.
The Board has held that medical evidence that does not offer any opinion regarding the cause of
an employee’s condition is of limited probative value.9
An award of compensation may not be based on surmise, conjecture, speculation, or on
the employee’s own belief of causal relation.10 Appellant’s belief that the duties of his federal
employment caused his injury is not in question, but that belief, however, sincerely held, does
not constitute medical evidence sufficient to establish causal relationship.11
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 did not establish an occupational disease causally related
to the accepted factors of his federal employment.
7

G.M., Docket No. 14-2057 (issued May 12, 2015).

8

See P.P., Docket No. 17-0483 (issued June 13, 2017).

9

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

10

D.D., 57 ECAB 734 (2006).

11

P.S., Docket No. 17-0598 (issued June 23, 2017).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 1, 2017 is affirmed.
Issued: September 21, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.G., Appellant
and
U.S. POSTAL SERVICE, FAYETTEVILLE
MAIN POST OFFICE, Fayetteville, GA,
Employer
__________________________________________

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Appearances:
Martin Kaplan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1172
Issued: May 20, 2014

Case Submitted on the Record

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

JURISDICTION
On April 17, 2013 appellant, through her attorney, filed a timely appeal from the
December 6, 2012 and March 7, 2013 merit decisions of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant established that she was totally disabled from
August 23, 2006 to January 24, 2012 due to her December 10, 2001 employment injuries; and
(2) whether appellant established that she sustained a recurrence of disability on November 18,
2004 causally related to the same accepted employment injuries.

1

5 U.S.C. § 8101 et seq.

On appeal, counsel cites V.N.,2 in support of his contention that the December 6, 2012
decision incorrectly denied appellant’s claim for compensation based on her disabling
psychiatric conditions, which have not been accepted by OWCP, and ignored her physical injury,
which prevents her from performing her preinjury position. He states that the permanent
employment-related restrictions set forth by Dr. Harold H. Alexander, a Board-certified
orthopedic surgeon and an OWCP referral physician, and Dr. David P. Fieseler, an attending
Board-certified family practitioner, prevent her from performing her preinjury position. Counsel
contends that appellant stopped work because the employing establishment, by its own
admission, did not offer her a suitable modified job and required her to work outside her
employment-related medical restrictions.
FACTUAL HISTORY
This case has previously been before the Board with respect to the denial of appellant’s
Form CA-7 claims for wage-loss compensation from September 17, 2005 to June 25, 2006.3 In a
December 13, 2010 decision, the Board affirmed OWCP’s December 15, 2009 decision denying
appellant’s November 16, 2009 request for reconsideration because it was not timely filed and
did not establish clear evidence of error. The Board found that the newly submitted medical
reports of Dr. Brian Teliho, a Board-certified psychiatrist and OWCP referral physician, and
Dr. Alexander did not raise a substantial question as to the correctness of OWCP’s determination
that appellant’s total disability during the claimed period was not causally related to her accepted
December 10, 2001 employment injuries. The facts and the circumstances as set forth in the prior
decision are hereby incorporated by reference. The relevant facts are as follows.
OWCP accepted that on December 10, 2001 appellant, then a 43-year-old rural carrier
associate, sustained a right wrist sprain and strain, and temporary aggravation of a right carpal
tunnel fracture while pushing a loaded mail buggy that fell off the side of a ramp. Following
these injuries, she returned to work in a modified clerk position on July 8, 2004. On
September 14, 2004 appellant stopped work.
In a November 2, 2004 report, Steven Marrison, Ph.D., a clinical psychologist, advised
that appellant could return to light-duty work four hours a day, three days a week, as of
November 8, 2004. On November 15, 2004 appellant accepted the employing establishment’s
job offer of a modified clerk position and returned to work on that date. The duties of the
position involved answering the telephone, monitoring the call window, accountable, return to
sender and scanner input up to two hours per day. The physical requirements of the position
involved sitting and standing four hours a day, walking three hours a day, and intermittent lifting
of three to five pounds and intermittent bending one-half hour a day. Appellant stopped work on
November 18, 2004.
In a September 3, 2008 decision, OWCP granted appellant a schedule award for 19
percent impairment of the right arm for the period July 4, 2005 to August 22, 2006.

2

Docket No. 12-687 (issued August 16, 2012).

3

Docket No. 10-896 (issued December 13, 2010).

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On February 1, 2012 appellant filed a Form CA-7 compensation claim requesting leave
without pay from August 23, 2006 to January 24, 2012. In duty status reports dated October 13
through December 16, 2010, Dr. Marrison advised that appellant had a severe depressive
reaction to her accepted December 10, 2011 right wrist injury and that she was unable to return
to work.
By letter dated February 14, 2012, OWCP advised appellant that the medical evidence of
record indicated that she was disabled due to a condition not directly caused or related to her
accepted employment injuries. It requested that she submit medical evidence establishing that
her disability for work during the entire claimed period was due to her accepted work-related
injuries.
In a February 22, 2012 letter, appellant’s attorney requested that OWCP expand
appellant’s claim to include an exacerbation of her preexisting psychiatric condition by the
accepted employment injuries. In a separate letter also dated February 22, 2012, counsel
contended that the employing establishment failed to provide a modified job to appellant within
the permanent employment-related physical restrictions set forth in Dr. Alexander’s June 18,
2007 report.4
On April 18, 2012 appellant filed a Form CA-2a claim alleging that she stopped work on
November 4, 2004 due to a recurrence of disability. She stated that, following her December 10,
2001 employment injuries, she was unable to perform her usual work duties due to her physical
injuries. Appellant claimed that her depression was exacerbated by her compensable physical
injury.
In a May 8, 2012 decision, OWCP denied appellant’s claim for leave without pay from
August 23, 2006 to January 24, 2012 as she had failed to submit any medical evidence
establishing total disability during the claimed period was due to her accepted December 10,
2001 employment injuries.
By letter dated May 11, 2012, OWCP advised appellant that the evidence submitted on
behalf of her November 18, 2004 recurrence claim was insufficient. It requested that she submit
factual and medical evidence within 30 days of the date of the letter, including a medical report
from her physician describing objective findings and providing a rationalized opinion on the
causal relationship between the accepted work injuries and the claimed disability. Appellant did
not respond.
In a May 12, 2012 letter, appellant, through her attorney, requested a telephone hearing
with an OWCP hearing representative regarding the May 8, 2012 decision. Counsel contended
that appellant was entitled to compensation because the employing establishment had not offered
4

In the June 18, 2007 work capacity evaluation (Form OWCP-5c), Dr. Alexander stated that appellant could not
perform her usual job, but she could work eight hours a day with restrictions based on the results of a functional
capacity evaluation. She could sit, stand and walk six to eight hours, reach two to four hours, twist, bend, stoop,
operate a motor vehicle at work and to and from work one to two hours, perform repetitive movements of the wrists
and elbows four to six hours, push, pull or lift up to 10 pounds one hour and squat, kneel and climb one hour.
Appellant required two 15-minute breaks, one in the morning and another in the afternoon.

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her a suitable modified position, no loss of wage-earning capacity determination had been made
and there was evidence establishing her continuing employment-related disability.
By decision dated July 2, 2012, OWCP denied appellant’s claim for a recurrence of
disability on November 4, 2004 because appellant had not submitted any medical evidence to
establish a material change or worsening of her accepted employment conditions. OWCP stated
that this decision did not affect appellant’s continuing entitlement to medical benefits.
In a July 10, 2012 letter, appellant’s attorney requested a telephone hearing with an
OWCP hearing representative regarding the recurrence claim. He contended that appellant was
entitled to compensation through the present as the employing establishment failed to provide
her with the limited-duty job it offered in November 2004 and required her to work outside
Dr. Alexander’s permanent employment-related restrictions. Counsel noted that a report issued
by the employing establishment’s inspector general’s office and received on September 19, 2005
acknowledged that the November 2004 modified job assignment was not enforced nor was a
subsequent modified job offer made to appellant. As there was no suitable job offer or loss of
wage-earning capacity determination made by OWCP and there was evidence of continuing
disability due to appellant’s compensable injury, she was entitled to compensation.
During a November 16, 2012 telephone hearing, appellant’s attorney contended that the
November 2004 modified-duty position was not suitable as it involved repetitive use of the right
hand. He further contended that appellant’s fractured carpal of the right wrist was not considered
in determining whether she could perform the offered modified-duty position. Appellant
testified that she could not perform the intense writing required by the position. She stated that
she actually stopped work on November 18, 2004 and not on November 4, 2004 as previously
claimed. Appellant further stated that the employing establishment did not offer her another
modified position.
In a December 6, 2012 decision, an OWCP hearing representative affirmed the May 8,
2012 decision denying appellant’s claim for compensation from August 23, 2006 to
January 24, 2012. The hearing representative found that while her physicians stated that she had
been totally disabled since November 2004 due to her diagnosed psychiatric conditions, the
weight of the medical evidence established that these conditions were not causally related to her
accepted December 10, 2001 work injuries.5
Appellant submitted a March 5, 2012 report from Dr. Olufemi A. Taiwo, an attending
Board-certified psychiatrist, who advised that she had a severe depressive episode of bipolar
disorder with psychosis and a generalized anxiety disorder on Axis I. Dr. Taiwo stated that she
had a long history of psychiatric illness, but her current chronic and severe emotional problems
were triggered by her December 2001 work-related physical injuries and affected her family,
occupational and social functioning. Appellant required intensive psychiatric, psychological,
family and social services to function appropriately. Dr. Taiwo stated that she could not perform
any work-related activity as this would cause her conditions to decompensate. He further stated
5

In a December 18, 2012 decision, OWCP found that the medical evidence was insufficient to establish that
appellant’s emotional condition was caused or contributed to by her December 10, 2001 work injuries. The Board
notes that this consequential injury claim will be addressed separately under Docket No. 14-453.

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that appellant was emotionally fragile, had significant cognitive difficulties and lacked
appropriate job-related coping skills to perform any work related activity.
In a March 7, 2013 decision, an OWCP hearing representative affirmed the July 2, 2012
decision denying appellant’s recurrence of disability claim. She failed to submit rationalized
medical evidence to establish that she could not perform the duties of her modified-duty position
subsequent to November 18, 2004 as a result of her accepted injuries.
LEGAL PRECEDENT -- ISSUE 1
With respect to a claimed period of disability, an employee has the burden of establishing
that any disability or specific condition for which compensation is claimed is causally related to
the employment injury.6 The term disability is defined as the incapacity because of an
employment injury to earn the wages the employee was receiving at the time of the injury, i.e., a
physical impairment resulting in loss of wage-earning capacity.7
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative and substantial medical evidence.8 The medical evidence required to establish
a period of employment-related disability is rationalized medical evidence.9 Rationalized
medical evidence is medical evidence based on a complete factual and medical background of
the claimant, of reasonable medical certainty, with an opinion supported by medical rationale.10
The Board, however, will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed.11 To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.12
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a right wrist sprain and strain and temporary
aggravation of a right carpal tunnel fracture while working as a rural carrier associate. Appellant
claimed compensation for disability from August 23, 2006 to January 24, 2012. OWCP denied
her claim finding the medical evidence insufficient to establish that the claimed disability was
due to her accepted employment injuries. Appellant has the burden of establishing by the weight
6

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

7

20 C.F.R. § 10.5(f); see e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
8

See Fereidoon Kharabi, 52 ECAB 291 (2001).

9

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10

Leslie C. Moore, 52 ECAB 132 (2000).

11

Sandra D. Pruitt, 57 ECAB 126 (2005).

12

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, supra note 8.

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of the substantial, reliable and probative evidence, a causal relationship between her claimed
disability and the accepted condition.13 The Board finds that she did not submit sufficient
medical evidence to establish employment-related disability for the period claimed due to her
accepted injuries.
The reports of Dr. Marrison and Dr. Taiwo found that appellant had a severe depressive
reaction and an episode of bipolar disorder with psychosis, and a generalized anxiety disorder
due to her accepted December 10, 2001 employment injuries resulting in her total disability for
work. Dr. Marrison, however, did not provide any medical rationale explaining how the
diagnosed emotional conditions and resultant disability during the claimed period were causally
related to the accepted work injuries. The Board has held that a medical opinion not supported
by medical rationale is of little probative value.14 Dr. Taiwo advised that appellant was
emotionally fragile, had significant cognitive difficulties and lacked appropriate job-related
coping skills to perform any work-related activity. He did not adequately explain how these
work-related residuals prevented her from performing any work. As for Dr. Taiwo’s explanation
that appellant could not work to prevent further injury, it is well established that fear of future
injury does not constitute a basis for the payment of compensation.15 For the stated reasons, the
Board finds that the reports of Drs. Marrison and Taiwo are insufficient to establish appellant’s
claim.
Appellant failed to submit rationalized medical evidence to establish that her total
disability from August 23, 2006 to January 24, 2012 resulted from residuals of her accepted
employment-related right wrist conditions.
On appeal, appellant’s attorney cited V.N. in support of his contention that OWCP’s
December 6, 2012 decision was based solely on appellant’s disabling psychiatric conditions
which had not been accepted as employment-related and ignored her physical injury, which
prevented her from performing her preinjury position. He stated that the employment-related
restrictions set forth by Drs. Alexander and Fieseler prevented her from performing her preinjury
position. In a February 20, 2007 report, Dr. Alexander found that appellant’s subjective
complaints of pain outweighed the objective findings. He advised that she had continuing
residuals of her December 10, 2001 employment injuries. Dr. Alexander opined that appellant
could not perform her usual work duties as a mail carrier, but could perform sedentary light-duty
work with restrictions based on a functional capacity evaluation. In reports dated July 23, 2004
and April 6, 2005, Dr. Fieseler noted that appellant had chronic right wrist problems and was
unable to drive due to anxiety related to her December 10, 2001 injuries with anxiety and severe
paranoia. He opined that she was permanently disabled to work as a rural carrier. Appellant was
also unable to drive even short distances for fear of injury and paranoia. In a Form OWCP-5c
dated April 6, 2005, Dr. Fieseler noted appellant’s accepted conditions of wrist and hand sprain
and strain. He advised that she could not perform her usual job or work eight hours a day.
Dr. Fieseler further advised that appellant was permanently restricted from reaching, reaching
13

Alfredo Rodriguez, 47 ECAB 437 (1996).

14

Caroline Thomas, 51 ECAB 451 (2000).

15

E.g., D.S., Docket No. 12-1042 (issued December 7, 2012).

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above the shoulder, twisting, bending, stooping, operating a motor vehicle at work and to and
from work, repetitive movements using the wrists and elbows, pushing, pulling, lifting and
climbing. She could sit four hours, walk and stand one hour, squat and kneel with up to 10
pounds one-half hour.
The Board finds that the facts of the present case are distinguishable from those of V.N.
In V.N., the Board found that OWCP failed to consider the aspect of the medical report which
attributed her disability to the increased pain of her accepted condition that rendered her
incapable of performing her job duties. In the present case, the reports and findings of
Drs. Alexander and Fieseler failed to provide a definitive diagnosis or rationalized medical
opinion finding causal relationship between the accepted conditions and any resulting disability
during the relevant time period. For the stated reasons, the Board finds that counsel’s contention
has not been established and the medical evidence is insufficient to establish that appellant was
totally disabled from August 23, 2006 to January 24, 2012 due to the accepted December 10,
2001 work injuries.
Counsel further contended on appeal that appellant stopped work because the employing
establishment, by its own admission, did not offer her a suitable modified job and required her to
work outside her employment-related medical restrictions. Contrary to counsel’s contention, the
record contains the employing establishment’s December 9, 2010 offer for a modified clerk
position that falls within the physical restrictions set forth in Dr. Alexander’s June 18, 2007
Form OWCP-5c. Appellant rejected the job offer on January 11, 2011. There is no medical
evidence to support her argument that she was required to work outside her medical restrictions
during the claimed period of disability. Further, there is nothing to substantiate appellant’s
allegation that the report of the inspector general verified the failure to provide a suitable
modified job or assignment.
LEGAL PRECEDENT -- ISSUE 2
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 had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.16 This term also means an inability to work that takes place when a lightduty assignment made specifically to accommodate an employee’s physical limitations due to his
or her work-related injury or illness is withdrawn (except when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties or a reduction-in-force), or when the
physical requirements of such an assignment are altered so that they exceed his or her established
physical limitations.17
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that he or she can perform the limited-duty position, the employee has the
burden to establish by the weight of the reliable, probative and substantial evidence a recurrence
16

20 C.F.R. § 10.5(x).

17

Id.

7

of total disability and to show that he or she cannot perform such limited-duty work. As part of
this burden, the employee must show a change in the nature and extent of the injury-related
condition or a change in the nature and extent of the limited-duty job requirements.18
To show a change in the degree of the work-related injury or condition, the claimant must
submit rationalized medical evidence documenting such change and explaining how and why the
accepted injury or condition disabled the claimant for work on and after the date of the alleged
recurrence of disability.19
ANALYSIS -- ISSUE 2
As stated, OWCP accepted that on December 10, 2001 appellant sustained a right wrist
sprain and strain and temporary aggravation of a right carpal tunnel fracture while working as a
rural carrier associate. Following this injury, appellant returned to light-duty work. She claimed
a recurrence of disability on November 18, 2004. Appellant must demonstrate either that her
conditions have changed such that she could not perform the activities required by her modified
job or that the requirements of the limited light-duty job changed.
Appellant claimed that she sustained a recurrence of disability on November 18, 2004
because the duties of the modified-duty position required repetitive use of her right wrist to
perform intense writing which was outside her physical restrictions. She did not submit any
evidence to establish that the limited-duty position involved duties in excess of her physical
restrictions.20 The Board finds that the modified position was within appellant’s work
restrictions. The evidence of record shows that when she stopped work on November 18, 2004
she had limited-duty work within her work restrictions available to her. Therefore, appellant did
not show that she sustained a recurrence of total disability on November 18, 2004 due to a
change in the nature and extent of her limited-duty requirements.
The Board finds that the medical evidence submitted by appellant is insufficient to
establish that she sustained a recurrence of total disability commencing November18, 2004 due
to her accepted employment injuries. The reports of Dr. Marrison and Dr. Taiwo found that
appellant had a severe depressive reaction and an episode of bipolar disorder with psychosis, and
a generalized anxiety disorder due to the December 10, 2001 employment injuries resulting in
her total disability for work, but failed to either explain or adequately explain how the diagnosed
conditions and disability were caused by the accepted injuries.21

18

Albert C. Brown, 52 ECAB 152, 154-155 (2000); Barry C. Petterson, 52 ECAB 120 (2000); Terry R. Hedman,
38 ECAB 222, 227 (1986).
19

James H. Botts, 50 ECAB 265 (1999).

20

See Kim Kilts, 51 ECAB 349 (2000) (finding that only changes that cause the light-duty assignment to exceed
the employee’s work tolerance limitation result in a compensable recurrence of disability).
21

Caroline Thomas, supra note 14.

8

Appellant has failed to submit rationalized medical evidence establishing that her alleged
recurrence of disability commencing November 18, 2004 resulted from the residuals of her
accepted right wrist conditions. She has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to establish that she was totally disabled from
August 23, 2006 to January 24, 2012 due to her December 10, 2001 employment injuries. The
Board further finds that appellant has failed to establish that she sustained a recurrence of
disability commencing November 18, 2004 causally related to her accepted employment injuries.
ORDER
IT IS HEREBY ORDERED THAT the March 7, 2013 and December 6, 2012 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: May 20, 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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Birmingham, AL, Employer
__________________________________________

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

Docket No. 13-594
Issued: August 5, 2013

Case Submitted on the Record

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

JURISDICTION
On January 10, 2013 appellant filed a timely appeal of the December 3, 2012 Office of
Workers’ Compensation Programs’ (OWCP) decision denying his request for reconsideration as
it was not timely filed and failed to establish clear evidence of error. As more than one year
elapsed from the last merit decision of May 29, 1996 to the filing this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
does not have jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits on the grounds that his request was untimely filed and failed to demonstrate
clear evidence of error.
1
2

5 U.S.C. § 8101 et seq.

For final adverse OWCP decisions issued prior to November 19, 2008, a claimant had up to one year to appeal
to the Board. See 20 C.F.R. § 501.3(d)(2). For final adverse OWCP decisions issued on and after November 19,
2008, a claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e).

FACTUAL HISTORY
On December 25, 1994 appellant, then a 33-year-old city letter carrier, filed an
occupational disease claim alleging that his right arm condition was causally related to factors of
his federal employment.3
In a letter dated February 10, 1995, OWCP requested additional factual and medical
evidence in support of appellant’s occupational disease claim. Appellant submitted a statement
together with medical evidence from Dr. Louis Horne, an orthopedic surgeon, and Dr. Donald
Ross, a chiropractor.
By decision dated June 20, 1995, OWCP denied appellant’s claim finding that he failed
to submit sufficient medical evidence to establish a causal relationship between his diagnosed
condition and his work duties.
Appellant requested a hearing, which was held on January 23, 1996. He submitted
additional medical evidence. By decision dated May 29, 1996, an OWCP hearing representative
affirmed the June 20, 1995 decision.4
In an undated letter received September 4, 2012, appellant requested reconsideration. He
stated that his condition worsened and that he underwent right-sided ulnar nerve transposition
surgery. Appellant stated that his physicians told him that repetitive motion from 1994 to 1998
caused nerve damage, loss of range of motion and pain. He could no longer work and had
medically retired in 2004.
In a November 30, 1995 report, Dr. F. Calame Sammons, a Board-certified orthopedic
surgeon, noted that appellant sustained a fracture of the right radial head and subsequently
developed osteoarthritis of the elbow with chronic medial epiconylitis, cubital tunnel syndrome
and deformity of the radial head. Because of the problems related to the elbow, appellant was
having progressive problems using his arm, including pain and decreased range of motion.
Dr. Sammons opined that appellant could not continue to do the pulling and repetitive lifting and
carrying with the right upper extremity at work and should permanently be taken off those
activities.
By report dated August 27, 1998, Dr. Joseph W. Clark, a Board-certified orthopedic
surgeon, reported that appellant worked as a postal letter carrier. Appellant stated that he had
surgery on the right elbow because of “little leaguer’s elbow problems” about 22 years prior.
Since that time, he continued to have pain about the elbow. Dr. Clark reported an injury at
appellant’s job about four years prior with pain about his elbow. He listed an impression of mild
ulnar neuropathy and arthritic changes about the elbow. Appellant underwent arthroscopic
surgery on October 30, 1998.
3

Under claim number xxxxxx947, OWCP approved a claim for a June 7, 1994 injury when appellant slipped and
fell, striking his right arm. Appellant missed a couple of days of work as a result of the injury, but continued to seek
medical treatment.
4

Appeal rights attached to the May 29, 1996 decision notified appellant of his right to request reconsideration
before OWCP within one year of the date of the decision.

2

In progress notes dated November 4, 1998 to February 25, 2999, Dr. Clark addressed
appellant’s status post arthroscopy for degenerative joint disease of the right elbow. He stated
that an x-ray of appellant’s wrist showed early arthritis about the distal radial ulnar joint. The
combination of arthritis of the elbow and distal radial ulnar arthritis in conjunction with
repetitive pronation, supination flexion and extension in appellant’s work sorting mail
exacerbated his condition. Dr. Clark opined that appellant probably could not function with
these activities.
In an October 18, 2002 report, Dr. Clark advised that appellant had post-traumatic
arthritis of the right elbow and developed secondary ulnar nerve palsy. Appellant had previous
multiple surgical procedures for his elbow. Dr. Clark opined that appellant’s work as a postman
aggravated his condition. He stated that repetitive flexion and extension of an arthritic joint
certainly could lead to appellant’s pain and symptoms.
In a May 3, 2004 report, Dr. Clark reiterated that appellant had chronic problems with his
right elbow with multiple surgical procedures. He opined that appellant was not able to perform
the duties of mail carrier efficiently due to degenerative arthritis of the elbow with subsequent
stiffness and chronic ulnar neuropathy. Dr. Clark opined that the repetitive nature of his job
(repetitive flexion and extension of the elbow) probably exacerbated his ulnar neuropathy.
Appellant also submitted copies of June 22, 1994 and September 4, 1998 electromyogram
(EMG) reports and the October 30, 1998 surgical report.
By decision dated December 3, 2012, OWCP denied appellant’s request for
reconsideration of the merits, finding that his request was untimely filed and failed to establish
clear evidence of error.
LEGAL PRECEDENT
Under section 8128(a) of FECA,5 OWCP has the discretion to reopen a case for review
on the merits, on its own motion or on application by the claimant. It must exercise this
discretion in accordance with section 10.607 of the implementing federal regulations. Section
10.607 provides that an application for reconsideration must be sent within one year of the date
of OWCP’s decision for which review is sought.6 In Leon D. Faidley, Jr.,7 the Board held that
the imposition of the one-year time limitation for filing an application for review was not an
abuse of the discretionary authority granted OWCP under section 8128(a) of FECA. The oneyear time limitation period set forth in 20 C.F.R. § 10.607 does not restrict OWCP from
performing a limited review of any evidence submitted by a claimant with an untimely
application for reconsideration. OWCP is required to perform a limited review of the evidence
submitted with an untimely application for review to determine whether a claimant has submitted
clear evidence of error on the part of OWCP thereby requiring merit review of the claimant’s
case.
5

5 U.S.C. § 8128(a).

6

20 C.F.R. § 10.607.

7

41 ECAB 104, 111 (1989).

3

If the request for reconsideration is made after more than one year has elapsed from the
issuance of a merit decision, the claimant may only obtain a merit review if the application for
review demonstrates clear evidence of error on the part of OWCP.8
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.9 The evidence must be positive, precise and explicit and must be
manifest on its face that OWCP committed an error.10 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.11 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.12 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.13 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a fundamental question as to the correctness of OWCP’s decision.14 The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the
part of OWCP such that it abused its discretion in denying merit review.15
ANALYSIS
OWCP properly determined that appellant failed to file a timely application for review.
Its procedures provide that the one-year time limitation period for requesting reconsideration
begins on the date of the original OWCP decision.16 A right to reconsideration within one year
also accompanies any subsequent merit decision.17 Appellant’s undated reconsideration request
was received on September 4, 2012, more than one year following the most recent merit decision
of May 29, 1996. It was untimely filed. Consequently, he must demonstrate clear evidence of
error by OWCP in denying his claim for compensation.18
8

20 C.F.R. § 10.607; Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

9

See Dean D. Beets, 43 ECAB 1153 (1992).

10

See Leona N. Travis, 43 ECAB 227 (1991).

11

See Jesus D. Sanchez, supra note 8.

12

See Leona N. Travis, supra note 10.

13

See Nelson T. Thompson, 43 ECAB 919 (1992).

14

Leon D. Faidley, Jr., supra note 7.

15

Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458, 466 (1990).

16

20 C.F.R. § 10.607(a).

17

Robert F. Stone, 57 ECAB 292 (2005).

18

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

4

The Board finds that OWCP did not abuse its discretion by declining to reopen
appellant’s claim for further reconsideration on the merits
In 1996, OWCP denied appellant’s claim on the grounds that he failed to submit
sufficient medical evidence to establish the causal relationship between his right elbow condition
and his employment duties. In support of his request for reconsideration, appellant submitted
several medical reports addressing his right elbow condition. The Board has independently
reviewed these medical reports and finds that the evidence submitted does not establish clear
evidence of error by OWCP in denying his claim.
In his October 18, 2002 and May 3, 2004 reports, Dr. Clark opined that appellant’s work
as a postman aggravated his post-traumatic arthritic right elbow for which he developed ulnar
nerve palsy. He stated generally that repetitive flexion and extension of an arthritic joint could
lead to appellant’s pain and symptoms. This opinion is equivocal in nature. Dr. Clark opined
that the repetitive flexion and extension of the elbow in appellant’s job probably exacerbated his
ulnar neuropathy. This opinion is similarly speculative on causal relationship and is insufficient
to establish that OWCP erred in its denial of his claim.19 The Board notes that clear evidence of
error is intended to represent a difficult standard. Evidence, such as a detailed well-rationalized
medical report, which if submitted before the merit denial might require additional development
of the claim, is insufficient to establish clear evidence of error.20 While the reports of appellant’s
physician are generally supportive of his claim, they do not establish clear evidence of error on
the part of OWCP in denying his claim.21 The reports of Dr. Clark do not raise a substantial
question as to the correctness of OWCP’s May 29, 1996 merit decision or demonstrate clear
evidence of error.22
The medical evidence of record also includes Dr. Sammons’ report, surgical reports, and
diagnostic studies. They do not provide an opinion on causal relationship. This evidence is not
sufficient to shift the weight of the evidence in favor of the claimant or raise a fundamental
question as to the correctness of OWCP’s decision in denying his claim.
Appellant’s contentions on appeal and before OWCP do not establish clear evidence of
error.23

19

See W.R., Docket No. 09-2336 (issued June 22, 2010).

20

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (March 2011).

21

V.W., Docket No. 12-1901 (issued March 5, 2013).

22

Docket No. 12-90 (issued July 2, 2012).

23

Appellant submitted additional evidence with his appeal. The Board’s jurisdiction is limited to reviewing the
evidence that was before OWCP at the time of its final decision. Therefore, this additional evidence cannot be
considered by the Board. 20 C.F.R. § 501.2(c)(1); Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5
ECAB 35, 36 n.2 (1952). Appellant may submit this evidence to OWCP, together with a formal request for
reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(2).

5

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the December 3, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 5, 2013
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pulaski, TN, Employer
__________________________________________

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

Docket No. 13-2064
Issued: February 12, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 9, 2013 appellant filed a timely appeal from the May 14, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish that she has more than
a 10 percent permanent impairment of her left hand and a 10 percent permanent impairment of
her right hand, for which she received a schedule award.

1
2

5 U.S.C. §§ 8101-8193.

The record contains a September 10, 2013 decision of OWCP affirming the May 14, 2013 decision. Appellant
filed her appeal with the Board on September 9, 2013 and under the principles discussed in Douglas E. Billings,
41 ECAB 880 (1990), OWCP’s September 10, 2013 decision, issued while the Board had jurisdiction over the
matter in dispute, is null and void. See Linda Thompson, 51 ECAB 694 (2000).

FACTUAL HISTORY
On September 20, 2011 OWCP accepted that appellant, then a 54-year-old rural mail
carrier, sustained bilateral thumb osteoarthritis and bilateral thumb synovitis due to the repetitive
motions required by her job over the years. Appellant continued to work for the employing
establishment in a limited-duty position.
On October 11, 2011 and on March 20, 2012 Dr. Alton L. Hunter, Jr., an attending
Board-certified orthopedic surgeon, performed left and right thumb carpometacarpal (CMC)
arthroplasty with ligament reconstruction graft transfer respectively. Both procedures were
authorized by OWCP.
In an October 31, 2012 report, Dr. Hunter provided an assessment of appellant’s
postsurgery bilateral thumb condition. He detailed findings on examination, noting that no pain
was reported with grind testing or CMC shucking.3 Range of motion in both thumbs was
reported as normal. Dr. Hunter conducted an impairment rating evaluation and concluded that
appellant had a 10 percent permanent impairment of her left hand and a 10 percent permanent
impairment of her right hand under the standards of the American Medical Association, Guides
to the Evaluation of Permanent Impairment (6th ed. 2009). He indicated that appellant had
reached maximum medical improvement in both hands. For the left hand, under Table 15-2 on
page 394 of the sixth edition of the A.M.A., Guides, appellant had a 26 percent digit impairment
using the diagnosis-based rating method for thumb CMC arthroplasty. Dr. Hunter indicated that
this calculation incorporated grade modifier findings on the left: grade 1 for functional history,
grade 1 for physical examination and grade 1 for clinical studies. He stated that, under Table 1511 on page 421, the 26 percent digit impairment corresponded to a 10 percent impairment rating
for the left hand. For the right hand, under Table 15-2, appellant had a 26 percent digit
impairment using the diagnosis-based rating method for thumb CMC arthroplasty. This
calculation incorporated grade modifier findings on the right: grade 2 for functional history,
grade 1 for physical examination and grade 1 for clinical studies. Dr. Hunter noted that, under
Table 15-11, the 26 percent digit impairment corresponded to a 10 percent impairment rating for
the right hand.
In April 2013, appellant filed a claim for a schedule award due to her accepted work
conditions.
On May 7, 2013 an OWCP medical adviser stated that he reviewed the medical evidence,
including the October 31, 2012 report of Dr. Hunter. He explained that he agreed with
Dr. Hunter’s impairment rating methods and indicated that appellant had a 10 percent permanent
impairment of her left hand and a 10 percent permanent impairment of her right hand under the
sixth edition of the A.M.A., Guides.
In a May 14, 2013 decision, OWCP granted appellant a schedule award for a 10 percent
permanent impairment of her left hand and a 10 percent permanent impairment of her right hand.
The award ran for 48.8 weeks from October 31, 2012 to October 7, 2013.
3

The record contains the results of a functional capacity evaluation conducted in October 2012.

2

LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations5 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. For the complete loss of a
hand, FECA provides 244 weeks of compensation.6 Compensation for partial losses is
proportionate.7 FECA does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.8 For
OWCP decisions issued on or after May 1, 2009, the sixth edition of the A.M.A., Guides (6th ed.
2009) is used for evaluating permanent impairment.9
In determining impairment for the upper extremities under the sixth edition of the
A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the upper
extremity to be rated. With respect to the thumb, reference is made to Table 15-2 (Digit
Regional Grid: Digit Impairments) beginning on page 391. After the Class of Diagnosis (CDX)
is determined from the Digit Regional Grid (including identification of a default grade value),
the net adjustment formula is applied using the grade modifier for Functional History (GMFH),
grade modifier for Physical Examination (GMPE) and grade modifier for Clinical Studies
(GMCS). The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).10
Under Chapter 2.3, evaluators are directed to provide reasons for their impairment rating choices,
including choices of diagnoses from regional grids and calculations of modifier scores.11
ANALYSIS
OWCP accepted that appellant sustained bilateral thumb osteoarthritis and bilateral
thumb synovitis due to the repetitive motions required by her job. On October 11, 2011
Dr. Hunter, an attending Board-certified orthopedic surgeon, performed a left thumb CMC
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404 (1999).

6

Id. at § 8107(c)(3).

7

Id. at § 8107(c)(19).

8

Id.

9

See FECA Bulletin No. 9-03 (issued March 15, 2009). For OWCP decisions issued before May 1, 2009, the
fifth edition of the A.M.A., Guides (5th ed. 2001) is used.
10

See A.M.A., Guides 405-11 (6th ed. 2009). Table 15-2 also provides that, if motion loss is present for a claimant
who has undergone a thumb arthroplasty, impairment may alternatively be assessed using section 15.7 (range of
motion impairment). Such a range of motion impairment stands alone and is not combined with a diagnosis
impairment. Id. at 394, 465-68.
11

Id. at 23-28.

3

arthroplasty and, on March 20, 2012, he performed a right thumb CMC arthroplasty. In a
May 14, 2013 decision, OWCP granted appellant a schedule award for a 10 percent permanent
impairment of her left hand and a 10 percent permanent impairment of her right hand. The
award ran for 48.8 weeks from October 31, 2012 to October 7, 2013. The schedule award was
based on an October 31, 2012 impairment rating calculation of Dr. Hunter as confirmed by a
report from an OWCP medical adviser.
The Board finds that appellant has not shown that she has more than a 10 percent
permanent impairment of her left hand and a 10 percent permanent impairment of her right hand.
Dr. Hunter conducted a proper impairment rating evaluation under the standards of the A.M.A.,
Guides and concluded that appellant had a 10 percent permanent impairment of her left hand and
a 10 percent permanent impairment of her right hand. For the left hand, under Table 15-2 on
page 394 of the sixth edition of the A.M.A., Guides, appellant had a 26 percent digit impairment
using the diagnosis-based rating method for thumb CMC arthroplasty. Dr. Hunter properly
devised grade modifiers on the left (grade 1 for functional history, grade 1 for physical
examination and grade 1 for clinical studies) and applied the net adjustment formula.12 He stated
that, under Table 15-11 on page 421, the 26 percent digit impairment corresponded to a 10
percent impairment rating for the left hand. For the right hand, under Table 15-2, appellant had a
26 percent digit impairment using the diagnosis-based rating method for thumb CMC
arthroplasty. Dr. Hunter reported grade modifiers (grade 2 for functional history, grade 1 for
physical examination and grade 1 for clinical studies) and applied the net adjustment formula.
Under Table 15-11, the 26 percent digit impairment corresponded to a 10 percent impairment
rating for the right hand.
Moreover, an OWCP medical adviser stated on May 7, 2013 that he agreed with
Dr. Hunter’s impairment rating methods and indicated that appellant had a 10 percent permanent
impairment of her left hand and a 10 percent permanent impairment of her right hand.
On appeal, appellant alleged that she was entitled to more than 48.8 weeks of
compensation, but she did not submit evidence showing entitlement to a greater amount of
schedule award compensation. Under FECA, 244 weeks of compensation is paid for complete
loss of a hand and compensation for partial losses is proportionate.13 Given that appellant has a
10 percent impairment in each hand (20 percent total for both hands) it was appropriate that she
received proportionate compensation for her partial loss in the amount of 48.8 weeks.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.

12

See supra note 10.

13

See supra notes 6 and 7.

4

CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she has
more than a 10 percent permanent impairment of her left hand and a 10 percent permanent
impairment of her right hand, for which she received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the May 14, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 12, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
West Sacramento, CA, Employer
__________________________________________

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

Docket No. 12-375
Issued: October 28, 2013

Case Submitted on the Record

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

JURISDICTION
On December 5, 2011 appellant, through her attorney, filed a timely appeal from a
September 27, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
compensation benefits effective July 15, 2009, on the grounds that she no longer had any
residuals or disability causally related to her accepted employment-related injuries; (2) whether
appellant has established that she is entitled to disability compensation for the period January 17
to April 17, 2009 due to her accepted condition or other conditions arising from her accepted
injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 2, 2008 appellant, then a 47-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that she injured her neck, shoulder and back on that same date when
she was moving cages. She notified her supervisor and first received medical care on
December 2, 2008. On January 5, 2009 OWCP accepted appellant’s claim for neck sprain.
On May 6, 2009 OWCP notified appellant of its proposal to terminate her medical
benefits based on Dr. Robert S. Ferretti’s, a Board-certified orthopedic surgeon, opinion that she
was not experiencing any residuals or disability connected to her employment injury of neck
sprain. It further noted that as she had not filed any claim for compensation (Form CA-7) for
disability, there had been no wage-loss compensation subsequent to December 2, 2008. OWCP
provided appellant 30 days to submit additional information.
Appellant subsequently filed a claim for compensation (Form CA-7) and for leave
without pay for the period December 2, 2008 to April 17, 2009. She requested “other wage loss”
from the December 2, 2008 injury and also filed a claim for a schedule award.
By decision dated July 15, 2009, OWCP terminated appellant’s medical benefits effective
July 15, 2009 on the grounds that the weight of the medical evidence rested with Dr. Ferretti. On
August 7, 2009 appellant requested an oral hearing before the Branch of Hearings and Review on
the July 15, 2009 termination decision.
By decision dated December 1, 2009, OWCP also denied appellant’s claim for disability
compensation for the period January 17 to April 17, 2009.2
On December 10, 2009 appellant requested an oral hearing before the Branch of Hearings
and Review regarding the December 1, 2009 OWCP decision.
At the March 23, 2010 hearing, appellant’s attorney argued that, since the date of injury
on December 2, 2008, appellant has contended that she hurt both her neck and back as seen on
her Form CA-1. He further referenced other medical reports which identified her lower back
complaints and noted Dr. Karen Parker’s, Board-certified in emergency medicine, initial
December 2, 2008 report which identified lower back complaints on the date of injury. Counsel
stated that appellant had initially complained of low back pain to Dr. Maurice A. Minervini,
Board-certified in osteopathic manipulative medicine, but that he would not treat her because the
claim had only been accepted for her neck condition. This caused appellant to change physicians
and seek treatment from Dr. Perminder J. Bhatia, Board-certified in Neurology, in January 2009,
who did note and treat her back complaints. The record was held open for 30 days.
In support of her claim, appellant submitted an April 7, 2010 medical report from
Dr. Kenneth I. Light, a Board-certified orthopedic surgeon, who reported that she had a
2

OWCP noted that the period December 3, 2008 to January 16, 2009 was within the 45-day continuation of pay
period. It also noted that it paid wage-loss compensation due to medical appointments for the following dates:
January 28 (4 hours), February 17 (4 hours), February 19 (4 hours), February 23 (4 hours), March 9 (4 hours),
March 10 (4 hours) and April 9, 2009 (4 hours).

2

preexisting cervical condition 15 years ago which had resolved. She had been a mail carrier for
four years and a mail handler for one year. On December 2, 2008 appellant was moving bins,
which weighed approximately 500 pounds, when she felt a sudden pain in her neck and pressure
in her lower back. Dr. Light noted that the neck pain was initially much worse than her lower
back pain, stating that just because subsequent evaluations did not note lower back complaints
did not mean that she did not injure her back. He noted that appellant’s initial injury was a
cervical sprain and her current diagnosis was a chronic neck sprain. Dr. Light stated that, based
on objective findings, such as the loss of movement in her back, her right disc protrusion
correlated with her symptoms and was a result of her industrial accident. He further stated that
Dr. Ferretti’s conclusions that appellant did not have evidence of a low back condition, had
developed bilateral cubital tunnel syndrome and that her neck condition had resolved were
unsubstantiated. Dr. Light noted that in order to diagnose bilateral cubital tunnel syndrome,
appellant must have current electromyogram (EMG) and nerve conduction study (NCS) which
would substantiate a spinal injury. These tests were never accomplished. Dr. Light
recommended current EMG/NCS of both the upper and lower extremities to determine whether
appellant had cubital tunnel syndrome or radiculopathy.
By decision dated May 6, 2010, OWCP’s hearing representative vacated the July 15 and
December 1, 2009 decisions and remanded the case with instructions for OWCP to further
develop the medical evidence. On remand, the hearing representative instructed OWCP to refer
appellant, along with a statement of accepted facts and the case record, to an appropriate
specialist and have EMG/NCS tests of the upper and lower extremities performed to assist the
referee physician in providing a rationalized opinion to resolve the conflict in medical opinion
relating to diagnosis, residuals and disability.
OWCP referred appellant, a statement of accepted facts, the case file, a medical conflict
statement and a series of questions to Dr. Peter N. Sfakianos, a Board-certified orthopedic
surgeon, for an impartial referee medical examination to resolve the conflict in medical evidence.
Appellant was evaluated on July 12, 2010. In his August 18, 2010 medical report, Dr. Sfakianos
provided a summary of her past medical reports and reviewed diagnostic studies. He stated that
appellant’s claim of injuring her lower back during the December 2, 2008 employment incident
was unsubstantiated because there were no reports of lower back symptoms or lower back
complaints in any of the medical reports until January 2009. Dr. Sfakianos further stated that she
did not complain of lower back pain or lower extremity radicular symptomatology until it was
noted in the emergency room report dated January 9, 2009 from Sierra Nevada Memorial
Hospital. He opined that appellant had a preexisting ongoing medical degenerative process
associated with her cervical spine which was unaltered by the events of December 2, 2008.
With respect to appellant’s reports of upper extremity numbness and tingling,
Dr. Sfakianos stated that she possessed signs and symptoms consistent with a right ulnar
compression neuropathy at the elbow which he opined predated the employment incident. He
noted that a strain of the right upper extremity could exacerbate symptomology but also stated
that altering sleeping positions could have the same effect as well. Thus, Dr. Sfakianos opined
that appellant’s mild preexisting neurological condition was not a result of the December 2, 2008
employment incident.

3

Dr. Sfakianos reported that electrodiagnostic studies were not accomplished as
recommended by Dr. Light, who stated, however, that the diagnosis of peripheral compression
neuropathy would be made on the basis of nerve conduction velocities as opposed to the EMG
results. He stated that EMG findings are important in helping to confirm the diagnosis of a
cervical radiculopathy, but that no one was claiming appellant suffered from this condition.
Dr. Sfakianos also noted that electrodiagnostic studies performed in the lower extremities could
confirm the diagnosis of a S1 radiculopathy, as suggested by her physical examination and the
February 10, 2009 magnetic resonance imaging (MRI) scan of the lumbar spine, but were
unnecessary because he did not find her lower back condition was relatable or associated with
the events of December 2, 2008.
Dr. Sfakianos concluded that appellant sustained a cervicothoracic sprain/strain injury
and a right trapezial strain as a result of the December 2, 2008 employment incident, noting that
the soft tissue injuries occurred in the setting of preexisting, multilevel, mild cervical
degenerative disc disease with principal involvement of the C4-5 and C5-6 levels. He also
diagnosed nonindustrial degeneration of the cervical intervertebral disc, degeneration of lumbar
or lumbosacral intervertebral disc, displacement of lumbar intervertebral disc without
myelopathy and peripheral compression neuropathy of the ulnar nerve at the elbow.
Dr. Sfakianos stated that, given the disassociation between appellant’s lower back condition and
her potential upper extremity ulnar compression neuropathy with the December 2, 2008 events,
she would have been totally disabled from December 2, 2008 until a period of six weeks and
could have been partially disabled for three months. He found that, “After this time period,
statistically speaking, her disability, would, in all medical probability, have ceased.”
Dr. Sfakianos stated that appellant’s nonindustrial lower back and lower extremity condition
would make it difficult for her to return to work with any type of light-duty restrictions in place
for even the shortest time period each day. However, he stated that she had no physical
limitations as a result of the December 2, 2008 injury.
By decision dated August 27, 2010, OWCP affirmed the July 15, 2009 decision
terminating medical benefits and the December 1, 2009 decision denying appellant’s disability
compensation for the period January 17 to April 17, 2009. It noted that the findings of
Dr. Sfakianos were sufficiently well rationalized and based on a proper medical background.
Thus, the weight of the medical evidence rests with his opinion that the December 2, 2008 injury
had resolved with no further disability or need for medical treatment.
In medical reports dated June 8 and August 17, 2011, Dr. Robert D. Teasdale, Jr., a
Board-certified orthopedic surgeon, disagreed with Dr. Sfakianos that appellant’s medical
records did not reference any lower back complaints until January 2009. He stated that appellant
noted a back injury on her December 2, 2008 Form CA-1. Dr. Teasdale further stated that she
complained of a lower back injury in various December 2008 medical reports, including a
December 2, 2008 report which recorded neck and lower back pain. He opined that
Dr. Sfakianos either did not review these reports or chose to ignore them. At the time of the
initial injury, appellant’s neck injury was far worse but that later her back condition had
worsened. Dr. Teasdale stated that a review of her February 10, 2009 MRI scan demonstrated a
herniated disc in the lumbar spine with right-sided nerve root entrapment. He stated that
appellant was having symptoms from her damaged lumbar L5-S1 disc and lumbar facet chances.
Dr. Teasdale diagnosed radiculitis and recommended treatment. He opined that there was a clear

4

relationship between appellant’s lower back complaints, right leg radiating pain and herniated
disc to her work-related condition. Appellant’s predominate complaint related to the cervical
spine and her secondary complaint to the lumbar spine. Dr. Teasdale suggested that commonly
in the medical practice, the primary complaint receives the most attention. As appellant’s lumbar
complaints became more noticeable, it went untreated because it was determined that the
condition was not accepted as part of her claim.
In support of her contention that she had complained of a back injury since the
December 2, 2008 employment incident, appellant resubmitted her Form CA-1, a December 2,
2008 medical report by Dr. Karen Parker, Board-certified in emergency medicine, a
December 19, 2008 Rideout Health Group Work Release Form, as well as other medical
documents previously submitted.
By decision dated September 27, 2011, OWCP affirmed the August 27, 2010 decision. It
noted that the weight of the medical evidence still rested with Dr. Sfakianos because his report
was not vague, speculative or equivocal and was supported by substantial medical reasoning.
OWCP noted that, he, devoted three pages of discussion to whether appellant’s medical records
supported that the low back condition was related to the December 2, 2008 employment incident
and specifically summarized all of the reports he reviewed. It found that the difference in
opinion between Dr. Teasdale and Dr. Sfakianos was based on how much significance the
physicians assigned to the early reports. Thus, OWCP found that Dr. Sfakianos’ report was
sufficient to resolve the medical conflict.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP has accepted a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.3 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either 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 compensation.5 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.6 OWCP’s burden of proof includes the necessity of
furnishing rationalized medical opinion evidence based on a proper factual and medical
background.7

3

Bernadine P. Taylor, 54 ECAB 342 (2003).

4

Id.

5

Roger G. Payne, 55 ECAB 535 (2004).

6

Pamela K. Guesford, 53 ECAB 726 (2002).

7

T.P., 58 ECAB 524 (2007); Furman G. Peake, 41 ECAB 351 (1975).

5

Section 8123(a) 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.8 In situations where there are opposing
medical reports of virtually equal weight and rationale and the case is referred to an impartial
medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if
sufficiently well rationalized and based on a proper factual background, must be given special
weight.9
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a neck sprain on December 2, 2008. The Board
finds that OWCP properly terminated appellant’s medical benefits effective July 15, 2009 as the
residuals of this condition had ceased.
As discussed above, OWCP found that a conflict of medical opinion existed regarding the
nature and extent of appellant’s employment-related condition. It referred her to Dr. Sfakianos
to resolve the conflict. In his August 18, 2010 report, Dr. Sfakianos concluded that appellant
sustained a cervicothoracic sprain/strain injury and a right trapezial strain as a result of the
December 2, 2008 employment incident.
Dr. Sfakianos stated that appellant’s lower back condition and upper extremity ulnar
compression neuropathy were not causally related to the December 2, 2008 employment
incident. He noted that she had a preexisting ongoing medical degenerative process which was
unaffected by her accepted injury on December 2, 2008. Dr. Sfakianos opined that as a result of
the accepted injury appellant was totally disabled for six weeks and partially disabled for three
months after her injury.
The Board finds that, under the circumstances of this case, the opinion of Dr. Sfakianos is
well rationalized and based upon an extensive factual background. It is entitled to special weight
and establishes that disabling residuals of appellant’s work-related conditions ceased effective
July 15, 2009. 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.10
Dr. Sfakianos’ opinion is based on a complete, documented factual and medical history.
He thoroughly reviewed that history and accurately summarized the relevant medical evidence.11
Dr. Sfakianos provided medical rationale for his opinion by explaining that appellant’s accepted
cervicothoracic sprain/strain injury and right trapezial strain would have ceased within three
months of the injury. He further explained that her work restrictions were necessary only
8

5 U.S.C. § 8123(a).

9

Nathan L. Harrell, 41 ECAB 402 (1990).

10

Solomon Polen, 51 ECAB 341 (2000). See supra note 8.

11

See Melvina Jackson, 38 ECAB 443 (1987).

6

because of her nonindustrial lower back and lower extremity condition. Dr. Sfakianos provided
support for his argument noting that appellant had a preexisting ongoing degenerative process in
her lower back which was unaffected by the December 2, 2008 injury. His opinion is entitled to
special weight and establishes that her accident-related condition had resolved.
Subsequent to Dr. Sfakianos’ report, appellant submitted June 8 and August 17, 2011
medical reports from Dr. Teasdale, who disagreed with Dr. Sfakianos that appellant’s medical
records had no reference to any lower back complaints until January 2009. Dr. Teasdale argued
that she had noted back injury on her December 2, 2008 Form CA-1 and complained of a lower
back injury in various December 2008 medical reports, including Dr. Parker’s December 2, 2008
report which recorded neck and lower back pain. However, the earlier records from 2008 do
show a reference to back complaints, but not to lower back complaints. Many of the early
reports refer only to cervical and shoulder pain, but where back pain was referenced, it was
overwhelmingly in conjunction with the upper back. Where diagramed on the emergency room
report and follow up reports, only the upper back was highlighted.
Dr. Teasdale stated that review of appellant’s MRI scan demonstrated a herniated disc in
the lumbar spine with right-sided nerve root entrapment and that she was having symptoms from
her damaged lumbar L5-S1 disc and lumbar facet chances. He diagnosed radiculitis and opined
that there was a clear relationship between her lower back complaints, right leg radiating pain
and herniated disc to her work-related condition. Dr. Teasdale explained his belief that
commonly in medical practice, the primary complaint receives the most attention. As appellant’s
lumbar complaints became more noticeable, they were untreated because that condition was not
accepted under her claim. The record demonstrates that she was treated frequently for her injury.
Appellant visited the doctor often and her complaints are documented at length. It is unlikely
that her symptoms were overlooked or ignored as Dr. Teasdale suggests. The record affirms that
no lower back complaints were raised relative to her accident until January 2009.
While Dr. Teasdale argued that appellant’s lower back complaints, right leg radiating
pain and herniated disc were related to her work-related condition, he failed to provide support
for his conclusion.12 Though he generally supported that her continued symptoms were a result
of a back condition related to her accepted work injury, his opinion on causal relationship
remains conclusory and unsupported by additional explanation of how the conditions caused
disability or remained symptomatic.13 Moreover, Dr. Teasdale’s suggestion that Dr. Sfakianos
did not thoroughly review the medical record is inconsistent with the facts. Thus, his reports are
insufficient to overcome the opinion of Dr. Sfakianos or to create a new medical conflict.14
The Board finds that Dr. Sfakianos’ opinion constitutes the weight of the medical
evidence. There is no other medical evidence contemporaneous with the termination of
12

J.H., Docket No. 12-1848 (issued May 15, 2013).

13

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
14

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. Hoover’s report did not contain new findings or rationale
on causal relationship upon which a new conflict might be based.

7

appellant’s medical benefits to support that she has any continuing residuals or disability related
to her accepted work-related injury.15 Thus, OWCP properly terminated appellant’s medical
benefits.16
LEGAL PRECEDENT -- ISSUE 2
Under FECA,17 the term disability is defined as incapacity, because of employment
injury, to earn the wages that the employee was receiving at the time of injury.18 Disability is not
synonymous with a physical impairment which may or may not result in incapacity to earn the
wages. An employee who has a physical impairment causally related to a federal employment
injury but who nonetheless has the capacity to earn wages he or she was receiving at the time of
injury has no disability as that term is used in FECA.19
Whether a particular injury causes an employee to be disabled and the duration of that
disability are medical issues which must be proved by a preponderance of the reliable, probative
and substantial medical evidence.20 Findings on examination are generally needed to support a
physician’s opinion that an employee is disabled for work. When a physician’s statements
consist only of a repetition of the employee’s complaints that excessive pain caused an inability
to work, without making an objective finding of disability, the physician has not presented a
medical opinion on the issue of disability or a basis for payment of compensation.21
ANALYSIS -- ISSUE 2
OWCP accepted that appellant sustained a neck sprain due to the December 2, 2008
employment incident. Appellant requested wage-loss compensation from January 17 to
April 17, 2009. She has the burden of proving by the weight of the substantial, reliable and
probative evidence a causal relationship between her accepted injury and her claimed disability
for that period.22 The reports from appellant’s physicians do not provide a rationalized medical
opinion finding her disabled for work for the claimed period due to her accepted condition.
Therefore, appellant has failed to meet her burden of proof.23

15

D.R., Docket No. 12-1697 (issued January 29, 2013).

16

D.M., Docket No. 11-386 (issued February 2, 2012); Marshall E. White, 33 ECAB 1666 (1982).

17

5 U.S.C. §§ 8101-8193.

18

See Prince E. Wallace, 52 ECAB 357 (2001).

19

Cheryl L. Decavitch, 50 ECAB 397 (1999); Maxine J. Sanders, 46 ECAB 835 (1995).

20

See Fereidoon Kharabi, 52 ECAB 291, 293 (2001); Edward H. Horton, 41 ECAB 301, 303 (1989).

21

G.T., 59 ECAB 447 (2008); see Huie Lee Goal, 1 ECAB 180,182 (1948).

22

See Amelia S. Jefferson, 57 ECAB 183 (2005).

23

Alfredo Rodriguez, 47 ECAB 437 (1996).

8

OWCP determined that a conflict existed between Dr. Light, appellant’s treating
physician, and Dr. Ferretti, a second opinion referral physician, regarding the nature and extent
of appellant’s employment-related condition and disability. It referred appellant to Dr. Sfakianos
for an impartial medical evaluation to resolve the conflict. Dr. Sfakianos opined that appellant’s
claim of back injury was unsubstantiated primarily because she had no diagnosed change in her
low back condition until January 2009. He opined that she had a preexisting ongoing
degenerative process which was unaltered by the injury of December 2, 2008. Though
Dr. Sfakianos stated appellant’s nonindustrial lower back and lower extremity condition would
make it difficult for her to return to work in any type of light duty, he found this condition
unrelated to her employment injury. He concluded that she had no physical limitations causally
connected to the December 2, 2008 injury.
Appellant submitted reports from Dr. Teasdale which found that she suffered from a
herniated disc in the lumbar spine with right-sided nerve root entrapment. Dr. Teasdale
diagnosed radiculitis and concluded that her accepted accident caused her low back and right leg
complaints and her herniated disc. His report, however, failed to establish that appellant was
disabled from January 17 to April 17, 2009 due to the accepted December 2, 2008 employment
incident. Dr. Teasdale failed to discuss her medical history by identifying the reports and
treatment records he reviewed and explaining their relative importance. He did not show how
appellant’s preexisting back condition related to her current alleged disability. Dr. Teasdale did
not describe or explain changes in her medical condition. He did not specifically address
appellant’s capacity for work. Dr. Teasdale did not conclude that she was totally disabled as of
January 17, 2009.
Medical reports without adequate rationale on causal relationship are of diminished
probative value and do not meet an employee’s burden of proof.24 Dr. Teasdale did not provide
any opinion that appellant was totally disabled from January 17 to April 17, 2009 as a result of
the accepted neck injury and failed to explain how any residuals of this injury caused her
disability.25 Without any explanation or rationale for the conclusion reached, his reports are
insufficient to establish that her additional conditions are causally related to her original
December 2, 2008 injury.26 Therefore, the medical evidence of record does not establish that
appellant’s claimed disability during this timeframe was related to her December 2, 2008
employment injury.27
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.

24

Ceferino L. Gonzales, 32 ECAB 1591 (1981).

25

S.P., Docket No. 09-1010 (issued March 2, 2010).

26

Deborah L. Beatty, 54 ECAB 334 (2003).

27

Alfredo Rodriguez, 47 ECAB 437 (1996).

9

CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s medical
benefits effective July 15, 2009. The Board also finds that appellant failed to establish wage-loss
compensation for total disability due to her December 2, 2008 injury for the period January 17 to
April 17, 2009.
ORDER
IT IS HEREBY ORDERED THAT the September 27, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 28, 2013
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

10