United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tampa, FL, Employer
__________________________________________

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

Docket No. 15-1766
Issued: December 9, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 17, 2015 appellant, through counsel, filed a timely appeal from a May 15,
2015 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.
ISSUE
The issue is whether appellant has met his burden of proof to establish an injury causally
related to an April 9, 2014 employment incident.
FACTUAL HISTORY
On April 10, 2014 appellant, then a 54-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that he sustained a right shoulder injury on April 9, 2014 when he

1

5 U.S.C. § 8101 et seq.

experienced intense right shoulder pain while placing the upper straps to equipment on a trailer.
Appellant did not immediately stop work, but was placed on light duty.
By statement dated April 10, 2014, appellant advised that while tightening straps on
double stacked crab cages he felt immediate pain in his right shoulder. He noted that he
informed his supervisor that day and sought medical treatment the following day.
In an April 10, 2014 emergency room report, Dr. Frederick Yonteck, Board-certified in
emergency medicine, noted that appellant had an onset of right shoulder pain three weeks prior.
He attributed the injury to lifting at work. On examination Dr. Yonteck reported tenderness over
the deltoid and acromioclavicular (AC) joint. In an accompanying April 10, 2014 diagnostic
report, Dr. Cory Rizzardi, Board-certified in diagnostic radiology, advised that an x-ray of the
right shoulder revealed no fracture and three-and-a-half millimeter elevation inferior distal
clavicular surface relative to the inferior acromion, probably within normal limits.
On April 17, 2014 Dr. Michael Garcia, a Board-certified orthopedic surgeon, advised that
appellant had been experiencing right shoulder pain for the past three months. He noted that
appellant experienced the same symptoms while working at the employing establishment 15
years prior and was diagnosed with rotator cuff tendinitis. Examination of the right shoulder
revealed pain with palpation over the bicipital groove and over the lateral humeral head, 4/5
muscle strength, 0 to 160 degrees of forward flexion, 0 to 160 degrees of abduction, and 0 to 45
degrees of external rotation and internal rotation to the level of L1. Dr. Garcia assessed right
rotator cuff tendinitis and gave appellant a corticosteroid injection into the right shoulder joint
subacromial space. In an accompanying Florida Workers’ Compensation Treatment Form, he
checked a box to indicate that appellant’s injury was work related.
Dr. Garcia, in a May 29, 2014 report, advised that appellant had a workers’ compensation
claim for right rotator cuff tendinitis. He noted that appellant related that his right shoulder was
feeling better and that he stopped work six weeks prior. Examination of the right shoulder
revealed minimal tenderness to palpation about the shoulder over the greater tuberosity, good
shoulder range of motion and strength, and positive impingement maneuvers. Dr. Garcia
recommended that appellant undergo physical therapy. Several physical therapy reports were
submitted.
By letter dated July 25, 2014, OWCP advised appellant of the type of evidence needed to
establish his claim.
Appellant thereafter provided a July 17, 2014 report from Dr. Garcia who advised that
appellant’s symptoms improved, but he was still having difficulty with overhead activity and
over the shoulder work. On examination Dr. Garcia noted 5/5 strength in the rotator cuff, normal
range of motion, good strength, and positive impingement signs. He noted that appellant would
be treated with a corticosteroid injection that day and that he would continue light duty.
By decision dated September 4, 2014, OWCP denied appellant’s claim because medical
evidence was insufficient to establish that he sustained an injury causally related to the accepted
work event.

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In a September 30, 2014 report, Dr. John Tedesco, a Board-certified osteopath
specializing in family medicine, advised that appellant injured his shoulder at work in April. He
noted that he treated appellant on April 28, 2014 for the injury. Dr. Tedesco explained that
appellant was injured as a result of lifting and attaching straps which caused sudden pain in the
right shoulder. Examination of the right shoulder revealed near full range of motion, mild
tenderness on internal and external rotation of the humerus, and no point tenderness.
Dr. Tedesco assessed tendinitis and joint pain in the shoulder region. In an accompanying
September 30, 2014 Florida Workers’ Compensation Treatment Form, he checked a box to
indicate that appellant’s injury was work related. Dr. Tedesco also indicated that appellant was
able to return to work with restrictions. He limited pushing and pulling to 10 pounds and
restricted overhead reaching.
In an October 30, 2014 report, Dr. Robert Reppy, an osteopath specializing in
preventative medicine, advised that appellant complained of right shoulder pain. He noted that,
on April 9, 2014, appellant was on a loading dock strapping equipment onto a trailer when he felt
sudden pain and burning as he reached overhead to tighten the straps. Dr. Reppy advised that, in
the “remote past,” appellant had an episode of tendinitis due to repetitive right arm motions but
“all the symptoms disappeared with cessation of the repetitive task and rest” with the arm being
“symptom-free for many years before the date of the current injury.” Right shoulder
examination revealed tenderness and pain with abduction at the extreme of its range. Dr. Reppy
advised that appellant’s previous health care provider did not complete a diagnostic work-up and
simply assumed his condition was tendinitis. He ordered right shoulder magnetic resonance
imaging (MRI) scans and diagnosed right shoulder strain. Dr. Reppy opined that appellant likely
had a right rotator cuff tear, but noted that imaging results were needed to make a firm diagnosis.
In a January 8, 2015 report, Dr. Reppy advised that appellant’s April 9, 2014 date of
injury reflected when he filed his claim as opposed to when his pain first appeared, which was
three months earlier. He diagnosed full-thickness tear of the supraspinatus tendon as confirmed
by a December 12, 2014 MRI scan.
On February 11, 2015 appellant requested reconsideration.
By decision dated May 15, 2015, OWCP denied modification of the denial of appellant’s
claim finding that the medical evidence was insufficient to establish causation between the work
incident and diagnosed condition.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim by the weight of reliable, probative, and substantial
evidence,2 including that he or she is an “employee” within the meaning of FECA and that he or
she filed his or her claim within the applicable time limitation.3 The employee must also

2

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

3

R.C., 59 ECAB 427 (2008).

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establish that he sustained an injury in the performance of duty as alleged and that his disability
for work, if any, was causally related to the employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.5
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, 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
There is no dispute that on April 9, 2014 the alleged incident with the equipment straps
occurred. Therefore, the Board affirms the finding that the first component of fact of injury is
established. However, the medical evidence is insufficient to establish that the employment
incident on April 9, 2014 caused or aggravated appellant’s diagnosed condition.
In his October 30, 2014 report, Dr. Reppy, advised that appellant was strapping
equipment onto a trailer when he felt sudden pain and burning as he reached overhead to tighten
the straps. He indicated that appellant had previous right shoulder tendinitis, but had been
symptom free for years. In his January 8, 2015 report, Dr. Reppy clarified that appellant’s
April 9, 2014 date of injury reflected when he filed his claim and not when the pain first
appeared, which was three months earlier. Although these reports provide some support for
causal relationship, they are insufficient to discharge appellant’s burden of proof because they do
not offer medical rationale in support of an opinion on causal relationship. The need for
rationale is particularly important where, initially, Dr. Reppy indicated that appellant’s previous
right shoulder condition had been asymptomatic for years, but in his most recent report
acknowledged that appellant had symptoms three months before the date of injury. He did not
address how his changed understanding of appellant’s symptom history affected his opinion on
causal relationship since his initial report was erroneously premised on appellant’s condition
being dormant for years.7

4

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

5

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

6

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

7

See Vernon R. Stewart, 5 ECAB 276, 280 (1953) (where the Board held that medical opinions based on histories
that do not adequately reflect the basic facts are of little probative value in establishing a claim).

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In his September 30, 2014 report, Dr. Tedesco advised that appellant injured his shoulder
at work in April. He noted that he treated appellant on April 28, 2014 and that appellant related
that his injury was caused by lifting and attaching straps. Although Dr. Tedesco attributed
appellant’s injury to lifting and attaching straps, he did not provide medical rationale explaining
how this could have caused or aggravated the diagnosed condition. The Board has long held that
medical opinions not containing rationale on causal relation are of diminished probative value
and are generally insufficient to meet appellant’s burden of proof.8 In his accompanying Florida
Workers’ Compensation Treatment Form, Dr. Tedesco checked a box to indicate that appellant’s
injury was work related. However, the Board has held that an opinion on causal relationship that
consists only of a physician checking a box marked “yes” to a medical form question is of little
probative value.9
In his April 10, 2014 hospital report, Dr. Yonteck attributed appellant’s injury to lifting at
work three weeks prior. Appellant indicated that he was injured on April 9, 2014. However,
Dr. Yonteck notes that the injury occurred three weeks prior to his April 10, 2014 visit. This
report is insufficient to discharge appellant’s burden of proof as it does not reflect the history as
provided by appellant.10
In his April 17, 2014 report, Dr. Garcia advised that appellant had been experiencing
right shoulder pain for the past three months. He noted that appellant experienced the same
symptoms while working at the employing establishment 15 years prior and was diagnosed with
rotator cuff tendinitis. This report is insufficient to discharge appellant’s burden of proof
because it does not reference the April 9, 2014 work incident alleged by appellant. In an
April 17, 2014 Florida Workers’ Compensation Treatment Form, Dr. Garcia indicated that
appellant’s injury was work related by checking a box. As stated, an opinion on causal
relationship that consists only of a physician checking “yes” is of little probative value.11 Other
reports by Dr. Garcia are also insufficient to discharge appellant’s burden of proof as they do not
provide an opinion on causal relationship.
The Board therefore finds that appellant has submitted insufficient medical evidence to
establish his claim.12
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.

8

Carolyn F. Allen, 47 ECAB 240 (1995).

9

Deborah L. Beatty, 54 ECAB 334 (2003) (the checking of a box yes in a form report, without additional
explanation or rationale, is insufficient to establish causal relationship).
10

See supra note 7.

11

Supra note 9.

12

Jennifer Atkerson, 55 ECAB 317 (2004).

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CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an injury
causally related to an April 9, 2014 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the May 15, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 9, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.D., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF RECLAMATION, Hungry Horse, MT,
Employer
__________________________________________

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

Docket No. 07-1120
Issued: September 24, 2007

Case Submitted on the Record

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

JURISDICTION
On March 19, 2007 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ nonmerit decision dated January 29, 2007 which denied his request for
reconsideration on the grounds that it was untimely filed and failed to establish clear evidence of
error. Because more than one year has elapsed from the last merit decision dated August 12,
2005 to the filing of this appeal on March 19, 2007, the Board lacks jurisdiction to review the
merits of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration on
the grounds that it was untimely filed and did not establish clear evidence of error.
FACTUAL HISTORY
On May 23, 2005 appellant, then a 52-year-old plant mechanic and welder, filed an
occupational disease claim alleging that he developed “neurological symptoms/loss of balance”
in the performance of duty. He first became aware of his condition in August 2001 and first

related it to his employment in April 2004. Appellant noted: “Because of the uncertainty of the
diagnosis from the doctors they said it would have to get worse before giving a definite
diagnosis.” He stopped work on August 17, 2004. The employing establishment advised that
appellant had been separated.
In support of his claim, appellant submitted a statement and several medical reports and
diagnostic test results. In a September 28, 2001 report, Dr. Bret D. Lindsay, a Board-certified
psychiatrist and neurologist, diagnosed paresthesias in “an unusual variety of autonomic and
potentially central neurological symptoms.” On August 16, 2004 Dr. Marie Christine Leisz, an
osteopath, noted that appellant had a history of working as a welder, during which time he was
“exposed to multiple metals in poorly ventilated working situations.” She noted that during the
previous year appellant had multiple falls and gait problems that limited his ability to work.
Dr. Leisz diagnosed gait and movement disorder.
On August 17, 2004 Dr. Paul J. Tuite, a Board-certified psychiatrist and neurologist,
reported that he was unable to provide a clear diagnosis explaining appellant’s symptoms. He
noted that appellant’s gait was atypical for Parkinson’s disease and that the medical history and
physical examination findings did not support a diagnosis of welding-related Parkinson’s
disease. Dr. Tuite also noted that appellant’s lead, manganese and chromium levels were
unremarkable and that a magnetic resonance imaging (MRI) scan “did not show the typical
iron/manganese deposits commonly seen. He does balance impairment with falls, but does not
fit the diagnostic criteria for progressive supranuclear palsy at this time. It is possible that
[appellant] could have brain damage related to manganese exposure.” Appellant also provided a
June 17, 2004 report from Dr. Daniel E. Munzing, who diagnosed dysequilibrium.
On June 21, 2005 the Office requested additional information concerning appellant’s
claim.
By decision dated August 12, 2005, the Office denied appellant’s occupational disease
claim on the grounds that appellant did not submit sufficient medical evidence to establish an
injury or disease connected to the established work events.
Following the Office’s decision, the employing establishment submitted an August 15,
2005 statement from Ralph Carter, a facility manager, who noted that appellant advised, in a
casual conversation about a year prior, that his symptom onset occurred after welding a bed in
his personal dump truck at home. Mr. Carter listed a variety of filtering equipment that was used
at the employing establishment but noted that he did not know if appellant used any filtering
equipment in his outside construction business. He advised that, after talking to a project
manager and plant mechanics, appellant would have averaged welding about two hours per day
at the employing establishment as welding was not a full-time activity for a plant mechanic.
Appellant requested reconsideration on January 15, 2007. He stated that his health had
declined “to the point that an accurate diagnosis was able to finally be made.” Appellant
submitted diagnostic testing from the Regional Parkinson Center at Aurora Sinai Medical Center.
In a December 21, 2006 report, Dr. Paul A. Nausieda, a Board-certified psychiatrist and
neurologist, diagnosed manganism. He stated that appellant’s only neurotoxin exposure was
connected to his 36-year employment as a welder and explained: “Studies show that both acute

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and chronic inhalation of manganese oxide cause cell loss in the brain, mimicking the symptoms
of Parkinson’s disease.” Dr. Nausieda stated that welding rods contained a large amount of
manganese and that, during welding, fumes containing very small particles of manganese oxides
were inhaled by those who work in the area. He opined that appellant had a “significant history
of unprotected exposure” in a variety of open and confined spaces. Dr. Nausieda advised that,
based on his findings, he believed that appellant’s case was “indeed a result of cumulative
occupational exposure to manganese.”
By decision dated January 29, 2007, the Office denied appellant’s reconsideration request
on the grounds that it was untimely filed and did not establish clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act1 does not entitle a claimant
to a review of an Office decision as a matter of right.2 This section vests the Office with
discretionary authority to determine whether it will review an award for or against
compensation.3 The Office, through its regulations, has imposed limitations on the exercise of
its discretionary authority. One such limitation is that the Office will not review a decision
denying or terminating a benefit unless the application for reconsideration is filed within one
year of the date of that decision.4 The Board has found that the imposition of this one-year time
limitation does not constitute an abuse of the discretionary authority granted the Office under
5 U.S.C. § 8128(a).5
The Office’s regulations provide:
“[The Office] will consider an untimely application for reconsideration only if the
application demonstrates clear evidence of error on the part of [the Office] in its
most recent merit decision. The application must establish, on its face, that such
decision was erroneous.”6
In those cases where requests for reconsideration are not timely filed, the Office must
nevertheless undertake a limited review of the application for reconsideration to determine
whether there is clear evidence of error pursuant to the untimely request in accordance with
section 10.607(b) of its regulations.7
1

5 U.S.C. § 8128(a).

2

Thankamma Mathews, 44 ECAB 765, 658 (1993).

3

Id. at 768; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990).

4

20 C.F.R. §§ 10.607; 10.608(b). The Board has concurred in the Office’s limitation of its discretionary
authority; see Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).
5

20 C.F.R. § 10.607(b); Thankamma Mathews, supra note 2 at 769; Jesus D. Sanchez, supra note 3 at 967.

6

20 C.F.R. § 10.607(b).

7

Thankamma Mathews, supra note 2 at 770.

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To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.8 The evidence must be positive, precise and explicit and must
be manifest on its face that the Office committed an error.9 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.10 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.11 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.12 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 substantial question as to the correctness of the Office’s decision.13
ANALYSIS
The Board finds that the Office properly denied appellant’s request for reconsideration as
untimely. The Act’s implementing regulations provide that a request for reconsideration must be
filed within one year from the date of the Office decision for which review is sought.14 The most
recent merit decision was the Office’s August 12, 2005 decision denying appellant’s
occupational disease claim. As appellant’s January 15, 2007 reconsideration request was made
more than one year following the August 12, 2005 decision, the Board finds that appellant’s
request was untimely filed. Consequently, to have his claim reopened, appellant must show clear
evidence of error by the Office in its August 12, 2005 decision.
The Board finds that appellant has not presented evidence establishing that the Office’s
decision was erroneous or which raises a substantial question as to the correctness of the Office’s
decision. Appellant did not assert that the Office’s August 12, 2005 decision was erroneous, but
rather advised that it took additional time for his symptoms to deteriorate sufficiently that his
doctor was able to diagnose his condition. However, Dr. Nausieda’s December 21, 2006 report
is not sufficient to raise a substantial question concerning the correctness of the Office’s decision
or otherwise entitle appellant to a merit review despite the untimeliness of his request for
reconsideration.
Appellant’s claim was initially denied on the grounds that the evidence of record failed to
establish a diagnosis to which the established employment factors could be connected.
8

Id.

9

Leona N. Travis, 43 ECAB 227, 241 (1991).

10

Jesus D. Sanchez, supra note 3 at 968.

11

Leona N. Travis, supra note 9.

12

Nelson T. Thompson, 43 ECAB 919, 922 (1992).

13

Leon D. Faidley, Jr., 41 ECAB 104, 114 (1989).

14

20 C.F.R. § 10.607(a).

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Accordingly, the evidence submitted in support of the reconsideration request must not only
address causal relationship but must be so positive, precise and explicit as to prima facie shift the
weight of the evidence in appellant’s favor.15 In his December 21, 2006 report, Dr. Nausieda
diagnosed manganism. He noted appellant’s history of metal exposure as a welder and indicated
that studies showed that inhalation of manganese oxide caused symptoms similar to Parkinson’s
disease. He concluded that appellant’s condition was employment related. However,
Dr. Nausieda did not provide a rationalized medical opinion on causal relationship explaining in
sufficient detail his reasons for ruling out the diagnoses of other physicians or specifically how
appellant’s work exposures caused the diagnosed condition.16 His report is general in nature and
does not provide sufficient detail explaining how manganese exposure at work caused or
contributed to the diagnosis. The report does not address appellant’s exposure outside the
workplace or explain why any exposure outside of work would not be the cause of his
condition.17 Dr. Nausieda did not address the use or nonuse of any inhalation or filtering
equipment or the hours spent welding. Accordingly, the Board finds that Dr. Nausieda’s
December 21, 2006 report does not establish clear evidence of error as it is of insufficient
probative value to raise a substantial question as to the correctness of the Office’s decision
denying the claim.18 Other evidence submitted following the Office’s August 12, 2005 decision
is also insufficient to raise a substantial question as to the correctness of the Office’s decision.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration as
it was untimely filed and did not present clear evidence of error.

15

See supra note 9.

16

In order to be considered rationalized medical evidence, a physician’s opinion must be expressed in terms of a
reasonable degree of medical certainty and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and claimant’s specific employment factors. Victor J. Woodhams, 41
ECAB 345, 352 (1989); Steven S. Saleh, 55 ECAB 169, 172 (2003). The Board has held that a medical opinion not
fortified by medical rationale is of little probative value. Caroline Thomas, 51 ECAB 451, 456 n. 10 (2000);
Brenda L. Dubuque, 55 ECAB 212, 217 (2004).
17

See James R. Taylor, 56 ECAB ___ (Docket No. 05-135, issued May 13, 2005) (medical opinions based on an
incomplete or inaccurate history are of diminished probative value).
18

On appeal, appellant submitted additional medical evidence. The Board, however, notes that it cannot consider
this evidence for the first time on appeal because the Office did not consider this evidence in reaching its final
decision. The Board’s review is limited to the evidence in the case record at the time the Office made its final
decision. 20 C.F.R. § 501.2(c).

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ORDER
IT IS HEREBY ORDERED THAT the January 29, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 24, 2007
Washington, DC

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

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

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

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Appearances:
Joseph E. Allman, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-204
Issued: December 17, 2014

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 November 4, 2013 appellant, through his attorney, filed a timely appeal from a
May 6, 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.
ISSUE
The issue is whether appellant sustained any permanent impairment to his left leg or left
arm under 5 U.S.C. § 8107.
FACTUAL HISTORY
On May 14, 2009 appellant, a 52-year-old mail carrier injured his head, neck, back, and
face when the vehicle he was driving was struck from behind by another vehicle. OWCP
accepted his claim for neck sprain, lumbar sprain, thoracic sprain, and left shoulder sprain.
1

5 U.S.C. § 8101 et seq.

On May 19, 2010 appellant filed a Form CA-7 claim for a schedule award based on loss
of use of his lower and upper extremities.
In a January 4, 2011 report, Dr. Scott B. Taylor, a specialist in physical medicine and
rehabilitation, rated 10 percent whole person impairment based on the lumbar and cervical
sprains under the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) sixth edition. He advised that the May 14, 2009 work injury
aggravated appellant’s cervical and lumbar radiculitis, which caused a worsening of sciatic nerve
irritation and cervical radiculitis, and was manifested by pain and discomfort radiating out of the
neck and low back into the extremities on the left side. As a result appellant experienced
weakness, muscle spasm, and decreased sensation. Dr. Taylor advised that appellant had
decreased sensation in the C5-6 distribution of his left hand with slightly diminished biceps and
triceps reflex and brachioradialis. Appellant also had decreased strength with gripping and
elbow flexion and diffuse tenderness through the parathoracic spine, left side worse than right.
Dr. Taylor advised that in the lumbar spine appellant experienced spasm and tenderness
through the left paravertebral spinal muscles and decreased sensation in the left leg in the L4-5
and S1 distribution. Appellant had decreased range of motion in both the cervical and lumbar
spine. He rated 5 percent whole person impairment for the lumbar and cervical spine, which
totaled 10 percent whole person impairment under the A.M.A., Guides.
In order to determine whether appellant had any ratable permanent impairment from his
accepted conditions, OWCP referred him to Dr. Louis J. Angelicchio, Board-certified in
orthopedic surgery, for a second opinion examination. In a report dated July 12, 2011,
Dr. Angelicchio reviewed the history of injury and statement of accepted facts. Appellant
experienced bilateral leg numbness, leg spasms, low back pain, upper back pain, left shoulder
pain, and cervical pain and stiffness with limited range of motion. Dr. Angelicchio advised that
appellant underwent a magnetic resonance imaging (MRI) scan on August 14, 2009 which
showed a moderately large, broad-based central disc herniation at C6-7, moderate central spinal
stenosis, and moderately severe bilateral neural foraminal stenosis, left greater than right. He
opined that this was consistent with a preexisting MRI scan from November 13, 2007, in which
the cervical spine MRI scan evidenced a C6-7 superimposed disc bulge, broad-based protrusion.
Dr. Angelicchio also stated that the MRI scan was consistent with a multilevel hypertrophic facet
joint osteorarthrosis of the cervical spine, most severe at C7-T1; he also identified a small, leftsided disc herniation at C5-6.
Dr. Angelicchio found that appellant had residuals from the May 14, 2009 work injury,
which included complaints of neck, thoracic, and lumbar pain with left sciatic symptoms. He
advised that the complaints were supported by objective symptoms, which included loss of
motion in the cervical, thoracic, and lumbar spine with radicular symptoms into the left leg.
Dr. Angelicchio stated that the May 14, 2009 work injury caused or aggravated appellant’s spinal
conditions, which resulted in cervical radiculopathy and lumbar radiculopathy with cervical,
thoracic, and lumbar back pain. He rated a 10 percent left lower extremity impairment under the
A.M.A., Guides secondary to sciatic symptoms in the left lower extremity pursuant to Table
16-12, page 535 of the A.M.A., Guides,2 the table utilized to rate peripheral nerve impairments
2

A.M.A., Guides 535.

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of the lower extremities. Additionally, Dr. Angelicchio rated a 10 percent left upper extremity
impairment for cervical radiculopathy with sensory loss pursuant to Table 15-21, page 441 of the
A.M.A., Guides,3 the section used for rating peripheral nerve impairments of the upper
extremity.
On November 22, 2011 OWCP accepted the conditions of brachial neuritis or radiculitis,
thoracic or lumbosacral neuritis, or radiculitis.
In a December 10, 2011 report, Dr. Brian M. Tonne, an OWCP medical adviser,
reviewed Dr. Angelicchio’s report and found that it was not in conformance with the appropriate
tables of the A.M.A., Guides. Although Dr. Angelicchio relied on Table 16-12 and Table 15-21
to rate 10 percent impairment to the left leg and arm, he did not clearly address whether the
ratings were based upon motor findings, sensory findings, or both. Dr. Tonne noted that
Dr. Angelicchio did not document the appropriate grade modifiers. While the A.M.A., Guides
did not provide a specific method for rating extremity impairment based upon spinal pathology,
such impairments were to be rated using the peripheral nerve tables such as Table 16-12 or,
alternatively, under The Guides Newsletter “Rating Spinal Nerve Extremity Impairment using
the sixth edition” (July/August 2009), which rates impairment based on radiculopathies and
nerve root deficits. Dr. Tonne recommended that appellant be referred for further examination
by Dr. Angelicchio or another physician.
OWCP referred appellant for a second opinion examination and impairment evaluation to
Dr. Norman Mindrebo, a specialist in orthopedic surgery. In a January 19, 2012 report,
Dr. Mindrebo reviewed the history of injury and, on examination, found that appellant had no
ratable impairment of the upper or lower extremities arising from the accepted cervical and
lumbar conditions. Appellant’s complaints were related to his underlying preexisting cervical
and lumbar stenosis with degenerative disc disease and nerve root compression, which were not
caused by the May 2009 automobile accident. Dr. Mindrebo found no evidence of nerve root
impingement based on his examination; any nerve root impingement that was present three
months before his May 2009 automobile accident was related to his preexisting cervical, thoracic
and lumbar spine conditions that were demonstrated in his November 13, 2007 MRI scan.
By decision dated February 16, 2012, OWCP denied appellant’s claim for a schedule
award.
By letter dated March 6, 2012, appellant’s attorney requested an oral hearing, which was
held on July 17, 2012.
In a July 24, 2012 report, Dr. Taylor stated that he had reviewed a functional capacity
evaluation and a May 23, 2012 electromyogram (EMG) report, which showed evidence of left
lower extremity radiculopathy.4 There was also a moderate-length dependent sensorimotor
3

Id. at 441.

4

The record reflects that appellant underwent an electromyogram study on May 23, 2012 of the left lower
extremity that was reported as abnormal. It revealed evidence of a moderate length-dependent sensorimotor axonal
polyneuropathy with secondary demyelination and chronic left L3 radiculopathy.

3

axonal polyneuropathy with secondary demyelination. Based on the diagnostic testing and
physical examination, he rated a 10 percent left leg impairment, a class 1 impairment of the
sciatic nerve, pursuant to Table 16-12, page 535 of the A.M.A., Guides; and a 10 percent left arm
impairment, a class 1 impairment for proximal left, mild weakness at Table 15-21, page 441 of
the A.M.A., Guides.
By decision dated September 28, 2012, an OWCP hearing representative set aside the
February 16, 2012 decision. She found that Dr. Taylor’s July 24, 2012 impairment evaluation
required review by an OWCP medical adviser.
In an October 11, 2012 report, Dr. Nabil F. Angley, an OWCP medical adviser, reviewed
Dr. Taylor’s July 24, 2012 report. He found that the impairment ratings for the left leg and arm
failed to include the grade modifiers and adjustments required under the A.M.A., Guides to
support an appropriate impairment rating. Dr. Angley recommended that appellant be referred
for a new impairment evaluation.
OWCP referred appellant to Dr. Joseph C. Duncan, a specialist in orthopedic surgery, for
a second opinion examination. In a December 10, 2012 report, Dr. Duncan reviewed the history
of injury and statement of accepted facts. He rated five percent cervical impairment using Table
17-2 at page 564 of the A.M.A., Guides5 based on appellant’s documented history of
sprain/strains, along with continued complaints of axial or nonverifiable radicular complaints.
Dr. Duncan also rated five percent lumbar impairment using Table 17-4, page 570,6 for a similar
documented history of sprain/strains with continued complaints of axial and/or nonverifiable
radicular complaints. He stated that “in terms of the radiculopathy that may or may not be
present I cannot prove or disprove that based on examination, so I would not include that in (my)
impairment.” Dr. Duncan rated one percent impairment to appellant’s thoracic spine based on
Table 17-3, page 567 of the A.M.A., Guides for the documented history of sprain/strains with
continued complaints of axial and/or nonverifiable radicular complaints.
In a December 13, 2012 addendum report, Dr. Duncan stated that appellant had class 1
impairment for shoulder pain under Table 15-5, page 401,7 the shoulder regional grid, of the
A.M.A., Guides. Appellant had a functional history grade modifier 2 at Table 15-7, page 406 of
the A.M.A., Guides8 due to his pain and symptoms with normal activity; a physical examination
grade modifier 1 at Table 15-8, page 408; and a clinical studies grade modifier zero at Table 159, page 410 due to the lack of imaging studies with which he was provided. Dr. Duncan found
that the net adjusted impairment of zero, which placed appellant into a default impairment of
grade C, which yielded a one percent impairment of the shoulder in accordance with Table 15-5.
Based on his examination and lack of objective radicular findings at the thoracic and cervical
spine, appellant had no ratable impairment. With regard to the lumbar spine, Dr. Duncan found
that the May 23, 2012 EMG results showed an L5 radiculopathy, for mild motor and mild
5

A.M.A., Guides 564.

6

Id. at 570.

7

Id. at 401.

8

Id. at 406.

4

sensory deficit under class 1, under proposed Table 2 of the July/August 2009 edition of The
Guides Newsletter.
Dr. Duncan also used Chapter 17 of the A.M.A., Guides to calculate a two percent mild
sensory impairment for L5 radiculopathy and nine percent impairment for L5 mild motor deficit.
In a January 10, 2013 report, Dr. Angley, the medical adviser, found that Dr. Duncan’s
impairment ratings were not in conformance with the appropriate tables of the A.M.A., Guides.
Dr. Duncan relied on Chapter 17 in making his impairment rating, the chapter for rating spinal
impairments which was not used by OWCP. The medical adviser recommended that appellant
be referred for examination by another medical examiner to determine whether he had any
permanent impairment.
Appellant was referred to Dr. Brian S. Foley, a specialist in pain medicine, for a second
opinion examination. In a report dated March 11, 2013, after stating findings on examination
and reviewing the medical history and the statement of accepted facts, Dr. Foley found that
appellant had no ratable, permanent impairment of the left arm or leg under the A.M.A., Guides.
He noted that appellant’s EMG study mentioned radiculopathy, but stated that the tables revealed
no membrane instability, positive waves or fibrillation potentials to support that finding.
Dr. Foley opined that motor unit changes alone are considered a “soft finding.” He stated:
“I am being asked to comment only on [appellant’s] ‘accepted conditions.’ With
regards to his spine and musculoskeletal system they are only sprain/strain
(cervical, thoracic, lumbar, and left shoulder). Sprain/strain is a short-term
condition and does not continue three years past injury. The soft-tissue disorders
are assumed to be resolved.
“[Appellant] reports persistent symptoms but they cannot be attributed to an
accepted condition as described. Since any permanent partial impairment with
regards to an extremity would need to be supported by an accepted condition and
consistent physical exam[ination] deficit, the A.M.A., Guides do not support a
permanent partial impairment rating.”
In a supplemental report dated March 26, 2013, Dr. Foley stated that he had reviewed the
June 16, 2011 statement of accepted facts and noted that no other specific diagnoses had
definitively been made other than the previously accepted conditions of diplopia, depression
aggravation, cervical sprain/strain, concussion (without loss of consciousness), thoracic
sprain/strain, lumbar sprain/strain, and left shoulder sprain/strain.
In a May 2, 2013 report, Dr. Angley reviewed Dr. Foley’s reports and found that
appellant had no ratable permanent impairment of the left arm or leg. He concurred with
Dr. Foley’s opinion that appellant had sustained soft-tissue conditions, which had resolved and
that his accepted conditions and physical examination did not provide a sufficient basis for an
impairment rating under the A.M.A., Guides.
By decision dated May 6, 2013, OWCP denied appellant’s claim for a schedule award,
finding that he did not have any permanent impairment due to his May 14, 2009 employment
injury.
5

LEGAL PRECEDENT
The schedule award provision of FECA9 and its implementing regulations10 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.11 The claimant has the burden of proving
that the condition for which a schedule award is sought is causally related to his or her
employment.12
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. For peripheral nerve impairments to the upper or
lower extremities resulting from spinal injuries, OWCP’s procedures indicate that The Guides
Newsletter “Rating Spinal Nerve Extremity Impairment using the sixth edition”
(July/August 2009) is to be applied.13
In addressing lower extremity impairments, due to peripheral or spinal nerve root
involvement, the sixth edition requires identifying the impairment class for the diagnosed
condition Class of Diagnosis (CDX), which is then adjusted by grade modifiers based on
Functional History (GMFH), Physical Examination (GMPH), and if electrodiagnostic testing
were done, Clinical Studies (GMCS).14 The net adjustment formula is (GMFH - CDX) +
(GMCS - CDX).15
ANALYSIS
The Board finds that the case is not in posture for decision.
In support of his claim for a schedule award, appellant submitted the January 14, 2011
report of Dr. Taylor, an attending physician. He rated five percent whole man impairment of the
lumbar spine and five percent whole man impairment of the cervical spine utilizing Chapter 17,
9

5 U.S.C. § 8107.

10

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

11

Id.

12

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

13

See G.N., Docket No. 10-850 (issued November 12, 2010); see also Federal (FECA) Procedure Manual, Part
3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1, note 5 (January 2010). The Guides Newsletter is included
as Exhibit 4.
14

A.M.A., Guides 533.

15

Id. at 521.

6

of the A.M.A., Guides. The Board notes that Dr. Taylor’s impairment rating does not conform to
the protocols of OWCP in rating impairment as it is well established that schedule awards are not
payable for a member, function or organ not specified as compensable under section 8107 or the
implementing federal regulations.16 FECA does not provide for whole person impairments.17
Further, the back and spine do not come under the provisions for payment of a schedule award.18
For this reason, the 2011 impairment rating from Dr. Taylor is of diminished probative value.
The Board notes that Dr. Taylor submitted a one page follow up dated July 24, 2012, assigning a
class 1 left leg impairment of 10 percent and a class 1 left arm impairment of 10 percent. While
Dr. Taylor stated that he relied on the A.M.A., Guides in making the ratings; as noted by the
medical adviser, he failed to adequately explain how the ratings were derived. He provided only
general reference to Chapter 15 and 16 and did not address the adjustment factors or grade
modifiers for functional history, physical examination, or clinical studies. For this reason,
Dr. Taylor’s 2012 impairment ratings are of diminished probative value.
OWCP developed the medical evidence by referring appellant to Dr. Angelicchio for
examination. In a July 12, 2011 report, Dr. Angelicchio found that appellant had residuals of his
accepted cervical and lumbar conditions, which were aggravated by the accepted motor vehicle
accident. He rated 10 percent impairment to both the left leg and left arm. The left leg
impairment rating was based on sciatic symptoms while the left arm rating was based on cervical
radiculopathy.19 Dr. Angelicchio generally referred to the sixth edition in making the
impairment ratings. As noted by Dr. Tonne, the impairment ratings of Dr. Angelicchio did not
conform to the A.M.A., Guides, as the physician failed to adequately address the motor and
sensory findings on which they were based. Further, he did not reference The Guides Newsletter
(July/August 2009), which is accepted for rating impairment based on radiculopathies and nerve
root deficits to the extremities.20
Appellant was then referred to Dr. Mindrebo for an impairment evaluation. The Board
notes that this report was not reviewed by an OWCP medical adviser. Dr. Mindrebo noted that
appellant had a significant preexisting history of cervical, thoracic, and lumbar spine disease
prior to the accepted injury. In addition, there was congenital spinal stenosis of the lumbar spine
unrelated to the employment injury. Dr. Mindrebo noted that he could not rate impairment to the
spine but could rate impairment of the peripheral nerve roots. He stated that he referenced
Chapter 16.4c of the sixth edition and Chapter 15.4, but found that appellant did not appear to
have permanent impairment based on the rear-end collision alone, compared to the significant,
preexisting spinal conditions prior to the accident. The Board finds that Dr. Mindrebo’s report is
of reduced probative value. Dr. Mindrebo did not make any specific reference to The Guides
Newsletter, as was requested by OWCP. Further, he was not apprised that preexisting
16

See Lenny M. Terska, 53 ECAB 247 (2001).

17

See Marilyn S. Freeland, 57 ECAB 607 (2006).

18

See Francesco C. Veneziani, 48 ECAB 572 (1997).

19

Based on this examination, OWCP accepted brachial neuritis or radiculitis and thoracic or lumbosacral neuritis
or radiculitis.
20

See J.S., Docket No. 14-774 (issued November 3, 2014); E.D., Docket No. 13-2014 (issued April 24, 2014).

7

impairments are included when determining the extent of permanent impairment to the member
under consideration.21
Appellant was next referred to Dr. Duncan, who stated generally that appellant was at
maximum medical improvement but he was not certain of the exact date.22 He rated impairment
with reference to Chapter 17, which pertains to the spine: five percent to the cervical spine, five
percent to the lumbar spine and one percent to the thoracic spine. As noted, a schedule award is
not granted for permanent impairment of the back or spine; this renders the rating by Dr. Duncan
of reduced probative value. His subsequent addendum did not resolve the matter, as he again
made reference to Chapter 17 in describing the adjustments for functional history, physical
examination, and clinical studies in rating the lumbar spine for sensory and motor deficit.
Appellant was referred by OWCP to Dr. Foley for a second opinion. Dr. Foley noted that
he was asked to comment only on appellant’s accepted conditions, which were sprain/strain of
the cervical, thoracic, lumbar spine, and left shoulder. Since these were soft tissue injuries, they
were assumed to be resolved. Dr. Foley concluded that appellant had no permanent impairment
due to these conditions. He submitted an addendum which noted that appellant had a diagnosis
of persistent pain, but no other specific diagnoses other than diplopia, depression aggravation,
and cervical sprain/strain, concussion without loss of consciousness, thoracic sprain/strain,
lumbar sprain/strain, and left shoulder sprain strain. Dr. Angley, the medical adviser, agreed
with Dr. Foley’s opinion that all the accepted conditions with regard to appellant’s spine and
musculoskeletal system were only sprain/strain and assumed to be resolved without permanent
impairment.
The Board notes that included among the various condition accepted in this case are
brachial neuritis or radiculitis and thoracic or lumbosacral neuritis or radiculitis. These
conditions were not addressed by Dr. Foley in assessing whether appellant had any permanent
impairment to his left arm or leg. Certain of the diagnostic tests of record have been positive for
lumbar or cervical radiculitis. These tests were not adequately addressed by Dr. Foley in
reaching his opinion on permanent impairment. It does not appear, therefore, that the
physician’s report was based on an accurate statement of the accepted conditions or a full review
of the medical record. Further, the Board has recognized that soft-tissue injuries such as
sprains/strains may give rise to permanent impairment warranting a schedule award.23 This is
primarily a medical question to be resolved by probative medical opinion.
As OWCP attempted development of the medical evidence, it has the responsibility to see
that justice is done.24 The case will be remanded for further development of the medical
evidence as appropriate on the issue of permanent impairment. The examining physician should
21

See Carol A. Smart, 57 ECAB 340 (2006).

22

The determination of whether maximum medical improvement has been reached is based on the probative
medical evidence of record and is usually based on the evaluation by the examining physician which is accepted by
OWCP as definitive. See Mark A. Holloway, 55 ECAB 321 (2004).
23

See S.M., Docket No. 14-1052 (issued September 4, 2014); A.H., Docket No. 13-1961 (issued April 22, 2014).

24

See Phillip L. Barnes, 55 ECAB 426 (2004).

8

be asked to address impairment in terms of The Guides Newsletter “Rating Spinal Nerve
Extremity Impairment using the sixth edition” (July/August 2009). After such further
development of the record as it deems necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision. The case is remanded for
further development of the medical evidence.
ORDER
IT IS HEREBY ORDERED THAT the May 6, 2013 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded to OWCP for further action
consistent with this decision of the Board.
Issued: December 17, 2014
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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.B., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Jacksonville, FL, Employer
__________________________________________
Appearances:
Leslie Nitsch, for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-1242
Issued: March 17, 2022

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On August 17, 2021 appellant sought an appeal from a purported July 14, 2021 decision of
the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 21-1242.2
The Board, having duly considered the matter, notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act. 3
This jurisdiction encompasses any final decision issued by OWCP within 180 days of the date
appellant filed his appeal. 4
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

This case has previously been before the Board. Docket No. 14-557 (issued April 6, 2015).

3

5 U.S.C. § 8101 et seq.; 20 C.F.R. §§ 501.2(c) and 501.3(a).

20 C.F.R. § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the
date of issuance of a decision of the OWCP.”
4

The Board notes that the case record does not contain a final adverse decision of OWCP
dated July 14, 2021. The case record does contain a letter from OWCP dated July 14, 2021 to
appellant; however, it merely apprised appellant of the appeal rights accompanying the previously
issued decisions and that no further action would be taken until he specified w hat avenue of appeal
he wished to pursue..5 The most recent final adverse decision of OWCP was dated August 30,
2017, more than 180 days before appellant’s current August 17, 2021 appeal and is not subject to
review by this Board.6 As there is no final adverse decision of OWCP over which the Board may
properly exercise jurisdiction, the Board concludes that the appeal docketed as No. 21-1242 must
be dismissed. 7 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-1242 is dismissed.
Issued: March 17, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5

See Order Dismissing Appeal, K.S., Docket No. 20-1401 (issued March 17, 2021); Order Dismissing Appeal,
S.U., Docket No. 20-0636 (issued December 3, 2020) (correspondence that is purely informational in nature does not
constitute a final adverse decision of OWCP from which appellant may properly appeal).
6

See supra note 4.

The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.” 20
C.F.R. § 501.6(d).
7

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Wilmington, DE, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1400
Issued: December 21, 2007

Case Submitted on the Record

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

JURISDICTION
On April 27, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ April 20, 2007 merit decision regarding a schedule award. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she has more than
a two percent permanent impairment of her right leg, for which she received a schedule award.
FACTUAL HISTORY
On August 25, 2005 appellant, then a 57-year-old information receptionist, filed a
traumatic injury claim alleging that she sustained right knee and left hand and shoulder injuries
on August 10, 2005 when she fell in a parking lot at work. She stopped work on
August 11, 2005. Appellant attempted to work on August 15, 2005 but stopped work shortly
thereafter due to pain in her right knee.

The findings of the September 21, 2005 magnetic resonance imaging (MRI) scan testing
of appellant’s right knee showed a tear through the horizontal horn of the medial meniscus with
absence of a small portion of the inferior half of the posterior horn and advanced degenerative
changes which were worse in the medial compartment. The findings also showed that
appellant’s right lateral meniscus was intact. Dr. Victor R. Kalman, an attending osteopath,
determined that appellant sustained a medial meniscus tear of her right knee due to the
August 10, 2005 fall. The Office accepted that appellant sustained a right medial meniscus tear
and paid compensation for periods of disability. On January 13, 2006 Dr. Kalman performed
partial right medial and lateral meniscectomies. The surgery was authorized by the Office.1
On February 22, 2006 appellant filed a claim alleging that she was entitled to a schedule
award due to her accepted employment injury. In March 2006 appellant returned to limited-duty
work at the employing establishment for four hours per day. On May 3, 2006 Dr. Kalman stated
with regard to appellant’s right knee that there was no effusion, that range of motion was to 125
degrees and that there was no laxity with varus and valgus stress. He indicated that appellant had
some mild medial joint and patella facet tenderness.2 In several reports dated between mid and
late 2006, Dr. Kalman provided similar assessments of appellant’s right knee condition.
On July 6, 2006 Dr. Richard I. Zamarin, an attending Board-certified orthopedic surgeon,
indicated that on examination of the right knee appellant exhibited full range of motion and had
no effusion or ligamentous laxity. He noted that she reported tenderness along the medial joint
line. Dr. Zamarin indicated that he could not provide an impairment rating for a partial medial
meniscectomy or arthritis because he did not have radiographs to review in order to measure the
joint spaces. He stated that appellant reported to him that she “uses the cane all day and she
ambulated with a slight antalgic gait.” Dr. Zamarin stated that under Table 17-5 of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed. 2001) appellant
had a 20 percent impairment due to gait derangement (as she fell under the moderate severity
category) which translated into a 50 percent impairment of the right leg under Table 17-3 of the
A.M.A., Guides.3
In early September 2006, Dr. Arnold T. Berman, a Board-certified orthopedic surgeon
who served as an Office district medical adviser, reviewed the medical evidence of record. He
concluded that appellant reached maximum medical improvement on July 6, 2006 and that she
had a two percent permanent impairment of her right leg due to her partial medial meniscectomy
under Table 17-33 of the A.M.A., Guides.4 Dr. Berman indicated that the impairment
percentages contained in Table 17-5 of the A.M.A., Guides were for full-time gait derangements
1

Dr. Kalman indicated that appellant previously had arthroscopic right knee surgery in August 2000 but he did
not provide any further details regarding the nature of the surgery.
2

In form reports dated January 25, March 29 and May 3, 2006, Dr. Kalman continued to indicate that appellant
sustained a right medial meniscus tear due to the August 10, 2005 employment injury.
3

Dr. Zamarin also provided a discussion of appellant’s left shoulder impairment, but this matter is not currently
before the Board as the record does not contain any final decision regarding a left shoulder impairment. See
20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
4

Dr. Berman inadvertently mentioned appellant’s left knee several times in his report but clearly was referring to
the condition of her right knee.

2

of persons who are dependent on assistive devices and that, whenever possible, an evaluator
should use a method which is more specific than gait derangement to rate lower extremity
impairment. He noted that it was not appropriate for Dr. Zamarin to make an impairment rating
under Table 17-5 as he had a more specific method of impairment rating available to him, i.e.,
rating for her right partial medial meniscectomy.5
On September 24, 2006 Dr. Zamarin indicated that he had reviewed Dr. Berman’s
assessment and stated that it was appropriate for him to provide an impairment rating based on
gait derangement because appellant “uses a cane all day long for ambulation.” He again stated
that he would not provide an impairment rating for a partial medial meniscectomy or arthritis
because he did not have radiographs to review.
In an April 20, 2007 award of compensation, the Office granted appellant a schedule
award for a two percent permanent impairment of her right leg. The award ran for 5.76 weeks
from July 26 to August 15, 2006.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act6 and its
implementing regulations7 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.8 It is wellestablished that in determining the amount of a schedule award for a member of the body that
sustained an employment-related permanent impairment, preexisting impairments of the body are
to be included.9
The text accompanying Table 17-5 of the A.M.A., Guides, entitled “Lower Limb
Impairment Due to Gait Derangement,” provides that the percentages contained in the table are
for full-time gait derangements of persons who are dependent on assistive devices. The text
further explains that, whenever possible, an evaluator should use a method which is more
specific than gait derangement to rate lower extremity impairment.10

5

Dr. Berman indicated that it did not appear that appellant used an assistive device.

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id.

9

See Dale B. Larson, 41 ECAB 481, 490 (1990); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.3.b. (June 1993). This portion of Office procedure provides that the impairment rating of a
given scheduled member should include “any preexisting permanent impairment of the same member or function.”
10

See A.M.A., Guides 529, Table 17-5.

3

ANALYSIS
The Office accepted that appellant sustained a right medial meniscus tear. On
January 13, 2006 Dr. Kalman, an attending osteopath, performed a partial right medial
meniscectomy. In an April 20, 2007 award of compensation, the Office granted appellant a
schedule award for a two percent permanent impairment of her right leg.
The Board finds that Dr. Berman, a Board-certified orthopedic surgeon who served as an
Office district medical adviser, properly determined that appellant had a two percent permanent
impairment of her right leg. He reviewed the medical evidence of record and correctly
concluded that appellant had a two percent impairment of her right leg due to the partial medial
meniscectomy which was performed on January 13, 2006.11
The Board notes that appellant would not be entitled to an impairment rating for her right
leg due to her partial lateral meniscectomy. On January 13, 2006 Dr. Kalman performed partial
right medial and lateral meniscectomies and, although the surgery was authorized, it has only
been accepted that appellant sustained a right medial meniscus tear on August 10, 2005. There is
no indication in the record that appellant sustained an employment-related right lateral meniscus
condition on August 10, 2005 and Dr. Kalman consistently indicated that she only sustained a
right medial meniscus condition on that date. Moreover, there is no indication that appellant had
any preexisting impairment related to her right lateral meniscus such that an impairment rating
for her partial right lateral meniscectomy should be included per Table 17-33 of the A.M.A.,
Guides.12 The conclusion that appellant did not sustain a right lateral meniscus injury on
August 10, 2005 or sustain such an injury prior to that date is supported by findings of
September 21, 2005 MRI testing which show that her right lateral meniscus was intact at that
time.
The record also contains July 6 and September 24, 2006 reports in which Dr. Zamarin, an
attending Board-certified orthopedic surgeon, indicated that under Table 17-5 of the A.M.A.,
Guides appellant had a 20 percent impairment due to gait derangement (as she fell under the
moderate severity category) which translated into a 50 percent impairment of the right leg under
Table 17-3 of the A.M.A., Guides.13 However, the opinion of Dr. Zamarin is of limited
probative value in that he failed to provide an explanation of how his assessment of permanent
impairment was derived in accordance with the standards adopted by the Office and approved by
the Board as appropriate for evaluating schedule losses.14 As noted by Dr. Berman, the text
accompanying Table 17-5 provides that, whenever possible, an evaluator should use a more
specific method of rating lower extremity impairment than gait derangement and a more specific
11

See A.M.A., Guides 546, Table 17-33. There is no indication that appellant had any other ratable impairments
due to strength, motion or pain deficits. Appellant consistently exhibited normal range of motion of the right knee
and there is no evidence that she had significant pain or weakness after reaching maximum medical improvement.
See generally id. at 531-37, 550-53, 565-86.
12

See supra notes 9 and 11 and accompanying text.

13

See A.M.A., Guides 527, 529, Tables 17-3, 17-5.

14

See James Kennedy, Jr., 40 ECAB 620, 626 (1989) (finding that an opinion which is not based upon the
standards adopted by the Office and approved by the Board as appropriate for evaluating schedule losses is of little
probative value in determining the extent of a claimant’s permanent impairment).

4

method of impairment rating was available, i.e., rating for appellant’s right partial medial
meniscectomy. Although it appears that appellant may have chosen to use a cane, Dr. Zamarin
did not explain how she would have been medically dependent on an assistive device on a fulltime basis.15
As the report of the Dr. Berman provided the only evaluation which conformed with the
A.M.A., Guides, it constitutes the weight of the medical evidence.16 Appellant has not shown
that she has more than a two percent permanent impairment of her right leg.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she has
more than a two percent permanent impairment of her right leg, for which she received a
schedule award.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
April 20, 2007 decision is affirmed.
Issued: December 21, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

15

See supra note 10 and accompanying text.

16

See Bobby L. Jackson, 40 ECAB 593, 601 (1989).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF JUSTICE, BUREAU OF
)
PRISONS, MEDICAL CENTER FOR FEDERAL )
PRISONERS, Springfield, MO, Employer
)
__________________________________________ )
E.D., Appellant

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

Docket No. 18-0138
Issued: May 14, 2018

Case Submitted on the Record

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

JURISDICTION
On October 24, 2017 appellant filed a timely appeal from a May 31, 2017 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.
ISSUE
The issue is whether appellant met his burden of proof to establish that his right shoulder
conditions were causally related to the accepted May 26, 2016 employment incident.
On appeal appellant asserts that the medical evidence submitted is sufficient to establish
causal relationship.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 26, 2016 appellant, then a 38-year-old correctional officer, filed a traumatic injury
claim (Form CA-1) alleging that, on that date, he injured his right shoulder when setting down a
box of detergent while in the performance of duty. He did not initially stop work.
A June 8, 2016 magnetic resonance imaging (MRI) scan of the right shoulder demonstrated
mild acromioclavicular (AC) joint degenerative findings, a small amount of increased fluid in the
subacromial bursal, and a potential tear of the posterior-superior glenoid labrum.
Dr. John A. Meaney, a Board-certified orthopedic surgeon, submitted treatment notes dated
September 22, 2016 to March 7, 2017. The September 22, 2016 note indicated that appellant
reported a history that he felt pain and a pop in his right shoulder while pushing boxes. Physical
examination demonstrated almost full range of motion, tenderness over the AC joint, and mildly
positive impingement. AC joint synovitis was identified as the main problem, and appellant’s
right shoulder AC joint was injected. Appellant had additional injections on December 13, 2016
and March 7, 2017.
On April 14, 2017 Dr. Meaney requested authorization for right shoulder surgery.
By development letter dated April 25, 2017, OWCP informed appellant that, when his
claim was first received, it appeared to be a minor injury that resulted in minimal or no lost time
from work, but it had been reopened because he had requested authorization for surgery, and the
merits would now be formally adjudicated. It informed appellant of the type of medical evidence
needed to support his claim. Appellant was afforded 30 days to provide the requested information.
In a treatment note dated May 26, 2017, Dr. Meaney indicated that appellant had another
right shoulder injection.
By decision dated May 31, 2017, OWCP found the May 26, 2016 incident occurred as
alleged, but denied the claim finding that the medical evidence of record was insufficient to
establish that the diagnosed right shoulder conditions were causally related to the accepted
employment incident.
LEGAL PRECEDENT
An employee seeking compensation under FECA2 has the burden of proof to establish the
essential elements of his or her claim by the weight of reliable, probative, and substantial
evidence,3 including that he or she is an “employee” within the meaning of FECA, and that the
claim was filed within the applicable time limitation.4 The employee must also establish that he

2

Supra note 1.

3

J.P., 59 ECAB 178 (2007).

4

R.C., 59 ECAB 427 (2008).

2

or she sustained an injury in the performance of duty as alleged, and that disability from work, if
any, was causally related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time and place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.6
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.7 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 employee.8
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.9
ANALYSIS
The Board finds that, although it is undisputed that the May 26, 2016 incident occurred as
alleged, the medical evidence submitted by appellant is insufficient to establish that the incident
caused appellant’s diagnosed right shoulder conditions.
Medical evidence submitted to support a claim for compensation should reflect a correct
history, and the physician should offer a medically sound explanation of how the claimed work
event caused or aggravated the claimed condition.10 The Board finds that no physician did so in
this case.

5

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989). OWCP regulations define a traumatic injury as a condition of
the body caused by a specific event or incident or series of events or incidents within a single workday or shift.
20 C.F.R. § 10.5(ee). OWCP regulations define the term “occupational disease or illness” as a condition produced by
the work environment over a period longer than a single workday or shift.” 20 C.F.R. § 10.5(q).
6

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

7

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

8

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

9

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

10

D.D., Docket No. 13-1517 (issued April 14, 2014).

3

The August 26, 2016 MRI scan did not provide an opinion regarding cause of any
diagnosed conditions. Medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.11
Likewise, the reports from Dr. Meaney did not include an opinion as to the causal
relationship of appellant’s diagnosed condition. He treated appellant as of September 22, 2016
and diagnosed appellant’s right shoulder condition as AC joint synovitis. Dr. Meaney described
that appellant felt pain and a pop in his right shoulder while pushing boxes, however, he did not
specifically address whether appellant’s employment incident was sufficient to have caused or
aggravated the diagnosed medical condition,12 nor did he relate the date as to when appellant’s
alleged injury occurred. Additionally, his medical opinion is insufficient to establish the claim as
he did not provide a proper history of injury.13
It is appellant’s burden of proof to establish that a diagnosed condition is causally related
to the May 26, 2016 employment incident. As he submitted insufficient evidence to establish an
injury caused by this incident, appellant has failed to meet his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to establish a right shoulder condition causally related
to the accepted May 26, 2016 employment incident.

11

Willie M. Miller, 53 ECAB 697 (2002).

12

Id.; A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).
13
J.G., Docket No. 17-1217 (issued February 16, 2018); Frank Luis Rembisz, 52 ECAB 147 (2000) (medical
opinions based on an incomplete history or which are speculative or equivocal in character have little probative value).

4

ORDER
IT IS HEREBY ORDERED THAT the May 31, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 14, 2018
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.G., Appellant
and
DEPARTMENT OF THE ARMY, TEST &
EVALUATION COMMAND, Yuma, AZ,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Daniel M. Goodkin, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1392
Issued: January 6, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 25, 2011 appellant, through his attorney, filed a timely appeal from an April 18,
2011 Office of Workers’ Compensation Programs’ (OWCP) merit decision which denied his
claim for an employment-related injury. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
neck and/or back condition in the performance of duty causally related to factors of his federal
employment.
On appeal appellant’s counsel contends that the reports of Dr. Jennifer Javors, a
physician Board-certified in occupational medicine, and Dr. Joseph Ciacci, a Board-certified
1

5 U.S.C. § 8101 et seq.

neurosurgeon, provided well-rationalized medical opinion supporting causal relationship
between appellant’s condition and factors of his federal employment.
FACTUAL HISTORY
On August 26, 2009 appellant, then a 54-year-old geodetic technician, filed an
occupational disease claim (Form CA-2) alleging an aggravation of cervical and lumbar sacral
spine conditions which he attributed to factors of his federal employment. He noted that driving
cross-country on nonexistent roads and other work activities conducted while in the performance
of duty resulted in back surgery. The employing establishment advised that appellant had been
off work since February 25, 2008 due to mycobacterium gordonae disease. In July 2008,
appellant informed his supervisor that he had developed back problems that required surgery.
By letter dated September 9, 2009, OWCP requested additional evidence from appellant
to support his claim and allotted 30 days for submission.
Appellant submitted medical reports, radiological reports, progress notes and a narrative
statement dated October 7, 2009. He explained that he had worked at the employing
establishment for 20 years and his job duties included driving across undeveloped cross-country
areas covering approximately 700 thousand acres, manual labor involved in setting up test
equipment, carrying equipment and working around contaminated impact zones.
On January 12, 1999 Dr. Paul Lampert, a Board-certified radiologist, diagnosed
degenerated discs at L4-5 and L5-S1. He indicated that the L5-S1 disc was herniated centrally
causing mild mass effect on the thecal sac while there was a mild bulge at L4-5.
In a July 11, 2007 report, Dr. Gregory Fenzl, a Board-certified radiologist, diagnosed
L4-5 disc extrusion which extended inferiorly into the right lateral recess effacing and mildly
displacing the descending right L5 nerve root and contributing to a moderate degree of right
lateral recess stenosis. He listed stable chronic disc bulge with endplate spurring at the L5-S1
spinal level without evidence for moderate or high-grade central canal or neural foraminal
stenosis and further diagnosed multilevel lumbar spondylosis and facet arthrosis. Dr. Fenzl
reported that appellant had chronic low back pain which had progressively worsened over the
last two months and radiated into the right lower extremity. He noted that appellant reported a
motor vehicle accident two years ago.
In a September 23, 2008 report, Dr. Ciacci diagnosed multilevel degenerative changes
throughout the cervical spine. He found that the intervertebral discs were diffusely desiccated
with disc space narrowing and there were disc oseteophyte complexes at C4-5, C5-6 and C6-7.
On September 25, 2008 Dr. Ciacci diagnosed cervical stenosis and questionable mycobacterium
gordonae. On September 30, 2008 he diagnosed cervical spondylosis and scheduled a posterior
cevicotharacic fusion.
On September 30, 2008 appellant underwent posterior cervical decompression from
fourth through seventh cervical disc laminectomy, instrumentation from fourth cervical level to
first thoracic level and posterolateral fusion from fourth cervical disc to first thoracic disc.

2

In a March 4, 2009 report, Dr. Javors opined that appellant was disabled due to cervical
spine surgery and L4-5 laminectomy.
By decision dated October 19, 2009, OWCP denied appellant’s claim finding that the
medical evidence submitted did not establish that his back condition was causally related to the
implicated employment factors.
On October 13, 2010 appellant’s counsel requested reconsideration and submitted a
report by Dr. Javors, with an illegible date. Dr. Javors opined that appellant’s work-related
injury was clearly due to his many years of driving over unimproved land. In reports dated
February 12 and April 16, 2009, Dr. Ciacci diagnosed paraspinous pain and spasm and agreed
with Dr. Javors’s opinion that appellant’s condition was most likely work related and that it was
likely that the trauma from his occupation significantly contributed to the spinal degeneration.
He advised that appellant could not work until his cervical fusion was solid.
In a November 9, 2010 statement, the employing establishment indicated that in a 10hour workday geodetic technicians typically drove one to four hours on mostly paved roads and
spent the majority of their time doing surveying work which consisted of standing, walking,
driving, marking hubs, note keeping and computing.
On January 5, 2011 appellant’s counsel submitted statements from appellant and one of
his coworkers, Joe Elias, with maps. In a December 1, 2010 narrative statement, appellant noted
that he had worked at the employing establishment since 1988 when the roads were not always
well paved and he was required to use all-terrain vehicles to be able to get to the sites he was
mapping and grading. In an undated statement, Mr. Elias reported that he worked as a geodetic
technician at the employing establishment from 1960 to 2000. In the late 1980’s and early
1990’s work was requested from the geodetic section to locate and survey remote areas of desert
where dirt roads required the use of four-wheel drive vehicles, which on some occasions became
disabled due to the rough terrain.
By decision dated January 14, 2011, OWCP denied modification of the October 19, 2009
decision. The evidence submitted was not sufficient to establish that appellant’s back condition
was causally related to factors of his federal employment.
On January 20, 2011 appellant’s counsel requested reconsideration and submitted a
February 4, 2010 report by Dr. Javors who certified that appellant had been under her care during
the last two years, underwent lumbosacral surgery on August 28, 2008 and cervical surgery on
September 30, 2008. Dr. Javors opined that appellant’s medical problems were a direct result of
his employment as the bouncing and strain and stress endured by traveling on unimproved and
nonexistent road materially contributed to the degeneration of his spine during the last 20 years.
She stated that he was not physically or cognitively able to work.
By decision dated April 18, 2011, OWCP denied modification of the January 14, 2011
decision on the basis that the medical evidence submitted was not sufficient to establish a
causally-related neck and/or back condition.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, and that an injury3 was sustained in the performance of duty. These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in a claim for an
occupational disease claim, an employee must submit the following: (1) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; (2) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence. Rationalized medical opinion
evidence is medical evidence which includes a physician’s rationalized opinion on whether there
is a causal relationship between the employee’s diagnosed condition and the implicated
employment factors.6 The opinion of the physician must be based on a complete factual and
medical background of the employee, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the employee.7
ANALYSIS
The Board finds that appellant failed to meet his burden of proof to establish that he
developed a back condition in the performance of duty. The record reflects that appellant has
degenerative changes of the cervical and lumbar spine and that his federal employment required
repetitive and cumulative driving cross-country on underdeveloped roads. Appellant did not
establish that the degenerative changes of his cervical and lumbar spine are causally related to
any of the factors of his federal employment.

2

5 U.S.C. §§ 8101-8193.

3

OWCP’s regulations define an occupational disease or illness as a condition produced by the work environment
over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
4

See J.C., Docket No. 09-1630 (issued April 14, 2010). See also Ellen L. Noble, 55 ECAB 530 (2004).

5

Id. See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

6

See D.N., Docket No. 10-1762 (issued May 10, 2011).

7

See D.E., Docket No. 07-27 (issued April 6, 2007). See also Victor J. Woodhams, 41 ECAB 345 (1989).

4

In support of his claim, appellant submitted a March 4, 2009 report by Dr. Javors who
opined that appellant was disabled due to cervical spine surgery and L4-5 laminectomy. On
January 20, 2011 Dr. Javors opined that appellant’s medical problems were a direct result of his
employment as the bouncing and strain and stress endured by traveling on unimproved and
nonexistent road materially contributed to the degeneration of his spine during the last 20 years.
She stated that he was not physically or cognitively able to work. Dr. Javors failed to directly
address the issue of causal relationship as she did not provide a rationalized medical opinion
explaining how factors of appellant’s federal employment, such as repetitive and cumulative
driving cross-country on underdeveloped roads, caused or aggravated his neck and/or back
condition. The Board has held that the mere fact that appellant’s symptoms arise during a period
of employment or produce symptoms revelatory of an underlying condition does not establish a
causal relationship between appellant’s condition and his employment factors.8 Lacking
thorough medical rationale on the issue of causal relationship, the medical reports of Dr. Javors
are insufficient to establish that appellant sustained an employment-related injury.
In a series of reports, Dr. Ciacci diagnosed multilevel degenerative changes throughout
the cervical spine, cervical stenosis, questionable mycobacterium gordonae, cervical spondylosis
and paraspinous pain and spasm. On April 16, 2009 Dr. Ciacci indicated that he agreed with
Dr. Javors’s opinion that appellant’s condition was most likely work related and that it was likely
that the trauma from his occupation significantly contributed to the spinal degeneration.
Although Dr. Ciacci provided firm diagnoses, he did not provide a rationalized medical opinion
explaining how factors of appellant’s federal employment, such as repetitive and cumulative
driving cross-country on underdeveloped roads, caused or aggravated his neck and/or back
condition. Moreover, his opinion was couched in equivocal terms thereby further reducing the
probative value of his report.
Similarly, Drs. Lampert and Fenzl provided firm diagnoses on x-ray examination.
However, due to the diagnostic nature of these reports, the physicians did not address causal
relationship. As such, the Board finds that they are insufficient to establish appellant’s claim.
As appellant has not submitted any rationalized medical evidence to support his
allegation that he sustained an injury causally related to the indicated employment factors, he
failed to meet his burden of proof to establish a claim.
On appeal appellant’s attorney contends that the reports of Drs. Javors and Ciacci
provided well-rationalized medical opinion supporting causal relationship between appellant’s
condition and factors of his federal employment. For the reasons stated above, the Board finds
the attorney’s argument is not substantiated.
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.

8

Id. See also Richard B. Cissel, 32 ECAB 1910, 1917 (1981); William Nimitz, Jr., 30 ECAB 567, 570 (1979).

5

CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
developed a neck and/or back condition in the performance of duty causally related to factors of
his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the April 18, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 6, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6