United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.H., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
CONSTRUCTION BATTALION CENTER,
Port Hueneme, CA, Employer
__________________________________________

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

Docket No. 07-789
Issued: October 25, 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 January 30, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ April 27, May 24 and November 13, 2006 merit decisions regarding
the termination of his compensation for refusing suitable work and the refusal of his request for a
change of physicians. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s compensation
effective May 24, 2006 on the grounds that he refused an offer of suitable work; and (2) whether
the Office abused its discretion when it refused his request for a change of physicians.
FACTUAL HISTORY
On September 11, 1991 appellant, then a 27-year-old rigger, filed a traumatic injury
claim alleging that he sustained injury on September 11, 1991 when he fell into a water drain at

work. The Office accepted that he sustained a low back strain and a right shin laceration.
Appellant began to perform limited-duty work in a series of jobs for the employing
establishment. The Office later accepted that he sustained a herniated nucleus pulposus at L5-S1
on February 10, 1993 due to loading tires at work. On November 4, 1993 appellant underwent a
discectomy at L5-S1 which was authorized by the Office. He last worked for the employing
establishment in March 1995 but remained on its employment rolls.1
On January 16, 1999 appellant underwent fusion surgery at L4-5 and L5-S1 with
instrumentation.
On September 27, 2001 he underwent fusion surgery at L3-4 with
2
instrumentation. The Office accepted that appellant sustained patellar tendinitis of his left knee
as a consequence of his employment-related back condition. On May 19, 1995 he underwent a
partial medial meniscectomy and chondroplasty of the left knee. On April 27, 2004 appellant
underwent a repeat partial medial meniscectomy and chondroplasty of the left knee. All of his
surgical procedures were authorized by the Office.
In mid 2004, appellant commenced treatment with Dr. Thomas S. Pattison, a Boardcertified physical medicine and rehabilitation physician.3 In a December 17, 2005 form report,
Dr. Pattison indicated that appellant could not perform his regular work but noted that he could
perform limited-duty work for eight hours per day. He stated that appellant could walk, stand,
push and pull up to 20 pounds and engage in repetitive wrist and elbow motion for eight hours
per day, sit and reach for six hours per day, reach above his shoulders for four hours per day, lift
up to 20 pounds, twist, squat and kneel for two hours per day and bend, stoop and climb for one
hour per day. Dr. Pattison indicated that he could not drive a motor vehicle.
The Office provided Dr. Pattison with a description of a full-time clerk position and
requested that he provide an opinion regarding whether appellant could perform it. The position
included such duties as producing and organizing various documents, handling incoming mail
and answering mail. Most of the required work was performed while sitting and the employee
could sit, stand or move around as his needs dictated. The position required that the employee sit
for up to six hours per day, intermittently walk and stand (not for prolonged periods), lift up to
20 pounds for up to two hours per day, intermittently push, pull and grasp up to 20 pounds (not
for prolonged periods), reach above his shoulder for four hours per day, twist, squat and kneel
for two hours per day and bend and climb for one hour per day. The position did not require the
employee to drive a motor vehicle.
On February 10, 2006 Dr. Pattison stated that he had reviewed the description for the
clerk position and found that appellant could perform the position with the restrictions provided
in his December 17, 2005 form report. The record also contains a February 4, 2006 report in

1

Appellant’s rigger job was a temporary position. In 1996 he moved to Elk Grove, CA which is about 400 miles
from Port Hueneme.
2

For both fusion surgeries, appellant had additional instrumentation surgically implanted and then had
instrumentation removed.
3

Appellant was referred to Dr. Pattison by his attending orthopedic surgeon.

2

which Dr. Pattison stated that it would appear that appellant could perform the clerk job offered
by the employing establishment. Dr. Pattison stated:
“I note that he also has some disability considerations with respect to headaches. However, we
are conducting a functional capacity evaluation…. Therefore, I would like to see those results
before finalizing my impressions regarding this situation, as I have inherited this case.”
On March 6, 2006 Dr. Pattison stated that appellant’s February 20, 2006 functional
capacity evaluation “does represent a conservative, but plausible aspect of his ability.”4 He
indicated that appellant’s condition was permanent and stationary and that he was a “good
candidate to find a light-duty job along the lines I talked about.” Dr. Pattison indicated that
appellant had “some fear of public places and also has some chronic headaches” that might
somewhat limit his ability to participate in the open job market, but noted that he thought these
conditions were treatable without medicine and did not “present true functional limitations in a
job setting.”
On March 27, 2006 the employing establishment offered appellant a clerk position for
eight hours per day which was located at the Naval Base Ventura County, Port Hueneme, CA,
his previous place of employment.5 The position had the same physical requirements as those
found in the position description sent to Dr. Pattison. The employing establishment stated,
“Although your temporary position expired on March 30, 1995 and you currently reside in Elk
Grove, there are no suitable positions available in or around Elk Grove, California, for which I
have the knowledge of or authority to place you within the Department of Navy.”
On April 7, 2006 Dr. Pattison stated that the results of appellant’s functional capacity
evaluation “reinforced my earlier opinion based on serial clinical evaluations that he could return
to some sort of productive work.” He noted that appellant referenced his left knee condition and
stated that the “functional capacity evaluation essentially covered his knee issues and at this
point, I do not see any reason to modify my earlier restrictions.” Dr. Pattison stated that the fact
that the clerk position was mostly a sitting job lead him to believe that appellant “would be able
to undertake it in terms of the knee issue.” He stated, “However, having opined the above, there
may be some significant value in getting an independent medical evaluation to look at the
situation comprehensively.”
On April 7, 2006 appellant refused the job offer indicating that he was awaiting a second
opinion from another physician. On April 9, 2006 he requested that his authorized attending
physician be changed from Dr. Pattison. Appellant stated, “I feel that I have not received
adequate medical treatment and would like to be treated by a physician that is more
knowledgeable with my type of injury.” He later claimed that Dr. Pattison had not kept him
informed “as to what was going on medically with his case.”

4

A report of appellant’s February 20, 2006 functional capacity evaluation revealed that he was capable of
performing work at a light to medium physical demand level for eight hours per day.
5

The clerk position was a temporary position not to exceed one year.

3

On April 20, 2008 the Office advised appellant of its determination that the clerk position
offered by the employing establishment was suitable. The Office stated that the medical opinion
of Dr. Pattison showed that he could perform the position. It indicated that the employing
establishment had attempted to find a job for appellant near his former duty station in Hueneme,
CA, but had determined that it was not possible to do so. The Office provided appellant with 30
days from the date of the letter to accept the position or provide good cause for not accepting it
in order to avoid termination of his compensation under 5 U.S.C. § 8106(c)(2).6
In a decision dated April 27, 2006, the Office denied appellant’s request for a change of
physicians. The Office indicated that appellant was referred to Dr. Pattison by his attending
orthopedic surgeon after it was felt that he no longer needed surgical intervention. It noted that
Dr. Pattison’s specialty of physical medicine and rehabilitation was appropriate for appellant’s
condition. The Office noted that appellant did not provide any notable explanation of why he
felt Dr. Pattison’s treatment was inadequate and indicated that a review of the record revealed
that Dr. Pattison provided detailed medical reports containing recitations of medical history
objective and subjective findings and treatment plans. It indicated that appellant had not
provided any evidence that Dr. Pattison’s treatment was not proper or adequate.
On May 8, 2006 the Office received an April 26, 2006 report of Dr. Stephen C. Weber,
an attending Board-certified orthopedic surgeon, who diagnosed medial meniscus tear and
articular cartilage injury. He noted that appellant’s left knee examination was benign and
indicated that his x-rays were normal. Dr. Weber stated that he reviewed appellant’s restrictions
and determined that they seemed appropriate for someone with mild arthritis and noted that, with
respect to his knee function, he felt that his “modified duty is appropriate.”7
In a letter dated May 12, 2006 and received by the Office on May 23, 2006, appellant
indicated that he was requesting reconsideration of the Office’s April 27, 2006 denial of his
request for a change of physicians. He asserted that Dr. Pattison did not provide adequate
explanation for the conclusions in his reports and that his reports often contained conflicting
statements regarding the nature of his medical condition. Appellant also argued that Dr. Pattison
did not adequately explain why he was physically capable of performing the clerk position
offered by the employing establishment. He claimed that Dr. Pattison did not adequately address
his left knee condition or provide an opinion on its effect on his ability to work. Appellant
suggested that Dr. Pattison’s opinion on his ability to work was equivocal because Dr. Pattison
stated in his April 7, 2006 report that there might be some significant value in getting an
independent medical evaluation to further address his medical condition.
In a May 24, 2006 decision, the Office terminated appellant’s compensation effective
May 24, 2006 on the grounds that he refused an offer of suitable work. It stated that the medical
opinion of Dr. Pattison showed that appellant could perform the clerk position offered by the
employing establishment. The Office specifically discussed the April 26, 2006 report of
6

The Office indicated that, although the offered clerk position was a temporary position, it was appropriate to
offer such position as appellant’s date-of-injury job was a temporary position.
7

Dr. Weber indicated that he would defer to Dr. Pattison regarding whether “modified duty is appropriate for his
back.”

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Dr. Weber and indicated that it did not show that appellant could not perform the offered
position. It stated, “As of this date, [appellant] has not provided written documentation
explaining his refusal to accept the employing establishment’s suitable job. The documentation
which has been submitted subsequent to the job suitability letter dated April 20, 2006 is not
sufficient to justify his refusal to accept the employing establishment’s suitable job.”
On May 7, 2006 Dr. Pattison reported the findings of his examination of appellant on that
date. He indicated that his medical condition was stable with regard to his back and discussed
his problems with headaches.
Appellant requested a review of the written record by an Office hearing representative.
In a November 13, 2006 decision, the Office hearing representative affirmed the Office’s
April 27 and May 24, 2006 decisions regarding the termination of appellant’s compensation for
refusing suitable work and the refusal of his request for a change of physicians. The hearing
representative indicated that the Office properly followed its procedural requirements in
terminating appellant’s compensation and stated, “When [appellant] did not respond to either the
[employing establishment] or the Office, no further warning or notification to [him] was
applicable and the Office took appropriate action to terminate the [appellant’s] entitlement to
benefits under 5 U.S.C. § 8106(c)(2).”
LEGAL PRECEDENT -- ISSUE 1
Section 8106(c)(2) of the Federal Employees’ Compensation Act provides in pertinent
part, “A partially disabled employee who ... (2) refuses or neglects to work after suitable work is
offered ... is not entitled to compensation.”8 However, to justify such termination, the Office
must show that the work offered was suitable.9 An employee who refuses or neglects to work
after suitable work has been offered to him has the burden of showing that such refusal to work
was justified.10
Certain explanations will justify a claimant’s refusal to accept an offer of employment.
The Office’s procedure manual itself lists a number of reasons that are considered acceptable.11 If
a claimant refuses the employment offered and provides such a reason, the Office will consider his
refusal justified and will continue his compensation for disability.12
If a claimant chooses to respond within 30 days and provide additional evidence in
support of his refusal to accept an offered position, the Office must consider this evidence before
it can make a final determination on the issue of suitability. Only after it has made a final
8

5 U.S.C. § 8106(c)(2).

9

David P. Camacho, 40 ECAB 267, 275 (1988); Harry B. Topping, Jr., 33 ECAB 341, 345 (1981).

10

20 C.F.R. § 10.124; see Catherine G. Hammond, 41 ECAB 375, 385 (1990).

11

Federal (FECA) Procedure Manual, Part -- 2 Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.5 (July 1997).
12

Id.

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determination on the issue of suitability can the Office afford the claimant an opportunity to
accept or refuse an offer of suitable work. Only after it has finalized its decision on suitability
can the Office notify the claimant that refusal to accept shall result in the termination of
compensation, as the language of 5 U.S.C. § 8106(c) clearly mandates.13
ANALYSIS -- ISSUE 1
The Board finds that the Office denied appellant a reasonable opportunity to comply with 5
U.S.C § 8106(c) before terminating his compensation effective May 24, 2006. When the Office
informed appellant in its April 20, 2006 notification, that it had determined that the clerk position
offered to be suitable, it informed him of a preliminary determination. By inviting appellant to
write and give reasons for not accepting, the Office acknowledged that its determination was not
yet final and that a reasonable explanation would justify his refusal and result in the continuation of
his compensation for disability.
In this case, the Office did not afford appellant an opportunity to accept the position
offered after making a final determination that the position was suitable. The Office, therefore,
denied appellant a reasonable opportunity to accept an offer of “suitable” work. Without such an
opportunity, appellant cannot be held to have refused an offer of suitable work within the
meaning of 5 U.S.C. § 8106(c). Appellant submitted evidence in support of his refusal to accept
the offered position within 30 days of April 20, 2006, the date that the Office advised him that he
had 30 days to accept the offered position or provide justification for not accepting it.
On May 24, 2006 the Office issued a decision in which it determined that appellant had
refused an offer of suitable work. It specifically discussed the April 26, 2006 report of
appellant’s attending Board-certified orthopedic surgeon, Dr. Weber, which had been received
by the Office on May 8, 2006. The Office determined that the report did not show that appellant
could not perform the clerk position offered by the employing establishment. Moreover, it
appears that the Office implicitly rejected argument that appellant made in support of his refusal
to accept the offered position and which was received by the Office before it issued its May 24,
2006 decision.14 In a May 12, 2006 letter, received by the Office on May 23, 2006, appellant
argued that Dr. Pattison, an attending Board-certified physical medicine and rehabilitation
physician, did not adequately explain why he was physically capable of performing the clerk
position offered by the employing establishment.15

13

See Maggie L. Moore, 42 ECAB 484 (1991); reaff’d on recon., 43 ECAB 818 (1992).

14

It is not entirely clear whether the Office considered this argument, although it did suggest that it had
considered all evidence and argument received prior to May 24, 2006. The Office stated, “As of this date,
[appellant] has not provided written documentation explaining his refusal to accept the employing [establishment’s]
suitable job. The documentation which has been submitted subsequent to the job suitability letter dated April 20,
2006 is not sufficient to justify his refusal to accept the employing [establishment’s] suitable job.”
15

Appellant claimed that Dr. Pattison did not adequately address his left knee condition or provide an opinion on
its effect on his ability to work. He suggested that Dr. Pattison’s opinion on his ability to work was equivocal
because Dr. Pattison stated in his April 7, 2006 report, that there might be some significant value in getting an
independent medical evaluation to further address his medical condition.

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In issuing its May 24, 2006 decision, the Office determined that evidence submitted by
appellant in support of his refusal to accept the offered position was unacceptable and in doing so
it finalized its preliminary decision on suitability. At the same instant, however, the Office
terminated appellant’s compensation for disability, thereby, denying him an opportunity to
accept the position after determining it to be a suitable one. In view of the foregoing, the Board
finds that the Office has not met its burden of justifying termination of appellant’s compensation
for disability effective May 24, 2006
LEGAL PRECEDENT -- ISSUE 2
Under section 8103(a) of the Act,16 an employee is permitted the initial selection of a
physician. However, Congress did not restrict the Office’s power to approve appropriate
medical care after the initial choice of a physician. The Office has the general objective of
ensuring that an employee recovers from his injury to the fullest extent possible in the shortest
amount of time. The Office, therefore, has broad administrative discretion in choosing the
means to achieve this goal within the limitation of allowing an employee the initial choice of a
doctor. An employee who wishes to change physicians must submit a written request to the
Office fully explaining the reasons for the request. The Office may approve the request in its
discretion if sufficient justification is shown.17 The regulations indicate that requests that are
often approved include those for “transfer of care from a general practitioner to a physician who
specializes in treating conditions like the work-related one or the need for a new physician when
an employee has moved.”18
The only limitation on the Office’s authority is that of reasonableness.19 Abuse of
discretion is generally shown through proof of manifest error, clearly unreasonable exercise of
judgment, or actions taken which are contrary to both logic and probable deductions from
established facts. It is not enough to merely show that the evidence could be construed so as to
produce a contrary factual conclusion.20
ANALYSIS -- ISSUE 2
The Board finds that the Office did not abuse its discretion when it refused appellant’s
request for a change of physicians. In the Office’s April 27, 2006 decision initially denying this
request and its November 13, 2006 decision affirming this denial, the Office explained that
appellant was referred to Dr. Pattison by his attending orthopedic surgeon after it was felt that he
no longer needed surgical intervention and stated that, therefore, Dr. Pattison’s specialty of
physical medicine and rehabilitation was appropriate for appellant’s condition. The Office noted
that appellant did not provide any notable explanation of why he felt Dr. Pattison’s treatment was
16

5 U.S.C. § 8103(a).

17

See Elizabeth Stanislav, 49 ECAB 540 (1998); 20 C.F.R. § 10.316(a), (b).

18

20 C.F.R. § 10.316(b).

19

Daniel J. Perea, 42 ECAB 214 (1990); Pearlie M. Brown, 40 ECAB 1090 (1989).

20

Rosa Lee Jones, 36 ECAB 679 (1985).

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inadequate and indicated that a review of the record revealed that Dr. Pattison provided detailed
medical reports containing recitations of medical history objective and subjective findings and
treatment plans.21 The Board finds that given these explanations the Office’s decision to deny
appellant’s request for a change of physicians was not unreasonable. Appellant has failed to
establish that the Office abused its discretion by refusing to authorize a change of physicians on
the basis of inadequate treatment or improper care.
CONCLUSION
The Board finds that the Office improperly terminated appellant’s compensation effective
May 24, 2006 on the grounds that he refused an offer of suitable work. The Board further finds
that the Office did not abuse its discretion when it refused appellant’s request for a change of
physicians.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
November 13, 2006 decision is reversed with respect to the termination of his compensation for
refusing suitable work and is affirmed with respect to the refusal of his request for a change of
physicians. The Office’s May 24, 2006 decision is reversed and its April 27, 2006 decision is
affirmed.
Issued: October 25, 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
21

The Board notes that appellant only generally explained why he felt that Dr. Pattison’s treatment was
inadequate. For example, he generally asserted that Dr. Pattison did not provide adequate explanation for the
conclusions in his reports, that his reports often contained conflicting statements regarding the nature of his medical
condition, and that he had not kept him informed “as to what was going on medically with his case.”

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Dallas, TX, Employer
__________________________________________

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

Docket No. 18-0670
Issued: September 11, 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 February 8, 2018 appellant filed a timely appeal from a December 29, 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 has met her burden of proof to establish a left lower
extremity injury due to factors of her federal employment.
FACTUAL HISTORY
On October 14, 2016 appellant, then a 52-year-old supervisor of distribution, filed an
occupational disease claim (Form CA-2) alleging that she sustained an injury to her left lower
extremity due to factors of her federal employment. She advised that she had been a mail handler
1

5 U.S.C. § 8101 et seq.

working on the north dock where she loaded, pushed, and pulled equipment, loaded trucks, and
staged equipment on the dock for six hours per day. Appellant asserted that the continuous walking
she engaged in at work had caused burning, swelling, tingling, and cramps in her left ankle/heel
which moved up the back side of her left leg and calf muscle. She reported that she first became
aware of her claimed condition on December 30, 2015 and first realized on October 4, 2016 that
it was caused or aggravated by her federal employment. Appellant did not stop work.
In an October 19, 2016 letter, appellant’s immediate supervisor indicated that appellant
was hired by the employing establishment on January 1, 1998 as a mail handler. The physical
requirements of the mail handler job included lifting 70 pounds, walking, standing, bending,
stooping, pushing, pulling, twisting, fine manipulation, and simple grasping for at least eight hours
per day, five days per week. The supervisor noted that appellant was on the overtime list, so she
might have worked up to 10 to 12 hours per day for five days per week. She indicated that appellant
was promoted to a supervisor of distribution position in the spring of 2016, a position which
involved supervising the operation of three automated flat sorter machines. The supervisor of
distribution position required appellant to walk continuously.
The findings of an October 24, 2016 magnetic resonance imaging (MRI) scan of
appellant’s left foot contained an impression of navicular bone edema with no evidence of fracture,
mild osteoarthritis of the first metatarsophalangeal joint, and inferior calcaneal spur suggesting the
patient suffered from plantar fasciitis in the past. An October 25, 2016 MRI scan of appellant’s
left ankle contained an impression of grade 1 strain and mild intrasubstance partial tearing within
the distal Achilles tendon, tibialis posterior and ﬂexor hallucis longus tenosynovitis, grade 1 strain
of the peroneal tendons near the level of the calcaneocuboid articulation, small tibiotalar and
subtalar ankle effusions, bone edema within the navicular bone (without displaced fracture) -- most
likely related to contusion “from the patient’s injury,” and edematous inferior calcaneal spur with
minimal plantar fascial edema reflecting chronic plantar fasciitis and a mild superimposed acute
component.2
In a November 4, 2016 development letter, OWCP requested that appellant submit
additional evidence in support of her claim, including a physician’s opinion supported by a medical
explanation as to how the reported employment activities caused or aggravated a diagnosed
medical condition. In an attached questionnaire, it requested that she provide a detailed description
of the work duties that she believed caused or aggravated her claimed condition, including a
description of how often and for how long she performed such duties. OWCP afforded appellant
30 days to respond. Appellant did not respond within the period afforded by OWCP.
In a November 4, 2016 letter, OWCP also requested additional information from the
employing establishment regarding appellant’s physical requirements and the frequency and
duration of her various work duties. In response, appellant’s immediate supervisor submitted a
November 16, 2016 letter which contained the same text as her October 19, 2016 letter.
By decision dated January 23, 2017, OWCP accepted the employment factors as alleged,
including the fact that appellant engaged in loading, pushing, and pulling equipment, loading
2
The clinical history portion of the October 25, 2016 report indicates that appellant reported having a “work-related
injury with ankle pain.”

2

trucks, and staging equipment. However, it denied appellant’s claim because she failed to submit
medical evidence containing a history of her injury and a medical diagnosis made in connection
with the accepted employment factors.3
On April 25, 2017 appellant requested reconsideration of OWCP’s January 23, 2017
decision.
In an October 4, 2016 report, Dr. Christopher R. Mann, an attending Board-certified family
practitioner, indicated that appellant reported that she had worked for the employing establishment
for the past 18 years. Appellant advised that she worked as a supervisor for the past year, but prior
to that she worked as a mail handler up until November 2015. Dr. Mann noted that she reported
that she was working as a mail handler when she sustained an insidious injury to her left foot and
ankle on November 30, 2015. Appellant reported that she was performing her usual work duties
when she experienced a burning sensation shooting from her left ankle up to her left knee and her
left leg started to swell and ache. She advised that these symptoms increased with the activities of
standing and walking and she described her work duties as including pushing/pulling objects such
as mail containers all day long, as well as engaging in lots of standing and walking. Dr. Mann
indicated that appellant denied any prior injury to her left leg/foot or any history of hobbies, sports,
or other personal activities that would contribute to her reported condition. He detailed the findings
of the physical examination he conducted on October 4, 2016, noting that she had 5/5 left leg
strength and negative results upon radiculopathy and straight leg testing of her left leg. Dr. Mann
discussed appellant’s October 24 and 25, 2016 MRI scans and diagnosed left Achilles tendinitis,
left ankle sprain, left plantar fasciitis, and left peroneal tendinitis. He noted, “The employment
factors of doing above[-]mentioned activities at work have with reasonable medical certainty
caused the injuries to her left ankle and foot.”4
By decision dated July 19, 2017, OWCP denied appellant’s claim for an employmentrelated occupational injury. It modified its January 23, 2017 decision to reflect that she had
established the medical component of the fact of injury, but that her claim remained denied because
she failed to establish causal relationship between the claimed conditions and the accepted
employment factors. OWCP indicated that, in his October 4, 2016 report, Dr. Mann diagnosed
conditions which he felt were related to appellant’s work duties, but that he failed to provide
sufficient medical rationale to establish causal relationship between those conditions and
appellant’s work duties.
On October 3, 2017 appellant requested reconsideration of OWCP’s July 19, 2017
decision.
In a September 5, 2017 report, Dr. Mann indicated that he was providing further
explanation of the mechanics of the employment injury “claimed for the left foot and ankle on
3
OWCP indicated that the diagnostic testing submitted by appellant was insufficient to establish the medical
component of the fact of injury.
4

Dr. Mann indicated that, after full review of the available records, additional diagnostic testing might be required.
He noted that appellant could perform regular-duty work with restrictions per a written duty status report (Form CA17), but the record does not contain a completed Form CA-17.

3

November 30, 2015.” He noted that appellant reported that her mail handler duties required a lot
of pushing and pulling of heavy containers and wire cages, as well as lots of walking and standing
for long hours on uneven surfaces. Dr. Mann noted that appellant reported that, when she was
pushing the various large containers of mail, her left leg was her dominant push-off leg and lots of
force was repeatedly exerted into her left foot and ankle on a daily basis. He noted that the
repetitive strain pattern was consistent with the physical ﬁndings of tender left ankle collateral
ligaments and inﬂamed left peroneal tendon and indicated that this same repetitive push-off strain
would cause inﬂammation in the left Achilles tendon as well. Dr. Mann posited that the lateral
strain placed on appellant’s foot and ankle on a daily basis was the cause of the soft tissue edema
and injury which was seen on the October 2017 MRI scans of her left foot and ankle. He noted
that the MRI scan of her left ankle reﬂected this straining pattern with intrasubstance partial tearing
within the distal Achilles tendon, mild tenosynovitis and grade 1 strain of the peroneal tendons,
and proximal plantar fascia of a mildly edematous nature. Dr. Mann opined that appellant
presented with a historical description that was consistent with her positive objective physical
ﬁndings. He indicated that appellant’s diagnostic study results “confirmed injuries to her left
Achilles tendon, plantar fascia, peroneal tendon, and lateral stability of the ankle within reasonable
medical certainty caused by the repeated strain the patient exerts into her left ankle and foot with
each heavy push at her station.”
By decision dated December 29, 2017, OWCP denied modification of its July 19, 2017
decision. It determined that Dr. Mann’s September 5, 2017 report was not sufficiently wellrationalized to establish causal relationship between the diagnosed conditions and the accepted
employment factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that the injury was sustained while in the performance of duty as
alleged, and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury.5 To establish fact of injury, an employee must submit
evidence sufficient to establish that he or she experienced a specific event, incident, or exposure
occurring at the time, place, and in the manner alleged.6 An employee must also establish that
such event, incident, or exposure caused an injury.7 These are the essential elements of each and
every compensation claim regardless of whether the claim is predicated upon a traumatic injury or
an occupational disease.8

5

5 U.S.C. § 8101(1); B.B., 59 ECAB 234 (2007); Elaine Pendleton, 40 ECAB 1143 (1989).

6

J.C., Docket No. 16-0057 (issued February 10, 2016); E.A., 58 ECAB 677 (2007).

7

Id.

8

R.H., 59 ECAB 382 (2008); Ellen L. Noble, 55 ECAB 530 (2004).

4

OWCP regulations define the term “[o]ccupational disease or illness” as a condition
produced by the work environment over a period longer than a single workday or shift.9 To
establish that an injury was sustained in the performance of duty in an occupational disease claim,
an employee must submit the following: (1) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; (2) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or occurrence
of the disease or condition; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.10
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence.11 The opinion of the physician must be based on a complete factual
and medical background of the employee, must be one of reasonable medical certainty, and must
be supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the established employment factors.12
ANALYSIS
The Board finds that the case is not in posture for decision regarding whether appellant met
her burden of proof to establish a left lower extremity injury due to factors of her federal
employment.
Appellant submitted an October 4, 2016 report from Dr. Mann, an attending physician,
who indicated that appellant reported that she had worked for the employing establishment for the
past 18 years. She reported to Dr. Mann that she worked as a supervisor for the past year, but prior
to that she worked as a mail handler up until November 2015. Dr. Mann noted that she reported
that she was working as a mail handler when she sustained an insidious injury to her left foot and
ankle on November 30, 2015. Appellant reported that she was performing her usual work duties
when she experienced a burning sensation shooting from her left ankle up to her left knee and her
left leg started to swell and ache. She described her work duties as including pushing/pulling
objects such as mail containers all day long, as well as engaging in lots of standing and walking.
Dr. Mann diagnosed left Achilles tendinitis, left ankle sprain, left plantar fasciitis, and left peroneal
tendinitis and noted, “The employment factors of doing above[-]mentioned activities at work have
with reasonable medical certainty caused the injuries to her left ankle and foot.”
Appellant also submitted a September 5, 2017 report from Dr. Mann who advised that he
was providing further explanation of the mechanics of the employment injury claimed for
appellant’s left foot and ankle. Dr. Mann noted that appellant reported that her mail handler duties
required a lot of pushing and pulling of heavy containers and wire cages, as well as a lot of walking
and standing for long hours on uneven surfaces. He indicated that she reported that, when she was
9

20 C.F.R. § 10.5(q); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims,
Chapter 2.800.2b (June 2011).
10

D.H., Docket No. 15-1876 (issued January 29, 2016); D.I., 59 ECAB 158 (2007); Victor J. Woodhams, 41 ECAB
345 (1989).
11

F.S., Docket No. 15-1052 (issued July 17, 2015); Tomas Martinez, 54 ECAB 623 (2003).

12

P.K., Docket No. 08-2551 (issued June 2, 2009); John W. Montoya, 54 ECAB 306 (2003).

5

pushing the various large containers of mail, her left leg was her dominant push-off leg and lots of
force was repeatedly exerted into her left foot and ankle on a daily basis. Dr. Mann opined that
the lateral strain placed on appellant’s foot and ankle on a daily basis was the cause of the soft
tissue edema and injury which was seen on the October 2017 MRI scans of her left foot and ankle.
He noted that the repetitive strain pattern was consistent with the physical ﬁndings of tender left
ankle collateral ligaments and inﬂamed left peroneal tendon and indicated that this same repetitive
push-off strain would cause inﬂammation in the left Achilles tendon as well. He also indicated
that appellant’s diagnostic study results confirmed injuries, including those to her left Achilles
tendon, plantar fascia, and peroneal tendon, which were caused by the repeated strain she “exerts
into [appellant’s] left ankle and foot with each heavy push at her station.”
These reports contain a history of injury, diagnoses, and an opinion that appellant sustained
a left lower extremity injury due to factors of her federal employment. While Dr. Mann’s reports
are insufficient to meet appellant’s burden of proof, they do raise an uncontroverted inference of
causal relation between the accepted employment factors and her diagnosed left lower extremity
conditions, and are sufficient to require OWCP to undertake further development of appellant’s
claim.13
Thus, the Board finds that further development is required to determine whether appellant
sustained a left lower extremity injury due to factors of her federal employment.14 On remand
OWCP should prepare a statement of accepted facts and refer appellant to an appropriate Boardcertified specialist for a second opinion examination and an evaluation regarding whether she has
sustained injury causally related to the accepted employment factors. Following any necessary
further development, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant met
her burden of proof to establish a left lower extremity injury due to factors of her federal
employment. The case is remanded to OWCP for further development.

13

See John J. Carlone, 41 ECAB 354 (1989).

14
D.C., Docket No. 14-1312 (issued May 6, 2015); K.M., Docket No. 12-0726 (issued January 22, 2013); D.N.,
Docket No. 09-0651 (issued April 20, 2010).

6

ORDER
IT IS HEREBY ORDERED THAT the December 29, 2017 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.
Issued: September 11, 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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 12-235
Issued: May 15, 2012

Case Submitted on the Record

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

JURISDICTION
On November 22, 2011 appellant filed a timely appeal of the September 7, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration. Because more than 180 days has elapsed between the most recent merit
decision dated December 1, 2010 to the filing of this appeal, the Board lacks jurisdiction to
review the merits of the case pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
of her claim pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant submitted a medical report from an attending physician and alleged
that this evidence was sufficient to establish her claim of injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 3, 2010 appellant, then a 63-year-old clerk, filed an occupational disease
claim alleging that on April 10, 2009 she first became aware of her hearing loss. On May 7,
2009 she first realized that her condition was caused by noise exposure 8 to 12 hours a day, 5 to
6 days a week while loading and sweeping optical character reader and bar code sorter machines
at the employing establishment.2 Medical evidence dated August 26, 1993 to August 19, 2009
stated that appellant had bilateral hearing loss and otosclerosis. She underwent right and left
stapedotomies on August 26, 1993 and March 1, 1995, respectively, to treat her bilateral
otosclerosis.
In an April 8, 2010 decision, OWCP denied appellant’s claim, finding that the medical
evidence was insufficient to establish a causal relationship between her claimed bilateral hearing
loss condition and the established work-related noise exposure.
On May 5, 2010 appellant requested a review of the written record by an OWCP hearing
representative.
In a June 22, 2010 decision, an OWCP hearing representative set aside the April 8, 2010
decision. Noting that the evidence of record established that appellant had hearing loss, the
hearing representative remanded the case to OWCP for further development of the medical
evidence. OWCP was instructed to refer appellant along with a statement of accepted facts and
the case record to a second opinion physician for a rationalized opinion on whether her hearing
loss was causally related to the established work-related noise exposure.
By letter dated October 4, 2010, OWCP referred appellant to Dr. Gerald W. Moritz, a
Board-certified otolaryngologist, for a second opinion. In an October 24, 2010 medical report,
Dr. Moritz opined that appellant had bilateral mixed hearing loss secondary to otosclerosis based
on a history of the accepted employment-related noise exposure, appellant’s medical treatment
for ostosclerosis and his review of audiograms performed in 1999 and on October 19, 2010. He
advised that there was no evidence establishing that her work-related noise exposure contributed
to her hearing loss since the 1999 and 2010 audiograms were very similar. Dr. Moritz concluded
that appellant’s otosclerosis was most likely enough to protect her ears from noise.
In a December 1, 2010 decision, OWCP denied appellant’s claim, finding that
Dr. Moritz’s opinion represented the weight of the medical evidence.
On June 14, 2011 appellant requested reconsideration and submitted new audiological
evidence. Testing at 500, 1,000, 2,000 and 3,000 hertz (Hz) performed on intermittent dates
from August 11, 1993 through February 8, 2011 by Dr. Charles E. Swain, Jr., an audiologist,
revealed bilateral hearing loss.
In a September 7, 2011 decision, OWCP denied merit review of appellant’s claim,
finding that the audiograms submitted on reconsideration were similar to previously submitted
audiograms and, thus, did not constitute new and relevant evidence.
2

Appellant retired from the employing establishment on October 31, 2009.

2

LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128 of FECA,3
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.4 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.5 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review of the merits.
ANALYSIS
On June 14, 2011 appellant disagreed with OWCP’s December 1, 2010 decision denying
her claim for an injury in the performance of duty and requested reconsideration. The relevant
issue on reconsideration is whether she submitted sufficient medical evidence to establish her
claim for employment-related bilateral hearing loss.
The audiograms from Dr. Swain, an audiologist, did not require OWCP to review the
merits of appellant’s case. These audiograms do not constitute medical evidence as an
audiologist is not a physician as defined under FECA.6 These audiograms are not certified by a
physician and there is no requirement that OWCP review an uncertified audiogram.7 As the
underlying issue in this case is medical in nature, these reports are not sufficient to require
OWCP to reopen the claim for consideration of the merits.
The Board finds that OWCP properly determined that appellant was not entitled to
further review of the merits of her claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied her June 14, 2011 request for reconsideration.8

3

5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
4

20 C.F.R. § 10.606(b)(1)-(2).

5

Id. at § 10.607(a).

6

See 5 U.S.C. § 8101(2). See also T.B., Docket No. 09-1504 (issued April 12, 2010); Charley V.B. Harley, 2
ECAB 208, 211 (1949) (where the Board held that medical opinion, in general, can only be given by a qualified
physician).
7

Robert E. Cullison, 55 ECAB 570 (2004); Henry T. Scott, 27 ECAB 444 (1976); see Joshua A. Holmes, 42
ECAB 231 (1990); Alfred Avelar, 26 ECAB 426 (1975).
8

M.E., 58 ECAB 694 (2007) (when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), OWCP will deny the application for reconsideration without
reopening the case for a review on the merits).

3

On appeal, appellant submitted new evidence. However, the Board lacks jurisdiction to
review evidence for the first time on appeal.9
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for further merit review
of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the September 7, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 15, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9

See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57 ECAB 126 (2005).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
HACKENSACK OUTPATIENT CLINIC,
Hackensack, NJ, Employer
__________________________________________

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)
)
)
)
)
)

Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0341
Issued: November 7, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 16, 2015 appellant, through counsel, filed a timely appeal from a
November 3, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective March 11, 2012, as she had no further
disability due to her accepted May 17, 2011 employment injury; and (2) whether appellant has
established that she has continuing disability after March 11, 2012 as a result of her employment
injury.
FACTUAL HISTORY
This case has previously been before the Board. The facts and circumstances set forth in
the Board’s prior decision are incorporated herein by reference. The facts relevant to this appeal
will be set forth below.
On May 27, 2011 appellant, then a 61-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that on May 17, 2011 she experienced left-sided sciatica after a patient fell
against her left side. She stopped work on May 18, 2011. OWCP accepted the claim for
displacement of a lumbar intervertebral disc without myelopathy and an aggravation of lumbar
postlaminectomy syndrome. It paid compensation for total disability beginning July 2, 2011.
On November 2, 2011 Dr. Kenneth Park, an osteopath, treated appellant for lumbar pain
with radiculopathy. He discussed her prior history of a fusion and the implantation of a spinal
cord stimulator. Dr. Park provided appellant with pain management.
On November 14, 2011 OWCP referred appellant to Dr. Jeffrey Lakin, a Board-certified
orthopedic surgeon, for a second opinion examination.
In a report dated December 7, 2011, Dr. Lakin discussed appellant’s May 17, 2011 work
injury and her history of a preexisting back condition requiring a spinal fusion in June 2006 and
the placement of a spinal cord stimulator. He further reviewed the medical records. On
examination, Dr. Lakin found minimal tenderness over the spinal cord stimulator, limited
forward flexion, and “decreased strength throughout the entire left lower extremity….” He
opined that appellant had “no significant orthopedic or neurological deficit resulting from the
accident of May 17, 2011.” Dr. Lakin concluded that the accepted conditions of an aggravation
of a lumbar intervertebral disc without myelopathy and an aggravation of postlaminectomy
syndrome had resolved. He found that appellant could return to her usual employment as she
had “no current objective findings of any disability as a result of work[-]related aggravation.” In
a work restriction evaluation dated December 7, 2011, Dr. Lakin determined that she had no
work restrictions.
On January 13, 2012 OWCP advised appellant of its proposed termination of her
compensation and provided her 30 days to submit evidence or argument if she disagreed with the
proposed action.
A computerized tomography (CT) scan of the lumbar spine, obtained on January 19,
2012, revealed postsurgical changes from the L4-S1 spinal fusion, grade 1 spondylolisthesis of

2

L4 on L5 with “asymmetric laterally bulging disc as well as [a] small right inferior foraminal
protrusion,” minimal disc bulging at L3-4, and a mild asymmetrical bulging disc at L5-S1.
On January 19, 2012 appellant advised that Dr. Lakin was unfamiliar with nerve
stimulators and asserted that her work injury jarred the stimulator. She maintained that she
experienced difficulty even getting to physician’s appointments.
In a January 25, 2012 progress report, Dr. Park discussed his pain management treatment
of appellant.3 He noted that she remained in bed most of the day and indicated that her
“excessive pain level may be secondary to too much opioids, opioid hyperalgesia.” Dr. Park
diagnosed osteoporosis and postlaminectomy syndrome.
In a progress report dated February 6, 2012, Dr. John M. Hwang, a Board-certified
orthopedic surgeon, diagnosed benign hypertension, arthritis, and back pain. He noted that
appellant did not believe that she could work and was going to see a neurosurgeon.
On February 21, 2012 Dr. Park evaluated appellant for back pain radiating from her
lumbar spine through her left leg. He diagnosed postlaminectomy syndrome, osteoporosis, and
asthma.
On February 22, 2012 Dr. Christopher J. Winfree, a Board-certified neurosurgeon, noted
that appellant related having relief from pain following the implantation of the stimulator until a
patient fell on her and she hit the ground. A CT scan of the thoracic spine did not show a shift in
the stimulator and he did not know why she no longer had benefit from the device. Dr. Winfree
referred appellant to another physician for “a disability assessment.”
In an undated statement, received by OWCP on February 27, 2012, appellant discussed
her history of back problems and the placement of a spinal column stimulator. She noted that
diagnostic studies obtained July 15, 2010 did not show damage around the area of her fusion.
Appellant submitted a magnetic resonance imaging (MRI) scan study July 15, 2010 showed a
spinal fusion from L4 to S1 with no herniation or stenosis.
By decision dated March 7, 2012, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective March 11, 2012. It found that the opinion of Dr. Lakin
represented the weight of the medical evidence and established that she had no further disability
or need for medical treatment due to her accepted employment injury.
In a report dated April 12, 2012, Dr. Howard Liss, a Board-certified physiatrist, discussed
appellant’s history of a lumbar fusion at L4-S1 in June 2006 and the implantation of a
neurostimulator in January 2011. He noted that, following the stimulator implant, she had a
reduction of pain and returned to full-time work. On May 17, 2011 a patient fell onto appellant’s
left side causing her to fall to the floor. Dr. Liss related, “[Appellant] noted an immediate
change in the electrical sense that she had had from her stimulator. The following day, she was
barely able to bear weight due to pain. Attempts were made at reprogramming the electrical
stimulator without success.” He found that appellant currently complained of left leg pain with
3

Dr. Park continued to submit progress reports describing his treatment of appellant for pain in 2012.

3

left foot numbness and that an examination showed pain on straight leg raise and negative
Waddell’s signs. Dr. Liss reviewed diagnostic studies and diagnosed “chronic, disabling lumbar
discogenic pain with a radicular component.” He opined that appellant was totally disabled.
On April 18, 2012 appellant requested reconsideration. By decision dated July 20, 2012,
OWCP denied modification of its March 7, 2012 decision. It found that Dr. Liss did not attribute
her disability to the accepted work injury.
In a report dated July 31, 2012, Dr. Liss again reviewed appellant’s medical history and
discussed her May 17, 2011 work injury. On examination he provided findings similar to those
obtained in his March 14, 2012 examination, including a positive bilateral straight leg raise.
Dr. Liss advised that a July 15, 2010 MRI scan study demonstrated no disc herniation or
stenosis, but that a CT scan obtained on January 19, 2012 subsequent to the work injury yielded
multiple findings. He related, “Upon review of imaging, there appears to have been a change of
the structural integrity of the discs, with the January 19, 2012 study revealing multiple bulges,
and encroachment upon the thecal sac.” Dr. Liss found that appellant was totally disabled as a
result of the May 17, 2011 work injury.
On September 20, 2012 appellant requested reconsideration. She related that a CT scan
taken after her work injury established that she sustained damage to her lumbar discs.
In a decision dated December 12, 2012, OWCP denied modification of its March 7, 2012
decision.
On March 14, 2013 Dr. Liss again compared the changes in the imaging studies before
and after the May 17, 2011 injury and advised that the integrity of appellant’s discs had been
altered. He opined that her complaints were consistent and that examination findings did not
suggest any “nonorganic component to her pain.” Dr. Liss noted that Dr. Lakin had not
performed a straight leg raise or all range of motion measurements, and also found “decreased
strength throughout the entire left lower extremity compared to the right.” He related, “In
summary, there were imaging changes consistent with a structural injury to [appellant’s] lumbar
discs. Furthermore, [appellant] presented to me with a consistent history and examination.
Portions of the examination did demonstrate positive mechanical signs that were reproductive of
her pain.”
On March 27, 2013 appellant, through counsel, requested reconsideration.
By decision dated June 25, 2013, OWCP denied modification of its December 12, 2012
decision. It found that Dr. Liss had not explained why the changes on imaging study resulted
from the May 17, 2011 work injury.
On July 17, 2013 Dr. Liss discussed the rationale for his finding that the changes on
imaging study resulted from the accepted work injury. He related:
“Firstly, on July 15, 2010 imaging did not reveal the presence of a herniated disc
or spinal stenosis, whereas on the January 19, 2012 imaging did reveal bulging at
L2 to S1 levels. The only noteworthy event that occurred between those times
was the accident of May 17, 2011 when a patient fell into [appellant] while she
4

was working. My physical examinations of [her] have never revealed any
inconsistencies. In the course of my examination, I look for evidence of a
nonorganic component to a patient’s pain. [Appellant] has never displaced any,
which suggest that her symptoms are on a structural or organic basis.”
Dr. Liss found that it was “certainly possible” that the May 17, 2011 trauma increased pressure
on the discs due to flexion and torsion, which caused additional pain in her back and leg. He
concluded, “My impression with a reasonable degree of medical certainty, considering
[appellant’s] history, exam[ination], and imaging, is that the injury of May 17, 2011 did cause
structural changes and resulted in ongoing pain leading to [her] disability.”
On August 21, 2013 appellant, through counsel, requested reconsideration. In a decision
dated October 11, 2013, OWCP denied modification of its June 25, 2013 decision. It found that
Dr. Liss’ opinion was speculative and of diminished probative value.
In a report dated November 11, 2013, Dr. Liss related, “I am confident within a
reasonable degree of medical probability that [appellant] suffered a disc injury on May 17, 2011.
The trauma caused an increase in disc pressure due to flexion and torsion forces resulting in new
damage to her discs. A January 19, 2012 imaging study revealed additional discal pathology.”
On November 19, 2013 counsel again requested reconsideration of the July 25, 2013
decision. In an accompanying statement, appellant advised that she had not experienced any
injury between May 17, 2011 and January 19, 2012.
By decision dated April 11, 2014, OWCP denied appellant’s request for reconsideration
after finding that she had not raised an argument or submitted evidence sufficient to warrant
reopening her case for further review of the merits under 5 U.S.C. § 8128(a).
Appellant appealed to the Board. In an order dated October 21, 2014, the Board reversed
the April 11, 2014 decision after finding that OWCP delayed in issuing its reconsideration
decision more than 90 days and that the delay jeopardized her right to appeal the merits of her
case to the Board.4 The Board remanded the case for OWCP to conduct a merit review of the
case.
In a statement dated October 1, 2015, appellant described her neurostimulator implant
and its failure to control her pain after the May 17, 2011 work injury.
By decision dated November 3, 2015, OWCP denied modification of its October 11,
2013 decision.
On appeal counsel contends that Dr. Lakin performed a limited examination and provided
no explanation for his conclusions. He asserts that a conflict exists between Dr. Lakin and
Dr. Liss.

4

Order Remanding Case, Docket No. 14-1309 (issued October 21, 2014).

5

LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.5
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.7 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition,
which require further medical treatment.8
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained displacement of a lumbar intervertebral disc
without myelopathy and an aggravation of lumbar postlaminectomy syndrome as the result of a
May 17, 2011 employment injury. Appellant stopped work on May 18, 2011 and did not return.
OWCP paid her compensation for total disability.
In a report dated November 2, 2011, Dr. Park discussed appellant’s history of a lumbar
fusion at L4-S1 and spinal cord stimulator implant and provided pain management. He did not,
however, relate any condition to the May 17, 2011 work injury or otherwise address causation.
Medical evidence that does not offer any opinion regarding the cause of an employee’s condition
is of diminished probative value on the issue of causal relationship.9
On November 14, 2011 OWCP referred appellant to Dr. Lakin for a second opinion
examination. The Board finds that OWCP met its burden of proof to terminate her compensation
through the opinion of Dr. Lakin, who determined that she had no further disability causally
related to her accepted employment injury. In his December 7, 2011 report, Dr. Lakin reviewed
appellant’s history of preexisting back pain leading to a June 2006 fusion and subsequent
implantation of a spinal cord stimulator. On examination, he found a loss of strength on the left
side and a minimally antalgic gait. Dr. Lakin determined that appellant’s accepted conditions
had resolved and provided as a rationale that she did not have objective orthopedic or
neurological findings due to the May 17, 2011 employment injury. He further found that she
could return to her usual employment. Dr. Lakin provided a thorough review of the factual and
medical background and accurately summarized the relevant medical evidence. Moreover, he
provided detailed findings on examination and reached conclusions regarding appellant’s
5

Elaine Sneed, 56 ECAB 373 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

6

Gewin C. Hawkins, 52 ECAB 242 (2001).

7

T.P., 58 ECAB 524 (2007); Pamela K. Guesford, 53 ECAB 727 (2002).

8

Id.

9

S.E., Docket No. 08-2214 (issued May 6, 2009); Conard Hightower, 54 ECAB 796 (2003).

6

condition which comported with his findings.10 Dr. Lakin’s opinion thus constitutes the weight
of the medical evidence and establishes that appellant had no employment-related disability or
need for medical treatment, effective March 11, 2012.
The remaining evidence of record submitted prior to OWCP’s termination of
compensation is insufficient to show that appellant had further disability or need for medical
treatment due to her employment injury. In a January 25, 2012 progress report, Dr. Park
discussed his treatment and noted that she remained in bed most of the day. He considered that
appellant’s excessive pain level could be secondary to too much opioids or opioid hyperalgesia.
Dr. Park diagnosed osteoporosis and postlaminectomy syndrome. In a progress report dated
February 21, 2012, he again diagnosed postlaminectomy syndrome and osteoporosis. Dr. Park
did not address causation and thus his reports are of diminished probative value.11
On February 6, 2012 Dr. Hwang diagnosed benign hypertension, arthritis, and back pain.
He noted that appellant did not feel she could work. Dr. Hwang, however, did not provide an
independent disability assessment and thus his report is of little probative value.12
On February 22, 2012 Dr. Winfree noted that appellant related that she had relief from
pain following the implantation of the stimulator until a patient fell on her and she hit the ground.
He related that a thoracic CT scan did not show a shift in the stimulator. Dr. Winfree referred
appellant to another physician to determine disability. As he did not address the relevant issue of
whether she was disabled due to her employment injury, his report is of diminished probative
value.
On appeal counsel asserts that Dr. Lakin did not explain his conclusions. As discussed,
however, his opinion is based on a thorough examination and review of the evidence and thus
constitutes the weight of the evidence and establishes that she had no employment-related
disability or need for medical treatment effective March 11, 2012, the date OWCP terminated her
compensation.
LEGAL PRECEDENT -- ISSUE 2
Once OWCP properly terminates appellant’s compensation benefits, the burden shifts to
appellant to establish that she has continuing disability after that date related to her accepted
injury.13 To establish a causal relationship between the condition as well as any attendant
disability claimed and the employment injury, an employee must submit rationalized medical
evidence based on a complete medical and factual background, supporting such a causal

10

See Pamela K. Guesford, supra note 7.

11

See B.S., Docket No. 15-572 (issued May 27, 2015).

12

See Earl David Seal, 49 ECAB 152 (1997).

13

Manual Gill, 52 ECAB 282 (2001).

7

relationship.14 Causal relationship is a medical issue and the medical evidence required to
establish a causal relationship is rationalized medical evidence.15
ANALYSIS -- ISSUE 2
The Board finds that appellant has not established continuing disability after March 11,
2012 due to her employment injury.
As discussed above, the weight of the evidence at the time of the termination rested with
Dr. Lakin, an OWCP referral physician, who concluded that appellant had no residuals due to her
accepted displacement of a lumbar intervertebral disc without myelopathy and aggravation of
lumbar postlaminectomy syndrome. Based on his physical findings and review of the factual
and medical evidence, Dr. Lakin determined that she had returned to her preinjury condition and
could perform her regular work duties without restrictions.
On reconsideration, appellant submitted reports from Dr. Liss, an attending physician. In
a report dated April 12, 2012, Dr. Liss discussed her history of a May 17, 2011 injury, a fusion at
L4-S1 in June 2006, and the implantation of a neurostimulator in January 2011. He further noted
that on May 17, 2011 a patient fell on appellant’s left side, causing a change in the electrical
sensation from the stimulator. Dr. Liss diagnosed lumbar pain with radiculopathy and provided
examination findings. He opined that appellant was totally disabled. A physician’s opinion on
causal relationship between a claimant’s disability and an employment injury, however, is not
dispositive simply because it is rendered by a physician. To be of probative value, the physician
must provide rationale for the opinion reached. Dr. Liss did not provide sufficient medical
rationale to demonstrate that the conclusion reached regarding appellant’s disability was sound,
logical and rationale.16 Consequently, his report is insufficient to meet appellant’s burden of
proof.
On July 31, 2012 Dr. Liss compared a July 15, 2010 MRI scan study obtained prior to the
injury, which did not show stenosis or a herniated disc, with a January 19, 2012 CT scan
obtained after the injury, which showed a foraminal protrusion at L4-5 with disc bulging and a
possible deformity of the thecal sac. He found that appellant sustained structural changes in disc
integrity and that she was totally disabled as a result of her employment injury. Dr. Liss did not,
however, explain the physiologic progress by which the work injury caused continued disability
after March 11, 2012. Without a sufficient explanation regarding the mechanism of injury, his
opinion on disability is of diminished probative value.17
In a report dated March 14, 2013, Dr. Liss indicated that diagnostic studies taken before
and after appellant’s injury showed an alteration in the integrity of her discs. He also indicated
14

Id.

15

Paul Foster, 56 ECAB 208 (2004); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

16

K.W., 59 ECAB 271 (2007).

17

See generally N.M., Docket No. 15-0704 (issued June 22, 2015); M.P., Docket No. 15-0747 (issued
May 18, 2015).

8

that she had consistent complaints on examination and no nonorganic pain findings. Dr. Liss
advised that in contrast to Dr. Lakin’s findings he found mechanical signs of pain on
examination. He did not, however, address the relevant issue of disability and thus his opinion is
of little probative value.
On July 17, 2013 Dr. Liss again attributed the structural changes to the May 17, 2011
injury as it was the only event between the 2010 and 2012 imaging studies and was consistent
with examination findings. He advised that the injury may have caused pressure on appellant’s
discs due to flexion and torsion and concluded that, within reasonable medical certainty, she
sustained structural changes to her disc with resulting disability due to her May 17, 2011
employment injury. On November 11, 2013 Dr. Liss asserted that she injured her disc on
May 17, 2011 as a result of the forces of flexion and torsion on her discs. He provided no
explanation for finding that appellant had continued disability other than to discuss the change in
imaging studies from 2010 to 2012. Without additional rationale, the Board finds that Dr. Liss’
opinion is insufficient to meet her burden of proof.18
On appeal argues that a conflict exists between Dr. Lakin and Dr. Liss. As discussed,
however, Dr. Liss’ opinion is of diminished probative value as he did not provide sufficient
medical rationale and thus insufficient to create a conflict in medical opinion.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective March 11, 2012, as she had no further disability
due to her accepted May 17, 2011 employment injury. The Board further finds that she has not
established continuing disability after March 11, 2012 as a result of her employment injury.

18

Medical reports without adequate rationale are of diminished probative value and do not meet an employee’s
burden of proof. See T.C., Docket No. 15-1534 (issued March 1, 2016).

9

ORDER
IT IS HEREBY ORDERED THAT the November 3, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 7, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DELIVERY CENTER, San Francisco, CA,
Employer
__________________________________________
Appearances:
Capp. P. Taylor, Esq., for the appellant
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)
)

Docket No. 11-1681
Issued: May 10, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

On July 2, 2011 appellant, through his attorney, filed a timely appeal from a February 2,
2011 schedule award 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 the case.
ISSUE
The issue is whether appellant has more than 15 percent impairment to his right arm or
more than 3 percent impairment to his left arm, for which he received schedule awards.
Appellant, through his attorney, contends that the schedule award ratings were in error
because the statement of accepted facts did not list right carpal tunnel syndrome as an accepted
condition and therefore it was not rated. He also argued that the evaluation by OWCP’s medical
adviser was deficient.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 17, 2003 appellant, then a 44-year-old mail processor, filed an occupational
disease claim alleging an upper extremity and neck condition as a result of keying and doing
repetitive work. OWCP accepted brachial neuritis/radiculitis, right rotator cuff syndrome, left
carpal tunnel syndrome, cervical radiculopathy and left shoulder rotator cuff syndrome. In
another claim, it accepted right carpal tunnel syndrome. The cases were combined into the
present master file.2 On July 27, 2005 appellant underwent an arthroscopic subacromial
decompression; arthroscopic debridement of superior synovitis in the rotator interval and anterior
shoulder and open acromioclavicular (AC) joint resection.
On September 18, 2009 appellant filed a claim for a schedule award. Dr. Jules P.
Steinmitz, a Board-certified physiatrist, evaluated appellant under the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (2009)
(A.M.A., Guides) and determined that appellant had a 29 percent right upper extremity
impairment and a left upper extremity impairment of 34 percent. He noted accepted conditions
of bilateral carpal tunnel; bilateral shoulder impingement; AC joint arthrosis right shoulder; and
chronic cervical strain. Dr. Steinmitz evaluated appellant’s left wrist as class 3 due to severe
sensory loss and combined with motor deficit. He opined that the default impairment is 27
percent of the left upper extremity and that the net adjustment factor is zero and that the final
impairment for appellant’s left wrist is 27 percent of the left upper extremity. With regard to the
right wrist, Dr. Steinmitz found that appellant had a category 2 impairment based on moderate
sensory and motor loss with a default impairment of 17 percent and a net adjustment factor of
zero, and that therefore the final impairment was 17 percent of the right upper extremity.3 With
regard to his evaluation of the right shoulder, he stated that, due to the accepted condition of AC
joint arthroplasty with impingement, this is a class 1 diagnosis with an impairment default at one
percent. Dr. Steinmitz noted that the right shoulder has a plus 2 modifying factor based upon
physical examination and clinical studies and that functional history was not applicable. He
calculated 0+1+1=2, and concluded that the final impairment is 12 percent of the upper extremity
impairment on the right according to the A.M.A., Guides. In evaluating the left shoulder,
Dr. Steinmitz used the range of motion model in the A.M.A., Guides,4 and determined that as
flexion is 170 degrees, this equaled a three percent impairment of the upper extremity; as
extension is 30 degrees, this equaled a one percent impairment of the upper extremity; and as
abduction is 160 degrees, this equaled a three percent impairment of the upper extremity. He
stated that remaining motions were not with normal limits and therefore the final impairment was
seven percent of the right upper extremity. In summary, Dr. Steinmitz concluded that the
combined right upper extremity impairment was 29 percent and the left upper extremity
impairment was 34 percent.

2

OWCP File No. xxxxxx412. OWCP accepted that appellant, then a 36-year-old letter sorter machine operator,
sustained right carpal tunnel syndrome due to factors of his federal employment.
3

A.M.A., Guides 438, Table 15-21.

4

Id. at 475, Table 15-34.

2

On May 11, 2010 OWCP referred appellant’s claim to OWCP’s medical adviser for
determination of an impairment rating for schedule award purposes. The medical adviser stated
that he did not see a report of the physical examination accompanying Dr. Steinmitz’s rating and
that it did not appear to be correct. He recommended a second opinion evaluation.
On June 17, 2010 OWCP referred appellant to Dr. Alan B. Kimelman, a Board-certified
physiatrist, for a second opinion. In making the referral, it noted in the statement of accepted
facts that the accepted conditions were cervical radiculopathy, bilateral shoulder impingement
syndrome/strain; and left carpal tunnel. The statement of accepted facts noted that appellant had
another case that was accepted for right carpal tunnel syndrome. In a July 15, 2010 report,
Dr. Kimelman found that for the left upper extremity appellant had a 32 percent impairment and
that, for the right upper extremity, appellant had 36 percent impairment. For the right upper
extremity, he noted that appellant had a class 2 impairment based on range of motion of 22
percent pursuant to the A.M.A., Guides.5 Dr. Kimelman noted grade modifiers which yielded 23
percent impairment for range of motion limitation. With regard to the combined impairment for
peripheral nerves of the right upper extremity, he noted impairment for the right shoulder based
on class 1 which equaled an impairment of three percent to which he added modifiers of 2 to
yield an impairment of five percent.6 Dr. Kimelman diagnosed an impairment for right brachial
plexus motor deficit by noting a class 1 rating based on mild motor deficit which would merit 9
percent rating, which he adjusted upwards with grade modifiers to equal 13 percent impairment.7
He combined the 13 percent impairment for right brachial plexus motor deficit and the 5 percent
for the right shoulder and determined that appellant had an impairment of the combined
peripheral nerves of 17 percent. Combining the 17 percent impairment rating for combined
peripheral nerves with the 23 percent impairment for range of motion yielded an impairment
rating of the right upper extremity of 36 percent. With regard to the left upper extremity,
Dr. Kimelman noted an impairment based on range of motion based on class 2 due to residual
loss which yielded 17 percent impairment which he adjusted upward with grade modifiers to
yield an 18 percent impairment based on range of motion.8 He also noted an impairment based
on peripheral nerves of 17 percent. In reaching this conclusion, Dr. Kimelman noted impairment
based on the left shoulder due to a class 1 ranking which yielded three percent impairment which
he adjusted upward based on grade modifiers to yield five percent impairment.9 With regard to
the left brachial plexus sensory deficit, he reached his calculations based on class 1 impairment
which would yield a three percent impairment,10 which he adjusted upward to five percent based
on grade modifiers. With regard to left brachial plexus motor deficit, Dr. Kimelman noted a
class 1 impairment which would be 9 percent,11 which he adjusted upward with grade modifiers
5

Id.

6

Id. at 402, Table 15-5.

7

Id. at 434, Table 15-20.

8

Id. at 475, Table 15-34; 406.

9

Id. at 402, Table 15.5.

10

Id. at 434, Table 15-20

11

Id.

3

to equal 13 percent. He then added one percent impairment for diagnosis-based impairment for
the left wrist.12 Combining the 17 percent impairment for peripheral nerves with the 18 percent
for range of motion, Dr. Kimelman concluded that appellant had 32 percent impairment of the
left upper extremity. In making his calculations, he did not rate appellant for right carpal tunnel
syndrome, as he noted that this condition was not accepted by OWCP.
On November 7, 2010 OWCP’s medical adviser reviewed the report of the second
opinion physician. He determined that the total impairment of the right upper extremity equaled
15 percent and the left upper extremity equaled 3 percent. The medical adviser noted that the
diagnosis-based estimate for left shoulder impingement syndrome based on class 1 was 10
percent. He increased this by 2 percent based on grade modifiers to equal an impairment of 12
percent. The medical adviser noted a diagnosis-based estimate for left shoulder impingement
syndrome class 1 was one percent, which he adjusted upward with grade modifiers to equal an
impairment of two percent.13 He noted an impairment for right carpal tunnel syndrome of three
percent.14 The medical adviser found the combined rating for impairment to the right upper
extremity was 15 percent. With regard to the left upper extremity, he noted diagnosis-based
estimate for left shoulder impingement syndrome based on class 1 default position of one percent
modified upward with grade modifiers to equal an impairment of two percent.15 The medical
adviser added an impairment rating due to left carpal tunnel syndrome of one percent.16
Combining these figures, he determined that appellant had an impairment rating to his left upper
extremity of three percent. The medical adviser differed from Dr. Kimelman in that he did not
believe an impairment rating for left brachial plexus deficit was merited. He also disagreed with
Dr. Kimelman’s ratings with regard to range of motion.
On February 2, 2011 OWCP issued a schedule award for 15 percent right upper extremity
impairment and 3 percent left upper extremity impairment.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his claim, including that he sustained an injury in the performance of duty
as alleged and that an employment injury contributed to the permanent impairment for which
schedule award compensation is alleged.17
The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
12

Id. at 395, Table 15.3.

13

Id. at 402, Table 15-5.

14

Id. at 449, 15-23.

15

Id. at 402, Table 15-5.

16

Id. at 449, Table 15-23.

17

See S.S., Docket No. 10-1536 (issued March 18, 2011) (the Board found that appellant was not entitled to a
schedule award as he did not establish that he sustained a permanent impairment causally related to his work injury).

4

physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.18
The schedule award provision of FECA19 and its implementing regulations20 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. The A.M.A., Guides has
been adopted by the implementing regulations as the appropriate standard for evaluating
schedule losses.21 The effective date of the sixth edition of the A.M.A., Guides is May 1, 2009.22
ANALYSIS
OWCP accepted appellant’s claim for brachial neuritis/radiculitis, right rotator cuff
syndrome, left carpal tunnel syndrome, cervical radiculopathy and left shoulder rotator cuff
syndrome. Furthermore, it accepted appellant’s claim for right carpal tunnel syndrome in an
earlier case.
OWCP’s medical adviser noted that Dr. Steinmitz, appellant’s treating physician, did not
base his findings on a recent medical evaluation. OWCP referred appellant for a second opinion
with Dr. Kimelman.23 Dr. Kimelman rated appellant with left upper extremity impairment of 32
percent and a right upper extremity impairment of 36 percent. The medical adviser reviewed
Dr. Kimelman’s opinion, and determined that appellant had 15 percent impairment of the right
upper extremity and 3 percent impairment of the left upper extremity. It issued its schedule
award decision based on the opinion of the medical adviser.
The Board finds that this case is not in posture for decision.
OWCP determined that appellant was entitled to 15 percent impairment to his right upper
extremity. In evaluating appellant under the diagnosis-based impairment criteria, Dr. Kimelman
used Table 15-5 of the A.M.A., Guides, and found that as appellant had a class 1 impairment, the
default impairment rating was three percent. This rating is for residual loss, functional with
normal motion. The medical adviser utilized the default impairment rating for status post distal
clavicle resection or AC separation type 3, which is a default rating of 10 percent. Both
18

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

19

5 U.S.C. § 8107.

20

20 C.F.R. § 10.404.

21

Id.

22

FECA Bulletin No. 09-03 (issued March 15, 2009).

23

See generally, 20 C.F.R. § 10.320.

5

Dr. Kimelman and the medical adviser adjusted the grade modifiers upward by 2. However,
with regard to right carpal tunnel syndrome, Dr. Kimelman erroneously believed that he was not
to make a rating. The case should be remanded to Dr. Kimelman to allow him the opportunity to
determine a rating based on right carpal tunnel syndrome.
OWCP determined that appellant had three percent impairment to his left upper
extremity. With regard to the diagnosis-based impairment of the left shoulder, using Table 15-5
of the A.M.A., Guides,24 Dr. Kimelman indicated that appellant had five percent impairment
whereas OWCP’s medical adviser found three percent impairment. The difference between the
two physicians is on the default position that starts the calculation, as both agree that grade
modifiers will increase the rating by two percent. Pursuant to Table 15-5 of the A.M.A.,
Guides,25 Dr. Kimelman used the default position of 3, which is described as residuals loss,
functional with normal motion. The medical adviser used the default position of 1, which is
described as history of painful injury, residual symptoms without consistent objective findings.
The medical adviser did not explain why he used this as the default position, which is different
from the second opinion physician who conducted an examination. Therefore, further
clarification is required from the medical adviser on this matter. With regard to left carpal tunnel
syndrome, Dr. Kimelman found zero percent impairment rating. However, the medical adviser
found that appellant had one percent upper extremity impairment for left carpal tunnel syndrome.
He noted that, pursuant to A.M.A., Guides Table 15-23, the test findings are grade modifier 1,
history is modifier 1 and physical findings are modifier 0, which is an average grade modifier of
67 or 1. Then, using the functional scale value 1, mild as a modifier, he set the upper extremity
impairment as one percent. OWCP properly evaluated appellant’s impairment with regard to left
carpal tunnel syndrome. With regard to left brachial plexus deficit, Dr. Kimelman found a right
brachial plexus sensory deficit of five percent utilizing Table 15-20 of the A.M.A., Guides.26 He
found a right brachial plexus motor deficit of 13 percent. Utilizing the same table,
Dr. Kimelman found 5 percent impairment for left brachial plexus sensory deficit and 13 percent
impairment for left brachial plexus motor deficit. The medical adviser objected to these findings.
He noted that Dr. Kimelman noted that the deficits were difficult to discern and the objective
testings were normal or showed no specific deficit. The medical adviser stated that it did not
seem reasonable to use this as a rating factor. Furthermore, the medical adviser objected to
Dr. Kimelman’s use of range of motion rating for the shoulders as he noted limited pain. The
Board notes that the diagnosis-based approach is the preferred method of evaluating permanent
impairment under the sixth edition of the A.M.A., Guides.27 However, if the medical adviser had
questions with regard to the rating, he should have asked Dr. Kimelman for a clarification.
While appellant bears the burden of establishing his entitlement to FECA benefits,
OWCP shares responsibility in the development of the evidence to see that justice is done.28
24

Id. at 407.

25

Id. at 403.

26

Id. at 434.

27

Id. at 461, section 15.7.

28

C.M., Docket No. 11-1234 (issued January 11, 2012).

6

Once OWCP undertakes development of the record, it must do a complete job in procuring
medical evidence that will resolve the relevant issues in the case.29 Accordingly, this case will
be remanded for clarification from Dr. Kimelman. After OWCP has developed the case record
to the extent it deems necessary, a de novo decision shall be issued.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the February 2, 2011 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further proceedings
consistent with this decision of the Board.
Issued: May 10, 2012
Washington, DC

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

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

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

29

Richard F. Williams, 55 ECAB 343, 346 (2004).

7