United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.B., Appellant
and
U.S. POSTAL SERVICE, DOMINICK V.
DANIELS FACILITY, Kearney, NJ, Employer
__________________________________________

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

Docket No. 08-1315
Issued: November 13, 2008

Case Submitted on the Record

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

JURISDICTION
On March 25, 2008 appellant filed an appeal from decisions of the Office of Workers’
Compensation Programs dated April 18 and October 22, 2007. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that she sustained a recurrence of disability on
September 20, 2003 causally related to her June 14, 2002 employment injury.
FACTUAL HISTORY
On June 14, 2002 appellant, then a 27-year-old mail handler, sustained an employmentrelated left foot contusion when a gate bar fell on it. The claim was also accepted for neuroma.
Several recurrences were accepted. On July 15, 2003 Dr. Evan Fischer, a Board-certified
orthopedic surgeon, performed an incision and drainage of the left foot. On September 5, 2003
he advised that appellant was complaining of sensitivity around the surgical scar. Dr. Fischer
noted a little tenderness around the scar on physical examination. Tinel’s was negative, and foot,

toe and ankle range of motion were excellent without pain, and appellant could walk heel toe
without pain, do double and single toe raise, bearing all the weight of her body on her left toes
without any pain whatsoever. Dr. Fischer recommended scar massage three times daily and
regular shoe wear, and advised that appellant could return to full duty on September 8, 2003. In
a work capacity evaluation dated September 9, 2003, he advised that maximum medical
improvement had been reached and appellant could return to her usual job with no restrictions to
her physical activity.
Appellant returned to full duty on September 16, 2003. On September 24, 2003 she filed
a Form CA-2a, notice of recurrence, stating that she stopped work on September 20, 2003 due to
aching pain. In a September 25, 2003 report, Dr. Fischer advised that appellant noted pain over
her fifth metatarsal head but he found no tenderness on examination of the foot and no swelling.
He advised that she could walk without pain but felt that she was protecting the surgical site.
Dr. Fischer diagnosed status post incision and drainage of the left foot and left fourth
metatarsalgia. He recommended that she walk in a more normal gait pattern in a well-padded
shoe and advised that she could return to full duty.
In reports dated October 20, 2003, Dr. Andrew Carollo, a Board-certified orthopedic
surgeon, reported that, since surgery, appellant had an abnormal gait pattern and noted findings
of pain on the lateral border of the left foot and base of the fifth metatarsal. In an attending
physician’s report, he diagnosed left foot sprain and advised that appellant was totally disabled.
In reports dated November 24 and December 19, 2003, Dr. Carollo reiterated that appellant was
totally disabled due to a strain/sprain of the left foot.
By decision dated January 6, 2004, the Office denied appellant’s recurrence claim on the
grounds that the medical evidence was insufficient to establish that her disability was causally
related to the June 14, 2002 employment injury.
On January 9, 2004 appellant requested reconsideration, stating that when she stopped
work on September 19, 2003 she was limping and had sharp pain, which continued. In a
January 7, 2004 report, Dr. Carollo advised that appellant was complaining of pain in the left
foot with weight-bearing and walking. He recommended that she be given a job where she could
sit more than stand. In a January 23, 2004 report, Dr. Carollo advised that appellant wished to
return to limited duty and related that she could not stand more than 20 minutes at a time. He
advised that, if she could alternate standing and sitting throughout the day, she would be able to
function.
By decision dated March 24, 2004, the Office denied modification of the January 6, 2004
decision.
In a March 16, 2004 report, received on March 29, 2004, Dr. Carollo described the
history of injury and surgery on July 25, 2003. He advised that his examinations demonstrated
pain on digital pressure over the base of the fifth metatarsal region and tenderness over the
dorsum of the foot where appellant was struck and that she ambulated with a noticeable limp and
an altered gait pattern. Dr. Carollo stated that, when last seen on December 19, 2003, appellant
continued to complain of left foot pain when standing or walking for any length of time. He

2

advised that the altered gait pattern, discomfort, and pain were secondary to the employment
injury and that she could not work.
By decision dated April 16, 2004, the Office reviewed Dr. Carollo’s report and denied
modification of the prior decisions.
On May 4, 2004 appellant, through her attorney, requested reconsideration and submitted
additional medical evidence. By decision dated October 8, 2004, the Office suspended
appellant’s entitlement to benefits on the grounds that she failed to attend a scheduled physical
examination. In a November 4, 2004 decision, it again denied modification of the prior
decisions. On September 29, 2006 the Office vacated the November 4, 2004 decision and
advised appellant that a second opinion evaluation would be scheduled. On December 8, 2006 it
referred appellant to Dr. Iqbal Ahmad, a Board-certified orthopedic surgeon, for a second
opinion evaluation.
In a January 8, 2007 report, Dr. Ahmad reviewed the medical record and history of injury
and advised that appellant was working as a teacher at that time. He reported her complaints of
pain on weight-bearing with swelling, pins and needles sensation, weakness, numbness and
scarring, and her report that she could not wear shoes with heels. Findings on examination
included a normal gait with no difficulty standing on the toes or heels or in squatting. Weightbearing was not painful. There was a well-healed scar on the left heel with no evidence of
swelling or atrophy, and circulation and reflexes were intact. Dr. Ahmad diagnosed contusion of
left foot with incision and drainage and advised that there was no need for further treatment,
therapy, tests, injections or surgery. He concluded that appellant’s examination and medical
records did not establish any worsening of her condition that caused her to stop working on
September 20, 2003. Dr. Ahmad advised that she could return to her regular duties as a mail
handler.
By decision dated April 18, 2007, the Office denied appellant’s claim that she sustained a
recurrence of disability on September 20, 2003.
On April 25, 2007 appellant, through her attorney, requested a hearing. At the August 8,
2007 hearing, appellant testified that she begin part-time work at the employing establishment in
1993 and began full-time work as a mail handler on June 7, 2002. She described the June 14,
2002 employment injury, and testified that, while working on September 19, 2003, her left foot
became very painful and she was unable to return to work. Appellant returned to light duty in
March 2004 and resigned on February 28, 2005. She currently taught school where she could sit
at will. Appellant stated that her foot continued to hurt when walking long distances and that she
could not jog or exercise on a treadmill.
In an October 22, 2007 decision, an Office hearing representative affirmed the April 18,
2007 decision.
LEGAL PRECEDENT
Section 10.5(f) of Office regulations defines the term “disability” as the incapacity,
because of an employment injury, to earn the wages that the employee was receiving at the time

3

of injury.1 Disability is thus not synonymous with physical impairment, which may or may not
result in an incapacity to earn wages. An employee who has a physical impairment causally
related to a federal employment injury, but who nevertheless has the capacity to earn the wages
he or she was receiving at the time of injury, has no disability as that term is used in the Act.2
When, however, the medical evidence establishes that the residuals of an employment injury are
such that, from a medical standpoint, they prevent the employee from continuing in his or her
employment, the employee is entitled to compensation for any loss of wage-earning capacity
resulting from the employment injury.3 Whether a particular injury causes an employee to be
disabled for employment and the duration of that disability are medical issues which must be
proved by a preponderance of the reliable, probative and substantial medical evidence.4 A
recurrence of medical condition means a documented need for further medical treatment after
release from treatment for the accepted condition or injury when there is no accompanying work
stoppage. Continuous treatment for the original condition or injury is not considered a “need for
further medical treatment after release from treatment,” nor is an examination without treatment.5
The employee has the burden of establishing by the weight of reliable, probative and
substantial evidence that the recurrence of disability is causally related to the original injury and
should submit a detailed medical report.6 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 factual and medical
background, supporting such a causal relationship.7
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical evidence.8 Rationalized medical opinion evidence is
medical evidence which includes a physician’s rationalized medical opinion of whether there is a
causal relationship between the claimant’s diagnosed condition and the compensable
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.9

1

20 C.F.R. § 10.5(f); see W.P., 59 ECAB ____ (Docket No. 08-202, May 8, 2008).

2

Cheryl L. Decavitch, 50 ECAB 397 (1999).

3

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

4

Tammy L. Medley, 55 ECAB 182 (2003).

5

20 C.F.R. § 10.5(y); see Mary A. Ceglia, 55 ECAB 626 (2004).

6

20 C.F.R. § 10.404(b).

7

Jennifer Atkerson, 55 ECAB 317 (2004).

8

Id.

9

Victor J. Woodhams, 41 ECAB 345 (1989).

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ANALYSIS
The Board finds that appellant has not established that she sustained a recurrence of
disability on September 20, 2003 caused by her accepted left foot condition. The issue of
whether a claimant’s disability is related to an accepted condition is a medical question which
must be established by a physician who, on the basis of a complete and accurate factual and
medical history, concludes that the disability is causally related to employment factors and
supports that conclusion with sound medical reasoning.10 Medical opinion evidence must be 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.11 Appellant sustained injury on June 14, 2002. Following surgery on July 15,
2003 she was returned to her regular work without any job restrictions.
Appellant stopped work on September 20, 2003, alleging that she was disabled due to
pain. In a September 25, 2003 report, Dr. Fischer advised that appellant complained of pain over
her fifth metatarsal head. On examination, however, he found no tenderness or swelling, noting
that she could walk without pain. Dr. Fischer recommended that she walk in a more normal gait
pattern in a well-padded shoe and advised that she could return to full duty. This report does not
support her claim of total disability for work as of September 20, 2003. Appellant did not return
to see Dr. Fischer but began treatment with Dr. Carollo. On October 20, 2003 Dr. Carollo
advised that appellant was totally disabled, noting that she had pain on the lateral border of the
left foot and at the base of the fifth metatarsal and had an abnormal gait since surgery.
Dr. Carollo diagnosed a left foot sprain caused by the employment injury. There is no
indication, however, that he was aware of the physical requirements of appellant’s job or the
actual duties she performed as a mail handler. Dr. Carollo did not explain why appellant’s
complaints of pain and tenderness disabled her from working or address how her symptoms
related to her accepted injury or surgery. A foot sprain has not been accepted as employment
related. The Board has long held that medical conclusions unsupported by rationale are of
diminished probative value and insufficient to establish causal relationship.12
In a January 8, 2007 report, Dr. Ahmad performed a second opinion evaluation for the
Office. He reviewed the complete medical record and provided findings on physical
examination. Dr. Ahmad advised that there was no need for further treatment and concluded
that, based on his examination and his review of the medical records, appellant did not establish
a worsening of her condition that caused her to stop work on September 20, 2003. He noted that
she could return to her regular duties as a mail handler.
It is appellant’s burden of proof to submit medical evidence to establish a recurrence of
disability due to her accepted injury. A mere conclusion without the necessary medical rationale
explaining how and why the physician believes that a claimant’s accepted exposure would result
in a diagnosed condition is not sufficient to meet the claimant’s burden of proof. The medical
10

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

11

Roy L. Humphrey, 57 ECAB 238 (2005).

12

See Albert C. Brown, 52 ECAB 152 (2000).

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evidence must also include rationale explaining how the physician reached the conclusion he or
she is supporting.13 The Board finds that Dr. Carollo’s opinion that appellant became disabled
for work is of insufficient rationale to establish that her disability beginning September 20, 2003
was due to residuals of her accepted condition.14 The record does not contain a medical report
providing a reasoned medical opinion that her disability was caused by the accepted left foot
condition or neuroma.15 As appellant did not submit medical evidence sufficient to establish her
claim, she did not meet her burden of proof to establish that she sustained a recurrence of total
disability on September 20, 2003, and the Office properly denied her claim.16
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she
sustained a recurrence of disability on September 20, 2003 causally related to her June 14, 2002
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 22, 2007 be affirmed.
Issued: November 13, 2008
Washington, DC

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

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
13

Beverly A. Spencer, 55 ECAB 501 (2004).

14

Cecelia M. Corley, 56 ECAB 662 (2005).

15

Id.

16

Tammy L. Medley, supra note 4.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., claiming as widow of M.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Van Nuys, CA, Employer
__________________________________________

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Appearances:
Steven E. Brown, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1018
Issued: November 2, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 16, 2012 appellant, through her representative, filed a timely appeal from the
October 17, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which denied survivor benefits. 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. The
Board also has jurisdiction to review OWCP’s April 6, 2012 nonmerit decision denying
reconsideration.
ISSUES
The issues are: (1) whether the employee’s death in 2009 was causally related to his
accepted acute myocardial infarction in 1982; and (2) whether OWCP properly denied
appellant’s reconsideration request.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 15, 1982 the employee, a 55-year-old clerk, sustained a heart attack in the
performance of duty. OWCP accepted his claim for acute myocardial infarction.
The employee passed away on March 24, 2009. The certificate of death listed the
immediate cause of death as cryptogenic cirrhosis of the liver, nonalcoholic. Appellant filed a
claim for compensation by widow, Form CA-5.
Dr. Stanley J. Majcher, a Board-certified internist and consulting physician, reviewed the
employee’s medical background and death to determine on appellant’s behalf whether there was
an industrial nexus. He reviewed prior medical reports. Dr. Majcher previously determined that
there was an industrial nexus to the employee’s medical condition. After he reviewed the
employee’s discharge record from March 19, 2009, he stated: “The issue of heart disease
obviously is clearly recorded as a contributing factor to the decedent’s condition.”
As the medical records noted, there were multiple factors that contributed to the
employee’s death, “but an important factor which has been noted repeatedly in the records is
heart problems.” Dr. Majcher noted that the employee had an acute heart attack that obviously
had an adverse impact on his various other internal organ functions and eventually caused death.
He concluded that the employee’s death was industrially related because OWCP had accepted
his heart problems as industrially related and the medical records regarding his death
substantiated heart problems as contributing to death.
OWCP referred the case to Dr. Ajit B. Raisinghani, Board-certified in cardiovascular
disease and an OWCP medical consultant, to determine whether the accepted condition of acute
myocardial infarction caused the employee’s death. Dr. Raisinghani reviewed the medical
record and certificate of death. The most recent cardiac testing, he noted, was in 1996. There
were no records relating to the employee’s final hospital admission leading up to his death; but
the employee had advanced liver disease. The death certificate noted the primary cause of death
as nonalcoholic cryptogenic cirrhosis. No mention was made of any cardiac conditions or
diseases being relevant at the time of death.
Based on the data provided and the death certificate, Dr. Raisinghani concluded that liver
disease was the primary cause of death. The employee had a history of coronary artery disease,
“but what is at issue here is the primary cause of death and based on the death certificate, it was
related to his liver disease.”
On July 20, 2010 OWCP denied appellant’s claim for survivor benefits. It found
Dr. Majcher’s opinion speculative and lacking sound medical rationale or objective findings.
OWCP found that Dr. Raisinghani’s opinion held the weight of the medial evidence, as he was a
cardiologist who provided substantial medical reasoning.
Appellant, through her representative, requested reconsideration. She argued that the
issue was not the primary cause of death but whether the accepted myocardial infarction
contributed.

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In a February 2, 2011 report, Dr. Thomas E. Diggs, II, Board-certified in cardiovascular
disease, noted that the employee had coronary artery disease and sustained a large myocardial
infarction in 1982, which caused a significant ischemic cardiomyopathy and an ejection fraction
of 36 percent. He noted that a 2008 echocardiogram showed an ischemic cardiomyopathy,
decreased left ventricular function, pulmonary hypertension, mitral regurgitation and left atrial
enlargement.
Dr. Diggs explained that chronic congestive heart failure with pulmonary hypertension is
a well-known cause of liver damage called cardiac cirrhosis due to long-term passive congestion
of the liver secondary to the higher pressures in the venous system being reflected back into the
inferior vena cava and hepatic veins. The increased venous pressure and venous congestion
impairs the efficiency of the hepatocytes causing centro-lobular necrosis and subsequent
cirrhosis.
Dr. Diggs noted that Dr. Raisinghani did not offer an opinion on why the employee
developed liver disease. The diagnosis of cryptogenic nonalcoholic liver disease implies no
definitive cause could be determined pathologically. But as the records showed that the
employee had untreated heart failure for years, no other cause of liver cirrhosis could be
diagnosed. “In my opinion, cardiac cirrhosis due to the initial myocardial infarction followed by
years of congestive heart failure … is the cause of the liver failure and his subsequent death.”
On May 3, 2011 OWCP reviewed the merits of appellant’s case and denied modification
of its prior decision. It found that Dr. Diggs’ opinion did not establish a causal relationship
between the employee’s liver condition and the accepted cardiac condition. OWCP noted that he
was not the employee’s treating physician. Dr. Diggs’ report was submitted at the behest of the
appointed representative. There was no indication that he based his opinion on a complete
factual and medical history and he only referenced reviewing the report of Dr. Raisinghani. As
such, OWCP found Dr. Diggs’ opinion of limited probative value. It added that appellant
developed his liver condition in the 20 years since he last worked for the postal service and the
mere fact that a disease or condition manifests itself years after a period of employment does not
raise an inference of causal relationship between the claimed condition and employment.
Appellant again requested reconsideration and submitted the July 12, 2011 supplemental
report from Dr. Diggs, who stated that he had reviewed additional medical records, the same
medical records to which Dr. Raisinghani referred in his evaluation. Dr. Diggs noted two reports
from Dr. Majcher, among other physicians.
Dr. Diggs observed that the employee had an ischemic cardiomyopathy due to the prior
heart attack with decreased cardiac function and congestive heart failure. He explained that, with
heart failure, the pressures in the venous side of the body are increased. Normal venous
pressures are in the range of 0 to 10 millimeters of mercury (mmHg). Normal arterial pressures
are in the 120 mmHg range. Because of the increased pressures with the liver veins, congestion
develops, which impedes the emptying of the liver. Stasis of blood limits oxygenation of the
liver cells leading to cell death and fibrosis (scarring). There is also clotting of the blood within
the small liver veins, which exacerbates the problem. Ultimately, Dr. Diggs explained, cirrhosis
develops as it did in the employee. He concluded that the cirrhosis must have been present for
years prior to the employee’s death in 2009.

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On October 17, 2011 OWCP reviewed the merits of appellant’s case and denied
modification of its prior decision. It faulted Dr. Diggs for not mentioning the details or dates of
the medical records he identified and for providing only a general overview of what he believed
occurred. OWCP held that, in order to establish that this actually occurred in the employee’s
case, Dr. Diggs would have to discuss all the medical records that establish how the employee’s
accepted condition specifically caused his death. The evidence received, however, failed this, as
the cause of death was cryptogenic cirrhosis of the liver, nonalcoholic.
OWCP found that appellant failed to submit a rationalized medical opinion, based on an
accurate factual and medical background, establishing a connection between the employee’s
death and his accepted medical condition. It further found that no conflict in medical opinion
existed that would warrant referral to an impartial medical specialist for resolution.
Appellant, through her representative, requested reconsideration. She argued that
Dr. Diggs gave specifics and opined that the situation he described was what happened to the
employee. Appellant submitted an additional report from Dr. Diggs, who disagreed with
OWCP’s October 17, 2011 decision. Dr. Diggs explained that the relationship he previously
described does in fact occur. He cited a 1951 study showing 10 percent of patients with long
drawn-out cardiac failure develop central and/or intra-lobar fibrosis (cirrhosis). Dr. Diggs asked
how the employee developed a liver problem: he had no history of alcohol abuse, chronic viral
hepatitis, toxin exposure or congenital metabolic liver abnormalities. For these reasons, it was
his opinion that chronically poor heart function resulting from the original heart attack caused the
employee’s liver problem. Dr. Diggs cited specific medical reports by date and by author
showing that the employee had chronic heart damage and poor heart function from the original
heart attack, “which can certainly cause or be a major contributor to liver cirrhosis. There is no
disputing this fact and there is no other explanation as to why this man suffered from and died
from cryptogenic cirrhosis of the liver (nonalcoholic).”
Appellant argued that Dr. Diggs had provided an explanation of the causal relationship
between the employee’s industrial heart condition and his liver failure, which led to his death.
At a minimum, she argued, OWCP should request clarification from its second opinion
examiner, request an opinion from its district medical adviser or order an impartial medical
specialist to resolve the conflict between Dr. Diggs and the second opinion examiner.
On April 6, 2012 OWCP denied appellant’s reconsideration request. It found that
Dr. Diggs’ report was cumulative and repetitive and did not offer any new medical rationale.
OWCP further found that appellant’s arguments concerning an impartial medical specialist and
not having to prove the primary cause of death were previously considered, they were
insufficient to warrant a reopening of the case for a merit review.
On appeal, appellant’s representative argues that Dr. Diggs extensively reviewed the
same medical records that were in the file and available to the Dr. Raisinghani. He added that
Dr. Diggs’ later report addressed the issues that OWCP found deficient in its October 17, 2011
decision.

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LEGAL PRECEDENT -- ISSUE 1
The United States shall pay compensation for the death of an employee resulting from
personal injury sustained while in the performance of duty.2
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial medical evidence that the employee’s death was causally related to an employment
injury or to factors of his federal employment. As part of this burden, she must submit a
rationalized medical opinion, based upon a complete and accurate factual and medical
background, showing a causal relationship between the employee’s death and an employment
injury or factors of his federal employment.3 Causal relationship is medical in nature and can be
established only by medical evidence.4
It is not necessary to prove a significant contribution of employment factors to a condition
for the purpose of establishing causal relationship.5
Once OWCP starts to procure medical opinion, it must do a complete job.6 It has the
responsibility to obtain from its referral physician an evaluation that will resolve the issue
involved in the case.7
ANALYSIS -- ISSUE 1
When OWCP referred this case to Dr. Raisinghani, Board-certified in cardiovascular
disease and an OWCP medical adviser, it asked him to determine whether the accepted condition
of acute myocardial infarction caused the employee’s death. Dr. Raisinghani did not fully
address that question. He concluded that it was not the primary cause of death. Although the
employee had a history of coronary artery disease, Dr. Raisinghani stated that the issue was the
primary cause of death. Based on the death certificate, the primary cause of death was liver
disease. The certificate made no mention of cardiac conditions or diseases being relevant at the
time of death.

2

5 U.S.C. § 8102(a) (with certain exceptions).

3

See Leonora A. Bucco (Guido Bucco), 36 ECAB 588 (1985); Lorraine E. Lamber (Arthur R. Lambert), 33 ECAB
1111 (1982).
4

Mary J. Briggs, 37 ECAB 578 (1986); Ausberto Guzman, 25 ECAB 362 (1974).

5

Beth P. Chaput, 37 ECAB 158 (1985).

6

William N. Saathoff, 8 ECAB 769 (1956).

7

Mae Z. Hackett, 34 ECAB 1421, 1426 (1983); Richard W. Kinder, 32 ECAB 863, 866 (1981) (noting that the
report of OWCP referral physician did not resolve the issue in the case).

5

As noted, it is not necessary to prove a significant contribution of employment factors to a
condition for the purpose of establishing causal relationship. If the medical evidence reveals that
a work factor contributed in any way to the employee’s condition, the condition is compensable.8
Dr. Majcher, the Board-certified internist and consulting physician, supported causal
relationship. After reviewing the employee’s medical record, he noted that the death certificate
did not cover the issue completely, but medical records regarding the employee’s death
substantiated heart problems as a contributing cause. Dr. Majcher supported appellant’s claim
by finding that heart problems had an adverse impact on various internal organ functions and
were an important factor contributing to the employee’s death.
Dr. Diggs, Board-certified in cardiovascular disease, noted the employee’s history of
coronary artery disease and a large myocardial infarction in 1982, caused significant ischemic
cardiomyopathy and an ejection fraction of 36 percent. He explained how the employee’s heart
condition was a well-known cause of liver damage called cardiac cirrhosis due to long-term
passive congestion of the liver secondary to the higher pressures in the venous system being
reflected back into the inferior vena cava and hepatic veins. Dr. Diggs offered a detailed
physiological explanation of how the employee’s heart condition contributed to his liver disease,
which in turn caused his death. In the absence of any other explanation for the employee’s liver
disease, he concluded that cardiac cirrhosis due to the initial myocardial infarction, followed by
years of congestive heart failure, was the cause of liver failure and the employee’s subsequent
death.
As the medical opinion evidence is thus supportive of appellant’s claim and as
Dr. Raisinghani did not directly address the issue of contribution, the Board finds that this case is
not in posture for decision. Further, development of the medical opinion evidence is warranted.
The Board will set aside OWCP’s October 17, 2011 merit decision and remand the case for a
supplemental report from Dr. Raisinghani, OWCP’s second opinion physician. OWCP shall ask
him for a well-reasoned opinion on whether the employee’s acute myocardial infarction in any
way contributed to his death. It shall ask Dr. Raisinghani to review the reports of Dr. Majcher
and Dr. Diggs and explain whether he agrees with their view. After such further development as
may become necessary, OWCP shall issue an appropriate final decision on appellant’s claim for
survivor benefits.
Given the Board’s holding with respect to the first issue presented, the second issue,
relating to OWCP’s denial of a merit review, is moot.
CONCLUSION
The Board finds that this case is not in posture for decision; further development of the
medical evidence is warranted.

8

R.M., Docket No. 11-1701 (issued March 19, 2012); Arnold Gustafson, 41 ECAB 131 (1989).

6

ORDER
IT IS HEREBY ORDERED THAT the April 6, 2012 and October 17, 2011 decisions
of the Office of Workers’ Compensation Programs are set aside and the case remanded for
further action.
Issued: November 2, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
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DEPARTMENT OF HOMELAND SECURITY,
)
CUSTOMS & BORDER PROTECTION,
)
Chula Vista, CA, Employer
)
___________________________________________ )
L.C., Appellant

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

Docket No. 15-0512
Issued: July 13, 2015

Case Submitted on the Record

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

JURISDICTION
On January 5, 2015 appellant filed a timely appeal from a December 5, 2014 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 schedule award determination.
ISSUE
The issue is whether appellant met his burden of proof to establish that he has more than
a 23 percent permanent impairment of his right lower extremity, for which he received schedule
awards.
FACTUAL HISTORY
On December 31, 2010 appellant, then a 51-year-old supervisory border patrol agent,
filed a traumatic injury claim, alleging that on December 30, 2010 he slipped on black ice in a
1

5 U.S.C. § 8101 et seq.

parking lot and his right knee buckled in the performance of duty. He did not stop work. OWCP
accepted the claim for tear of the medial meniscus of the right knee and localized primary
arthritis of the right ankle and foot. On September 28, 2011 appellant underwent an authorized
right knee partial medial and lateral meniscectomy. He received appropriate compensation
benefits.
On September 20, 2012 OWCP granted appellant a schedule award for 13 percent
permanent impairment of the right lower extremity. The award covered a period of 37.44 weeks
from February 17 to October 26, 2012.
Appellant underwent an authorized right medial compartment uniarthroplasty, partial
knee replacement on March 25, 2013.
On December 6, 2013 appellant claimed an increased schedule award. In an
accompanying November 11, 2013 report, Dr. Harbinder S. Chadha, a Board-certified orthopedic
surgeon, examined appellant and diagnosed advanced arthritis of the right knee and status post
knee replacement. He referred to the American Medical Association, Guides to the Evaluation
of Permanent Impairment (6th ed. 2008) (A.M.A., Guides) and referred to Table 16-132 for his
knee replacement and determined that appellant qualified for a class 2 diagnosis criteria with a
“mid rating of a 25.” Dr. Chadha found a net adjustment total of -6 and determined that yielded
19 percent impairment. He explained that the lowest value for a class 2 rating for a good result
was 21 percent right lower extremity impairment, which translated into 8 percent whole person
impairment.
In a report dated January 22, 2014, an OWCP medical adviser noted appellant’s history
of injury and treatment, and Dr. Chadha’s report. He utilized the A.M.A., Guides and
determined that appellant reached maximum medical improvement on November 11, 2013, the
date of Dr. Chadha’s evaluation. The medical adviser concurred with the rating of 21 percent
impairment. He explained that 21 percent was eight percent higher than the previously assessed
13 percent award.
Accordingly, on March 24, 2014 OWCP found that appellant had 21 percent impairment
of the right leg, for which it previously awarded a 13 percent schedule award. It therefore
granted appellant an additional eight percent permanent impairment of the right leg. The award
covered a period of 23.04 weeks from November 11, 2013 to April 21, 2014.
In an April 7, 2014 report, Dr. Robert M. Maywood, a Board-certified orthopedic
surgeon, noted appellant’s history of injury and treatment, which included knee arthroscopy and
arthroplasty. He examined appellant and provided findings which included slight diffuse
tenderness to palpation over the joint line with no patellofemoral crepitus with range of motion.
Dr. Maywood also found two centimeters of quadriceps atrophy. He utilized the A.M.A., Guides
and explained that for a partial or total knee replacement, there was a default class 2, 25 percent
grade C impairment based on page 511, Table 16-3. Dr. Maywood noted that, for functional
history, appellant had a moderate problem, due to some continued tenderness and range of
motion loss. He determined that clinical studies revealed a moderate problem due to significant
arthritis, the implant which was placed, and continued atrophy. Dr. Maywood opined that there
2

A.M.A., Guides 511.

2

was no change in the net adjustment formula and that appellant had 25 percent right leg
impairment.
On May 27, 2014 appellant requested reconsideration.
In a June 17, 2014 report, an OWCP medical adviser noted that Dr. Maywood
recommended a grade modifier 2 for functional history adjustment and advised that appellant
had a “moderate problem.” He explained that the report documented continued discomfort;
however, there was no documentation of any higher than grade 1 for functional history
adjustment, despite the statement of “moderate problems.” The medical adviser explained that
he would recommend a grade modifier 1 or a -1 net adjustment for functional history adjustment.
Regarding a physical examination adjustment, he indicated that Dr. Maywood noted slight
diffuse tenderness to palpation over the joint line and two centimeters of quadriceps atrophy.
The medical adviser determined that appellant would qualify for a grade modifier 2 or a 0 net
adjustment. He noted that clinical studies adjustment was utilized for class placement and was
nonapplicable. The medical adviser opined that the total net adjustment would be -l and this
would move the impairment into a class 2, Category B or a 23 percent lower extremity
impairment. He noted that he disagreed with Dr. Maywood over the functional history grade
modifier and opined that he would assess 23 percent impairment instead of 25 percent
impairment. The medical adviser explained that the date of maximum medical improvement
remained the same, November 11, 2013, which was eight months following the March 25, 2013
uniarthroplasty. He explained that the increased award of two percentage points was due to the
documented two centimeters of quadriceps atrophy, qualifying for a grade modifier 2 for
physical examination.
In a July 15, 2014 decision, OWCP found that appellant had an additional two percent
impairment of the right leg for a total of 23 percent permanent impairment. The award covered a
period of 5.76 weeks from April 22 to June 1, 2014.
On September 5 and October 28, 2014 appellant requested reconsideration. He submitted
an August 25, 2014 report from Dr. Thomas Harris, an orthopedic surgeon, who noted
appellant’s history, which included a right knee arthroscopy with medial and lateral
meniscectomy and a right knee unicompartmental arthroplasty. Dr. Harris determined that
x-rays of the right knee revealed a partial knee replacement with hardware in good position. He
provided findings which included: intermittent aching right knee pain in the category of 2 out of
10, with 10 being incapacitated. Dr. Harris noted that appellant rated his pain with activity as
three which increased with walking, standing, kneeling, squatting and stairs and decreased with
sifting, rest, and ice. Appellant also complained of weakness. Right knee examination showed
1+ knee effusion without erythema; mild tenderness to palpation along the patellofemoral joint
line and medial joint line; and no tenderness along the lateral joint line and no crepitus with
range of motion. Dr. Harris utilized the A.M.A., Guides and referred to page 511, Table 16-3,
Osteotomy. He opined that appellant had 25 percent right lower extremity impairment as a result
of his unicompartmental or partial total knee arthroplasty.
In a November 26, 2014 report, an OWCP medical adviser noted appellant’s history of
injury and treatment and reviewed Dr. Harris’ August 25, 2014 report. He noted findings
reported by Dr. Harris and the physician’s recommendation for a class 2 -- 25 percent
impairment rating. The medical adviser explained that Dr. Harris’ report did not document the
3

various adjustment grid ratings. He referred to Table 16-3, Knee Regional Grid-Lower
Extremity Impairment, and explained that there would be a 25 percent default rating for status
post total knee replacement with a “good result” (good position, stable, functional). The medical
adviser advised that noting functional history adjustment there would be a grade modifier 1 or
a -l net adjustment. He explained that, for the physical examination adjustment, appellant
qualified for a grade modifier 1 or a -1 net adjustment. The medical adviser explained that the
clinical studies adjustment was nonapplicable as it was utilized for class placement. He
determined that the total net adjustment would be -2 and this would move the impairment into a
class 2, Category A or a 21 percent leg impairment. The medical adviser explained that this was
lower than the previously assessed 23 percent.
By decision dated December 5, 2014, OWCP denied modification of the prior decision.
It found that the evidence was not sufficient to modify the prior decision.
LEGAL PRECEDENT
The schedule award provision of FECA,3 and its implementing federal regulations,4 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.5 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.6
For decisions issued after May 1, 2009, the sixth edition will be used.7
In addressing lower extremity impairments, the sixth edition requires identifying the
impairment Class of Diagnosis condition (CDX), which is then adjusted by grade modifiers
based on Functional History (GMFH), Physical Examination (GMPE), and Clinical Studies
(GMCS).8 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).9
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with OWCP’s medical adviser
providing rationale for the percentage of impairment specified.10
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id. at § 10.404(a).

6

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

7

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

8

A.M.A., Guides 494-531; see J.B., Docket No. 09-2191 (issued May 14, 2010).

9

Id. at 521.

10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013).

4

ANALYSIS
OWCP accepted appellant’s traumatic injury claim for tear of the medial meniscus of the
right knee. Appellant underwent two authorized surgeries, the most recent of which was a right
medial compartment uniarthroplasty, partial knee replacement on March 25, 2013. OWCP
granted appellant right leg schedule awards for a total of 23 percent permanent impairment.
Appellant requested reconsideration.
Appellant provided an August 25, 2014 report from Dr. Harris who determined that
appellant had 25 percent impairment of the right leg and referred to Table 16-3 of the A.M.A.,
Guides and the section for osteotomy and knee replacement.11 He opined that appellant’s
impairment was a result of his unicompartmental or partial total knee arthroplasty. However, the
Board notes that he did not address grade modifiers or application of the net adjustment formula
in determining the 25 percent impairment rating. As Dr. Harris did not adequately explain how
he used the A.M.A., Guides to rate appellant’s right leg impairment, his opinion is of diminished
probative value.12
In a November 26, 2014 report, an OWCP medical adviser noted appellant’s history and
reviewed Dr. Harris’ August 25, 2014 report. He noted Dr. Harris’ findings and indicated that
the report did not document the grade modifiers used to make adjustments within the regional
knee grid. The medical adviser used Dr. Harris’ findings and, under the Knee Regional Grid,
Table 16-3, identified a class 2, 25 percent default value for a status post total knee replacement
with a “good result” (good position, stable, functional). For functional history and physical
examination adjustments, he assigned a grade modifier 1. The medical adviser explained that
clinical studies adjustment was not as it was utilized for class placement.13 Applying the net
adjustment formula resulted in an adjustment of -2, which resulted in a grade adjustment from C
to A.14 The corresponding upper extremity impairment for a class 2, grade A is 21 percent.15
The Board finds that OWCP medical adviser properly applied the A.M.A., Guides to rate
impairment to appellant’s right leg impairment based on the findings in Dr. Harris’ report.
Appellant has not submitted any current medical evidence in conformance with the A.M.A.,
Guides to support a greater impairment.
On appeal appellant argues that he should have received a 25 percent impairment based
upon his physician’s findings. However, as noted above, Dr. Harris’ report did not comport with
the A.M.A., Guides. Appellant may request a schedule award or increased schedule award based

11

A.M.A., Guides 511.

12

See J.G., Docket No. 09-1128 (issued December 7, 2009) (an attending physician’s report is of little probative
value where the A.M.A., Guides are not properly followed).
13

See A.M.A., Guides 515-16 (if a grade modifier, or nonkey factor, was used for primary placement in the
regional grid, it may not be used again in the impairment calculation).
14

Net Adjustment = (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX). Section 15.3d, A.M.A., Guides 521.
Here, the CDX is 2 and clinical studies are not applicable. Thus, application of the formula results in: (1 - 2) + (1 2) = -2.
15

Supra note 11.

5

on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he has
more than 23 percent permanent impairment of his right lower extremity, for which he received
schedule awards.
ORDER
IT IS HEREBY ORDERED THAT the December 5, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 13, 2015
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE INTERIOR, BUREAU )
OF LAND MANAGEMENT, Boise, ID, Employer )
__________________________________________ )
B.H., Appellant

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

Docket No. 08-1922
Issued: January 21, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 30, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ April 29, 2008 merit decision concerning his entitlement to schedule
award compensation for hearing loss and the Office’s June 18, 2008 nonmerit decision denying
his request for further review of the merits of his claim. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3(d)(2), the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he has
more than a 32 percent hearing loss, for which he received schedule awards; and (2) whether the
Office properly denied appellant’s request for further review of the merits of his claim pursuant
to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
In late 1988, the Office accepted that appellant, then a 35-year-old motor vehicle
operator, sustained an employment-related binaural sensorineural hearing loss due to exposure to

noise at work, including noise from jet engines and motor vehicles. It paid him schedule award
compensation for a 17 percent binaural hearing loss. Appellant continued to work for the
employing establishment and claimed that his continued exposure to hazardous noise at work
had caused his hearing to worsen.1
The Office referred appellant to Dr. Arthur C. Jones, a Board-certified otolaryngologist,
for otologic and audiologic testing. In reports dated March 8 and October 30, 2007, Dr. Jones
diagnosed binaural sensorineural hearing loss and noted that appellant’s hearing loss had
progressively worsened over the years.2 He indicated that this worsening was due to continued
exposure to hazardous noise at work. Testing for the left ear at the frequency levels of 500,
1,000, 2,000 and 3,000 cps revealed decibel losses of 10, 50, 60 and 65 respectively and testing
for the right ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cps revealed decibel
losses of 20, 45, 60 and 60 respectively.
On January 7, 2008 Dr. Morley Slutsky, a Board-certified occupational medicine
physician who served as an Office medical adviser, reviewed the medical evidence of record
including the evaluation of Dr. Jones. He calculated that appellant sustained a 31.9 percent
binaural hearing loss which he rounded up to 32 percent.3 In an April 17, 2008 letter, appellant
argued that he should be compensated for a 60 percent binaural hearing loss. In an April 29,
2008 decision, the Office granted him an additional schedule award for a 15 percent binaural
hearing loss such that he received schedule awards for a 32 percent binaural hearing loss. The
award ran for 30 weeks from March 8 to October 3, 2007.
On June 4, 2008 appellant requested reconsideration of his claim. In a letter of the same
date, he argued that he was entitled to receive schedule award compensation for a 60 percent
binaural hearing. In a June 18, 2008 decision, the Office denied appellant’s request for further
review of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act4 and its
implementing regulation5 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
1

Appellant submitted several audiograms dated between November 2003 and June 2006, but none of these
audiograms were certified by a physician as accurate.
2

Dr. Jones had performed testing on appellant on March 8, 2007 but the testing did not include evaluation at the
3,000 cycles per second (cps) level and he performed additional testing on October 30, 2007.
3

Dr. Slutsky determined that appellant had a 31.875 monaural hearing loss in each ear.

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404 (1999).

2

uniform standards applicable to all claimants. The American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides) has been adopted by the implementing
regulation as the appropriate standard for evaluating schedule losses.6
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.7 Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at
each frequency are added up and averaged.8 Then, the “fence” of 25 decibels is deducted
because, as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in
the ability to hear everyday speech under everyday conditions.9 The remaining amount is
multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss.10 The binaural
loss is determined by calculating the loss in each ear using the formula for monaural loss; the
lesser loss is multiplied by five, then added to the greater loss and the total is divided by six to
arrive at the amount of the binaural hearing loss.11 The Board has concurred in the Office’s
adoption of this standard for evaluating hearing loss.12
ANALYSIS -- ISSUE 1
The Office medical adviser reviewed the otologic and audiologic testing performed on
appellant by Dr. Jones, a Board-certified otolaryngologist, and properly applied the Office’s
standardized procedures to this evaluation. Testing for the left ear at the frequency levels of 500,
1,000, 2,000 and 3,000 cps revealed decibel losses of 10, 50, 60 and 65 respectively. These decibel
losses were totaled at 185 decibels and were divided by 4 to obtain the average hearing loss of
46.25 decibels. This average loss was then reduced by 25 decibels (25 decibels being discounted
as discussed above) to equal 21.25 which was multiplied by the established factor of 1.5 to
compute a 31.875 percent hearing loss in the left ear. Testing for the right ear at the frequency
levels of 500, 1,000, 2,000 and 3,000 cps revealed decibel losses of 20, 45, 60 and 60 respectively.
These decibel losses were totaled at 185 decibels and were divided by 4 to obtain the average
hearing loss of 46.25 decibels. This average loss was then reduced by 25 decibels (25 decibels
being discounted as discussed above) to equal 21.25 which was multiplied by the established factor
of 1.5 to compute a 31.875 percent hearing loss in the right ear. To compute the binaural hearing
loss, Dr. Slutsky took the 31.875 loss in the left ear, multiplied it by the established factor of 5,13
6

Id.

7

A.M.A., Guides 224-25 (4th ed. 1993); A.M.A., Guides at 245-54 (5th ed. 2001).

8

Id.

9

Id.

10

Id.

11

Id.

12

Donald Stockstad, 53 ECAB 301 (2002); petition for recon. granted (modifying prior decision), Docket No. 011570 (issued August 13, 2002).
13

The formula provides that the lesser hearing loss is multiplied by the factor of five, but given that appellant’s
hearing loss was equal in each ear it was immaterial which hearing loss Dr. Slutsky chose to multiply by the factor
of five.

3

and added this figure to the 31.875 percent loss in the right ear. This sum was divided by the
established factor of 6 to calculate a 31.9 percent binaural hearing loss which was rounded up to 32
percent.
On appeal, appellant contends that the schedule award he received was not adequate
compensation for his binaural hearing loss. The schedule award provision of the Act provides
for compensation to employees sustaining permanent impairment from loss of use of specified
members of the body.14 The Act establishes a maximum of 200 weeks of compensation as the
award for total binaural hearing loss.15 A partial loss of hearing is compensated at a
proportionate rate,16 so appellant’s award of compensation for a total 32 percent binaural hearing
loss entitled him to 32 percent of 200 weeks of compensation, or 64 weeks of compensation.
The record indicates that appellant has already received this amount of compensation.17 Because
appellant has been fully compensated for his 32 percent binaural hearing loss and his condition
has not worsened since that time under the Office’s standards for evaluating hearing loss, he is
not entitled to any additional compensation.18
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Act,19 the Office’s regulations provide that the evidence or argument submitted by a claimant
must: (1) show that the Office erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by the Office; or (3) constitute
relevant and pertinent new evidence not previously considered by the Office.20 To be entitled to
a merit review of an Office decision denying or terminating a benefit, a claimant also must file
his application for review within one year of the date of that decision.21 When a claimant fails to
meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.22 The Board has held that the submission of evidence
14

5 U.S.C. § 8107(c).

15

Id. at § 8107(c)(13)(B).

16

Id. at § 8107(c)(19).

17

Appellant already received compensation for a 17 percent binaural hearing loss prior to receiving an additional
award for a 15 percent binaural hearing loss.
18

Appellant would not receive greater compensation for his 31.875 percent monaural loss in each ear. This is
because total monaural hearing loss only entitles a claimant to 52 weeks of compensation for each ear. Calculating
appellant’s entitlement to compensation due to his partial monaural loss (multiplying his 31.875 percent monaural
loss in each ear times 52 weeks) and adding the resultant figures would not yield greater compensation than
calculating his binaural hearing loss. See 5 U.S.C. § 8107(c)(13)(A).
19

Under section 8128 of the Act, “[t]he 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).
20

20 C.F.R. § 10.606(b)(2).

21

Id. at § 10.607(a).

22

Id. at § 10.608(b).

4

or argument which repeats or duplicates evidence or argument already in the case record does not
constitute a basis for reopening a case.23
ANALYSIS -- ISSUE 2
In support of his June 4, 2008 reconsideration request, appellant submitted a letter in which
he argued that he was entitled to receive schedule award compensation for a 60 percent binaural
hearing. The advancement of this claim would not require reopening his claim for review on the
merits because he had previously submitted this argument to the Office and the Board has held that
the submission of evidence or argument which repeats or duplicates evidence or argument already
in the case record does not constitute a basis for such a reopening.24
Appellant has not established that the Office improperly denied his request for further
review of the merits of its April 29, 2008 decision under section 8128(a) of the Act, because he
did not submit evidence or argument showing that the Office erroneously applied or interpreted a
specific point of law, advancing a relevant legal argument not previously considered by the
Office, or constituting relevant and pertinent new evidence not previously considered by the
Office.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he has
more than a 32 percent hearing loss, for which he received schedule awards. The Board further
finds that the Office properly denied his request for further review of the merits of his claim
pursuant to 5 U.S.C. § 8128(a).

23

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

24

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
June 18 and April 29, 2008 decisions are affirmed.
Issued: January 21, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

)
)
)
)
)
)
)
)

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

Docket No. 15-0748
Issued: June 22, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 12, 2015 appellant, through counsel, filed a timely appeal from a
September 29, 2014 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). As more than 180 days elapsed between the last merit decision of OWCP dated,
July 1, 2014, to the filing of this appeal, the Board lacks jurisdiction to review the merits of this
case pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3.2
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).

1

5 U.S.C. § 8101 et seq.

2

See 20 C.F.R. § 501.3(e).

On appeal, counsel contends that Dr. Benjamin A. Goldberg, an attending Board-certified
orthopedic surgeon, provided a comprehensive narrative report providing an unequivocal opinion
with the requisite medical rationale that appellant’s work duties, as set forth in her October 15,
2013 statement, contributed to her right shoulder condition.
FACTUAL HISTORY
This case has previously been before the Board on several occasions. In decisions dated
February 28, 2007,3 October 15, 2009,4 and August 10, 2011,5 the Board affirmed OWCP’s
denial of appellant’s occupational disease claim for a right shoulder injury and denial of her
request for reconsideration without a merit review. The Board found that she did not submit
sufficient medical evidence establishing a causal relationship between the accepted employment
factors and the claimed injury. The Board also found that the evidence submitted in support of
appellant’s request for reconsideration did not meet any of the three criteria for warranting a
merit review of her claim. The relevant facts are set forth below.
On August 29, 2006 appellant, then a 50-year-old casual clerk, filed an occupational
disease claim alleging that on July 20, 2005 she first became aware of her right shoulder injury.
She further alleged that on April 6, 2006 she first realized that her condition was caused or
aggravated by her federal employment.
Following issuance of the Board’s August 10, 2011 decision, appellant, through counsel
and by letter dated September 11, 2011, requested reconsideration before OWCP.
In a September 6, 2011 medical report, Dr. Goldberg found that appellant had a rotator
cuff tear of the right shoulder that required surgery. He opined that the diagnosed condition was
causally related to her employment.
In an October 25, 2011 decision, OWCP denied modification of its denial of appellant’s
claim for an occupational disease. It found that Dr. Goldberg provided no rationale explaining
how the established work duties caused or aggravated the claimed right shoulder injury.
By letter dated November 30, 2011, appellant, through counsel, requested reconsideration
and submitted additional medical evidence. In a November 30, 2011 report, Dr. Goldberg
provided a history that she was a fairly young lady who had a rotator cuff tear. Appellant
reported pushing heavy equipment and lifting heavy sacks. She recalled an event where she
sustained a shoulder injury. Based upon this history and the presence of a full thickness rotator
cuff tear, Dr. Goldberg opined that appellant’s right shoulder condition and need for surgery
were caused by an injury she sustained while working at the employing establishment. He stated
that, although rotator cuff tears could be due to a degenerative process, this was less likely based
on her history and young age.
3

Docket No. 07-1968 (issued December 28, 2007).

4

Docket No. 09-801 (issued October 15, 2009).

5

Docket No. 11-271 (issued August 10, 2011).

2

In an August 26, 2013 decision, OWCP denied modification of the October 25, 2011
decision. It found that Dr. Goldberg’s November 30, 2011 report was not comprehensive as he
did not describe appellant’s symptoms, objective test results, and medical treatment provided. In
addition, he did not explain how he arrived at his opinion on causal relationship.
In a December 5, 2013 letter, appellant’s counsel requested reconsideration and
submitted additional medical evidence. In a November 25, 2013 report, Dr. Goldberg reviewed
appellant’s medical records and her declaration of her work duties, a description of a mail
handler position, and documents from the Office of Safety and Health Administration (OSHA)
regarding heavy lifting. He reiterated his diagnosis of right rotator cuff tear, and noted that the
condition was surgically repaired on April 20, 2010 and resulted in overall good relief of pain
with mild weakness and stiffness. Dr. Goldberg opined that the right shoulder condition was
caused, accelerated, and precipitated by appellant’s work duties. He stated that repeatedly lifting
more than 70 pounds was a competent etiology of her diagnoses. Dr. Goldberg further stated
that appellant’s description of this work activity exceeded OSHA guidelines. He reiterated his
statement that a rotator cuff tear for someone of appellant’s age was rarely caused by
degeneration and more likely attributed to repetition and excessive tendon overload.
Dr. Goldberg cited OSHA report which indicated that shorter mail handlers (such as appellant
who was 5 feet 4 inches tall) were more susceptible to shoulder injuries. In a November 25,
2013 work capacity evaluation, he stated that she could not perform her usual job, but she could
work eight hours a day with restrictions.
In a February 13, 2014 decision, OWCP denied modification of the August 26, 2013
decision. It found that Dr. Goldberg’s November 25, 2013 report was insufficient to establish
causal relationship because it was not based on an accurate account of appellant’s work duties,
noting that she worked as a casual clerk and not a mail handler. OWCP further found that his
report was insufficient to establish her claim as the rationale he provided in support of his
opinion on causal relationship was based on the lack of a correlation between her age and
degenerative etiology which was found to be of diminished probative value by the Board’s
August 10, 2011 decision. It found that Dr. Goldberg’s use of similar rationale in citing a
positive correlation between short mail handlers and shoulder problems was also of limited
probative value. OWCP noted that appellant’s declaration, which was presumably a description
of her casual clerk activities, was not contained in the record and advised that if she wished to
pursue her claim, she could arrange for submission of her declaration.
By letter dated March 31, 2014, appellant’s counsel requested reconsideration. In an
October 15, 2013 declaration, appellant described her claimed injury and mail handler work
duties. She stated that the onset of her injuries started around 2000 to 2005, with on and off pain.
Appellant loaded and unloaded trays of mail, parcels, and books onto a belt and threw these
items into containers and hampers. This was stressful as she used her dominant arm 8 hours a
day and sometimes 12 hours a day during overtime work. Appellant experienced neck and
shoulder pain while loading and unloading 70-pound sacks filled with books and heavy bundles
of magazine wrappings. She pushed and lifted up to 1,100 pounds from a moving dolly that
weighed 400 pounds and held 30 tubs weighing 35 pounds each. When appellant stopped keying
she had to turn, twist, and aim to throw off heavy bundles of books and magazines. She did a lot
of overhead throwing, stacking, and loading with cages being six feet tall and she being five feet
four inches tall.

3

Hospital records included Dr. Goldberg’s April 20, 2010 report which described
appellant’s right shoulder surgery performed on that date.
In a July 1, 2014 decision, OWCP denied modification of the February 13, 2014 decision.
It again found that Dr. Goldberg’s opinion on causal relationship was not based on an accurate
account of appellant’s work duties. OWCP further found that her statement of her work duties
was not based on a factual history of her casual clerk work duties. It noted that the employing
establishment had not commented on appellant’s work duties.
In an August 28, 2014 letter, appellant’s counsel requested reconsideration. He
contended that the accompanying witness statements supported appellant’s declaration of her
casual clerk duties. In narrative statements dated August 14 and 20, 2014, appellant’s
coworkers, Marjorie Hamlin and Denee Sipp, respectively, described appellant’s repetitive work
duties as a casual clerk and mail handler. An employing establishment document, which stated
that it was not an official job description, provided a general summary of the duties of a mail
handler that was designed to assist treating physicians in their recommendations for appropriate
work restrictions.
In a September 29, 2014 decision, OWCP denied reconsideration of the merits of
appellant’s claim. It found that the evidence submitted was not relevant to the medical issue of
whether she sustained a medical condition causally related to the accepted employment factors.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128 of FECA,6
OWCP 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.7 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.8 Section 10.608(b) of the implementing regulations state that any
application for review that does not meet at least one of the requirements listed in 20 C.F.R.
§ 10.606(b)(3) will be denied by OWCP without review of the merits of the claim.9
ANALYSIS
On August 28, 2014 appellant disagreed with OWCP’s July 1, 2014 decision, denying her
claim for an occupational disease. She requested reconsideration. The underlying issue on
reconsideration is medical in nature.
6

Supra note 1. Under section 8128 of FECA, the Secretary of Labor may review an award for or against
payment of compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
7

20 C.F.R. § 10.606(b)(3).

8

Id. at § 10.607(a).

9

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

4

The Board finds that appellant did not show that OWCP erroneously applied or
interpreted a specific point of law. Moreover, she did not advance a relevant legal argument not
previously considered.
The Board also finds that appellant did not submit relevant or pertinent new evidence not
previously considered. Appellant submitted statements from Ms. Hamlin and Ms. Sipp, and an
employing establishment document which described appellant’s casual clerk and mail handler
duties. The factual existence of appellant’s work-related duties is not in dispute as these work
factors have been accepted. The claim was denied due to insufficient medical evidence on causal
relationship; medical evidence addressing how the accepted employment factors caused or
aggravated a diagnosed medical condition.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent new evidence not previously considered by OWCP. Pursuant to 20
C.F.R. § 10.608, OWCP properly denied merit review.
On appeal, counsel contended that Dr. Goldberg provided a comprehensive narrative
report providing an unequivocal opinion with the requisite medical rationale that appellant’s
work duties, as set forth in her October 15, 2013 statement, contributed to her right shoulder
condition. However, the Board lacks jurisdiction to reach a substantive evaluation of this
medical evidence. The issue on appeal is whether appellant submitted sufficient evidence to
warrant reopening of her claim for a merit review under 20 C.F.R. § 10.606(b)(3). A merit
review would include the evaluation of Dr. Goldberg’s report. Because appellant failed to meet
any of the three regulatory criteria which are the threshold for reopening a claim, she was not
entitled to further merit review of her claim.
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).

5

ORDER
IT IS HEREBY ORDERED THAT the September 29, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 22, 2015
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Charlotte, NC,
Employer
__________________________________________

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

Docket No. 11-1236
Issued: December 9, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 26, 2011 appellant, through his attorney, filed a timely appeal from a
February 4, 2011 decision of the Office of Workers’ Compensation Programs (OWCP) denying
his request for reconsideration without further merit review. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
this decision. Because more than 180 days elapsed from August 3, 2010, the date of the most
recent merit decision, to the filing of this appeal, the Board lacks jurisdiction to review the merits
of the case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. On August 3, 2010 the Board affirmed
OWCP’s September 28, 2009 decision, which accepted that appellant conducted route
inspections in 2008 but denied his occupational disease claim on the basis that the medical
evidence did not sufficiently establish that his work activity aggravated a preexisting spinal
injury.2 The facts of the case as set forth in the Board’s prior decision are hereby incorporated
by reference.
Appellant’s counsel requested reconsideration before OWCP on January 19, 2011
arguing that the prior disallowance of the claim was contrary to fact and law. He resubmitted a
copy of an August 6, 2009 report from Dr. Hadijatou Jarra, a Board-certified family practitioner.
By decision dated February 4, 2011, OWCP denied appellant’s reconsideration request,
finding that he did not present legal contentions or pertinent new evidence warranting further
merit review.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
OWCP’s regulations provide that the evidence or argument submitted by a claimant must either:
(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 Where the request for
reconsideration fails to meet at least one of these standards, OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.5
ANALYSIS
By decision dated August 3, 2010, the Board accepted that appellant conducted route
inspections in 2008, but found that he did not meet his burden of proof as the medical evidence
did not sufficiently demonstrate that these work factors aggravated a back condition. On
January 19, 2011 appellant’s counsel timely requested reconsideration before OWCP and
submitted a legal contention and medical evidence.
The Board finds that OWCP properly denied appellant’s request for reconsideration
without further merit review. Counsel argued that OWCP’s prior disallowance was contrary to
fact and law. This contention lacked any assertion of an adequate legal premise having some
reasonable color of validity.6 Appellant neither showed that OWCP erroneously applied or
2

Docket No. 10-200 (issued August 3, 2010).

3

5 U.S.C. § 8128(a).

4

E.K., Docket No. 09-1827 (issued April 21, 2010). See 20 C.F.R. § 10.606(b)(2).

5

L.D., 59 ECAB 648 (2008). See 20 C.F.R. § 10.608(b).

6

See Charles A. Jackson, 53 ECAB 671 n.14 (2002); Daniel O’Toole, 1 ECAB 107 (1948).

2

interpreted a specific point of law nor advanced a relevant legal argument not previously
considered by OWCP.
Appellant included an August 6, 2009 report from Dr. Jarra that was previously received
and considered by OWCP. The submission of evidence that repeats or duplicates evidence
already included in the case record does not constitute a basis for reopening a case.7 Because
appellant failed to meet one of the standards enumerated under section 8128(a) of FECA, he was
not entitled to further merit review of his claim.
Counsel argues on appeal that the February 4, 2011 decision was contrary to fact and law.
As noted, appellant did not offer a valid legal contention or pertinent evidence not previously
considered by OWCP. Therefore, OWCP properly denied the request for reconsideration.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the February 4, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 9, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7

Edward W. Malaniak, 51 ECAB 279 (2000).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.C., Appellant
and
DEPARTMENT OF AGRICULTURE,
NATURAL RESOURCES CONSERVATION
SERVICE, Albany, NY, Employer
__________________________________________

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Appearances:
Stephanie N. Leet, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1158
Issued: November 20, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 4, 2017 appellant, through counsel, filed a timely appeal from a November 30,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective January 10, 2016 because she no longer had residuals
of her February 15, 1996 employment injury.
FACTUAL HISTORY
On March 13, 1996 appellant, then a 38-year-old water quality liaison, filed a traumatic
injury claim (Form CA-1) alleging that on February 15, 1996 she sustained injury at work in the
form of concussion, headaches, nausea, contusions (head, neck, and back), and bruises of many
locations. She indicated that when she was a passenger in a vehicle stopped at a red light, another
vehicle failed to brake and hit the vehicle from behind. Appellant stopped work on
February 20, 1996.3
The findings of February 15, 1996 x-ray testing of appellant’s cervical spine, left wrist, and
lumbar spine showed normal results. A February 29, 1996 magnetic resonance imaging (MRI)
scan of her cervical spine contained an impression of straightening of the usual cervical lordotic
curve in an otherwise normal MRI scan of the cervical spine.
On May14, 1996 OWCP accepted appellant’s claim for a cervical sprain.
A September 19, 1996 MRI scan of appellant’s lumbar spine was found as essentially
normal with minimal anterior disc space narrowing at L4-5 level with flexion. The findings of
September 19, 1996 x-rays of her lumbar spine was found to be essentially normal with minimal
disc space narrowing at L4-5.
Appellant began performing light-duty work on a full-time basis on September 10, 1999.
She stopped work on February 4, 2000.4
In a June 14, 2000 report, Dr. John H. Kavanaugh, an attending Board-certified orthopedic
surgeon, indicated that appellant presented complaining of neck and back pain. He noted that
recent nerve conduction velocity studies were abnormal with respect to appellant’s left upper
extremity. Dr. Kavanaugh diagnosed chronic cervical and lumbar strains with post-traumatic
fibromyalgia and indicated that she was totally disabled from work.
On May 1, 2002 Dr. Kavanaugh diagnosed acute chronic neck and back strains with
degenerative disc disease, and he opined that appellant’s symptoms were due to the February 15,
1996 employment injury. He noted that she was totally disabled due to the February 15, 1996
employment injury.
Appellant continued to remain off work and receive total disability compensation. The
record contains few reports of medical care during the remainder of the decade. In an April 6,
3

Appellant returned to light-duty work on a part-time basis on March 9, 1997.

4

OWCP paid appellant disability compensation on the periodic rolls beginning June 16, 2002.

2

2011 report, Dr. Kavanaugh noted that appellant presented complaining of neck and back pain,
and he indicated that her physical examination revealed limited range of motion of her back
without neurological deficits. He advised that she was 100 percent disabled due to her
February 15, 1996 employment injury.
In a June 2, 2014 report, Dr. Robert R. Reppy, an attending Board-certified family
practitioner, noted that appellant presented for an initial evaluation complaining of neck pain
radiating down into her hands and low back pain radiating down into her left foot. Appellant
reported that she was involved in a motor vehicle accident at work on February 15, 1996.
Dr. Reppy detailed physical examination findings from June 2, 2014, noting that she had reduced
range of motion of her cervical spine, spasticity of her paracervical and trapezius muscles
bilaterally, and 5/5 strength in her upper extremities. Appellant also exhibited reduced range of
motion of her lumbar spine and spasticity of her paralumbar musculature. Dr. Reppy diagnosed
chronic cervical sprain/strain, cervical disc disease with radiculopathy, chronic lumbar
sprain/strain, and left-sided sciatica. He indicated that appellant was permanently disabled due to
the injury she sustained at work on March 4, 2003.5
On June 4, 2015 OWCP referred appellant for a second opinion examination with
Dr. Richard C. Smith, a Board-certified orthopedic surgeon. It requested that he provide an
opinion regarding whether she continued to have residuals of her February 15, 1996 employment
injury.
In a June 25, 2015 report, Dr. Smith discussed appellant’s factual and medical history and
noted that she presented chiefly complaining of left arm pain and neck pain. He reported the
findings of the physical examination he conducted on June 25, 2015, noting that her neck had no
tenderness to palpation or trigger points in various muscle groups, including the
sternocleidomastoid, supraclavicular fossa, trapezius, levator scapulae, and rhomboid muscle
groups. There also was no tenderness to palpation or trigger points in various bony processes of
the neck. Dr. Smith found that appellant had 5/5 strength in the bilateral upper extremity muscle
groups enervated by nerves associated with the C5 through T1 discs. The sensory examination in
appellant’s upper extremities yielded normal results.
Dr. Smith found that appellant had no ongoing residuals of the accepted cervical sprain she
sustained on February 15, 1996. He noted that the type of injury she sustained on February 15,
1996 typically resolved within six to eight weeks, and he advised that she had age-related
degenerative changes in her cervical spine. Dr. Smith opined that remaining medical problems
appellant had would be related to age and expected disc degeneration, rather than to the
February 15, 1996 motor vehicle accident. He indicated that the only injury she sustained in the
February 15, 1996 vehicular accident had been a soft tissue injury in the form of a cervical sprain,
which had fully resolved. Dr. Smith concluded that appellant had no residuals/disability due to
her February 15, 1996 employment injury.

5

The case record does not otherwise contain an indication that appellant sustained an injury on March 4, 2003. She
was not working for the employing establishment on March 4, 2003 as she receiving disability compensation at that
time.

3

Appellant submitted a September 30, 2015 report from Dr. Reppy who noted that she
presented for examination on that date with chief complaints of back, neck, and shoulder pain.
Dr. Reppy detailed range of motion findings for her cervical and lumbar spines and diagnosed
herniated discs with annular tears of L1-2 through L5-S1; facet arthropathy and forminal stenosis
at L4-5 and severe stenosis at L5-S1; anterolisthesis of C3 on C4 (grade 1); herniated disc with an
annular tear at C3-4; and central stenosis at C5-6. He opined that the list of diagnoses accepted as
related to the February 15, 1996 employment injury was inadequate, and noted that maintaining
appellant still had a sprain after 19 years was “ridiculous on the face of it.” In a September 30,
2015 document entitled “Petition to Amend Accepted Diagnoses,” Dr. Reppy indicated that the
current accepted diagnoses of cervical strain/sprain and lumbar sprain/strain should be dismissed.6
He asserted that the following diagnoses should be accepted as related to the February 15, 1996
employment injury: herniated discs with annular tears of L1-2 through L5-S1; anterolisthesis of
L5 on S1 (grade 1); lumbar facet arthropathy; lumbar stenosis at L4-5 and L5-S1; anterolisthesis
of C3 on C4 (grade 1); herniated disc with an annular tear at C3-4; and central stenosis at C5-6.
Dr. Reppy indicated that these conditions were diagnosed in August 29, 2014 MRI scans of
appellant’s cervical and lumbar spines. He noted that these conditions were “pathomechanically
related to work” and indicated that his opinion was based on the medical records and his own
examination.
In a November 18, 2015 letter, OWCP advised appellant of its proposed termination of her
wage-loss compensation and medical benefits. It informed her that the proposed action was
justified by Dr. Smith’s June 25, 2015 report. OWCP afforded appellant 30 days to submit
evidence and argument challenging the proposed termination action.
In a December 4, 2015 letter, appellant discussed her medical treatment since February 15,
1996 and argued that she continued to have disabling residuals of her February 15, 1996
employment injury, as evidenced by the reports of Dr. Reppy.
By decision dated December 21, 2015, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective January 10, 2016. It determined that the weight of
the medical opinion evidence rested with the second opinion of Dr. Smith. OWCP noted that in
his June 25, 2015 report he provided a well-rationalized opinion finding that appellant ceased to
have residuals of her February 15, 1996 employment injury. It noted that Dr. Reppy’s reports were
not well rationalized with respect to causal relationship.
On January 20, 2016 appellant requested a hearing with a representative of OWCP’s
Branch of Hearings and Review. During the hearing held on September 15, 2016, counsel argued
that Dr. Reppy’s September 30, 2015 reports showed that appellant continued to have disabling
residuals of her February 15, 1996 employment injury.
Appellant submitted January 6, February 24, and April 27, 2016 reports of Dr. Reppy. In
these reports, Dr. Reppy again asserted that the following diagnoses should have been accepted as
related to the February 15, 1996 employment injury: herniated discs with annular tears of L1-2
6

The Board notes that OWCP has not accepted any form of lumbar conditions related to the February 15, 1996
employment injury. Dr. Reppy indicated that to maintain that appellant still had a sprain/strain producing symptoms
defied “reason, common sense, and accepted community medical standards.”

4

through L5-S1; anterolisthesis of L5 on S1 (grade 1); lumbar facet arthropathy; lumbar stenosis at
L4-5 and L5-S1; anterolisthesis of C3 on C4 (grade 1); herniated disc with an annular tear at C34; and central stenosis at C5-6. In his February 24, 2016 report, he asserted that these types of
conditions were commonly sustained in motor vehicle accidents and that the diagnoses were
confirmed by 2014 MRI scans.
By decision dated November 30, 2016, OWCP’s hearing representative affirmed OWCP’s
December 21, 2015 decision. The hearing representative found that the weight of the medical
opinion evidence with respect to residuals of the February 15, 1996 employment injury rested with
Dr. Smith’s well rationalized June 25, 2015 report, and she therefore determined that OWCP’s
termination of appellant’s wage-loss compensation and medical benefits effective January 10,
2016 was proper. She indicated that the reports of Dr. Reppy were not well rationalized with
respect to causal relationship.
LEGAL PRECEDENT
Under FECA, once OWCP has accepted a claim it has the burden of proof to justify
termination or modification of compensation benefits.7 OWCP may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.8
OWCP’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.9
ANALYSIS
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective January 10, 2016 because she no longer had residuals
of her February 15, 1996 employment injury.
OWCP accepted that appellant sustained a cervical sprain due to a February 15, 1996 motor
vehicle accident at work and paid total disability compensation. It terminated her wage-loss
compensation and medical benefits effective January 10, 2016 based on the June 25, 2015 report
of Dr. Smith, an OWCP referral physician.
The Board finds that the weight of the medical evidence is represented by the thorough,
well-rationalized opinion of Dr. Smith. In his June 25, 2015 report, Dr. Smith provided an opinion
that appellant had no residuals/disability of her February 15, 1996 employment injury.
In his June 25, 2015 report, Dr. Smith detailed the findings of the physical examination he
conducted on that date, noting that appellant’s neck had no tenderness to palpation or trigger points
in various muscle groups and bony processes. He indicated that she had 5/5 strength in the bilateral
upper extremity muscle groups enervated by nerves associated with the C5 through T1 discs, and
he noted that the sensory examination in the upper extremities yielded normal results. Dr. Smith
7

I.J., 59 ECAB 408 (2008); Vivien L. Minor, 37 ECAB 541, 546 (1986).

8

Charles E. Minniss, 40 ECAB 708, 716 (1989).

9

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

5

found that appellant had no ongoing residuals of the accepted cervical sprain she sustained on
February 15, 1996. He noted that the type of injury she sustained on February 15, 1996 typically
resolved within six to eight weeks, and he advised that she had age-related degenerative changes
in her cervical spine. Dr. Smith indicated that the only injury appellant sustained in the
February 15, 1996 vehicular accident had been a soft tissue injury in the form of a cervical sprain,
which had fully resolved. He concluded that she had no residuals/disability due to her February 15,
1996 employment injury.
The Board has reviewed the opinion of Dr. Smith and notes that it has reliability, probative
value, and convincing quality with respect to its conclusions regarding the relevant issue of the
present case. Dr. Smith provided a thorough factual and medical history and accurately
summarized the relevant medical evidence.10 He provided medical rationale for his opinion by
explaining that appellant suffered a relatively minor injury in 1996, a cervical sprain, and that she
ceased to exhibit objective findings of the accepted employment injury. Dr. Smith further
explained that her continuing medical problems were related to age and expected disc
degeneration, rather than to the February 15, 1996 cervical sprain which had long since resolved.
Prior to termination of her compensation benefits effective January 10, 2016, appellant
submitted two September 30, 2015 reports of Dr. Reppy, and argued that these reports showed that
OWCP’s termination action was unjustified.11 The Board notes that, in these reports, he provided
an opinion that her February 15, 1996 cervical sprain had resolved. However, in one of the
September 30, 2015 reports, Dr. Reppy asserted that the following diagnoses should be accepted
as related to the February 15, 1996 employment injury: herniated discs with annular tears of L12 through L5-S1; anterolisthesis of L5 on S1 (grade 1); lumbar facet arthropathy; lumbar stenosis
at L4-5 and L5-S1; anterolisthesis of C3 on C4 (grade 1); herniated disc with an annular tear at
C3-4; and central stenosis at C5-6.
The Boards finds that Dr. Reppy’s opinion is of limited probative value with regard to
continuing residuals of the February 15, 1996 employment injury due to its lack of medical
rationale on causal relationship. Dr. Reppy opined that appellant had disabling residuals due to
multiple cervical conditions (other than cervical sprain) and multiple lumbar conditions, which he
opined were related to the February 15, 1996 employment injury. However, OWCP has not
accepted that these conditions were related to the February 15, 1996 employment injury.
Moreover, Dr. Reppy did not provide a rationalized medical opinion establishing causal
relationship between the additional diagnosed cervical/lumbar conditions and the February 15,
1996 employment injury.12 Such medical rationale is particularly necessary due to the fact that

10

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

11

On appeal, counsel also argues that Dr. Reppy’s reports show that OWCP’s termination action was improper.

12
Dr. Reppy merely noted that the additional conditions were “pathomechanically related to work” and indicated
that his opinion was based on the medical records and his own examination.

6

diagnostic testing of appellant’s cervical and lumbar spines obtained shortly after February 15,
1996 contained essentially normal results.13
CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective January 10, 2016 because she had no longer had
residuals of her February 15, 1996 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the November 30, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 20, 2018
Washington, DC

Christopher J. Godfrey, 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

13

See E.J., Docket No. 09-1481 (issued February 19, 2010) (finding that a report is of limited probative value
regarding causal relationship if it does not contain medical rationale explaining how an employment injury is related
to a given claimed condition). Appellant later submitted January 6, February 24, and April 27, 2016 reports in which
Dr. Reppy again asserted that the diagnoses he listed on September 30, 2015 should have been accepted as related to
the February 15, 1996 employment injury. In his February 24, 2016 report, Dr. Reppy noted that these types of
conditions were commonly sustained in motor vehicle accidents and that the diagnoses were confirmed by 2014 MRI
scans. However, these reports are of limited probative value regarding any existing employment-related residuals
because they lack adequate medical rationale with respect to causal relationship. See id.

7