United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.A., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Spokane, WA, Employer
__________________________________________

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

Docket No. 07-920
Issued: August 6, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 20, 2007 appellant filed a timely appeal from the December 11, 2006
nonmerit decision of the Office of Workers’ Compensation Programs denying her untimely
request for reconsideration and finding that it failed to establish clear evidence of error. Because
more than one year has elapsed between the last merit decision dated January 22, 2002 and the
filing of this appeal on February 20, 2007 the Board lacks jurisdiction to review the merits of
appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), but has jurisdiction over the
nonmerit issue.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.

FACTUAL HISTORY
On October 5, 2001 appellant, then a 49-year-old pharmacy technician, filed an
occupational disease claim alleging that on March 2, 2001 she first realized her cervical spine
condition was due to her hyperextending her neck to look at the computer. She stated that she
first became aware of her cervical condition on November 20, 2000.
By letter dated October 21, 2001, the Office informed appellant that the evidence was
insufficient to support her claim. It advised her as to the medical and factual evidence required
to support her claim. The Office provided appellant 30 days to submit additional evidence in
support of her claim.
In response, appellant submitted an October 19, 2001 report, progress notes for
September 2001 and an October 8, 2001 report and disability slip providing physical restrictions
by Richard H. Bale, a treating physician, reports dated September 5 and 25, October 8 and
November 20, 2001, by Dr. John J. Demakas, a treating Board-certified neurologist, an
August 15, 2001 magnetic resonance imaging (MRI) scan and a November 11, 2001 statement.
In her statement, appellant alleged that she was required to work at a nonergonomical worksite
appropriate for her height and use of bifocals. Appellant also alleged that her duties required
repetitive work and use of multiple work stations with outdated chairs. The repetitive duties
including bending her neck down while preparing medication, stoop and twisting.
On September 5, 2001 Dr. Demakas diagnosed cervical stenosis based upon a physical
examination and review of an August 15, 2001 MRI scan. In an October 8, 2001 report, he noted
that appellant continued to have arm symptoms and neck pain. Dr. Demakas discussed the
results of appellant’s MRI scan with her and “showed her the films demonstrating a rather large
central disc extrusion with a moderately severe stenosis at C5-6 and to a lesser extent at C6-7.”
He opined that appellant’s “job as a pharmacist probably contributed to this since apparently she
does a lot of lifting, bending, twisting and spends a fair amount of time with her head extended”
due to the computer placement. Specifically, Dr. Demakas concluded that appellant’s work
duties were a contributing factor of her condition. In a September 25, 2001 report, he reviewed
the diagnosis and surgical recommendation with her. On November 20, 2001 Dr. Demakas
diagnosed a herniated cervical disc and recommended C6-7 anterior cervical discectomy with
fusion.
In his October 19, 2001 report, Dr. Bale noted that appellant had no cervical problems
prior to November 2000. He reported that a November 20, 2000 physical examination revealed
tenderness to palpation. Appellant reported tingling feelings going down her arm and
paracervical neck pain. On July 13, 2001 Dr. Bale stated that they “discussed the relationship
between her increasing cervical neck condition and the ergonomics” at her workstation. A
September 5, 2001 MRI scan showed C5-6 mild moderate disc space narrow and some anterior
spurring, a C6-7 diffuse herniation resulting in cervical stenosis and C5-6 moderate central disc
extrusion with moderate stenosis.
On December 3, 2001 the employing establishment controverted appellant’s claim and
submitted information regarding her duties and the computer placement. The employing
establishment noted that a chair was not needed to view the computer as they were set on high

2

workstations. It noted that appellant was taken out of rotation and assigned to the window
workstation as this “was the best area of the pharmacy for her to work in as far as her injury was
concerned.” The employing establishment noted that appellant’s duties included some lifting,
bending and stooping and required mainly standing or walking.
On December 17, 2001 and January 7, 2002 appellant submitted a December 13, 2001
progress note by Dr. Bale and a November 20, 2001 report by Dr. Paul E. Russell, a treating
Board-certified family medicine practitioner, who diagnosed cervical disc disease and noted that
appellant stated that the condition was employment related.
By decision dated January 22, 2002, the Office denied appellant’s claim that her cervical
condition was sustained in the performance of duty. It found that the medical evidence
submitted by appellant failed to contain a rationalized opinion explaining how her condition was
causally related to the work factors she identified.
In a letter dated November 28, 2006, appellant’s counsel requested reconsideration. In
support of her request appellant submitted reports dated October 19, 2001 and September 30,
2002 by Dr. Bale and an October 8, 2001 report and December 4, 2002 surgical report by
Dr. Demakas. Her counsel argued that the Office “shirked its duty to develop” appellant’s claim
as it failed to follow the Office’s procedure manual regarding the development of the claim.
Specifically, appellant contended that the Office should have requested a supplemental report
from Dr. Bale according to section 2.810.5(b) of the procedure manual. She further contended
that the medical evidence submitted by appellant “established a prima facie case that required
further development” particularly as there was no contradictory evidence regarding causal
relationship.
In a September 30, 2002 report, Dr. Bale opined that appellant sustained an injury due to
her hyperextending her neck while performing her work duties. He also noted that her “holding
the [tele]phone between her head and shoulder while typing” aggravated her condition and
caused extreme pain. In concluding, Dr. Bale attributed appellant’s condition to her work
environment and job duties.
On December 4, 2002 Dr. Demakas performed anterior cervical disc removal surgery.
He diagnosed cervical degenerative disc disease with stenosis and spondylosis.
By decision dated December 11, 2006, the Office denied appellant’s request on the
grounds that it was not timely filed and did not present clear evidence of error.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act1 provides that the Office may review an
award for or against compensation upon application by an employee (or his or her representative)
who receives an adverse decision. The employee may obtain this relief through a request to the

1

5 U.S.C. §§ 8101 et seq.

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district Office. The request, along with the supporting statements and evidence, is called the
application for reconsideration.2
The application for reconsideration must set forth arguments and contain evidence that
either: (1) shows that the Office erroneously applied or interpreted a specific point of law;
(2) advances a relevant legal argument not previously considered by the Office; or (3) constitutes
relevant and pertinent new evidence not previously considered by the Office.3
A timely request for reconsideration may be granted if the Office determines that the
employee has presented evidence and/or argument that meets at least one of these standards. If
reconsideration is granted, the case is reopened and the case is reviewed on its merits.4 Where
the request is timely but fails to meet at least one of these standards, the Office will deny the
application for reconsideration without reopening the case for a review on the merits.5
Title 20 of the Code of Federal Regulations, section 10.607(b) provide that the Office
will consider an untimely application only if it demonstrates clear evidence of error by the Office
in its most recent merit decision. To establish clear evidence of error, a claimant must submit
evidence relevant to the issue which was decided by the Office. The evidence must be positive,
precise and explicit, and must manifest on its face that the Office committed an error. Evidence
which does not raise a substantial question concerning the correctness of the Office’s decision is
insufficient to establish clear evidence of error.6 It is not enough merely to show that the
evidence could be construed so as to produce a contrary conclusion. This entails a limited
review by the Office of how the evidence submitted with the reconsideration request bears on the
evidence previously of record and whether the new evidence demonstrates clear error on the part
of the Office. To show clear evidence of error, the evidence submitted must not only be of
sufficient probative value to create a conflict in medical opinion or establish a clear procedural
error, but must be of sufficient probative value to prima facie shift the weight of the evidence in
favor of the claimant and raise a substantial question as to the correctness of the Office’s
decision. The Board makes an independent determination of whether a claimant has submitted
clear evidence of error on the part of the Office such that the Office abused its discretion in
denying merit review in the face of such evidence.7
ANALYSIS
In its December 11, 2006 decision, the Office properly determined that appellant failed to
file a timely application for review. The Office rendered its most recent merit decision on
2

20 C.F.R. § 10.605.

3

20 C.F.R. § 10.606.

4

Donna L. Shahin, 55 ECAB 192 (2003).

5

20 C.F.R. § 10.608.

6

See Alberta Dukes, 56 ECAB ___ (Docket No. 04-2028, issued January 11, 2005); see also Leon J. Modrowski,
55 ECAB 196 (2004).
7

See Alberta Dukes, supra note 6.

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February 22, 2002. Appellant’s November 28, 2006 letter requesting reconsideration was
submitted more than one year after the February 22, 2002 merit decision and was, therefore,
untimely.
In accordance with internal guidelines and with Board precedent, the Office properly
performed a limited review to determine whether appellant’s application for review showed clear
evidence of error which would warrant reopening the case for further merit review under
section 8128(a). The Office reviewed the evidence submitted by appellant in support of her
application for review, but found that it did not clearly establish that the Office’s prior decision
was in error.
The Board finds that appellant did not establish clear evidence of error. Appellant’s
counsel contended before the Office that it erred in not requesting Dr. Bale to submit a
supplemental report according to section 2.810.5(b) of the procedure manual. She contended
that the medical evidence submitted by appellant “established a prima facie case that required
further development” particularly as there was no contradictory evidence regarding causal
relationship. Thus, it was clear error on the part of the Office when it failed to develop the
medical evidence.
Appellant’s assertions before the Office are without merit. The Board notes that it is
appellant’s burden to establish the essential elements of her claim by the submission of
appropriate evidence.8 The Office reviewed the evidence submitted by appellant and found that
it was insufficient to establish that her condition was causally related to the employment factors
identified by appellant. There is no evidence to suggest that the Office committed error when it
did not request Dr. Bale to submit a supplemental report. The Board notes that the clear
evidence of error standard is intended to be a difficult standard.9 As noted above, appellant must
submit evidence that proves, on its face, that the Office’s decision was clearly erroneous. Her
argument in her reconsideration request that the Office should have developed the evidence by
requesting Dr. Bale to submit a supplemental report does not raise a substantial question as to the
correctness of the Office’s decision.
Furthermore, the medical reports submitted on reconsideration, September 30, 2002
report by Dr. Bale and an October 8, 2001 report and December 4, 2002 surgical report by
Dr. Demakas, also do not establish clear evidence of error by the Office. As noted above, the
evidence submitted must be relevant to the issue which was decided by the Office. Here,
appellant’s claim was denied on the grounds that the medical evidence did not establish a causal
relationship between her diagnosed condition and employment factors. Accordingly, the
evidence submitted in support of the reconsideration request must address causal relationship and
be so persuasive that it shifts the weight of the evidence in favor of the claimant and raises a
substantial question as to the correctness of the Office’s decision. Evidence such as a detailed,
well-rationalized medical report, which if submitted before the denial was issued, would have
created a conflict in medical opinion requiring further development, is insufficient to show clear

8

See, e.g., Larry D. Dunkin, 56 ECAB ___ (Docket No. 04-1949, issued December 22, 2004).

9

See, e.g., James R. Mirra, 56 ECAB ___ (Docket No. 05-998, issued September 6, 2005).

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evidence of error.10 The October 8, 2001 report by Dr. Demakas and the October 19, 2001 report
by Dr. Bale were considered by the Office in its January 22 2002 decision and, thus, are
duplicative. Dr. Demakas, in his December 4, 2002 surgical report, does not render an opinion
on causal relationship. Dr. Bale, in his September 30, 2002 report, attributes appellant’s
condition to her employment duties and work environment, but provides no supporting rationale
explaining how her condition was aggravated by her employment duties. Accordingly, neither
Dr. Demakas’ nor Dr. Bale’s report is sufficient to establish clear evidence of error in the
Office’s January 22, 2002 merit decision. Appellant has submitted no other evidence sufficient
to shift the weight of the evidence in her favor and raise a substantial question as to the
correctness of the Office’s decision.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration as
the request was filed outside the one-year time limitation and did not establish clear evidence of
error.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 11, 2006 is affirmed.
Issued: August 6, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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Id.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.E., Appellant
and
U.S. POSTAL SERVICE, PRIORITY MAIL
CENTER, Detroit, MI, Employer
__________________________________________

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Appearances:
Faye L. Sanders, for the appellant
No appearance, for the Director

Docket No. 07-2227
Issued: March 19, 2008

Oral Argument February 20, 2008

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

JURISDICTION
On September 9, 2007 appellant, through her representative, filed a timely appeal of the
Office of Workers’ Compensation Programs’ merit decision dated September 14, 2006 finding
that she had not established disability for the period alleged. She also appealed a January 22,
2007 nonmerit decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merit and nonmerit issues of this case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof in establishing that she
was disabled from March 10, 2003 through April 22, 2004 due to her accepted condition of
temporary aggravation of asthma; and (2) whether the Office properly refused to reopen her case
for further consideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On March 7, 2003 appellant, then a 40-year-old clerk, filed a recurrence of disability
claim and alleged that on that date she sustained a recurrence of her August 1, 1978 employment

injury. She stated that her initial claim was accepted for occupational asthma and aggravation of
preexisting sarcoidosis and that she was limited to working in a dust-free environment.
Appellant stated that she attempted to work at her new assignment in the Air Mail Center on
March 7, 2003 and suffered a severe attack of asthma due to the dusty environment at the
employing establishment. On the reverse of the form, she indicated that following her initial
employment injury in 1978 she worked limited duty in the accounting payroll office and was
returned to her regular-duty assignment on March 1, 2003. Appellant submitted a notification
from the employing establishment dated February 21, 2003 that she was involuntarily reassigned
to the Priority Mail Center. On February 24, 2003 the employing establishment provided
appellant with a limited-duty assignment due to her August 1, 1978 employment injury
beginning March 1, 2003.
Dr. Richard H. Simon, a Board-certified internist of professorial rank, completed a report
on March 9, 2003 noting that appellant contacted his office on March 7, 2003 due to difficulty
with her cough. He had examined appellant on February 21, 2003. Appellant reported that her
cough was not preventing her from working when she was assigned to a relatively clean work
environment. Her work assignment then changed and when she reported to work at her new
assignment on March 7, 2003 she developed intractable coughing and left work. Dr. Simon
noted that appellant’s disability due to airway hyperreactivity was historically made worse by
exposure to dusty environments. In a note dated March 21, 2003, Dr. Simon noted examining
appellant on that date and reported her assessment that her new work environment had more dust
than her prior work area. He noted that appellant felt her cough worsened after a few minutes
exposure to the new environment and she was unable to continue her work. Dr. Simon stated
that appellant reported that her symptoms did not return to baseline for the remainder of that
date, but that her symptoms had currently returned to baseline. He stated, “My impression is that
[appellant] continues to have problems due to past lung damage from her sarcoidosis (no
evidence of progression) and her airway hyperreactivity. [Appellant] has consistently reported
that one of the triggers that worsen her cough is being in dusty environments.”
Appellant filed a second notice of recurrence of disability on March 31, 2003 alleging
that on that date she sustained a recurrence of disability due to her August 1, 1978 employment
injury. She stated that, following the acceptance of her August 1, 1978 claim, she was restricted
from work or exposure to extremely dusty environments. Appellant alleged that her recurrence
of disability was due to continuous exposure to an extremely dusty environment on March 31,
2003 which was detrimental to her pulmonary health.
On April 11, 2003 Dr. Simon noted that appellant reported to a new work site on
March 31, 2003 and experienced a marked increase in her cough. Appellant had to leave the
employing establishment due to her cough. Dr. Simon stated, “My impression is that [appellant]
continues to be plagued with severe coughing. By her reports it is triggered with exposures to
dust. Unfortunately, she has not been able to work at two different sites where she has been
assigned because of the coughing.”
In a letter dated June 25, 2003, the Office requested additional factual and medical
evidence in support of appellant’s claim for recurrence on March 7, 2003. The Office allowed
30 days for a response.

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By decision dated October 3, 2003, the Office denied appellant’s claim for a worsening
of her preexisting respiratory conditions based on her exposure to dust on March 7, 2003.1
Appellant requested an oral hearing on October 16, 2003. She testified at the oral hearing
on June 30, 2004. At that time, in support of her claim, appellant submitted additional medical
evidence including a report from Dr. Simon dated February 21, 2003 which diagnosed asthma
and sarcoidosis. Dr. Simon stated, “Patient is able to work as long as she is assigned to work
environment that is no more dusty than the current one. She will not be able to work if her
assignment places her in a more dusty site.” On October 10, 2003 Dr. Simon stated by
appellant’s history her cough was exacerbated by exposure to dust, cleaning solutions, fumes
including vehicular exhaust and cigarette smoke. He reviewed a report of particulate levels
submitted by the employing establishment and noted that other environmental triggers were still
possible. In a note dated February 6, 2004, Dr. Simon stated that appellant alleged her asthma
resulted in a cough when exposed to cold, fumes, perfume or dust. He opined that this was
consistent with her condition. By decision dated October 26, 2004, the hearing representative
noted that the Office had properly determined that appellant’s March 10, 2003 claim for a
recurrence was a claim for a new traumatic injury; Office claim number 092034867. She
remanded the case to the Office to secure additional evidence from the employing establishment
regarding appellant’s specific work environment on March 7, 2003 as well as to secure a second
opinion evaluation from a qualified physician on the issue of whether appellant’s work
environment on March 7, 2003 caused an aggravation of her underlying condition.
The Office referred appellant for a second opinion evaluation with Dr. Bruce M.
Niebylski, a Board-certified internist, on April 14, 2005. In a report dated May 18, 2005,
Dr. Niebylski noted that appellant had returned to work on April 22, 2004. He examined
appellant and diagnosed preexisting sarcoidosis with fibrotic lung disease and asthma.
Dr. Niebylski stated that appellant had experienced episodes of temporary aggravation due to
exposure to dust.2 He stated that the temporary aggravations would aggravate the symptoms, but
not worsen the underlying diagnosed conditions. Dr. Niebylski concluded, “It is possible that a
temporary aggravation occurred on March 7, 2003.” He recommended that appellant continue to
work in a dust free and fume free environment as a preventative measure as a permanent
restriction based on her conditions of sarcoidosis and asthma. The Office requested a
supplemental report on July 28, 2005. Dr. Niebylski responded on August 30, 2005 and opined
1

In a letter dated March 26, 2003, appellant objected to the employing establishment’s direction to report to the
Priority Mail Center effective March 29, 2003. She stated that conditions at the Priority Mail Center posed an
immediate threat to her present health condition and were not in compliance with her current and ongoing medical
restrictions. Appellant submitted a narrative statement dated September 29, 2003 and alleged that the employing
establishment failed to provide her with a job within her restrictions. She referenced claim number 0900465215. In
a decision dated October 3, 2003, the Office accepted that appellant sustained a temporary aggravation of
sarcoidosis and asthma, under claim numbers A9-440173 and A9-465215. The Board notes that, in the record
currently before it, the Office has not issued a final decision addressing whether appellant sustained a recurrence of
disability due to her August 1, 1978 employment injury based on a change in the nature and extent of her light-duty
job requirements as a result of her assignments to the Air Mail Center and/or the Priority Mail Center which
allegedly failed to comply with the restrictions of her 1978 employment injury for a low dust environment. As the
record before the Board does not establish that the Office has issued a final decision on this issue, the Board may not
consider this issue in this appeal. 20 C.F.R. § 501.2(c).
2

Dr. Niebylski incorrectly noted that appellant’s asthma was not an employment-related condition.

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that appellant’s diagnosed conditions of sarcoidosis and asthma were not worsened by her work
environment on March 7, 2003. He further opined that appellant’s diagnosed conditions were
not aggravated by her work environment. Dr. Niebylski stated that the requirement of a dust-free
environment was not unreasonable, but noted that appellant could also wear a breathing mask or
air filter while at work.
The Office found a conflict of medical opinion evidence between Drs. Simon and
Niebylski regarding the aggravation of appellant’s underlying pulmonary conditions due to her
work environment on March 7, 2003. It referred appellant, a statement of accepted facts and a
list of specific questions, to Dr. Thomas J. Petz, a Board-certified internist, for an impartial
medical examination. Dr. Petz completed a report on February 22, 2006 and performed a
physical examination as well as review of the medical records. He diagnosed quiescent
sarcoidosis, asthma and allergic rhinitis. Dr. Petz stated, “Asthmatics have more irritable
airways and nonspecific irritants which would include dust … may induce a transient
exacerbation of asthma. Once the individual is removed from the irritant and uses an appropriate
inhalation medication, one would anticipate subsidence of her symptomatology.” Dr. Petz
recommended that appellant avoid exposure to irritants within the working environment. The
Office requested a supplemental report from Dr. Petz on March 7, 2006.
By decision dated March 7, 2006, the Office accepted appellant’s claim for temporary
aggravation of asthma. The Office stated that the actual period of the aggravation had not yet
been determined and was under development.
Appellant filed a claim for compensation and requested wage-loss compensation from
March 7, 2003 through April 22, 2004. She submitted additional medical evidence addressing
her current medical conditions on March 28 and 31, May 30 and June 23, 2006.
Dr. Petz submitted a supplemental report on April 19, 2006 and opined that appellant had
a temporary aggravation of her asthma attributed to dust irritants in her working environment on
March 7, 2003. He opined that this temporary aggravation subsided within three days based on a
review of the record.
On July 11, 2006 appellant submitted a report from Dr. Simon dated March 9, 2004
diagnosing sarcoidosis and hyperreactive airway disease or asthma. Dr. Simon noted that
appellant had not worked since March 2003 and that she believed that her coughing was
worsened by exposure to dust, fumes and extremes of cold weather. He noted that appellant’s
sensitivity to dust, fumes and cold weather had not been reduced by available treatment
modalities. Dr. Simon, therefore, opined that appellant’s condition was permanent, that her
condition could not be considered as temporary and that no date could be assigned to when it
would cease.
Appellant submitted statements from the employing establishment dated November 26,
2003 and February 4, 2004 stating that there was no work available within her work restrictions.

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By decision dated September 14, 2006, the Office approved appellant’s claim for wageloss compensation from March 7 to 9, 20033 and denied her claim for compensation from
March 10, 2003 through April 22, 2004. The Office found that the reports of Dr. Petz were
entitled to the weight of the medical opinion evidence and established that appellant sustained a
temporary aggravation of her pulmonary condition which ceased within three days after the
exposure.
Appellant requested reconsideration on December 13, 2006 and provided a narrative
statement detailing the chronology of her claim. She also submitted additional medical evidence
in support of her request. Dr. Simon examined appellant on June 23, 2006 and noted treatment
due to a chronic draining skin lesion and a syncopal episode. In a note dated September 22,
2006, he examined appellant regarding an increased cough which developed due to a viral
exposure. Dr. Simon examined appellant on December 15, 2006 and found her condition stable.
By decision dated January 22, 2007, the Office declined to reopen appellant’s claim for
consideration of the merits on the grounds that she failed to submit relevant, pertinent new
evidence which warranted review of the merits.4
LEGAL PRECEDENT -- ISSUE 1
When employment factors cause an aggravation of an underlying physical condition, the
employee is entitled to compensation for the periods of disability related to the aggravation.
However, when the aggravation is temporary and leaves no permanent residuals, compensation is
not payable for periods after the aggravation has ceased. This is true even though the employee
is found medically disqualified to continue in such employment because of the effect which the
employment factors might have on the underlying condition. Under such circumstances, her
disqualification for continued employment is due to the underlying condition, without any
contribution by the employment.5 The fact that the Office accepts appellant’s claim for a
specified period of disability does not shift the burden of proof to appellant to show that he or
she is still disabled. The burden is on the Office to demonstrate an absence of employmentrelated disability during the period subsequent to the date when compensation is terminated or
modified.6 The Office’s burden includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.7
The Federal Employees’ Compensation Act provides that, if there is a disagreement
between the physician making the examination for the United States and the physician of the
3

The Office noted that, as appellant had experienced only three compensable dates of wage loss under this claim,
those days were withheld as waiting days and she had no period of compensable disability. See 5 U.S.C. § 8117.
4

Following the Office’s January 22, 2007 decision, appellant submitted additional new evidence. As the Office
did not consider this evidence in reaching a final decision, the Board may not review the evidence for the first time
on appeal. See 20 C.F.R. § 501.2(c).
5

Raymond W. Behrens, 50 ECAB 221, 222 (1999).

6

Id.

7

Id.

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employee, the Secretary shall appoint a third physician who shall make an examination.8 The
implementing regulation states that, if a conflict exists between the medical opinion of the
employee’s physician and the medical opinion of either a second opinion physician of an Office
medical adviser or consultant, the Office shall appoint a third physician to make an examination.
This is called a referee examination and the Office will select a physician who is qualified in the
appropriate specialty and who has had no prior connection with the case.9 It is well established
that, when a case is referred to an impartial medical specialist for the purpose of resolving a
conflict, the opinion of such specialist, if sufficiently well rationalized and based on proper
factual and medical background must be given special weight.10
ANALYSIS -- ISSUE 1
Appellant’s attending physician, Dr. Simon, a Board-certified internist of professorial
rank, opined that she sustained an employment-related aggravation of her diagnosed condition of
asthma due to employment exposures on March 7, 2003. The Office referred appellant for a
second opinion evaluation with Dr. Niebylski, a Board-certified internist, who opined that
appellant had no aggravation of her asthma due to her March 7, 2003 employment exposure.
Due to this conflict of medical opinion evidence, the Office properly referred appellant to
Dr. Petz, a Board-certified internist, for an impartial examination to determine whether appellant
sustained an aggravation of her asthma due to her March 7, 2003 employment exposure.
In a report dated February 22, 2006 and in a supplemental report dated April 19, 2006,
Dr. Petz reported his findings on examination and reviewed the medical history. He diagnosed
asthma and sarcoidosis. Dr. Petz opined that dust may have induced a transient exacerbation of
appellant’s asthma which would subside with removal from the irritant. In the supplemental
report dated April 19, 2006, he found that appellant had sustained a temporary aggravation of her
asthma and opined that this aggravation ended within three days after the employment exposure
after through review of the record. The Board finds that Dr. Petz’ reports are based on a proper
factual history and is sufficiently detailed and well reasoned to constitute the weight of the
medical evidence and resolve the existing conflict of medical opinion evidence. Dr. Petz agreed
with appellant’s attending physician, Dr. Simon, that appellant sustained an aggravation of her
asthma due to her employment exposure on March 7, 2003 and further agreed with Dr. Simon’s
assessment that this aggravation had returned to baseline within a few days following the
exposure.
Appellant submitted an additional report from Dr. Simon dated March 9, 2004 diagnosing
sarcoidosis and hyperreactive airway disease or asthma. Dr. Simon noted that appellant had not
returned to work and opined that, since currently available medical treatments had not lessened
appellant’s sensitivity to dust and other irritants her condition was permanent, that her condition
could not be considered as temporary and that no date could be assigned to when it would cease.
This report is not sufficiently detailed and rationalized to constitute the weight of the medical
8

5 U.S.C. §§ 8101-8193, 8123.

9

20 C.F.R. § 10.321.

10

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

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opinion evidence. Dr. Simon does not opine that any or every exacerbation of appellant’s cough
resulted in a permanent aggravation of her asthma and did not address the central issue of when
appellant’s cough returned to baseline following the exposure on March 7, 2003. Further, as
Dr. Simon was on one side of the conflict that Dr. Petz resolved, the additional report from
Dr. Simon is insufficient to overcome the weight accorded Dr. Petz as the impartial medical
examiner or to create a new conflict.11
The weight of the medical opinion evidence as represented by the well-reasoned reports
of Dr. Petz establish that appellant sustained a temporary aggravation of her underlying asthma,
and that this temporary aggravation ceased within three days following her exposure on
March 9, 2003. As appellant’s employment-related aggravation of asthma was temporary and
left no permanent residuals, she is not entitled to compensation for periods after the aggravation
ceased on March 9, 2003. This is true even though all physicians of record found that appellant
should not continue working in a dusty environment because of the effect which the dusty
environment might have on the underlying asthma.
Under these circumstances, her
disqualification for continued employment is due to the underlying asthma, without any
contribution by the employment.12
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Act, 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.14 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.15
13

ANALYSIS -- ISSUE 2
Appellant requested reconsideration on December 13, 2006 and submitted additional
medical evidence. In order to require the Office to reopen her claim for consideration of the
merits, the evidence must be relevant and pertinent to the issue for which the Office denied her
claim, the lack of sufficient rationalized medical opinion to establish that the March 7, 2003
aggravation of her asthma was either permanent or extended beyond the excepted period of
March 9, 2003. In support of her claim, appellant submitted reports from Dr. Simon dated
June 23, September 22 and December 15, 2006. These reports addressed appellant’s ongoing
medical conditions at the time of the examinations and did not address any condition or disability
11

Jaja K Asaramo, 55 ECAB 200, 205 (2004).

12

Behrens, supra note 5.

13

5 U.S.C. §§ 8101-8193, § 8128(a).

14

20 C.F.R. § 10.606(b)(2).

15

20 C.F.R. § 10.608(b).

7

resulting from the March 7, 2003 employment exposure. As Dr. Simon’s reports did not address
the issue for which the Office denied appellant’s claim, these reports are not relevant and
pertinent and are not sufficient to require the Office to reopen appellant’s claim for consideration
of the merits.
Appellant’s request for reconsideration also included her narrative summation events. As
the Office denied her claim for additional compensation based on the lack of supportive medical
evidence, her statement is not relevant and pertinent and is not sufficient to require the Office to
reopen her claim for consideration of the merits.
CONCLUSION
The Board finds that the weight of the medical evidence establishes that appellant
sustained a temporary aggravation of her asthma on March 7, 2003 which ceased by March 9,
2003 and which does not entitle her to additional compensation benefits for disability.16 The
Board further finds that appellant failed to submit relevant and pertinent new evidence requiring
the Office to reopen her claim for consideration of the merits.
ORDER
IT IS HEREBY ORDERED THAT the January 22, 2007 and September 14, 2006
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: March 19, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

16

See 5 U.S.C. § 8117.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Brockton, MA,
Employer
__________________________________________

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

Docket No. 11-457
Issued: January 9, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 14, 2010 appellant filed a timely appeal from a merit decision of the Office
of Workers’ Compensation Programs dated June 22, 2010 concerning the denial of his
recurrence claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that he sustained a recurrence of partial
disability beginning November 1, 2005 causally related to his accepted May 18, 2004
employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 18, 2004 appellant, then a 45-year-old mail handler, filed a traumatic injury
claim alleging that he injured his left forearm and leg on that day. The truck he was loading
rolled away from the dock and he fell. OWCP accepted the claim for abrasion and contusion of
the left knee and leg, elbow, forearm and wrist and contusion of the left elbow and forearm. On
the back of the form it indicated that appellant stopped work that day at 5:05 a.m. and returned to
work the same day at 11:30 p.m.2
In a November 1, 2005 report, Dr. Mark Steiner, a treating Board-certified orthopedic
surgeon, reported that appellant was injured on May 18, 2004 when he fell off the rear of a
tractor trailer and landed on his knees. He reported that a recent magnetic resonance imaging
scan revealed significant left knee medial and patellofemoral degenerative arthritis. Dr. Steiner
concluded the May 18, 2004 employment injury aggravated appellant’s underlying knee arthritis
as appellant reported no knee problems prior to the employment injury.
In a March 14, 2006 note, Dr. Steiner indicated that appellant was only capable of
working a four-hour day. He opined that his chronic right and left knee degenerative arthritis
had been exacerbated by a May 18, 2004 work injury.
In a May 11, 2006 duty status report, Dr. Steiner noted an injury date of May 18, 2004
and indicated that appellant was only capable of working four hours per day with restrictions.
Diagnoses included exacerbation of degenerative joint disease with physical findings of crepitus
and right knee effusion.
On July 14, 2006 appellant filed a claim for a recurrence of partial disability beginning
November 1, 2005 when his physician reduced his work hours to four hours per day.
In a letter dated October 12, 2006, OWCP informed appellant as to the definition of a
recurrence of disability and the evidence required to support a claim for a recurrence of
disability.
On May 23, 2007 OWCP received a November 1, 2005 progress note from Dr. Steiner in
which he indicated that appellant was restricted to working four hours per day. Dr. Steiner
diagnosed bilateral tricompartmental degenerative arthritis and noted that appellant continued to
be symptomatic with the left knee being worse than the right knee.
In a May 11, 2007 duty status report, Dr. Steiner indicated that appellant was capable of
working 20 hours per week with restrictions. On June 13, 2007 appellant accepted a light-duty
job working 20 hours per week.
In November 28, 2007 attending physician’s report (Form CA-20), Dr. Steiner diagnosed
post-traumatic degenerative arthritis which he checked “yes” to the question of whether it had
been caused or aggravated by an employment activity.

2

A May 18, 2004 attending physician’s report stated that appellant could resume regular work on May 19, 2004.

2

In an April 17, 2008 report, Dr. Stanley Horn, a second opinion Board-certified
orthopedic surgeon, diagnosed left knee degenerative arthritis with a possible degenerative
medial meniscus tear, right knee degenerative arthritis, suspected gout and mild left elbow
medial epicondylitis. He concluded that the May 18, 2004 employment injury could have caused
an aggravation of appellant’s bilateral knee degenerative arthritic conditions, but that the gout
and left elbow medial epicondylitis were unrelated to the employment injury. As to the
aggravation of appellant’s knee conditions, Dr. Horn opined that it was temporary and should
have resolved within 6 to 10 weeks. Next, he concluded that appellant’s current condition was
unrelated to the May 18, 2004 employment injury and was due to the chronic degenerative
processes and progression of his condition. Dr. Horn opined that appellant was capable of
working with restrictions.
By decision dated July 3, 2008, OWCP denied appellant’s recurrence claim.
On July 3, 2008 appellant requested an oral hearing before an OWCP hearing
representative, which was held on October 29, 2008.
In an August 26, 2008 report, Dr. Steiner diagnosed bilateral post-traumatic degenerative
arthritis which he opined was caused and aggravated by the May 18, 2004 employment injury as
appellant had no symptoms prior to the May 18, 2004 work injury.
By decision dated January 29, 2009, an OWCP hearing representative found a conflict in
the medical opinion evidence between Drs. Steiner and Horn, set aside OWCP’s July 3, 2008
decision and remanded the case for referral to an impartial medical examiner.
On March 30, 2009 OWCP referred appellant to Dr. George P. Whitelaw, a Boardcertified orthopedic surgeon, to resolve the conflict in the medical opinion evidence regarding
whether appellant’s claimed recurrence of partial disability was causally related to his accepted
May 18, 2004 employment injury.
In an April 13, 2009 report, Dr. Whitelaw reviewed the medical evidence, noted the
employment injury history and statement of accepted facts and conducted a physical
examination. Based on his review of the evidence and physical examination, he diagnosed
bilateral knee osteoarthritis which he noted was an ongoing problem and unrelated to the
May 18, 2004 employment injury when appellant fell four feet to the ground. Dr. Whitelaw
related that appellant was taking Prednisone for his kidney condition at the time of the May 18,
2004 employment injury. A physical examination revealed full range of motion, a negative
McMurray’s sign, stable ligaments and some boggy bilateral knee edema. Dr. Whitelaw opined
that the May 2004 employment injury caused no significant exacerbation as appellant only had a
flare up in September 2004 when he stopped taking Prednisone.
OWCP requested clarification from Dr. Whitelaw on May 15, 2009. In a July 8, 2009
supplemental report, Dr. Whitelaw opined that appellant’s degenerative arthritis was unrelated to
the May 18, 2004 employment injury. He concluded that the May 18, 2004 employment injury
caused a temporary aggravation and that his current problems were related to degenerative
arthritis.

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On September 23, 2009 Dr. Whitelaw responded to OWCP’s August 11, 2009 request for
further clarification. He related that the May 14, 2004 employment injury aggravated appellant’s
left knee degenerative arthritis, but the exacerbation/aggravation ceased within six weeks.
Dr. Whitelaw also opined that there was no material worsening of appellant’s left knee arthritis
on May 18, 2004 and that the reduction in appellant’s work hours was unrelated to the accepted
employment injury.
By decision dated October 22, 2009, OWCP denied appellant’s claim for a recurrence of
partial disability.
On November 12, 2009 appellant requested an oral hearing before an OWCP hearing
representative, which was held on February 26, 2010.
By decision dated June 22, 2010, an OWCP hearing representative affirmed the
October 22, 2009 decision.
LEGAL PRECEDENT
OWCP’s implementing regulations define a recurrence of disability as an inability to
work after an employee has returned to work, caused by a spontaneous change in a medical
condition which has resulted from a previous injury or illness without an intervening injury or
new exposure to the work environment that caused the illness.3 If the disability results from new
exposure to work factors, the legal chain of causation from the accepted injury is broken and an
appropriate new claim should be filed.4
Section 8123(a) of FECA provides in pertinent part: if there is disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.5 Where a case is
referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a proper factual and medical
background must be given special weight.6
For conditions not accepted by OWCP as being employment related, it is the employee’s
burden to provide rationalized medical evidence sufficient to establish causal relation, not
OWCP’s burden to disprove such relationship.7

3

20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter
2.1500.3.b(a)(1) (May 1997). See also Phillip L. Barnes, 55 ECAB 426 (2004).
4

Supra note 3, Chapter 2.1500.3 (May 1997), Donald T. Pippin, 54 ECAB 631 (2003).

5

5 U.S.C. § 8123(a); R.C., 58 ECAB 238 (2006); Darlene R. Kennedy, 57 ECAB 414 (2006).

6

V.G., 59 ECAB 635 (2008); Sharyn D. Bannick, 54 ECAB 537 (2003); Gary R. Sieber, 46 ECAB 215 (1994).

7

Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger, 51 ECAB 638 (2000); G.A., Docket No. 09-2153
(issued June 10, 2010).

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ANALYSIS
Appellant’s claim was accepted for a contusion of the left knee and lower leg, abrasion of
the left leg, elbow, forearm and wrist and contusion of the left elbow and forearm as a result of
the May 18, 2004 employment injury. He reduced his work hours on November 1, 2005 to four
hours per day. The issue to be resolved is whether appellant has established that his recurrence
of partial disability beginning November 1, 2005 was causally related to his May 18, 2004
accepted employment injury.
As OWCP determined there was a conflict in the medical opinion evidence between
Drs. Steiner regarding whether appellant’s recurrence of partial disability was causally related to
his accepted May 18, 2004 employment injury. On remand, OWCP referred appellant to
Dr. Whitelaw to resolve this conflict.
The Board finds that the opinion of Dr. Whitelaw, the impartial medical specialist and a
Board-certified orthopedic surgeon, based his opinion on a proper factual and medical
background. OWCP provided him with appellant’s medical record, a statement of accepted facts
and questions to be addressed in resolving the conflict of medical opinion between Drs. Steiner
and Horn. Dr. Whitelaw reviewed appellant’s history, noted his current complaints, set forth
findings on examination of appellant and addressed the questions presented in his initial and
supplemental reports.
In his initial April 13, 2009 report, Dr. Whitelaw provided examination findings and
diagnosed bilateral knee osteoarthritis he opined was an ongoing problem and unrelated to the
May 18, 2004 employment injury. He opined that the reduction in appellant’s work hours in
November 2005 was due to his degenerative arthritis and not his accepted employment injuries.
OWCP subsequently requested that Dr. Whitelaw provide a supplemental report to clarify and
explain the basis for his opinions. In a July 8, 2009 response, Dr. Whitelaw opined that
appellant’s degenerative arthritis was unrelated to the May 18, 2004 employment injury, that the
May 18, 2004 employment injury caused a temporary aggravation and that his current problems
are related to degenerative arthritis. On September 23, 2009 he provided a second supplement
report in response to OWCP’s September 1, 2009 request for further clarification. Dr. Whitelaw
opined that while the May 18, 2004 employment injury aggravated appellant’s left knee
degenerative arthritis, that any aggravation ceased within six weeks of the May 18, 2004
employment injury. He also concluded that appellant’s reduction in work capacity on
November 1, 2005 to four hours per day was due to his left knee degenerative arthritis and
unrelated to the accepted May 18, 2004 employment injury.
Dr. Whitelaw offered a medical opinion that is sound, rational and logical. Because the
opinion of the impartial medical specialist is based on a proper history and is sufficiently
rationalized, the Board finds that it must be accorded special weight in resolving the conflict.
The Board finds that the weight of the medical opinion evidence supports that appellant’s
recurrence of partial disability beginning November 1, 2005 was unrelated to his May 18, 2004
accepted employment injury. Thus, appellant failed to meet his burden of proof to establish that
his recurrence of partial disability was due to his accepted May 18, 2004 employment injury.

5

CONCLUSION
The Board finds that appellant has not established that he sustained a recurrence of partial
disability beginning November 1, 2005 causally related to his accepted May 18, 2004
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 22, 2010 is affirmed.
Issued: January 9, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1227
Issued: February 9, 2017

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 23, 2016 appellant, through counsel, filed a timely appeal from a February 17,
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.
ISSUE
The issue is whether appellant met her burden of proof to establish a cervical condition
causally related to factors of her federal employment.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 8, 2014 appellant, a 51-year-old mail carrier, filed an occupational disease
claim (Form CA-2) alleging that she sustained a cervical condition causally related to factors of
her federal employment.
In a January 9, 2015 decision, OWCP denied appellant’s claim that she sustained a
cervical condition in the performance of duty.
In a report dated October 6, 2013, Dr. Bruce Rosenbaum, Board-certified in
neurosurgery, advised that he was providing an opinion in support of a traumatic injury claim.
He advised that appellant was sorting mail on December 13, 2012 when she began to experience
neck pain into the head and pain down the left upper extremity to the second and third digits of
the left hand. Dr. Rosenbaum reported that she subsequently went to her supervisor’s office,
where she had a syncopal episode. Appellant underwent an electroencephalogram which
Dr. Rosenbaum advised was consistent with occasional right temporal sharp waves. He noted
that a magnetic resonance imaging (MRI) scan of the cervical spine showed predominant C3-4
and C4-5 disc osteophyte complex of the brain. Dr. Rosenbaum diagnosed syncope and cervical
radiculopathy caused by the nature of her work. He noted that she performed repetitive
movements with the upper extremities. Dr. Rosenbaum advised that the syncopal event was not
related to the work injury. He opined that the period of disability pertaining to the work-related
cervical radiculopathy was from December 13, 2012 through April 18, 2013.
By decision dated January 9, 2015, OWCP denied the claim, finding that appellant failed
to meet her burden of proof to establish that she sustained a cervical condition causally related to
the accepted employment factors.
By letter dated January 19, 2015, counsel requested an oral hearing before a
representative of the Branch of Hearings and Review, which was held on June 24, 2015.
In a decision dated September 10, 2015, an OWCP hearing representative affirmed the
January 9, 2015 decision.
In a report dated September 13, 2015, received by OWCP on December 18, 2015,
Dr. Rosenbaum noted appellant’s duties of twisting, bending, reaching and lifting up to 70
pounds, as well as pushing with reference to the sorting, carrying, and transporting of mail and
parcels. He advised that the definitive diagnosis was cervical radiculopathy causally related to
her repetitive work injuries of an occupational nature, caused by the repetitive trauma of her
occupational injury. Dr. Rosenbaum opined, based on his experience as a Board-certified
neurosurgeon, that the repetitive nature of the work she described including bending, twisting,
lifting, and reaching on an ongoing continuous, repetitive basis, was exactly the etiology of such
injuries she had with reference to her cervical discogenic disease and associated, occupationally
caused cervical radiculopathy.
On November 20, 2015 counsel filed a request for reconsideration of the September 10,
2015 decision.

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By decision dated February 17, 2016, OWCP denied modification of the September 10,
2015 decision. It found that appellant failed to present medical evidence sufficient to establish a
cervical condition causally related to employment factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an “employee of the
United States” within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as alleged,
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.4 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed, or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is usually rationalized medical
evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.6
Appellant has the burden of establishing by the weight of the substantial, reliable, and
probative evidence, a causal relationship between her claimed lower back and neck conditions
and her federal employment. This burden includes providing medical evidence from a physician
who concludes that the disabling condition is causally related to employment factors and
supports that conclusion with sound medical reasoning.7

3

Id.

4

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

5

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

6

Id.

7

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

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ANALYSIS
Appellant has failed to submit medical opinion containing a rationalized, probative report
which relates her claimed cervical condition to factors of her employment.
Dr. Rosenbaum’s October 6, 2013 and September 13, 2015 reports noted appellant’s
complaints of neck pain and presented a diagnosis of cervical radiculopathy, which he generally
attributed to employment factors. In his October 6, 2013 report, he advised that she was sorting
mail on December 13, 2012 when she began to experience neck pain into the head and pain
down the left upper extremity to the second and third digits of the left hand. Dr. Rosenbaum
reported that appellant subsequently went to her supervisor’s office, where she had a syncopal
episode. He noted that a cervical MRI scan showed predominant C3-4 and C4-5 disc osteophyte
complex of the brain. Dr. Rosenbaum diagnosed syncope and cervical radiculopathy caused by
the nature of appellant’s work. He noted that she performed repetitive movements with the
upper extremities. Dr. Rosenbaum opined, however, that the syncopal event was not related to
the work injury. He noted that appellant was disabled due to work-related cervical radiculopathy
from December 13, 2012 through April 18, 2013.
In his September 13, 2015 report,
Dr. Rosenbaum noted her duties of twisting, bending, reaching and lifting up to 70 pounds, as
well as pushing with reference to the sorting, carrying and transporting of mail and parcels. He
reiterated his diagnosis of cervical radiculopathy, which, he advised, was causally related to
appellant’s repetitive work injuries of an occupational nature, caused by the repetitive trauma of
her occupational injury. Dr. Rosenbaum noted that her work was of a repetitive nature, including
bending, twisting, lifting, and reaching on an ongoing, continuous, and repetitive basis.
Dr. Rosenbaum’s reports did not provide a probative, rationalized medical opinion that
the claimed conditions or disability were causally related to employment factors.8 He did not
sufficiently describe appellant’s job duties or explain the medical process through which such
duties would have been competent to cause the claimed condition. Dr. Rosenbaum’s opinion is
of limited probative value as it does not contain any medical rationale explaining how appellant’s
job duties physiologically caused the diagnosed cervical radiculopathy condition. His reports
thus did not constitute adequate medical evidence to establish that appellant’s claimed cervical
condition was causally related to her employment.
An award of compensation may not be based on surmise, conjecture, or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.9 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
OWCP advised appellant of the evidence required to establish her claim; however,
appellant failed to submit such evidence. Consequently, appellant has not met her burden of
proof in establishing that her claimed cervical condition was causally related to her employment.

8

William C. Thomas, 45 ECAB 591 (1994).

9

Id.

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On appeal counsel contends that Dr. Rosenbaum’s reports are uncontroverted and contain
medical evidence sufficient to establish a prima facie case that she sustained a cervical condition
causally related to employment factors. For the reasons set forth above, appellant failed to meet
her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish a
claimed cervical condition causally related to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the February 17, 2016 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: February 9, 2017
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
U.S. POSTAL SERVICE, CITY VIEW POST
OFFICE, Fort Worth, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0457
Issued: February 26, 2021

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On February 2, 2021 appellant filed an appeal from a March 27, 2018 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 21-0457.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act.1
For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s review
authority is limited to appeals which are filed within 180 days from the date of issuance of OWCP’s
decision.2
The 180th day following the March 27, 2018 decision was September 23, 2018. As
appellant did not file an appeal with the Board until February 2, 2021, more than 180 days after
the September 23, 2018 OWCP decision, the Board finds that the appeal docketed as No. 21-0457
is untimely filed. The Board is without jurisdiction to review the appeal. Appellant has not offered

1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

2

Id. at § 501.3(e).

a reason to explain the failure to timely file an appeal with supporting documentation sufficient to
establish compelling circumstances.
The Board’s decisions and orders are “final upon the expiration of 30 days from the date
of their issuance.”3
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0457 is dismissed.
Issued: February 26, 2021
Washington, DC

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

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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

3

Id. at § 501.6(d).

2


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

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

Docket No. 08-1072
Issued: November 25, 2008

Case Submitted on the Record

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

JURISDICTION
On February 27, 2008 appellant filed a timely appeal from a September 26 2007 decision
of an Office of Workers’ Compensation Programs’ hearing representative, who affirmed the
termination of her compensation benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the
Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s
compensation benefits effective March 18, 2007.
FACTUAL HISTORY
On February 28, 2001 appellant, then a 42-year-old rural carrier, sustained injury to her
hip when she fell while delivering mail. The Office accepted her claim for a left hip contusion,
lumbosacral strain/sprain and progressive myositis ossificans. It authorized left hip replacement
surgery which appellant declined. Appellant did not stop work.

The initial medical reports diagnosed a left hip contusion, lumbar sprain, bursitis at the
ischial tuberosity related to heterotopic bone or old bony fragment. A February 28, 2001 x-ray
of the left hip revealed myositis ossificans posterior to the left hip with no evidence of a fracture.
A February 28, 2001 x-ray of the lumbar spine revealed no evidence of a fracture. A March 30,
2001 magnetic resonance imaging (MRI) scan of the pelvis revealed no abnormalities but cystic
changes on the ovaries. An April 11, 2001 computerized tomography (CT) scan of the pelvis
revealed a bone fragment off the left ischium which appears to be an old fracture fragment. An
October 1, 2001 electromyography revealed sciatic neuropathy. Appellant came under the
treatment of Dr. Sheldon Lebovitz, an osteopath, who diagnosed chronic pain, fragment of the
left ischial, calcific deposit in the ischial area compromising the cyatic nerve and cyatic
neuropathy. She was also treated by Dr. Robert A. Ruggiero, a Board-certified orthopedic
surgeon, for left hip pain that arose after she fell at work. Dr. Ruggiero diagnosed contusion of
the left ischium with an underlying calcific deposit or fragment and advised that appellant was
totally disabled.
On August 6, 2001 appellant stopped work and filed a claim for a recurrence of
disability. The Office subsequently accepted the claimed recurrence of disability.
In a January 7, 2002 report, Dr. Evelyn Witkin, a Board-certified orthopedic surgeon and
an Office referral physician, set forth findings on appellant’s November 13, 2001 examination.
She diagnosed a left hip contusion and lumbosacral strain. Dr. Witkin stated that appellant’s
myositis ossificans of the left hip was a preexisting condition and noted that appellant had
sustained a prior fracture in the hip. She opined that total disability should have ceased in
September 2001. Appellant’s physical limitations were attributable to a preexisting condition of
myositis ossificans, possibly secondary to an old avulsion fracture of the ischium. Dr. Witkin
noted that there were no current objective findings of the accepted conditions. She advised that
appellant’s condition was improved but not completely resolved. Dr. Witkin stated that
appellant could return to restricted part-time work and progress to full time as her endurance
improved.
Appellant submitted April 29 and July 9, 2004 reports from Dr. Lebovitz, who noted
appellant’s complaint of persistent left hip pain and diagnosed left ischial fragment and
recommended a hip replacement. In an April 29, 2004 attending physician’s report, Dr. Lebovitz
noted that appellant fell on February 28, 2001 while delivering her mail route. He diagnosed left
ischial fragment and noted with a checkmark “yes” that appellant’s condition was caused or
aggravated by an employment activity. Dr. Lebovitz opined that appellant was permanently
disabled and required a hip replacement.
On July 19, 2006 the Office requested that appellant submit an updated medical report
from her treating physician. It requested that appellant’s physician address her diagnosis,
whether the diagnosis was causally related to the work injury, periods of disability, physical
limitations and if she could be gainfully employed. No additional medical evidence was
received.
On July 25, 2006 the Office referred appellant for a second opinion to Dr. Robert A.
Smith, a Board-certified orthopedic surgeon, to determine if she had residuals of her workrelated condition. In an August 14, 2006 report, Dr. Smith reviewed appellant’s history of injury

2

and medical treatment. He noted findings upon physical examination of normal gait and station,
normal spinal examination, no evidence of weakness or deformity of the left hip with satisfactory
motion, normal neurological examination with no focal motor or reflex deficit and no focal
atrophy. Dr. Smith stated that diagnostic studies of February 29, 2001, the day after appellant’s
work injury, revealed no evidence of acute fracture or dislocation of the hip or back and
preexisting myositis/fracture fragment from the ischial tuberosity. He diagnosed left hip
contusion and lumbosacral sprain and strain which were causally related to the employment
injury and preexisting myositis/fracture fragment of the left ischial tuberosity unrelated to her
work injury. Dr. Smith addressed the benign nature of the examination, finding no evidence of
any aggravation, acceleration, precipitation or direct cause of her preexisting myositis or left
ischial tuberosity caused by the accepted injury. He further noted that there was no apparent
objective pathology regarding the sciatic nerve, the hip or the back. Dr. Smith found that
appellant had no residuals from the February 28, 2001 work injury and would require no further
treatment. He opined that appellant could return to full duty without restrictions.
On January 22, 2007 the Office issued a notice of proposed termination of compensation
and medical benefits on the grounds that Dr. Smith’s report established no residuals of the workrelated employment conditions.
On January 29, 2007 appellant asserted that she continued to have residuals of her
accepted condition. Although the Office had authorized left hip replacement surgery she had
declined the procedure and continued to have residuals of her work injury.
By decision dated March 2, 2007, the Office terminated appellant’s compensation
benefits effective March 18, 2007, finding that the weight of the medical evidence established
that she had no continuing disability resulting from her accepted injury.
In a letter dated March 12, 2007, appellant requested an oral hearing which was held on
July 17, 2007. She submitted a March 7, 2007 CT scan of the pelvis, which revealed findings
compatible with a prior avulsion injury at the insertion site of the left hamstring tendons with
callus formation with possible impingement on the left sciatic nerve. A bone density scan dated
March 7, 2007 revealed evidence of osteopenia. Appellant underwent an MRI scan of the
lumbar spine on March 26, 2007, which revealed minimal degenerative changes of the lumbar
spine without evidence of any disc herniation or spinal stenosis. In an April 2, 2007 report,
Dr. David G. Nazarian, a Board-certified orthopedic surgeon, noted that appellant was status post
injury to her left side with persistent discomfort in her lower extremity. Upon physical
examination, he noted a full range of passive hip motion in both legs including rotation,
abduction and adduction without pain and left trochanteric tenderness. Dr. Nazarian reviewed an
x-ray diagnosis of avulsion fragment from the left ischial tuberosity and diagnosed sciatic nerve
symptoms from a prior trauma. He noted that, since appellant had a full range of motion of the
left hip and an essentially normal hip joint, she could undergo a neurological evaluation.
By decision dated September 26, 2007, the hearing representative affirmed the March 2,
2007 decision.

3

LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.1 After it has determined that an employee has disability
causally related to his or her federal employment, the Office may not terminate compensation
without establishing that the disability has ceased or that it is no longer related to the
employment.2 The right to medical benefits for an accepted condition is not limited to the period
of entitlement for disability. To terminate authorization for medical treatment, the Office must
establish that a claimant no longer has residuals of an employment-related condition, which
requires further medical treatment.3
ANALYSIS
The Office accepted appellant’s claim for left hip contusion, lumbosacral strain/sprain
and progressive myositis ossificans. It authorized a left hip replacement which appellant
declined to undergo. As the Office did not receive a response from appellant to its request for an
updated medical report, it further developed the medical evidence.
On July 25, 2006 the Office referred appellant to Dr. Smith, for a second opinion
evaluation. On August 14, 2006 Dr. Smith noted an essentially normal physical examination,
normal gait and station, normal spinal examination, no evidence of weakness or deformity of the
left hip with satisfactory motion, normal neurological examination with no focal motor or reflex
deficit and no focal atrophy. He indicated that there were no objective findings to support that
appellant had residuals of the accepted work-related conditions. Dr. Smith diagnosed left hip
contusion and lumbosacral sprain and strain which were causally related to the employment
injury. He noted that appellant had preexisting myositis/fracture fragment of the left ischial
tuberosity unrelated to her work injury. Given the benign nature of the examination, there was
no evidence of any aggravation, acceleration, precipitation of the myositis/fracture fragment
from the left ischial tuberosity due to the February 28, 2001 injury. Dr. Smith further noted that
there was no apparent objective pathology regarding the sciatic nerve, the hip or the back. He
concluded that appellant had no residuals from the February 28, 2001 work injury and did not
require further treatment. Dr. Smith advised that she could return to full duty without
restrictions.
The Board finds that weight of the medical evidence clearly establishes that appellant’s
work-related conditions have resolved. Dr. Smith found that appellant did not have any residuals
of a left hip contusion, lumbosacral strain/sprain or progressive myositis ossificans and that she
could return to her regular duties. He noted the preexisting nature of her left hip condition but
advised that her injury did not cause any aggravation or acceleration of this condition. There is
no contemporaneous medical evidence supporting that appellant has continuing disability or

1

Gewin C. Hawkins, 52 ECAB 242 (2001); Alice J. Tysinger, 51 ECAB 638 (2000).

2

Mary A. Lowe, 52 ECAB 223 (2001).

3

Id.; Leonard M. Burger, 51 ECAB 369 (2000).

4

residuals of her accepted condition. For these reasons, the Office met its burden of proof in
terminating appellant’s benefits for her accepted conditions.
On appeal, appellant contends that the statement of accepted facts sent to Dr. Smith was
inaccurate and deficient. She noted that it did not include a prior left shoulder injury and
surgery, that the Office approved a left hip replacement which was not performed, that the Office
accepted a permanent aggravation of a left hip condition and failed to provide a proper history of
treatment. The Board has reviewed Dr. Smith’s report and cannot fault it on the basis of a
deficient factual background. Dr. Smith reviewed appellant’s history and addressed her accepted
injury of February 28, 2001 and each of the accepted conditions of left hip contusion,
lumbosacral strain/sprain and progressive myositis ossificans. He provided findings on
examination of each of these areas and reviewed the diagnostic testing. Although the Office
authorized left hip replacement surgery, it did not accept that appellant sustained a permanent
aggravation of her preexisting left hip condition. Moreover, Dr. Smith advised that her accepted
injury had not aggravated or accelerated her left hip condition. Therefore, the Board finds this
argument to be without merit.
Appellant also asserts on appeal that there is a conflict in medical opinion between
Dr. Smith and Drs. Witkin, Ruggiero and Nazarian. The Board does not agree that Dr. Witkin
was an Office referral physician4 and her 2002 report predates the period in which the Office
sought to terminate benefits. While her report did not preclude residuals existing in 2002, she
indicated that there were no objective findings supporting continuation of the accepted
conditions. The reports of Dr. Ruggiero also predate the termination of benefits and do not
otherwise provide medical rationale supporting a continuing employment-related condition.5
While Dr. Nazarian’s April 2, 2007 report is more contemporaneous with the termination of
benefits, he did not address how any continuing condition is attributable to the February 28, 2001
employment injury.6 Consequently, these reports are not sufficient to create a medical conflict
with the report of Dr. Smith.

4

See id. This section provides that a conflict must arise between a physician for the claimant and a physician for
the United States. Thus, there may not be a medical conflict requiring referral to an impartial specialist under
section 8123(a) where the conflict is between two physicians for the Office.
5

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

See K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 13, 2007) (medical evidence that does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).

5

CONCLUSION
The Board finds that the Office has met its burden of proof to terminate appellant’s
benefits effective March 18, 2007.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 26 and March 2, 2007 are affirmed.
Issued: November 25, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 09-1448
Issued: April 21, 2010

Case Submitted on the Record

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

JURISDICTION
On May 15, 2009 appellant filed a timely appeal from the November 21, 2008 decision of
the Office of Workers’ Compensation Programs. Under 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a three percent permanent impairment to his
right lower extremity.
FACTUAL HISTORY
On September 23, 1997 appellant, a 68-year-old pipe fitter, injured his low back while
pulling a heating coil. He filed a claim for benefits on September 24, 1997, which the Office

accepted for lumbosacral sprain and temporary aggravation of lumbar degenerative disc disease.1
On May 7, 2008 appellant filed a Form CA-7 claim for a schedule award.
In a report dated July 10, 2007, Dr. Duane Tippets, a specialist in orthopedic surgery,
reviewed the results of a July 10, 2007 functional capacity evaluation (FCE) and found that
appellant had eight percent whole person impairment based on loss of motion in his right hip,
under the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides) fifth edition.2
In a report dated August 8, 2007, an Office medical adviser stated that there was no basis
for an impairment rating given the fact that Dr. Tippet provided a rating based on a whole person
impairment. He noted that Dr. Tippet calculated his impairment based on loss of motion in
appellant’s right hip, despite the fact that the Office did not accept any condition for the right
hip.
In an August 28, 2007 report, Dr. John R. Payne, Board-certified in orthopedic surgery,
stated that appellant had a nine percent whole person impairment rating.
By decision dated September 26, 2007, the Office denied appellant’s claim for a schedule
award. It found that he failed to submit sufficient medical evidence to establish that he had any
permanent impairment due to his accepted low back condition.
On December 5, 2007 appellant requested reconsideration of the September 26, 2007
decision.
In a treatment note dated November 14, 2007, received by the Office on December 12,
2007, Dr. Payne found that appellant had a 19 percent impairment of the lower extremity based
on the following findings: a 5 percent impairment for loss of hip flexion, related to the lower
back; a 5 percent impairment for loss of lower back extension related to the lower back; a
5 percent impairment for loss of abduction related to the lower back; and a 5 percent impairment
for loss of adduction related to the lower back, which totaled a 19 percent lower extremity
impairment pursuant to the Combined Values Chart at page 604 of the A.M.A., Guides.
In a January 11, 2008 report, the Office medical adviser found that there was no factual
basis for an impairment rating. He reiterated that hip dysfunction was not part of the accepted
lower back injury and therefore did not provide a basis for any schedule award.
By decision dated January 16, 2008, the Office denied modification of the September 26,
2007 decision.

1

The claim form is not contained in the instant record.

2

Dr. Tippets based his impairment rating for loss of motion of the right hip on the following findings: 95 degrees
flexion, for a two percent whole person impairment; 18 degrees extension, for a two percent whole person
impairment; 10 degrees abduction, for a two percent whole person impairment; and 20 degrees adduction, for a two
percent whole person impairment.

2

On March 5, 2008 appellant requested reconsideration.
In a February 20, 2008 report, Dr. Payne reviewed the history of injury and noted that a
July 20, 2006 magnetic resonance imaging (MRI) scan indicated degenerative or damaged discs
at L4-5 and L5-S1, with mild relative stenosis. He noted that appellant had stiffness in his right
hip as shown by the FCE, possibly caused by arthritis.
By decision dated May 30, 2008, the Office denied modification of the September 26,
2007 decision.
Dr. Payne had appellant undergo nerve conduction studies on June 19, 2008. The results
included a mild right L5 and S1 radiculopathy and a mild left S1 radiculopathy.
On September 4, 2008 appellant requested reconsideration.
In order to determine whether appellant sustained any permanent impairment related to
his accepted lower back condition, the Office referred him to Dr. Alexander Doman, Boardcertified in orthopedic surgery, for a second opinion examination. In an October 23, 2008 report,
Dr. Doman noted that x-rays of the lumbar spine showed that appellant had degenerative disc
disease at the L4-5 level. He opined, however, that appellant did not sustain a permanent
aggravation of his lumbar degenerative disc disease. Dr. Doman noted that the claim had been
accepted for a temporary aggravation of lumbar degenerative disc disease, but that this was at
most a mild, temporary aggravation of six months’ duration which had long since ceased. He
found that appellant’s subjective complaints were disproportionate to the objective findings and
opined that he was exaggerating his complaints during the examination.
In a report dated November 14, 2008, the Office medical adviser reviewed the results of
the June 19, 2008 nerve conduction study (NCS) and found that appellant had a three percent
impairment of his right lower extremity. He stated that the NCS results indicated a right-sided
Grade 4 sensory deficit at L5-S1, which yielded a three percent right lower extremity impairment
pursuant to Tables 15-15 and 15-18 at page 424 of the A.M.A., Guides.
On November 21, 2008 the Office granted appellant a schedule award for a three percent
permanent impairment to his right lower extremity for the period July 10 to September 8, 2007,
for a total of 8.64 weeks of compensation.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 set forth the
number of weeks of compensation to be paid for permanent loss or loss of use of the members of
the body listed in the schedule. Where the loss of use is less than 100 percent, the amount of
compensation is paid in proportion to the percentage loss of use.4 However, the Act does not
specify the manner in which the percentage of loss of use of a member is to be determined. For
3

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

4

Id. at § 8107(c)(19).

3

consistent results and to insure equal justice under the law to all claimants, the Office has
adopted the A.M.A., Guides fifth edition as the standard to be used for evaluating schedule
losses.5 The claimant has the burden of proving that the condition for which a schedule award is
sought is causally related to his or her employment.6
ANALYSIS
In the instant case, the Office accepted a claim for lumbosacral sprain and temporary
aggravation of lumbar degenerative disc disease. The Office medical adviser determined that
appellant had a three percent permanent impairment of the right lower extremity based on the
June 19, 2008 NCS, which showed right-sided L5-S1 lumbar radiculopathy stemming from
appellant’s accepted conditions. He noted that the nerve conduction findings demonstrated
moderate sensory loss at the L5 and S1 nerve roots and applied this to the relevant tables and
charts of the A.M.A., Guides. The Office medical adviser advised that appellant had a
25 percent sensory deficit maximum 25 percent allowable for sensory deficit pursuant to Table
15-15, page 424 of the A.M.A., Guides; he relied on Table 15-18, page 424 of the A.M.A.,
Guides to derive a 5 percent impairment for sensory deficit at the L5 level and a 5 percent
impairment for the S1 level. He found that the L5 and S1 impairments, were each 5 percent,
which he then multiplied by 25 percent for a total 2.5 percent impairment; rounded off, this
amounted to a three percent right lower extremity impairment. The Office properly relied on the
Office medical adviser’s opinion in granting appellant an award for a three percent right lower
extremity impairment.
The reports from Dr. Payne do not establish that appellant had a ratable impairment
causally related to an accepted condition. His ratings for an impairment based on loss of motion
in the right hip are not sufficient to establish impairment because they are not based on an
accepted condition. Dr. Payne’s reports do not conform to the A.M.A., Guides, as he failed to
sufficiently explain how a right hip impairment was related to appellant’s accepted lumbosacral
sprain and temporary aggravation of lumbar degenerative disc disease. In addition, both Dr. Payne
and Dr. Tippet provided impairment ratings for a whole person impairment of the lumbar spine;
however, the Board has long held that a schedule award is not payable for an impairment of the
whole person.7 Lastly, the Office referred appellant for a second opinion impairment evaluation
with Dr. Doman, who examined him and found no basis for a ratable impairment.
As appellant did not submit any medical evidence to support an additional schedule
award greater than the three percent impairment for the right lower extremity already awarded,
the Board will affirm the Office’s November 21, 2008 decision.
As there is no other medical evidence establishing that appellant sustained any additional
permanent impairment, the Office properly found that he was not entitled to more than the three
percent impairment of the right lower extremity already awarded.
5

20 C.F.R. § 10.404.

6

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

7

Phyllis F. Cundiff, 52 ECAB 439 (2001).

4

CONCLUSION
The Board finds that appellant has no more than a three percent additional impairment of
the right lower extremity.
ORDER
IT IS HEREBY ORDERED THAT the November 21, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 21, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5