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

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

Docket No. 13-442
Issued: September 3, 2013

Case Submitted on the Record

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

JURISDICTION
On December 18, 2012 appellant filed a timely appeal from a November 7, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP). The appeal is also timely
filed from a November 29, 2012 decision by OWCP denying her request for reconsideration.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of the case.
ISSUES
The issues are: (1) whether OWCP properly rescinded its acceptance of appellant’s claim
for a thoracic subluxation; and if so, (2) whether OWCP properly terminated appellant’s wageloss compensation and medical benefits; and (3) whether OWCP properly denied appellant’s
request for reconsideration under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

On appeal, appellant contends that OWCP erroneously weighed the medical evidence.2
FACTUAL HISTORY
On September 13, 2010 appellant, then a 57-year-old postmaster, filed an occupational
disease claim, alleging that she suffered back pain caused by moving over 3,500 pounds of
parcels by herself. She listed her date of awareness as August 19, 2010.
In a September 15, 2010 report, Dr. Todd E. Curzie, appellant’s treating chiropractor,
listed appellant’s diagnoses as thoracic sprain/strain; thoracic region subluxation (segmental
dysfunction); cervical sprain/strain; spasm of muscle; myalgia and myositis, unspecified;
degeneration of thoracic or thoracolumbar disc; thoracic spine pain; and cervicalgia. Appellant
continued to receive chiropractic treatment from Dr. Curzie.
On October 18, 2010 OWCP accepted appellant’s claim for closed dislocation thoracic
vertebra. Appellant was placed on modified duty on October 5, 2010. She stopped work on
October 25, 2010 due to nonavailability of light work. Appellant began part-time work on
November 24, 2010. OWCP paid for medical benefits and compensation for periods of
disability.
On February 1, 2011 OWCP scheduled appellant for a second opinion appointment with
Dr. Douglas Bald, a Board-certified orthopedic surgeon. In a February 17, 2011 opinion,
Dr. Bald diagnosed multilevel degenerative disc disease of the cervical, thoracic and lumbar
spines, preexisting and not related to the injury of August 19, 2010 on a more probable than not
basis; and muscular strain, thoracic spine, related to the injury of August 19, 2010 on a more
probable than not basis. He opined that appellant did incur a muscular-type strain on or around
August 19, 2010, and that the medical treatment that has been provided to date has been
reasonable and appropriate in nature for treatment of the injury-related thoracic strain and
subluxations. Dr. Bald opined that although appellant reported significant improvement with the
treatments that have been provided, she is not yet medically stable and stationary. He believed
that she continued to be disabled as a direct result of the original work injury claim from
August 19, 2010. Dr. Bald believed that, after additional physical therapy, ongoing exercise and
the use of prescription-strength anti-inflammatories, appellant will be capable of returning to her
employment without residual disability or restrictions. He noted that appellant had initial x-rays
when she initiated treatment with Dr. Curzie on September 14, 2010, that he reviewed these
x-rays and that there is evidence on x-ray of multilevel degenerative disc disease with
involvement of the cervical, thoracic and lumbar areas. Dr. Bald stated that a thoracic
subluxation is a clinical diagnosis and that his evaluation today revealed no evidence of
subluxation.
In an April 21, 2011 note on a prescription pad, Dr. Cary S. Keller, a physician Boardcertified in emergency medicine, noted that appellant had numbness and tingling, bilaterally, in
her hands. He attached a note report of the same date wherein his physician’s assistant
diagnosed thoracic strain exacerbating underlying degenerative changes and paresthesias
2

On appeal to the Board appellant submitted new evidence. As OWCP did not consider this evidence in reaching
a final decision, the Board may not consider it for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

2

bilateral upper extremities most likely secondary to carpal tunnel syndrome. Attached was a
work capacity evaluation, also dated April 21, 2011, countersigned by Dr. Keller and indicating
that appellant had closed dislocation thoracic vertebra. He noted that appellant was unable to
perform her job at that time. In a June 7, 2011 note on a prescription pad, someone with an
illegible signature from the same office diagnosed thoracic strain.
Appellant continued to have regular appointments with Dr. Curzie. In an August 5, 2011
progress note, Dr. Curzie noted that appellant was responding well to conservative chiropractic
therapy. He listed diagnoses of thoracic sprain/strain, thoracic region subluxation (segmental
dysfunction); thoracic or thoracolumbar disc, thoracic spine pain and cervalgia (neck pain).
On August 23, 2011 OWCP scheduled appellant for another second opinion with
Dr. Thomas Gritzka, a Board-certified orthopedic surgeon. In a September 28, 2011 opinion,
Dr. Gritzka noted that at that time appellant had an onset of spinal symptomatology centered in
her mid-thoracic area and associated with muscle spasms that spread toward both thoracic
outlets. He noted mild signs of thoracic outlet syndrome on the right. Dr. Gritzka described
appellant’s condition as a chronic thoracic sprain. He opined that she was not capable of
performing her regular duties, but can work light duty for four hours a day. Dr. Gritzka noted
that appellant has reached maximum medical improvement for the injury in the present case, but
that she cannot return to full-time work at her job of injury.
On May 31, 2012 OWCP referred appellant to Dr. Aleksandar Curcin, a Board-certified
orthopedic surgeon, for a second opinion. In a June 16, 2012 opinion, Dr. Curcin noted that the
accepted condition of thoracic subluxation is a diagnosis that originates in the chiropractic arena.
He reviewed the record and found no objective imaging study documentation of any form of
subluxation occurring and indicated that additional x-ray testing was unnecessary. Dr. Curcin
noted that there are no residuals of the employment-related condition identified, and that the only
residuals are continued symptomatic complaints of pain. He opined that the thoracic
sprain/strain found by Dr. Bald was “felt to have resolved.” Dr. Curcin opined that appellant
was capable of performing duties as a postmaster.
On August 13, 2012 OWCP referred appellant to Dr. Charles Kase, a Board-certified
orthopedic surgeon, for an impartial medical examination. It had previously noted that a conflict
existed between the opinions of appellant’s physicians, Drs. Curzie and Keller, and the second
opinion physician, Dr. Curcin. OWCP noted that Dr. Curzie opined that appellant had a thoracic
subluxation and work restrictions and that Dr. Keller supported the thoracic subluxation
diagnosis, whereas Dr. Curcin opined that appellant had no residuals of a work-related
subluxation, and that the only residuals were continued symptomatic complaints of pain.
Dr. Curcin also disagreed with Drs. Curzie and Keller in that he believed that appellant could
return to full-duty employment. In a September 10, 2012 report, Dr. Kase diagnosed appellant
with chronic thoracic pain syndrome without objective evidence to support any neurologic or
structural abnormalities. He stated that previous orthopedic surgeons have correctly noted that
there has never been any objective evidence of subluxation of any of her vertebral bodies.
Dr. Kase further indicated that subluxation would have to be caused by trauma to bone or
ligamentous structures resulting in relative misalignment, and that this has never been
demonstrated. He believed that appellant had degenerative arthritis of her spine, moderate to
severe, located pretty much throughout her spine, which was painful and is not a condition that is

3

reversible. Dr. Kase again indicated that appellant never had a subluxation of her thoracic spine,
but rather had degenerative arthritis of her thoracic spine and thoracic spine pain syndrome. He
opined that appellant can continue to work as the postmaster but will have restrictions placed
upon her as a result of her chronic degenerative spine disease, not the result of any specific
employment-related injury. Dr. Kase also submitted a work capacity evaluation wherein he
indicated that appellant needed to condition herself over three to six months before returning to
full duty.
On September 27, 2012 OWCP accepted appellant’s claim for sprain of back, thoracic
region, resolved by September 10, 2012. Its acceptance letter was accompanied by instructions
for filing claims for wage-loss compensation and an appeal request form. On the same date,
OWCP issued a notice of proposed rescission and termination. It proposed rescission of the
acceptance for thoracic subluxation as it determined that the correct diagnosis was thoracic
strain, a condition which OWCP accepted. OWCP also determined that the thoracic strain had
ceased and therefore the weight of the medical evidence established that appellant no longer had
any residuals or disability from her employment-related condition.
By decision dated November 7, 2012, OWCP rescinded appellant’s medical and
compensation benefits for the accepted thoracic subluxation. It also terminated the medical and
compensation benefits for the accepted condition of thoracic strain because the medical evidence
established that she did not have residuals or disability due to the thoracic strain work injury.
By correspondence dated October 22, 2012, appellant requested reconsideration of the
decision dated September 27, 2012. Copies of appellant’s request were received by OWCP on
October 26 and November 8, 2012. Appellant submitted no new evidence or argument with her
request.
By decision dated November 29, 2012, OWCP denied appellant’s reconsideration request
without conducting a merit review.
LEGAL PRECEDENT -- ISSUE 1
OWCP may review an award for or against compensation at any time on its own motion
or application.3 The Board has upheld OWCP’s authority to reopen a claim at any time on its
motion and, where supported by the evidence, to set aside or modify a prior decision and issue a
new decision.4 The Board has held, however, that the power to annul an award is not an
arbitrary one and that an award for compensation can be set aside only in the manner provided
by the compensation statute.5
Workers’ compensation authorities generally recognize that compensation awards may be
corrected, in the discretion of the compensation agency and in conformity with statutory
3

5 U.S.C. § 8128(a).

4

Eli Jacobs, 32 ECAB 1147 (1981); see also E.S., Docket No. 12-596 (issued April 11, 2013).

5

See Stephen N. Elliott, 53 ECAB 659 (2001); Doris J. Wright, 49 ECAB 230 (1997); Shelby J. Rycroft, 44
ECAB 795 (1993); see also R.H., Docket No. 08-1961 (issued August 17, 2009).

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provision, where there is good cause for doing so, such as mistake or fraud.6 It is well
established that, once OWCP accepts a claim, it has the burden of justifying the termination or
modification of compensation benefits.7 Its burden of justifying termination or modification of
compensation holds true where it later decides that it has erroneously accepted a claim for
compensation. In establishing that the prior acceptance was erroneous, OWCP is required to
provide a clear explanation of its rationale for rescission.8
ANALYSIS -- ISSUE 1
Appellant alleged that she suffered from back pain caused by the duties of her federal
employment as a postmaster. On October 18, 2010 OWCP accepted her claim for closed
dislocation thoracic vertebra, later referred to as a thoracic subluxation. On September 27, 2012
it proposed rescinding the acceptance of appellant’s claim for a thoracic subluxation and the
rescission was made final in a November 7, 2012 decision.
The Board finds that OWCP presented sufficient evidence to meet it burden of proof to
rescind its acceptance of appellant’s claim for a thoracic subluxation. Although Dr. Curzie,
appellant’s treating chiropractor, diagnosed thoracic region subluxation, there is no x-ray
evidence in the record to support his determination. Section 8101(2) of FECA provides that the
term physician includes chiropractors only to the extent that their reimbursable services are
limited to treatment consisting of manual manipulation of the spine to correct a subluxation as
demonstrated by x-ray to exist.9 A chiropractor is not considered a physician as defined under
FECA unless it is established that there is a subluxation as demonstrated by x-ray evidence.10 As
there was no evidence of subluxation in any x-ray report, Dr. Curzie is not considered a
physician under FECA. Dr. Bald, who examined appellant for a second opinion for OWCP,
determined in his February 17, 2011 opinion that subluxation was a clinical diagnosis, and that
his evaluation on that date showed no evidence of subluxation. Although Dr. Keller noted on his
April 21, 2011 work capacity evaluation that appellant had a closed dislocation of the thoracic
vertebra, this conclusion is simply stated on a work capacity evaluation and is totally
unsupported by any medically-rationalized report. In fact the report in support of the work
capacity evaluation was completed by his physician’s assistant and notes thoracic strain.
Accordingly, the statement on the work capacity evaluation that is countersigned by Dr. Keller is
of diminished probative value as it provides no explanation for the diagnosis.11

6

L.C., 58 ECAB 493 (2007).

7

Andrew Wolfgang-Master, 56 ECAB 411 (2005).

8

See Delphia Y. Jackson, 55 ECAB 373 (2004).

9

5 U.S.C. § 8101(2); see also K.J., Docket No. 13-702 (issued May 9, 2013).

10

OWCP’s regulations at 20 C.F.R. § 10.5(bb) defines subluxation to mean an incomplete dislocation, offcentering, misalignment, fixation or abnormal spacing of the vertebrae which must be demonstrated on x-ray. See
Mary A. Ceglia, 55 ECAB 626 (2004).
11

J.B., Docket No. 07-1472 (issued December 11, 2007).

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Dr. Curcin, in a June 16, 2012 opinion, noted that he reviewed the record and found no
objective imaging study documenting any form of subluxation. He noted no residuals from any
employment-related condition.
Dr. Kase noted that the previous orthopedic surgeons have correctly noted that there has
never been any objective evidence of subluxation of any of her vertebral bodies. He noted that
subluxation would have to be caused by trauma to bone or ligamentous structures and that this
has never been demonstrated. Dr. Kase opined that appellant never had a subluxation of her
thoracic spine but rather had degenerative arthritis of her thoracic spine and thoracic spine pain
syndrome.
Accordingly, there is no probative medical report establishing that appellant had a
thoracic subluxation. Therefore, OWCP presented sufficient evidence to show that she did not
sustain a subluxation in the performance of her duties as postmaster. It met its burden of proof to
rescind its acceptance of appellant’s claim for thoracic subluxation.
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.
LEGAL PRECENT -- ISSUE 2
Once OWCP accepts a claim it has the burden of justifying modification or termination
of compensation. After it has determined that an employee has disability causally related to his
employment, it may not terminate compensation without establishing that the disability ceased or
is no longer related to the employment injury.12 The fact that OWCP accepted an employee’s
claim for a specified period of disability does not shift the burden of proof to the employee. The
burden is on OWCP to demonstrate an absence of employment-related disability or residual in
the period subsequent to the date of termination or modification.13
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.14 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition,
which require further medical treatment.15 OWCP’s burden of proof includes the necessity of
furnishing rationalized medical opinion evidence based on a proper factual and medical
background.16

12

R.H., Docket No. 12-1085 (issued April 9, 2013); Edwin Lester, 34 ECAB 1807 (1983).

13

See Elsie L. Price, 54 ECAB 734 739 (2003); Raymond M. Shulden, 31 ECAB 297 (1979); Anna M. Blaine
(Gilbert H. Blaine), 26 ECAB 351 (1975).
14

Roger G. Payne, 55 ECAB 534 (2004).

15

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

16

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

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ANALYSIS -- ISSUE 2
In a decision dated September 27, 2012, OWCP accepted appellant’s claim for sprain of
the back, thoracic region, resolved by September 10, 2012. It provided her a copy of her appeal
rights. The Board notes, under OWCP procedures, if a case is accepted as resolved but
continued as an open case, OWCP must address the medical evidence upon which it determines
the condition has resolved and provide appeal rights.17 OWCP provided appellant with appeal
rights and kept the case open. Therefore, it has the burden of proof to establish that the accepted
thoracic strain has resolved.
As discussed, supra, the opinion of Dr. Curzie, appellant’s treating chiropractor, is not
given any weight as a medical opinion under FECA.18 Dr. Keller’s physician’s assistant
diagnosed a thoracic strain, but unlike the duty status report, the report diagnosing thoracic strain
is not countersigned by Dr. Keller. Because healthcare providers such as nurses and physician’s
assistants are not considered physicians under FECA, their reports do not constitute competent
medical evidence.19 Accordingly, there is no remaining rationalized report from a treating
physician indicating that appellant had a thoracic sprain. Therefore there was no conflict in the
medical evidence between appellant’s treating physician and the second opinion physician with
regard to whether appellant had any residuals from his thoracic strain to be resolved by an
impartial medical examiner.20
Although both Dr. Bald and Dr. Gritzka found that appellant had residuals from her
thoracic sprain in their respective second opinion reports, the most recent second opinion, that of
Dr. Curcin, determined that appellant had no residuals from any employment-related condition.
Dr. Curcin specifically indicated that appellant’s thoracic lumbar sprain/strain had resolved.
Dr. Kase found chronic thoracic pain syndrome without any objective evidence to support any
neurological or structural abnormalities. Although he found that appellant had nonemploymentrelated degenerative arthritis of her spine, he indicated that she will no longer have restrictions
placed upon her employment activities due to any specific work injury. Accordingly, the
evidence established that appellant no longer had a thoracic strain and that she was no longer
disabled from her federal employment due to her employment-related condition. The Board
finds that OWCP properly terminated appellant’s compensation and medical benefits.

17

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Acceptance, Resolved Conditions, Chapter
2.806(5) (June 2011).
18

Supra note 9.

19

5 U.S.C. § 8101(2); see also G.G., 58 ECAB 389 (2007).

20

Section 8123(a) of FECA provides that where there is a 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 U.S.C. § 8123(a).

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LEGAL PRECEDENT -- ISSUE 3
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,21
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.22 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.23 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.24
ANALYSIS -- ISSUE 3
Appellant submitted no new evidence along with her request for reconsideration.
Moreover, she did not assert a relevant new legal contention or show that OWCP erroneously
applied or interpreted a specific point of law. Because appellant failed to meet one of the
standards enumerated under section 8128(a) of FECA, she was not entitled to further merit
review of her claim.
CONCLUSION
The Board finds that OWCP properly rescinded acceptance of appellant’s claim for a
thoracic subluxation; properly terminated appellant’s wage-loss compensation and medical
benefits; and properly denied appellant’s request for reconsideration under 5 U.S.C. § 8128(a).

21

5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
22

20 C.F.R. § 10.606(b)(3).

23

Id. at § 10.607(a).

24

Id. at § 10.608(b).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 29 and 7, 2012 are affirmed.
Issued: September 3, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

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

Docket No. 09-735
Issued: December 22, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 22, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated September 5, 2008 affirming a March 12, 2008
decision terminating her compensation benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation benefits
effective March 15, 2008.

FACTUAL HISTORY
On April 23, 2007 appellant, then a 36-year-old mail handler, sustained a back injury
while pushing a container weighing approximately 300 pounds.1 She stopped work on April 24,
2007 and did not return. The Office accepted the claim for lumbar and thoracic neuritis and
radiculitis and paid appropriate benefits.
Appellant submitted medical reports from Dr. Mark A. P. Filippone, a Board-certified
physiatrist. In a May 9, 2007 report, Dr. Filippone reviewed her history and listed an impression
of thoracicalgia with possible thoracic radiculitis or radiculopathy and lumbosacral radiculitis
with possible radiculopathy, spinal compression fracture and herniated disc. He found that
appellant was totally disabled as a result of the April 23, 2007 injury.
The Office referred appellant to Dr. David Rubinfeld, a Board-certified orthopedic
surgeon, for a second opinion. In a September 4, 2007 report, Dr. Rubinfeld reviewed her
history of injury and the medical records. He noted that appellant complained of pain in the back
and left leg without numbness and had difficulty walking and bending. Dr. Rubinfeld listed the
results of examination and opined that appellant’s accepted conditions had resolved with no
further disability or residual. He found that she was able to return to her date-of-injury position
and no further medical care was necessary. Dr. Rubinfeld completed an OWCP-5c work
capacity evaluation.
In reports dated September 13 to November 6, 2007 Dr. Filippone reiterated that
appellant was totally disabled due to thoracic and lumbosacral radiculopathy since
April 23, 2007 and that there had been no change in her condition. Appellant submitted physical
therapy reports and diagnostic test reports.
The Office found a conflict in medical opinion arose between Dr. Filippone and
Dr. Rubinfeld as to whether appellant had continuing disability or residuals related to the
accepted injury. On November 8, 2007 it referred appellant, together with the case record, a
statement of accepted facts, to Dr. Andrew Carollo, a Board-certified orthopedic surgeon, for an
impartial evaluation. In a December 4, 2007 report, Dr. Carollo reviewed the statement of
accepted facts, the history of the April 23, 2007 injury and her medical treatment. He noted that
magnetic resonance imaging (MRI) scan studies of the thoracic and lumbar spines did not show
the presence of any disc herniation or annular disruptions in the disc structures. Appellant also
had normal alignment of both the thoracic and lumbosacral spines. Dr. Carollo described the
results of his examination of the cervical, dorsal and lumbosacral spine. Appellant did not
complain of pain with motion of the cervical spine and there was no objective evidence of
muscle spasm or muscle hardening in the neck region. Her deep tendon reflexes were
symmetrical in the upper extremities with no motor or sensory deficits or decrease in grip
strength of either extremity noted. Examination of the dorsal spine revealed mild discomfort to
1

On April 23, 2007 appellant had submitted an occupational claim form and medical evidence for a back
condition caused or aggravated by her employment April 23, 2007. The Office assigned the case file number
xxxxxx714. It subsequently determined case file number xxxxxx714 was a duplicate of the current case and deleted
case file number xxxxxx714 from the case management system after moving the contents of that case into the
current case.

2

direct digital pressure over the lower midline with no significant evidence of muscle spasm or
muscle hardening in the dorsal paraspinal muscles. Examination of the lumbosacral spine
revealed minimal discomfort with flexion and extension with mild muscle spasm from L4 to
sacrum mostly on the left side. The straight leg raising was negative bilaterally and deep tendon
reflexes were symmetrical in the lower extremities with no motor or sensory deficits present.
Dr. Carollo opined that appellant’s work-related conditions had resolved without residuals. He
found that she was not disabled and could perform her usual job as mail handler without physical
restrictions. Dr. Carollo noted that there was no objective evidence on examination of any
thoracic-lumbosacral dysfunction. Rather, appellant had full, unrestricted motion of the cervical
and dorsal-lumbar region with no motor or sensory deficits present in either the upper or the
lower extremities. Dr. Carollo advised that there was no need for additional medical treatment.
He also completed an OWCP-5c work capacity evaluation finding that appellant had no work
restrictions and could perform her usual job.
On November 6, 2007 Dr. Filippone noted appellant’s complaint of back pain, with
numbness and tingling in the right hand. He advised that she still had, guarding and spasm in the
cervical region more so than the lumbar or the thoracic paraspinal muscles. Central and
peripheral neurologic examinations were unchanged. Positive testing for bilateral carpal tunnel
syndrome was noted. Dr. Filippone advised that appellant remained totally disabled and should
continue with physical therapy and medication.
On February 8, 2008 the Office issued a notice of proposed termination of compensation
benefits. It found the weight of the medical evidence was represented by Dr. Carollo and
established that appellant no longer had any residuals or disability causally related to the
accepted conditions.
Appellant submitted additional reports from Dr. Filippone. On January 23, 2008
Dr. Filippone stated that she still had low back and cervical complaints, with radiation into the
right lower extremity. The medical history was unchanged as were appellant’s central and
peripheral neurologic examinations. Dr. Filippone opined that she remained totally disabled. In
a February 28, 2008 report, he stated that an August 14, 2007 lumbar spine MRI scan study was
abnormal and showed bilateral posterior lateral bulging of the annulus resulting in narrowing of
the inferior recess of each neural foramina at this level with straightening of the normal lordotic
curvature of the lumbar spine. An August 13, 2007 MRI scan of the thoracic spine was also
abnormal, with posterior bulging of the annulus fibrosis T4/5 with spondylosis deformans. A
June 20, 2007 electromyogram (EMG)/nerve conduction study (NCS) of the upper and lower
extremities was abnormal and showed evidence of bilateral carpal tunnel syndrome, worse on the
left. Dr. Filippone indicated that appellant had pain, guarding and spasm in the left cervical
paraspinals and in the lumbar paraspinals, bilaterally. There was a decreased prominence of the
right abductor pollicis brevis, bilateral positive Phalen’s and Tinel’s signs referable to the median
nerve at the wrist. Central and peripheral neurologic examinations were unchanged.
Dr. Filippone found that appellant was totally disabled noting that when she underwent the
independent medical examination she was taking prescribed narcotic medication that masked her
symptoms and physical presentation. He reiterated that the abnormal MRI scan and EMG/NCS
studies objectively established pathology consistent with appellant’s history and physical
presentation.

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By decision dated March 12, 2008, the Office terminated appellant’s compensation
benefits effective March 15, 2008 on the basis of Dr. Carollo’s impartial medical opinion.
Appellant requested an oral hearing, which was held July 15, 2008. At the hearing,
appellant’s attorney questioned whether Dr. Carollo was properly selected to resolve the medical
conflict through the Physician’s Directory System (PDS). Counsel also argued that Dr. Carollo’s
opinion was not sufficiently rationalized.
In a March 19, 2008 report, Dr. Filippone noted that appellant’s examination was
unchanged. He reiterated that she was totally disabled and unable to return to her regular
employment. In a June 10, 2008 report, Dr. Filippone disagreed with the opinions of
Dr. Rubinfeld and Dr. Carollo that appellant was capable of returning to her job as a mail handler
based on the results the August 14, 2007 of MRI scan of the lumbar and thoracic spines and the
June 20, 2007 EMG/NCS studies. He stated that Dr. Carollo’s diagnoses did not include the
abnormalities revealed by those studies. Dr. Filippone diagnosed bilateral carpal tunnel
syndrome, C5-6 cervical radiculopathy, L5 lumbosacral radiculopathy, bulging disc at L4-5,
lumbar muscle spasms and lumbar myalgia, posterior bulging of the annulus fibrosis T4-5 and
spondylosis deformans, which he attributed to the April 23, 2007 work injury. He opined that
appellant could not return to the repetitive tasks required in her mail handler job as her work
would cause her condition to further deteriorate. Appellant could not perform the constant
lifting, bending, pushing of heavy equipment also required by her job. Dr. Filippone
recommended further medical treatment and medication.
By decision dated September 5, 2008, the Office hearing representative affirmed the
March 12, 2008 decision.
LEGAL PRECEDENT
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.2 After it has determined that an
employee has disability causally related to 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.3 The Office’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.4 The right to
medical benefits for an accepted condition is not limited to the period of entitlement to
compensation for disability.5 To terminate authorization for medical treatment, the Office must
establish that appellant no longer has residuals of an employment-related condition, which
require further medical treatment.6
2

Paul L. Stewart, 54 ECAB 824 (2003).

3

Elsie L. Price, 54 ECAB 734 (2003).

4

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

5

Jaja K. Asaramo, 55 ECAB 200 (2004); Furman G. Peake, 41 ECAB 361 (1990).

6

T.P., 58 ECAB __ (Docket No. 07-60, issued May 10, 2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

4

Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee the Secretary shall appoint a
third physician who shall make an examination.7 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 a proper factual and medical
background, must be given special weight.8
ANALYSIS
Appellant’s claim for an injury on April 23, 2007 was accepted for lumbar and thoracic
radiculitis and neuritis. She stopped work on April 23, 2007 and has not returned. Appellant
was treated by Dr. Filippone who found her totally disabled due to the residuals of her accepted
conditions.
The Office referred appellant for a second opinion evaluation with Dr. Rubinfeld. On
September 4, 2007 Dr. Rubinfeld advised that she had fully recovered from the April 23, 2007
work injury without residuals. Appellant needed no further medical treatment and could return
to work without restrictions. Dr. Filippone submitted additional reports reiterating that she
continued to be totally disabled as a result of the April 23, 2007 work injury. The Board finds
that a conflict in medical opinion arose between Dr. Filippone and Dr. Rubinfeld regarding
whether appellant had continuing residuals of the April 23, 2007 work injury and her capacity for
work. The Office properly referred her to Dr. Carollo for an impartial medical examination.9
The Board finds that Dr. Carollo, the impartial medical specialist, based his opinion on a
proper factual and medical background. Dr. Carollo was provided with a copy of the case file, a
list of questions and a statement of accepted facts. He set forth the results of his findings on
physical examination of appellant and found the accepted conditions had resolved without
residuals or causing further need for medical treatment. Dr. Carollo noted that the MRI scan
studies of the thoracic and lumbar spines did not show the presence of any disc herniation or
annular disruptions in disc structures. There was normal alignment of both the thoracic and
lumbosacral spines. Dr. Carollo found that there was no objective evidence on examination that
appellant had any thoracic-lumbosacral dysfunction. Full, unrestricted range of motion was
found in the cervical and dorsal-lumbar region with no motor or sensory deficit in either the
upper or lower extremities. Dr. Carollo concluded that appellant was able to perform her mail
handler job with no restrictions and there was no need for additional medical treatment. He
found no basis on which to attribute any continuing condition or disability to the April 23, 2007
work injury.
Dr. Carollo 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.
7

F.R., 58 ECAB __ (Docket No. 05-15, issued July 10, 2007); Regina T. Pellecchia, 53 ECAB 155 (2001).

8

Darlene R. Kennedy, 57 ECAB 414 (2006).

9

Id.

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Appellant did not submit sufficient medical evidence to overcome the weight of
Dr. Carollo’s opinion or to create a new conflict. She submitted additional reports from
Dr. Filippone, who discussed the findings of diagnostic testing performed in 2007. Dr. Filippone
disagreed with Dr. Carollo’s opinion. His findings are generally the same as those which existed
at the time his opinion created a conflict with that of Dr. Rubinfeld. The Board has held that
reports from a physician who was on one side of a medical conflict that an impartial specialist
resolved, are generally insufficient to overcome the weight accorded to the report of the impartial
medical examiner or to create a new conflict.10 Dr. Filippone also related appellant’s disability
to cervical and upper extremity conditions, which were not accepted conditions.11 Appellant also
submitted physical therapy notes in support of her claim of continuing disability. However, a
physical therapist is not a physician as defined by the Federal Employees’ Compensation Act.
Therefore, their opinions are of no probative value.12 As the weight of the medical opinion
evidence supports that appellant no longer has residuals due to the April 23, 2007 work injury,
the Board finds that the Office met its burden of proof in terminating her compensation benefits
effective March 15, 2008.
Appellant’s counsel contends that Dr. Carollo’s report is insufficient to carry special
weight and that the Office should have sought clarification from Dr. Carollo regarding his
examination findings that appellant had L4 radiculopathy on the left side and required him to
outline any restrictions in light of his findings that she suffered from lumbar radiculopathy.
While Dr. Carollo noted that she had mild muscle spasm from L4 to sacrum mostly on the left
side, he specifically addressed the objective evidence and explained that the MRI scan studies of
the thoracic and lumbar spines failed to show the presence of any disc herniations or annular
disruptions in disc structures. He did not relate any findings on examination to the accepted
conditions. Dr. Carollo opined that appellant was not disabled and had no residuals of the
accepted conditions. It is further noted that he completed an OWCP-5 form and found that she
could perform her regular job without restrictions.
Appellant’s counsel contends that Dr. Carollo was not properly selected by the Office
from the PDS.13 However, the record reflects that on October 30, 2007 the appointment schedule
notification was run with reference to appellant and her zip code. Appellant has not submitted
any evidence to support her argument that Dr. Carollo was not properly selected in accordance
10

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008).

11

See T.M., 60 ECAB ___ (Docket No. 08-975, issued February 6, 2009) (for a condition not accepted or
approved by the Office as being due to an employment injury, the claimant bears the burden of proof to establish
that the condition is causally related to the employment injury).
12

Section 8101(2) of the Act provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by State law.
13

The selection of referee physicians is made by a strict rotational system using the PDS. The services of all
available and qualified Board-certified specialists will be used as far as possible to eliminate any inference of bias or
partiality. This is accomplished by selecting specialist in alphabetical order as listed in the roster chosen under the
specialty and/or subspecialty heading in the appropriate geographical area and repeating the process when the list is
exhausted. Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4b(1)
(May 2003); see also L.W., 59 ECAB ___ (Docket No. 07-1346, issued April 23, 2008).

6

with the Office’s rotational system. Moreover, she did not first challenge Dr. Carollo’s selection
until after her benefits were terminated. If appellant disagreed with the selection of the
physician, she should have noted her objections at or near the time she was informed of the
appointment.14
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits effective March 15, 2008.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated September 5, 2008 is affirmed.
Issued: December 22, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

14

See L.W., id.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.P., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL EMERGENCY MANAGEMENT
AGENCY, Washington, DC, Employer
__________________________________________

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

Docket No. 13-714
Issued: July 1, 2013

Case Submitted on the Record

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

JURISDICTION
On February 6, 2013 appellant filed a timely appeal of a September 24, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) which denied her traumatic
injury 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 met her burden of proof to establish that she sustained an
injury in the performance of duty on January 19, 2011.
On appeal, appellant contends that she sustained an injury in the performance of duty as
she walked through 600 Maryland Avenue, S.W., Washington, DC in order to catch the shuttle
service operated by the employing establishment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 30, 2012 appellant, then a 52-year-old benefits adviser, filed a traumatic injury
claim alleging that on January 19, 2011 she slipped in water on the floor and fractured her left
hip, shoulder, leg, knee, wrist and foot. On August 8, 2012 OWCP controverted her claim,
contending that the injury did not occur in the performance of duty but at an off-premises
location while she was commuting to work. The employing establishment noted that appellant
slipped and fell on January 19, 2011 at 600 Maryland Avenue, S.W., Washington D.C., while
going to catch a shuttle bus that morning to her office.2
On September 11, 2012 appellant responded to questions from OWCP. She stated that
her typical commute involved taking a commuter bus that dropped her off at 600 Maryland
Avenue, S.W. at approximately 6:19 a.m. Upon getting off the bus, appellant’s route required
her to go through the L’Enfant Plaza building and shops to catch an employing establishment
shuttle at 500 C Street, S.W. at 6:30 a.m. As she began walking through the entrance of the
L’Enfant Plaza building she fell on her left side. Appellant noted that there was water on the
floor where she fell.
By decision dated September 24, 2012, OWCP denied appellant’s claim finding that the
evidence did not establish that she was in the performance of duty at the time of the January 19,
2011 accident. It found that she was off premises at the time of the injury.
LEGAL PRECEDENT
FECA provides for the payment of compensation for the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.3 The phrase
sustained while in the performance of duty in FECA is regarded as the equivalent of the
commonly found requisite in workers’ compensation law of arising out of and in the course of
employment.4
To arise in the course of employment, an injury must occur at a time when the employee
may reasonably be said to be engaged in the master’s business, at a place where he may
reasonably be expected to be in connection with the employment and while he was reasonably
fulfilling the duties of his employment or engaged in doing something incidental thereto.5 In
deciding whether an injury is covered by FECA,6 the test is whether, under all the circumstances,

2

Appellant’s regular work hours were reported as 6:30 a.m. to 4:00 p.m., Monday through Friday.

3

5 U.S.C. § 8102(a).

4

See Valerie C. Boward, 50 ECAB 126 (1998).

5

See R.A., 59 ECAB 581 (2008); Mary Keszler, 38 ECAB 735 (1987).

6

5 U.S.C. §§ 8101-8193.

2

a causal relationship exists between the employment itself or the conditions under which it is
required to be performed and the resultant injury.7
The Board has recognized as a general rule that off-premises injuries sustained by
employees having fixed hours and places of work while going to or coming from work or during
a lunch period, are not compensable, as they do not arise out of and in the course of employment.
Rather, such injuries are merely the ordinary, nonemployment hazards of the journey itself,
which are shared by all travelers, subject to certain exceptions.8 Underlying some of these
exceptions is the principle that course of employment should extend to any injury that occurred
at a point where the employee was within the range of dangers associated with the employment.9
The most common ground of extension is that the off-premises point at which the injury
occurred lies on the only route or at least on the normal route, which employees must traverse to
reach the premises and that therefore the special hazards of that route become the hazards of the
employment.10 This exception contains two components. The first is the presence of a special
hazard at the particular off-premises point. The second is the close association of the access
route with the premises, so far as going and coming are concerned.11 The main consideration in
applying this rule is whether the conditions giving rise to the injury are causally connected to the
employment.12
ANALYSIS
Appellant alleged that she slipped in water on the floor and fell at the L’Enfant Plaza
building at 600 Maryland Avenue, S.W. while walking from her commuter bus to the location of
the employing establishment’s shuttle.
With regards to the time element, based on appellant’s statement, the incident occurred at
approximately 6:30 a.m. while she was commuting to work. She was still on her way to the
employing establishment and had not yet begun her work. The Board has held that the mere fact
that an injury occurs during the workday is not sufficient, in and of itself, to bring an injury
within the performance of duty. For compensability, the concomitant requirement of an injury,
arising out of employment, must also be shown.13

7

See Mark Love, 52 ECAB 490 (2001).

8

See M.L., Docket No. 12-286 (issued June 4, 2012); John M. Byrd, 53 ECAB 684 (2002); see also Gabe Brooks,
51 ECAB 184 (1999); Thomas P. White, 37 ECAB 728 (1986); Robert F. Hart, 36 ECAB 186 (1984).
9

See R.O., Docket No. 08-2088 (issued February 18, 2011).

10

See Shirley Borgos, 31 ECAB 222, 223 (1979).

11

See supra note 7.

12

Id.; see also Jimmie Brooks, 22 ECAB 318, 321 (1971).

13

See William W. Knispel, 56 ECAB 639 (2005); Luis A. Velez, 56 ECAB 592 (2005).

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In Idalaine L. Hollins-Williamson,14 the employee fell and injured her left side while
walking from a parking lot to the employing establishment building on a snow-covered public
sidewalk. The Board found that the employee did not establish that the sidewalk on which she
fell was used exclusively or principally by employees of the employing establishment for the
convenience of the employing establishment. The evidence of record supported that the
sidewalk where the incident occurred was not owned, operated or maintained by the employing
establishment and was open to the public. The employee’s injury was found not to be in the
performance of duty. In M.L., the employee fell while walking across the street from a train
station to work. The Board found that the employee fell while commuting to work on a public
sidewalk, and was not in the performance of duty.15
Even if a public area were the customary means of access to the employing establishment
or to a transportation point for its employees, this did not alter the public nature of the area or
render it a part of the employing establishment’s premises.16 In this case there is no evidence
that the area where appellant fell was restricted to the employees of the employing establishment
or that it owned, operated or maintained the area where the incident occurred. The area was
open to the general public. The evidence does not establish that appellant was engaged on any
special errand when she left her home to commute to her place of employment and there is no
evidence which would establish that her journey to work that day was an integral part of any
errand or special task either expressly or impliedly agreed to by the employing establishment.
Rather, as stated by appellant, travel on that date conformed to her regular work schedule and her
normal morning commute in going to the office. The Board finds that she was not in the
performance of duty on January 19, 2011 as the injury occurred while she was exposed to an
ordinary, off-premises nonemployment hazard of the journey shared by all travelers.17
While appellant’s employment gave rise to her journey between home and the employing
establishment, workers’ compensation was not intended to protect her from all the perils of such
journey.18 The Board finds that the established exceptions mentioned above do not apply to her
case. Appellant was not reasonably fulfilling the duties of her employment or doing something
incidental to the fulfillment of her job duties. She had not yet begun her tour of duty and was
walking in a public area towards the employing establishment’s shuttle pick-up point. As noted,
an employee going to work who have been injured off-premises is not in the course of
employment.19 As appellant was not in the course of employment at the time of the January 19,
2011 incident, she has failed to meet her burden of proof.

14

55 ECAB 655 (2004).

15

Docket No. 12-286 (issued June 4, 2012).

16

See supra note 8.

17

See supra note 7.

18

See Asia Lynn Doster, 50 ECAB 351 (1999).

19

See C.P., Docket No. 11-1432 (issued January 23, 2012).

4

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an injury in the performance of duty on January 19, 2011.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 24, 2012 is affirmed.
Issued: July 1, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.T., Appellant
and
DEPARTMENT OF AGRICULTURE, CASUAL
FIREFIGHTERS, San Bernardino, CA,
Employer
__________________________________________

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

Docket No. 08-310
Issued: June 23, 2008

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 November 8, 2007 appellant filed a timely appeal from merit decisions of the Office
of Workers’ Compensation Programs dated February 22 and October 9, 2007 that denied certain
benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the
merits of the case.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate of appellant’s
compensation benefits effective August 15, 2006; (2) whether appellant established that he had
any continuing disability or residuals relating to his accepted conditions after August 15, 2006;
and (3) whether appellant met his burden of proof in establishing that he was totally disabled
from June 16 to December 28, 2004 and October 27, 2005 to February 18, 2006.

FACTUAL HISTORY
On August 23, 2003 appellant, then a 41-year-old casual firefighter, sustained injury
when he twisted his left knee and ankle while walking to a fire. The Office accepted the claim
for left knee strain and left ankle sprain and paid appropriate compensation benefits. Appellant
stopped work on August 25, 2003 and his assignment ended September 1, 2003.
Appellant came under the care of Dr. Albert Simpkins, a Board-certified orthopedic
surgeon, who first treated him on November 5, 2003. Dr. Simpkins diagnosed left knee and
ankle sprain, rule out internal derangement. In a June 16, 2004 report, he noted that a left knee
magnetic resonance imaging (MRI) scan revealed intra-meniscal degeneration of the posterior
horn of the medial meniscus with no evidence of ligamentous rupture or meniscal tear. On
August 25, 2004 Dr. Simpkins noted examination findings of intact reflexes in the upper and
lower extremities and no sensory deficits. He indicated that appellant appeared to give less than
full effort which he attributed to pain. However, Dr. Simpkins opined that appellant’s
complaints were disproportionate to the minimal findings on x-rays of the neck, back and
shoulder and the fact that the injury occurred some time prior.
On December 7, 2004 the Office referred appellant to Dr. Laurence Meltzer, a Boardcertified orthopedic surgeon, for a second opinion. In a December 28, 2004 report, Dr. Meltzer
discussed appellant’s work history and indicated that the physical examination revealed normal
station and gait, no evidence of swelling, redness, increased heat or deformity of the lower
extremities or knees, full range of motion of the knees and an intact motor and sensory
examination. He opined that, although appellant had subjective complaints of his knees locking,
swelling and pain, there were no objective findings upon examination. Dr. Meltzer opined that
appellant did not have an orthopedic problem but might be pursuing his claim for secondary
gain. He noted that appellant was partially disabled until September or October 2003 and that
his accepted conditions were resolved and he had no continuing residuals. Dr. Meltzer opined
that appellant could return to work full time without restrictions.
On November 3, 2005 the Office authorized a change in physicians to
Dr. Daniel Kharrazi, a Board-certified orthopedic surgeon, who first treated appellant on
October 27, 2005. Dr. Kharrazi noted a history of injury and diagnosed internal derangement of
the left knee, possible meniscal tear, chondromalacia and synovitis and possible chronic
anterolateral sprain of the left ankle. He opined that appellant was temporarily totally disabled
due to his work injury. In reports dated November 30 and December 8, 2005, Dr. Kharrazi noted
that the neurological examination was intact with tenderness in the peripatellar, medial and
lateral meniscus and diagnosed internal derangement of the left knee and possible tear. He
recommended conservative treatment and advised that appellant was temporarily totally disabled
for six weeks. A January 10, 2006 left knee MRI scan revealed no abnormalities.
Appellant submitted a Form CA-7, claim for compensation for total disability, for the
period June 16 to December 28, 2004 and from October 27, 2005 to February 16, 2006. On
February 22, 2006 the Office requested that he submit additional medical evidence to support
total disability.
Appellant submitted reports from Dr. Kharrazi dated January 5 to
March 30, 2006. Dr. Kharrazi diagnosed internal derangement of the left knee, possible

2

meniscal tear, chondromalacia and synovitis and possible chronic anterolateral sprain of the left
ankle. He recommended arthroscopic surgery and advised that appellant was totally disabled.
The Office found a conflict in medical opinion between Dr. Kharrazi, for appellant, and
Dr. Meltzer, for the Office, regarding whether appellant had on going disability or residuals of
his work-related injuries. To resolve the conflict the Office referred appellant to Dr. Gary L.
Painter, a Board-certified orthopedic surgeon, selected as the impartial medical specialist.
In a May 15, 2006 report, Dr. Painter reviewed the record, noted a history of appellant’s
work-related injury and set forth findings of examination. He stated that appellant presented
wearing a locking brace for the left knee that prevented full flexion. Dr. Painter advised that
appellant reported having constant severe pain in his left knee that was aggravated by walking.
Examination of the left knee revealed tenderness to palpation, no effusion, no increased skin
temperature or redness, range of motion was restricted due to pain, no crepitation and no gross
ligamentous instability or unusual alignment. The anterior drawer test was negative but caused
pain. Dr. Painter said that appellant was too sensitive to touch to perform Lachman’s test and
that MacMurray’s test could not be performed due to restricted range of motion. With regard to
the left ankle, he noted tenderness on palpation, no effusion, limited range of motion due to pain,
no gross instability or swelling and no circulatory abnormalities. Dr. Painter diagnosed left knee
strain and left ankle sprain and opined that these injuries had resolved. He stated that there was
no objective physical evidence to support ongoing disability related to appellant’s left ankle or
knee and opined that appellant did not have residuals of the August 23, 2003 work injury.
Dr. Painter explained that the “lack of any residual disability would be consistent with the
relatively mild nature of his injury as reflected in the initial medical records.”
Dr. Painter indicated that there was no medical documentation of a torn meniscus or
ligament of the knee or ankle and no physical findings which would justify proceeding with
arthroscopic surgery. He stated that appellant’s ongoing symptomologies and complaints were
“far out of proportion” to both the objective findings and to the nature of the initial injury.
Dr. Painter added that, even if a ligamentous injury had occurred, appellant should have had
much greater painless range of motion than what he exhibited on examination. He explained that
patients with “severe” fractures and ligamentous reconstruction had better motion and less pain
than exhibited by appellant. Dr. Painter advised that “not only are abnormal objective factors
absent, but objective findings suggest he is using the left leg pretty much normally, since there is
a lack of any atrophy of the left thigh musculature or left calf musculature” and there was
“absolutely no increase in size about the knee itself or the ankle to suggest there is inflammation,
compared to the opposite side.” He remarked that Dr. Kharrazi’s initial report of October 27,
2005 indicated that appellant had reported pain under the kneecaps, which was not the area
where he had most recently complained of pain. Dr. Painter also advised that appellant’s left
knee range of motion, as recorded by Dr. Kharrazi was much greater than the range of motion
that he recorded. He opined that appellant had no residuals of his accepted injury and that he
could return to work full time without restrictions.
On June 14, 2006 the Office proposed to terminate compensation benefits for appellant’s
accepted left knee strain and left ankle sprain on the grounds that Dr. Painter’s report dated
May 15, 2006 established no residuals of the work-related employment injury.

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In a letter dated June 29, 2006, appellant resubmitted a copy of Dr. Simpkins’ August 25,
2004 report and Dr. Kharrazi’s March 30, 2006 report. In a May 11, 2006 report, Dr. Kharrazi
asserted that appellant’s knee condition was employment related and required surgery.
By decision dated August 15, 2006, the Office terminated appellant’s compensation
benefits on the grounds that the weight of the medical evidence established that appellant had no
continuing disability resulting from his accepted employment injury. The Office further denied
appellant’s claim for total disability for the period June 16 to December 28, 2004 and from
October 27, 2005 to February 18, 2006.
Appellant requested an oral hearing which was held on December 12, 2006. He
resubmitted reports from Dr. Simpkins and also submitted reports from Dr. Kharrazi dated
June 22 to August 3, 2006, who disagreed with Dr. Painter. Appellant again recommended left
knee arthroscopic surgery and supported total disability. An MRI scan of the left knee dated
August 28, 2006 revealed small knee joint effusion with primary consideration to an active
synovitis.
On February 22, 2007 an Office hearing representative affirmed the August 15, 2006
decision.
On July 9, 2007 appellant requested reconsideration and he submitted reports from
Dr. Simpkins. He also submitted a September 14, 2006 report from Dr. Kharrazi, who diagnosed
left knee effusion and prescribed pain medication.
In an October 9, 2007 decision, the Office denied modification of its February 22, 2007
decision.
LEGAL PRECEDENT -- ISSUE 1
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 -- ISSUE 1
The Office accepted appellant’s claim for left knee strain and left ankle sprain. The
Office subsequently developed the medical evidence and determined that a conflict in medical
1

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

2

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

3

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

4

opinion arose between Dr. Kharrazi appellant’s attending physician, who disagreed with
Dr. Meltzer, an Office referral physician, regarding whether appellant had on going residuals of
his work-related injuries and whether he could return to work full time.4 Where there exists a
conflict of medical opinion and the case is referred to an impartial specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based
upon a proper factual background, is entitled to special weight.5
The Board finds that the opinion of Dr. Painter is sufficiently well rationalized and based
upon a proper factual background such that it is entitled to special weight and establishes that
appellant’s work-related conditions have ceased. In a May 15, 2006 report, Dr. Painter reviewed
appellant’s history, reported findings and noted that both subjective and objective medical
evidence established that his physical injuries had resolved. He noted findings upon physical
examination of left knee tenderness, no effusion, no increased skin temperature or redness, range
of motion was restricted due to pain, no crepitation and no gross ligamentous instability. With
regard to the left ankle, Dr. Painter noted tenderness upon palpation, no effusion, limited range
of motion due to pain and no gross instability or swelling. He diagnosed left knee strain and left
ankle sprain and opined that these injuries were resolved. Dr. Painter noted that there was no
objective physical evidence to support ongoing disability related to appellant’s left ankle and
knee and opined that appellant did not have residuals of the August 23, 2003 work injury. He
indicated that there was no medical documentation of a torn meniscus or ligaments and no
physical findings which would justify proceeding with arthroscopic surgery. Dr. Painter
indicated that appellant’s ongoing symptomologies and complaints were disproportionate to the
objective findings and to the nature of the initial injury which suggested symptom magnification.
He gave reasons for his opinion, noting, for example, that “objective findings suggest he is using
the left leg pretty much normally, since there is a lack of any atrophy of the left thigh
musculature or left calf musculature” and there was “absolutely no increase in size about the
knee itself or the ankle to suggest there is inflammation, compared to the opposite side.”
Dr. Painter concluded that appellant’s accepted injuries had resolved without residuals and that
appellant could return to work full time without restrictions.
Appellant submitted a report from Dr. Simpkins dated August 25, 2004, who diagnosed
left knee and ankle sprain. However, this report predated the period in which the Office
terminated appellant’s compensation benefits and did not otherwise not support that he would
have an ongoing chronic condition due to his accepted injuries. Instead, Dr. Simpkins noted that
appellant appeared to give less than full effort due to reported pain and he found appellant’s
complaints disproportionate to the minimal findings on the x-rays of the neck, back and shoulder
and the fact that the injury occurred some time ago.
Appellant also submitted a reports from Dr. Kharrazi dated March 30 and May 11, 2006.
He diagnosed left knee and ankle conditions, recommended arthroscopic surgery and advised
that appellant remained totally disabled. However, Dr. Kharrazi failed to adequately address the
reasons why any continuing orthopedic condition or disability was causally related to the
accepted August 23, 2003 employment injury. Dr. Kharrazi was on one side of a conflict that
4

See 5 U.S.C. § 8123(a).

5

Solomon Polen, 51 ECAB 341 (2000).

5

was resolved by Dr. Painter and his report does not otherwise provide new findings or medical
rationale sufficient to establish that any continuing condition or disability was causally related to
the August 23, 2003 work injury.6
The Board finds that Dr. Painter had full history of the relevant facts and evaluated the
course of appellant’s condition. Dr. Painter is a specialist in the appropriate field. At the time
benefits were terminated, he clearly opined that appellant had no residuals or disability
attributable to his accepted orthopedic conditions. Dr. Painter’s opinion, as set forth in his
May 15, 2006 report, is found to be probative evidence and reliable. The Board finds that his
opinion represents the weight of the medical evidence and is sufficient to justify the Office’s
termination of appellant’s benefits for the accepted conditions of left knee strain and left ankle
sprain effective August 15, 2006.
LEGAL PRECEDENT -- ISSUE 2
If the Office meets its burden of proof to terminate appellant’s compensation benefits, the
burden shifts to appellant to establish that he had continuing disability causally related to his
accepted employment injury.7 To establish a causal relationship between the condition, as well
as any disability claimed and the employment injury, the employee must submit rationalized
medical opinion evidence, based on a complete factual background, supporting such a causal
relationship. 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. The weight of medical evidence is determined by its reliability, its
probative value, its convincing quality, the care of analysis manifested and the medical rationale
expressed in support of the physician’s opinion.8
ANALYSIS -- ISSUE 2
The Board finds that appellant has not established that he has any continuing residuals or
disability causally related to his accepted employment injuries on or after August 15, 2006.
Appellant submitted reports from Dr. Simpkins dated November 5, 2003 to August 25, 2004,
predate the time that the Office terminated benefits. These reports are of no value in establishing
that he had continuing residual of the work injuries on or after August 15, 2006 since they
predate the time of the termination of benefits.

6

See Michael Hughes, 52 ECAB 387 (2001); Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992);
Dorothy Sidwell, 41 ECAB 857 (1990).
7

Manuel Gill, 52 ECAB 282 (2001); George Servetas, 43 ECAB 424, 430 (1992).

8

See Connie Johns, 44 ECAB 560 (1993); James Mack, 43 ECAB 321 (1991).

6

Reports from Dr. Kharrazi dated June 22 and September 14, 2006, diagnosed internal
derangement of the left knee, possible meniscal tear, chondromalacia and synovitis and possible
chronic anterolateral sprain of the left ankle. Dr. Kharrazi recommended arthroscopic surgery
and advised that appellant was totally disabled. However, he, as noted above, were on one side
of a conflict that was resolved by Dr. Painter9 and his reports do not otherwise provide new
findings or medical rationale sufficient to establish that any continuing condition or disability
was causally related to the August 23, 2003 work injury. Thus, Dr. Kharrazi’s reports are
insufficient to overcome that of Dr. Painter or to create a new medical conflict.
None of the reports submitted by appellant after the termination of benefits included a
rationalized opinion regarding the causal relationship between his current condition and his
accepted work-related injury of August 23, 2003. Consequently, he did not establish that he had
any employment-related condition or disability after August 15, 2006.
LEGAL PRECEDENT -- ISSUE 3
A claimant has the burden of proving by a preponderance of the evidence that he or she is
disabled for work as a result of an accepted employment injury and submit medical evidence for
each period of disability claimed.10 Whether a particular injury causes an employee to be
disabled for employment and the duration of that disability are medical issues.11 The issue of
whether a particular injury causes disability for work must be resolved by competent medical
evidence.12 The Board will not require the Office to pay compensation for disability in the
absence of medical evidence directly addressing the specific dates of disability for which
compensation is claimed. To do so, would essentially allow an employee to self-certify his or
her disability and entitlement to compensation.13
ANALYSIS -- ISSUE 3
The Office also found that appellant had not established his claim for total disability for
the period June 16 to December 28, 2004 and from October 27, 2005 to February 18, 2006. The
Board finds that the medical evidence is insufficient to establish that the claimed period of total
disability was caused or aggravated by the accepted employment injury.
Appellant submitted reports from Dr. Simpkins dated June 16 and August 25, 2004, who
treated him for work injuries sustained on August 23, 2003 and diagnosed left knee and ankle
sprain. However, Dr. Simpkins did not specifically address whether appellant had any
employment-related disability beginning June 16 to December 28, 2004 causally related to his

9

See Michael Hughes, supra note 6.

10

See Fereidoon Kharabi, 52 ECAB 291 (2001).

11

Id.

12

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

13

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

7

August 23, 2003 employment injury.14 As noted, his August 25, 2004 report noted that
appellant’s symptoms and complaints were disproportionate with his minimal findings.
Therefore, these reports are insufficient to meet appellant’s burden of proof.15
Appellant also submitted reports from Dr. Kharrazi from October 27, 2005 to
September 14, 2006. Dr. Kharrazi opined that appellant was temporarily totally disabled.
Although he noted that appellant was still experiencing symptoms of left knee and ankle pain
and was disabled, Dr. Kharrazi failed to provide a specific and reasoned opinion on causal
relationship directly addressing the specific dates of disability claimed and explaining the
reasons why any such disability would be due to the accepted left ankle sprain and knee strain
sustained on August 23, 2003.
The remainder of the medical evidence also does not provide a specific opinion on causal
relationship addressing the claimed period of disability and the accepted employment injury of
August 23, 2003. Consequently, the medical evidence does not establish that appellant was
disabled during the claimed period as a result of his August 23, 2003 work injury.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate benefits effective
August 15, 2006 and that appellant failed to establish that he had any continuing disability due to
his accepted condition after August 15, 2006. It further finds that the evidence does not establish
that appellant was totally disabled from June 16 to December 28, 2004 and October 27, 2005 to
February 18, 2006 due to his accepted employment conditions.

14

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006) (medical evidence which does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
15

The evidence also does not show that there was any wage loss during the period claimed which was incidental
to treatment for an accepted injury. See 5 U.S.C. § 8103(a); Daniel Hollars, 51 ECAB 355 (2000).

8

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 9 and February 22, 2007 are affirmed.
Issued: June 23, 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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF THE NAVY, AIR
SYSTEMS COMMAND, San Diego, CA,
Employer
__________________________________________

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

Docket No. 12-846
Issued: October 15, 2012

Case Submitted on the Record

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

JURISDICTION
On March 6, 2012 appellant filed a timely appeal from a January 30, 2012 merit decision
of the Office of Workers’ Compensation Programs (OWCP) regarding a schedule award.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to review the merits of the decision.
ISSUE
The issue is whether appellant sustained more than a 22 percent impairment of the right
arm or 23 percent impairment of the left arm, for which she received schedule awards.
On appeal, appellant contends that she continues to experience pain and loss of grip
strength in her left hand.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. By decision and order issued January 8,
2001, the Board affirmed OWCP’s November 10, 1998 decision finding that appellant had not
established more than 20 percent impairment to each upper extremity awarded on August 16,
1995 due to accepted bilateral carpal tunnel syndrome. Appellant also underwent right median
nerve releases on September 29, 1994 and December 6, 1997. The facts of the case as set forth
in the Board’s prior decision are incorporated by reference.
2

In an April 3, 2009 report, Dr. Richard Greenfield, an attending Board-certified
orthopedic surgeon, stated that he had treated appellant beginning in 1996. He noted her
complaints of severe pain throughout both upper extremities and diagnosed bilateral wrist
tendinosis, ongoing carpal tunnel syndromes and postsurgical status. On December 9, 2009
appellant presented with decreased sensation in the left hand, which Dr. Greenfield diagnosed as
ulnar neuropathy.
January 13, 2010 electromyography and nerve conduction velocity studies of the left
wrist and hand showed moderate left carpal tunnel syndrome, affecting the median and sensory
nerves. Dr. Greenfield reviewed the studies on January 28, 2010 and recommended left median
and ulnar nerve decompression. OWCP approved the procedures.
On June 1, 2010 Dr. Greenfield performed surgical decompression of the left median
nerve at the carpal canal and decompression of the left ulnar nerve at Guyon’s canal. He
submitted progress notes through October 7, 2010 noting improving symptoms.
In a June 7, 2010 letter, OWCP advised appellant to submit an impairment rating from
her attending physician using the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (A.M.A., Guides). It advised her on February 2, 2011
that it could not develop her schedule award claim until the medical evidence showed that she
had reached maximum medical improvement.
On July 13, 2011 appellant claimed an augmented schedule award. She submitted a
February 10, 2011 report from Dr. Greenfield finding that she had reached maximum medical
improvement as of December 9, 2010. Dr. Greenfield found full range of motion throughout
both hands and wrists, normal sensation in both hands and significantly diminished grip strength
on the left. He opined that, under the fifth edition of the A.M.A., Guides, appellant had 30
percent left arm impairment due to decreased grip strength.
On September 14, 2011 OWCP referred the medical record to an OWCP medical adviser
to determine the percentage of permanent impairment according to the sixth edition of the
A.M.A., Guides. It noted that a left ulnar nerve lesion was accepted in addition to bilateral
carpal tunnel syndrome.
In an October 4, 2011 report, an OWCP medical adviser reviewed Dr. Greenfield’s
February 10, 2011 report. He concurred that appellant had reached maximum medical
2

Docket No. 00-317 (issued January 8, 2001).

2

improvement. The medical adviser noted that section 15.4f of the sixth edition of the A.M.A.,
Guides, titled “Entrapment Neuropathy,” did not allow for impairment due to grip strength loss.
Regarding both upper extremities, he referred to Table 15-23 of the sixth edition of the A.M.A.,
Guides3 to determine a grade modifier of 1 for Functional History (GMFH) due to mild
intermittent symptoms, a grade modifier for Physical Examination (GMPE) of zero due to a lack
of sensory or motor deficits and a grade modifier for Clinical Studies (GMCS) of 1 for a history
of electrodiagnostic abnormalities. Adding the grade modifiers of 1, 1 and 0 to equal 2, then
divided by 3, averaged .67, which rounded up to 1. The medical adviser determined a grade 1
impairment of the right hand, with a default impairment of two percent to each arm. He found an
additional one percent impairment to the right arm according to page 448, entitled Multiple
Simultaneous Neuropathies, as appellant had entrapment of both the median and ulnar nerves.
The medical adviser found three percent impairment of the left arm.
By decision dated January 30, 2012, OWCP granted appellant an additional two percent
impairment to the right arm and an additional three percent impairment to the left arm. The
period of the award ran from December 9, 2010 to March 28, 2011.
LEGAL PRECEDENT
The schedule award provisions of FECA provide for compensation to employees sustaining
impairment from loss or loss of use of specified members of the body. It does not specify the
manner in which the percentage loss of a member shall be determined. The method used in
making such determination is a mater which rests in the sound discretion of OWCP. For consistent
results and to ensure equal justice, the Board has authorized the use of a single set of tables so that
there may be uniform standards applicable to all claimants. The A.M.A., Guides has been adopted
by OWCP as a standard for evaluation of schedule losses and the Board has concurred in such
adoption.4 For schedule awards after May 1, 2009, the impairment is evaluated under the sixth
edition of the A.M.A., Guides, published in 2008.5
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).6 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition (CDX), which is then adjusted by grade modifiers based on GMFH, GMPE
and GMCS.7

3

Table 15-23, page 449 of the sixth edition of the A.M.A., Guides is entitled “Entrapment/Compression
Neuropathy Impairment.”
4

Bernard A. Babcock, Jr., 52 ECAB 143 (2000). See 5 U.S.C. § 8107.

5

Federal (FECA) Procedure Manual, Part 2 -- Claims Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
6

A.M.A., Guides (6th ed., 2008), page 3, section 1.3, “The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.”
7

A.M.A., Guides (6th ed., 2008), pp. 494-531.

3

ANALYSIS
OWCP accepted that appellant sustained bilateral carpal tunnel syndrome. On
August 16, 1995 it granted her schedule awards for a 20 percent permanent impairment of each
upper extremity. Pursuant to the first appeal, the Board affirmed OWCP’s November 10, 1998
decision denying an augmented schedule award as the medical evidence did not establish a
greater percentage of permanent impairment than that previously awarded.
Appellant claimed an augmented schedule award on July 13, 2011. In support of her
claim, she submitted a February 10, 2011 report from Dr. Greenfield, finding normal sensation
and full motion in both hands and wrists but diminished grip strength in the left hand.
Dr. Greenfield assessed a 30 percent impairment of the left arm according to the fifth edition of
the A.M.A., Guides. OWCP explained to appellant in a June 7, 2010 letter, however, that the
impairment rating needed to be based on the sixth edition of the A.M.A., Guides. It referred the
record to an OWCP medical adviser for an impairment rating.
On October 4, 2011 an OWCP medical adviser applied Table 15-23 of the sixth edition of
the A.M.A., Guides to Dr. Greenfield’s findings. He opined that, for both upper extremities,
appellant had a GMFH of 1 for mild symptoms, a GMCS of 1 due a history of abnormal
electrodiagnostic studies and a GMPE of 0, noting that grip strength was not considered under
the sixth edition of the A.M.A., Guides. The medical adviser added these modifiers to equal 2,
divided them by 3 to equal .67 rounded up to 1, resulting in a grade 1 impairment with a default
grade of two percent. He assessed an additional one percent impairment to the left upper
extremity for the ulnar nerve lesion, for a total three percent impairment of the left arm.
The Board finds that OWCP properly relied on Dr. Greenfield’s clinical findings, as
interpreted by the medical adviser, to find that appellant had a two percent impairment of the
right upper extremity and a three percent impairment of the left upper extremity. OWCP’s
January 30, 2012 decision was proper under the law and facts of this case.
On appeal, appellant contended that she continues to experience pain and loss of grip
strength in her left hand. However, as set forth above, she did not submit probative medical
evidence supporting greater percentages of impairment than those awarded. Appellant may
request a schedule award or increased schedule award based on evidence of a new exposure or
medical evidence showing progression of an employment-related condition resulting in
permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that she sustained more than a 22
percent impairment of the right upper extremity and a 23 percent impairment of the left upper
extremity, for which she received schedule awards.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 30, 2012 is affirmed.
Issued: October 15, 2012
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.K., Appellant
and
DEPARTMENT OF THE ARMY, DEFENSE
LANGUAGE INSTITUTE, Monterey, CA,
Employer
__________________________________________

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

Docket No. 09-859
Issued: October 20, 2009

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 February 11, 2009 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decisions dated July 1 and October 31, 2008, denying her claim
for a knee injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the issue in this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
left arm injury.
FACTUAL HISTORY
On May 13, 2008 appellant, then a 47-year-old assistant professor, filed a traumatic
injury claim alleging that her knee went out right after a physical therapy session, which she was
attending due to an April 9, 2008 work injury, when she fell on a concrete step and fractured her
left arm. She sustained multiple fractures to her left arm and elbow.

The Office requested additional factual and medical evidence by letter dated
May 14, 2008. It allowed 30 days for a response. In a report dated April 22, 2008,
Dr. Christopher M. Meckel, a Board-certified orthopedic surgeon, stated that because of
appellant’s weak knee she missed a step and fell down on her arm. He diagnosed fracture of the
radial head, fracture of the ulnar shaft, joint pain in the lower leg and shin splints. In a form
report dated April 25, 2008, Dr. Meckel stated that appellant had a previous knee injury, that her
knee collapsed and she injured her arm sustaining a left proximal ulna fracture. He indicated
with a checkmark “yes” that her condition was due to her previous workers’ compensation knee
injury. Dr. Meckel noted that appellant underwent surgery for her left arm condition. Appellant
requested compensation from May 25 to July 15, 2008.
On April 12, 2008 Dr. Meckel stated that appellant fell onto her left upper extremity and
diagnosed a displaced comminuted proximal ulnar fracture and a highly comminuted radial head
fracture. He performed an open reduction and internal fixation of the left proximal ulna fracture
and left radial head replacement on April 12, 2009 and completed a discharge note on
April 27, 2008. On June 5, 2008 Dr. Meckel found that appellant should continue modified
work.
By decision dated July 1, 2008, the Office denied appellant’s claim finding that she had
not submitted the necessary factual evidence to meet her burden of proof. It stated that she had
an accepted claim for right knee contusion and that she was authorized to receive physical
therapy for this condition; however, as she was not at work when she sustained her left elbow
injury it did not accept that her injury was causally related to factors of federal employment.
Appellant requested reconsideration on July 29, 2008 and explained that she sustained an
accepted right knee injury on March 12, 2008 and received physical therapy for this condition.
She stated that her physician, Dr. John Bennetts, released her to return to work duties on April 3,
2008 with a knee brace and prescription for physical therapy. Appellant stated on April 9, 2008
that she was returning home after physical therapy for her knee and felt some pain and weakness
in her knee, stopped to rest at a friend’s house and then stepped up on a step with her right foot
when her knee collapsed and she fell and hit her left arm on the cement driveway. She submitted
a witness statement from her friend, Yousra El Machtoub, describing the events of April 9, 2008.
On July 7, 2008 Dr. Meckel described appellant’s continued elbow pain. Appellant also
resubmitted a copy of the April 12, 2008 operative report, the April 25, 2008 form report and the
June 5, 2008 treatment note. Dr. Gary J. Chang, a physician Board-certified in pain
management, examined appellant on September 23, 2008 and diagnosed complex regional pain
syndrome.
By decision dated October 31, 2008, the Office reviewed appellant’s claim on the merits
and denied modification of its July 1, 2008 decision.
LEGAL PRECEDENT
It is an accepted principle of workers’ compensation law that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an

2

independent intervening cause, which is attributable to the employee’s own intentional conduct.1
In discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, then a subsequent injury, whether an aggravation of the original
injury or a new and distinct injury, is compensable if it is the direct and natural result of a
compensable primary injury.2
A claimant bears the burden of proof to establish her claim for a consequential injury. As
part of this burden, a claimant must present rationalized medical opinion evidence, based on a
complete factual and medical background, showing causal relationship.3 Causal relationship is a
medical question that can generally be resolved only by rationalized medical opinion evidence.4
Rationalized medical evidence, is evidence which relates a work incident, work injury or factors
of employment to a claimant’s condition, with stated reasons of a physician.5 The opinion of the
physician must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship of the diagnosed condition and the specific
employment injury.6
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant filed a claim for a traumatic injury attributing her left arm fractures to the
collapse of her right knee following physical therapy. The Office noted that she has an accepted
right knee injury and that physical therapy was authorized to treat this condition. However, it
failed to develop appellant’s left upper extremity claim as a possible consequential injury of the
accepted right knee injury. Appellant alleged that her left arm was injured when her right knee
collapsed. She has submitted medical documentation with a consistent history of injury and
opinion that this was the mechanism of injury. The Office has not adjudicated this aspect of her
claim, finding only as the injury was not on the employing establishment premises it was not
sustained in the performance of duty. This finding is not in accordance with Board precedent
regarding consideration of consequential injuries, as noted above. On remand, the Office should
combine appellant’s claims for right knee and left arm injuries, prepare a statement of accepted
facts and refer appellant for examination by an appropriate physician to determine whether she
sustained her left arm injuries as a consequence of her accepted right knee condition. After this
and such other development as the Office deems necessary, the Office should issue an
appropriate decision.

1

Albert F. Ranieri, 55 ECAB 598, 602 (2004); A. Larson, The Law of Workers’ Compensation § 10.01 (2000).

2

Charles W. Downey, 54 ECAB 421-23 (2003).

3

Id.

4

Steven S. Saleh, 55 ECAB 169, 172 (2003).

5

Supra note 2.

6

Id.

3

CONCLUSION
The Board finds that this case requires further development of the factual and medical
evidence and evaluation by the Office for a possible consequential injury as is consistent with the
information submitted by appellant on her claim form and to her physician.
ORDER
IT IS HEREBY ORDERED THAT the October 31 and July 1, 2008 decisions are set
aside and remanded for further development consistent with this decision of the Board.
Issued: October 20, 2009
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

4