United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.P., Appellant
and
U.S. POSTAL SERVICE, WESTVILLE POST
OFFICE, Westville, NJ, Employer
__________________________________________

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Appearances:
Michael D. Overman, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0173
Issued: March 23, 2022

Case Submitted on the Record

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

JURISDICTION
On November 24, 2020 appellant, through counsel, filed a timely appeal from a June 1,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective November 22, 2019, as he no longer had
1

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

5 U.S.C. § 8101 et seq.

disability or residuals causally related to his accepted December 1, 2006 employment injury; and
(2) whether appellant met his burden of proof to establish continuing disability or residuals
causally related to his accepted December 1, 2006 employment injury after November 22, 2019.
FACTUAL HISTORY
On December 8, 2006 appellant, then a 49-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 1, 2006 he sustained a back injury when two dogs
attacked him from behind and he twisted his back while in the performance of duty. He stopped
work on the date of the claimed injury and returned to limited-duty work several months later.3
OWCP assigned OWCP File No. xxxxxx368 to the claim and accepted it for lumbar sprain and
lumbago.4
Appellant received treatment for his December 1, 2006 employment-related back injury
from several attending physicians, including Dr. David A. Bundens, a Board-certified orthopedic
surgeon, and Dr. Laura E. Ross, an osteopath and Board-certified orthopedic surgeon. X-rays of
appellant’s lumbar spine from December 21, 2006 contained an impression of degenerative
changes of the lumbar discs, predominately at L5-S1. On January 4 and 12, 2010 Dr. Bundens
indicated that appellant was performing his regular duties on a full-time basis with some
complaints of back discomfort. Appellant stopped work on June 19, 2010. In an October 14, 2013
report, Dr. Ross diagnosed lumbar herniation and radiculitis of the right leg.
OWCP engaged in extensive development of the medical evidence between 2013 and 2018,
including referral to three OWCP referral physicians and two impartial medical specialists.5 In a
June 29, 2018 report, Dr. Roy B. Friedenthal, a Board-certified orthopedic surgeon who served as
the second of the two impartial medical specialists, reported the findings of his May 17, 2018
physical examination and determined that appellant did not have any work-related residuals or
disability.6

3

OWCP paid appellant wage-loss compensation on the supplemental rolls for intermittent periods of disability
from work commencing December 11, 2009.
4

Under a separate claim, assigned OWCP File No. xxxxxx201, OWCP previously accepted that appellant sustained
a right wrist strain and right knee tenosynovitis when he pushed a plastic tub on September 29, 2000. Under another
separate claim, assigned OWCP File No. xxxxxx165, it accepted that he sustained a lumbar sprain related to carrying
telephone books on November 28, 2001. Appellant commenced working in a light-duty position on November 29,
2001 and returned to his regular duties on December 19, 2001. After a period of disability related to OWCPauthorized right wrist surgery performed on April 4, 2004 in connection with his claim under OWCP File No.
xxxxxx201, he returned to his regular duties in June 2005.
5

Commencing March 8, 2015, OWCP placed appellant on the periodic rolls and paid him wage-loss compensation
for total disability.
6

OWCP had determined that there was a conflict in the medical opinion evidence between Dr. Ross and
Dr. Andrew Newman, a Board-certified orthopedic surgeon who served as an OWCP referral physician. In a June 1,
2017 report, Dr. Newman determined that appellant’s December 1, 2006 employment injury had resolved. In a July 7,
2017 report, Dr. Ross opined that appellant continued to have residuals of the December 1, 2006 lumbar sprain and
that he was totally disabled.

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In a July 30, 2018 report, Dr. Ross indicated that appellant’s current diagnosed conditions
that were causally related to the December 1, 2006 employment injury included multilevel lumbar
disc protrusions with herniations at L1-2 and L3-4 and disc bulges at multiple levels with annular
tears at L1-2, L3-4, and L4-5. She indicated that objective findings of the injury still existed,
including spasm in the lumbar spine. Dr. Ross advised that appellant was medically able to return
to work with restrictions of lifting no more than 10 pounds, and working no more than eight hours
at a time. She advised that appellant could sit for five hours in total, and stand for three hours
altogether with breaks.
In a March 6, 2019 notice, OWCP advised appellant that it proposed to terminate his wageloss compensation and medical benefits as he no longer had residuals or disability causally related
to his accepted December 1, 2006 employment injury. It informed appellant that the special weight
of the medical opinion evidence rested with the report of Dr. Friedenthal, the impartial medical
specialist. OWCP afforded appellant 30 days to submit evidence and argument challenging the
proposed action.
Appellant submitted a March 25, 2019 report from Dr. Ross who noted that appellant still
had bilateral spasms in his lumbar spine and indicated that his current work status was “out of
work.” In an April 4, 2019 report, Dr. Ross provided further discussion of her treatment of
appellant’s back condition. She diagnosed status post lumbar spine sprain and strain, multilevel
lumbar disc protrusions with herniations at L1-2 and L3-4; disc bulges at multiple levels with
annular tears at L1-2, L3-4, and L4-5; and right knee internal derangement with mild
chondromalacia patella and joint effusion. Dr. Ross repeated her prior findings and noted, “[h]is
speciﬁc work-related condition has not resolved.” He indicated that appellant was medically able
to return to work with restrictions of lifting no more than 10 pounds and working no more than 8
hours at a time. Appellant was able to sit for 45 to 60 minutes continuously, stand for
approximately 30 minutes continuously, sit for five hours altogether, and stand for three hours
altogether with breaks. Dr. Ross differed with Dr. Friedenthal’s assessment that appellant merely
sustained a lumbar strain, as this is not what was noted on his magnetic resonance imaging (MRI)
scan of the lumbar spine. She disagreed with Dr. Friedenthal’s assessment that the aggravation of
appellant’s condition ceased when he returned to full-duty work three or four months after
December 1, 2006.
Appellant, through counsel, argued that Dr. Friedenthal’s June 29, 2018 report did not
contain adequate medical rationale in support of its conclusions and that all of the relevant medical
documents were not provided to Dr. Friedenthal for review.
In early-September 2019, OWCP determined that it would not pursue action based on the
Dr. Friedenthal’s opinion, which had been based on a physical examination conducted on
May 17, 2018.
OWCP then referred appellant, along with a statement of accepted facts (SOAF) and series
of questions, for a second opinion examination and evaluation with Dr. Stanley Askin, a Boardcertified orthopedic surgeon. It requested that he provide an opinion regarding whether appellant
continued to have residuals of his accepted December 1, 2006 employment injury.

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In a September 27, 2019 report, Dr. Askin discussed appellant’s factual and medical
history and reported the findings of his physical examination. He noted that appellant showed full
range of motion of his elbows, forearms, wrists, fingers, and thumbs, and that muscle function of
the trapezii, latissimus dorsi, pectoralis major, deltoids, triceps, wrist flexors, and wrist extensors
was intact bilaterally. Appellant reported that, when he moved his right wrist, there was pain in
the radial aspect of his forearm, but not over the wrist joint proper. Dr. Askin reported that the
Finkelstein’s test for de Quervain’s tendinitis and testing for the intersection syndrome were
negative for the respective conditions. He indicated that appellant reported pain in the radial aspect
of his right forearm, but that this was “a subjective report without objective manifestation.”
Straight-leg raising was negative to 90 degrees while seated and appellant’s low back muscles
relaxed appropriately on alternate leg stance from which it is concluded that there was no present
muscle spasm. Dr. Askin noted that appellant offered 80 degrees of forward flexion and 10 degrees
of side-bending to each side, which was quite reasonable for a 62-year-old person. Examination
of appellant’s knees revealed full range of motion and normal ligamentous function. Dr. Askin
opined that appellant ceased to have residuals of the accepted lumbar sprain and lumbago
conditions sustained on December 1, 2006, noting that he had no objective findings other than the
fact that he examined as a rather typical 62-year-old man. He indicated, “[appellant] does not have
any concurrent nonwork-related disability, apart from the fact that when a person is 62 years of
age he is not as physically capable as when he was 20 years of age, but that is a biologically
imposed consequence of senescence.” Dr. Askin advised that there was nothing identifiably
objective that would preclude appellant’s resumption of his employment activities.
By decision dated November 22, 2019, OWCP terminated appellant’s wage-loss
compensation and medical benefits, effective that date, as he no longer had residuals or disability
causally related to his accepted December 1, 2006 employment injury. It found that the weight of
the medical evidence rested with the opinion of Dr. Askin.
On December 2, 2019 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
Appellant submitted a December 9, 2019 duty status report (Form CA-17) from Dr. Scott
Fried, a Board-certified orthopedic surgeon, who diagnosed right wrist sprain/tenosynovitis and
recommended work restrictions. In a December 9, 2019 work capacity evaluation report (Form
OWCP-5c), he also recommended work restrictions. Appellant also submitted a functional
capacity evaluation (FCE) report, signed by Dr. Fried on December 6, 2019, which showed that
appellant could lift or carry up to 10 pounds.
During the hearing held on April 6, 2020, counsel argued that the weight of the medical
opinion evidence rested with the opinion of Dr. Ross who found continuing employment-related
residuals and disability.
By decision dated June 1, 2020, OWCP’s hearing representative affirmed the
November 22, 2019 decision.

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LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.7 After it has determined that, an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment. 8 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.9
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation. 10 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.11
ANALYSIS -- ISSUE 1
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation benefits and medical benefits, effective November 22, 2019.
The weight of the medical evidence is represented by the thorough, well-rationalized
opinion of Dr. Askin, the OWCP referral physician. The September 27, 2019 report of Dr. Askin
establishes that appellant had no residuals or disability due to his accepted December 1, 2006
employment injury after November 23, 2019.
In his September 27, 2019 report, Dr. Askin discussed appellant’s factual and medical
history and reported the findings of his physical examination. He opined that appellant ceased to
have residuals of the accepted lumbar sprain and lumbago conditions sustained on December 1,
2006, noting that he had no objective findings other than the fact that he examined as a rather
typical 62-year-old man. Dr. Askin indicated, “[appellant] does not have any concurrent nonworkrelated disability, apart from the fact that when a person is 62 years of age he is not as physically
capable as when he was 20 years of age, but that is a biologically imposed consequence of
senescence.” He advised that there was nothing identifiably objective that would preclude
appellant’s resumption of his employment activities.
The Board has reviewed the opinion of Dr. Askin and finds that it has reliability, probative
value and convincing quality with respect to its conclusions regarding the relevant issue of
7

D.G., Docket No. 19-1259 (issued January 29, 2020); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
8

See R.P., Docket No. 17-1133 (issued January 18, 2018); Jason C. Armstrong, 40 ECAB 907 (1989); Charles E.
Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB 541 (1986).
9

M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988).

10

A.G., Docket No. 19-0220 (issued August 1, 2019); A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58
ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005). Furman G. Peake, 41 ECAB 361, 364 (1990).
11

See A.G., id.; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002).

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continuing residuals/disability related to the December 1, 2006 employment injury. Dr. Askin
provided a thorough factual and medical history and accurately summarized the relevant medical
evidence. He provided medical rationale for his opinion by explaining that appellant had no
objective findings of the accepted lumbar sprain and lumbago.12
Appellant submitted a March 25, 2019 report from Dr. Ross who noted that appellant still
had bilateral spasms in his lumbar spine and indicated that his current work status was “out of
work.” In an April 4, 2019 report, Dr. Ross provided further discussion of her treatment of
appellant’s back condition. She diagnosed status post lumbar spine sprain and strain, multilevel
lumbar disc protrusions with herniations at L1-2 and L3-4; disc bulges at multiple levels with
annular tears at L1-2, L3-4, and L4-5; and right knee internal derangement with mild
chondromalacia patella and joint effusion. Dr. Ross indicated that appellant sustained these
injuries due to the December 1, 2006 work-related incident and found that he still had ﬁndings
including spasm in the lumbar spine. She recommended work restrictions and noted, “[h]is
speciﬁc work-related condition has not resolved.”
The Board finds, however, that Dr. Ross’ reports are of limited probative value with respect
to OWCP’s termination action because it has not been accepted that appellant sustained her abovedetailed diagnosed conditions in connection with the December 1, 2006 employment injury.
Dr. Ross has not otherwise explained, with medical rationale, how such injuries were sustained by
appellant on December 1, 2006. The Board has held that a report is of limited probative value
regarding causal relationship if it does not contain medical rationale explaining how a given
medical condition/level of disability has an employment-related cause.13 Therefore, these reports
are insufficient to support appellant’s claim that OWCP improperly terminated compensation.
As the evidence of record is insufficient to overcome the weight accorded to Dr. Askin, the
Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits.
LEGAL PRECEDENT -- ISSUE 2
When OWCP properly terminates compensation benefits, the burden shifts to appellant to
establish continuing residuals or disability after that date, causally related to the accepted
employment injury. 14 To establish causal relationship between the condition as well as any
attendant disability claimed and the employment injury, an employee must submit rationalized

12

See W.C., Docket No. 18-1386 (issued January 22, 2019); D.W., Docket No. 18-0123 (issued October 4, 2018);
Melvina Jackson, 38 ECAB 443 (1987) (regarding the importance, when assessing medical evidence, of such factors
as a physician’s knowledge of the facts and medical history, and the care of analysis manifested and the medical
rationale expressed in support of the physician’s opinion).
13

See T.T., Docket No. 18-1054 (issued April 8, 2020); Y.D., Docket No. 16-1896 (issued February 10, 2017).

14

See S.M., Docket No. 18-0673 (issued January 25, 2019); C.S., Docket No. 18-0952 (issued October 23, 2018);
Manuel Gill, 52 ECAB 282 (2001).

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medical evidence based on a complete medical and factual background, supporting such causal
relationship.15
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met his burden of proof to establish continuing
disability or residuals causally related to his accepted December 1, 2006 employment injury after
November 22, 2019.
After OWCP’s November 22, 2019 decision terminating appellant’s compensation
effective the same date, appellant submitted additional medical evidence , which he felt showed
that he was entitled to compensation after November 22, 2019 due to residuals of his December 1,
2006 employment injury. Given that the Board has found that OWCP properly relied on the
opinion of the OWCP referral physician, Dr. Askin, in terminating appellant’s compensation
effective November 22, 2019, the burden shifts to appellant to establish that he is entitled to
compensation after that date.
Appellant submitted a December 9, 2019 duty status report from Dr. Fried who diagnosed
right wrist sprain/tenosynovitis and recommended work restrictions. In a December 9, 2019 work
capacity evaluation report, Dr. Fried also recommended work restrictions. Appellant also
submitted an FCE report, signed by Dr. Fried on December 6, 2019, which showed that appellant
could lift or carry up to 10 pounds. The Board has reviewed the additional evidence submitted by
appellant and finds that it is not of sufficient probative value to establish that he had
residuals/disability related to his December 1, 2006 employment injury after November 22, 2019.
As noted above, it has not been accepted that appellant sustained a wrist injury on December 1,
2006 and none of these reports contains an opinion that appellant had residuals/disability due to
the accepted lumbar sprain or lumbago conditions. The Board has held that medical evidence that
does not offer an opinion regarding work-related residuals or disability is of no probative value on
the issue of causal relationship.16
As appellant has not submitted any rationalized medical evidence establishing tha t he had
employment-related disability or residuals after November 22, 2019, causally related to the
accepted December 1, 2006 employment injury, he has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation benefits and medical benefits, effective November 22, 2019. The Board further

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Id.

16

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

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finds that appellant has not met his burden of proof to establish continuing disability or residuals
causally related to his accepted December 1, 2006 employment injury after November 22, 2019.
ORDER
IT IS HEREBY ORDERED THAT the June 1, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 23, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
________________________________________
S.R., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION,
Birmingham, AL, Employer
________________________________________

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Appearances:
Stephen V. Barszcz, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1295
Issued: March 20, 2019

Case Submitted on the Record

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

JURISDICTION
On June 19, 2018 appellant, through counsel, filed a timely appeal from a May 2, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that appellant submitted evidence on appeal. However, the Board’s Rules of Procedure provides:
“The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the time of its
final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 20
C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on appeal.
Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish that her diagnosed
medical conditions were causally related to the accepted May 2, 2016 employment incident.
FACTUAL HISTORY
On May 5, 2016 appellant, then a 39-year-old investigative specialist, filed a traumatic
injury claim (Form CA-1) alleging that she sustained neck injuries, a headache, and seatbelt burn
on May 2, 2016 when the vehicle she was driving was rear-ended while in the performance of
duty. She stopped work that day.
By development letter dated May 9, 2016, OWCP advised appellant of the medical and
factual evidence needed to establish her claim, including a detailed description of the May 2, 2016
employment incident, and a narrative report from her physician explaining how the event caused
or aggravated a medical condition. It also asked the employing establishment to indicate whether
she was in the performance of duty when the incident occurred. OWCP afforded 30 days for
responses.
On May 18, 2016 S.H., a senior investigative specialist at the employing establishment,
responded that appellant was in the performance of duty at the time of the May 2, 2016 vehicular
accident.
In a May 31, 2016 statement, appellant described the May 2, 2016 motor vehicle accident
and maintained that she was in the performance of duty when it occurred. An attached Alabama
Uniform Crash Report described the May 2, 2016 accident and indicated that appellant’s vehicle
was hit in the right rear.
A May 2, 2016 emergency department report indicated that appellant was seen by Dr. Amy
Stucky, Board-certified in family medicine, and Dr. Patrick O’Hare, Board-certified in emergency
medicine. Appellant’s diagnoses were listed as “strain neck level muscle, fascia [and] tendon”;
“strain thorax back wall muscle [and] tendon”; and “strain lower back muscle, fascia [and]
tendon.” X-rays of her right shoulder, thoracic spine, and lumbar spine taken on May 2, 2016
revealed no significant abnormality.
In a May 9, 2016 report, Dr. Ryan C. Aaron, a Board-certified physiatrist, noted that he
had seen appellant in the past for left-sided neck pain. He reported a history that her pain worsened
one week prior following a motor vehicle accident, and that it now also involved the right side of
her neck and mid-thoracic area, and that she had a static sensation in her ears, and resolving
tingling in her last two fingers bilaterally. Dr. Aaron noted tenderness to palpation in the upper
and mid-thoracic paraspinals. He referred appellant for consultation with a neurosurgeon.
Dr. John D. Johnson, a Board-certified neurosurgeon, saw appellant on May 26, 2016 for
a complaint of neck pain of chronic duration. He described a history of a 2011 injury with multiple
exacerbating episodes and incidents. Dr. Johnson noted that appellant took a variety of
medications, but that her pain was quite severe and she was unable to work. Physical examination
demonstrated mild decreased sensation in the ulnar nerve distribution on the right, a positive
Spurling’s which produced neck pain only, and pain to palpation of the posterior cervical spine
and with neck extension. Dr. Johnson noted that cervical spine x-rays that day demonstrated a
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mild loss of cervical lordosis and loss of disc space height at C4-5 and C5-6. He noted his review
of a March 3, 2016 magnetic resonance imaging (MRI) scan of the cervical spine which showed
very mild disc bulging at C3-4, C4-5, and C5-6, but no high-grade cervical spinal stenosis or severe
neuroforaminal narrowing, and that a May 2, 2016 computerized tomography (CT) scan of the
head and cervical spine showed no significant abnormality.4 Dr. Johnson diagnosed chronic axial
neck pain and mild degenerative disc disease. He commented that, although appellant had
musculoskeletal complaints, he did not find evidence of myelopathy or radiculopathy.
The record includes medical evidence that predates the May 2, 2016 motor vehicle
accident. On March 7, 2016 Dr. Aaron reviewed a cervical spine MRI scan, noting that it
demonstrated mild degenerative changes from C3 to C6. On April 22, 2016 he noted appellant’s
complaint that any activity aggravated her left-sided neck pain and that it was affecting her quality
of life, including her work.
By decision dated June 22, 2016, OWCP found that the May 2, 2016 incident occurred as
alleged, but denied the claim because causal relationship had not been established. It noted that
appellant provided medical evidence establishing that she had previously been diagnosed with
cervical conditions, and that the record contained no medical opinion evidence indicating that the
May 2, 2016 automobile accident was a direct cause or aggravation of a diagnosed condition.
On December 22, 2016 appellant, through counsel, requested reconsideration. He
submitted reports from Dr. Scott C. Hitchcock, an osteopath who is Board-certified in neurology,
dated December 16, 2010 to January 26, 2016, in which he reviewed appellant’s cervical
complaints. In a December 16, 2010 report, Dr. Hitchcock noted appellant’s complaints of neck
pain and cervicogenic headaches that began many years prior when she was in a severe motor
vehicle accident with a dump truck. He noted his review of her cervical spine MRI scan that
appeared normal except for some straightening of the normal lordotic curve. Dr. Hitchcock
advised that appellant likely had myofascial pain.
By report dated May 9, 2016, Dr. Hitchcock noted that since a recent motor vehicle
accident when appellant’s vehicle was struck from behind, her neck pain had been much more
severe. He reported that the post-accident MRI scan of her cervical spine showed herniated discs
and degenerative changes from C3-5 and that he was going to refer her to neurosurgery for possible
surgical options. Dr. Hitchcock advised that appellant was disabled from chronic neck pain and
had not been able to work. He diagnosed myofascial pain syndrome, chronic pain syndrome, and
spondylosis of cervical region without myelopathy or radiculopathy. In correspondence dated
June 8, 2016, Dr. Hitchcock noted that since the May 2, 2016 motor vehicle accident, appellant’s
preexisting severe chronic neck pain had become much worse and that she was disabled from
work. In reports dated June 17 and September 29, 2016, he reiterated his conclusions and further
diagnosed cervicogenic headaches, chronic migraine headache, cervical dystonia, and chronic
insomnia. An August 26, 2016 electroencephalogram (EEG) was interpreted as normal. In
correspondence dated November 14, 2016, Dr. Hitchcock noted that following the May 2, 2016
motor vehicle accident, appellant was immediately dizzy which was consistent with concussion
and then developed intense chronic post-traumatic migraine headaches which had been difficult to
control. He related that prior to the accident, he felt most of appellant’s dysfunction was from
myofascial pain syndrome, but that since the accident, she had developed cervical dystonia.
4

Copies of the March 3, 2016 MRI scan and May 2, 2016 CT scan are not found in the case record.

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Dr. Hitchcock concluded that the May 2, 2016 motor vehicle accident exacerbated appellant’s
preexisting conditions.
In a report dated September 12, 2016, Dr. Kelley Smith, a Board-certified cardiologist,
noted a history of appellant’s chronic neck pain syndrome worsened by a motor vehicle accident
in May, and reported that recently appellant had an episode of syncope when she rose from sitting,
had a syncopal event and fell, striking her left upper face. He reported that she went to the
emergency department a day later, had a negative CT scan of the head, and was diagnosed with
concussion, and that Dr. Hitchcock had done an EEG which was negative. Dr. Smith noted that
an electrocardiogram (ECG) on September 12, 2016 was abnormal. Following examination, he
diagnosed abnormal ECG, chronic pain syndrome, cervical disc degeneration, insomnia, syncope
and collapse. An echocardiogram on September 13, 2016 was normal. On September 29, 2016
Dr. Smith diagnosed syncope and collapse (primary), sick sinus syndrome, abnormal ECG,
unspecified tachycardia, cervical disc degeneration, and chronic pain syndrome.
On November 10, 2016 Dr. Warren Foster, a Board-certified cardiologist, noted a history
of the motor vehicle accident and syncopal episode. He performed physical examination,
diagnosed syncope and collapse (no recurrence) and unspecified tachycardia. Dr. Foster opined
that the diagnostic etiology included medications, pain, anxiety, and inappropriate sinus
tachycardia.
Dr. Smith saw appellant on November 14, and December 6, 2016. He indicated that
episodes of sudden onset regular tachycardia were triggered after a motor vehicle accident with
neck injury and chronic pain syndrome and that she had some spontaneous diaphoretic episodes
with no chest pain with exertion. Dr. Smith reiterated his diagnoses. By letter dated December 6,
2016, he diagnosed syncope and collapse, sick sinus syndrome, abnormal ECG, chronic pain
syndrome, unspecified tachycardia, and dizziness and giddiness. Dr. Smith opined that since she
had not reported cardiac symptomology prior to the May 2, 2016 motor vehicle accident, it played
a role in triggering her symptoms and diagnoses.
In correspondence dated December 14, 2016, Dr. Hitchcock reiterated his findings and
conclusions that the May 2, 2016 motor vehicle accident exacerbated appellant’s preexisting
conditions.
By decision dated March 14, 2017, OWCP denied modification of its prior decision. It
found that the medical evidence submitted did not provide a complete and accurate factual history,
and that some reports were not contemporaneous with the time of injury. OWCP noted that
appellant had been in a previous motor vehicle accident, as reported by Dr. Hitchcock on
December 10, 2010, and that a previous claim, adjudicated by OWCP under File No. xxxxxx931,
had been denied. It noted that Dr. Hitchcock reported problems with myofascial pain syndrome
and cervical dystonia on December 16, 2010, which contradicted his November 14 and
December 14, 2016 reports. OWCP noted that there were gaps in the medical evidence provided
and found the medical evidence presented was not of sufficient probative value because it lacked
sufficient medical reasoning.
On January 12, 2018 appellant, through counsel, requested reconsideration. Counsel
maintained that the medical evidence presented by Dr. Hitchcock and Dr. Smith was sufficient to
establish that the May 2, 2016 motor vehicle accident caused an aggravation of preexisting

4

myofascial pain syndrome and migraine headaches, a return of cervical dystonia, and new
conditions of tachycardia, abnormal ECG, syncope, and fibromyalgia.
Appellant submitted a June 7, 2017 report in which Dr. Smith advised that appellant’s
chronic pain syndrome was a major factor, as her cardiac symptoms were directly related to the
effectiveness of her pain management.
In a July 31, 2017 report, Dr. Hitchcock opined that appellant was totally disabled from
work. He indicated that after six months of treatment appellant’s symptoms did not dissipate, that
he felt that she was possibly suffering from fibromyalgia, and that he had referred her to Dr. James
Thacker, an anesthesiologist, for pain management. Dr. Hitchcock noted that he later referred her
to Dr. Vijayanarayana R. Jampala, a Board-certified rheumatologist, who found all results of
autoimmune disorders negative and who diagnosed fibromyalgia, cervicalgia, myalgia, and
headache. On October 31, 2017 Dr. Hitchcock reiterated his findings and conclusions, indicating
that appellant was totally disabled from work. He requested that the conditions of fibromyalgia,
spondylosis of the cervical spine, and cervical dystonia be accepted as triggered by the May 2,
2016 motor vehicle accident. In correspondence dated January 4, 2018, Dr. Hitchcock noted that
appellant had first been in a motor vehicle accident at age 18, but had recovered and had thereafter
competed in sports and completed employing establishment training. He indicated that on the
emergency department report on May 2, 2016 a physician confirmed complaints of ringing in the
ears, headache, dizziness, shoulder pain, and a visible seat belt mark across her body, compatible
with a severe whiplash injury. Dr. Hitchcock provided diagnoses of cervical dystonia, myofascial
pain syndrome, degenerative disc disease, chronic pain syndrome, migraine headaches, chronic
insomnia, bulging and herniated discs with bone spurs at C3 to C6, and osteoarthritis of the cervical
spine.
By decision dated May 2, 2018, OWCP denied modification of its prior decisions. It found
the medical evidence of record insufficient to establish her claim, noting many reports were not
contemporaneous with the date of injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA, that an injury was sustained in the performance of duty as alleged, and
that any disability or specific condition for which compensation in claimed is causally related to
the employment injury. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
In order to determine whether an employee actually sustained an injury in the performance
of duty, OWCP begins with an analysis of whether fact of injury has been established. Generally,
fact of injury consists of two components which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred. The second component is whether the
5

Supra note 2.

6

D.J., Docket No. 18-0620 (issued October 10, 2018).

5

employment incident caused a personal injury and generally can be established only by medical
evidence.7
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence supporting such causal relationship.8 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.
This medical opinion must include an accurate history of the employee’s employment injury and
must explain how the condition is related to the injury. 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.9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that her
diagnosed medical conditions were causally related to the accepted May 2, 2016 employment
incident.
Initially, the records from appellant’s emergency department visit on May 2, 2016 listed
diagnoses, but offered no history of injury or opinion regarding causal relationship. The Board
has held that medical evidence that does not offer an opinion regarding the cause of an employee’s
condition is of no probative value on the issue of causal relationship.10
The medical report most contemporaneous with the May 2, 2016 motor vehicle accident
was the May 9, 2016 report from Dr. Aaron who noted that appellant had recently been in an
automobile accident and provided examination findings. Dr. Aaron did not render a diagnosis that
day. In a prior report, predating May 9, 2016, he had diagnosed degenerative changes of the
cervical spine from C3 to C6. A rationalized opinion is especially important as the evidence
supports that appellant had a preexisting cervical condition.11 The Board has also held that medical
evidence that does not provide a firm diagnosis and offer an opinion regarding the cause of an
employee’s condition is of no probative value on the issue of causal relationship.12 Dr. Aaron’s
opinion is, therefore, insufficient to establish appellant’s claim. Likewise, as Dr. Johnson and
Dr. Foster did not render an opinion on causal relationship, their opinions are also of no probative
value and, thus, are insufficient to establish appellant’s claim.13

7

K.L., Docket No. 18-1029 (issued January 9, 2019).

8

M.C., Docket No. 18-0951 (issued January 7, 2019).

9

K.L., supra note 7.

10

See J.P., Docket No. 18-1165 (issued January 15, 2019).

11

See C.C., Docket No. 17-1981 (issued January 23, 2019).

12

See C.C., Docket No. 18-1099 (issued December 21, 2018).

13

Supra note 10.

6

Dr. Hitchcock submitted reports dated December 16, 2010 to January 4, 2018. He
diagnosed numerous conditions and suggested that the conditions of fibromyalgia, spondylosis of
the cervical spine, and cervical dystonia were triggered by the May 2, 2016 motor vehicle accident
and had exacerbated preexisting conditions. The Board finds that his opinion was speculative in
nature as he did not sufficiently explain how the accepted incident caused the disabling
conditions.14 Medical reports without adequate rationale on causal relationship are of diminished
probative value and do not meet an employee’s burden of proof.15 The opinion of a physician
supporting causal relationship must rest on a complete factual and medical background supported
by affirmative evidence, address the specific factual and medical evidence of record, and provide
medical rationale explaining the relationship between the diagnosed condition and the establish
incident.16 Without explaining how, physiologically, the movements involved in the employment
incident caused or contributed to a diagnosed condition, Dr. Hitchcock’s opinion is of limited
probative value and insufficient to establish causal relationship.17
Dr. Smith began treating appellant in September 2016, seven months after the May 2, 2016
employment injury. He reported that appellant had recently had a syncopal episode and gone to
the emergency room. The record, however, does not contain an emergency department report of
a syncopal episode. Dr. Smith noted abnormal ECG findings and diagnosed chronic pain
syndrome, cervical disc degeneration, insomnia, syncope, and collapse. While he opined that,
since appellant had not reported any cardiac symptomology prior to the May 2, 2016 motor vehicle
accident, the employment incident played a role in triggering her symptoms and diagnoses. An
opinion that a condition is causally related to an employment injury because the employee was
asymptomatic before the injury, but symptomatic after it is insufficient, without supporting
rationale, to establish causal relationship.18 As Dr. Smith provided no other rationale in support
of his opinion, the Board finds that it is insufficient to meet appellant’s burden of proof.
On appeal counsel maintains that the medical evidence of record is sufficient to establish
causal relationship. Contrary to this assertion, causation in the instant case has not been established
because none of the medical evidence of record explained with sufficient rationale how appellant’s
diagnosed conditions were caused or aggravated by the May 2, 2016 incident.19
As the record lacks rationalized medical evidence establishing causal relationship between
the May 2, 2016 employment incident and appellant’s diagnosed conditions, she has not met her
burden of proof.20

14

See G.M., Docket No. 18-0989 (issued January 3, 2019).

15

S.H., Docket No. 17-1660 (issued March 27, 2018).

16

See M.C., supra note 8.

17

Id.

18

C.C., supra note 11; John F. Glynn, 53 ECAB 562 (2002).

19

M.C., supra note 8.

20

K.L., supra note 7.

7

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her
diagnosed medical conditions were causally related to the accepted May 2, 2016 employment
incident.
ORDER
IT IS HEREBY ORDERED THAT the May 2, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 20, 2019
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
CONTRACT AUDIT AGENCY, Littleton, CO,
Employer
__________________________________________

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

Docket No. 16-0249
Issued: May 13, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On November 25, 2015 appellant filed a timely appeal from a November 19, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish an injury in the
performance of duty on August 2, 2015.
FACTUAL HISTORY
On August 2, 2015 appellant, then a 28-year-old auditor, filed a traumatic injury claim
(Form CA-1) alleging that he sustained an employment-related injury at Dick’s Sporting Goods
1

5 U.S.C. § 8101 et seq.

Park in Commerce City, CO, at 4:45 p.m. on Sunday, August 2, 2015. He asserted that he
suffered a complete left Achilles tendon rupture during a soccer match at the Denver Cup
tournament, which he was refereeing as part of his recovery program for “an ongoing
occupational disease.” On the same form, a witness indicated that appellant was the center
referee for a girls’ soccer match at Dick’s Sporting Goods Park, Field No. Three. He noted that,
in the second half of the match, a foul was committed and appellant blew his whistle. While
running to the spot of the foul, appellant stepped in a small hole and he immediately fell to the
ground because his left leg gave out. Appellant’s immediate supervisor indicated on the form
that appellant’s regular work hours were 6:00 a.m. to 4:30 p.m., Tuesday through Friday, and
that his claimed injury did not occur in the performance of duty.2
In an accompanying August 2, 2015 statement, appellant provided further details of the
left Achilles tendon rupture he suffered while refereeing a soccer match on August 2, 2015. He
indicated that he filed a Form CA-2 on July 30, 2015 for several medical conditions he sustained
due to his “unhealthy working environment,” including the condition of obesity.3 Appellant
noted that his attending physician approved his participation in youth soccer matches as part of
his exercise program to combat obesity. He also asserted that his claimed August 2, 2015
employment injury was related to his work because his claimed occupational obesity placed
unusual strain on his left Achilles tendon and made injury to the tendon more likely.
By letter dated August 7, 2015, an employing establishment official advised that
appellant’s claim for an August 2, 2015 employment injury was being challenged. She indicated
that the alleged injury occurred on a Sunday, a nonwork day. The official noted that appellant
was acting as a soccer referee in his private capacity on August 2, 2015 and that his activities on
that date bore no relationship to his duties as an auditor for the employing establishment.
In an August 13, 2015 letter, OWCP requested that appellant submit additional evidence
in support of his claimed August 2, 2015 employment injury. It requested that he complete and
submit an attached questionnaire which posed various questions regarding the circumstances of
his claimed August 2, 2015 employment injury.
Appellant submitted several medical reports in which his attending physicians discussed
their treatment of his left Achilles tendon tear sustained on August 2, 2015. In an August 7,
2015 letter, Dr. Patrick Sharp, an attending osteopath, indicated that he had cleared appellant to
participate in youth soccer matches as part of an exercise program designed to address his

2

Appellant filed a duplicate Form CA-1 on August 5, 2015 for the same claimed August 2, 2015 employment
injury. The August 5, 2015 form contains information which is similar to what was provided on the August 2, 2015
form. On the August 5, 2015 form, appellant’s immediate supervisor indicated that the employing establishment
was controverting the claim because the injury occurred on a nonwork day and off the employing establishment
premises under circumstances unrelated to appellant’s job. The supervisor indicated that appellant reported that his
participation in the soccer match on August 2, 2015 was an informal part of his recovery from a claimed
occupational disease for which he filed a Form CA-2 on July 30, 2015.
3

The record does not contain a copy of the referenced Form CA-2.

2

obesity.4 In an August 20, 2015 form report, Dr. Melissa Gorman, an attending Board-certified
orthopedic surgeon, noted that with respect to appellant’s left Achilles tendon rupture suffered on
August 2, 2015 that, “[Appellant] suffered injury during a nonwork activity, but it is a
consequential injury of his obesity.”5
Appellant submitted his responses to an OWCP questionnaire on August 13, 2015. He
acknowledged that his claimed August 2, 2015 injury occurred while he was off the employing
establishment premises during a nonwork day. Appellant also acknowledged that his refereeing
activities on August 2, 2015 were not part of a physical fitness plan required by the employing
establishment and that no equipment or facilities were provided by the employing establishment.
He felt that the employing establishment benefited from his activities on August 2, 2015 because
they were designed to improve his health. Appellant repeated his previous assertion that the
injury was sustained in the performance of duty because his soccer refereeing was part of a
physician-recommended exercise program designed to combat his claimed employment-related
obesity.6 He also repeated his argument that his August 2, 2015 Achilles tendon tear was
covered under FECA because his claimed employment-related obesity made him more
susceptible to such an injury.
In a September 18, 2015 letter, an employing establishment official indicated that the
employing establishment did not sponsor or encourage appellant’s refereeing activity on
August 2, 2015 in any way. The employing establishment did not provide any leadership,
equipment, or facilities for the activity. Appellant was not participating in a physical fitness plan
or any other activity sponsored by the employing establishment. The employing establishment
official indicated that the claimed August 2, 2015 injury occurred off premises while he was off
duty and the activity was not related to his work duties as an auditor.
In a November 19, 2015 decision, OWCP denied appellant’s claim for an August 2, 2015
injury on a factual basis, finding that he did not meet his burden of proof to establish an injury in
the performance of duty on August 2, 2015. It noted that his claimed August 2, 2015
employment injury occurred on a nonwork day and off of the employing establishment premises.
Appellant’s private refereeing activities were not related to his work as an auditor and the
employing establishment did not sponsor these activities in any way.
LEGAL PRECEDENT
FECA provides for payment of compensation for disability or death of an employee
resulting from personal injury sustained while in the performance of duty.7 The phrase “sustained
4

In an undated statement received on August 25, 2015, Dr. Sharp indicated that appellant’s August 2, 2015 injury
was “caused and aggravated at least in a material part by the medical conditions documented on the Form CA-2,
including particularly [appellant’s] obesity at the time of the injury.”
5

In an August 19, 2015 statement, appellant asserted that Dr. Gorman’s report established his claim for an
August 2, 2015 employment injury.
6

Appellant acknowledged that the occupational disease claim he filed on July 30, 2015 had not yet been
adjudicated.
7

Id. at § 8102(a).

3

while in the performance of duty” is regarded as the equivalent of the coverage formula commonly
found in workers’ compensation laws, namely, “arising out of and in the course of employment.”8
“Arising out of the employment” tests the causal connection between the employment and the
injury; “arising in the course of employment” relates to the time, place, and work activity involved.9
For the purposes of determining entitlement to compensation under FECA, “arising in the course of
employment,” i.e., performance of duty, must be established before “arising out of the
employment,” i.e., causal relation, can be addressed.10
With regard to recreational or social activities, the Board has held that such activities arise in
the course of employment when:
“(1) They occur on the premises during a lunch or recreational period as a regular
incident of the employment; or
“(2) The [employing establishment], by expressly or impliedly requiring
participation, or by making the activity part of the service of the employee, brings
the activity within the orbit of employment; or
“(3) The [employing establishment] derives substantial direct benefit from the
activity beyond the intangible value of improvement in employee health and morale
that is common to all kinds of recreation and social life.”11
ANALYSIS
On August 2, 2015 appellant filed a traumatic injury claim (Form CA-1) alleging that he
sustained an employment-related injury at Dick’s Sporting Goods Park in Commerce City, CO,
at 4:45 p.m. on Sunday, August 2, 2015. He asserted that he suffered a complete left Achilles
tendon rupture during a soccer match at the Denver Cup tournament which he was refereeing as
part of his recovery program for “an ongoing occupational disease.”
The Board finds no evidence to establish that appellant was in the performance of duty on
August 2, 2015 when he sustained his injury. Appellant’s claimed injury did not occur on the
premises of the employing establishment during a lunch or recreational period as a regular incident
of his employment. The record clearly reveals that his accident occurred off of the premises of the
employing establishment while he was not on duty or in pay status. Thus two important physical
indicia of course-of-employment, time and place, have not been met in this case.12

8

See Bernard D. Blum, 1 ECAB 1 (1947).

9

See Eugene G. Chin, 39 ECAB 598, 601-02 (1988); Clayton Varner, 37 ECAB 248, 250 (1985).

10

Kenneth B. Wright, 44 ECAB 176, 181 (1992).

11

See Lawrence J. Kolodzi, 44 ECAB 818, 822 (1993); Id.; see also A. Larson, The Law of Workers’ Compensation
§ 22.00 (2015).
12

The Board has recognized the “unusual potency” of time and place in identifying recreational activities that are in
the course of employment. See Archie L. Ransey, 40 ECAB 1251 (1989).

4

With respect to an express or implied requirement to participate in the activity, the evidence
of record reveals that on August 2, 2015 appellant was participating in the purely private activity of
refereeing a youth soccer game. The employing establishment did not sponsor or encourage
appellant’s refereeing activity on August 2, 2015. It did not provide any leadership, equipment,
or facilities for the activity. Appellant was not participating in a physical fitness plan or any
other activity sponsored by the employing establishment. The employing establishment did not
have any involvement in his recreational activity that would bring the activity within the course of
employment.13 Accordingly, there is no evidence that the second test has been met.
With respect to the third test, appellant asserted that the employing establishment received a
benefit related to employee well-being. No evidence in the record suggests that the activity was
related in any notable way to the employing establishment’s business or to his work as an auditor.
Consequently, there is no evidence that the employing establishment derived substantial direct
benefit from the activity beyond that intangible value of improvement in employee health that is
common to all kinds of recreational activity.14
On appeal, appellant asserts that his August 2, 2015 left ankle injury was sustained in the
performance of duty because his soccer refereeing was part of a physician-recommended
exercise program designed to combat his claimed employment-related obesity.15 He has not
presented sufficient evidence or argument to support FECA coverage for his claimed August 2,
2015 injury under this theory.16 Appellant also asserted that his August 2, 2015 Achilles tendon
tear was covered under FECA because his claimed employment-related obesity made him more
susceptible to such an injury. Likewise, he has not presented evidence or argument mandating
FECA coverage under this theory.
For these reasons, the Board finds that appellant did not meet his burden of proof to
establish an injury in the performance of duty on August 2, 2015.
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.

13

The furnishing of financial support, athletic equipment, prizes are relevant to the issue of employing
establishment encouragement, but standing alone this evidence is ordinarily not enough to establish compensability.
See Donald C. Huebler, 28 ECAB 17 (1976) (where the employing establishment involvement such as printing of
game results in the employing establishment newspaper, display of trophies, photographing of players during work
hours, and printing of admission tickets was insufficient to establish an activity in the performance of duty).
14

See supra note 11.

15

Appellant acknowledged that the occupational disease claim he filed on July 30, 2015 for employment-related
conditions, including obesity, had not been adjudicated.
16

Given appellant’s failure to support this theory for FECA coverage, he also has not supported the claimed need,
made on appeal to the Board, that the file for his occupational disease claim should be combined with the file for the
present claim.

5

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish an injury in
the performance of duty on August 2, 2015.
ORDER
IT IS HEREBY ORDERED THAT the November 19, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 13, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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L.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lakewood, NJ, Employer
__________________________________________
Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-421
Issued: September 30, 2009

Case Submitted on the Record

ERRATUM
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

The Board issued a decision and order in the above-entitled case. The date of issuance
read “August 9, 2009.” The Board notes, however, that the date of issuance should have read
“September 9, 2009.”
Issued: September 30, 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


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

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

Docket No. 08-943
Issued: August 25, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 12, 2008 appellant, through her attorney, filed a timely appeal from a
March 15, 2007 merit decision of the Office of Workers’ Compensation Programs and a
September 14, 2007 hearing representative’s decision granting her a schedule award. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award decisions.
ISSUE
The issue is whether appellant has more than a 16 percent permanent impairment of the
left upper extremity.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated October 27, 2004, the
Board set aside a December 16, 2003 decision granting appellant a schedule award for a 15
percent permanent impairment of the left upper extremity.1 The Board found a conflict in
medical opinion regarding the extent of appellant’s permanent impairment of the left upper
1

Docket No. 04-1410 (issued October 27, 2004).

extremity and remanded the case to the Office for resolution of the conflict. The findings of fact
and conclusions of law from the prior decision are hereby incorporated by reference.
On August 15, 2005 the Office referred appellant to Dr. Robert Dennis, a Board-certified
orthopedic surgeon, for an impartial medical examination to determine the extent of her
permanent impairment. The record contains an appointment schedule notification showing that
the Office scheduled the impartial medical examination with Dr. Dennis on August 24, 2005. On
August 23, 2005 her attorney objected to the selection of Dr. Dennis. The attorney noted that the
Office had selected Dr. Dennis to act as an impartial medical examiner for appellant on
August 24, 2005 and for another claimant on August 25, 2005. He enclosed letters from the
Office to appellant and to the other claimant scheduling appointments with Dr. Dennis for
August 24 and 25, 2005. The attorney stated:
“[I]t is truly puzzling how a physician can be picked from the Physicians
Directory System (PDS) on a strictly rotational basis within one day of each other.
Therefore, I do ask kindly at this time that you provide proof to the claimant and
myself that Dr. Dennis was selected properly from the PDS. I would ask kindly
that you provide a computer printout of the doctors that were selected within one
week of the selection of Dr. Dennis in this case to confirm that he was picked on a
strictly rotational basis.”
On August 24, 2005 Dr. Dennis examined appellant and determined that she had a 16
percent permanent impairment of the left upper extremity. An Office medical adviser reviewed
his report on October 3, 2005 and concurred with his finding. By decision dated October 21,
2005, the Office granted appellant a schedule award for an additional one percent permanent
impairment of the left arm.2
On October 28, 2005 appellant, through her attorney, requested an oral hearing. At the
hearing, the attorney contended that the Office did not properly select Dr. Dennis using the PDS
system. He questioned how the Office selected Dr. Dennis to provide impartial medical
examinations on consecutive days given that the local area contained hundreds of orthopedic
surgeons.
By decision dated March 28, 2006, the hearing representative affirmed the October 21,
2005 decision. On August 30, 2006 appellant appealed to the Board. On February 7, 2007 the
Board found that the case record submitted on appeal was incomplete.3 The Board set aside the
October 21, 2005 and March 28, 2006 decisions and remanded the case for reconstruction of the
case record.
In a decision dated March 15, 2007, the Office granted appellant a schedule award for an
additional one percent left upper extremity impairment. On March 22, 2007 appellant requested
an oral hearing, which was held on July 26, 2007. At the hearing, her attorney again challenged
the Office’s selection of Dr. Dennis using the PDS system. By decision dated September 14,
2

The Office previously paid appellant a schedule award for a 15 percent left upper extremity impairment.

3

Order Remanding Case, Docket No. 06-2082 (issued February 7, 2007).

2

2007, the hearing representative affirmed the March 15, 2007 decision. He noted that the record
contained a copy of an appointment screen showing that the Office selected Dr. Dennis as an
impartial medical specialist.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act4 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the American Medical Association,
Guides to the Evaluation of Permanent Impairment (5th ed. 2001).
If there is disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall
make an examination.5 This is called a referee examination and the Office will select a physician
who is qualified in the appropriate specialty and who has no prior connection with the case.6
When there exist opposing medical reports of virtually equal weight and rationale and the case is
referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of
such specialist, if sufficiently well rationalized and based upon a proper factual background,
must be given special weight.7
A physician selected by the Office to service as an impartial medical specialist should be
wholly free to make a completely independent evaluation and judgment. To achieve this, the
Office has developed specific procedures for the selection of the impartial medial specialist
designed to provide safeguards against any possible appearance that the selected physician’s
opinion is biased or prejudiced. The procedures contemplate that impartial medical specialists
will be selected from Board-certified specialists in the appropriate geographical area on a strict
rotating basis in order to negate any appearance that preferential treatment exists between a
particular physician and the Office.8 The Federal (FECA) Procedure Manual provides that the
selection of referee physicians (impartial medical specialists) is made through a strict rotational
system using appropriate medical directories. The PDS, including physicians listed in the
American Board of Medical Specialties Directory and specialists certified by the American
Osteopathic Association, should be used for this purpose.9 The PDS is a set of stand-alone
software programs designed to support the scheduling of second opinion and referee

4

5 U.S.C. §§ 8101-8193.

5

5 U.S.C. § 8123(a).

6

20 C.F.R. § 10.321.

7

David W. Pickett, 54 ECAB 272 (2002); Barry Neutuch, 54 ECAB 313 (2003).

8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4(b)(4)
(May 2003); see also Willie M. Miller, 53 ECAB 697 (2002).
9

Id.

3

examinations.10 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 specialists 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.11
The PDS was originally developed to ensure that referee medical specialists would be
chosen in a fair and unbiased manner and this goal remains as vital as ever to the integrity of the
federal employees’ compensation program.12 The Board has placed great importance on the
appearance as well as the fact of impartiality and only if the selection procedures which were
designed to achieve this result are scrupulously followed may the selected physician carry the
special weight accorded to an impartial medical specialist.13
ANALYSIS
On prior appeal the Board found that a conflict in medical opinion existed regarding the
extent of appellant’s left upper extremity impairment and remanded the case for resolution of the
conflict. On August 15, 2005 the Office referred her to Dr. Dennis for an impartial medical
examination scheduled for August 24, 2005. By letter dated August 23, 2005, appellant’s
attorney objected to the selection of Dr. Dennis. He provided evidence that the Office selected
Dr. Dennis to act as an impartial medical specialist on August 24, 2005 for appellant and on
August 25, 2005 for another claimant. The attorney questioned how the Office selected
Dr. Dennis twice within one week and requested proof from the Office that it properly utilized
the PDS in making the selection.
The Board finds that appellant, through her attorney, raised a timely objection to the
selected impartial medical examiner and provided sufficient reason to require the Office to
demonstrate that it properly followed its selection procedures.14 The record does not contain any
evidence documenting that the Office complied with its rotational procedures in selecting
Dr. Dennis.15 Office procedures provide that impartial medical specialists will be selected from
Board-certified specialists in the appropriate geographical area on a strict rotating basis in order
to negate any appearance that preferential treatment exists between a particular physician and the

10

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.7
(September 1995, May 2003).
11

Id. at Chapter 3.500.4(b)(4) (May 2003); see also L.W., 59 ECAB ___ (Docket No. 07-1346, issued
April 23, 2008).
12

L.W., supra note 11; M.A., 59 ECAB ___ (Docket No. 07-1344, issued February 19, 2008)

13

Id.; see Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4(b)(4)
(May 2003).
14

See M.A., supra note 12.

15

The record contains an appointment scheduling form but no information regarding how the Office selected
Dr. Dennis.

4

Office.16 As appellant timely objected to the selection of Dr. Dennis and provided sufficient
reason for the objection, the Office has an obligation to verify that it selected Dr. Dennis in a fair
and unbiased manner. The case is remanded to the Office for this purpose. Following this and
any other development deemed necessary, the Office should issue an appropriate final decision.
CONCLUSION
The Board finds that the case is not in posture for decision. The case requires further
development on appellant’s objections to the impartial medical specialist.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 14 and March 15, 2007 are set aside and the case is
remanded for further proceedings consistent with this opinion of the Board.
Issued: August 25, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

16

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4(b)(4)
(May 2003).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
DEPARTMENT OF THE ARMY, CORPS OF
ENGINEERS, Wilmington, DE, Employer
__________________________________________

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

Docket No. 09-1853
Issued: March 15, 2010

Case Submitted on the Record

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

JURISDICTION
On July 13, 2009 appellant, through his attorney, filed a timely appeal from an April 28,
2009 merit decision of the Office of Workers’ Compensation Programs granting him a schedule
award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of this case.
ISSUE
The issue is whether appellant has more than a 10 percent permanent impairment of the
left upper extremity.
FACTUAL HISTORY
The Office accepted that on May 22, 2007 appellant, then a 38-year-old pipelineman,
sustained a sprain of the acromioclavicular joint of the left shoulder and an upper arm sprain in
the performance of duty. On September 10, 2007 appellant underwent a left shoulder
arthroscopic subacromial decompression with acromioplasty and a distal clavical excision.

On November 4, 2008 appellant filed a claim for a schedule award. By letter dated
December 29, 2008, the Office referred appellant to Dr. Steven J. Valentino, an osteopath, for a
second opinion examination.
In a report dated November 18, 2008, received by the Office on January 20, 2009,
Dr. Daisy A. Rodriguez, a Board-certified internist, discussed appellant’s history of a dislocated
left shoulder on May 22, 2007 and subsequent surgery on September 10, 2007. She noted that he
complained of continual left shoulder pain, left hand weakness and abnormal sensation and
paresthesias and dysesthesias. Dr. Rodriguez measured left shoulder flexion of 90 degrees,
extension of 45 degrees, abduction of 80 degrees, adduction of less than 5 degrees, external
rotation of 10 degrees external rotation and full internal rotation. On examination she found
crepitus of the left shoulder and atrophy of the left hand with diminished sensation.
Dr. Rodriguez provided grip strength measurements.
On December 27, 2008 Dr. Rodriguez opined that appellant had reached maximum
medical improvement on May 31, 2008. She related that he had “severe restriction and loss of
function of the left shoulder, moderate pain in the left shoulder and upper extremity, paresthesias
of the left hand and dysfunction.” Citing the American Medical Association, Guides to the
Evaluation of Permanent Impairment (5th ed. 2001) (A.M.A., Guides), Dr. Rodriguez opined
that, for the left shoulder, 90 degrees flexion constituted a 6 percent impairment,1 45 degrees
extension constituted a 1 percent impairment,2 80 degrees abduction constituted a 5 percent
impairment,3 5 degrees adduction constituted a 2 percent impairment,4 90 degrees internal
rotation constituted no impairment5 and 10 degrees external rotation constituted a 2 percent
impairment,6 which she added to find a 16 percent impairment due to loss of range of motion of
the left upper extremity. She additionally found that appellant had a Grade 2 sensory loss and a
Grade 4 motor loss of the median nerve below the forearm. Dr. Rodriguez multiplied the 80
percent graded sensory loss by 39 percent, the maximum impairment of the median nerve due to
pain, to find a 31 percent left upper extremity impairment.7 She multiplied the 25 percent graded
motor impairment by 10 percent, the maximum impairment of the median nerve due to motor
loss, to find a 3 percent impairment.8 Dr. Rodriguez combined the impairments due to sensory
and motor loss to find a 33 percent left upper extremity impairment. She next combined
appellant’s 16 percent impairment due to loss of range of motion with the 33 percent impairment
due to sensory and motor loss to find a 44 percent permanent impairment.
1

A.M.A., Guides 476, Figure 16-40.

2

Id.

3

Id. at 477, Figure 16-43.

4

Id.

5

Id. at 479, Figure 16-46.

6

Id.

7

Id. at 482, 492, Tables 16-10, 16-15.

8

Id. at 484, 492, Tables 16-11, 16-15.

2

On March 2, 2009 Dr. Valentino examined appellant’s shoulder and determined that his
reflexes were intact and that he had no motor or sensory loss. He found that appellant’s
condition had resolved without any residual findings. Dr. Valentino stated, “There is no
restriction of movement in terms of degrees of retained active motion. There is no evidence of
decrease of strength, atrophy, ankylosis or sensory changes.” He concluded that appellant had
no permanent impairment under the A.M.A., Guides.
On April 7, 2009 an Office medical adviser reviewed the medical evidence. He discussed
Dr. Rodriguez’ finding that appellant had a 44 percent left upper extremity impairment due to
loss of range of motion and motor and sensory loss of the median nerve but noted that
Dr. Valentino did not find such impairment on examination. The Office medical adviser found
that appellant had a 10 percent impairment under the A.M.A., Guides for a resection arthroplasty
of the left distal clavicle.
By decision dated April 28, 2009, the Office granted appellant a schedule award for a 10
percent permanent impairment of the left upper extremity. The period of the award ran for 31.2
weeks from March 11 to October 15, 2009.
On appeal appellant’s attorney asserts that the Office should have based his schedule
award on the rating by Dr. Rodriguez.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act,9 and its
implementing federal regulations,10 set forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss, or loss of use, of scheduled members or
functions of the body. However, the Act does not specify the manner in which the percentage of
loss shall be determined. For consistent results and to ensure equal justice under the law for all
claimants, the Office has adopted the A.M.A., Guides as the uniform standard applicable to all
claimants.11 For decisions after February 1, 2001, the fifth edition of the A.M.A., Guides is used
to calculate schedule awards.12
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.13 The implementing regulations state that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an Office medical adviser, the Office shall appoint a third
9

5 U.S.C. § 8107.

10

20 C.F.R. § 10.404.

11

Id. at § 10.404(a).

12

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).
As of May 1, 2009, the sixth edition will be used. FECA Bulletin No. 09-03 (issued March 15, 2008).
13

5 U.S.C. § 8123(a).

3

physician to make an examination. This is called a referee examination and the Office will select
a physician who is qualified in the appropriate specialty and who has no prior connection with
the case.14
ANALYSIS
The Office accepted that appellant sustained a sprain of the acromioclavicular joint of the
left shoulder and an upper arm sprain. Appellant underwent a distal clavicle resection and
subacromial decompression with acromioplasty on September 10, 2007. On November 4, 2008
he filed a claim for a schedule award.
In impairment evaluations dated November 18 and December 27, 2008, Dr. Rodriguez
applied the A.M.A., Guides and found that appellant had a 16 percent impairment due to loss of
range of motion of the left shoulder.15 She further found that he had a 33 percent impairment
due to sensory and motor loss of the median nerve.16 Dr. Rodriguez combined the impairments
due to loss of range of motion and sensory and motor loss to find a 44 percent left upper
extremity impairment.
Dr. Valentino provided a second opinion examination on March 2, 2009. He asserted
that appellant had no loss of range of motion, strength or sensation of the left upper extremity on
examination. Dr. Valentino further found no atrophy or ankylosis. He concluded that appellant
had no permanent impairment of the left upper extremity.
The Board finds that a conflict exists between Dr. Rodriguez, who found that he had a 44
percent left upper extremity impairment and Dr. Valentino, who found that he had no
impairment. Section 8123(a) provides that, if 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.17 The case will be remanded to
the Office to refer appellant for an impartial medical examination regarding the extent, if any, of
his left upper extremity impairment.18
CONCLUSION
The Board finds that the case is not in posture for decision.

14

20 C.F.R. § 10.321.

15

A.M.A., Guides at 476, 477, 479, Figures 16-40, 16-43, 16-46.

16

Id. at 482, 484, 492, Tables 16-10, 16-11, 16-15.

17

5 U.S.C. § 8123(a); Alfred R. Anderson, 54 ECAB 179 (2002).

18

An Office medical adviser reviewed the evidence and concluded that appellant had a 10 percent left upper
extremity impairment due to his resection arthroplasty of the left distal clavicle. An Office medical adviser,
however, may create a conflict in medical opinion but generally may not resolve the conflict. Federal (FECA)
Procedure Manual, Part 2 -- Claims, Developing and Evaluating the Medical Evidence, Chapter 2.801.7(g)
(April 1993).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 28, 2009 is set aside and the case is remanded for further
proceedings consistent with this opinion of the Board.
Issued: March 15, 2010
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.E., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINSTRATION MEDICAL
CENTER, Alexandria, LA, Employer
__________________________________________

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

Docket No. 11-1483
Issued: February 3, 2012

Case Submitted on the Record

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

JURISDICTION
On June 8, 2011 appellant filed a timely appeal of the May 9, 2011 merit decision of the
Office of Workers’ Compensation Programs (OWCP) denying certain benefits. Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the case.
ISSUE
The issue is whether OWCP abused its discretion in denying authorization for an electric
bed and lift chair.
FACTUAL HISTORY
On April 25, 1998 appellant, then a 47-year-old licensed practical nurse, injured her low
back while transferring a patient from his bed to a bathing boat. OWCP accepted lumbosacral
1

5 U.S.C. §§ 8101-8193.

sprain, displacement of lumbar disc and lumbar spinal stenosis and authorized surgery.
Appellant stopped work on June 27, 1998.
Appellant was treated by Dr. G. Andrew Wilson, a Board-certified orthopedic surgeon
from September 23, 1998 to March 31, 1999 for low back pain which developed after lifting a
patient at work. Dr. Wilson diagnosed neurogenic claudication secondary to lumbar stenosis.
On November 4, 1998 he performed a L3 through L5 laminectomy with undercutting of L2 and
L3 through S1 bilateral foraminotomy. Dr. Wilson diagnosed multilevel lumbar stenosis causing
neurogenic claudication. A September 28, 1998 lumbar myelogram revealed significant
acquired spinal stenosis at L2-3, L3-4 and L4-5.
Appellant was treated by Dr. Clois D. Slaughter, a family practitioner, from February 5,
2002 to May 17, 2006.
Dr. Slaughter diagnosed lumbar spinal stenosis, status post
decompressive laminectomy, major depression, somatization and psychophysiologic discharge
and dysfunctional pain adjustment. In reports dated May 27, 2003 to May 17, 2006, he noted
that appellant remained totally disabled and opined that it was unlikely she would return to work
in any capacity. Dr. Slaughter noted that she underwent epidural steroid injections for the
lumbar spine condition on July 1 and August 1, 2005 and March 5, 2006.
OWCP subsequently referred appellant for a second opinion to Dr. John P. Sandifer, a
Board-certified orthopedic surgeon, for a second opinion regarding whether she had a bilateral
hip or a thoracic condition related to the work injury. In a June 19, 2007 report, Dr. Sandifer
reviewed the records provided and examined appellant. He diagnosed status post right carpal
tunnel release with median nerve neuropathy, chronic cervical spinal stenosis with radiculopathy
and extensive degenerative disc disease and lumbar spinal stenosis with bilateral radiculopathy.
Dr. Sandifer noted that appellant did not use a cane or crutch for standing or ambulation. He
found no evidence of a thoracic or bilateral hip condition related to her work injury. Dr. Sandifer
noted that appellant was at maximum medical improvement but could not return to full-time
unrestricted duty.
Appellant submitted a July 11, 2007 report from Dr. Slaughter, who noted that she had a
chronic and debilitating lower back pain secondary to degenerative lumbar disc disease and
spinal stenosis. She remained permanently and totally disabled and her prognosis was poor for
any significant improvement in her chronic pain.
On September 17, 2010 appellant contacted OWCP and indicated that her physician
prescribed an electric bed and lift chair and wanted authorization to purchase the items.
On September 17, 2010 OWCP acknowledged appellant’s request for an electric bed and
chair lift and requested that she submit a prescription for the items with detailed letter of medical
necessity explaining why she needed the equipment due to her work injury. Appellant was asked
to provide the full name and address of two suppliers of the equipment.
On September 17, 2010 appellant requested authorization for an electric bed and lift chair
and submitted a booklet from a supplier regarding home care beds. In a September 9, 2010
prescription note, Dr. Charles Joiner, Board-certified in emergency medicine, diagnosed
degenerative disc disease of the lumbar spine and degenerative disc disease of the cervical spine

2

and recommended an electric bed and a lift chair. Also submitted was a business card for a
medical supply store.
On April 13, 2011 OWCP referred the medical record to its medical adviser for an
opinion on whether the recommended electric bed and lift chair were medically warranted or
necessitated by the accepted work injury. In a report dated April 19, 2011, OWCP’s medical
adviser noted that appellant had back pain from a work incident on April 25, 1998 which was
accepted for lumbosacral sprain, displacement of lumbar IV disc and lumbar spinal stenosis.
Appellant underwent surgery in November 1998 and since that time had ongoing and
intermittent low back and leg pain and was treated with epidural steroid injections. The medical
adviser noted that Dr. Sandifer, a second opinion examination physician, on June 19, 2007,
described neck and low back pain with radiation in the upper and lower extremities. However,
Dr. Sandifer advised that appellant was able to ambulate without using ambulation aids. The
medical adviser noted only seeing a prescription note for an electric bed and lift chair signed by
Dr. Joiner with no clinical findings to support the request. He opined that the information of
record did not support the medical necessity for the requested electric bed or lift chair and
recommended the purchase not be authorized.
In a May 9, 2011 decision, OWCP denied appellant’s request for an electric bed and lift
chair finding that the weight of the medical evidence as established by the medical adviser did
not warrant such supplies as medically necessary for her accepted injury.
LEGAL PRECEDENT
Section 8103 of FECA provides that the United States shall furnish to an employee, who
is injured while in the performance of duty, the services, appliances and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree or the period of disability or aid in lessening the amount of the monthly
compensation.2
In interpreting section 8103, the Board has recognized that OWCP has broad discretion in
approving services provided under FECA. OWCP has the general objective of ensuring that an
employee recovers from his or her injury to the fullest extent possible, in the shortest amount of
time. It, therefore, has broad administrative discretion in choosing means to achieve this goal.
The only limitation on OWCP’s authority is that of reasonableness.3 In order to be entitled to
reimbursement for medical expenses, a claimant must establish that the expenditures were
incurred for treatment of the effects of an employment-related injury by submitting rationalized
medical evidence that supports such a connection and demonstrates that the treatment is
necessary and reasonable.4 While OWCP is obligated to pay for treatment of employment-

2

Id. at § 8103(a).

3

Dr. Mira R. Adams, 48 ECAB 504 (1997).

4

See Debra S. King, 44 ECAB 203 (1992).

3

related conditions, the employee has the burden of establishing that the expenditure is incurred
for treatment of the effects of an employment-related injury or condition.5
ANALYSIS
OWCP accepted that appellant sustained employment-related lumbosacral sprain,
displacement of lumbar disc and lumbar spinal stenosis and authorized surgery cervical strain.
On September 9, 2010 Dr. Joiner requested authorization for an electric bed and chair lift that
OWCP denied on May 9, 2011.
In a September 9, 2010 prescription note, Dr. Joiner listed the diagnoses of degenerative
disc disease of the lumbar spine and degenerative disc disease of the cervical spine. He
recommended an electric bed and a lift chair, but he did not provide any medical rationale
explaining the reasons why an electric bed and a lift chair was necessary or useful in treating
appellant’s accepted conditions.6 Dr. Joiner did not list any finding based on clinical
examination to support the recommendation.
OWCP referred the medical record to a medical adviser, who, on April 19, 2011, noted
appellant’s accepted conditions, her surgery in November 1998 and her ongoing and intermittent
low back and leg pain. Its medical adviser noted that Dr. Joiner’s September 9, 2010
prescription was not accompanied by any explanation by the physician in support of the request.
He noted that appellant underwent a second opinion examination on June 19, 2007, in which
Dr. Sandifer found that she was able to ambulate without using ambulation aids. The
information of record did not support the medical necessity for the requested electric bed and lift
chair and the medical adviser recommended against their purchase as neither the electric bed nor
lift chair were warranted or necessary to treat the accepted work-related condition.
There is no medical evidence of record supporting that an electric bed and a lift chair are
necessary and reasonable for the treatment of appellant’s accepted conditions. As noted, on
September 17, 2010 OWCP requested that appellant provide a detailed letter of medical
necessity explaining why she needed the requested items because of her work injury.
The Board finds that OWCP did not abuse its discretion in denying authorization for the
requested electric bed and a lift chair.
On appeal, appellant asserts that she submitted sufficient evidence from 1998 to 2011
which supports her continued pain from her work-related injury and requested that the electric
bed and chair lift be authorized. While there is no dispute that she has residuals of her accepted
conditions, she has not submitted adequate medical evidence addressing the reasons why the
requested items are necessary because of her accepted conditions.

5

Kennett O. Collins, Jr., 55 ECAB 648, 654 (2004).

6

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

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 OWCP did not abuse its discretion in refusing to authorize payment
for an electric bed and a lift chair.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 9, 2011 is affirmed.
Issued: February 3, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5