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

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

Docket No. 12-1201
Issued: October 17, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On May 10, 2012 appellant, through her attorney, timely appealed the April 9, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) which affirmed the denial
of her occupational disease claim. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on or about
November 1, 2010.
FACTUAL HISTORY
On March 18, 2011 appellant, then a 53-year-old letter carrier, filed an occupational
disease claim (Form CA-2) for bilateral carpal tunnel syndrome.2 She first became aware of this
1
2

5 U.S.C. §§ 8101-8193.

Appellant has an accepted traumatic injury claim for fractured right index finger which she sustained on
November 21, 2009.

condition on November 1, 2010, but did not realize it was caused or aggravated by her
employment until March 17, 2011. Appellant explained that as a letter carrier she performed
repetitive duties which included casing mail, bending her wrists, reaching, lifting heavy trays of
mail, loading her truck and carrying a mailbag.
Appellant submitted a January 2011 prescription note from Dr. Michael J. Kricko, an
internist, on which he diagnosed left carpal tunnel syndrome and prescribed a wrist brace.
Appellant also submitted an unsigned report dated March 17, 2011 from Dr. Dean T.
Filion, a Board-certified physiatrist, who diagnosed bilateral carpal tunnel syndrome (CTS),
bilateral wrist tenosynovitis and history of right index finger fracture status post three surgeries.
Dr. Filion noted that appellant worked as a letter carrier and complained of bilateral hand
numbness and tingling, left greater than right.3 He also noted a prior history of CTS dating back
to 2008.4 Appellant had previously been referred to a hand specialist but she decided against
surgical intervention. Dr. Filion also referenced appellant’s 2009 right index finger fracture and
subsequent surgeries. He indicated that, when appellant returned to work in November 2010, she
experienced some dysesthesias in her bilateral hands. Over the past four months, appellant
reportedly had progressive numbness and tingling, left greater than right, affecting the first three
digits of both hands. Dr. Filion noted that appellant was concerned about aggravating her CTS.
A March 21, 2011 note from Summit Medical Group indicated that appellant had been a
patient since 2009. A handwritten notation indicated that appellant had right thumb
tenosynovitis secondary to work use. The note further indicated that appellant’s prior index
finger injury also contributed to her current condition. The healthcare provider’s signature is
illegible.
Appellant later submitted a February 14, 2011 impairment rating from Dr. David Weiss, a
specialist in pain management.
The upper extremity rating pertained to appellant’s
November 21, 2009 right index finger injury. Dr. Weiss also provided a lower extremity rating
with respect to a December 12, 2006 right toe injury. The February 14, 2011 report did not
include a diagnosis of CTS or otherwise address any bilateral hand/wrist complaints.
Appellant also submitted a signed April 29, 2011 report from Dr. Filion who indicated,
inter alia, that appellant’s CTS and symptoms were causally related to her work as a letter carrier
which was a “repetitive[-]type job.”
By decision dated June 28, 2011, OWCP denied appellant’s claim for bilateral CTS
because she failed to establish that the diagnosed condition was employment related.
Appellant’s counsel requested an oral hearing. He also submitted an August 2, 2011
report from Dr. Filion. Counsel continued to attribute appellant’s current bilateral hand/wrist
condition to her “repetitive[-]type work” as a letter carrier. Dr. Filion noted that appellant’s
letter carrier position required repetitive use of her hands and wrists, including casing mail with
3

Other than noting that appellant was a letter carrier, Dr. Filion did not comment on any specific employment
duties that either caused or contributed to the diagnosed bilateral hand/wrist condition.
4

Dr. Filion’s current diagnosis was based in part on an October 2008 electrodiagnostic, electromyogram/nerve
conduction velocity (EMG/NCV) study. He recommended that appellant undergo a repeat study.

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repetitive bending, twisting and reaching with her hands. He also noted that appellant’s duties
involved repetitive wrist flexion and extension.
In a decision dated September 30, 2011, the hearing representative remanded the case for
further medical development. She found that, while Dr. Filion’s reports were not sufficient to
satisfy appellant’s burden of proof, the evidence submitted was sufficient to warrant further
development by OWCP.
On remand, OWCP referred appellant to Dr. Jeffrey F. Lakin, a Board-certified
orthopedic surgeon, who examined her on October 27, 2011.
Dr. Lakin’s orthopedic
examination was unremarkable and he indicated there was no diagnosis related to a November 1,
2010 date of injury. He noted that appellant was not currently suffering from any medical
condition as a result of her employment duties. Appellant had no evidence of any carpal tunnel
syndrome, no peripheral nerve entrapment, no tendinopathy and no instability of the wrist or
hand as related to the November 1, 2010 date of injury. Dr. Lakin further indicated that
appellant could perform her full-time, regularly assigned duties as a letter carrier without
restriction. He also advised that no further medical treatment or surgery was necessary.
In a decision dated November 16, 2011, OWCP denied appellant’s claim because the
evidence established that she did not have a medical condition.
On January 6, 2012 appellant’s counsel requested reconsideration. He purportedly
submitted a copy of an October 27, 2008 EMG, but no such evidence was received by OWCP.
By decision dated April 9, 2012, OWCP denied modification of its November 16, 2011
decision.
LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of establishing the essential
elements of her claim by the weight of the reliable, probative and substantial evidence, including
that an injury was sustained in the performance of duty as alleged and that any specific condition
or disability claimed is causally related to the employment injury.5
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;

5

20 C.F.R. § 10.115(e), (f) (2011); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is
a medical question, which generally requires rationalized medical opinion evidence to resolve the issue. See
Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on whether there is a causal relationship between
the diagnosed condition and the implicated employment factors must be based on a complete factual and medical
background. Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical rationale,
explaining the nature of the relationship between the diagnosed condition and appellant’s specific employment
factors. Id.

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and (3) medical evidence establishing that the diagnosed condition is causally related to the
identified employment factors.6
ANALYSIS
The Board finds that the weight of the medical evidence as represented by Dr. Lakin’s
October 27, 2011 second opinion, does not establish the existence of bilateral carpal tunnel
syndrome. Appellant initially submitted a January 2011 prescription pad note from Dr. Kricko
who diagnosed left carpal tunnel syndrome. However, Dr. Kricko did not provide a basis for his
diagnosis and did not attribute this condition to appellant’s employment as a letter carrier. The
March 21, 2011 note from Summit Medical Group is similarly deficient because the author of the
note is unclear and the diagnosis of right thumb tenosynovitis secondary to work use is
unsupported.
On appeal, appellant’s counsel argued that an October 27, 2008 EMG supported a
diagnosis of bilateral CTS. He also argued that Dr. Weiss’ February 14, 2011 report supported a
finding of bilateral CTS. Contrary to counsel’s argument, the record does not include an
October 27, 2008 EMG. He also incorrectly characterized Dr. Weiss’ report as including a
diagnosis of carpal tunnel syndrome. That report pertained to other unrelated injuries involving
appellant’s right index finger and her right middle toe and it did not include a specific diagnosis
of bilateral CTS.
Dr. Filion provided several reports in which he diagnosed bilateral carpal tunnel
syndrome. His March 17, 2011 diagnosis was based in part on an October 2008 EMG/NCV
study which is not part of the current record. Also, Dr. Filion was aware that appellant worked
as a letter carrier, but at the time he did not specifically relate the diagnosis to appellant’s
employment. In subsequent reports, Dr. Filion attributed appellant’s bilateral CTS to her letter
carrier duties which he characterized as involving “repetitive type work.” His latest report dated
August 2, 2011 included a general description of appellant’s letter carrier duties as including
casing mail with repetitive bending, twisting and reaching with her hands and repetitive wrist
flexion and extension. The Board concurs with the hearing representative’s assessment that
Dr. Filion’s opinion while insufficient to carry appellant’s burden, was sufficient to warrant
further development by OWCP.
In accordance with the hearing representative’s September 30, 2011 directive, OWCP
referred appellant to Dr. Lakin for a second opinion evaluation. Based on his October 27, 2011
examination and a review of appellant’s medical records, Dr. Lakin found no evidence of carpal
tunnel syndrome.7 He noted that appellant’s current physical examination was unremarkable and
she was not suffering from any medical condition as a result of her employment duties. The
Board finds that OWCP properly relied on Dr. Lakin’s rationalized opinion as a basis for finding
that appellant had not established that she sustained bilateral CTS as a result of her letter carrier
duties.

6

Victor J. Woodhams, supra note 5.

7

Dr. Lakin reviewed Dr. Filion’s above-noted reports as well as Dr. Weiss’ February 14, 2011 report.

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CONCLUSION
Appellant failed to establish that she sustained an injury in the performance of duty on or
about November 1, 2010.
ORDER
IT IS HEREBY ORDERED THAT the April 9, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.8
Issued: October 17, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

8

Appellant may submit new evidence or argument with a written request for reconsideration to OWCP within
one year of this merit decision. See 5 U.S.C. § 8128 (a); 20 C.F.R. §§ 10.605, 10.607.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
INFORMATION SYSTEMS AGENCY,
St. Louis, MO, Employer
__________________________________________

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

Docket No. 11-209
Issued: August 5, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On November 1, 2010 appellant timely appealed the May 13, 2010 merit decision of the
Office of Workers’ Compensation Programs, which denied her claim for wage-loss
compensation. Pursuant to 20 C.F.R. §§ 501.2 and 501.3, the Board has jurisdiction over the
merits of the claim.
ISSUE
The issue is whether appellant is entitled to wage-loss compensation for temporary total
disability on September 18, 22 and 23, 2009.
FACTUAL HISTORY
Appellant, a 58-year-old information technology specialist, has an accepted claim for
contusions of the left knee and left lower leg and left chondromalacia patellae, which arose on
March 14, 2005.1 She resumed her regular duties on April 11, 2005. Appellant received
1

She slipped and fell down a flight of stairs in the performance of duty.

continuation of pay and compensation from OWCP for intermittent wage loss. OWCP also
granted a schedule award for 10 percent impairment of the left lower extremity.
Dr. Donald R. Bassman, a Board-certified orthopedic surgeon, examined appellant on
September 18, 2009. Appellant’s chief complaint at the time was localized left knee pain.
Dr. Bassman diagnosed left knee chondromalacia and referred appellant for a magnetic
resonance imaging (MRI) scan. Appellant was to return for follow-up after obtaining a new left
knee MRI scan. Dr. Bassman did not specifically comment on appellant’s work status and what,
if any, restrictions applied. OWCP approved the requested MRI scan, which appellant obtained
on September 28, 2009.
On September 25, 2009 appellant filed a claim for compensation (Form CA-7) for a total
of 24 hours of lost wages on September 18, 22 and 23, 2009. She claimed to have been off work
based on her doctor’s advice. On September 28, 2009 appellant filed another Form CA-7 for
three hours of lost wages due to the MRI scan she obtained that same day.
OWCP paid appellant for the three hours claimed for her September 28, 2009 MRI scan.
However, with regard to the 24 hours of wage loss claimed for the period September 18 to 23,
2009, OWCP advised appellant that she needed to file a notice of recurrence (Form CA-2a) and
provide the necessary medical evidence establishing a causal relationship between the claimed
period of disability and her accepted March 14, 2005 employment injury.
OWCP subsequently received an October 28, 2009 report from Dr. Bassman who noted
that appellant had returned for a follow-up visit regarding her left knee. Dr. Bassman also noted
that appellant’s recent MRI scan was negative. He reported that appellant had been able to stay
off her knee for a few days and there was a decrease in swelling. However, the cause of the
swelling was unclear. Dr. Bassman further noted that appellant’s knee had never fully recovered
from her March 14, 2005 fall at work. He indicated that appellant needed to continue with her
quadriceps exercises. Dr. Bassman diagnosed left knee chondromalacia patella and advised
appellant to return as needed.
Appellant later filed a claim for four hours of lost wages associated with her October 28,
2009 medical appointment, which OWCP paid.
In a decision dated December 8, 2009, OWCP denied appellant’s claim for disability
beginning September 18, 2009. It explained that, while the relevant contemporaneous medical
evidence referenced appellant’s complaints of left knee pain and included a diagnosis of
chondromalacia patella, the reports did not indicate that appellant was disabled during the
claimed period.
On April 7, 2010 appellant requested reconsideration. She submitted Dr. Bassman’s
March 17, 2010 treatment notes and a narrative report dated March 31, 2010. When
Dr. Bassman examined appellant on March 17, 2010, he noted that her left knee continued to be
symptomatic. He also noted that her knee had never really responded to any of the medication or
therapy prescribed since her original work injury in 2005. Appellant complained of daily pain
and swelling. Also, stairs continued to bother her, as well as kneeling and squatting. Appellant
reported feeling some grinding, at times, like clicking in the knee with extension. Dr. Bassman

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further noted that previous MRI scans showed chondromalacia without any meniscal tears.
Appellant took Advil twice daily and continued to elevate her knee. Dr. Bassman diagnosed left
knee chondromalacia patella. He also indicated that appellant could continue at her present job,
which she reportedly was able to tolerate. Dr. Bassman further noted that appellant would like to
elevate her legs with a stool if possible. Appellant was instructed to return for follow-up on an
as needed basis.2
In a report dated March 31, 2010, Dr. Bassman provided a chronology of appellant’s
treatment dating back to May 17, 2005, which included medication (NSAID), physical therapy, a
home exercise program and multiple MRI scans. He described her March 14, 2005 employment
injury when she fell down some stairs at work. Dr. Bassman noted that by October 2005,
appellant’s left knee symptoms had improved to the point where her pain was rated 1 out of 10.
However, in November 2005, appellant continued to experience left knee pain due to an
“unspecified aggravation.” Her left knee complaints persisted despite her home exercise
program and negative/normal MRI scans. Dr. Bassman noted that he continued to treat appellant
over the next several years and her diagnosis over the entire period was chondromalacia patella.
He further indicated that when seen in 2008 and 2009 appellant continued to complain of pain,
stiffness and occasional swelling. Also, stairs were noted to be a problem for appellant.
Dr. Bassman commented that appellant’s latest MRI scan from September 2009 was normal and
when he recently saw her, appellant had reported similar complaints as before. He explained that
appellant never fully recovered from her original injury. However, appellant was able to return
to her employment, which involved sitting and working at a computer. Dr. Bassman noted that
factors that might cause a recurrence would be any that would increase the stress on the articular
surface of the patella. He further indicated that appellant’s recurring disability was the same as
the original disability. Dr. Bassman added that her patella was more prone to recurrence with
stress or contusion. Lastly, he indicated there were no precipitating factors that would have
caused this condition by itself. Dr. Bassman reiterated that appellant’s original injury was
caused by a fall down the stairs at work.
By decision dated May 13, 2010, OWCP denied modification of the December 8, 2009
decision.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition, which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.3 This term also means an inability to work when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to her work-related
injury or illness is withdrawn (except when such withdrawal occurs for reasons of misconduct,
nonperformance of job duties or a reduction-in-force), or when the physical requirements of such

2

OWCP paid appellant for three hours of lost wages for her March 17, 2010 medical appointment with
Dr. Bassman.
3

20 C.F.R. § 10.5(x) (2010).

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an assignment are altered so that they exceed her established physical limitations.4 Moreover,
when the claimed recurrence of disability follows a return to light-duty work, the employee may
satisfy her burden of proof by showing a change in the nature and extent of the injury-related
condition such that she was no longer able to perform the light-duty assignment.5
Where an employee claims a recurrence of disability due to an accepted employmentrelated injury, she has the burden of establishing that the recurrence of disability is causally
related to the original injury.6 This burden includes the necessity of furnishing evidence from a
qualified physician who concludes, on the basis of a complete and accurate factual and medical
history, that the condition is causally related to the employment injury.7 The medical evidence
must demonstrate that the claimed recurrence was caused, precipitated, accelerated or aggravated
by the accepted injury.8
An injured employee may also be entitled to compensation for lost wages incurred while
obtaining authorized medical services.9 This includes the actual time spent obtaining the medical
services and “a reasonable time spent traveling to and from the [medical] provider’s location.”10
As a matter of practice, OWCP generally limits the amount of compensation to four hours with
respect to routine medical appointments.11 However, longer periods of time may be allowed
when required by the nature of the medical procedure and/or the need to travel a substantial
distance to obtain the medical care.12
ANALYSIS
Appellant stopped work for three days in September 2009 reportedly on the advice of her
treating physician. She filed a claim for wage-loss compensation for a total of 24 hours during
the period September 18 to 23, 2009. Dr. Bassman examined appellant on September 18, 2009,
and reported complaints of localized left knee pain. He diagnosed left knee chondromalacia and
referred appellant for an MRI scan. However, Dr. Bassman did not specifically comment on
appellant’s work status. During a follow-up visit on October 28, 2009, he reviewed the latest
4

Id.

5

Theresa L. Andrews, 55 ECAB 719, 722 (2004).

6

20 C.F.R. § 10.104(b); Helen K. Holt, 50 ECAB 279, 382 (1999); Carmen Gould, 50 ECAB 504 (1999);
Robert H. St. Onge, 43 ECAB 1169 (1992).
7

See Helen K. Holt, supra note 6.

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.2 (June 1995).

9

See 5 U.S.C. § 8103(a) (2006); Gayle L. Jackson, 57 ECAB 546, 547-48 (2006).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Computing Compensation, Chapter 2.901.16a
(October 2009).
11

Federal (FECA) Procedure Manual, Part 3 -- Medical, Administrative Matters, Chapter 3.900.8
(November 1998).
12

Id.

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MRI scan and advised appellant to return on an as needed basis. While Dr. Bassman noted
decreased swelling after appellant had been able to stay off her knee for a few days, he did not
identify the particular time frame nor did he indicate that appellant stopped working on his
advice or instructions. When appellant next saw Dr. Bassman on March 17, 2010, his treatment
notes for that visit did not specifically address the claimed period of disability in
September 2009. Dr. Bassman’s latest report, dated March 31, 2010, similarly failed to
specifically address the claimed period of disability in September 2009. He noted in “2009” that
appellant continued to complain of pain, stiffness, occasional swelling and a problem navigating
stairs. Dr. Bassman also mentioned that appellant’s September 2009 left knee MRI scan was
normal. Additionally, his March 31, 2010 report referenced “recurring disability.” However,
Dr. Bassman did not specifically indicate that appellant was disabled from work on
September 18, 22 and 23, 2009 due to her employment-related left chondromalacia patellae.
Accordingly, the relevant medical evidence does not establish entitlement to 24 hours of wageloss compensation for temporary total disability on September 18, 22 and 23, 2009.
While appellant has not established entitlement to compensation for temporary total
disability, wage-loss compensation may be awarded for documented periods when an injured
employee obtained authorized medical services.13 As noted, Dr. Bassman examined appellant on
September 18, 2009 and recommended that she obtain an MRI scan, which she did on
September 28, 2009. OWCP compensated appellant for the three hours she claimed for
obtaining the recommended MRI scan. It also compensated appellant for subsequent visits to
Dr. Bassman on October 28, 2009 and March 17, 2010. In each instance, Dr. Bassman
diagnosed left knee chondromalacia patellae, which is an accepted condition arising from
appellant’s March 14, 2005 employment injury. Under the circumstances, the Board finds that
appellant is entitled to four hours of wage-loss compensation for her September 18, 2009
examination by Dr. Bassman.
CONCLUSION
Appellant did not establish entitlement to wage-loss compensation for temporary total
disability on September 18, 22 and 23, 2009. However, she is entitled to four hours of wage-loss
compensation on September 18, 2009 for medical treatment received in connection with her
accepted employment injury. Accordingly, OWCP’s May 13, 2010 decision is modified to
reflect appellant’s entitlement to four hours of wage-loss compensation on September 18, 2009.

13

See 5 U.S.C. § 8103(a); Gayle L. Jackson, supra note 9.

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ORDER
IT IS HEREBY ORDERED THAT the May 13, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: August 5, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.V., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PATROL,
Santa Teresa, NM, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 22-0131
Issued: November 30, 2021

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

On November 4, 2021 appellant filed an appeal from a May 8, 2019 decision of the Office
of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned
Docket No. 22-0131.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act. 1
For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s review
authority is limited to appeals which are filed within 180 days from the date of issuance of OWCP’s
decision.2
The 180 th day following the May 8, 2019 decision was November 4, 2019. As appellant
did not file an appeal with the Board until November 4, 2021, more than 180 days after the May 8,
2019 OWCP decision, the Board finds that the appeal docketed as No. 22-0131 is untimely filed.
The Board is without jurisdiction to review the appeal. Appellant has not offered a reason to
1

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

2

Id. at § 501.3(e).

explain the failure to timely file an appeal with supporting documentation sufficient to establish
compelling circumstances.
The Board’s decisions and orders are “final upon the expiration of 30 days from the date
of their issuance.”3
IT IS HEREBY ORDERED THAT the appeal docketed as No. 22-0131 is dismissed.
Issued: November 30, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

3

Id. at § 501.6(d).

2


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

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

Docket No. 07-2386
Issued: June 2, 2008

Case Submitted on the Record

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

JURISDICTION
On September 20, 2007 appellant filed a timely appeal of a September 11, 2007 decision
of the Office of Workers’ Compensation Programs, finding that appellant’s request for
reconsideration was untimely and failed to show clear evidence of error. Pursuant to 20 C.F.R.
§ 501.3, the Board’s jurisdiction is limited to decisions issued within one year of the filing of the
appeal. Since the last merit decision was issued September 25, 2002, the Board does not have
jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly declined to reopen the case for merit review on
the grounds that appellant’s application for reconsideration was untimely and failed to show
clear evidence of error.

FACTUAL HISTORY
The case has previously been before the Board. In a decision dated September 25, 2002,
the Board affirmed the termination of compensation as of June 1, 1992.1 The Board found that
the weight of the medical evidence was represented by second opinion psychiatrist, Dr. Reynaldo
Abejuela, who submitted reports dated February 1 and November 11, 1996 and March 12, 1997.
In a decision dated March 14, 2005, the Board affirmed a June 13, 2003 Office decision denying
appellant’s request for reconsideration without merit review of the claim. By decision dated
August 23, 2006, the Board affirmed a November 21, 2005 Office decision finding appellant’s
application was untimely and failed to show clear evidence of error.2 The history of the case is
provided in the Board’s prior appeals and is incorporated herein by reference.
By letter dated February 12, 2007, appellant requested reconsideration of his claim. He
reiterated his argument that he had been subject to sexual harassment and discrimination at the
employing establishment. Appellant submitted numerous letters restating his allegations. With
respect to medical evidence, he submitted a June 20, 2006 report from Dr. Arnold Nerenberg, an
attending clinical psychologist, who stated that the employment-related emotional condition did
not resolve before June 1, 1992. Dr. Nerenberg argued that appellant was subject to sexual
harassment and discrimination. He also stated that appellant would continue his crusade to
correct perceived wrongs and this would cause additional stress.
By decision dated September 11, 2007, the Office determined that the application for
reconsideration was untimely. The Office further denied the application on the grounds that it
did not show clear evidence of error.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides that the Office may review an
award for or against compensation upon application by an employee (or his or her representative)
who receives an adverse decision.3 The employee shall exercise this right through a request to
the district office. The request, along with the supporting statements and evidence, is called the
“application for reconsideration.”4
Section 8128(a) of the Act5 does not entitle a claimant to a review of an Office decision
as a matter of right.6 This section vests the Office with discretionary authority to determine

1

Docket No. 00-1176 (issued September 25, 2002). The Office had accepted that appellant sustained an
adjustment disorder and temporary aggravation of a paranoid personality disorder due to his federal employment.
2

Docket No. 06-375 (issued August 23, 2006), petition for recon. denied (issued January 24, 2007).

3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.605 (1999).

5

5 U.S.C. § 8128(a).

6

Leon D. Faidley, Jr., 41 ECAB 104 (1989).

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whether it will review an award for or against compensation.7 The Office, through regulations,
has imposed limitations on the exercise of its discretionary authority under 5 U.S.C. § 8128(a).8
As one such limitation, the Office has stated that it will not review a decision denying or
terminating a benefit unless the application for reconsideration is filed within one year of the
date of that decision.9 The Board has found that the imposition of this one-year limitation does
not constitute an abuse of the discretionary authority granted the Office under 5 U.S.C.
§ 8128(a).10
The Board has held, however, that a claimant has a right under 5 U.S.C. § 8128(a) to
secure review of an Office decision upon presentation of new evidence that the decision was
erroneous.11 In accordance with this holding the Office has stated in its procedure manual that it
will reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set
forth in 20 C.F.R. § 10.607(a), if the claimant’s application for review shows “clear evidence of
error” on the part of the Office.12
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.13 The evidence must be positive, precise and explicit and must
be manifest on its face that the Office committed an error.14 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.15 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.16 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.17 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
7

Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.”
8

Thus, although it is a matter of discretion on the part of the Office whether to review an award for or against
payment of compensation, the Office has stated that a claimant may obtain review of the merits of a claim by:
(1) showing that the Office erroneously applied or interpreted a specific point of law, or (2) advancing a relevant
legal argument not previously considered by the Office, or (3) constituting relevant and pertinent evidence not
previously considered by the Office; see 20 C.F.R. § 10.606(b).
9

20 C.F.R. § 10.607(a).

10

See Leon D. Faidley, Jr., supra note 6.

11

Leonard E. Redway, 28 ECAB 242 (1977).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (May 1996).

13

See Dean D. Beets, 43 ECAB 1153 (1992).

14

See Leona N. Travis, 43 ECAB 227 (1991).

15

See Jesus D. Sanchez, 41 ECAB 964 (1990).

16

See Leona N. Travis, supra note 14.

17

See Nelson T. Thompson, 43 ECAB 919 (1992).

3

a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office decision.18 The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the
part of the Office such that the Office abused its discretion in denying merit review in the face of
such evidence.19
ANALYSIS
The last merit decision in the case was the Board’s September 25, 2002 decision. The
February 12, 2007 application for reconsideration was more than one year after the merit
decision, and therefore is untimely. Appellant has submitted an application for reconsideration
and numerous letters reiterating his allegation that he was subject to discrimination and sexual
harassment at the employing establishment. As the Board noted in its prior decisions,
discrimination and sexual harassment were not established as compensable work factors in this
case. The compensable work factor was an October 4, 1991 incident involving verbal abuse by a
supervisor. The Office terminated compensation as of June 1, 1992 on the grounds the weight of
the medical evidence, as represented by second opinion psychiatrist, Dr. Reynaldo Abejuela,
established the accepted adjustment disorder and temporary aggravation of paranoid personality
disorder had resolved.
To reopen the case for merit review, appellant would have to submit evidence of such
probative value that it prima facie shifts the weight of the evidence and raises a substantial
question as to the correctness of the Office decision to terminate compensation as of
June 1, 1992. The medical evidence from Dr. Nerenberg is not sufficient to shift the weight of
the evidence. He did not provide an accurate factual background, as he discussed factors that
were not established as compensable work factors. Dr. Nerenberg stated that an employmentrelated condition continued after June 1, 1992, without providing medical rationale. The Board
notes that even if Dr. Nerenberg were to provide an opinion sufficient to create a conflict with
the second opinion physician Dr. Abejuela, this would not establish clear evidence of error.20
Accordingly, the Board finds that the application for reconsideration did not show clear
evidence of error by the Office. Since appellant did not meet the clear evidence of error
standard, the Office properly denied the untimely application for reconsideration without merit
review of the claim.
CONCLUSION
The application for reconsideration was untimely and failed to show clear evidence of
error.

18

Leon D. Faidley, Jr., supra note 6.

19

Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).

20

See Leon D. Faidley, Jr., supra note 6.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 11, 2007 is affirmed.
Issued: June 2, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.N., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Salt Lake City, UT, Employer
__________________________________________

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

Docket No. 17-0773
Issued: October 2, 2017

Case Submitted on the Record

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

JURISDICTION
On February 22, 2017 appellant filed a timely appeal from an October 25, 2016 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.2
ISSUE
The issue is whether appellant met his burden of proof to establish a back injury causally
related to an accepted March 10, 2016 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted new evidence following the October 25, 2016 decision. However,
since the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the
Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57
ECAB 126 (2005).

FACTUAL HISTORY
On March 30, 2016 appellant, then a 58-year-old, sales and service associate, filed a
traumatic injury claim (Form CA-1) alleging that on March 10, 2016 he twisted his back when
his right foot slipped while he lifted a package causing him to lunge forward. On the reverse
side of the claim form it was noted that he stopped work on March 10, 2016.
In a March 30, 2016 letter, the employing establishment controverted appellant’s claim
due to lack of evidence to establish causal relationship and fact of injury.
By letter dated April 1, 2016, OWCP advised appellant that the evidence submitted was
insufficient to establish his claim. It requested that he respond to an attached development
questionnaire in order to substantiate the factual elements of his claim. Appellant was also
requested to provide additional medical evidence to establish that he sustained a diagnosed
condition as a result of the alleged employment incident. He was afforded 30 days to submit the
necessary evidence.
Appellant thereafter submitted medical reports from Dr. Ernest C. Severn, an osteopath
specializing in family medicine, who related in a March 14, 2016 report that on March 10, 2016
appellant felt his back pop when he reached down to lift something out of a box and his right
foot slipped. Dr. Severn noted appellant’s complaints of low back pain across the whole lower
back, worse on the right side. He reviewed appellant’s history and conducted an examination of
appellant’s lower back. Dr. Severn reported some mild vertebral tenderness and some tenderness
in the paravertebral muscles with no edema or ecchymosis. Straight leg raise testing was
negative bilaterally. Motor and sensory examinations were normal bilaterally. Dr. Severn also
observed tenderness in the paraspinal muscles and over the thoracic vertebrae of appellant’s
upper back. He indicated that examination of appellant’s neck revealed mildly limited range of
motion. Dr. Severn diagnosed acute right-sided thoracic back pain, acute bilateral low back pain
without sciatica, and cervicalgia. He related that lumbar spine x-ray examinations were negative.
In a March 14, 2016 work excuse note, Dr. Severn requested that appellant be excused
from work due to injury. He explained that it would be difficult to predict when appellant would
be able to return to work.
Dr. Severn indicated in an April 6, 2016 attending physician’s report (Form CA-20) that
appellant felt his back popped when he reached down for something in a mail box and his foot
slipped. He reported examination findings of pain and tenderness on palpation and abnormal
gait. Dr. Severn noted that the lumbar x-ray examination was negative. He diagnosed
right-sided thoracic pain, bilateral lumbar pain, and cervicalgia. Dr. Severn checked a box
marked “yes” indicating that appellant’s condition was caused or aggravated by an employment
activity. He indicated that appellant was totally disabled beginning March 11, 2016.
On April 21, 2016 appellant responded to OWCP’s development questionnaire. In a
narrative statement, he explained that on March 10, 2016 at approximately 7:15 p.m. he reached
for a package at the bottom of the priority gaylord box when his right foot slipped and he fell
forward. Appellant noted that he twisted his back, felt pain, and heard a “pop.” He explained
that he went home, took some Ibuprofen, and put some icy hot on his back. Appellant related

2

that the next day he drove back to work to get his paycheck and told B.M., his supervisor, about
what happened the night before. He noted that he could not stand up straight and was moving
very slowly. Appellant indicated that on Monday he sought medical treatment from Dr. Severn
because his back pain was not getting any better. He related that Dr. Severn drafted a letter
taking him off work. Appellant also alleged that there was no delay in filing his claim. He noted
that he wrote a description of how the accident happened and gave it to B.M. on March 21, 2016.
Appellant further indicated that on March 25, 2016 he met with Postmaster J.C. who entered his
injury claim on the computer.
On April 21, 2016 appellant submitted an undated statement. He explained that on
March 10, 2016, towards the end of his shift, he was trying to retrieve a box from the bottom of
one of the gaylords when his right foot slipped and he twisted his back. Appellant noted that he
immediately heard his back pop and struggled to get himself upright with the package.
OWCP denied appellant’s claim in a decision dated May 4, 2016. It accepted that the
March 10, 2016 employment incident occurred as alleged, but denied his claim because the
medical evidence submitted failed to establish a diagnosed condition causally related to the
accepted incident. Therefore, fact of injury was not established.
On June 7, 2016 appellant requested a review of the written record by a hearing
representative from OWCP’s Branch of Hearings and Review. In a June 1, 2016 statement, he
noted that his claim was denied because medical evidence was required that established a
diagnosed medical condition causally related to the work injury or event. Appellant explained
that to meet these requirements he was submitting a May 27, 2016 letter from Dr. Severn,
April 25 and May 13, 2016 medical records from Dr. Armen Khachatryan, a Board-certified
orthopedic surgeon, and various diagnostic reports.
Appellant submitted a March 14, 2016 lumbar spine x-ray examination report by
Dr. Benjamin H. Gordon, a Board-certified radiologist, who indicated that there was no evidence
of fracture or malalignment of the lumbar spine.
In an April 19, 2016 progress note, Dr. Severn related that appellant was examined for
follow-up of back and neck pain and weakness in his legs. He reported slow and stiff gait upon
physical examination of appellant’s back and diagnosed acute bilateral low back pain without
sciatica.
Appellant submitted reports by Dr. Khachatryan dated April 25 and May 13, 2016.
Dr. Khachatryan noted that on March 10, 2016 appellant was working when he realized that he
threw some mail in the wrong bin. Appellant bent down to pick the mail up out of the bin and
felt a pop in his back. He complained of severe pain along his back and the right posterior aspect
of his leg. Appellant explained that since his injury he had been taking Ibuprofen and limiting
his work activity as related to lifting, turning, and bending. Dr. Khachatryan reviewed
appellant’s history and conducted an examination of his lower back. He reported pain on
palpation and some pain over neck musculature on palpation. Dr. Khachatryan related that
appellant was unable to stand up in the upright position due to worsening right leg pain. He
indicated normal strength throughout the rest of appellant’s upper and lower extremities and 3/5
strength in the hamstring. Neurologic examination revealed slight numbness to light touch on

3

the posterior aspect of appellant’s right leg. Sensation was normal throughout his upper and
lower extremities. Dr. Khachatryan diagnosed back pain, right-sided lumbar radiculopathy,
slight neuropathy with weakness, neck pain, and C5-6, C6-7 degenerative disc disease.
In a May 13, 2016 report, Dr. Khachatryan noted that he reviewed several diagnostic
reports. He reported that appellant had a “work-related injury, which at the current time is not
something that could be explained by any type of back injury.” Dr. Khachatryan recommended
that appellant return to light duty.
Appellant also underwent various diagnostic examinations on May 2, 2016. In a cervical
spine magnetic resonance imaging (MRI) scan report, Dr. Logan Arron Mclean, a Boardcertified diagnostic radiologist, observed mild generalized parenchymal atrophy and no evidence
of acute intracranial abnormality. In a thoracic spine MRI scan report, he noted multilevel mild
degenerative disc disease and no thoracic malalignment, spinal canal, or foraminal stenosis. In a
lumbar spine MRI scan report, Dr. John N. Henrie, a Board-certified diagnostic radiologist,
reported minor degenerative changes, L5-S1 small right posterolateral annular tear, and no
central or foraminal stenosis. In a cervical spine MRI scan report, he noted degenerated disc at
C5-6 with central stenosis, mild-to-moderate right foraminal stenosis at C5-6, and acquired
modest left foraminal stenosis, mild foraminal narrowing on the right.
Dr. Severn indicated in a May 27, 2016 letter that appellant shared with him a copy of the
OWCP letter, which denied appellant’s claim for benefits. He related that he had initially treated
appellant on March 14, 2016 following the alleged March 10, 2016 “work injury.” Dr. Severn
noted that OWCP already had a copy of his notes and diagnostic reports. He explained that
when a patient initially presents for treatment and a full diagnostic evaluation is not complete,
the definitive diagnosis is still to be determined. Dr. Severn indicated that the additional
evaluation that had occurred since appellant’s initial visit had provided a definitive diagnosis of
right-sided lumbar radiculopathy, slight neuropathy, and degenerative cervical discs. He noted
that later an MRI scan showed a herniated C5-6 disc. Dr. Severn reported that “as a result of the
injury [appellant] sustained at work there was a marked increase in his symptoms of neck and
back pain” and marked decrease in appellant’s ability to function. He opined that appellant’s
C5-6 disc herniation as seen in the MRI scan resulted from the “work injury” in question.
Dr. Severn noted that appellant’s degenerative disc disease was present and the “work injury”
caused the herniation, the symptoms, and decreased function.
Appellant also submitted various laboratory test results.
By decision dated October 25, 2016, an OWCP hearing representative affirmed the
May 4, 2016 decision with modification. She found that the medical evidence was insufficient to
establish that appellant’s diagnosed medical conditions were causally related to the March 10,
2016 employment incident.

4

LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence4 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether “fact of injury” has been established.6
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged.7 Second, the employee must submit evidence,
generally only in the form of probative medical evidence, to establish that the employment
incident caused a personal injury.8 An employee may establish that the employment incident
occurred as alleged, but fail to show that his or her disability or condition relates to the
employment incident.9
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.10 The opinion of the physician must be
based on a complete factual and medical background of the employee, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.11 The weight of the 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.12

3

Supra note 1.

4

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

5

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

7

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

8

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

9

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

10

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

11

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

12

James Mack, 43 ECAB 321 (1991).

5

ANALYSIS
Appellant alleged that he sustained a lower back injury as a result of a March 10, 2016
work incident. OWCP accepted that the March 10, 2016 incident occurred as alleged. However,
it denied appellant’s claim finding insufficient medical evidence to establish that his diagnosed
back condition was causally related to the accepted incident. The Board finds that he has not
established that he sustained a back injury on March 10, 2016.
Appellant submitted a series of medical reports by Dr. Severn. In a March 14, 2016
report, Dr. Severn related that on March 10, 2016 appellant felt a “pop” in his back when he
reached down to lift something out of a box and his right foot slipped at work. He reviewed
appellant’s history and conducted an examination of appellant’s back and neck. Dr. Severn
reported some mild vertebral tenderness and some tenderness in the paravertebral muscles with
no edema or ecchymosis. He noted diagnosed acute right-sided thoracic back pain, acute
bilateral low back pain without sciatica, and cervicalgia. In an April 6, 2016 Form CA-20,
Dr. Severn checked a box marked “yes” that appellant’s condition was caused or aggravated by
his employment. He, however, did not provide any explanation or offer any medical rationale to
support his opinion on causal relationship. The Board has held that when a physician’s opinion
on causal relationship consists only of checking “yes” to a form question, without explanation or
rationale, that opinion is of diminished probative value and is insufficient to establish a claim.13
Dr. Severn further indicated in a May 27, 2016 letter that after additional evaluation and
review of appellant’s diagnostic examinations, he diagnosed right-sided lumbar radiculopathy,
slight neuropathy, and degenerative cervical discs. He opined that appellant’s C5-6 disc
herniation resulted from the “work injury” in question. Dr. Severn noted that appellant’s
degenerative disc disease was present and the “work injury” caused the herniation, the
symptoms, and decreased function. Although he provided an affirmative opinion which
supported causal relationship, he did not offer any rationalized medical explanation to support
his opinion. Medical evidence that merely states a conclusion and does not offer any rationalized
medical explanation regarding the cause of an employee’s condition is of limited probative value
on the issue of causal relationship.14
Similarly, in April 25 and May 13, 2016 reports, Dr. Khachatryan provided a history of
injury and physical examination findings. He diagnosed back pain, right-sided lumbar
radiculopathy, neck pain, and C5-6, C6-7 degenerative disc disease and opined that appellant
sustained a work-related injury. In his May 13, 2016 report, Dr. Khachatryan noted that
appellant had a work-related injury, but his condition could not be explained by a back injury.
The Board has found that a physician must provide a narrative description of the identified
employment incident and a reasoned opinion on whether the employment incident described
caused or contributed to appellant’s diagnosed medical condition.15 Dr. Khachatryan’s opinion

13

D.D., 57 ECAB 734, 738 (2006); Deborah L. Beatty, 54 ECAB 340 (2003).

14

J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006).

15

John W. Montoya, 54 ECAB 306 (2003).

6

was vague and unrationalized as to whether appellant’s diagnosed conditions were caused by his
employment injury.16
As neither Dr. Severn nor Dr. Khachatryan provided medical rationale to support their
conclusions regarding causal relationship, their reports are insufficient to establish appellant’s
claim.17
Appellant also submitted various diagnostic examination reports, including a March 14,
2016 lumbar x-ray examination report by Dr. Gordon, May 2, 2016 cervical and thoracic MRI
scan spine reports by Dr. Mclean, and May 2, 2016 lumbar and cervical spine MRI scan reports
by Dr. Henrie. While these physicians provided various diagnoses for appellant’s lumbar and
cervical spine, none of the physicians provided any opinion on the cause of his diagnosed
conditions. The Board has held that medical evidence that does not offer any opinion regarding
the cause of an employee’s condition is of limited probative value on the issue of causal
relationship.18 As none of the physicians offered an opinion on whether appellant’s back
condition was causally related to his employment, the diagnostic reports are insufficient to
establish his claim.19
On appeal appellant alleges that Dr. Severn and Dr. Khachatryan provided rationalized
medical opinions that his lumbar and neck conditions were causally related to the May 10, 2016
employment incident. As previously explained, however, the medical evidence of record fails to
establish that he sustained a back condition as a result of the accepted May 10, 2016 work
incident.
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 his burden of proof to establish a back injury
causally related to the accepted March 10, 2016 employment incident.

16

See Theron J. Barham, 34 ECAB 1070 (1983) vague and unrationalized medical opinions on causal
relationship have little probative value.
17

S.E., Docket No. 08-2214 (issued May 6, 2009) T.M., Docket No. 08-0975 (February 6, 2009).

18

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
supra note 14.
19

R.E., Docket No. 10-0679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007).

7

ORDER
IT IS HEREBY ORDERED THAT the October 25, 2016 merit decision of the Office
of Workers’ Compensation Programs is affirmed.
Issued: October 2, 2017
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Richmond, CA, Employer
__________________________________________

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Appearances:
Hank Royal, for the appellant
Office of Solicitor, for the Director

Docket No. 09-124
Issued: July 20, 2009

Case Submitted on the Record

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

JURISDICTION
On October 17, 2008 appellant, through her representative, filed a timely appeal from
November 21, 2007 and August 18, 2008 merit decisions of the Office of Workers’
Compensation Programs terminating her entitlement to medical benefits and from an April 16,
2008 merit decision denying her claim for 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.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s entitlement to
medical benefits effective November 21, 2007 on the grounds that she had no residuals of her
employment-related injury; and (2) whether she has established that she sustained a permanent
impairment due to her accepted work injury. On appeal appellant’s representative contends that
there remains an unresolved conflict in medical opinion.

FACTUAL HISTORY
This case is before the Board for the second time. By decision dated May 1, 2007, the
Board reversed a November 7, 2005 Office decision terminating appellant’s compensation and
medical benefits and a February 9, 2006 decision denying her request for reconsideration.1 The
Board found that the June 12, 2002 and September 8, 2003 reports from Dr. Arthur M.
Auerbach, a Board-certified orthopedic surgeon selected to resolve a conflict in medical opinion,
were insufficiently rationalized to establish that she had no further aggravation of her
employment-related lumbar condition. The Board concluded that, as the record contained an
unresolved conflict in medical opinion, the Office had not met its burden of proof to terminate
appellant’s benefits for her December 16, 1999 work injury. The findings of fact and
conclusions of law from the prior decision are hereby incorporated by reference.
On May 22, 2007 the Office referred appellant to Dr. Matthew Mitchell, a Board-certified
orthopedic surgeon, for a second opinion examination.2 On June 5, 2007 Dr. Mitchell diagnosed
lumbar degenerative disc disease unconnected to appellant’s injury as described in the statement
of accepted facts. He opined that appellant’s symptoms were due to “underlying degenerative
disc disease in the lumbar spine.”
In a form report dated June 18, 2007, Dr. David Wren, Jr., an attending orthopedic
surgeon, diagnosed chronic lumbosacral strain and noted that appellant had retired. On
August 23, 2007 he diagnosed lumbar sprain/strain and found that she remained disabled from
work.
In a supplemental report dated September 7, 2007, Dr. Mitchell found that appellant’s
2001 electromyography/nerve conduction studies results were normal. He diagnosed lumbar
degenerative disc disease unrelated to her accepted employment injury.
On September 26, 2007 the Office notified appellant of its proposed termination of her
medical benefits based on the opinion of Dr. Mitchell. In a decision dated November 21, 2007, it
finalized the termination of her medical benefits effective that date on the grounds that she had
no further residuals of her accepted work injury.
On October 3, 2007 appellant filed a claim for a schedule award. On December 17, 2007
she requested an oral hearing on the November 21, 2007 termination decision. By decision dated
April 16, 2008, the Office denied appellant’s claim for a schedule award. It found that she had
not submitted any medical evidence showing that she had a permanent impairment of a
scheduled member.
1

Docket No. 07-155 (issued May 1, 2007). The Office accepted that on December 16, 1999 appellant sustained
an aggravation of a lumbar spine condition when she stepped on a broken tile and fell through the floor. It had
previously accepted that she sustained a strain of the neck, left shoulder and lumbar spine due to a May 6, 1999
motor vehicle accident, assigned file number xxxxxx616. The Office, in a decision dated November 7, 2005, found
that appellant had continuing residuals of her May 6, 1999 work injury and expanded acceptance of the claim to
include an aggravation of preexisting lumbar osteoarthritis and degenerative disc disease.
2

The Office indicated in an updated statement of accepted facts that appellant had been released to full-time
employment on March 14, 2002.

2

On May 20, 2008 appellant’s representative requested a review of the written record in
lieu of an oral hearing. In a statement dated June 12, 2008, he contended that Dr. Mitchell’s
opinion was outside of the statement of accepted facts and insufficient to resolve the conflict in
medical opinion.
By decision dated August 18, 2008, an Office hearing representative affirmed the
November 21, 2007 decision.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. The right to medical benefits for an
accepted condition is not limited to the period of entitlement for disability compensation.3 To
terminate authorization for medical treatment, the Office must establish that appellant no longer
has residuals of an employment-related condition which require further medical treatment.4 The
Office’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.5
Section 8123(a) of the Federal Employees’ Compensation Act6 provides that, if there is
disagreement between the physician making the examination for the United States and the
physician of the employee, the Secretary shall appoint a third physician who shall make an
examination.7 The implementing regulations states that, if a conflict exists between the medical
opinion of the employee’s physician and the medical opinion of either a second opinion
physician or an Office medical adviser, the Office shall appoint a third physician to make an
examination. This is called a referee examination and the Office will select a physician who is
qualified in the appropriate specialty and who has no prior connection with the case.8
In situations where the Office secures an opinion from an impartial medical specialist for
the purpose of resolving a conflict in the medical evidence and the opinion from such specialist
requires clarification or elaboration, the Office has the responsibility to secure a supplemental
report from the specialist for the purpose of correcting the defect in the original opinion. If the
specialist is unwilling or unable to clarify and elaborate on his or her opinion, the case should be
referred to another appropriate impartial medical specialist.9

3

Kathryn E. Demarsh, 56 ECAB 677 (2005); Pamela K. Guesford, 53 ECAB 727 (2002).

4

Id.

5

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

6

5 U.S.C. §§ 8101-8193.

7

Id. at § 8123(a).

8

20 C.F.R. § 10.321.

9

See Phillip H. Conte, 56 ECAB 213 (2004); Guiseppe Aversa, 55 ECAB 164 (2003).

3

ANALYSIS -- ISSUE 1
The Board previously found that the opinion of Dr. Auerbach, an impartial medical
examiner, was insufficiently rationalized to establish that appellant had no further disability or
medical condition caused by her December 16, 1999 work injury. The Board concluded that
there remained an unresolved conflict in medical opinion.
On May 22, 2007 the Office referred appellant to Dr. Mitchell for a second opinion
examination. As held by the Board, however, the record contained an unresolved conflict in
medical opinion at the time of the Office’s referral of appellant to Dr. Mitchell. Where the
Office secures an opinion from an impartial medical specialist for the purpose of resolving a
conflict in the medical evidence and the opinion from such specialist requires clarification or
elaboration, the Office has the responsibility to secure a supplemental report from the specialist
for the purpose of correcting the defect in the original opinion. If the specialist is unwilling or
unable to clarify and elaborate on his or her opinion or if his supplemental report is also vague,
speculative or lacking in rationale, the Office must submit the case record and a detailed
statement of accepted facts to a second impartial specialist for the purpose of obtaining his or her
rationalized medical opinion.10 It previously requested that Dr. Auerbach clarify his June 12,
2002 report; however, the Board found that his September 8, 2003 supplemental report lacked
sufficient rationale to meet the Office’s burden of proof to terminate compensation. As
Dr. Auerbach was unable to clarify his opinion, the Office should have referred appellant to a
new impartial medical examiner to resolve the conflict in medical opinion. Consequently, as
there remains an unresolved conflict in medical opinion, the Office failed to meet its burden of
proof to terminate her medical benefits.
LEGAL PRECEDENT -- ISSUE 2
Section 8107 of the Act 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.11 Before the American Medical Association, Guides to the Evaluation of
Permanent Impairment can be utilized, a description of appellant’s impairment must be obtained
from his or her physician. The evaluation made by the attending physician must include a
description of the impairment including, where applicable, the loss in degrees of active and
passive motion of the affected member or function, the amount of any atrophy or deformity,
decreases in strength or disturbance of sensation, or other pertinent descriptions of the
impairment. This description must be in sufficient detail so that the claims examiner and others
reviewing the file will be able to clearly visualize the impairment with its restrictions and
limitations.12
A claimant seeking compensation under the Act has the burden of establishing the
essential elements of her claim by the weight of the reliable, probative and substantial evidence.
10

Id.; see also Harold Travis, 30 ECAB 1071 (1979).

11

20 C.F.R. § 10.404.

12

Peter C. Belkind, 56 ECAB 580 (2005); Vanessa Young, 55 ECAB 575 (2004).

4

A claimant seeking a schedule award, therefore, has the burden of establishing that her accepted
employment injury caused permanent impairment of a scheduled member, organ or function of
the body.13
ANALYSIS -- ISSUE 2
Appellant has not submitted sufficient medical evidence to establish that she sustained
any permanent impairment causally related to her accepted work injury. She requested a
schedule award on October 3, 2007 but submitted no supporting medical evidence. In a form
report dated June 18, 2007, Dr. Wren diagnosed chronic lumbosacral strain and noted that
appellant had retired. On August 23, 2007 he diagnosed lumbar sprain/strain and asserted that
she was disabled from work. Dr. Wren did not state that appellant had any permanent
impairment causally related to her accepted lumbar conditions.14
As noted, the Office evaluates schedule award claims pursuant to the standards set forth
in the A.M.A., Guides. Appellant has the burden of proof to submit medical evidence supporting
that she has permanent impairment to a scheduled member of the body.15 As she has not
submitted such evidence, she has not established entitlement to a schedule award.
CONCLUSION
The Board finds that the Office improperly terminated appellant’s entitlement to medical
benefits effective November 21, 2007 on the grounds that she had no residuals of her
employment-related injury. The Board further finds that she has not established that she
sustained a permanent impairment due to her accepted work injury.

13

See A.L., 60 ECAB ___ (Docket No. 08-1730, issued March 16, 2009); Annette M. Dent, 44 ECAB 403 (1993).

14

See Peter C. Belkind, supra note 12; Noe L. Flores, 49 ECAB 344 (1988).

15

See Annette M. Dent, supra note 13.

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 18, 2008 and November 21, 2007 are reversed and the
decision dated April 16, 2008 is affirmed.
Issued: July 20, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SAFETY
ADMINISTRATION, Chantilly, VA, Employer
__________________________________________

)
)
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)
)
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)
)
)

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

Docket No. 12-1627
Issued: April 2, 2013

Case Submitted on the Record

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

JURISDICTION
On July 26, 2012 appellant, through his attorney, filed a timely appeal of the March 30
and July 19, 2012 merit decisions of the Office of Workers’ Compensation Programs (OWCP)
granting schedule awards. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.
ISSUES
The issues are: (1) whether appellant has more than two percent impairment of his right
leg for which he has received a schedule award; and (2) whether appellant has more than five
percent impairment of his right lung for which he has received a schedule award.
On appeal counsel argues that OWCP did not consider all of appellant’s right knee
conditions in determining permanent impairment. He further argued that OWCP did not rate

1

5 U.S.C. § 8101 et seq.

impairment for appellant’s deep vein thrombosis (DVT) and three thrombotic events resulting in
life time anti-coagulation treatment.
FACTUAL HISTORY
On February 17, 2010 appellant, then a 29-year-old federal air marshal, filed a traumatic
injury claim alleging pain and swelling in his right knee after a physical fitness tempo run on
February 2, 2010. He underwent a right knee magnetic resonance imaging (MRI) scan on
February 11, 2010 which demonstrated a longitudinal tear of posterior horn medial meniscus and
an intact reconstructed anterior cruciate ligament. Appellant’s attending physician recommended
surgery on February 18, 2010.
OWCP accepted appellant’s claim for tear of the medial meniscus of the right knee on
April 14, 2010. On April 29, 2010 he underwent a right knee arthroscopy, partial medial
meniscectomy and chondroplasty of the patella. Dr. Randall Peyton, a Board-certified
orthopedic surgeon, noted that appellant lost approximately 80 percent of the meniscus.
Appellant sought treatment in the emergency room for DVT on May 5, 2010. Dr. Rita A.
Bass, a Board-certified radiologist, completed a right lower extremity venous Doppler on
May 5, 2010. It demonstrated DVT and fluid collection in the posterior medial knee. On
May 12, 2010 appellant underwent a second venous Doppler which demonstrated “considerable,
but incomplete resolution” of the previous DVT. On May 17, 2010 Dr. Peyton stated that
appellant underwent arthroscopy to repair large meniscal tears and demonstrated a complication
of DVT. OWCP accepted appellant’s claim for DVT of the right leg on May 24, 2010.
On May 13, 2010 appellant underwent an inferior vena cava (IVC) filter placement. On
September 27, 2010 he underwent a venous Doppler of the right lower extremity which
demonstrated residual, though less, thrombus within the peroneal and posterior tibial veins with
some further recanalization. On October 4, 2010 Dr. Lee Resta, a Board-certified hematologist,
recommended removing the IVC filter. He removed the filter on October 15, 2010.
Appellant filed a notice of recurrence of disability on November 1, 2010 noting the date
of recurrence as October 15, 2010. He stated that he would not be able to fly to perform his
regular duties for 6 to 12 months due to treatment for DVT. OWCP accepted the recurrence
claim on November 8, 2010.
On October 28, 2010 appellant developed a pulmonary embolism. He filed a notice of
recurrence on November 1, 2010 alleging that the DVT in his leg embolized and traveled to his
lungs. On November 5, 2010 Dr. Dawn Jones, a Board-certified surgeon, noted that, following
appellant’s knee surgery, he developed thrombosis with four blood clots found in the right calf.
She noted that appellant developed chest pain after the IVC filter was removed and diagnosed
pulmonary embolism. In a note dated November 17, 2010, Dr. Terrence Reidy, a Board-certified
hematologist, stated that appellant had pulmonary emboli which were an extension of the DVT
in his leg. He stated that appellant would need to remain on an anticoagulant medication
indefinitely. OWCP accepted appellant’s recurrence of disability on November 18, 2010 and the
pulmonary embolism as due to his February 2, 2010 employment injury.

2

On September 12, 2011 appellant filed a notice of recurrence of disability alleging that on
September 1, 2011 he again developed blood clots in his right leg when he was removed from
the anticoagulant for an emergency appendectomy. He filed a notice of recurrence on
September 19, 2011 alleging that he sustained a recurrence on September 1, 2011 due to his
February 2, 2010 employment injury. OWCP accepted this claim on October 6, 2011.
Appellant underwent a venous Doppler on September 1, 2011 which demonstrated
thrombus within the anterior tibialis vein and a smaller vein in the posterior mid-calf region. In a
report dated September 12, 2011, Dr. Reidy stated that appellant’s recent DVT of the right leg
was related to his original injury. He stated, “The initial clot made your blood vessel abnormal
and more susceptible to further clot formation.”
Appellant requested a schedule award on February 23, 2012. In a report dated
February 24, 2012, Dr. Martin Fritzhand, a Board-certified urologist, noted appellant’s history of
injury on February 2, 2010 and resulting surgery. He listed appellant’s continued knee pain and
recurrent DVT involving the right lower extremity. Dr. Fritzhand stated that appellant would
remain on Coumadin for the remainder of his life. He evaluated appellant under the American
Medical Association, Guides to the Evaluation of Permanent Impairment. Dr. Fritzhand utilized
Table 9-12, p. 208, to assess appellant’s history of recurrent DVT to determine that he had
class 3 impairment or 100 percent impairment of the right leg. He also determined that appellant
had primary knee joint arthritis under Table 16-3, p. 511, a class 2 impairment. Dr. Fritzhand
relied on an x-ray demonstrating two millimeter cartilage separation. He found function history
grade 0, physical examination grade 1 and clinical studies grade 2. Dr. Fritzhand determined that
appellant sustained 16 percent impairment of the right lower extremity due to grade A
impairment.
On March 20, 2012 Dr. Arnold T. Berman, a Board-certified orthopedic surgeon and
OWCP medical adviser, reviewed the record. He found that knee joint arthritis was not an
accepted condition and would not be appropriate for the calculation of a schedule award.
Dr. Berman determined that appellant was entitled to two percent impairment of the right knee
due to the partial medial meniscectomy. He cited to Table 16-3, Knee Regional Grid -- Lower
Extremity Impairments, partial medial meniscectomy, class 1, grade C.2 Dr. Berman stated:
“In regard to the DVT and the thrombotic disorder, utilizing page 208, Table 912: Criteria for Rating Impairment Due to Thrombotic Disorders, this would fall
in the category of [c]lass 1, one prior incident of thrombosis, with a range of one
to nine percent whole person impairment, which would coincide to lung specific
organ specific schedule award disability. The range is one to nine percent.”
Dr. Berman recommended five percent impairment for the lungs3 and two percent impairment
for the right lower extremity.

2

A.M.A., Guides 509, Table 16-3.

3

Id. at 208, Table 9-12.

3

By decision dated March 30, 2012, OWCP granted appellant schedule awards for two
percent impairment of the right leg and five percent impairment of the right lung.
On April 24, 2012 counsel requested reconsideration. He argued that the arthritic
condition of appellant’s right knee was a preexisting condition and should be considered when
making the rating. Counsel contended that OWCP’s medical adviser did not provide rationale
for disagreeing with Dr. Fritzhand’s ratings.
In a report dated April 5, 2012, Dr. Fritzhand noted that appellant experienced two
thrombotic events in 2010 and one thrombotic event in 2011. He reported that a Dr. Broome
examined appellant and that lifelong anticoagulation was indicated. Dr. Fritzhand stated that
appellant had class 3 impairment as he had “one or more thrombotic events per year” as required
by Table 9-12 of the A.M.A., Guides. He explained that appellant did not have the second key
factor, hypercoagulable state. Dr. Fritzhand found that appellant had 35 percent whole person
impairment which was added to 5 percent impairment due to the use of Warfarin under section
9.6c. He rated 40 percent impairment of the whole person which correlated to 100 percent
impairment of the right lower extremity or 40 percent impairment of the lung. Dr. Fritzhand
stated, “However, [appellant] has no symptoms referable to his pulmonary system. All
symptoms are referable to the right lower extremity. Thus it is my medical opinion that
[appellant] has sustained a permanent partial impairment to the right lower extremity of 100
percent.” He also stated that he utilized knee joint arthritis as this was a preexisting condition.
On May 23, 2012 OWCP referred the record to the medical adviser noting that
preexisting impairments of the body are to be included. On June 4, 2012 Dr. Berman noted that
the only accepted condition was a tear of the medial meniscus of the right knee. He stated, “The
fact that there was preexisting osteoarthritis of the knee is irrelevant because it is very common
to have minor preexisting osteoarthritis that would not be causing symptoms as in this case.
However, because of the pathology, specifically was a torn meniscus, and this is what required
arthroscopic surgery. Therefore, osteoarthritis of the knee is not the appropriate diagnosis.”
Dr. Berman further stated that the calculation of the thrombotic disorder, was based on
the pulmonary embolus suffered by appellant. He stated that this condition occurred in the lung
and the pathology and the abnormalities were related to the lung and that Dr. Fritzhand erred in
making a lung equivalency converted to a leg equivalency. Dr. Berman concluded that appellant
could not be rated for DVT in the leg. He further opined that appellant would not be required to
take Coumadin for life based on the singular pulmonary embolism.
By decision dated July 19, 2012, OWCP denied modification of its schedule award
decision relying on the medical adviser’s report.

4

LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss of loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. OWCP evaluates the
degree of permanent impairment according to the standards set forth in the specified edition of
the A.M.A., Guides.6
In addressing lower extremity impairments, the sixth edition requires identifying the
impairment class for the diagnosed condition (CDX), which is then adjusted by grade modifiers
based on Functional History (GMFH), Physical Examination (GMPE) and Clinical Studies
(GMCS). The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).7
The lower extremity chapter of the A.M.A., Guides states that vascular conditions are
rated in accordance with section 4.8 of the A.M.A., Guides Vascular Diseases Affecting the
Extremities, and may be combined with diagnosis-based impairments using the Combined
Values Chart.8
Section 9.6 Thrombotic Disorders states that impairment is based on both the thrombotic
disorder itself and the impact of the thrombosis that have occurred on a particular affected body
system. This includes the degree of injury to the end-organ, such as the lungs, heart, brain,
kidney and extremities from thrombosis and on how the disorder affects the individual’s capacity
to perform the activities of daily living. The A.M.A., Guides state, “Regardless of the system
involved, the rating that results due to the sequelae of thrombotic disease should be combined
with the impairment from the thrombotic disease itself (to which is added five percent for the use
of anticoagulants, if appropriate, before combining) using the Combined Values Chart in the
Appendix.”9

4

5 U.S.C. §§ 8101-8193, 8107.

5

20 C.F.R. § 10.404.

6

For new decisions issued after May 1, 2009 the Office began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.6a (January 2010); Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
7

A.M.A., Guides 521. J.B., Docket No. 09-2191 (issued May 14, 2010).

8

A.M.A., Guides 497.

9

Id. at 206-8, section 9.6 Thrombotic Disorders.

5

ANALYSIS
OWCP has accepted the conditions of tear of the medial meniscus of the right knee,
arthroscopic surgery and DVT of the right leg. On May 13, 2010 appellant underwent an IVC
filter placement and removal of the filter on October 15, 2010. OWCP also accepted that
appellant developed a pulmonary embolism on October 28, 2010 due to his February 2, 2010
employment injury. On September 1, 2011 he again developed blood clots in his right lower leg.
OWCP accepted this claim on October 6, 2011.
Dr. Fritzhand examined appellant on February 7, 2012 and described appellant’s
continued knee pain and recurrent DVT involving the right leg. He stated that appellant would
remain on Coumadin (Warfarin) for the remainder of his life based on the opinion of the
attending physician. Dr. Fritzhand utilized Table 9-12 of the A.M.A., Guides to rate appellant’s
recurrent DVT and as class 3 impairment or 100 percent impairment of the right lower
extremity.10 He also determined that appellant had primary knee joint arthritis under Table 16-3
or class 2 impairment.11 Dr. Fritzhand relied on an x-ray demonstrating two millimeter cartilage
separation. He found function history grade 0, physical examination grade 1, and clinical studies
grade 2. Dr. Fritzhand determined that appellant sustained 16 percent impairment of the right
lower extremity due to grade A impairment.
Dr. Berman found that knee joint arthritis was not an accepted condition and would not
be appropriate for the calculation of a schedule award. He determined that appellant was entitled
to two percent impairment of the right knee due to the partial medial meniscectomy.12 The
medical adviser found that appellant’s DVT and pulmonary embolism was rated using Table 912 category of class 1, one prior incident of thrombosis, with a range of one to nine percent
He
whole person impairment, which would coincide to lung specific impairment.13
recommended five percent impairment for the lungs and two percent impairment for the right
lower extremity.
On April 5, 2012 Dr. Fritzhand stated that appellant experienced two thrombotic events
in 2010 and one thrombotic event in 2011 and that lifelong anticoagulation was indicated. He
again utilized Table 9-12,14 and to find that appellant had class 3 impairment as he had “one or
more thrombotic events per year.” He explained that appellant did not have the second key
factor, hypercoagulable state. Dr. Fritzhand found that appellant had 35 percent whole person
impairment which was added to 5 percent impairment due to the use of Warfarin under
Section 9.c.15 He concluded that 40 percent impairment of the whole person correlated to 100
10

Id. at 208, Table 9-12.

11

Id. at 511, Table 16-3.

12

Id. at 509, Table 16-3.

13

Id. at 208, Table 9-12.

14

Id.

15

A.M.A., Guides, 207. “If the individual is receiving long-term anticoagulant therapy for the thrombotic
disorder with Warfarin, low-molecular-weight heparin, or heparin, five percent is added to the impairment rating.”

6

percent impairment of the right leg and 40 percent impairment of the lung. Dr. Fritzhand stated,
“However, [appellant] has no symptoms referable to his pulmonary system. All symptoms are
referable to the right lower extremity. Thus it is my medical opinion that [appellant] has
sustained a permanent partial impairment to the right lower extremity of 100 percent.” He also
stated that he utilized knee joint arthritis as this was a preexisting condition.
On June 4, 2012 Dr. Berman reiterated that the only accepted condition of the lower
extremity was a tear of the medial meniscus of the right knee. He stated, “The fact that there was
preexisting osteoarthritis of the knee is irrelevant because it is very common to have minor
preexisting osteoarthritis that would not be causing symptoms as in this case. However, because
of the pathology, specifically was a torn meniscus, and this is what required arthroscopic
surgery. Therefore, osteoarthritis of the knee is not the appropriate diagnosis.”
The medical adviser determined that the calculation of the thrombotic disorder was based
on the pulmonary embolus suffered by appellant. As this condition occurred in the lung and the
pathology and the abnormalities were related to the lung, it was the proper organ to rate. The
medical adviser concluded that appellant could not be rated for DVT in the leg.
The Board finds that this case is not in posture for a decision. The reports of OWCP’s
medical adviser are not sufficient to address the medical issues raised in this case. Dr. Fritzhand
has alleged that appellant had preexisting arthritis in his knee as found on x-ray. The medical
history includes a surgically reconstructed anterior cruciate ligament prior to appellant’s
February 2, 2010 employment injury. It is well established that, in determining the amount of a
schedule award for a given member of the body that sustained an employment-related permanent
impairment, preexisting impairments of that scheduled member of the body are to be included.16
OWCP’s medical adviser does not discuss this aspect of appellant’s claim or whether the
findings on x-ray prior to determining that appellant’s knee arthritis was not compensable under
the A.M.A., Guides.
In regard to appellant’s accepted thrombotic conditions, including DVT on May 24,
2010, pulmonary embolism on October 28, 2010 and additional blood clots in his right lower
extremity on September 1, 2011, the Board finds that the medical evidence did not address
appellant’s DVT of the right lower extremity under Chapter 4 of the A.M.A., Guides. As noted,
the A.M.A., Guides indicate that vascular conditions of the lower extremities are rated under
section 4.8. Neither OWCP’s medical adviser nor Dr. Fritzhand addressed this in rating
permanent impairment. The section of the A.M.A., Guides addressing thrombotic disorders
states that both the disorder and the impact of the disorder on the end system, including the
extremities should be rated. The medical adviser offered an unsupported statement that appellant
could not be rated for DVT in the leg. Dr. Fritzhand did not apply this Chapter 4 rating
impairment. This reduced the probative value of the medical evidence.
As the medical evidence of record does not comport with the A.M.A., Guides, the Board
finds that the case is not in posture for decision. The case will be remanded to OWCP for
additional development of the medical evidence to be followed by a de novo decision.
16

K.H., Docket No. 09-341 (issued December 30, 2009).

7

CONCLUSION
The Board finds that the case is not in posture for decision as to the extent of permanent
impairment to appellant’s right leg or right lung.
ORDER
IT IS HEREBY ORDERED THAT the March 30 and July 19, 2012 decisions of the
Office of Workers’ Compensation Programs are set aside. The case is remanded for further
development consistent with this opinion of the Board.
Issued: April 2, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8