United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
DEPARTMENT OF ENERGY, BONNEVILLE
POWER ADMINISTRATION, Portland, OR,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 13-1550
Issued: April 14, 2014

Case Submitted on the Record

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

JURISDICTION
On June 18, 2013 appellant filed a timely appeal from the May 31, 2013 merit decision of
the Office of Workers’ Compensation Programs (OWCP) denying his request for surgery and
claim for disability compensation. 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.
ISSUES
The issues are: (1) whether OWCP properly denied appellant’s request for authorization
of neck surgery; and (2) whether appellant has established that he was totally disabled
commencing August 16, 2012 due to his May 21, 2012 employment injury.
On appeal, appellant contends that his August 16, 2012 neck surgery resulted from his
accepted employment-related injury.
1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
OWCP accepted that on May 21, 2012 appellant, then a 48-year-old realty specialist,
sustained a neck sprain when his motor vehicle hit a pothole while pulling off a highway. It
authorized steroid injections.
In an August 3, 2012 medical report, Dr. Michael A. Sandquist, a Board-certified
neurosurgeon, noted that appellant’s medical history included a prior C5-6 anterior cervical
discectomy and fusion for stenosis and myelopathy, a C7-T1 posterior cervical foraminotomy
and steroid injections. He continued to have radiating neck and arm pain. Dr. Sandquist listed
findings on physical examination and reviewed the results of a cervical magnetic resonance
imaging (MRI) scan. He diagnosed cervical radiculopathy at C5, C6 and C6-7 and
recommended C4-5, C5-6 and C6-7 posterior cervical laminectomies and foraminotomies to treat
the condition. On August 16, 2012 Dr. Sandquist performed the stated surgical procedures.
In a September 17, 2012 report, Dr. Benjamin L. Calvert, an attending Board-certified
family practitioner, stated that appellant had a history of neck pain with radicular symptoms
radiating to his left arm. Appellant’s condition had greatly improved following injection therapy
during the winter and spring of 2012. During a June 4, 2012 office visit, he reported worsening
pain and radicular symptoms following his May 21, 2012 employment injury. Dr. Calvert
opined that the May 21, 2012 employment injury worsened his neck issues, causing muscle
spasms and worsening pain into his left shoulder and neck. As a result, appellant underwent
further evaluation and subsequent surgery performed by Dr. Sandquist on August 16, 2012.2
On October 10, 2012 OWCP received a request for authorization of surgery to appellant’s
cervical spine on August 16, 2012.
On October 22, 2012 appellant filed a claim (Form CA-7) requesting leave buyback for
intermittent time lost from work from May 30 to October 1, 2012. A time analysis form (Form
CA-7a) dated October 31, 2012 noted that he had medical appointments and received medical
treatment, including surgery on August 16, 2012. Appellant submitted additional CA-7 forms
claiming compensation for leave without pay from October 21, 2012 through May 18, 2013.
In an October 22, 2012 letter, Dr. Sandquist advised OWCP that, while it had accepted
appellant’s claim for cervical sprain, his correct diagnoses were radiculopathy, degenerative disc
disease and stenosis of the cervical spine for which he underwent surgery.
On November 15, 2012 Dr. William Stewart, an OWCP medical adviser, reviewed the
medical record. He noted that the medical record revealed that appellant had undergone two
prior neck surgeries, a C5-6 anterior cervical discectomy and fusion for stenosis and myelopathy
in 1997 and a C7-T1 posterior cervical foraminotomy in 2007 or 2009.3 The medical adviser
2

The record reveals that on August 16, 2012 appellant underwent left C4-5, C5-6 and C6-7 posterior cervical
laminectomies and foraminotomies, which were performed by Dr. Sandquist.
3

The statement of accepted facts and medical reports of record referenced appellant’s 1997 and 2007 or 2009
surgical procedures.

2

also noted appellant’s steroid injection at the C5-6 level in January 2012. He stated that these
were good indicators of the presence of severe neck disease for 15 years prior to the incident of
May 21, 2012. Dr. Stewart reviewed a history and treatment of the May 21, 2012 injury, which
included the August 16, 2012 cervical surgery based on the MRI scan. He stated:
“There is a great deal of information about this case that appears to [be] missing
from the record. If the MRI [scan] referenced above was done prior to the
May 21, 2012 accident then I would say the pathology that led to the surgery of
August 16, 2012 clearly preceded the May 21, 2012 accident and is not related to
the May 21, 20112 accident. Even though we do not immediately have that MRI
[scan] date, I would still opine that the pathology leading to the neck surgery
preceded the May 21, 2012 injury because the pathology described, multilevel
foraminal stenosis, is not the pathology of an acute injury and it is simply not
conceivably the consequence of what seems to be a minor event just a few weeks
previously.”
Dr. Stewart related that there was insufficient evidence of record to suggest that the
May 21, 2012 employment injury had any significant adverse effect on appellant. There was no
question that appellant had a severe preexisting degenerative disease with multiple cervical
surgeries and steroid injections prior to May 21, 2012. The available evidence strongly
suggested that the August 16, 2012 surgery was recommended and planned for prior to the
accepted incident. The medical adviser concluded that appellant’s claim of cervical
radiculopathy, degenerative disc disease and cervical spinal stenosis should not be accepted. He
noted that while the August 16, 2012 surgery was warranted in its own right, it was not necessary
or warranted as a result of the May 21, 2012 injury.
In a November 30, 2012 decision, OWCP denied appellant’s request for authorization of
the August 16, 2012 cervical surgery. It found that the weight of the medical evidence rested
with Dr. Stewart, who determined that the surgery was not necessary for treatment of appellant’s
May 21, 2012 employment injury.
On December 14, 2012 appellant requested reconsideration.
On January 24, 2013 OWCP requested that appellant submit the MRI scan report or other
diagnostic studies related to his cervical spine and any medical reports from his physician prior
to May 21, 2012.
On January 24, 2013 OWCP found a conflict in the medical opinion between Dr. Calvert
and Dr. Stewart as to whether the August 16, 2012 cervical surgery, was necessitated by
residuals of appellant’s May 21, 2012 employment injury.
On April 22, 2013 OWCP referred appellant, together with the medical record and a
statement of accepted facts, to Dr. Michael S. Mason, a Board-certified neurosurgeon, for an
impartial medical examination. In a May 21, 2013 report, Dr. Mason reviewed a history of the
May 21, 2012 employment injury and appellant’s medical treatment. He noted that appellant
began working at the employing establishment in January 2000 and that from 2001 to 2008 he
sustained several injuries at work, including a neck injury. Dr. Mason noted appellant’s

3

complaint of neck and left upper extremity pain, numbness and tingling. He provided a detailed
review of the medical record, noting that it did not include reports regarding appellant’s cervical
surgery in the 1990s and on May 3, 2007.
Dr. Mason reported essentially normal findings on physical, neurological and sensory
examination with the exception of a limited range of motion of the neck, a relative degree of
atrophy and nearly absent reflex of the left biceps muscle group. He noted decreased
brachioradialis on the left, markedly hyperactive knee reflexes, overactive ankle reflexes,
equivocal Babinski reflexes and a patchy area of decreased sensitivity on the lateral aspect of the
left thigh rated at -1 and fitting generally with the distribution of the lateral femoral cutaneous
nerve. There was a subtle decrease in sensitivity with respect to light touch and pinprick on the
medial aspect of the left hand and forearm, but not including the fourth and fifth fingers of the
left hand and atrophied left biceps musculature. Dr. Mason advised that appellant had a
somewhat perplexing neurological condition. He had longstanding clinical evidence of neck and
left upper extremity pain, numbness and tingling. Appellant also had a history of three or
possibly four cervical surgical procedures and multiple epidural steroid injections for pain.
Multiple cervical contrast and scan studies generally showed a significant degree of mid-cervical
spondylosis with cord compression in the midcervical region, but in particular at C4-5, C5-6 and
C6-7. There was an area of myelomalacia in the mid-cervical region which represented a
chronic cord injury. Dr. Mason stated that this was responsible for appellant’s hyperreflexia of
the lower and upper extremities. The most recent cervical myelogram showed significant nerve
root deficits on both the right and left in the midcervical region.
Dr. Mason advised that appellant’s clinical symptoms were due to an ongoing cervical
cord injury and cervical nerve root involvement especially on the left, resulting in biceps atrophy
due to persistent canal narrowing and foraminal stenosis resulting in a nerve root injury, muscle
atrophy, pain, numbness and tingling of the left hand. He related that the current clinical
impression of chronic cervical sprain and strain was not accurate based on clinical and
radiographic findings and did not explain appellant’s clinical conditions at any time since early
2000 when he began to have a significant increase in cervical symptoms. Dr. Mason advised that
appellant’s prior cervical conditions for which he underwent surgery resulted in no permanent
improvement of his clinical condition as he had significant cervical degenerative changes. Based
on a January 2013 cervical myelogram and postmyelogram scan, appellant had persistent and
significant multilevel cervical nerve root abnormalities. Dr. Mason related that appellant’s spinal
cord injury was due to the changes at C5-6 for which an initial fusion was performed and
resulted in a permanent neurological impairment of function. He advised that appellant had an
advanced cervical spondylosis producing injury to the spinal column proper resulting in a good
deal of local neck pain. Dr. Mason also had a spinal cord and spinal nerve injury bilaterally.
The diagnosis of soft tissue injury or cervical sprain or strain was simply an inappropriate
diagnosis given appellant’s clinical and radiographic findings. Dr. Mason stated that, under
these conditions, it was difficult to sort out the statement of accepted facts since it was not
correct.
Dr. Mason related that appellant had a cervical spine injured over the years by heavyduty work activity and simultaneously sustained injuries during frequent falls while carrying out
his normal work activity. The objective studies showed degenerative arthritic changes of
appellant’s cervical spine prior to the additional surgery in May 2007. The fusion that was

4

performed caused an acceleration of degeneration of the joint above and below and there had
been an injury to the spinal cord at the C5-6 level, the level of the fusion. Appellant had very
significant nerve root defects bilaterally and an injured spinal cord that resulted in abnormal
reflexes. He also had a new finding of increased slippage C4 on C5. Dr. Mason advised that all
of these conditions were generally progressive and it was entirely likely that further major
surgical procedures would be required to stabilize his neck and hopefully provide relief. He
noted that, at the time of the May 21, 2012 employment injury, appellant’s spine was not normal
as he had three surgeries. Dr. Mason noted that if a person with a normal cervical spine had hit
the same pothole as appellant, the person would probably have an accurate diagnosis of cervical
sprain/strain, but since appellant had undergone three cervical surgeries his spine was not normal
at the time of injury. He advised that the May 21, 2012 employment injury was another incident
that added injury to a physically abnormal cervical spine complex and resulted in increasing
pain. Dr. Mason stated that this was the primary reason for appellant’s August 16, 2012 surgery.
He concluded that, “I have requested copies and reports of the earlier scans that were not
provided initially. Apparently, this is taking longer than expected so I have concluded this report
and will send an addendum once I have had a chance to see them.”
In a May 31, 2013 decision, OWCP denied modification of the November 30, 2012
decision. It found that Dr. Mason’s report was incomplete as he was unable to review diagnostic
studies obtained prior to the May 12, 2012 employment injury and before the August 16, 2012
surgery. OWCP noted that it was appellant’s responsibility to provide these critical reports.
Without these reports, it could not be determined whether his preexisting cervical condition
worsened due to his accepted injury or necessitated surgery. OWCP denied appellant’s claim for
wage-loss compensation commencing August 16, 2012 as he did not establish that the surgery
was related to his accepted injury.
LEGAL PRECEDENT -- ISSUE 1
Section 8103 of FECA4 provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree or the period of disability or aid in lessening the amount of monthly compensation.5
While OWCP is obligated to pay for treatment of employment-related conditions, the employee
has the burden of establishing that the expenditure is incurred for treatment of the effects of an
employment-related injury or condition.6
In interpreting this section of FECA, the Board has recognized that OWCP has broad
discretion in approving services provided under section 8103, with the only limitation on
OWCP’s authority being that of reasonableness.7 Abuse of discretion is generally shown
through proof of manifest error, clearly unreasonable exercise of judgment or actions taken
4

See supra note 1.

5

Id. at § 8103; see Thomas W. Stevens, 50 ECAB 288 (1999).

6

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

7

See D.K., 59 ECAB 141 (2007).

5

which are contrary to both logic and probable deductions from established facts. It is not enough
to merely show that the evidence could be construed so as to produce a contrary factual
conclusion.8 To be entitled to reimbursement of medical expenses, a claimant has the burden of
establishing that the expenditures were incurred for treatment of the effects of an employmentrelated injury or condition. Proof of causal relationship in a case such as this must include
supporting rationalized medical evidence.9 In order for a surgical procedure to be authorized, a
claimant must submit evidence to show that the surgery is for a condition causally related to an
employment injury and that it is medically warranted. Both of these criteria must be met in order
for OWCP to authorize payment.10
Section 8123(a) of FECA 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.11 The implementing regulations
state that, if a conflict exists between the medical opinion of the employee’s physician and the
medical opinion of either a second opinion physician or OWCP’s medical adviser, OWCP shall
appoint a third physician to make an examination. This is called a referee examination and
OWCP will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.12
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision.
OWCP accepted that on May 21, 2012 appellant sustained a neck sprain while in the
performance of duty. On August 16, 2012 Dr. Sandquist, a Board-certified neurosurgeon,
performed surgery for left C4-5, C5-6, C6-7 posterior cervical laminectomies and
foraminotomies. On October 10, 2012 appellant requested authorization of the August 16, 2012
cervical surgery. OWCP determined that the September 17, 2012 report from Dr. Calvert, an
attending Board-certified family practitioner, created a conflict with the a November 15, 2012
report of Dr. Stewart, on whether the August 16, 2012 cervical surgery was necessitated by the
May 21, 2012 employment injury. It referred appellant to Dr. Mason, a Board-certified
neurosurgeon, for an impartial medical examination.13
The Board finds, however, that there was no conflict in medical opinion between
Dr. Calvert and Dr. Stewart on the issue of whether the cervical surgery performed on
August 16, 2012 was due to the May 12, 2012 employment injury. Dr. Calvert opined that the
May 21, 2012 employment injury worsened appellant’s neck and left shoulder symptoms and
8

Minnie B. Lewis, 53 ECAB 606 (2002).

9

M.B., 58 ECAB 588 (2007).

10

R.C., 58 ECAB 238 (2006).

11

5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008).

12

20 C.F.R. § 10.321.

13

See supra notes 10 and 11 and accompanying text.

6

resulted in the August 16, 2012 surgery performed by Dr. Sandquist. Dr. Stewart did not provide
a definitive opinion on whether the August 16, 2012 surgery was necessary to treat residuals of
the accepted employment injury.14 While he opined that appellant’s current cervical conditions
warranted the August 16, 2012 surgery, he specifically noted that the record was missing a “great
deal of information.” Dr. Stewart advised that the date of the MRI scan on which Dr. Sandquist
based his August 16, 2012 surgery was unknown, yet he concluded that “even though we do not
immediately have the MRI [scan] date, the pathology leading to the August 16, 2012 surgery
clearly preceded the accepted employment injury.” The Board notes that while Dr. Sandquist
referenced appellant’s 1997 C5-6 anterior cervical discectomy and fusion for stenosis and
myelopathy, May 2007 C7-T1 posterior cervical foraminotomy and January 2012 cervical
steroid injection at the C5-6 level, he did have for review the diagnostic studies or surgical
reports as they are not contained in the case record. The Board has held that medical reports
must be based on a complete and accurate factual and medical background. Medical opinions
based on an incomplete or inaccurate history are of limited probative value.15 Absent the
relevant medical reports pertaining to appellant’s preexisting cervical condition, the medical
opinions of record are of reduced probative value. The Board finds that Dr. Mason served as an
OWCP referral physician rather than an impartial medical specialist.
Statement of facts indicated OWCP’s acceptance of appellant’s claim for work-related
neck sprain. Dr. Mason, stated, however, that the statement of accepted facts was not correct.
He found that appellant had cervical spondylosis and stated that the diagnosis of cervical sprain
and strain was inappropriate based on the objective findings of record. Dr. Mason opined that
the accepted injury was the primary reason for the surgery, but noted that he had not received a
response to his request for “copies and reports of the earlier scans that were not provided
initially” and stated that he would “send an addendum once I have had a chance to see them.”
The Board notes that absent these reports he did not submit a supplemental report prior to the
issuance of OWCP’s May 31, 2013 decision. Dr. Mason did not have an accurate medical
background on which to evaluate whether the accepted employment injury aggravated or
contributed to appellant’s cervical condition and necessitated surgery on August 16, 2012.
Since OWCP attempted to develop the medical evidence and referred the case for a
second opinion evaluation, it has the responsibility to secure a medical report that adequately
addresses the pending issues.16 The case will be remanded for OWCP to request that appellant
submit all medical records relevant to his preexisting cervical conditions, treatment and
surgeries. Thereafter, it should prepare an updated statement of accepted facts and refer him for
a second opinion examination to determine whether the May 21, 2012 employment injury
aggravated or contributed to his cervical condition and necessitated the August 16, 2012 surgery.
After such further development as deemed necessary, OWCP should issue a de novo decision.
14

Ricky S. Storms, 52 ECAB 349 (2001) (while the opinion of a physician supporting causal relationship need not
be one of absolute medical certainty, the opinion must not be speculative or equivocal; the opinion should be
expressed in terms of a reasonable degree of medical certainty).
15

J.R., Docket No. 12-1099 (issued November 7, 2012); Douglas M. McQuaid, 52 ECAB 382 (2001).

16

See Robert Kirby, 51 ECAB 474, 476 (2000); Mae Z. Hackett, 34 ECAB 1421 (1983); Richard W. Kinder, 32
ECAB 863 (1981).

7

In view of the Board’s disposition of the first issue the question of whether appellant was
totally disabled commencing the date of this surgery is not in posture for decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the May 31, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: April 14, 2014
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Richmond, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Bobby Devadoss, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0880
Issued: March 6, 2017

Case Submitted on the Record

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

JURISDICTION
On March 23, 2016 appellant, through counsel, filed a timely appeal from a
November 16, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this claim.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met her burden of proof to establish an injury causally
related to the August 13, 2013 employment incident.
FACTUAL HISTORY
On August 25, 2013 appellant, then a 34-year-old revenue officer, filed a traumatic injury
claim (Form CA-1) alleging that on August 13, 2013 she brought three heavy briefcases to the
office and that the lifting and handling of the briefcases aggravated the herniated disc in her
spine. She stopped work on August 15, 2013. No evidence was submitted with the claim.
In an August 29, 2013 letter, OWCP advised appellant of the deficiencies in her claim
and provided her the opportunity to submit additional factual and medical evidence. This
included a detailed narrative medical report from her treating physician which contained a
history of the injury and a medical explanation with objective evidence of how the reported work
incident caused or aggravated the claimed condition. Appellant was afforded 30 days to submit
such evidence.
In a September 10, 2013 statement, appellant stated that after returning from telework on
August 13, 2013 she brought three large briefcases into the office, weighing approximately 9 to
12 pounds each. The boxes contained files for cases that she intended to work on. Appellant
alleged that the lifting and handling of the heavy briefcases from her car to the office and onto
her desk aggravated her herniated disc. In response to the question as to the immediate effects of
the injury, she explained that on August 15, 2013, after sitting at the computer for a long time,
she felt a very sharp pain in her neck to the extent that she could no longer sit up. Appellant
went to the hospital on August 20, 2013 when the pain became “unbearable.” She decided to file
a claim when it became apparent that her injury was more serious than she initially thought.
Appellant advised that she had similar symptoms on January 29, 2013 when she was in the office
sitting at her desk and experienced a very sharp pain in her neck. She indicated that Dr. Rick
Edgar, her neurosurgeon, told her on June 24, 2013 that she had a herniated disc above her C6
fusion.
OWCP received evidence which predated the accepted workplace events of
August 13, 2013.3 Those reports note that appellant’s preexisting spine conditions date back to
1999.
In an August 20, 2013 emergency department report from Mercy Health Partners,
appellant was noted to have a history of a ruptured cervical disc. She denied any trauma, but
stated that she lifted some heavy things and since then has had a burning sensation up and down
her upper back. An impression of acute muscular neck pain with history of cervical

3

This included a January 29, 2013 emergency department report; a February 7, 2013 procedure order sheet from
Muskegon Family Care; a February 8, 2013 outpatient physical therapy discharge summary; a March 8, 2013
cervical spine x-ray report; March 19, 2013 rehabilitation progress report; and a July 19, 2013 initial evaluation
report from Mercy Health Rehabilitation.

2

radiculopathy was provided.
radiculopathy were provided.

Emergency service discharge instructions for cervical

In an August 29, 2013 Family and Medical Leave Act (FMLA) paperwork, Dr. Amy
Hogue, a Board-certified family practitioner, noted that appellant had herniated disc in her
cervical spine at C3-C4 and C4-C5 since 1999. In a Form CA-20(a) attending physician’s
report, she noted a history of injury as appellant lifting briefcases at work with an acute
worsening of chronic neck pain. A diagnosis of cervicalgia was provided by checking a box
marked “yes” indicating that the condition was caused or aggravated by the employment activity.
OWCP received a September 10, 2013 letter containing a list of dates from
February 2013 to September 10, 2013 for which appellant received physical therapy services,
along with physical therapy notes from July 19, 2013; a September 24, 2013 Form CA-20a,
attending physician’s report, from Traci Jones, a certified nurse practitioner (NP); September 25,
2013 discharge instructions; and an October 7, 2013 off work slip which included a diagnosis of
herniated cervical disc.
In a September 11, 2013 report, Dr. Bindo Lewis, an osteopath, noted that appellant was
in a car accident in December 1999 and fractured her C6 vertebra and subsequently had a fusion
from C6 to T1. Appellant was doing well with her fusion, until her neck pain increased in
January 2013. Based on her magnetic resonance imaging (MRI) scans and his clinical
examination, Dr. Lewis opined that her symptoms correlated with facet arthropathy and
recommended facet injections.
By decision dated October 28, 2013, OWCP denied the claim as the medical evidence
was insufficient to establish that a medical condition was diagnosed in connection with the
accepted August 13, 2013 incident.
On November 11, 2013 appellant, through counsel, requested a telephonic hearing before
a representative of OWCP’s Branch of Hearings and Review, which was held on May 7, 2014.
During the hearing, she testified about the events of August 13, 2013. Appellant stated that she
did not experience an immediate onset of symptoms, but rather her symptoms began to worsen
beginning August 15, 2013. She indicated that she was sitting for long periods of time, staring at
one spot while working from home. Appellant also stated that she went to the emergency room
on August 20, 2013. She confirmed that she had an accident in 1999 and injured her neck, which
led to a cervical spine fusion surgery. Appellant stated that she had been experiencing a newer
onset of symptoms since January 2013.
In an August 23, 2013 medical report, Dr. Hogue reported that appellant was seen at the
emergency room on August 20, 2013, but no diagnostic tests or evaluations were performed.
She indicated that appellant had a known herniated disc in her neck and was a patient of
Dr. Edgar, who was treating her with physical therapy and conservative therapy. Dr. Hogue
noted that last week appellant was lifting some briefcases and had an acute worsening of her pain
in her neck and mid back. She has been out of work since August 15, 2013. Dr. Hogue provided
an assessment of cervicalgia.

3

In a September 24, 2013 report, NP Jones indicated that appellant presented with neck
pain following a specific injury. She reported that approximately one month ago, on August 13,
2013, appellant was lifting three heavy briefcases and it caused a sharp pain in her neck, which
had gotten progressively worse. After reviewing appellant’s past medical history, diagnostic
studies, and examination findings, NP Jones diagnosed herniation of cervical intervertebral disc
with radiculopathy and cervicalgia.
In a November 10, 2013 report, Dr. Rick Edgar, a neurosurgeon, reported that appellant
had a history of a C6 corpectomy secondary to a motor vehicle accident in December 1999 with
a resultant C5-C7 fusion. He noted that she had progressive neck and left shoulder and arm
difficulties over the last couple of years and that he saw her on June 24 and October 7, 2013
related to these difficulties. Dr. Edgar indicated that the March 8, 2013 MRI scan of the cervical
spine showed evidence of her previous fusion from C5-C7 with good decompression of her
cervical canal in that area. However, appellant has loss of lordosis of her neck as well as
degenerative disc with herniations above the level of her previous surgery, with the worse at
C3-C4 and C4-C5 levels. She also had a leftward displaced disc at C4-C5 which was pushing on
the spinal cord and evidence of facet arthropathy. Dr. Edgar diagnosed colon cervicalgia,
cervical degenerative disc disease, herniated nucleus pulposus at C3-C4 and C4-C5, cervical
radiculopathy, loss of lordosis of cervical spine. He indicated that appellant was restricted in her
activities due to those conditions. In a December 30, 2013 addendum, Dr. Edgar opined that
appellant’s degenerative disc and progressive neck pain, as well as facet joint mediated pain, was
at least as likely as not related to her work in the service where she served overseas frequently
lifting heavy objects. Appellant noted that she frequently had neck pain that was treated with
pain medicine while doing that and that this had progressively worsened since she left the active
military service.
In a May 13, 2014 report, Dr. Yousif Hamati, a Board-certified orthopedic surgeon,
provided examination findings and reviewed MRI scans from March 8 and April 25. He noted a
solid fusion from C5 to C7 and previous corpectomy at C6. Dr. Hamati indicated that the S1
level had a plate which was getting over the disc space and that there was some bulging disc at
four to five towards the left with probable disc bulge or disc herniation. The April 25 MRI scan
showed hypertrophy osteophytes, mild central canal stenosis, and mild right neural foraminal
narrowing secondary to degenerative disc disease. Appellant also had a small central disc
osteophyte complex at C3-C4. Dr. Hamati recommended that she continue physical therapy and
work with the pain clinic, take inflammatory medication, and avoid any major activity such as
lifting, bending, or twisting. He concluded “I cannot find any objective findings other than what
this lady is complaining. Rationale that she has a bulging disc above her fusion, it is my opinion
that lifting of the briefcases may have aggravated it, but she already had a documented
degenerative disc disease at those levels before and after.”
In a May 28, 2013 addendum report, Dr. Edgar noted that he previously addressed that at
least some of the issues with appellant’s neck were likely caused by her previous fusion to the
neck as well as her military service. He indicated that she also had an incident on August 13,
2013, when she was carrying three large briefcases for her job which severely aggravated her
neck symptoms. Dr. Edgar opined that an incident of carrying heavy objects such as the
briefcases could very well have exacerbated or aggravated her condition.

4

By decision dated July 25, 2014, an OWCP hearing representative found that appellant
had established fact of injury, but it denied the claim as the medical evidence of record failed to
establish causal relationship between the August 13, 2013 work incident and a diagnosed
medical condition.
On March 27, 2015 appellant, through counsel, requested reconsideration.
In a March 4, 2015 report, Dr. Kathleen Warner, a Board-certified internist, noted that
appellant’s job duties included clerical work as well as traveling for residential appointments in
the community and involved postural stresses to her neck. She reported that on August 13, 2013
appellant was lifting three briefcases weighing approximately 9 to 12 pounds and, as she lifted a
box, she felt a sudden sharp pain in the posterior of her neck which radiated to her left upper
extremity. Dr. Warner explained that appellant’s pain continued and she informed her supervisor
on August 15, 2013 of the situation. She noted that appellant initially sought treatment on
August 20, 2013. Dr. Warner discussed the pertinent medical records on file, including the MRI
scan of the cervical spines performed on December 30, 2013, which revealed degenerative and
postoperative changes and herniated discs at C3-C4 and C4-C5. She also documented the
history concerning the 1999 motor vehicle accident which resulted in fracture to the cervical
spine and surgery consisting of C6 corpectomy with fusion. Dr. Warner presented examination
findings and explained that, based on the previous record, her diagnoses consisted of cervical
disc herniation, left cervical radiculopathy, cervical spondylosis, and cervical facet arthropathy
syndrome. She again described appellant’s work duties and noted that “with her already
established neck injuries, both from her previous military service and the automobile accident in
1999, which resulted in cervical fusion, appellant aggravated her preexisting injury to her neck.
Because appellant had already been experiencing an increase in pain in her neck beginning
January 2013, she did not experience immediate increase in pain. However, over the course of
approximately two days, the pain dramatically increased. Appellant reported the injury on
August 15, 2013 and received medical attention on August 20, 2013. Dr. Warner opined that,
although appellant had previous injury to her neck, the lifting of boxes of files onto her desk on
August 13, 2013 aggravated her preexisting degenerative cervical injures. This resulted in a
traumatic injury to the neck, further aggravating her established cervical injuries. The result of
the traumatic injury was decreased range of motion, tenderness, spasms, and increased
symptomology of pain. While appellant had begun to experience pain in her neck in
January 2013 and was not symptom free, Dr. Warner noted that appellant’s condition materially
worsened and, thus, she sustained injuries as a result of her lifting on August 13, 2013. In an
April 1, 2015 follow-up note, Dr. Warner indicated that appellant was doing well with physical
therapy and prescription management and will continue in such programs.
A June 9, 2015 treatment note from Dr. Thomas Crumbley, a chiropractor, was also
received.
By decision dated June 22, 2015, OWCP denied modification of its prior decision as the
evidence of record was of insufficient probative value to support causal relation.
On September 29, 2015 appellant, through counsel, again requested reconsideration. In
the September 29, 2015 request, counsel discussed the new medical evidence from Dr. Rhett
Krone, an emergency physician, and explained how his report established causal relationship.

5

Medical reports from Dr. Krone dated July 27 and September 9, 2015 were received. In
his July 27, 2015 report, Dr. Krone indicated that appellant has a history of effusion of her
cervical spine and had experienced trouble with her neck for some time. He noted that she filed
a claim and apparently had appealed it. Appellant indicated that she had chronic pain in the mid
and lower portion of her neck, but for the last week about once or twice a day, she had been
having sharp, strong pain in the part of the spine which was lower than usual. Dr. Krone noted
appellant’s past medical history of cervical fusion and that she was on 70 percent disability for
combat-related post-traumatic stress disorder from her military service. He also provided
examination findings.
In his September 9, 2015 report, Dr. Krone noted that this medical report was generated
to address the issue of causal relationship. He reported that appellant was initially seen by
Dr. Warner, but that he now follows appellant’s treatment as Dr. Warner was no longer with the
practice. Dr. Krone indicated that appellant’s job duties included clerical work, driving, and
lifting and carrying files and material to the locations that she visits. He indicated that on
August 13, 2013 appellant suffered an injury when she was lifting three briefcases filled with
closed cases weighing approximately 9 to 12 pounds. Appellant reported that she experienced a
sharp discomfort as she was performing the lifting, but it did not last and she did not give much
thought to it. She continued to perform her duties for that day and treated the injury with overthe-counter remedies, but she still exhibited pain. When the pain did not subside and became
increasingly worse, appellant sought medical treatment on August 20, 2013. Dr. Krone reported
that appellant had previously been involved in an automobile accident in 1999, which resulted in
a cervical fusion. He noted that she performed gainful employment without complaints of pain
until January 2013 when she began to experience neck pain and sought medical attention.
Dr. Krone reported that the March 8, 2013 x-ray showed postoperative and degenerative
changes and that appellant continued to work and cope with the mild-to-moderate pain in her
neck. On August 13, 2013, while appellant was lifting the heavy briefcases, she noticed a sharp
pain that went away. Because she was experiencing the symptomology of pain on and off in her
neck, she did not give great weight to the pain that she initially felt while lifting the briefcases.
However, after approximately two days, the pain persisted and appellant reported the injury.
When the pain increased, she sought medical attention at the emergency room on
August 20, 2013. Dr. Krone noted the results of the December 30, 2013 MRI scan. He opined
that appellant sustained a traumatic injury on August 13, 2013 while lifting the heavy briefcases.
Dr. Krone explained that appellant was a postsurgical patient for cervical fusion in 1999 and was
basically symptom free postsurgery until January 2013, when she began to experience neck pain.
He indicated that even though appellant did not attribute the activity of lifting the briefcases to
causing immediate incapacity, she felt the effects of lifting those briefcases. Appellant continued
to work, which created additional use of the muscles that experienced injury in the lifting of the
briefcases, which substantiated the discomfort she felt from that activity. As she continued to
use the muscles that were injured in the August 13, 2013 lifting incident and the repetitive use of
those muscles increased the pain associated with the injury. Dr. Krone indicated that the fact that
she did not experience total incapacity was not unusual. He noted that the initial pain was
noticeable, and distinguishable from the on and off pain that she had been experiencing since
January 2013. The pain that she experienced as a result of lifting of the briefcases was constant
and became increasingly worse over two days. As the pain had been continual and left untreated,
it had increased. Dr. Krone explained that this was a new pain and not a recurrence of the
6

previous 1999 car accident. He indicated that while she had some degenerative changes from the
1999 accident, her condition had resolved to the point that she was able to work and perform
activities of daily living without the symptomology of pain. Appellant’s work activities required
her to use her back and neck as well as her back and neck muscles as she placed stress on her
neck and back and neck muscles to keep her head balanced while sitting as she performed
carrying and lifting duties and while filing and reviewing records.
Dr. Krone opined that appellant’s condition is a new claim for injury that is directly
related to the lifting that she performed on August 13, 2013. He summarized that she
experienced a traumatic injury on August 13, 2013. Appellant’s pain was initially sharp, but not
lasting. However, the pain continued to graduate to the point where it required medical attention
on August 20, 2013. Dr. Krone noted that appellant attempted to use home remedies, but the
pain did not subside. He indicated that this injury permanently aggravated her preexisting
degenerative condition, as she had low-graded occasional pain prior to the incident of lifting the
heavy briefcases. Subsequent to the injury of August 13, 2013, appellant had weakness,
decreased range of motion, and increased symptomology of pain. Dr. Krone opined that the
August 13, 2013 employment incident caused a material worsening of her preexisting cervical
injuries and that the lifting of the heavy briefcases on August 13, 2013 caused a permanent
aggravation of appellant’s degenerative cervical condition thereby establishing new injury. He
explained that the simple cause and effect was established by the event. The lifting of the three
heavy briefcases caused strain to appellant’s cervical muscles. Appellant already had weak
muscles in her neck as a result of her previous neck injury and degenerative cervical changes as
demonstrated by diagnostics. The stress and strain exhibited on the neck muscles during the
lifting of the heavy briefcases aggravated her established degenerative cervical changes resulting
in permanent aggravation and injury to her neck muscles. Dr. Krone explained that the
mechanism of injury is consistent with the report of the injury and examination of appellant. He
opined that, based on a review of appellant’s duties and responsibilities, the description of lifting
the heavy briefcases, a review of the medical records and diagnostics, and his clinics
examination of appellant, that she had sustained a traumatic injury on August 13, 2013 when she
lifted the heavy briefcases. By decision dated November 16, 2015, OWCP denied modification
of its prior decision. It found the evidence of record to be of insufficient probative value to
establish a causal relation to the accepted employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof establish the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
4

Joe D. Cameron, 41 ECAB 153 (1989).

5

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

7

In order to determine whether an employee sustained a traumatic injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components that must be considered
conjunctively. First, the employee must submit sufficient evidence to establish that she actually
experienced the employment incident that is alleged to have occurred.6 An employee has not
met his or her burden of proof of establishing the occurrence of an injury when there are such
inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.7 Second,
the employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.8
The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medial certainty and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.9 Neither the fact that a disease or condition
manifests itself during a period of employment nor the belief that the disease or condition was
caused or aggravated by employment factors or incidents is sufficient to establish causal
relationship.10
ANALYSIS
OWCP accepted that on August 13, 2013 appellant experienced pain in her neck when
she lifted and carried three briefcases from her car to the office. It denied her claim as she did
not submit rationalized, probative medical evidence to establish that the August 13, 2013
incident caused or contributed to a diagnosed medical condition. The Board finds that appellant
has not met her burden of proof to establish an injury on August 13, 2013 causally related to the
accepted employment incident.
In an August 20, 2013 emergency department report, an impression of acute muscular
neck pain with history of cervical radiculopathy was provided. The Board finds that a diagnosis
of acute muscular pain is a description of a symptom rather than a clear diagnosis of a medical
condition.11 Additionally, no specific reference was provided regarding the August 13, 2013
incident, only a general description was provided. Thus, this report is insufficient to establish a
6

Gary J. Watling, 52 ECAB 278 (2001).

7

S.N., Docket No. 12-1222 (issued August 23, 2013); Tia L. Love, 40 ECAB 586, 590 (1989).

8

Deborah L. Beatty, 54 ECAB 340 (2003).

9

Solomon Polen, 51 ECAB 341 (2000).

10

Dennis M. Mascarenas, 49 ECAB 215 (1997).

11

C.B., Docket No. 09-2027 (issued May 12, 2010); Robert Broom, 55 ECAB 339 (2004). (The Board has
consistently held that pain is a symptom rather than a compensable medical diagnosis).

8

medical diagnosis in connection with the injury. Additionally, the discharge instructions for
cervical radiculopathy are of limited probative value as they are general in nature and not
specific to appellant.12
In the August 29, 2013 FMLA paperwork, Dr. Hogue indicated that appellant had a
history of herniated disc in her cervical spine at C3-C4 and C4-C5 since 1999. However,
because the August 13, 2013 employment incident was not mentioned, this paperwork is
insufficient to establish appellant’s claim. In the accompanying August 29, 2013 attending
physician’s report, Dr. Hogue reported the history of injury as appellant lifting briefcases at work
with an acute worsening of chronic neck pain. A diagnosis of cervicalgia was provided by
checking a box marked “yes,” indicating that the condition was caused or aggravated by
employment. The Board has held, however, 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 This
report offered no rationalized medical explanation explaining how the accepted lifting incident
on August 13, 2013 caused a diagnosed condition.14 Furthermore, cervicalgia is another term for
neck pain and is a description of a symptom rather than a clear diagnosis of a medical
condition.15 Thus, Dr. Hogue’s reports are insufficient to establish appellant’s claim.
In his September 11, 2013 report, Dr. Lewis provided a discussion of appellant’s
preexisting spine conditions dating back to 1999 and documented current examination findings,
but does not discuss the August 13, 2013 work incident. While Dr. Lewis diagnosed facet
arthropathy and recommended facet injections, he did not document the history of the August 13,
2013 work incident. Therefore this report is insufficient to establish appellant’s claim as there is
no way to determine whether this diagnosis is connected to the August 13, 2013 work incident or
if it is an extension of continued degeneration of appellant’s preexisting cervical spine
conditions.
In his November 10 and December 30, 2013 reports, Dr. Edgar diagnosed colon
cervicalgia, cervical degenerative disc disease, herniated nucleus pulposus, C3-C4 and C4-C5,
cervical radiculopathy, loss of lordosis of cervical spine. However, these reports are insufficient
to establish the claim as he did not provide a history of the August 13, 2013 incident16 or
specifically address whether appellant’s employment activities had caused or aggravated a
diagnosed medical condition.17 Rather, Dr. Edgar opined that at least some of the issues with
12

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006).
13

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

14

See D.G., Docket No. 15-0948 (issued February 10, 2016).

15

See supra note 10 and cases contained therein.

16

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value).
17

A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).

9

appellant’s neck were likely caused by her previous fusion to the neck as well as her military
service. In his May 28, 2013 report, he indicated that appellant had an incident on August 13,
2013, when she was carrying three large briefcases for her job which severely aggravated her
neck symptoms. Dr. Edgar opined that an incident of carrying heavy objects such as the
briefcases could have exacerbated or aggravated her condition. The Board notes that, while
Dr. Edgar’s report provides some support for causal relationship, his report is speculative as he
qualifies his support by noting that appellant’s job activity “could have” exacerbated or
aggravated her condition. Dr. Edgar provided no medical reasoning to support his opinion on
causal relationship. Therefore, this report is insufficient to meet appellant’s burden of proof.18
In his May 13, 2014 report, Dr. Hamati provided examination findings and discussed the
results of MRI scans from March 8 and April 25. He recommended that appellant continue
physical therapy, work with the pain clinic, take inflammatory medicine, and avoid any major
activity such as lifting, bending, or twisting. Dr. Hamiti explained “I cannot find any objective
findings other than what this lady is complaining. Rationale that she has a bulging disc above
her fusion, it is my opinion that lifting of the briefcases may have aggravated it, but she already
had a documented degenerative disc disease at those levels before and after.” Although
Dr. Hamiti indicated that the August 13, 2013 lifting incident may have aggravated her
preexisting bulging disc above her fusion, his opinion is of limited probative value as it is
speculative or equivocal in character and his medical reasoning that the bulging disc was present
both before and after the work incident fails to offer any support on how the preexisting bulging
disc was materially affected by the August 13, 2013 employment incident.19
In her March 4, 2015 report, Dr. Warner described appellant’s job duties and indicated
that they involved postural stresses to her neck. She also provided a history of the August 13,
2013 lifting incident and noted that appellant felt a sudden sharp pain in the posterior of her neck
which radiated to her left upper extremity. Dr. Warner explained that appellant’s pain continued
and she informed her supervisor on August 15, 2013 of the situation and sought treatment on
August 20, 2013. She also discussed the pertinent medical records on file, noting that appellant
had degenerative and postoperative cervical changes and herniated discs at C3-C4 and C4-C5,
and documented the history concerning the 1999 motor vehicle accident which resulted in
fracture to the cervical spine and surgery consisting of C6 corpectomy with fusion. Dr. Warner
diagnosed cervical disc herniation, left cervical radiculopathy, cervical spondylosis, and cervical
facet arthropathy syndrome. She noted that “with her already established neck injuries, both
from her previous military service and the automobile accident in 1999, which resulted in
cervical fusion, appellant aggravated her preexisting degenerative cervical injuries by lifting
boxes of files onto her desk on August 13, 2013. Dr. Warner explained that because appellant
had already been experiencing an increase in pain in her neck beginning January 2013, she did
not experience immediate increase in pain, but over the course of two days, the pain dramatically
increased. This resulted in a traumatic injury to the neck, which aggravated appellant’s
established cervical injuries and resulted in decreased range of motion, tenderness, spasms, and
increased symptomology of pain. Dr. Warner further explained that while appellant had begun
18

Medical opinions that are speculative or equivocal in character are of diminished probative value. D.D., 57
ECAB 734 (2006).
19

Id.

10

to experience pain in her neck in January 2013 and was not symptom free, her condition
materially worsened and, thus, she sustained injuries as a result of her lifting on August 13, 2013.
While Dr. Warner explained that the August 13, 2013 injury aggravated appellant’s
preexisting degenerative cervical injuries and her condition had materially worsened resulting in
further decrease in range of motion, the onset of spasms, and increased symptoms, she failed to
adequately explain how she could attribute an increase in appellant’s symptoms or worsening of
her preexisting condition to the work event, as appellant’s pain did not increase until two days
after the lifting event as she was sitting at a computer. Moreover, while he premises support for
her opinion on causal relationship by noting that appellant suffered decreased range of motion,
tenderness, and spasms, her examination was more than one and a half years following the work
injury and fails to describe any preinjury findings were compared to the findings on examination
closely following the work event. Appellant also does not provide any significant discussion of
the clinical or diagnostic findings relating to treatment appellant received prior to the August 13,
2013 employment incident as compared to the clinical and diagnostic findings after the work
event to establish an actual worsening of appellant’s preexisting cervical spine condition. Due to
the age of Dr. Warner’s report, such discussion is necessary to properly establish the causal
relationship between the August 13, 2013 employment incident and a diagnosed condition.
Additionally, while Dr. Warner indicated that the work injury aggravated appellant’s preexisting
neck and degenerative cervical spine conditions, she failed to explain how the August 13, 2013
work incident caused or contributed to a definitive condition and document the findings on
examination and/or diagnostic testing in support of her opinion. For these reasons, his report is
insufficient to establish appellant’s claim.
In his September 9, 2015 report, Dr. Krone described appellant’s work duties, the
August 13, 2013 work incident, appellant’s symptoms and course of action. He also noted
appellant’s prior medical history and that she returned to gainful employment following her 1999
cervical fusion without complaints of pain until January 2013. Dr. Krone indicated that
diagnostic testing revealed postoperative and degenerative cervical changes. On the issue of
causal relationship, he opined that appellant permanently aggravated the degenerative changes in
her cervical spine as a result of lifting heavy briefcases on August 13, 2013. Dr. Krone
explained that appellant was basically symptom free postsurgery until January 2013, when she
began to experience pain in her neck. Since appellant remembered the August 13, 2013
employment incident, he believe it was apparent that she experienced initial discomfort when she
lifted the briefcases and felt the effects of lifting those briefcases. Dr. Krone indicated that
appellant continued to work and use the injured muscles, that the repetitive use of those muscles
increased the pain associated with the injury, and that the pain continued to persist despite home
remedies following the injury such that appellant had to obtain medical treatment on August 20,
2013 due to the pain. He further explained that the initial pain was noticeable and
distinguishable from the on and off pain that she had been experiencing since January 2013.
Dr. Krone indicated that the pain appellant had begun to experience in January 2013 was
nonconstant and nagging in nature while the pain from lifting the briefcases was constant and
became increasingly worse over two days. He indicated that subsequent to the August 13,
2013employment incident, appellant had weakness, decreased range of motion, and increased
symptomology of pain. Dr. Krone opined that the lifting of the heavy briefcases caused strain to
appellant’s cervical muscles. The effort of lifting required the use of appellant’s back, shoulder,
and neck muscles. Dr. Krone indicated that appellant’s neck muscles were already weak from
11

her previous neck injury and degenerative cervical changes as demonstrated by diagnostics. The
stress and strain exhibited on the neck muscles during the lifting of the heavy briefcases,
aggravated her established degenerative cervical changes and resulted in permanent aggravation
and injury to her neck muscles. Although Dr. Krone concluded that the work incident
aggravated the diagnosed conditions, his report is deficient for the same reasons as Dr. Warner’s
report. More specifically, he fails to provide any significant discussion of the clinical or
diagnostic findings relating to treatment appellant received prior to the August 13, 2013
employment incident as compared to the clinical and diagnostic findings after the work event to
establish a permanent aggravation of appellant’s preexisting cervical spine condition.
Additionally, while Dr. Krone indicated that the work injury aggravated appellant’s preexisting
neck and degenerative cervical spine conditions, he failed to explain how the August 13, 2013
work incident caused or contributed to a definitive condition and document the findings on
examination and/or diagnostic testing in support of his opinion. For these reasons, his report is
insufficient to establish appellant’s claim.
The remainder of the medial evidence is of limited probative value. The medical report
from Dr. Crumbley, a chiropractor, failed to diagnose spinal subluxation by x-ray. Section
8101(2) of FECA provides that chiropractors are considered physicians only to the extent that
their reimbursable services are limited to treatment consisting of manual manipulation of the
spine to correct a subluxation as demonstrated by x-ray to exist and subject to regulation by the
Secretary.20 Thus, where x-rays do not demonstrate a subluxation (a diagnosis of a subluxation
based on x-rays has not been made), a chiropractor is not considered a physician, and his or her
reports cannot be considered as competent medical evidence under FECA.21 Dr. Crumbley is not
a physician as he did not diagnose a spinal subluxation demonstrated by x-ray. Thus, his report
is of no probative medical value.
Appellant also provided evidence from a certified nurse practitioner and physical
therapists. However, the Board has held that treatment notes signed by a nurse practitioner or a
physical therapist are not considered probative medical evidence as these providers are not
considered physicians under FECA.22

20

5 U.S.C. § 8101(2); see also section 10.311 of the implementing federal regulation provides: (c) A chiropractor
may interpret his or her x-rays to the same extent as any other physician. To be given any weight, the medical report
must state that x-rays support the finding of spinal subluxation. OWCP will not necessarily require submittal of the
x-ray, or a report of the x- ray, but the report must be available for submittal on request.
21

See Susan M. Herman, 35 ECAB 669 (1984).

22

L.D., 59 ECAB 648 (2008) (a nurse practitioner is not a physician as defined under FECA). See David P.
Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses and physical
therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a
physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic
practitioners within the scope of their practice as defined by State law).

12

While the October 7, 2013 work slip includes a diagnosis of herniated cervical disc, it is
insufficient to support appellant’s claim as there is no discussion on history of injury, objective
findings, or a physician’s explanation and opinion on the cause of the condition.23
On appeal, appellant contends that the medical evidence submitted supports her claim.
As found above, she has not established a causal relationship between the August 13, 2013 work
incident and her diagnosed conditions. The Board finds that none of the medical evidence
appellant submitted constituted rationalized medical evidence, based upon a specific and
accurate history of employment conditions, which are alleged to have caused or exacerbated her
medical condition.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish an injury
causally related to the August 13, 2013 employment incident.

23

A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).

13

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 16, 2015 is affirmed.
Issued: March 6, 2017
Washington, DC

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

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

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

14


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
DEPARTMENT OF THE ARMY, Anniston, AL,
Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-98
Issued: July 5, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 18, 2012 appellant filed a timely appeal from a September 28, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his claim for
schedule award and hearing aids. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant’s hearing
impairment was not ratable; and (2) whether it abused its discretion by refusing to authorize
hearing aids.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 2, 2012 appellant, then a 64-year-old electronics industrial controls mechanic,
filed an occupational disease claim (Form CA-2) alleging that he sustained a loss of hearing in
both ears due to exposure to high noise levels in the performance of duty. He explained that he
worked with air tools, grinders, air drills, skill saws, paint guns and impact wrenches. Appellant
first became aware of his hearing loss and related it to his employment on September 11, 2006.
In response to a developmental letter from OWCP, appellant submitted his statement of
employment history, personnel action forms, position descriptions, as well as audiometric
diagnostic results and medical reports from the employing establishment. A history of tinnitus is
related in a December 5, 2011 report.
These documents included results from an audiometric examination performed on
August 29, 2011. This test result indicated that testing at the frequency levels of 500, 1,000,
2,000 and 3,000 cycles per second revealed the following: right ear 10, 0, 15 and 40 decibels;
left ear 10, 15, 25 and 35 decibels.
Finding that the evidence appellant submitted was insufficient to establish his claim,
OWCP referred appellant and a statement of accepted facts to Dr. Dennis G. Pappas, Jr., a
Board-certified otolaryngologist, for an audiometric examination and a second opinion
evaluation. Lynn Carmichael, an audiologist, performed audiometric testing of appellant on
September 3, 2010. Testing at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per
second revealed the following: right ear 10, 15, 15 and 40 decibels; left ear 10, 10, 25 and 40
decibels. Dr. Pappas concluded that appellant had sustained sensorineural bilateral hearing loss
as a result of his federal employment. He rationalized this conclusion by stating that the
sensorineural hearing loss was a symmetric loss with a matching audiometric pattern, consistent
with noise exposure. Dr. Pappas also opined that the hearing loss was not ratable as the extent of
hearing loss was zero percent after deduction of the 25 decibel fence. However, he
recommended hearing aids for appellant’s condition.
OWCP notified appellant that his claim was accepted for bilateral sensorineural hearing
loss due to workplace exposure to noise, and his case was forwarded to the district medical
adviser (DMA) for assessment of the percentage of permanent hearing loss.
On September 27, 2010 an OWCP medical adviser reviewed Dr. Pappas’ report and the
audiometric test of August 15, 2012. The medical adviser concluded that appellant had a noiseinduced sensorineural hearing loss which is not ratable in either ear. In accordance with the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment, (A.M.A., Guides), appellant had a zero percent binaural sensorineural hearing loss,
and that the date of maximum medical improvement was August 15, 2012. In addition, by
checkmark the DMA denied authorization for hearing aids.
In its September 28, 2012 decision, OWCP determined that appellant was not entitled to a
schedule award of compensation, and that the weight of the medical evidence established that he
would not benefit from hearing aids.

2

LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA2 and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.4
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second, the
losses at each frequency are added up and averaged. Then, the fence of 25 decibels is deducted
because, as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in
the ability to hear everyday speech under everyday conditions. The remaining amount is
multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss. The binaural
loss is determined by calculating the loss in each ear using the formula for monaural loss: the
lesser loss is multiplied by five, then added to the greater loss and the total is divided by six to
arrive at the amount of the binaural hearing loss. The Board has concurred in OWCP’s adoption
of this standard for evaluating hearing loss.5
Further, the requirements of the evidence to be used in evaluating occupational hearingloss claims are defined by the Federal (FECA) Procedure Manual, which provides: that the
employee should undergo audiological evaluation and otological examination; that the
audiological testing precede the otologic examination; that the audiological evaluation and
otologic examination be performed by different individuals as a method of evaluating the
reliability of the findings; that the clinical audiologist and otolaryngologist be certified; that all
audiological equipment authorized for testing meet the calibration protocol contained in the
accreditation manual of the American Speech and Hearing Association; that the audiometric test
results include both bone conduction and pure-tone air conduction thresholds; speech reception
thresholds and monaural discrimination scores; and that the otolaryngologist’s report include the
date and hour of examination; date and hour of the employee’s last exposure to loud noise; and a
rationalized medical opinion regarding the relationship.6

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404. Effective May 1, 2009, OWCP began using the A.M.A., Guides (6th ed. 2009).

4

Id.

5

J.H., Docket No. 08-2432 (issued June 15, 2009); J.B., Docket No. 08-1735 (issued January 27, 2009).

6

Joshua A. Holmes, 42 ECAB 231 n.2 (1990).

3

ANALYSIS -- ISSUE 1
As an initial matter, the Board finds that OWCP properly relied on the test results of the
second opinion doctor, which met all the calibration protocol requirements demanded by the
Federal (FECA) Procedure Manual.7
An OWCP medical adviser applied OWCP’s standardized procedures to the August 15,
2012 audiogram performed at the request of Dr. Pappas. Test result for the right ear at the
frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second revealed decibel losses of 10,
15, 15 and 40 decibels, respectively. These decibels were totaled at 80 and were divided by 4 to
obtain an average hearing loss at those cycles of 20 decibels. The average of 20 decibels was
then reduced by 25 decibels (the first 25 decibels were discounted as discussed above) to equal 0,
which was multiplied by the established factor of 1.5 to compute a 0 percent monaural loss of
hearing for the right ear.
Testing for the left ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per
second revealed decibel losses of 10, 10, 25 and 40, respectively. These decibels were totaled at
85 and were divided by 4 to obtain the average hearing loss at those cycles of 21.25 decibels.
The average of 21.25 decibels was then reduced by 25 decibels (the first 25 decibels were
discounted as discussed above) to equal 0 which was multiplied by the established factor of 1.5
to compute a 0 percent hearing monaural loss for the left ear. As such, the binaural loss is zero
percent.
While medical reports of record mention a history of tinnitus, the A.M.A., Guides, allow
for compensation of up to five percent for tinnitus in the presence of measurable hearing loss, if
the tinnitus impacts the ability to perform the activities of daily living.8 As appellant does not
have measurable hearing loss, he is not entitled to an additional award for tinnitus.
LEGAL PRECEDENT -- ISSUE 2
Section 8103(a) of FECA provides that the United States shall furnish to an employee
who is injured while in the performance of duty, the services, appliances and supplies prescribed
or recommended by a qualified physician, which the Secretary of Labor considers likely to cure,
give relief, reduce the degree or the period of any disability or aid in lessening the amount of any
monthly compensation.9 OWCP must therefore exercise discretion in determining whether the
particular service, appliance or supply is likely to affect the purposes specified in FECA.10

7

The Board finds that the August 29, 2011 audiogram, as well as the other audiograms of record, yield the same
result.
8

See Leslie M. Mahin, 55 ECAB 311 (2004).

9

5 U.S.C. § 8103(a).

10

Marjorie S. Geer, 39 ECAB 1099 (1988); see also W.S., Docket No.11-707 (issued September 28, 2011).

4

Following medical evaluation of a claim, if the hearing loss is determined to be
nonratable for schedule award purposes, other benefits such as hearing aids may still be payable
if any employment-related loss exists when supported by medical rationale.11
ANALYSIS -- ISSUE 2
The Board finds that the case is not in posture for decision as to whether hearing aids
should be authorized. Dr. Pappas, OWCP’s second opinion physician, recommended in his
August 15, 2012 report that hearing aids should be authorized. He explained that while
appellant’s employment-related hearing loss was not ratable, authorization of hearing aids was
appropriate. OWCP’s medical adviser noted by check mark that hearing aids should not be
authorized, but he did not provide any explanation of this opinion. As previously noted,
appellant is eligible for hearing aids if he has sustained some hearing loss causally related to his
employment, even if the hearing loss is not ratable.
The Board notes that proceedings under FECA are not adversarial in nature. OWCP
shares in the responsibility to develop the evidence and has an obligation to see that justice is
done.12 Accordingly, the case will be remanded to OWCP for further development on the
question of whether appellant should be authorized hearing aids. Following this and such other
development as is deemed necessary, OWCP shall issue an appropriate decision.
CONCLUSION
The Board finds that appellant did not sustain a permanent hearing impairment greater
than zero percent as dictated by the A.M.A., Guides, and that OWCP improperly denied
appellant’s request for hearing aids.

11

A.S., Docket No. 10-2048 (issued June 7, 2011); see also F.D., Docket No. 10-1175 (issued January 4, 2011)
(OWCP’s reliance on the DMA’s conclusion, which was not supported by medical rationale, that appellant did not
qualify for hearing aids was erroneous); Federal (FECA) Procedural Manual, Part 3 -- Medical, Medical Services
and Supplies, Chapter 3.400.3(d)(2) (March 2010).
12

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the September 28, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed, in part, and set aside and remanded in part.
Issued: July 5, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.L., Appellant
and
DEPARTMENT OF THE AIR FORCE,
FAIRCHILD AIR FORCE BASE, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
William H. Brawner, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0235
Issued: November 1, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 10, 2016 appellant, through counsel, filed a timely appeal from a June 22,
2016 decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject
to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal after OWCP’s June 22, 2016 decision
was issued. The Board’s jurisdiction is limited to review of the evidence that was before OWCP at the time of its
final decision. Therefore, the Board lacks jurisdiction to review this additional evidence. 20 C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether OWCP properly terminated appellant’s compensation benefits
effective June 22, 2016 for refusal of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
FACTUAL HISTORY
On April 8, 2008 appellant, then a 33-year-old lead firefighter, filed a traumatic injury
claim (Form CA-1) alleging right shoulder and back injury as a result of loading equipment from
one truck to another on March 28, 2008. He stopped work on the day.
On April 16, 2008 OWCP accepted appellant’s claim for trapezius strain. He received
wage-loss compensation and medical benefits on the supplemental rolls as of May 13, 2008. On
May 23, 2008 OWCP expanded acceptance of the claim for thoracic back sprain and lumbar
back sprain. Appellant received benefits on the periodic rolls as of May 9, 2010. On
October 21, 2009 OWCP also accepted T7-8 thoracic disc herniation, right greater than left, with
cord compression.
In a medical report dated January 25, 2010, Dr. David Dean, a Board-certified family
practitioner, examined appellant and diagnosed intervertebral thoracic disc disorder with
myelopathy of the thoracic region, and lumbar disc disorder. In a report dated October 29, 2012,
Dr. Mark Didier, a Board-certified family practitioner in the same practice as Dr. Dean, noted
that appellant continued to experience daily chronic pain. He diagnosed intervertebral thoracic
disc disorder with myelopathy of the thoracic region, lumbar disc disorder, and noted appellant’s
continuing back pain. Appellant continued to treat with Dr. Dean and Dr. Didier through 2015.
As of September 3, 2014, the employing establishment continued to try to find appellant
work within his medical restrictions.
On November 14, 2014 OWCP referred appellant for a second opinion examination with
Dr. Aleksandar Curcin, a Board-certified orthopedic surgeon, to determine whether he still
suffered residuals from his work-related injury. In a report dated December 19, 2014, Dr. Curcin
examined appellant and stated that there were no objective findings supporting that appellant’s
accepted conditions were still active. He further noted that appellant was able to return to work
at his date-of-injury position.
On January 2, 2015 OWCP referred appellant to, Dr. St. Elmo Newton, III, a Boardcertified orthopedic surgeon, for an impartial medical evaluation because it determined that a
conflict in the medical evidence existed between Dr. Didier and Dr. Curcin as to whether
appellant continued to have residuals from his accepted injury.
In a report dated February 24, 2015, Dr. Newton diagnosed thoracolumbar sprain,
thoracic disc protrusion at T7, and lumbar disc protrusion at L1. He noted that, while appellant
had previously been released to full duty and returned to work, he lasted only an hour and a half
before the pain became too great and he had to stop working again. Dr. Newton completed a
work capacity evaluation (Form OWCP-5c) dated February 24, 2015, in which he noted
permanent work restrictions of no twisting, bending/stooping, squatting, kneeling, climbing, or

2

operating of a motor vehicle, and limitations of pushing, pulling, and lifting of no more than 10
pounds for 15 minutes per activity. He further noted that the position “must be sedentary,” that
appellant was unable to perform his usual job, and that appellant was unable to work for eight
hours per day with restrictions. However, Dr. Newton also noted that appellant was able to work
“0” hours and it was not anticipated that he would be able to work increased hours.
On April 24, 2015 OWCP expanded acceptance of the claim to include lumbar disc
protrusion at L1.
In a record of a telephone conversation dated February 22, 2016, an OWCP claims
examiner noted that the employing establishment had called to inform OWCP that it had a
sedentary position available for eight hours per day with restrictions. The employing
establishment sought clarification on appellant’s work restrictions, to which OWCP’s claims
examiner replied that appellant could not work any hours in his regular job, but that if the
employing establishment had a modified offer fitting Dr. Newton’s restrictions, that it should go
ahead and offer the job to appellant and “any issues will be addressed as they come up.”
By letter dated February 29, 2016, the employing establishment offered appellant a lightduty position as a facility services assistant. In terms of physical requirements, the job offer
stated, “Work is normally sedentary but also includes work on hard surfaces and in work areas
requiring standing. Employee will not be required to perform more than two hours a day of
pushing, pulling, and lifting at 10 pounds; no squatting, kneeling, climbing, twisting,
bending/stooping, or operating a motor vehicle at work; intermittent sitting, walking, and
standing as necessary.”
By letter dated March 16, 2016, OWCP requested clarification from Dr. Newton on the
number of hours appellant was able to work. It noted that Dr. Newton’s report included specific
limitations and stated that the position must be sedentary. OWCP requested that Dr. Newton
express appellant’s work restrictions using a whole number of hours if applicable.
On March 24, 2016 an OWCP representative contacted the employing establishment to
inform them that they required clarification from Dr. Newton before deeming the job offer
suitable.
In a Form OWCP-5c dated April 3, 2016, Dr. Newton noted work restrictions of
intermittent sitting, standing, and walking; no twisting, bending/stooping, squatting, kneeling,
climbing, or operating a motor vehicle; and limitations of pushing, pulling, and lifting of no more
than 10 pounds for 15 minutes per activity. He checked boxes noting that appellant was able to
perform sedentary duties only, and wrote at the bottom of the form, “Sedentary job only.”
Dr. Newton also noted that while appellant was unable to perform his date-of-injury position for
eight hours per workday, he could work eight hours per day in a sedentary position.
By letter dated April 8, 2016, OWCP informed appellant that it had found the job offer
suitable in accordance with Dr. Newton’s medical restrictions, and that it had been advised that
appellant had failed to respond to the offered position. It advised appellant that refusal of the
offer could result in termination of his entitlement to compensation and schedule award benefits.
OWCP informed appellant that he had 30 days to submit additional evidence justifying his

3

declination of the job offer or to accept the job offer. On June 3, 2016 it noted that appellant had
still not accepted the job offer or given reasons for refusal, and afforded him 15 days to take
action.
By letter dated June 17, 2016, appellant declined the job offer. He explained that he was
refusing the job offer because it was outside of his medical restrictions, based on Dr. Newton’s
statement that the job had to be sedentary.
By decision dated June 22, 2016, OWCP terminated appellant’s compensation for wageloss compensation and schedule award effective on that date. It found that he had refused an
offer of suitable work and that the termination of his benefits was made pursuant to 5 U.S.C.
§ 8106(c)(2). OWCP stated that it had determined that his reasons for refusing the position were
not justified because he had not provided any medical evidence sufficient to change his
restrictions from those as provided by Dr. Newton.
LEGAL PRECEDENT
5 U.S.C. § 8106(c) provides in pertinent part, “A partially disabled employee who
(2) refuses or neglects to work after suitable work is offered ... is not entitled to compensation.”
It is OWCP’s burden to terminate compensation under section 8106(c) for refusing to accept
suitable work or neglecting to perform suitable work.4 To justify such a termination, OWCP
must show that the work offered was suitable.5
Before compensation can be terminated, however, OWCP has the burden of
demonstrating that the employee can work, setting forth the specific restrictions, if any, on the
employee’s ability to work, establishing that a position has been offered within the employee’s
work restrictions and setting for the specific job requirements of the position.6 The
determination of whether an employee is physically capable of performing a modified
assignment is a medical question that must be resolved by medical evidence.7 OWCP
procedures provide that acceptable reasons for refusing an offered position include medical
evidence of inability to do the work.8
Section 8106(c) will be narrowly construed as it serves as a penalty provision, which may
bar an employee’s entitlement to compensation based on a refusal to accept a suitable offer of
employment.9

4

Henry P. Gilmore, 46 ECAB 709 (1995).

5

John E. Lemker, 45 ECAB 258 (1993).

6

See Linda Hilton, 52 ECAB 476 (2001).

7

Gayle Harris, 52 ECAB 319 (2001).

8

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Job Offer Refusal,
Chapter 2.814.5a (July 2013).
9

W.D., Docket No. 15-1297 (issued August 23, 2016).

4

ANALYSIS
As noted above, it is OWCP’s burden of proof to establish that an offered position is
medically suitable.10
The Board has reviewed the medical evidence and finds it sufficient to meet OWCP’s
burden of proof in this case as appellant refused an offer of suitable work that was within his
medical restrictions, pursuant to 5 U.S.C. § 8106(c)(2).
OWCP accepted that appellant sustained trapezius strain, thoracic back sprain, lumbar
back sprain, T7-8 thoracic disc herniation, and lumbar disc protrusion at L1. It terminated
appellant’s compensation benefits after he refused to accept the position of facility services
assistant.
The Board finds that the offered position of facility services assistant, dated February 29,
2016, is within Dr. Newton’s April 3, 2016 work restrictions. Dr. Newton’s April 3, 2016 work
restrictions indicated that appellant could work only a sedentary position. The physical
requirements of a facility services assistant are described, in part, in the job offer as “Work is
normally sedentary, but also includes work on hard surfaces and in work areas requiring
standing.”
The Department of Labor’s Dictionary of Occupational Titles defines sedentary work as
“involving exerting up to 10 pounds of force occasionally (occasionally: activity or condition
exists up to 1/3 of the time) and/or a negligible amount of force frequently (frequently: activity
or condition exists from 1/3 to 2/3 of the time) to lift, carry, push, pull, or otherwise move
objects, including the human body. Sedentary work involves sitting most of the time, but may
involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing
are required only occasionally and all other sedentary criteria are met.”11
Dr. Newton noted on an April 3, 2016 form that appellant could sit, stand and walk
intermittently. The description in the job offer met the definition of a sedentary job as defined by
the Department of Labor’s Dictionary of Occupational Titles.
Following its suitability determination of the facility services assistant position, appellant
was properly afforded 30 days to either accept the offer of suitable work or provide reasons for
rejecting the offered position. In response, he submitted a letter which he argued that the offered
position was outside of the medical restrictions provided by Dr. Newton, because it was not a
fully sedentary position.
Once OWCP has established that a particular position is suitable, an employee who
refuses or neglects to work after suitable work has been offered to him has the burden of
showing that such refusal to work was justified.12 The Board has carefully reviewed the
10

Supra note 5.

11

Dictionary of Occupational Titles, Appendix C: Components of the Definition Trailer.

12

Supra notes 9-12.

5

evidence and argument submitted by appellant in support of his refusal of the facility services
assistant position and finds it insufficient to justify his refusal of the position. As previously
explained, the position of facility services assistant was based upon the restriction provided by
Dr. Newton and was a proper sedentary position.
As such, the Board finds that the offered position of facility services assistant was
medically suitable as a sedentary position, and OWCP met its burden of proof to terminate
compensation benefits for refusal of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s compensation benefits
effective June 22, 2016 for refusal of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
ORDER
IT IS HEREBY ORDERED THAT the June 22, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 1, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6