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

)
)
)
)
)
)
)
)

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

Docket No. 11-416
Issued: October 11, 2011

Case Submitted on the Record

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

JURISDICTION
On December 17, 2010 appellant filed a timely appeal from a June 24, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her claim for
disability compensation. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant was disabled from employment beginning June 22, 2005
due to her accepted employment injury.
FACTUAL HISTORY
On December 23, 1999 appellant, then a 44-year-old distribution and window clerk, filed
an occupational disease claim alleging that she sustained a strained tendon in her right thumb due
to factors of her federal employment. OWCP accepted the claim, assigned file number
1

5 U.S.C. § 8101 et seq.

xxxxxx372, for right thumb tendinitis. It also accepted that appellant sustained left thumb strain
under file number xxxxxx400. OWCP authorized a January 22, 2002 carpalmetacarpal (CMC)
arthroscopy on the right thumb and a July 24, 2002 CMC arthroplasty on the left thumb.
On September 4, 2002 appellant returned to part-time limited-duty employment. The
position required working as a window clerk with limited lifting and no repetitive motion
beginning four hours per day. Appellant began working full-time modified employment on
November 12, 2002. A nurse noted that appellant was “essentially working her full[-]duty job
since her restrictions do not exceed her [date-of-injury] position duties.”
In a state workers’ compensation form dated June 22, 2005, Ann Hurd, a physician’s
assistant, diagnosed an acute stress response, bilateral hand pain, osteoarthritis and depression.
She advised that appellant could return to work using fine motor or pinching and grasping for no
more than 30 minutes without a break. Ms. Hurd found that appellant could not perform window
or customer service work but could answer telephones.
On August 5, 2005 the employing establishment informed OWCP that appellant had
stopped on August 3, 2004 “due to an alleged stress[-]related injury which was denied by
OWCP. Now she is claiming that after being out of work since August 4, 2004 she can return to
work but has more stringent restrictions to her wrist condition.”
In a report dated August 15, 2005, Dr. John Chance, a Board-certified orthopedic
surgeon, found that appellant could work no more than 40 hours per week taking a break every
30 minutes.
On August 29, 2005 appellant underwent a functional capacity evaluation (FCE). An
occupational therapist found that she could work with her hands 6 hours per day for 45 minutes
at a time and use her hands for minimal grasping.
On September 7, 2005 appellant filed a claim for wage-loss compensation beginning
June 22, 2005. By letter dated September 13, 2005, OWCP requested additional factual and
medical evidence supporting that she was disabled from work due to her accepted work injury.
By letter dated October 4, 2005, appellant related that she was not allowed to take breaks
or work without her restrictions when she returned to work after her employment injury. Her
coworkers harassed her and her hand condition deteriorated. Appellant stopped work from
August 2, 2004 through June 22, 2005 and filed for compensation benefits under another file
number. She was released to return to work on June 22, 2005 but the employing establishment
did not accommodate her restrictions.
On October 5, 2005 Ms. Hurd related that appellant stopped work on August 2, 2004 due
to an acute stress response. She noted that her “job was increasingly demanding on her hands”
and that her hands worsened due to her duties. Ms. Hurd noted that the FCE supported the
provided work restrictions.
By decision dated July 29, 2008, OWCP denied appellant’s claim for compensation
beginning June 22, 2005. It found that she did not submit sufficient evidence showing that she

2

was disabled commencing that date or that her limited-duty position changed such that she was
unable to perform the duties due to her accepted left thumb injury.
On August 14, 2008 appellant requested an oral hearing. At the hearing, held on
February 26, 2009, her representative noted that she was claiming compensation for both her
right and left thumb injuries. When appellant left work before her stress condition, she was
working in a position at the window that was not suitable. When she could return to work after
her stress-related condition, the employing establishment informed her that there was no work
available after reviewing the FCE and August 29, 2005 fitness-for-duty examination. The
hearing representative reviewed the case record for the right thumb condition and noted that
there were no recently submitted documents. Kathy Dyer, a nurse with the employing
establishment, related that an FCE showed that appellant could not perform her employment
duties. She noted that work within appellant’s limitations was not available for window clerks
due to the need for pinching force. The hearing representative advised appellant’s representative
to submit a physician’s opinion addressing why she needed greater work restrictions after a year
of not working.
In a report dated October 1, 2007, received by OWCP on March 13, 2009, Dr. C.T.
Bartlett, Board-certified in family medicine, noted that appellant’s “hand surgeon advises
indefinite 40 hours per week, minimal pinching or writing, no pulling bags, and no lifting greater
than 25 [pounds]. Since the hand surgeon described these restrictions as indefinite, and [she]
feels that her restrictions are still the same, I have to concur.” In an addendum dated May 29,
2008, Dr. Bartlett indicated that he had reviewed the FCE and agreed with the findings.
By letter dated June 17, 2008, appellant asserted that a district court judge accepted that
she could not work due to her thumb injuries. She submitted depositions which she maintained
established that she was not permitted to work due to her employment injuries. Appellant
submitted depositions from employees from the employing establishment obtained as part of a
civil action.
On March 10, 2009 appellant’s representative submitted a letter indicating that the FCE
was administered under the direction of a physician.
By decision dated May 14, 2009, an OWCP hearing representative affirmed the July 29,
2008 decision. She found that the record contained no rationalized evidence supporting that
appellant was disabled beginning June 2005 due to either thumb injury.
In a report dated April 21, 2010, Dr. Bartlett discussed appellant’s belief that the
employing establishment did not provide her with a modified position when she returned to work
in 2004. She stopped work in August 2004 due to stress caused by the employing
establishment’s failure to adhere to her work restrictions. When appellant wanted to resume
work in June 2005, Ms. Hurd provided “more complete restrictions (i.e., no window work) to
improve compliance with your previously determined work restrictions.” Dr. Bartlett noted that
an FCE showed that appellant could perform minimal, occasional grasping. He stated, “After
review of the work site evaluation and the FCE, I agree with their stated restrictions and
limitations. Assuming these are honored in the workplace, it appears that you do have the
functional capacity to work.”

3

On May 3, 2010 appellant requested reconsideration. She argued that the FCE should not
have been scheduled if OWCP would not accept its results. Appellant asserted that the
employing establishment erroneously refused to provide her with employment and altered her
claim forms.
By decision dated June 24, 2010, OWCP denied modification of its May 14, 2009
decision.
On appeal appellant contends that the employing establishment would not provide her
with work based on the FCE and OWCP did not consider the FCE probative medical evidence.
She also argued that the employing establishment did not provide her with work within her
restrictions before she stopped on August 2, 2004. Appellant reiterates that an employing
establishment employee altered the numbers on her claims and had an obligation to
accommodate her work injury or pay her compensation.
LEGAL PRECEDENT
The term disability as used in FECA2 means the incapacity because of an employment
injury to earn the wages that the employee was receiving at the time of injury.3 Whether a
particular injury caused an employee disability for employment is a medical issue which must be
resolved by competent medical evidence.4 When the medical evidence establishes that the
residuals of an employment injury are such that, from a medical standpoint, they prevent the
employee from continuing in the employment held when injured, the employee is entitled to
compensation for any loss of wage-earning capacity resulting from such incapacity.5 The Board
will not require OWCP to pay compensation for disability in the absence of any medical
evidence directly addressing the specific dates of disability for which compensation is claimed.
To do so would essentially allow employee’s to self-certify their disability and entitlement to
compensation.6
ANALYSIS
OWCP accepted that appellant sustained right thumb tendinitis under file number
xxxxxx372 and left thumb tendinitis under file number xxxxxx400 due to factors of her federal
employment. Appellant underwent a CMC surgery on the right thumb on January 22, 2002 and
on the left thumb on July 24, 2002.
On November 12, 2002 appellant returned to full-time modified employment. She
stopped work on August 3, 2004 due to stress. On September 7, 2005 appellant filed a claim for
2

5 U.S.C. §§ 8101-8193; 20 C.F.R. § 10.5(f).

3

Paul E. Thams, 56 ECAB 503 (2005).

4

Id.

5

Id.

6

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

4

disability compensation beginning June 22, 2005 due to her accepted employment injury. She
related that when she returned to work after her injury in 2002 the employing establishment did
not provide her with work within her restrictions. Appellant asserted that her physician released
her to return to work on June 22, 2005 but the employing establishment did not provide her with
a position suitable for her increased physical limitations. She submitted reports dated June 22
and October 5, 2005 from Ms. Hurd, a physician’s assistant. The reports of a physician’s
assistant, however, are entitled to no weight as a physician’s assistant is not a “physician” as
defined by FECA.7
On August 15, 2005 Dr. Chance found that appellant could work full time with a break
every 30 minutes. As he did not find that she was disabled from her modified position, his report
is insufficient to meet her burden of proof.
In a report dated October 1, 2007, Dr. Bartlett indicated that appellant’s hand surgeon
found that she could work with indefinite restrictions of minimal pinching, no pulling and no
lifting over 25 pounds. He stated, “Since the hand surgeon described these restrictions as
indefinite, and [she] feels that her restrictions are still the same, I have to concur.” Dr. Bartlett,
however, did not address the cause of appellant’s limitations or explain how these limitations
prevented her from performing her limited-duty employment.8 Further it appears that he relied
on the opinion of another physician and on appellant’s own belief instead of reaching an
independent determination regarding disability. A physician’s report is of diminished probative
value when it is based on a claimant’s belief rather than the doctor’s independent judgment.9
An FCE, performed on August 29, 2005 by an occupational therapist, revealed that
appellant could work using her hands six hours per day with minimal grasping. On May 29,
2008 Dr. Bartlett reviewed the FCE and agreed with the findings. While he agreed with the
physical limitations provided by the FCE, he did not address the relevant issue of causation.
Medical evidence that does not offer any opinion regarding the cause of an employee’s condition
is of diminished probative value on the issue of causal relationship.10 Dr. Bartlett’s opinion is of
reduced probative value to the relevant issue of whether appellant had increased disability
beginning June 2005 due to her accepted employment injury.
In a report dated April 21, 2010, Dr. Bartlett noted that appellant related that the
employing establishment did not provide her with work within her restrictions in 2004 and that
she subsequently stopped work due to stress. Appellant then attempted to return to work with
increased restrictions in June 2005. Dr. Bartlett asserted that she could only perform minimal
grasping. He found that appellant could work within the restrictions set forth in the FCE.
Dr. Bartlett did not address the cause of her work restrictions or explain how the nature and
7

See 5 U.S.C. § 8101(2); Allen C. Hundley, 53 ECAB 551 (2002).

8

See Michael E. Smith, 50 ECAB 313 (1999) (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

Earl David Seale, 49 ECAB 152 (1997) (a physician’s report is of little probative value when it is based on a
claimant’s belief rather than the doctor’s independent judgment).
10

See A.D., 58 ECAB 149 (2006); Conrad Hightower, 54 ECAB 796 (2003).

5

extent of appellant’s employment-related condition had changed at the time she was released for
work in June 2005. The issue of whether a claimant’s disability is related to an accepted
condition is a medical question which must be established by a physician who, on the basis of a
complete and accurate factual and medical history, concludes that the disability is causally
related to employment factors and supports that conclusion with sound medical reasoning.11 As
there is no probative, rationalized medical evidence addressing how appellant’s increased work
restrictions resulted from her accepted thumb injuries, she has not met her burden of proof.
On appeal appellant questions why OWCP did not rely upon the FCE. The FCE was
performed by an occupational therapist and an occupational therapist is not considered a
physician under FECA.12 As discussed, Dr. Bartlett concurred with the findings set forth in the
FCE but did not address the relevant issue of causation; thus, his opinion is of little probative
value.
Appellant also argues that the employing establishment did not provide her with work
within her restrictions before she stopped on August 2, 2004. She indicated, however, that she
stopped work due to stress rather than an inability to perform her employment duties. Although
appellant alleged that she sustained increased disability beginning June 2005, she has not
submitted medical evidence establishing that the increased restrictions were due to her accepted
bilateral thumb tendinitis. Consequently, she has not met her burden of proof.
Appellant maintains that the employing establishment altered the numbers on her claims
and has an obligation to accommodate her due to her work injury or pay her compensation. The
Board’s jurisdiction, however, extends only to reviewing final adverse decisions of OWCP
issued pursuant to FECA.13
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that she was disabled from
employment beginning June 22, 2005 due to her accepted employment injury.

11

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

12

5 U.S.C. § 8101(2).

13

20 C.F.R. § 501.2(c).

6

ORDER
IT IS HEREBY ORDERED THAT the June 24, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 11, 2011
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, New Orleans, LA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Debra Hauser, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0639
Issued: September 1, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 30, 2017 appellant, through counsel, filed a timely appeal from an
October 27, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

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 OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective November 13, 2016, because the accepted lumbar
sprain and neck sprain had resolved with no residuals.
On appeal counsel asserts that the employment injury caused additional conditions. She
questioned whether the referee physician was properly selected. Counsel also maintained that
the statement of accepted facts (SOAF) was insufficient and that the referee’s report was
speculative and of insufficient rationale to meet OWCP’s burden.
FACTUAL HISTORY
This case has previously been before the Board. The facts as presented in the Board’s
prior decisions are incorporated herein by reference. The relevant facts of the prior appeals are
set forth below.
On April 27, 2005 appellant, a 59-year-old nurse, sustained employment-related lumbar
and neck strains while lifting a patient. She received compensation for temporary total disability
on the periodic rolls. Appellant retired effective June 30, 2006 and on July 20, 2006 received a
voluntary separation incentive payment in the amount of $25,000.00, with a net payment of
$16,760.01.
Appellant returned to a modified position as a clerk in the appointment center at the
employing establishment on December 5, 2011. On January 17, 2012 OWCP reduced her
compensation to reflect her earnings. On February 12, 2012 appellant began a position as a
modified utilization review nurse.3
On March 2, 2012 appellant filed a claim for compensation (Form CA-7) claiming four
hours of wage loss for a physician visit, and four hours of leave without pay on
February 29, 2012. On March 15, 2012 she filed additional claims for compensation for the
period March 1 to 29, 2012, indicating that she stopped work on her physician’s orders.
In a March 15, 2012 decision, OWCP found that appellant’s earnings as a nurse,
beginning February 12, 2012, fairly and reasonably represented her wage-earning capacity with
zero loss. In an April 27, 2012 decision, it found that her actual earnings as an appointment clerk
for the period December 5, 2011 to February 12, 2012 fairly and reasonably represented her
wage-earning capacity and reduced her compensation, effective December 5, 2011, when she

3

Both positions were identified as transitional assignments with sedentary duties consisting of data entry,
scanning and answering telephones. The specific duties were different including that in the clerk position appellant
was responsible for scheduling, canceling and rescheduling patient appointments, and in the nurse position she was
to review clinical data and documentation in the computerized patient record system. The annual salary for the clerk
position was $36,384.00 and for the nursing position $78,212.00.

2

assumed the position.
percent.4

OWCP determined that appellant’s wage-earning capacity was 42

On August 6, 2012 appellant filed a recurrence claim (Form CA-2a). She indicated that
her modified duties of sitting and typing data into a computer for eight hours a day caused
excruciating pain in her neck, shoulders, low back, and legs, and that the pain became so severe
on February 28, 2012 that she stopped work. Appellant resigned from the employing
establishment effective March 12, 2012, stating that it was for medical reasons. She began
treatment with Dr. Patrick H. Waring, Board-certified in anesthesiology and pain medicine.
In a February 21, 2013 decision, OWCP denied appellant’s recurrence claim, finding that
the medical evidence of record was insufficient to establish that her accepted conditions had
worsened. On April 30, 2013 counsel appealed the February 21, 2013 decision to the Board.
She continued to submit reports from Dr. Waring who diagnosed lumbar disc disease, lumbar
spondylosis, and lumbar disc displacement.
By order dated November 4, 2013, the Board found that OWCP should have adjudicated
appellant’s recurrence claim beginning February 28, 2012 under the standard of whether she had
established that the March 15, 2012 loss of wage-earning capacity (LWEC) determination should
be modified. The Board remanded the case to OWCP for proper adjudication, to be followed by
an appropriate merit decision to preserve her appeal rights.5
In a February 26, 2014 decision, OWCP found that appellant had not met her burden of
proof to modify the LWEC decision. In an August 21, 2014 decision, the Board found that, as
she had not been performing the utilization review nurse position for 60 days when OWCP
issued the March 15, 2012 decision, the decision was erroneous on its face. Accordingly, the
Board reversed the March 15, 2012 LWEC decision and remanded the case for proper
adjudication of appellant’s claims for wage loss beginning March 1, 2012.6
Subsequent to the Board’s August 21, 2014 decision, appellant elected FECA
compensation, effective March 1, 2012. She was paid wage-loss compensation retroactive to
March 1, 2012 and was placed on the periodic compensation rolls.
Medical evidence relevant to the issue in this case includes a July 29, 2005 magnetic
resonance imaging (MRI) scan of the cervical spine that was unremarkable except for
straightening of the normal lordotic posture which could be due to muscle spasm or positioning.
A lumbar spine MRI scan of that day revealed a herniation at L5-S1 which appeared less
4

OWCP procedures in effect at the time OWCP issued the wage-earning capacity determination provided that
OWCP could make a retroactive wage-earning capacity determination if the claimant worked in the position for at
least 60 days, the position fairly and reasonably represented his or her wage-earning capacity, and the work stoppage
did not occur because of any change in his injury-related condition affecting the ability to work. Federal (FECA)
Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.7(a)
(July 1997); Selden H. Swartz, 55 ECAB 272 (2004).
5

Docket No. 13-1261 (issued November 4, 2013). On December 3, 2013 the Board issued an erratum, noting
that appellant was represented by counsel.
6

Docket No. 14-0970 (issued August 21, 2014).

3

pronounced than on a previous 2001 examination, lumbar facet arthrosis, and subtle bulging at
L4-5.7 A July 2, 2008 cervical spine MRI scan showed straightening of the cervical lordosis
with subtle scoliosis and disc pathology at C3-4 and C4-5 without neurocompression. A lumbar
spine MRI scan that day demonstrated mild facet disease without neurocompression on
descending or exiting nerve roots. A March 3, 2015 MRI scan of the lumbar spine demonstrated
degenerative changes in combination with disc and facet pathology, and bilateral renal cysts.
In reports dated August 27, 2014 and March 16, 2015, Dr. Waring noted appellant’s
complaint of back pain, provided physical examination findings, and diagnosed cervical
spondylosis without myelopathy, thoraco-lumbosacral radiculitis, lumbosacral spondylosis
without myelopathy, lumbar disc displacement without myelopathy, and localized osteoarthrosis
in the pelvic region. He advised that she was totally disabled due to spinal disability and
provided cervical and lumbar physical restrictions.
In July 2015, OWCP referred appellant to Dr. Simon Finger, an orthopedic surgeon, for a
second opinion. In an August 7, 2015 report, Dr. Finger noted the history of injury, his review
of the medical record including MRI scan findings and her complaint of chronic neck, hip, and
radiating back pain. His examination demonstrated that appellant could heel and toe walk and
could minimally squat. Straight leg raises were negative. Lower extremity and cervical spine
range of motion was full. Lumbar spine range of motion was somewhat limited. Dr. Finger
opined that, while appellant was injured on April 27, 2005 and could have temporarily
aggravated preexisting lumbar degenerative disc disease on April 27, 2005, the accepted
conditions had resolved, and her degenerative spine condition was age related. He indicated that
she needed no further orthopedic care for the work-related conditions and was at maximum
medical improvement regarding the accepted conditions.
On August 11, 2015 Dr. Joseph Francis Sejud, an emergency medicine specialist, noted
appellant’s report of the employment injury, the accepted conditions of cervical and lumbar
strains, and that she had been unable to work since and had retired. He reported limited range of
motion of the neck and lumbar spine with no lumbar paraspinal tenderness or muscle spasm
found on examination.
In a September 24, 2015 report, Dr. Joseph B. Boucree, a Board-certified orthopedic
surgeon, noted the history of injury and appellant’s complaint of radiating neck and back pain
which had recently worsened. Examination demonstrated paraspinal cervical and lumbar
tenderness with moderate restriction of cervical and lumbar spine range of motion. Sensory was
intact to light touch and pinprick through the upper and lower extremities. Right shoulder
strength was limited, and there was bilateral trochanteric tenderness present on hip examination.
Straight leg raising produced bilateral back pain, and gait was slightly antalgic. Dr. Boucree
reviewed x-ray and MRI scan reports. He diagnosed degenerative disc disease of the cervical
and lumbar spines, osteoarthritis of the lumbar spine with radiculopathy, bilateral lumbar
radiculopathy, hip and shoulder bursitis, arthropathy of lumbar facet joint, herniated lumbar
intervertebral disc, and neural foraminal stenosis of the lumbar spine.

7

A lumbar spine MRI scan dated in 2001 is not found in the case record before the Board.

4

Dr. Sejud again saw appellant on September 22, 2015. He noted his review of
Dr. Finger’s report and disagreed with his findings. Dr. Sejud advised that, based on his two
examinations, appellant had considerable disability which would preclude her from full-time
employment. He reported lumbar paraspinal tenderness and decreased cervical and lumbar range
of motion on examination. Dr. Sejud opined that the employment injury was clearly more
extensive than a lumbar strain. He noted MRI scan findings of a disc herniation and advised that
appellant required continued orthopedic care. On October 1, 2015 appellant was seen by
Dr. Jason Pellegrin, a chiropractor, for physical therapy. Dr. Pellegrin diagnosed lumbar
sprain/strain.
A November 11, 2015 MRI scan of the cervical spine demonstrated minimal disc bulges
with no spinal canal narrowing or significant foraminal narrowing. On November 16, 2015
Dr. Boucree performed an epidural steroid injection. In treatment notes dated January 7 to
May 12, 2016, he noted review of the November 11, 2015 MRI scan study,8 reiterated his
diagnoses, and indicated that appellant had marginal improvement from the steroid injection.
Physical examination demonstrated cervical and lumbar tenderness with mild restriction of
cervical and moderate restriction of lumbar spine range of motion.9
OWCP determined that a conflict in medical evidence had been created between
Dr. Waring and Dr. Finger regarding appellant’s work capabilities, and in June 2016 referred her
to Dr. Gordon Nutik, a Board-certified orthopedic surgeon, for an impartial evaluation.10
In a July 21, 2016 report, Dr. Nutik noted the history of injury, his review of the medical
record including diagnostic studies, appellant’s description of her medical care, and her
complaints of radiating neck, back, and shoulder pain. His x-ray of the cervical spine that day
showed no fractures or hypertrophic changes, normal cervical lordosis and patent foramina. Disc
heights were maintained. X-ray of the lumbosacral spine showed no fractures with normal
lumbar lordosis. Disc heights were maintained. Degenerative facet changes were seen at L4-5
and L5-S1 with sclerotic bone changes. Sacroiliac joints and hip joints were patent.
Osteophytes were present about the right and left acetabulum. Examination of the neck revealed
a normal cervical lordosis. Dr. Nutik found no pain to palpation about the cervical spine,
trapezius, or sternomastoid muscles, and there was no spasm of the neck muscles. Neurologic
examination of the arms revealed normal sensation to light touch and equal muscle testing. No
atrophy was present. Speed test and impingement sign were negative. Tinel’s test was negative
at the elbows and wrists. Right wrist examination demonstrated pain about the volar aspect with
8

Dr. Boucree also referenced a November 11, 2015 electromyogram and nerve conduction velocity study that is
not found in the case record before the Board.
9

By decision dated February 22, 2016, OWCP found that an overpayment of compensation in the amount of
$11,792.76 had been created because appellant received FECA compensation and Social Security Administration
retirement benefits concurrently for the period April 12, 2012 through May 3, 2016. Appellant repaid the
overpayment in full.
10

The record contains an OWCP ME023 and bypass logs. OWCP had initially referred appellant to Dr. Richard
Meyer, also Board-certified in orthopedic surgery. The bypass logs found in the record document the reasons
physicians were bypassed until, first, Dr. Meyer was selected and, second, the selection of Dr. Nutik. Dr. Meyer
was bypassed because he wished to see medical records before an appointment could be made.

5

no swelling present. Dr. Nutik found no pain to palpation about the thoracic spine or
paravertebral muscles. Low back examination revealed normal lumbar lordosis with pain to
palpation laterally to the right hip, and no pain to palpation about the lumbar spine, paravertebral,
or gluteal muscles, and no spasm of the back muscles. Neurologic examination of the legs
showed decreased sensation to light touch about the left great toe with equal muscle power
present, and no right or calf atrophy. The right hip had localized pain. There was no pain to
palpation about the feet. Dr. Nutik noted that review of records indicated that appellant had a
prior history of low back complaints before the April 27, 2005 injury, as shown by lumbar spine
MRI scans in 2001 and 2002 which revealed a disc herniation at L5-S1. He opined that, based
on the history and review of records, she had soft tissue strains about the neck and lower back
related to the April 27, 2005 injury which should have resolved and were not actively
aggravating at the time of his examination. Dr. Nutik advised that, while it was possible that
there may have been a temporary aggravation of underlying nonspecific degenerative changes
about the neck and lower back caused by the April 27, 2005 work injury, these should have
resolved, noting documentation for underlying disc abnormality at the L5-S1 that preexisted the
April 27, 2005 injury. He noted that appellant had not worked since 2012 and as such was
deconditioned. Thus, appellant had a poor prognosis for return to gainful activity. Dr. Nutik
found no objective clinical findings that suggested additional restriction from those found on a
2011 functional capacity evaluation, which recommended a sedentary work, which she could
presently perform.
On September 1, 2016 OWCP proposed to terminate appellant’s wage-loss and medical
benefits. It found that Dr. Nutik’s opinion that she no longer had disability or residuals due to
the accepted conditions constituted the weight of the medical evidence.
Appellant, through counsel, disagreed with the proposed termination.
Counsel
questioned whether Dr. Nutik was properly selected, that the SOAF did not contain a discussion
of medical evidence subsequent to 2011, and maintained that Dr. Nutik’s opinion was conclusive
and lacked sufficient rationale to meet OWCP’s burden of proof. She further asserted that the
medical evidence showed not only that appellant continued to suffer residuals and disability due
to the work injury, but that the evidence was sufficient to warrant a formal upgrade of
employment-related conditions.
Dr. Boucree continued to treat appellant.
injections on June 17 and August 8 and 29, 2016.

He performed lumbar epidural steroid

In a supplemental report, dated October 17, 2016, Dr. Nutik advised that appellant’s soft
tissue injuries involving the neck and lower back caused by the April 27, 2005 employment
injury should have resolved, noting that she had a prior chronic lower back problem as
documented by MRI scans, and that the April 27, 2005 injuries were superimposed on this
preexisting condition and should have resolved to where she was at her preexisting condition
where she had chronic low back symptoms.
By decision dated October 27, 2016, OWCP found that the weight of the medical
evidence rested with the referee opinion of Dr. Nutik, and finalized the termination of appellant’s
wage-loss compensation and medical benefits.

6

LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the
employment.11 OWCP’s burden of proof in terminating compensation includes the necessity of
furnishing rationalized medical opinion evidence based on a proper factual and medical
background.12
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.13 The implementing regulations
provides that, if a conflict exists between the medical opinion of the employee’s physician and
the medical opinion of either a second opinion physician or an OWCP 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.14 When there exist opposing medical reports of virtually equal weight
and rationale and the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.15
ANALYSIS
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective November 13, 2016. The accepted conditions in
this case are lumbar and neck sprains. Following retirement in 2006, appellant briefly returned
to work in December 2011, continuing until she stopped on February 28, 2012. Based on the
Board’s August 21, 2014 decision,16 she received wage-loss compensation retroactive to
March 1, 2012 and was placed on the periodic compensation rolls.
OWCP determined that a conflict in medical evidence had been created between the
opinions of Dr. Waring, an attending pain management specialist, and Dr. Finger, an OWCP
referral orthopedic surgeon, regarding appellant’s work capabilities. It referred her, along with a
SOAF, a set of questions, and the medical record, to Dr. Nutik, a Board-certified orthopedic
surgeon, for an impartial evaluation.

11

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

12

Id.

13

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

14

20 C.F.R. § 10.321.

15

V.G., 59 ECAB 635 (2008).

16

Supra note 6.

7

In a July 21, 2016 report, Dr. Nutik noted the history of injury, his review of the medical
record including diagnostic studies, appellant’s description of her medical care, and her
complaints of radiating neck and back, and shoulder pain. X-rays of the cervical and
lumbosacral spine showed no fractures with degenerative facet changes seen at L4-5 and L5-S1.
Dr. Nutik found no pain to palpation about the cervical spine, trapezius, or sternomastoid
muscles, and there was no spasm of the neck muscles. Neurologic examination of the arms
revealed normal sensation to light touch, equal muscle testing, and no atrophy. Dr. Nutik found
no pain to palpation about the thoracic spine or paravertebral muscles. Examination of the low
back revealed normal lumbar lordosis with pain to palpation laterally to the right hip, and no pain
to palpation about the lumbar spine, paravertebral, or gluteal muscles, and no spasm of the back
muscles. Neurologic examination of the legs showed decreased sensation to light touch about
the left great toe with equal muscle power present, and no right or calf atrophy. Localized right
hip pain was present. Dr. Nutik advised that appellant had a prior history of low back complaints
before the April 27, 2005 injury, noting that lumbar MRI scans in 2001 and 2002 revealed a disc
herniation at L5-S1. He opined that, based on the history and review of records, appellant
sustained soft tissue strains about the neck and lower back related to the April 27, 2005 injury
which were not actively aggravating at the time of his examination. Dr. Nutik advised that,
while it was possible that there may have been a temporary aggravation of underlying
nonspecific degenerative changes of the neck and lower back caused by the April 27, 2005 work
injury, these should have resolved, noting documentation for underlying disc abnormality at the
L5-S1 that preexisted the April 27, 2005 injury. He found no objective clinical findings to
suggest that appellant had restrictions greater than those found on a 2011 functional capacity
evaluation which recommended a sedentary level of work, which she could perform at present.
In a supplemental report dated October 17, 2016, Dr. Nutik advised that her soft tissue injuries
involving the neck and lower back caused by the April 27, 2005 employment injury should have
resolved to her preexisting chronic low back symptoms.
The Board finds that Dr. Nutik provided a comprehensive, well-rationalized opinion in
which he advised that, while it was possible that there may have been a temporary aggravation of
underlying degenerative changes about the neck and lower back caused by the April 27, 2005
employment injury, these should had resolved and were not actively aggravating at the time of
his examination. Dr. Nutik noted documentation of preexisting disc abnormality at the L5-S1.
He found no basis on which to attribute any disability or continuing residuals to the accepted
conditions. Dr. Nutik’s opinion is therefore entitled to the special weight accorded an impartial
examiner and constitutes the weight of the medical evidence.17
The medical evidence appellant submitted prior to the termination was insufficient to
overcome the special weight accorded Dr. Nutik. In reports dated July 7 and August 12, 2016,
Dr. Boucree merely described her complaints, reported MRI scan findings, and discussed his
examinations. He also provided lumbar epidural steroid injections and diagnosed lumbar
radiculopathy. Dr. Boucree did not discuss the accepted conditions or provide a cause of the
diagnosed condition.

17

See Sharyn D. Bannick, 54 ECAB 537 (2003).

8

The Board therefore concludes that Dr. Nutik’s opinion that appellant had recovered from
the accepted lumbar and neck sprains is entitled to the special weight accorded an impartial
medical examiner,18 and the additional medical evidence submitted is insufficient to overcome
the weight accorded him as an impartial medical specialist regarding whether appellant had
residuals of the accepted conditions. Moreover, none of the diagnoses of Dr. Waring,
Dr. Boucree, or Dr. Sejud have been accepted.19 OWCP therefore properly terminated
appellant’s compensation effective November 13, 2016.20
On appeal counsel questions whether Dr. Nutik was properly selected. The record
contains sufficient documentation to support that Dr. Nutik was properly selected as impartial
medical examiner. As noted,21 the record contains an OWCP ME023 and bypass logs. The
bypass logs found in the record document the reasons physicians were bypassed until Dr. Nutik
was selected. Section 3-500 of OWCP procedures provides guidance for selecting impartial
physicians.22 OWCP followed these procedures in this case and properly selected Dr. Nutik as
impartial medical examiner.23
Counsel also asserted on appeal that the SOAF was incomplete as it did not list medical
evidence subsequent to 2011. In securing the opinion of a medical specialist, Section 2.809.3 of
OWCP procedures provides that a SOAF and development questions are to be prepared by the
claims examiner for use by the physician.24 The claims examiner is required to set forth the
relevant facts of the case, including the employee’s date of injury, age, job held when injured, the
mechanism of the injury, and any conditions claimed or accepted by OWCP.25 The SOAF
provided Dr. Nutik contained all the required information. Moreover, Dr. Nutik was provided
with a complete copy of appellant’s case record. The Board finds that there was no error in the
SOAF.26
Accordingly, the Board finds that OWCP properly terminated appellant’s wage-loss
compensation and medical benefits based on the opinion of the impartial examiner, Dr. Nutik.

18

Id.

19

The Board notes that OWCP has not rendered a final decision regarding whether additional conditions should
be accepted. The Board’s jurisdiction is limited to reviewing final decisions of OWCP issued within 180 days of
filing an appeal. 20 C.F.R. §§ 501.2(c) and 501.3(e); see J.B., Docket No. 09-2191 (issued May 14, 2010).
20

Manuel Gill, 52 ECAB 282 (2001).

21

Supra note 10.

22

Supra note 4 at Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter 3.500 (May 2013).

23

Id.; J.S., Docket No. 16-1097 (issued December 5, 2016).

24

Supra note 4 at Part 2 -- Claims, Statement of Accepted Facts, Chapter 2.809.3 (September 2009).

25

Id.; see A.C., Docket No. 09-0389 (issued October 7, 2009).

26

J.S., supra note 23.

9

CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective November 13, 2016.
ORDER
IT IS HEREBY ORDERED THAT the October 27, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 1, 2017
Washington, DC

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

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

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Orleans, LA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-566
Issued: July 16, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 15, 2014 appellant, through his attorney, filed a timely appeal from a
November 29, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he developed
bilateral knee, left shoulder, arm and hand, left side of the head and right hand conditions in the
performance of duty causally related to factors of his federal employment.
On appeal, counsel contends that OWCP’s decision was contrary to fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 22, 2013 appellant, then a 44-year-old mail processing clerk, filed an
occupational disease claim (Form CA-2) alleging that he developed bilateral knee, left shoulder,
arm and hand, left side of the head and right hand conditions due to factors of his federal
employment, including continuous work on belts, throwing small parcels and pulling overloaded
wires and hampers.
In a February 5, 2013 letter, OWCP notified appellant of the deficiencies of his claim. It
afforded him 30 days to submit additional evidence and respond to its inquiries. Appellant did
not respond.
By decision dated March 27, 2013, OWCP denied appellant’s claim. It found that the
evidence failed to establish fact of injury.
On April 2, 2013 appellant, through his attorney, requested an oral hearing. He submitted
nerve conduction studies dated October 25, 2012 which verified bilateral carpal tunnel
syndrome.
In a December 21, 2011 report, Dr. Michael Acurio, a Board-certified orthopedic
surgeon, diagnosed medial and lateral meniscal tears in both knees with degenerative joint
disease. He noted that appellant was a federal employee who had a prior history of an anterior
cruciate ligament (ACL) reconstruction 21 years ago. Appellant complained of increasing pain,
popping, locking and swelling which had begun to worsen over the past several months. On
August 15, 2012 Dr. Acurio stated that appellant was driving back and forth every day from
Texarkana to Shreveport and that riding in the car had increased his discomfort. He diagnosed
medial and lateral meniscal tears in both knees with mild degenerative joint disease, right greater
than left. On August 24, 2012 Dr. Acurio performed a partial medial and lateral meniscectomy
with synovectomy on both knees. On August 29, 2012 he advised that appellant was status post
bilateral knee arthroscopy and was doing well. Appellant was to continue off work.
In a September 12, 2012 report, Dr. Acurio noted that appellant was 19 days status post
bilateral total knee arthroscopy and improving, but still had pain. Appellant needed physical
therapy and was found capable of returning to light-duty work.
On October 3, 2012 Dr. Acurio diagnosed carpal tunnel in the left upper extremity and
advised appellant to continue light-duty work.
In an October 17, 2012 report, Dr. Acurio indicated that appellant’s left knee was doing
very well and his right knee was still painful but improving. Appellant’s left hand was still numb
and he had a workup for a possible stroke. Dr. Acurio advised that appellant could continue
light-duty work.
On October 25, 2012 Dr. Acurio diagnosed bilateral carpal tunnel and found that both
wrists showed positive Phalen’s and negative Tinel’s signs. He scheduled a left carpal tunnel
release surgery for November 2, 2012.

2

A telephonic hearing was held before an OWCP hearing representative on
August 15, 2013.
Appellant submitted a September 18, 2013 report from Dr. Acurio, who reiterated the
diagnosis of bilateral carpal tunnel syndrome. Dr. Acurio stated that appellant was previously
employed at the employing establishment doing a good deal of clerking with repetitive motion
and had a sudden onset of symptoms in October 2012. He opined that appellant’s condition was
causally related to this repetitive motion at work.
On October 9, 2013 Dr. Acurio explained that appellant had a nerve conduction study,
not an electromyogram, which was positive for carpal tunnel. He stated that he “would relate
this to [appellant’s] repetitive motion work even though diabetes is known to cause a
neuropathy,” further indicating that appellant did “have an imposed diabetes.” Dr. Acurio
opined that this may have worsened appellant’s symptoms but he did not think it was the cause.
By decision dated November 29, 2013, OWCP’s hearing representative affirmed the
March 27, 2013 decision. She found that appellant did not establish fact of injury as the medical
evidence failed to establish the causal relationship between the diagnosed conditions and the
accepted employment factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, and that an injury3 was sustained in the performance of duty. These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in a claim for an
occupational disease claim, an employee must submit the following: (1) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; (2) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.5

2

Id. at §§ 8101-8193.

3

OWCP regulations define an occupational disease or illness as a condition produced by the work environment
over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
4

See O.W., Docket No. 09-2110 (issued April 22, 2010); Ellen L. Noble, 55 ECAB 530 (2004).

5

See D.R., Docket No. 09-1723 (issued May 20, 2010). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005);
Ruby I. Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).

3

Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence. The opinion of the physician must
be based on a complete factual and medical background of the employee, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the employee.6
ANALYSIS
The Board finds that appellant did not meet his burden of proof to establish that his
federal employment caused or aggravated his bilateral knee, left shoulder, arm and hand, left side
of the head or right hand conditions. Appellant submitted a statement in which he identified the
factors of employment that he believed caused the condition. In order to establish a claim that he
sustained an employment-related injury, he must also submit rationalized medical evidence
which explains how his medical conditions were caused or aggravated by the implicated
employment factors.7
Dr. Acurio diagnosed medial and lateral meniscal tears in both knees with degenerative
joint disease. He performed a bilateral knee arthroscopy on August 24, 2012. Dr. Acurio stated
that appellant was a federal employee with a 21-year history of an ACL reconstruction.
Appellant complained of increasing pain, popping, locking and swelling which had begun to
worsen. On August 15, 2012 Dr. Acurio noted that appellant was driving back and forth every
day from Texarkana to Shreveport and that riding in the car increased his discomfort. He did not
adequately address how riding in a motor vehicle for prolonged periods was competent to cause
the diagnosed meniscal tears.
On October 25, 2012 Dr. Acurio diagnosed bilateral carpal tunnel and found that both
hands showed positive Phalen’s and negative Tinel’s signs. He scheduled a left carpal tunnel
release surgery for November 2, 2012. On September 18, 2013 Dr. Acurio indicated that
appellant was previously employed at the employing establishment doing a good deal of clerking
with repetitive motion and had a sudden onset in October 2012. He opined generally that
appellant’s condition was causally related to repetitive motion at work. On October 9, 2013
Dr. Acurio stated that appellant had a nerve conduction study which was positive for carpal
tunnel. He stated that he “would relate this to [appellant’s] repetitive motion work even though
diabetes is known to cause a neuropathy,” further indicating that appellant did “have an imposed
diabetes.” Dr. Acurio opined that this may have worsened appellant’s symptoms but he did not
think it was the cause. The Board finds that he did not provide a fully rationalized medical
opinion explaining how the accepted factors of appellant’s federal employment, such as
continuous work on belts, throwing small parcels and pulling overloaded wires and hampers,
caused or aggravated his carpal tunnel conditions. Dr. Acurio’s generalized statements do not
establish causal relationship because they merely repeat appellant’s allegations and are
unsupported by adequate medical rationale explaining how appellant’s physical activity at work
6

See O.W., supra note 4.

7

See A.C., Docket No. 08-1453 (issued November 18, 2008); Donald W. Wenzel, 56 ECAB 390 (2005); Leslie C.
Moore, 52 ECAB 132 (2000).

4

caused or contributed to the diagnosed conditions.8 The Board has held that the mere fact that
appellant’s symptoms arise during a period of employment or produce symptoms revelatory of
an underlying condition does not establish a causal relationship between his condition and his
employment factors.9 Lacking thorough medical rationale on the issue of causal relationship,
Dr. Acurio’s reports are insufficient to establish that appellant sustained an employment-related
injury.
The nerve conduction studies dated October 25, 2012 do not constitute competent
medical evidence as they do not contain rationale by a physician relating appellant’s disability to
his employment.10 As such, the Board finds that he did not meet his burden of proof with these
submissions.
As appellant has not submitted any rationalized medical evidence to support his claim
that he sustained an injury causally related to the indicated employment factors, he failed to meet
his burden of proof to establish a claim.
On appeal, counsel contends that OWCP’s decision was contrary to fact and law. Based
on the findings and reasons stated above, the Board finds that his arguments are not
substantiated.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
developed bilateral knee, left shoulder, arm and hand, left side of the head and right hand
conditions in the performance of duty causally related to factors of his federal employment.

8

See K.W., Docket No. 10-98 (issued September 10, 2010).

9

See Richard B. Cissel, 32 ECAB 1910, 1917 (1981); William Nimitz, Jr., 30 ECAB 567, 570 (1979).

10

See 5 U.S.C. § 8101(2). Section 8101(2) of FECA provides as follows: “(2) ‘physician’ includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope
of their practice as defined by State law.” See also Paul Foster, 56 ECAB 208, 212 n.12 (2004); Joseph N. Fassi,
42 ECAB 677 (1991); Barbara J. Williams, 40 ECAB 649 (1989).

5

ORDER
IT IS HEREBY ORDERED THAT the November 29, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 16, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
OFFICE OF DISABILITY ADJUDICATION &
REVIEW, Mt. Pleasant, MI, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Lonnie Boylan, for the appellant
Office of Solicitor, for the Director

Docket No. 14-1921
Issued: December 1, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 4, 2014 appellant, through her representative, filed a timely appeal from an
April 8, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established permanent impairment warranting a
schedule award under 5 U.S.C. § 8107.
FACTUAL HISTORY
On January 25, 2012 appellant, then a 54-year-old legal assistant, filed an occupational
disease claim (Form CA-2) alleging that her right knee osteoarthritis was causally related to her
1

5 U.S.C. § 8101 et seq.

federal employment. On the claim form, she indicated that she had left knee replacement
surgery on January 15, 2011, and had returned to work in March 2011. Appellant stated that in
September 2011 she moved to a new seat which aggravated her already deteriorating right knee
condition. The record indicates that she underwent arthroscopic right knee surgery on
January 24, 2012. In a report of that date, Dr. Michael Austin, an osteopath, diagnosed right
knee degenerative arthritis, medial meniscus tear, and lipoma. In a March 1, 2012 statement,
appellant indicated that she had to repeatedly get up out of her seat as the office printer and fax
machines were 25 feet from her desk.
OWCP accepted the claim on April 23, 2012 for aggravation of right knee osteoarthritis
and aggravation of a right knee medial meniscus tear. In a report dated June 21, 2012,
Dr. Austin stated that appellant had patellofemoral crepitation and would perhaps need a total
joint replacement. He opined that she could work three days a week. The record indicates that
appellant returned to work at three days per week and stopped working on August 6, 2012. She
received wage-loss compensation intermittently from October 20, 2011 through
August 11, 2012. Appellant filed claims for compensation (Forms CA-7) commencing
August 12, 2012.
In a report dated July 10, 2012, Dr. Jason Cochran, an osteopath, provided a history and
results on examination. He diagnosed internal derangement with underlying end-stage
osteoarthritis. Dr. Cochran stated that it was “unclear” what had occurred at the initial injury,
but appellant likely had arthritis irritated by work duties. He stated that conservative therapy had
failed and the only option was a total joint arthroplasty. Appellant requested authorization for a
total knee arthroplasty.
Appellant was referred for a second opinion examination by Dr. Emmanuel Obianwu, a
Board-certified orthopedic surgeon. In his report dated October 8, 2012, Dr. Obianwu provided
a history and results on examination. He diagnosed right knee tricompartmental arthritis.
Dr. Obianwu opined that appellant’s employment-related aggravation had ceased, and “it
definitely would not cause an aggravation that would necessitate a right knee replacement.” He
found that, while the proposed surgery was appropriate treatment, it was for the underlying
arthritis and not related to the employment injury.
On January 2, 2013 appellant underwent a right total knee arthroplasty surgery performed
by Dr. Cochran. OWCP found a conflict existed between Dr. Cochran and Dr. Obianwu as to
whether the proposed surgery should be authorized. Appellant, with medical records and a
statement of accepted facts (SOAF), was referred to Dr. James Wessinger, a Board-certified
orthopedic surgeon. In a report dated February 19, 2013, Dr. Wessinger provided a history and
results on examination. He noted that appellant had a sedentary job and about one quarter of the
time was up and about getting files and using the copy machine. Dr. Wessinger opined that her
job did not cause, significantly aggravate or accelerate the underlying right knee arthritis that
required a total knee replacement.
In a supplemental report dated March 15, 2013, Dr. Wessinger indicated that he had
reviewed the SOAF. He stated that the severe patellofemoral arthritis was not related to
appellant’s employment, noting x-ray evidence on November 30, 2010 that showed severe
arthritis, and this was within one month of her start of employment. Dr. Wessinger found that

2

appellant’s employment did not cause, significantly aggravate or accelerate the underlying right
knee arthritis that required a total knee replacement. He opined that he agreed with Dr. Obianwu
that the employment did not cause the need for a total knee replacement, and any future
restrictions were not employment related.
By decision dated October 1, 2013, OWCP terminated compensation for wage-loss and
medical benefits. It found the weight of the evidence was represented by Dr. Wessinger.
On July 15, 2013 appellant submitted a Form CA-7 claim for a schedule award. She
submitted a June 26, 2013 report from Dr. Mitchell Pollack, a Board-certified orthopedic
surgeon, stated that he had applied Table 16-3 of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (sixth edition) for the diagnosis of total knee
arthroplasty. Dr. Pollack opined that appellant had 23 percent right leg impairment for total knee
arthroplasty under Table 16-3.
By letter dated August 8, 2013, OWCP requested that Dr. Pollack review the SOAF,
noting that the claim had been accepted for aggravation of osteoarthritis and torn medial
meniscus. It asked him to opine whether the schedule award was based on the accepted
conditions or the nonwork-related total knee arthroplasty.
In a report dated August 14, 2013, Dr. Pollack stated that he was aware that the claim was
accepted for aggravations of right knee osteoarthritis and medial meniscus tears. He stated that
the most appropriate category for a permanent impairment calculation was total knee
arthroplasty. Dr. Pollack further stated, “It is supposed that the aggravation of the preexisting
right knee osteoarthritis, for which the claim was accepted, contributed to the need for appellant
to undergo total knee arthroplasty. As [appellant] had already undergone the right total knee
arthroplasty at the time I saw her, I could not, very well, examine her for the arthritis.”
By decision dated October 4, 2013, OWCP determined that appellant was not entitled to a
schedule award. It found that the reports from Dr. Pollack were based on an impairment for a
total knee replacement, which was not employment related.
In a decision dated April 8, 2014, an OWCP hearing representative affirmed the
October 4, 2013 decision. He found that the evidence did not establish an employment-related
permanent impairment.
LEGAL PRECEDENT
5 U.S.C. § 8107 provides that, if there is permanent disability involving the loss or loss of
use of a member or function of the body, the claimant is entitled to a schedule award for the

3

permanent impairment of the scheduled member or function.2 The permanent impairment must
be causally related to an accepted employment injury.3
Neither FECA nor the regulations specify the manner in which the percentage of
impairment for a schedule award shall be determined. For consistent results and to ensure equal
justice for all claimants OWCP has adopted the A.M.A., Guides as the uniform standard
applicable to all claimants.4 For schedule awards after May 1, 2009, the impairment is evaluated
under the sixth edition.5
ANALYSIS
In the present case, appellant submitted reports dated June 26 and August 14, 2013 from
Dr. Pollack in support of his claim for a schedule award. Dr. Pollack opined that under
Table 16-3 of the A.M.A., Guides appellant had a 23 percent right leg impairment.
Table 16-3 is the knee regional grid and does provide an impairment for a total knee
replacement, with a default (grade C) impairment of 25 percent for a “good result.”6 When an
attending physician submits a report as to permanent impairment, typically the case is referred to
an OWCP medical adviser,7 but in this case it is not a question of whether the impairment is
properly described or whether Table 16-3 was properly applied. As noted above, a permanent
impairment must be causally related to an employment injury. Prior to the submission of reports
by Dr. Pollack, the medical evidence had been developed by OWCP on the issue of whether the
January 2, 2013 total knee arthroplasty surgery was causally related to federal employment.
In this regard OWCP found a conflict between attending physician, Dr. Cochran, who
performed the surgery, and Dr. Obianwu, the second opinion physician.8 The physician selected
to resolve the conflict, Dr. Wessinger, provided a rationalized medical opinion that the surgery
was not causally related to the employment injury. He found that appellant had a preexisting
osteoarthritis, and indicated that any aggravation from employment had resolved and did not
necessitate the surgery.

2

Id. at § 8107. This section enumerates specific members or functions of the body for which a schedule award is
payable and the maximum number of weeks of compensation to be paid; additional members of the body are found
at 20 C.F.R. § 10.404(a).
3

Rosa Whitfield Swain, 38 ECAB 368 (1987).

4

A. George Lampo, 45 ECAB 441 (1994).

5

FECA Bulletin No. 09-03 (March 15, 2009).

6

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

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6 (February 2013).
8

5 U.S.C. § 8123(a) provides that if there is a disagreement between an attending physician and a physician
making the examination for OWCP, a third physician is selected to resolve the conflict.

4

It is well established that when a case is referred to a referee specialist for the purpose of
resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and based on a
proper factual and medical background, must be given special weight.9 Dr. Wessinger’s opinion
was entitled to special weight in this case. Dr. Pollack did not provide an opinion on the issue,
other than note he “supposed” the surgery was related to the accepted aggravations. However,
he acknowledged he had not examined or treated appellant prior to the surgery.
As the weight of the medical evidence established that the total knee arthroplasty was not
employment related, appellant is not entitled to a schedule award for a permanent impairment
based on the surgery. OWCP properly determined that she was not entitled to a schedule award
based on the medical evidence of record.
On appeal, appellant argues that Dr. Wessinger relied on information not in the SOAF,
such as stating in his report that appellant was up getting files about one quarter of her day. The
Board notes that such a statement was not inconsistent with any evidence of record.
Dr. Wessinger discussed appellant’s job duties and there is no indication he had an inaccurate or
incomplete background for an opinion as to the January 2, 2013 surgery. Appellant also argued
that, even if the surgery was not authorized, it would not preclude entitlement to a schedule
award, but a permanent impairment results in a schedule award under FECA only if there is
some causal relationship between an employment injury and the permanent impairment.10 If
there was an aggravation of a preexisting condition that contributed to the need for surgery, then
an impairment evaluation would include any preexisting impairment.11 In this case, however, the
weight of the medical evidence did not establish that an impairment resulting from the total knee
replacement surgery was employment related. Appellant may request a schedule award based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in a permanent impairment.
CONCLUSION
The Board finds that appellant has not established that she is entitled to a schedule award
under 5 U.S.C. § 8107.

9

Harrison Combs, Jr., 45 ECAB 716, 727 (1994).

10

Supra note 3.

11

See, e.g., L.P., Docket No. 14-1394 (issued November 7, 2014).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 8, 2014 is affirmed.12
Issued: December 1, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

12

James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective November 16, 2015.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Chula Vista, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 10-2323
Issued: July 22, 2011

Case Submitted on the Record

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

JURISDICTION
On September 15, 2010 appellant filed a timely appeal from Office of Workers’
Compensation Programs’ decisions dated July 22 and September 2, 2010. Pursuant to the
Federal Employees’ Compensation Act1 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 appellant sustained an injury in the performance of duty on
June 30, 2009; and (2) whether the Office properly refused to reopen appellant’s case for
reconsideration of his claim under 5 U.S.C. § 8128.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
Appellant, a 59-year-old program manager/customs and border protection officer, filed a
claim for benefits on July 8, 2009, alleging that he experienced chest pains, shortness of breath
and severe fatigue while running uphill during a training exercise on June 30, 2009.
Appellant submitted a Form CA-16 report dated July 6, 2009 from Dr. Weilee E. Yeh, a
Board-certified family practitioner, which indicated that he experienced chest pain while running
up a hill on June 30, 2009.2 A radiology/cardiology report dated September 10, 2009 indicated
that he had symmetrical ventricles which were normal in size, shape and position, with no shift
in the midline structures, mass effect, subdural hematoma or hemorrhage. The report showed
indications of an old infarction of the anterior limb of the external capsule of the left basal
ganglia; appellant also demonstrated mild generalized cortical atrophy.
By letter dated December 10, 2009, the Office advised appellant that it required additional
factual and medical evidence to determine whether he was eligible for compensation benefits. It
asked him to submit a comprehensive medical report from his treating physician containing a
diagnosis of a condition resulting from the alleged June 30, 2009 incident, describing his
symptoms and the medical reasons for the conditions and an opinion as to whether his claimed
condition was causally related to his federal employment. The Office requested that appellant
submit the additional evidence within 30 days.
Appellant submitted a July 10, 2009 form report from Dr. Yeh, which stated findings on
examination, noted the history of injury and indicated that appellant had chest pain while running
up a hill on June 30, 2009 but did not provide a diagnosis of a condition stemming from the
June 30, 2009 work incident.3 The report indicated that he was unable to perform his usual
work.
By letter dated December 10, 2009, appellant was advised that while his claim was
initially administratively handled to pay immediate medical expenses up to a maximum of
$1,500.00 without formal adjudication, medical expenses now exceeded that amount and the
claim required formal review and adjudication.
By decision dated January 22, 2010, the Office denied appellant’s claim, finding that he
did not submit medical evidence sufficient to establish that he sustained an injury in the
performance of duty on June 30, 2009. It further found that none of the reports he submitted
contained a diagnosis of the claimed conditions.
In a February 2, 2010 report, Dr. Yeh asserted that appellant developed chest pain and
dizziness on June 30, 2009 because of appellant’s advanced age and physical condition and
because he was ordered to run up a hill without advance notice. He advised that appellant
2

On July 6, 2009 the employing establishment issued a CA-16 form for medical services, this form, however,
was not completed to authorize treatment by any specific physician or medical facility and therefore did not form a
contract for services. See Mary J. Briggs, 37 ECAB 578 (1986).
3

Under the heading “diagnosis” Dr. Yeh stated “Chest pain … ? anxiety vs. CAD [coronary artery disease].”

2

continued to have chest pain after the work incident. Dr. Yeh stated that in light of appellant’s
age and the strenuous effort required to run uphill he admitted him to the hospital on July 7, 2009
for a cardiac work up, in order to rule out cardiac disease or damage.
On February 2, 2010 appellant requested a hearing, which was held on May 6, 2010.
By decision dated July 22, 2010, an Office hearing representative affirmed the
January 22, 2010 decision.
Appellant submitted a June 30, 2009 letter to his supervisor in which he took issue with
having to undergo rigorous training exercises; e.g., running up a steep hill, without advance
notice. He stated that the training exercise posed an unnecessary risk to his health at his
advanced age and subjected him to professional embarrassment in the presence of younger
officers.
On August 6, 2010 appellant requested reconsideration.
By decision dated September 2, 2010, the Office denied appellant’s application for review
on the grounds that it neither raised substantive legal questions nor included new and relevant
evidence sufficient to require the Office to review its prior decision.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Act4 has the burden of establishing that 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 the Act, that the claim was timely filed within the applicable
time limitation period of the Act, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.5 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.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 usually rationalized medical evidence. Rationalized medical
4

5 U.S.C. §§ 8101-8193.

5

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

6

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

7

John J. Carlone, 41 ECAB 354 (1989).

8

Id. For a definition of the term “injury,” see 20 C.F.R. § 10.5(a)(14).

3

opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.9
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.10
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.11 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
ANALYSIS -- ISSUE 1
The Office accepted that appellant did run uphill on June 30, 2009 during a training
exercise. The question of whether an employment incident caused a personal injury can only be
established by probative medical evidence.12 Appellant has not submitted rationalized, probative
medical evidence to establish that the June 30, 2009 employment incident would have been
competent to cause the claimed injury.
Appellant submitted reports from Dr. Yeh. None of these reports, however, contained a
diagnosis of any medical condition or a rationalized, probative medical opinion attributing a
diagnosed condition to the June 30, 2009 work incident. Dr. Yeh supported causal relationship
with a check mark in the July 6, 2009 Form CA-16 report; however, the Board has held that
without further explanation or rationale, a checked box is not sufficient to establish causation.13
He stated on February 2, 2010 that appellant experienced chest pain and dizziness on June 30,
2009 because of his age and fitness level and because he was instructed to run up a hill with no
prior warning. Dr. Yeh stated that, given appellant’s advanced age and the stress of running
uphill, he admitted appellant to the hospital on July 7, 2009 for a cardiac checkout to rule out
cardiac disease or damage. He, however, provided no findings indicating that appellant
sustained any cardiac damage or aggravated a preexisting cardiac condition as a result of the
June 30, 2009 incident. Moreover, the September 20, 2009 radiology/cardiology report
contained no findings of cardiac injury causally related to the work incident.

9

Id.

10

See Joe T. Williams, 44 ECAB 518, 521 (1993).

11

Id.

12

Carlone, supra note 7.

13

Debra S. King, 44 ECAB 203 (1992); Salvatore Dante Roscello, 31 ECAB 247 (1979).

4

The weight of medical opinion is determined by the opportunity for and thoroughness of
examination, the accuracy and completeness of physician’s knowledge of the facts of the case,
the medical history provided, the care of analysis manifested and the medical rationale expressed
in support of stated conclusions.14 Dr. Yeh’s opinion on causal relationship is of limited
probative value in that he did not provide a diagnosis of a condition stemming from the June 30,
2009 work incident.15 He did not describe appellant’s accident in any detail or how the accident
would have been competent to cause or aggravate any injury. Moreover, Dr. Yeh’s reports are of
limited probative value for the further reason that they are generalized in nature and equivocal in
that they only noted summarily that appellant sustained chest pain, shortness of breath and
fatigue during the June 30, 2009 work incident. Therefore, appellant failed to provide a medical
report from a physician that explains how the work incident of June 30, 2009 caused or
contributed to a compensable injury or disability.
The Office advised appellant of the evidence required to establish his claim; however, he
failed to submit such evidence. Appellant did not provide a medical opinion which describes or
explains the medical process through which the June 30, 2009 work accident would have caused
the claimed injury. Accordingly, he did not establish that he sustained an injury in the
performance of duty. The Office properly denied appellant’s claim for compensation.
LEGAL PRECEDENT -- ISSUE 2
Under 20 C.F.R. § 10.606(b), a claimant may obtain review of the merits of his or her
claim by showing that the Office erroneously applied or interpreted a specific point of law; by
advancing a relevant legal argument not considered by the Office; or by submitting relevant and
pertinent evidence not previously considered by the Office.16 Evidence that repeats or duplicates
evidence already in the case record has no evidentiary value and does not constitute a basis for
reopening a case.17
ANALYSIS -- ISSUE 2
Appellant has not shown that the Office erroneously applied or interpreted a specific
point of law; he has not advanced a relevant legal argument not previously considered by the
Office; and he has not submitted relevant and pertinent evidence not previously considered by
the Office. His June 30, 2009 letter of complaint to his supervisor noted the health risks of
rigorous training exercises he undertook that date but did not contain medical opinion evidence
from a physician. The Board has held that the submission of evidence which does not address
the particular issue involved in the case does not constitute a basis for reopening the claim.18
Thus appellant did not provide any rationalized medical opinion pertinent to the relevant issue;
14

See Anna C. Leanza, 48 ECAB 115 (1996).

15

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

16

20 C.F.R. § 10.606(b)(1); see generally 5 U.S.C. § 8128(a).

17

Howard A. Williams, 45 ECAB 853 (1994).

18

See David J. McDonald, 50 ECAB 185 (1998).

5

i.e., whether appellant sustained an injury in the performance of duty on June 30, 2009. His
reconsideration request failed to show that the Office erroneously applied or interpreted a point
of law nor did it advance a point of law or fact not previously considered by the Office. The
Office did not abuse its discretion in refusing to reopen appellant’s claim for a review on the
merits.19
CONCLUSION
The Board finds that appellant has failed to establish that he sustained an injury in the
performance of duty on June 30, 2009. The Board finds that the Office properly refused to
reopen his case for reconsideration on the merits of his claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the September 2 and July 22, 2010 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: July 22, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

19

The Board notes that appellant submitted additional evidence to the record following the June 29, 2009 Office
decision. The Board’s jurisdiction is limited to a review of evidence which was before the Office at the time of its
final review. 20 C.F.R. § 501(c).

6