United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Redlands, CA, Employer
__________________________________________

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

Docket No. 09-1982
Issued: July 6, 2010

Case Submitted on the Record

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

JURISDICTION
On July 29, 2009 appellant filed a timely appeal from a February 10, 2009 merit decision
of the Office of Workers’ Compensation Programs affirming the termination of her wage-loss
compensation benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of the case.
ISSUE
The issue is whether the Office properly terminated appellant’s wage-loss compensation
benefits effective March 16, 2008.
On appeal, appellant contends that the statement of accepted facts was incorrect and
misleading as to the actual mechanism of her October 27, 2006 employment injury. She claims
that she actually fell over the nutting truck, as opposed to merely bumping into it as listed in the
statement of accepted facts.

FACTUAL HISTORY
On November 3, 2006 appellant, then a 49-year-old clerk filed a traumatic injury claim
(Form CA-1) alleging that on October 27, 2006 she fell over a nutting truck at work and jarred
her right arm. The Office accepted the claim for left ankle sprain of the deltoid ligament and
contusion, left shoulder sprain at the acromioclavicular joint and cervical, thoracic and lumbar
back sprains.1 Appellant stopped work on the day of injury. She returned to modified duty on
November 2, 2006.
In an October 31, 2006 statement, Mark Mazec, a supervisor, stated that on October 27,
2006 he and Steve Szychulda, another supervisor, observed appellant walking very slowly while
looking at papers she held. Appellant apparently bumped into a nutting truck with her shins and
had dirt marks on the front of her slacks. She kept her balance and put one foot on top of the
nutting truck to balance herself, remained motionless for approximately 5 to 10 seconds and then
brought her foot down to the floor. Mr. Mazec stated that the nutting truck did not move, even
though it did not have breaks applied or anything obstructing its path.
On November 30, 2006 Dr. Hamid Rahman, an orthopedic surgeon, opined that appellant
was totally disabled due to neck, shoulder and back conditions related to the October 27, 2006
employment injury and was unable to perform modified duty.
On January 9, 2007 appellant filed a claim for wage-loss compensation (Form CA-7) for
disability commencing December 14, 2006. On February 14, 2007 the Office placed her on the
periodic rolls.
The Office subsequently referred appellant to Dr. Thomas R. Dorsey, a Board-certified
orthopedic surgeon, for a second opinion evaluation regarding residuals or disability due to her
October 27, 2006 employment injury.
In March 7 and April 29, 2007 medical reports, Dr. Dorsey diagnosed resolved left ankle
sprain, resolved left lower extremity contusion and resolved cervical, lumbar and thoracic
musculoligamentous sprains. He further diagnosed bilateral anatomic shoulder impingement
syndrome based on an MRI scan, radiographic changes of the lumbar spine consistent with age
and mild left lower extremity radiculopathy. Dr. Dorsey found that appellant did not continue to
experience ongoing residuals causally related to the October 27, 2006 injury, which consisted of
minor sprains and contusions. He stated that the diagnostic findings were of a preexisting,
degenerative nature and there was no evidence that these conditions were aggravated by the
October 27, 2006 employment injury. Dr. Dorsey opined that appellant’s disability ended on
November 1, 2006 and that she could return to her date-of-injury position.
On May 3 and June 28, 2007 Dr. Rahman stated that he disagreed with Dr. Dorsey’s
finding that appellant’s current shoulder condition was unrelated to her October 27, 2006
1

Appellant previously filed claims for a February 1996 lower back condition under Office file number
xxxxxx378, which was accepted for a lumbar strain, and an October 3, 1997 lifting injury under Office file number
xxxxxx425, which was accepted for left rotator cuff tear and repair. She had been working modified duty due to
these prior injuries at the time of her October 27, 2006 injury.

2

employment injury. He opined that appellant’s previous employment-related injuries did not
have any relationship to her present shoulder condition and that appellant was able to work
modified duty prior to the October 27, 2006 injury. Dr. Rahman stated that appellant sustained a
bilateral shoulder impingement due to the October 27, 2006 employment injury and that she was
temporary totally disabled as a result of the injury.
On April 5, 2007 appellant underwent bilateral L4 and L5 epidural steroid injections.
She underwent a right shoulder arthroscopy and subacromial decompression on
August 21, 2007.2
The Office found a conflict in medical opinion between Dr. Rahman and Dr. Dorsey
regarding the residuals of appellant’s October 27, 2006 employment injury and continuing
disability. It referred her to Dr. J. Yogaratnam, a Board-certified orthopedic surgeon.3 The
Office provided a June 8, 2007 statement of accepted facts, which stated that on October 27,
2006, appellant bumped into a nutting truck with her shins. Appellant placed one foot on the
nutting truck for balance, remained motionless for about 5 to 10 seconds and brought her foot
down to the floor, all the time keeping her balance. The Office also advised that it accepted her
claim for left lower leg contusion, left ankle sprain, left shoulder sprain and cervical and thoracic
sprains.
In a December 28, 2007 medical report, Dr. Yogaratnam described appellant’s
occupational and medical history. Physical examination revealed limited range of motion in the
cervical, thoracic and lumbar spine and shoulders bilaterally and tenderness on palpation.
Appellant was unable to perform a heal-to-toe gait and was only able to squat up to two-thirds
the normal amount. Dr. Yogaratnam diagnosed headaches, neck, back and bilateral shoulder
pain, resolved left leg contusion and resolved left ankle sprain. He opined that appellant did not
continue to experience any residuals from her October 27, 2006 injury with total disability
ceasing on October 29, 2007 and partial disability ceasing on October 31, 2007. Dr. Yogaratnam
opined that, due to the description of the injury, appellant only sustained a bruised left shin and a
mild sprain of her left ankle, which were quickly resolved without any permanent disability. He
stated that appellant’s neck, left shoulder and thoracic spine conditions could not have been
related to the October 27, 2006 employment injury. Dr. Yogaratnam found that appellant was
not credible and that she provided false information and misled her treating physician. He
opined that appellant’s present neck and back pain were preexisting conditions associated with
degenerative cervical and lumbar disc disease. Further, appellant’s symptoms in her upper and
lower extremities were not consistent with the mechanism of injury. Dr. Yogaratnam stated that
appellant did not incur any permanent disability to her neck, shoulders, back or lower extremities
due to the October 27, 2006 injury and that she could return to her duties at the time of injury.
On February 8, 2008 the Office notified appellant of its proposal to terminate her wageloss benefits based on Dr. Yogaratnam’s findings that she was no longer disabled due to the
October 27, 2006 injury. It provided her 30 days to submit additional evidence.
2

The record reveals that appellant retired in October 2007.

3

Dr. Yogaratnam’s name is incorrectly spelled in the American Board of Medical Specialties Online Directory as
Dr. Jayaraja Yogarathnam.

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Appellant submitted a March 5, 2008 statement claiming that on October 27, 2006 she
fell over a nutting truck and placed her right arm out in front of her to break her fall. The impact
of the fall jarred her right arm and she further twisted her body, which was straddled halfway
over the truck until two supervisors helped her up. Appellant also criticized the thoroughness of
Dr. Yogaratnam’s physical examination and findings.
By decision dated March 14, 2008, the Office terminated appellant’s wage-loss benefits
effective March 16, 2008 on the grounds that she did not submit sufficient medical evidence to
alter the recommendation to terminate her compensation.
On April 8, 2008 appellant filed a request for an oral hearing before an Office hearing
representative.
An oral hearing before an Office hearing representative was held on August 26, 2008,
where appellant testified regarding the details of the October 27, 2006 employment injury.
Appellant claimed that she actually fell over the nutting truck, as opposed to simply bumping
into it, as provided in the statements of accepted facts and that no one had witnessed the injury.
By decision dated February 10, 2009, the Office hearing representative affirmed the
March 14, 2008 Office decision on the grounds that the weight of the medical evidence rested
with Dr. Yogaratnam, who found that appellant was no longer disabled due to her employment
injury.
She noted that the statement of accepted facts included a proper account of the
October 27, 2006 employment injury, thus, Dr. Yogaratnam’s opinion was based on an accurate
history.
LEGAL PRECEDENT
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.4 The Office may not terminate compensation without
establishing that disability ceased or that it was no longer related to the employment.5 The
Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.6
Section 8123(a) of the Federal Employees’ Compensation Act provides that if there is a
disagreement between the physician making the examination for the United States and the
physician of the employee, the Secretary shall appoint a third physician who shall make an
examination.7 When the case is referred to an impartial medical specialist for the purpose of
resolving a conflict in medical evidence, the opinion of such specialist will be given special

4

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Fermin G. Olascoaga, 13 ECAB 102,
104 (1961).
5

J.M., 58 ECAB 478 (2007); Anna M. Blaine, 26 ECAB 351 (1975).

6

T.P., 58 ECAB 524 (2007); Larry Warner, 43 ECAB 1027 (1992).

7

5 U.S.C. § 8123(a). See Elsie L. Price, 54 ECAB 734 (2003); Raymond J. Brown, 52 ECAB 192 (2001).

4

weight when based on a proper factual and medical background and sufficiently well rationalized
on the issue presented.8
ANALYSIS
The Office accepted that on October 27, 2006 appellant bumped into a nutting truck and
sustained a left ankle sprain of the deltoid ligament, contusion of the left lower leg, shoulder
sprain at the acromioclavicular joint and cervical, thoracic and lumbar sprains. Appellant
stopped working on November 30, 2006 and was placed on the periodic rolls on
February 14, 2007. The issue is whether the Office properly terminated appellant’s wage-loss
compensation on March 16, 2008 on the grounds that she was no longer disabled due to her
October 27, 2006 employment injury.
The Office found that a conflict of medical opinion existed between Dr. Dorsey, a second
opinion physician who found that appellant was no longer disabled due to her October 27, 2006
employment injury, and Dr. Rahman, who continued to find appellant totally disabled. It
properly referred appellant to Dr. Yogaratnam for an impartial evaluation to resolve the conflict
in medical opinion regarding her ongoing disability due to the October 27, 2006 employment
injury.9 In an accompanying statement of facts, the Office advised that on October 27, 2006
appellant bumped into a nutting truck and that her claim had been accepted for left lower leg
contusion, left ankle sprain, left shoulder sprain and cervical and thoracic sprain.10
Dr. Yogaratnam provided a December 28, 2007 opinion that appellant was no longer
disabled due to her employment injury and that her total disability had ceased on October 29,
2007 and her partial disability had ceased on October 31, 2007. He found that, based on the
description of the injury, appellant only sustained a bruised left shin and mild sprain of the left
ankle, which were quickly resolved without any permanent disability. Dr. Yogaratnam further
opined that appellant’s neck, left shoulder and thoracic spine conditions could not have been
related to the October 27, 2006 injury and that appellant was not credible and had misled her
treating physician.
The Board finds that Dr. Yogaratnam’s medical opinion is of diminished probative value
as his opinion regarding appellant’s disability was outside the framework of the statement of
accepted facts and based on an improper background. To assure that a report of a medical
specialist is based on a proper factual background, the Office provides information to the
physician through the preparation of a statement of accepted facts. The Office procedure manual
provides that when a medical specialist renders a medical opinion based on a statement of
accepted facts which is incomplete or inaccurate or does not use the statement of accepted facts

8

See Bernadine P. Taylor, 54 ECAB 342 (2003); Anna M. Delaney, 53 ECAB 384 (2002).

9

See J.M., 58 ECAB 478 (2007).

10

The Board notes that the statement of accepted facts omitted lumbar sprain, which is an accepted condition.

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as the framework in forming his or her opinion, the probative value of the opinion is seriously
diminished or negated altogether.11
Dr. Yogaratnam premised his opinion of disability on the fact that appellant only
sustained a bruised shin and mild sprain of the left ankle. He found that the October 27, 2006
employment injury could not have caused a shoulder, neck or back condition; yet the Office had
accepted appellant’s claim for shoulder, neck and back sprains as a result of that injury.
Dr. Yogaratnam was notified of these accepted conditions in the statement of accepted facts,
which he was required to accept as correct.12 Instead of providing an opinion as to whether
appellant experienced disability due to her employment injury, he found that the conditions
accepted by the Office were not employment related. As Dr. Yogaratnam’s opinion is outside
the framework of the accepted facts, it is insufficient to meet the Office’s burden of proof on the
relevant issue of whether appellant has an ongoing disability due to her employment injury.13
The Board notes appellant’s contention on appeal that the statement of accepted facts was
incorrect as to the mechanism of her injury. She claims that she actually fell over the nutting
truck as opposed to merely bumping into it. The description of the injury in the statement of
accepted facts is consistent with the evidence of record and specifically the witness statement
provided by Mr. Mazec. Appellant did not submit sufficient evidence to establish that the
October 27, 2006 employment injury occurred other than as provided in the statement. Thus, the
description of the October 27, 2006 employment injury is in accordance with the evidence of
record.14
CONCLUSION
The Board finds that the Office did not meet its burden of proof to terminate appellant’s
wage-loss compensation benefits effective March 16, 2008.

11

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(October 1990). See also Willa M. Frazier, 55 ECAB 379 (2004); Joseph A. Picca, 36 ECAB 318 (1984).
12

Id.

13

The Office did not address whether it was attempting to rescind acceptance of appellant’s claim based on
Dr. Yogaratnam’s report. It did not inform appellant that it was contemplating rescission or actually rescinding
acceptance of her neck, shoulder and back injuries in its termination decision. The Office must inform a claimant
correctly and accurately of the grounds on which a rejection rests so as to afford the claimant an opportunity to meet,
if possible, any defect appearing therein. It may not, therefore, find that residuals of an accepted injury have ceased
by a particular date when the evidence upon which the decision rests tends to support that, in fact, the injury never
occurred. See Willa M. Frazier, id.; John M. Pittman, 7 ECAB 514 (1955).
14

The Office procedure manual provides that, in preparing the statement of accepted facts, the claims examiner
must determine the facts in a case by weighing the evidence which has been developed and drawing conclusions
based on that evidence. Evidence can be classified as direct or indirect. Because direct evidence represents a firsthand account (such as a witness statement), it is ordinarily assigned greater weight than indirect evidence, or secondhand knowledge of an event. Federal (FECA) Procedure Manual, Part 2 -- Claims, Statement of Accepted Facts,
Chapter 2.809.3 (September 2009).

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ORDER
IT IS HEREBY ORDERED THAT the February 10, 2009 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: July 6, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Washington, DC, Employer
__________________________________________

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Appearances:
William J. Howard, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1708
Issued: February 19, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On June 2, 2008 appellant filed a timely appeal from July 13, 2007 and March 31, 2008
decisions of the Office of Workers’ Compensation Programs affirming the termination of her
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over
the merits of the claim.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
compensation benefits effective May 1, 2006 on the grounds that her work-related injury had
ceased without residuals; and (2) whether appellant established that she had a continuing
disability on and after May 1, 2006 related to the accepted lumbar sprain with radiculopathy.

FACTUAL HISTORY
This is the second appeal in this case. By decision dated June 11, 2003,1 the Board
reversed a June 5, 2001 decision of the Office terminating her compensation on the grounds she
refused an offer of suitable work. The Board found that there was insufficient medical evidence
to establish that the offered job was within appellant’s work restrictions. The Office had
accepted that on May 12, 1999 appellant sustained a lumbosacral strain with S1 radiculitis
persisting until August 17, 2000. The Board also set aside May 23 and September 10, 2002
decisions denying appellant’s requests for modification. The law and the facts of the case as set
forth in the Board’s prior decision are hereby incorporated by reference.2
Appellant submitted May and June 2003 reports from Dr. James E. Tozzi, an attending
Board-certified orthopedic surgeon, who noted the accepted May 12, 1999 lumbosacral strain
with S1 radiculitis.3 Dr. Tozzi opined that appellant had a chronic lumbosacral strain with leftsided L5-S1 radiculopathy, causally related to the May 12, 1999 injury.
Beginning in December 2005, the Office approved a change of physicians to
Dr. Patrick A. Noel, a Board-certified orthopedic surgeon, who submitted a December 15, 2005
report noting the accepted May 12, 1999 lumbosacral strain and L5-S1 radiculopathy. On
examination, Dr. Noel found limited lumbar motion, diminished ankle jerk reflexes bilaterally
and decreased strength in the dorsiflexors and plantar flexors bilaterally. He diagnosed a bulging
L4-5 disc with radiculopathy. In a January 17, 2006 report, Dr. Noel found appellant remained
disabled for work through February 7, 2006 due to sequelae of the accepted lumbosacral strain
with radiculopathy.
The Office obtained a second opinion from Dr. Robert F. Draper, Jr., a Board-certified
orthopedic surgeon, who submitted a February 23, 2006 report reviewing the medical record and
a statement of accepted facts provided by the Office. On examination, Dr. Draper found limited
lumbar motion and a normal neurological examination of both lower extremities. He diagnosed
a lumbosacral strain and bilateral knee, ankle and foot strains. Dr. Draper stated that there was
no condition on examination related to the May 12, 1999 lumbar strain, a soft tissue injury which
should have resolved in three to six months. He opined that appellant was at maximum medical
improvement and did not require work restrictions.

1

Docket No. 03-737 (issued June 11, 2003).

2

On remand of the case, the Office reinstated appellant’s compensation retroactive to July 6, 2001.

3

A May 29, 2003 lumbar magnetic resonance imaging (MRI) scan was negative for lumbar herniations or spinal
stenosis.

2

By notice dated March 20, 2006, the Office advised appellant that it proposed to
terminate her compensation benefits on the grounds that the accepted lumbosacral strain with
radiculopathy had ceased without residuals. It noted that Dr. Draper opined that appellant no
longer had any work-related condition. In response, appellant submitted an April 1, 2006 lumbar
MRI scan report showing mild annular bulging at L4-5 and L5-S1.
By decision dated May 1, 2006, the Office terminated appellant’s wage-loss and medical
compensation benefits effective that day on the grounds that the accepted injury had ceased. It
found that the weight of the medical evidence rested with Dr. Draper, who presented a wellrationalized opinion based on the complete medical record, finding that appellant no longer had
any objective findings related to the accepted lumbar strain with radiculopathy. The Office
found that Dr. Noel’s opinion was insufficiently rationalized to outweigh that of Dr. Draper.
In a May 7, 2006 letter, appellant requested reconsideration, contending that she
remained totally disabled for work. She submitted May 17, June 14 and July 26, 2006 reports
from Dr. Rashid M. Khan, an attending Board-certified physiatrist, who noted a history of the
May 12, 1999 injury and treatment. On examination, Dr. Khan found limited lumbar motion and
slightly decreased sensation in the left foot. He diagnosed chronic low back pain, disc bulges at
L4-5 and L5-S1 and a lumbosacral myofascial pain syndrome. Dr. Khan supported a causal
relationship between the May 12, 1999 lumbosacral strain with radiculopathy and appellant’s
ongoing condition.
By decision dated August 1, 2006, the Office denied modification on the grounds that the
additional evidence submitted was insufficiently rationalized to warrant modification of the prior
decision.
In a November 21, 2006 letter, appellant requested reconsideration. She asserted that
Dr. Draper did not consider MRI scan reports showing disc injuries. Appellant submitted copies
of Dr. Khan’s reports previously of record.
By decision dated February 2, 2007, the Office denied reconsideration on the grounds
that the evidence submitted was insufficient to warrant a merit review. It found that appellant’s
letter and the duplicate medical reports did not constitute new, relevant evidence.
In an April 25, 2007 letter, appellant requested reconsideration. She submitted additional
evidence.
Dr. Daniel R. Ignacio, a Board-certified physiatrist, submitted a March 19, 2007 report
providing a history of injury and treatment. He performed electromyography (EMG) and nerve
conduction velocity (NCV) studies showing progressive lumbar disc syndrome, chronic bilateral
L5 radiculopathy and left-sided S1 radiculopathy.
Dr. Philip B. Bovell, an attending Board-certified orthopedic surgeon, provided reports
from March 23 to June 15, 2007, noting a history of injury and treatment. He reviewed the
March 19, 2007 EMG and NCV studies. Dr. Bovell diagnosed status postchronic lumbosacral
injury, indicative of the accepted May 1999 injury.

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By decision dated July 13, 2007, the Office denied modification on the grounds that the
additional evidence submitted was insufficient to warrant modification of the prior decision. It
found that Dr. Bovell and Dr. Ignacio did not provide sufficient rationale to outweigh
Dr. Draper’s negation of causal relationship.
In a January 9, 2008 letter, appellant requested reconsideration, contending that she
remained totally disabled for work due to the accepted injuries. She submitted a September 24,
2007 report from Dr. Noel who diagnosed chronic lumbar radiculitis with a chronic lumbar strain
and continued neurologic abnormalities of the lower extremities. Dr. Noel opined that
appellant’s condition started with the accepted May 1999 injury. He submitted a November 15,
2007 follow-up report reiterating previous findings.
By decision dated March 31, 2008, the Office denied modification on the grounds that the
evidence submitted was insufficient to warrant modification of the prior decision. It found that
Dr. Noel’s reports were insufficiently rationalized to outweigh Dr. Draper’s opinion.
LEGAL PRECEDENT -- ISSUE 1
Once the Office has accepted a claim and pays compensation, it bears the burden to
justify modification or termination of benefits.4 Having determined that an employee has a
disability causally related to his or her federal employment, the Office may not terminate
compensation without establishing either that the disability has ceased or that it is no longer
related to the employment.5
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.6 To terminate authorization for medical treatment, the
Office must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.7
ANALYSIS -- ISSUE 1
The Office accepted that on March 12, 1999 appellant sustained a lumbosacral strain,
with S1 radiculitis persisting until August 17, 2000. She submitted May and June 2003 reports
from Dr. Tozzi, an attending Board-certified orthopedic surgeon, who diagnosed chronic
lumbosacral strain with left-sided L5-S1 radiculopathy, causally related to the May 12, 1999
injury.
Appellant also submitted December 15, 2005 and January 17, 2006 reports from
Dr. Noel, an attending Board-certified orthopedic surgeon, who noted the accepted lumbosacral
strain and S1 radiculopathy. Dr. Noel found neurologic abnormalities in the lower extremities,
4

Bernadine P. Taylor, 54 ECAB 342 (2003).

5

Id.

6

Roger G. Payne, 55 ECAB 535 (2004).

7

Pamela K. Guesford, 53 ECAB 726 (2002).

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including diminished ankle jerk reflexes bilaterally and diminished strength in plantar and
dorsiflexors. He found appellant disabled for work due to sequelae of the accepted injuries.
Dr. Draper, a Board-certified orthopedic surgeon and second opinion physician,
submitted a February 23, 2006 report finding no neurologic abnormalities of the lower
extremities. He diagnosed a lumbosacral strain and lower extremity strains. Dr. Draper opined
that appellant had no objective findings related to the accepted May 12, 1999 lumbosacral strain,
a soft tissue injury which should have resolved in three to six months. However, he did not
specifically address the accepted S1 radiculitis, which is a neurologic condition.
Thus, Dr. Draper found no neurologic abnormalities in the lower extremities and opined
the accepted lumbosacral strain had resolved. In contrast, Dr. Noel found objective neurologic
abnormalities in the lower extremities and opined that appellant had residuals of both the
accepted lumbosacral strain and S1 radiculopathy. The Board therefore finds a conflict of
opinion between Dr. Noel, for appellant, and Dr. Draper, for the government, regarding the
continued presence of the accepted lumbar strain and radiculopathy.
The Federal Employees’ Compensation Act, at 5 U.S.C. § 8123, states 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. But the Office did not do this. At the time of the termination, there was an
outstanding conflict of medical opinion. The termination was thus improper as the Office did not
meet its burden of proof in terminating compensation.8
As the termination of appellant’s wage-loss and medical compensation benefits is
reversed, the second issue regarding whether appellant established continuing disability for work
is moot.
CONCLUSION
The Board finds that the Office improperly terminated appellant’s wage-loss and medical
benefits as there was a conflict of medical opinion regarding the presence of continuing injuryrelated residuals. The case will be returned to the Office for payment of all appropriate
compensation. As the termination of appellant’s compensation is reversed, the second issue
regarding appellant’s establishment of continuing disability is moot.

8

Raymond W. Behrens, 50 ECAB 221 (1999).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 31, 2008 and July 13, 2007 are reversed.
Issued: February 19, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.G., Appellant
and
OFFICE OF PERSONNEL MANAGEMENT,
Washington, DC, Employer
__________________________________________

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Appearances:
Stephen J. Dunn, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1261
Issued: November 17, 2016

Case Submitted on the Record

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

JURISDICTION
On June 6, 2016 appellant, through counsel, filed a timely appeal from a January 7, 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.

ISSUES
The issues are: (1) whether appellant has established an emotional condition causally
related to compensable work factors on or after April 2011; and (2) whether appellant established
a recurrence of disability as of October 5, 2012.
FACTUAL HISTORY
Appellant initially filed an occupational disease claim (Form CA-2) on September 24,
2010, alleging that he sustained an emotional condition as a result of his federal employment as a
security specialist. That claim was assigned File No. xxxxxx798. On the claim form appellant
alleged that he had been under administrative investigation for sexual harassment in June and
July 2010, and was subject to a hostile work environment during that time. OWCP accepted the
claim for major depression, recurrent episode, on April 14, 2011. The record indicates that
appellant received wage-loss compensation from November 30 to December 18, 2010.
On February 26, 2013 appellant filed a recurrence of disability claim (Form CA-2a). The
date of the recurrence was reported as November 9, 2011, with work stoppage on
October 5, 2012. He indicated that he had returned to work in December 2010, and his condition
had worsened as he was exposed to harassment and hostility. Appellant asserted that weeks after
his return to work he was in regular contact with individuals that he was medically ordered to
stay away from.
By decision dated May 15, 2013, OWCP found that the allegations were not a recurrence
of disability, but a new claim for injury. It indicated that a new claim would be created with a
new OWCP file number.
In a June 23, 2013 letter, appellant asserted that despite a negative finding on sexual
harassment, a supervisor, R.E. continued to refer to appellant as a sexual harasser and there were
a series of events which led appellant to be “ostracized, harassed, and retaliated against.” He
asserted that he was forced to work around individuals who resumed active harassment and
hostility. According to appellant in late December 2010 he was provided a temporary
assignment where he did not have to work with two specific supervisors. Then he was told after
a few weeks that his office would be moved back to the first floor, in the vicinity of these
supervisors. Appellant alleged that he complained, but a supervisor indicated that he would do
his best to keep appellant’s work space away from R.E. and another supervisor, K.M., and he
accepted the new position in April 2011. He did have to work near the two supervisors and he
was subject to relentless harassment and hostility. Appellant indicated that he had filled an
Equal Employment Opportunity Commission complaint for discrimination, but not related to the
alleged working conditions in this claim.
An employing establishment human resources specialist submitted a July 18, 2013 letter
indicating that the employing establishment did not concur with appellant’s allegations. The
employing establishment asserted that appellant was accommodated with a temporary position
on December 9, 2010 as a management analyst, and they worked with him to identify a
permanent accommodation. The specialist reported that appellant was offered and accepted a
permanent reassignment on April 5, 2011 as safety occupational health manager, and from that

2

point forward he never requested additional accommodation or expressed any problems.
Appellant continued to work until he received a proposed suspension on April 11, 2012. The
suspension was based on conduct and evidence that he had committed a crime. Appellant was
suspended on June 3, 2012 and he filed a Merit Systems Protection Board complaint. A
settlement agreement was reached on January 24, 2013 with the suspension replaced with
resignation for medical reasons.
The record contains a September 24, 2010 request for accommodation from appellant,
who requested a temporary reassignment and change of supervision to ensure limited contact
with R.E. and K.M. In a report dated September 30, 2010, Dr. Patrick Sheehan, a Boardcertified psychiatrist, reported that appellant was being treated for major depressive disorder and
anxiety disorder, and he was unable to work as a program manager in his office. Dr. Sheehan
indicated that he was not certain how long it would take for appellant to respond to treatment. In
a brief report dated December 2, 2010, he reported that appellant should not be under the same
supervisors and environment that brought about his illness.
In an e-mail dated December 9, 2010, a supervisor wrote that, in accord with appellant’s
request for reasonable accommodation, appellant was being given a temporary detail assignment
as a management analyst with M.N., D.A., and D.H. as supervisors. With respect to the
suspension, an undated letter from the employing establishment indicated that appellant had
pleaded guilty to perjury in April 2012, and this would compromise his ability to hold a public
trust position as safety and occupational health manager. The settlement agreement is dated
January 24, 2013 and states that nothing in the agreement shall be considered as an admission by
either party.
The record contains a July 26, 2011 report from Dr. Sheehan, who provided in his history
that appellant now had a permanent reassignment as an occupational health program manager.
He indicated that appellant was concerned about an Office of the Inspector General investigation.
In a report dated August 22, 2012, Dr. Sheehan recommended appellant retire due to “hostile,
harassing work environment.”
By decision dated November 27, 2013, OWCP denied the claim for compensation. It
found no compensable work factors were established.
OWCP found the employing
establishment accommodated appellant with work restrictions in December 2010, and he was
offered and accepted a permanent reassignment in April 2011. In addition, it found the evidence
did not establish that appellant continued to be harassed by coworkers.
On December 19, 2013 appellant, through counsel, request a telephonic hearing with an
OWCP hearing representative. A hearing was held on March 21, 2014. Counsel argued that
appellant had suffered a recurrence of disability on October 5, 2012. Appellant indicated that he
did accept a position in April 2011 with the understanding that medical restrictions would be
accommodated. He asserted that he was moved to an office space in the vicinity of R.E. and
K.M., in violation of work restrictions.
Appellant submitted a March 6, 2014 report from Dr. Sheehan, who reported that after
appellant began working on the same floor as former supervisors R.E. and K.M., appellant’s

3

condition worsened due to a hostile work environment. Dr. Sheehan wrote that appellant was
temporarily disabled “due to the revocation of his psychiatric restrictions on October 5, 2012.”
By decision dated June 10, 2014, the hearing representative affirmed the November 27,
2013 decision. He found that the employing establishment had provided a temporary position in
December 2010 in accordance with instructions from Dr. Sheehan, and that there was no
evidence that job was withdrawn or restrictions violated. The hearing representative noted that
counsel argued that the case should adjudicated as a recurrence, but as a recurrence appellant
would have to show that the job was withdrawn or he was forced to work outside restrictions,
and the evidence did not support such a finding.
Appellant, through counsel, requested reconsideration on July 18, 2014. Counsel argued
that OWCP had improperly denied appellant’s claim. He submitted a statement from a
coworker, T.B., who confirmed that appellant had been moved to an office space on the first
floor in April 2011. The coworker indicated that one month later she had worked with appellant
on an e-mail to a supervisor regarding the need to be away from R.E. and K.M.
In a letter dated September 30, 2014, the employing establishment human relations
specialist again indicated that he disagreed with appellant’s allegations. The employing
establishment asserted that medical restrictions were followed, that appellant had been provided
with a complete job description of the safety occupational health manager position that included
some personal contact with individuals that may include managers and professionals from other
employing establishments. Appellant voluntarily accepted the position, completed the job duties
and never requested any additional accommodation. The employing establishment indicated that
he was placed on administrative leave in January 2012 due to misconduct and that there was no
hostile work environment.
By decision dated October 20, 2014, OWCP reviewed the case on its merits and denied
modification. It found that there was no evidence to establish a compensable work factor, and
appellant had voluntarily accepted a reassignment.
Appellant, through counsel, again requested reconsideration by letter dated
August 26, 2015. Counsel argued that there was a recurrence of disability as the light-duty job
was withdrawn. Appellant submitted a witness statement from coworker, M.R., who reported
that appellant was not happy about having to work on the same floor as R.E. and K.M. There is
also a statement from another coworker, D.B., who reported that appellant did have to attend
some meetings at which R.E. and K.M. were present.
By decision dated January 7, 2016, OWCP again reviewed the merits and denied
modification. It found that the witness statements did not establish a compensable work factor or
that the employing establishment violated work restrictions.
LEGAL PRECEDENT -- ISSUE 1
Appellant has the burden of establishing by the weight of the reliable, probative, and
substantial evidence that the condition for which he claims compensation was caused or adversely

4

affected by factors of his federal employment.3 This burden includes the submission of detailed
description of the employment factors or conditions, which he believes caused or adversely
affected the condition or conditions for which compensation is claimed.4
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness has
some connection with the employment, but nevertheless does not come within the coverage of
workers’ compensation. These injuries occur in the course of the employment and have some kind
of causal connection with it but nevertheless are not covered because they are found not to have
arisen out of the employment. Disability is not covered where it results from an employee’s
frustration over not being permitted to work in a particular environment or to hold a particular
position, or secure a promotion. On the other hand, where disability results from an employee’s
emotional reaction to his or her regular or specially assigned work duties or to a requirement
imposed by the employment, the disability comes within the coverage of FECA.5
A reaction to an administrative or personnel matter is generally not covered as it is not
related to the performance of regular or specially assigned duties.6 Nevertheless, if the evidence
demonstrates that the employing establishment erred, acted abusively or unreasonably in the
administration of a personnel matter, any physical or emotional condition arising in reaction to
such error or abuse may be covered.7
With respect to a claim based on harassment or discrimination, the Board has held that
actions of an employee’s supervisors or coworkers which the employee characterizes as
harassment may constitute a factor of employment giving rise to a compensable disability under
FECA. A claimant must, however, establish a factual basis for the claim by supporting the
allegations with probative and reliable evidence.8 An employee’s allegation that he or she was
harassed or discriminated against is not determinative of whether or not harassment occurred.9
ANALYSIS -- ISSUE 1
In the present case, appellant initially filed a recurrence of disability commencing
October 5, 2012 with respect to his accepted major depression, recurrent episode. OWCP
determined that a new claim should be developed, as appellant’s claim involved allegations that

3

Pamela R. Rice, 38 ECAB 838 (1987).

4

Roger Williams, 52 ECAB 468 (2001); Anna C. Leanza, 48 ECAB 115 (1996).

5

Lillian Cutler, 28 ECAB 125 (1976).

6

See Brian H. Derrick, 51 ECAB 417, 421 (2000).

7

Margreate Lublin, 44 ECAB 945, 956 (1993).

8

Gregory N. Waite, 46 ECAB 662 (1995); Barbara J. Nicholson, 45 ECAB 803 (1994).

9

Helen P. Allen, 47 ECAB 141 (1995).

5

he continued to suffer harassment after his return to work in December 2010. The development
of a new claim is in accord with OWCP procedures when new incidents are alleged.10
Initially, the Board finds that there are no Cutler allegations.11 Appellant did not
specifically attribute his claimed emotional condition to any regular or specially assigned work
duties.12 He attributed his emotional condition following his return to work in December 2010 to
continued harassment and hostility by the individuals involved in his accepted occupational
disease claim. Following appellant’s return to work after his accepted September 2010 claim,
the record establishes that he was accommodated with a temporary assignment in
December 2010 as a management analyst. He then accepted a permanent assignment in April
2011 as a safety health manager. Based on appellant’s own description of the events and the
evidence of record, his alleged emotional condition following his return to work clearly did not
involve his regular or specially assigned work duties.
Rather, appellant alleged that he continued to experience continued harassment and a
hostile work environment. The Board finds that he did not establish a compensable work factor.
Appellant has made general allegations of harassment and hostility after December 2010,
without providing any relevant detail.13 It is not clear what specific incidents of alleged
harassment occurred, when they occurred, or who engaged in harassment. As noted above, any
claim based on harassment must be supported by probative and reliable evidence.14 Appellant
has not provided probative evidence establishing a compensable work factor in this regard.
The record indicates that appellant was subject to disciplinary actions that included a
suspension on June 3, 2012. A disciplinary action can be a compensable work factor if there is
evidence of error or abuse by the employing establishment.15 In this case there was a settlement
agreement that rescinded the suspension and allowed appellant to resign based on medical
reasons. The January 24, 2013 agreement does not include an admission or acknowledgment of
error by the employing establishment. The mere fact that an administrative action is later
modified or rescinded does not, in and of itself, establish error or abuse.16
The Board finds that appellant has not alleged and substantiated a compensable work
factor after his return to work in December 2010. The allegations of harassment and hostility are
not detailed and not accompanied by probative evidence. In addition, there is no evidence of
10

If new work factors are alleged with respect to an emotional condition, a new claim is developed. Federal
(FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(c) (June 2013).
11

See supra note 5.

12

Id.

13

P.S., Docket No. 16-0711 (issued June 27, 2016).

14

Supra note 8.

15

See D.F., Docket No. 15-1057 (issued December 7, 2015).

16

See Michael Thomas Plante, 44 ECAB 510 (1993); Richard J. Dube, 42 ECAB 916 (1991) (reduction of a
disciplinary letter to an official discussion did not constitute abusive or erroneous action by the employing
establishment).

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error or abuse with respect to an administrative or personnel action. Since appellant has not
established a compensable work factor, the Board will not address the medical evidence.17
On appeal, counsel has reiterated the argument that appellant’s claim should be
considered a recurrence of disability. He alleged that a light-duty job was withdrawn, or that
appellant was forced to work outside restrictions. OWCP made findings with respect to this
issue and will be discussed below.
LEGAL PRECEDENT -- ISSUE 2
OWCP’s regulations define the term recurrence of disability as follows:
“Recurrence of disability means an inability to work after an employee has
returned to work, caused by a spontaneous change in a medical condition, which
had resulted from a previous injury or illness without an intervening injury or new
exposure to the work environment that caused the illness. This term also means
an inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to his or her
work-related injury or illness is withdrawn or when the physical requirements of
such an assignment are altered so that they exceed his or her established physical
limitations.”18
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence of
record establishes that he or she can perform the light-duty position, the employee has the burden
to establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and show that he or she cannot perform such light duty. As part of this burden, the
employee must show either a change in the nature and extent of the injury-related condition or a
change in the nature and extent of the light-duty requirements.19 A recurrence of disability may
be established if the light-duty job is outside the employee’s work restrictions, but there must be
sufficient evidence of record to support the finding that the job exceeded physical limitations.20
ANALYSIS -- ISSUE 2
Appellant has claimed an employment-related disability as of October 5, 2012. With
respect to a change in the nature and extent of an employment-related condition, he did not
submit probative medical evidence. Dr. Sheehan referred to appellant’s condition worsening due

17

See Margaret S. Krzycki, 43 ECAB 496 (1992).

18

20 C.F.R. § 10.5(x).

19

Albert C. Brown, 52 ECAB 152 (2000); Mary A. Howard, 45 ECAB 646 (1994); Terry R. Hedman, 38 ECAB
222 (1986).
20

See Cloteal Thomas, 43 ECAB 1093 (1992).

7

to a hostile work environment after taking the permanent job in April 2011. A recurrence of
disability does not include disability resulting from exposure to new work factors.21
The primary allegation regarding the recurrence of disability was that appellant was
placed in a light-duty job in December 2010, and that the job was withdrawn or was changed to
require work outside his established work restrictions. OWCP considered the evidence with
respect to a withdrawal of light duty or work outside restrictions, and found that it was not
established.
The Board finds that the evidence of record does not establish that a light-duty job was
withdrawn or appellant was forced to work outside restrictions.22 The employing establishment
provided a temporary position from December 2010 to April 2011 that removed R.E. and K.M.
as appellant’s supervisors and involved little contact with these supervisors. While appellant was
working in the temporary position, the employing establishment sought to find him a permanent
reassignment. The record indicates that the employing establishment then offered him a
permanent position as a safety occupational health manager. Appellant accepted this position in
April 2011. There was no withdrawal of a light-duty position in this case.
With respect to the allegation of work outside of appellant’s restrictions, no probative
evidence was presented. The record contains a very brief report from Dr. Sheehan dated
December 2, 2010, noting that appellant should not work “under” the same supervisors or in the
same “environment” that caused his condition, without further explanation. Dr. Sheehan does
not explain what specific restrictions he was recommending or the duration of such restrictions.
The evidence indicates that in April 2011, appellant did have to work on the same floor as R.E.
and K.M., and had occasional contact with these individuals at meetings, but he was not under
their supervision and there is no probative evidence that any specific work restriction was
violated. He accepted the position and performed the assigned work duties. Dr. Sheehan did not
indicate in his July 26, 2011 report that appellant was having difficulty with the job or was being
forced to work outside any restriction.
The Board finds that the evidence does not establish a recurrence of disability in this
case. It is appellant’s burden of proof, and the Board finds that he did not meet his burden of
proof in this case.
Counsel has argued on appeal that OWCP erred in converting the recurrence of disability
claim to a new occupational claim. As discussed above, when new employment factors have
been alleged, as in this case, it is appropriate to create a new claim for compensation. With
respect to the issues raised regarding the light-duty jobs performed from December 2010, OWCP
did address the relevant evidence and the Board finds no employment-related disability as of
October 5, 2012 was established.

21

Supra note 18; D.D., Docket No. 16-0701 (issued July 18, 2016).

22

Supra note 19.

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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 an emotional condition causally related
to compensable work factors on or after April 2011. The Board further finds that he has not
established a recurrence of disability as of October 5, 2012.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 7, 2016 is affirmed.
Issued: November 17, 2016
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Administratrix of the Estate of P.M.,
Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 09-1045
Issued: January 7, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 12, 2009 appellant filed a timely appeal from a January 14, 2009 decision of
the Office of Workers’ Compensation Programs affirming the denial of reimbursement for an
assisted living facility entrance fee. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether the Office abused its discretion in denying reimbursement for an
entrance fee for an assisted living facility.
FACTUAL HISTORY
On August 26, 2002 the employee, then a 69-year-old clerk, sustained a fractured left
shoulder, broken front tooth and facial and left knee contusions when she tripped and fell
forward onto the floor. She sustained a recurrence of disability on March 19, 2004. On June 14,

2004 Dr. Harry A. Doyle, a Board-certified psychiatrist and neurologist, diagnosed a major
depressive disorder and a pain disorder causally related to residuals of her August 26, 2002
employment injury. The Office accepted major depressive disorder and chronic pain syndrome
as work related. On September 21, 2004 Dr. Barbara H. Shonberg, an attending internist, stated
that the employee was permanently disabled due to her left shoulder injury. The employee
signed a residence and care agreement with an assisted living facility on September 30, 2005.
She was no longer able to live independently due to repeated falls and other difficulties with
daily living activities. Dr. Doyle and two other physicians opined that the employee required an
assisted living facility because of residuals of her accepted medical conditions. The employee
requested reimbursement for the cost of the assisted living facility.
After initially denying the employee’s request for authorization for an assisted living
facility, the Office approved reimbursement for the $1,952.50 monthly cost of the assisted living
facility on January 23, 2007 and advised her to submit a request for retroactive reimbursement
from the date she entered the assisted living facility. The employee was instructed to submit a
monthly request for reimbursement beginning with January 2007. The Office provided her with
a copy of Form OWCP-915 (Claim for Medical Reimbursement) which specified that required
documentation included proof of payment for medical services in the form of a cash receipt,
canceled check or credit card slip. The employee submitted a claim for $29,216.50 for medical
reimbursement for the assisted living facility from November 1, 2005 to December 31, 2006.
On March 28, 2007 the employee’s attorney advised the Office that she had passed away
the previous day. On March 30, 2007 the Office advised appellant that the employee’s last
medical reimbursement covered the period ending March 17, 2007. A supplemental check
would be issued covering March 18, 2007 through the date that the employee died,
March 27, 2007.1
On March 31, 2007 the employee’s attorney asked whether the Office would reimburse
the entrance fee paid to the assisted living facility.2 On June 6, 2007 the Office responded that
any deposit or up front fee paid by the employee to the assisted living facility was a matter
between her estate and the facility. It advised that authorization had been approved for medical
reimbursement only as to the monthly rent for the assisted living facility. Such authorization
ended upon the death of the employee on March 27, 2007. On November 6, 2007 the
employee’s attorney requested a final decision on the issue of reimbursement for the assisted
living facility entrance fee.
By decision dated November 20, 2007, the Office denied the employee’s claim for
reimbursement for the assisted living facility entrance fee on the grounds that there was no
provision under the Federal Employees’ Compensation Act or Office procedures for such an
expense. On November 25, 2007 the employee’s attorney requested a review of the written
record.
1

The Office had not completed processing the retroactive assisted living facility monthly services fee
reimbursement at the time of the employee’s death.
2

The September 30, 2005 agreement between the employee and the assisted living facility provided for payment
of an entrance fee in the amount of $119,385.00.

2

By decision dated January 14, 2009, an Office hearing representative affirmed the
November 20, 2007 denial of appellant’s claim for reimbursement of the assisted living facility
entrance fee.3 She found that appellant failed to meet the requirements for reimbursement of
medical services specified in 20 C.F.R. § 10.801-802. Appellant did not provide a statement
from the assisted living facility that it received payment from the employee and the amount of
payment and acceptable evidence that payment was received, such as a signed statement from
the medical services provider, a stamped receipt or a copy of a cancelled check or credit card
slip.
LEGAL PRECEDENT
Section 8103 of the Act provides that an employee injured in the performance of duty
shall be furnished with the services, appliances and supplies prescribed or recommended by a
qualified physician which are likely to cure, give relief, reduce the degree or the period of
disability or aid in lessening the amount of monthly compensation.4 To be entitled to
reimbursement for medical expenses incurred, an employee must submit proper documentation
in accordance with the requirements under Office regulations found at 20 C.F.R. § 10.802. Any
request for reimbursement must be accompanied by evidence that the provider received payment
for the service from the employee and a statement of the amount paid.5 Acceptable evidence that
payment was received includes, but is not limited to, a signed statement by the medical services
provider, a mechanical stamp or other device showing receipt of payment, a copy of the
employee’s canceled check (both front and back) or a copy of the employee’s credit card
receipt.6
ANALYSIS
Appellant requested reimbursement to the employee’s estate of the entrance fee paid to
the assisted living facility. However, she did not provide the required evidence establishing
receipt of the entrance fee by the assisted living facility and the amount paid and that this amount
represented payment for medical services. Appellant did not submit evidence such as a signed
statement by the medical services provider, a stamped receipt, a copy of the employee’s canceled
check or a copy of the employee’s credit card receipt. Therefore, the Office was within its
discretion in denying appellant’s request for reimbursement of the entrance fee.
On appeal, appellant states that the employee could no longer live independently as a
result of her accepted medical conditions, sold her home and moved into the assisted living
facility and that entrance fee paid to the facility was not refundable. The issue is whether the
Office abused its discretion in denying reimbursement of the entrance fee. As appellant did not
3

Subsequent to the January 14, 2009 Office decision, additional evidence was associated with the file. The
Board’s jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See
20 C.F.R. § 501.2(c). The Board may not consider this evidence for the first time on appeal.
4

5 U.S.C. § 8103(a).

5

20 C.F.R. § 10.802(b).

6

Id. at § 10.802(a)(2).

3

comply with the regulations regarding application for reimbursement for medical services, the
Office properly denied the application.
CONCLUSION
The Board finds that the Office did not abuse its discretion in denying medical
reimbursement for an entrance fee for an authorized assisted living facility.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 14, 2009 is affirmed.
Issued: January 7, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Dublin, GA, Employer
__________________________________________

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

Docket No. 07-1687
Issued: February 21, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 11, 2007 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs dated May 16, 2007 denying her emotional condition claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
case.
ISSUE
The issue is whether appellant met her burden of proof in establishing that she sustained
an emotional condition in the performance of duty.
FACTUAL HISTORY
On May 17, 2006 appellant, then a 47-year-old medical clerk, filed an occupational
disease claim alleging that on May 16, 2006 she first realized that her stress and anxiety was due

to the stress and pressures of performing two jobs. She stopped work on May 17, 2006 and did
not return.1
In a May 17, 2006 duty status report, Jack M. Gibbs, a physician’s assistant, diagnosed
adjustment disorder and excessive job stress, which he attributed to the pressure of performing
two jobs. He indicated that appellant was unable to perform the duties of her position due to her
medical condition.
By letter dated June 8, 2006, the Office asked appellant to submit evidence, including a
detailed description of the employment factors or incidents that she believed contributed to her
claimed illness. She was advised as to the type of medical evidence required to support her
claim.
On June 27, 2006 the Office received medical and factual information. In a February 7,
2006 memorandum, appellant notified her supervisor that the workload for Wards 19A and 19B
had “become too difficult for one clerk to maintain efficiently.” She specified instances as to
why working both wards required more than one clerk.
On May 17, 2006 Mr. Gibbs diagnosed depressive disorder and recommended that
appellant be “given a 45-day respite leave.” Appellant related having to perform “two jobs with
only four hours for each.” While performing one job, she was “getting pressure from the other
job to do things needed for that job.”
On May 17, 2006 Dr. Anurupa Damineni, an employing establishment physician,
diagnosed depression and noted that appellant related experiencing work stress.
On June 19, 2006 Mr. Gibbs repeated the diagnosis and noted that he had consulted with
Roy R. Cook, Ph.D., director, mental health.
In a May 19, 2006 duty status report (Form CA-17), Dr. Jose L. Balbona, an employing
establishment physician, diagnosed work-related stress. He stated that appellant “has been on
leave for 30 days.” In response to question 14 on the form, Dr. Balbona noted that appellant
stated that “she is unable to take the stress she describes.”
In a June 20, 2006 duty status report (Form CA-17), Dr. Sandra Souza, a treating Boardcertified family practitioner, diagnosed clinical depression which she attributed to appellant’s
work. She noted that appellant was working two jobs since August 2005. In a June 20, 2006
letter, Dr. Souza requested that appellant be excused from work for medical reasons beginning
that date.
On June 23, 2006 the employing establishment responded to appellant’s claim. Lee
Ladson, RN, nurse manager of Ward 19B, disputed appellant’s assertion that her job was
stressful. She noted that overtime was not expected and that appellant “was allowed to prioritize
her work concerning medical records with little supervisory direction required.” Ms. Ladson
1

Appellant was approved for disability retirement by the Office of Personnel Management on
November 20, 2006.

2

noted that, after appellant had indicated that her work was stressful in a February 7, 2006
memorandum, the employing establishment allowed her “to perform only critical tasks after selfprioritizing such tasks.” As to the remaining tasks of appellant’s job, she stated that “a
significant amount of clerical duties including even some of the critical tasks were performed by
nursing staff.” Ms. Ladson noted that there were staffing shortages. She related that appellant
had been issued a notice of potential disciplinary action on May 16, 2006 for rude and
disrespectful comments and for a two-hour unauthorized absence from her work.
In a June 23, 2006 memorandum, Anda Wilcher, nurse manager of Ward 19A noted that
appellant had been functioning as a medical clerk since 2001 and was not under her direct
supervision. She noted that the job was not stressful and appellant was able “to prioritize her
work concerning medical records with little supervisory direction required.” Ms. Wilcher stated
that there had been no staffing shortages or extra demands which would have affected appellant’s
workload and she was only required to work four hours in her unit.
On July 11, 2006 appellant again attributed her emotional condition to her work as a clerk
for two wards on different floors.2 She had to complete eight hours of work in four hours for
each ward and found it difficult using the stairs to go from one ward to the other. Following
hurricane Katrina, Ward 19B’s patient population increased to capacity with patients as well as
spouses being accommodated. Appellant expressed her concerns about the increased work to
Ms. Ladson and requested help. She alleged that the nurses left work for her to do the following
day that they could have done. Appellant also voiced her concerns to both Sylvia Kersey, nurse
executive, and Catherine Forrest, RN, assistant nurse director. She stated that Ms. Wilcher had
been understanding about her work concerns, but Ms. Ladson added to her stress. Appellant
alleged that Ms. Ladson verbally scolded her for taking the time books delivered to Ward 13B in
addition to the time books for wards 19A and 19B. She noted that, as she had to pass by 13B, it
saved her time by taking all the books to the other side of the hospital at one time. Appellant
then alleged that Ms. Ladson treated her as a child and frequently checked up on her. She
alleged that Ms. Ladson called her frequently while she was working on Ward 19A instead of
writing nonemergent needs in a spiral notebook that she placed at each nurses’ workstation.
Appellant had to complete charts within three days of discharge and supplies had to be entered in
the computer by noon in order to get the supplies the next day. She alleged that the employing
establishment did not provide her with adequate tools, office space, equipment or training.
Appellant first experienced anxiety on May 15, 2005 when she went to a file room. She found it
difficult to find time to go to the file room to pull charts, place items and refile the charts due to
the “nature of working two wards [four] hours a day.” On that day, Ms. Ladson was rude to
appellant when she inquired why it took her an hour and a half to work in the file room.
Appellant informed Ms. Forrest that she was experiencing stress. On May 16, 2005 Ms. Ladson
informed appellant by e-mail that she wanted to counsel her. On May 17, 2006 appellant was
taken to the employing establishment health clinic. She detailed past incidents of alleged
discrimination beginning in 1992 and ending in 2000. In 1995 appellant was harassed at work
and there were rumors that she was a bad nurse. In 2000 she alleged that a coworker yelled at
her when a tube she was using broke. Appellant alleged that coworkers used her computer to
2

Appellant submitted a letter from the Office accepting her claim for recurrent depression. The file number was
06-0724558 and the date of injury was noted as March 19, 1999.

3

surf the net and sat in her chair when she was away from her desk. She locked her computer but
was scolded for doing so. Appellant was reprimanded and suspended in January 2005 for an
incident in October 2004 when she went to the post office to mail something and was harassed
by coworkers. She filed a claim for the October 2004 incident which was denied.
In duty status reports dated July 17 and August 14, 2006, Dr. Souza noted clinical workrelated stress and emotional disorder under describing how the injury occurred. She found that
appellant was currently unable to work due to depression.
In a May 23, 2006 report, Dr. Earl N. Mullis, a surgeon, diagnosed stress and “significant
health issues that I think are triggered by her stress.” He opined that appellant’s work stress
contributed to her complaints and recommended approval of her disability retirement application.
On June 26, 2006 Dr. Olubansile A. Mimiko, a psychiatrist, diagnosed severe recurrent
depression without psychotic features and generalized anxiety disorder with panic attacks. He
noted that the precipitating event for appellant’s depression occurred in 1992 when her daughter
was molested by a patient’s relative. Dr. Mimiko stated that she broke down while on the job on
May 16, 2006 due to severe depression and anxiety. On July 10, 2006 he repeated his diagnoses.
On July 18, 2006 Dr. Souza noted that appellant was first treated for depression on
June 20, 2006. She opined that appellant had significant health issues triggered by work.
Dr. Souza supported appellant’s application for a medical disability. On September 28, 2006 she
repeated her findings.
On March 27, 2007 the Office referred appellant for a second opinion evaluation.3 On
April 20, 2007 Dr. Dinesh M. Doshi, a Board-certified psychiatrist, reviewed the statement of
accepted facts, medical history and work history. Following examination of appellant, he
diagnosed depressive disorder and generalized anxiety disorder. Dr. Doshi opined that
appellant’s emotional status was not caused by her work duties on the two wards. He noted,
however, that her depressive symptoms may have been aggravated due to work-related
conditions. Appellant also stated that she was harassed at work, which the Office did not accept.
Dr. Doshi noted that, as the alleged harassment had not been substantiated by the statement of
accepted facts, he could not “state that the diagnosed condition is caused or aggravated by the
factor of employment.” He noted that appellant’s depression began in 1992 and she had been in
treatment since then. While noting that her condition was aggravated by the accepted
employment factor, Dr. Doshi opined that any such aggravation was temporary. He noted that
she was still being treated one year following her removal from the workplace.
By decision dated May 16, 2007, the Office denied appellant’s claim on the grounds that
she failed to establish that her medical condition was causally related to the accepted
employment factor. The Office found that appellant established an increased workload as a
compensable factor. As to her allegations regarding her suspension, harassment and other
incidents, the Office found the record insufficient to establish them as compensable factors.

3

The Office accepted as a compensable factor that appellant was assigned to work on two different wards and
listed her duties and increased workload.

4

LEGAL PRECEDENT
To establish her claim that she sustained an emotional condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that she has an
emotional or psychiatric disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to her condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to her emotional condition.4
Appellant also alleged that she had been reprimanded and suspended in January 2005 for
an incident in October 2004 when she went to the post office to mail something and was
harassed by coworkers. She noted that she had filed a claim for the October 2004 incident which
was denied.
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,5 the Board
explained that there are distinctions to the type of employment situations giving rise to a
compensable emotional condition arising under the Federal Employees’ Compensation Act.6
There are situations where an injury or an illness has some connection with the employment but
nevertheless does not come within the concept or coverage under the Act.7 When an employee
experiences emotional stress in carrying out her employment duties, and the medical evidence
establishes that the disability resulted from her emotional reaction to such situation, the disability
is generally regarded as due to an injury arising out of an in the course of employment. This is
true when the employee’s disability results from her emotional reaction to a special assignment
or other requirement imposed by the employing establishment or by the nature of her work.8
There are situations where an injury or an illness has some connection with the employment but
nevertheless does not come within the concept or coverage under the Act. Where the disability
results from an employee’s emotional reaction to her regular or specially assigned duties or to a
requirement imposed by the employment, the disability comes within the coverage of the Act.9
On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or her frustration from not being permitted to work in a
particular environment or to hold a particular position.10
4

Doretha M. Belnavis, 57 ECAB ___ (Docket No. 05-1879, issued January 12, 2006); Donna Faye Cardwell, 41
ECAB 730 (1990).
5

28 ECAB 125 (1976).

6

5 U.S.C. §§ 8101-8193.

7

See Robert Breeden, 57 ECAB ___ (Docket No. 06-734, issued June 16, 2006); Anthony A. Zarcone, 44 ECAB
751 (1993).
8

Lillian Cutler, supra note 5.

9

Vitaliy Y. Matviiv, 57 ECAB ___ (Docket No. 05-1328, issued October 26, 2005).

10

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler, supra
note 5.

5

In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.11 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.12
ANALYSIS
The Board finds that appellant has failed to establish that her emotional condition was
causally related to factors of her federal employment. The Office accepted as a compensable
factor that appellant was overworked.
Appellant generally alleged that she was harassed by Ms. Ladson and by a coworker
in 1995. The harassment by Ms. Ladson included being verbally scolded for taking the time
books delivered to Ward 13B in addition to the time books for Wards 19A and 19B, being
treated as a child, and frequently being called for nonemergency needs while working on Ward
19A. Ms. Ladson also alleged frequently checking up on appellant to ensure she was where she
said she would be. The most recent incident with Ms. Ladson occurred on May 15, 2005 when
appellant went to the file room and Ms. Ladson asked why it took her an hour and half in the file
room. Appellant interpreted Ms. Ladson’s questioning of her to be rude and disrespectful. With
respect to the 1995 incident, she stated that she was harassed at work and there were rumors that
she was a bad nurse. The mere disagreement or dislike of a supervisory or management action is
not compensable without a showing through supporting evidence that the incidents or actions
complained of were unreasonable.13 A claimant’s own feeling or perception that a form of
criticism by or disagreement with a supervisor is unjustified, inconvenient or embarrassing is
self-generated and does not give rise to coverage under the Act absent evidence that the
interaction was, in fact, erroneous or abusive.14 Appellant submitted no evidence such as witness
statements to establish that she was treated in an inappropriate manner by Ms. Ladson or that she
was harassed in 1995. She has failed to establish harassment as a compensable factor of
employment.
Appellant alleged various incidents involving coworkers. In 2000 she alleged that a
coworker yelled at her when a tube she was using broke. Currently, appellant alleged that
coworkers would use her computer to surf the net and sit in her chair when she was away from
her desk so she locked her computer and was allegedly scolded for doing this. The record
11

See V.W., 58 ECAB ___ (Docket No. 07-234, issued March 22, 2007); Norma L. Blank, 43 ECAB 384 (1992).

12

L.C., 58 ECAB ___ (Docket No. 06-1263, issued May 3, 2007).

13

Judy L. Kahn, 53 ECAB 321 (2002).

14

Michael A. Deas, 53 ECAB 208 (2001).

6

contains no evidence substantiating her allegations regarding incidents with her coworkers.
Moreover, appellant did not provide specific dates as to when these alleged incidents occurred.
As she failed to submit any supporting evidence such as witness statements, she has failed to
establish a compensable factor of employment.
Next, appellant alleged that the employing establishment failed to provide her with
adequate tools, office space, equipment or sufficient training to perform her duties. She also
alleged that she was improperly reprimanded and suspended in January 2005 for an incident in
October 2004 and improperly issued a notice of potential disciplinary action on May 16, 2006.
The Board finds that these allegations concern administrative or personnel matters unrelated to
his regular or specially assigned work duties and do not fall within coverage of the Act as there is
no evidence to show that the employing establishment committed error or abuse in this case.15
Reactions to disciplinary matters, such as letters of warning or suspensions are not compensable
unless it is established that the employing establishment acted abusively in such capacity.16
There is no evidence besides appellant’s statement regarding the January 2005 reprimand and
suspension or her contention that she was provided with inadequate tools, office space,
equipment or sufficient training. Ms. Ladson noted that she issued appellant a notice of potential
disciplinary action on May 16, 2006 and that appellant has not submitted any evidence showing
how Ms. Ladson was acting abusively. With respect to the inadequate office space, tools,
training and equipment, appellant has not provided specific details showing how the employing
establishment failed to provide her with the training, tools or space required to perform her job.
She has not established a compensable factor of employment under the Act with respect to the
disciplinary actions.
As appellant established one compensable factor of employment, i.e., that she was
overworked, the medical evidence may be reviewed with respect thereto.17 The Board finds the
medical evidence of record insufficient to establish that her emotional condition was caused by
her federal employment. In various reports, Mr. Gibbs diagnosed depressive disorder and opined
that appellant was totally disabled. However, the reports of a physician’s assistant are entitled to
no weight as a physician’s assistant is not a physician as defined by section 8101(2) of the Act.18
The record also contains reports from Drs. Damineni, Balbona, Mullis, Mimiko and Souza, who
all noted appellant’s report of work stress and diagnosed depression. However, none of the
physicians addressed the accepted factor that the equipment would be unavailable. Moreover,
none of the physicians addressed the cause of appellant’s condition. As stated above, medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship.19

15

Charles D. Edwards, 55 ECAB 258 (2004).

16

Joe M. Hagewood, 56 ECAB 479 (2005).

17

See Dennis J. Balogh, 52 ECAB 232 (2001).

18

See 5 U.S.C. § 8101(2); J.M., 58 ECAB ___ (Docket No. 06-2094, issued January 30, 2007); Allen C. Hundley,
53 ECAB 551 (2002).
19

Willie M. Miller, 53 ECAB 697 (2002).

7

Dr. Doshi provided a second opinion evaluation for the Office. He reviewed the
statement of accepted facts, including the accepted employment factor, medical records and
appellant’s complaints of job-related harassment. Dr. Doshi diagnosed depression and advised
that this was not related to the accepted employment factor and noted that the alleged harassment
by her supervisor, which appellant implicated, was not substantiated by the record. The Board
has carefully reviewed his opinion and finds it to have reliability, probative value and convincing
quality with respect to his finding that appellant’s emotional condition was not causally related to
the compensable factor of employment. The Board therefore finds that appellant failed to meet
her burden of proof to establish that her emotional condition is employment related.20
CONCLUSION
The Board finds that appellant has not established that her emotional condition was
caused or aggravated by the accepted employment factor of overwork.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 16, 2007 is affirmed.
Issued: February 21, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

20

Leslie C. Moore, 52 ECAB 132 (2000).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
U.S. POSTAL SERVICE, SOUTHEASTERN
PROCESSING & DISTRUBUTION CENTER,
Southeastern, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 07-1807
Issued: January 9, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 27, 2007 appellant, through his attorney, filed a timely appeal from a
February 21, 2007 merit decision of the Office of Workers’ Compensation Programs denying his
claim for a schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has a ratable permanent impairment of the left upper
extremity.
FACTUAL HISTORY
This case is before the Board for the second time. In the first appeal, the Board affirmed
a March 4, 2005 Office decision finding that appellant did not have a ratable impairment of the

left upper extremity.1 The Board determined that Dr. David Weiss, an osteopath and appellant’s
attending physician, did not provide an impairment rating in conformance with the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (5th
ed. 2001).2 The Board found that the opinion of Dr. Steven J. Valentino, an osteopath, who
provided a second opinion examination, represented the weight of the medical evidence and
established that appellant had no impairment due to his accepted condition of left lateral
epicondylitis.3 The findings of fact and conclusions of law from the prior decision are hereby
incorporated by reference.
On January 18, 2006 Dr. Weiss reviewed Dr. Valentino’s report and maintained that it
was unclear whether he specifically evaluated wrist extension strength in finding normal strength
on examination. He noted that, in a May 31, 2001 examination, he found that appellant had
Grade 4/5 weakness on wrist extension. Dr. Weiss asserted that he measured appellant’s grip
strength three times and found that he had a right and left grip strength deficit of 10 percent. He
noted, however, that he could not combine the nine percent impairment for motor deficit and the
10 percent impairment due to loss of grip strength under the A.M.A., Guides. Dr. Weiss
concluded that appellant had either “a nine percent left upper extremity impairment rating for
[G]rade 4/5 motor strength deficit of left wrist extension, or total left upper extremity impairment
of 10 percent if we use the grip strength deficit.”
An Office medical adviser reviewed Dr. Weiss’ January 18, 2006 report. He noted that
Dr. Richard J. Mandel, a Board-certified orthopedic surgeon, Dr. Anthony Salem, a Boardcertified orthopedic surgeon, and Dr. Valentino found normal grip strength on examination. The
Office medical adviser further determined that it was inappropriate for Dr. Weiss to use Table
16-11 on page 484 of the A.M.A., Guides to determine loss of strength as appellant did not have
a peripheral nerve injury. He also found that the A.M.A., Guides required strength testing by
“two or more trained observers” for the result to be reliable. The Office medical adviser
concluded that appellant did not have a ratable upper extremity impairment based solely on the
rating by Dr. Weiss.
By decision dated February 21, 2007, the Office denied modification of its March 4, 2005
decision.

1

Mark J. Brady, Docket No. 05-1510 (issued September 16, 2005). The Office accepted that appellant sustained
left elbow lateral epicondylitis due to factors of his federal employment. On April 17, 1998 he underwent an
excision of lipoma and a lateral epicondyle release.
2

In a report dated May 31, 2001, Dr. Weiss determined that appellant had 10 percent impairment due to loss of
grip strength according to Tables 16-32 and 16-34 on page 509 of the A.M.A., Guides and 9 percent impairment for
loss of motor strength under Tables 16-11 and 16-15 on pages 484 and 492 of the A.M.A., Guides. He combined
the 9 percent loss of motor strength with the 10 percent impairment due to loss of grip strength to find 18 percent
left upper extremity impairment. In a report dated January 3, 2005, Dr. Weiss opined that it was reasonable for a
person with lateral epicondylitis to have loss of muscle and grip strength. He noted that the radial nerve traveled by
the lateral epicondyle.
3

In a report dated May 15, 2002, Dr. Valentino found that appellant had full range of motion of the upper
extremity with no loss of sensation, function, pain, ankylosis, weakness or muscle atrophy. He diagnosed resolved
left lateral epicondylitis.

2

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act,4 and its
implementing federal regulations,5 set forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss, or loss of use, of scheduled members or
functions of the body. However, the Act does not specify the manner in which the percentage of
loss shall be determined. For consistent results and to ensure equal justice under the law for all
claimants, the Office has adopted the American Medical Association, Guides to the Evaluation
of Permanent Impairment (5th ed. 2001) as the uniform standard applicable to all claimants.6
Office procedures direct the use of the fifth edition of the A.M.A., Guides, issued in 2001, for all
decisions made after February 1, 2001.7
ANALYSIS
The Office accepted appellant’s claim for lateral epicondylitis of the left elbow. On prior
appeal, the Board determined that the May 31, 2001 opinion of Dr. Weiss did not conform to the
A.M.A., Guides. In a May 31, 2001 report, Dr. Weiss found that appellant had a 9 percent
impairment of the left upper extremity due to motor strength deficit of the left wrist at the radial
nerve8 and a 10 percent impairment due to loss of grip strength,9 for a combined left upper
extremity impairment of 18 percent. In a January 3, 2005 report, Dr. Weiss noted that the radial
nerve went by the lateral epicondyle and could reasonably cause loss of muscle and grip strength.
The Board found that Dr. Weiss did not explain his impairment finding given the lack of
significant subjective and objective findings and further found that he improperly combined
impairments for motor weakness and loss of grip strength. The Board determined that the
opinion of Dr. Valentino, who provided a second opinion evaluation, established that appellant
had no upper extremity impairment. Dr. Valentino found essentially normal findings on
examination with no loss of range of motion, sensation, weakness, pain or atrophy.
In a report dated January 18, 2006, Dr. Weiss asserted that it was unclear from
Dr. Valentino’s report whether he had evaluated appellant’s wrist extension strength. He
indicated that he measured appellant’s grip strength three times in finding that he had a 10
percent impairment due to loss of grip strength. Dr. Weiss acknowledged that the A.M.A.,
Guides precludes the combination of motor deficit impairment and the impairment due to loss of
grip strength. He concluded that appellant had either a 9 percent impairment due to loss of motor
strength of the radial nerve or a 10 percent impairment due to loss of grip strength.
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

20 C.F.R. § 10.404(a).

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

8

A.M.A., Guides 484, 492, Tables 16-11, 16-15. Dr. Weiss cited to Table 16-32 rather than Table 16-15 in his
report; however, this appears to be a typographical error.
9

Id. at 509, Table 16-34.

3

Regarding grip strength, the A.M.A., Guides provides that in rare cases “if the examiner
believes the individual’s loss of strength represents an impairment factor that has not been
considered adequately by other methods in the [A.M.A.], Guides, the loss of strength may be
rated separately.10 The grip strength measurements “are usually repeated three times with each
hand at different times during the examination, and the values are recorded and later
compared.”11 While Dr. Weiss indicated that he performed the grip strength measurements three
times, his May 31, 2001 report contains only one measurement for grip strength. Further, he did
not explain why he believed that the extent of appellant’s impairment was not adequately
determined by the other methods in the A.M.A., Guides.
Dr. Weiss also found that appellant had a nine percent impairment due to loss of motor
strength of the radial nerve according to Tables 16-11 and 16-15 on pages 484 and 492 of the
A.M.A., Guides. He did not, however, identify a peripheral nerve disorder in his report. Further,
Dr. Weiss did not provide maximum value for the motor deficit of the radial nerve using Table
16-15 on page 492. Table 16-15 specifies that the maximum motor deficit for the radial nerve
with loss of triceps is 42 percent and with no loss of triceps is 35 percent.12 It is unclear whether
he found a radial nerve deficit with or without triceps loss. Dr. Weiss also did not identify the
grading classification he utilized in rating the motor impairment of the left upper extremity as
required by Table 16-11 on page 484 of the A.M.A., Guides. Additionally, as previously found
by the Board, Dr. Weiss did not explain his impairment determination in view of appellant’s
minimal subjective complaints and objective findings on examination.
An Office medical adviser reviewed the May 31, 2001, January 3, 2005 and January 18,
2006 reports of Dr. Weiss and concluded that appellant had no ratable impairment. The Board
finds that the weight of the evidence fails to establish that he has a permanent impairment of the
left upper extremity.
On appeal, appellant’s attorney contends that a conflict in medical opinion exists between
Dr. Weiss and Dr. Valentino. As discussed, however, Dr. Weiss’ impairment rating is
insufficiently explained and fails to comport with the A.M.A., Guides. Thus, his opinion is
insufficient to create a conflict in medical opinion.
CONCLUSION
The Board finds that appellant does not have a ratable permanent impairment of the left
upper extremity.

10

Id. at 508.

11

Id. at 492, Table 16-15.

12

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 21, 2007 is affirmed.
Issued: January 9, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5