United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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DEPARTMENT OF THE ARMY, CIVILIAN
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PERSONNEL ADVISORY CENTER,
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Fort Stewart, GA, Employer
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___________________________________________ )
D.M., Appellant

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

Docket No. 09-284
Issued: November 19, 2009

Submitted on the Record

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JURISDICTION
On November 10, 2008 appellant filed a timely appeal from the September 22, 2008
decision of the Office of Workers’ Compensation Programs denying his request for further merit
review of his claim. He also timely appealed the Office’s February 8, May 16 and September 4,
2008 merit decisions, which denied his claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish that he
sustained an injury in the performance of duty; and (2) whether the Office properly refused to
reopen his case for further review of the merits under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On November 6, 2007 appellant, then a 54-year-old maintenance mechanic, filed an
occupational disease claim alleging that, on November 2, 2007, he had increased work activities,

which included bending, stooping, lifting, walking and standing.1 He noted that his back would
“stiffen and cause burning in [his] legs and feet.” Appellant also alleged that doing minor work
on November 5, 2007 caused unbearable pain. He stopped work on November 6, 2007.
In a statement dated September 28, 2007, appellant alleged that his injury occurred from
October 29 to November 5, 2007 and was a recurrence of his accepted claim for a back injury
sustained in October 2002. He noted that he underwent surgery in August 2005, but it failed to
resolve pain to his back and legs. The increased physical duties of appellant’s job affected his
back with any type of repetitive bending, stooping and lifting. Appellant stated that “just
standing would stiffen and increase the pain in my back and numbness and burning into my legs
with stinging in my feet which became unbearable.” On November 2, 2007 he was tasked to
drill pilot holes into precut wood for a week. Appellant noted that, as the pile became lower, he
had to bend further down to lift the wood. On November 5, 2007 he had to cut wire and load
debris.
In a December 12, 2007 report, Dr. Wayne M. Woodbury, Board-certified in physical
medicine and rehabilitation, noted that appellant could not return to his regular duties as a
maintenance mechanic “within the next year” due to the heavy lifting demands and contorted
positions required for the position.
In a January 29, 2008 report, a nurse noted appellant’s medication and advised that he
complained of pain to the back, buttocks, back of the legs, groin and inner thighs.
By decision dated February 8, 2008, the Office denied appellant’s claim. It found that he
did not submit sufficient medical evidence to establish that his back condition was related to
accepted work-related activities.
On February 19, 2008 appellant requested reconsideration and submitted additional
evidence. In a January 29, 2008 duty status report, Dr. Woodbury indicated that appellant was
not able to return to regular duty. He advised that appellant did not know how his injury
occurred.
In a report dated February 28, 2008, Dr. Woodbury noted that appellant was seen for
follow-up of lumbago. Appellant’s pain was the same pain he had before in the lower spine and
legs but now affected the cervical spine, right arm, the medial scapular boarder to the inferior
portion of the scapula. Dr. Woodbury noted that “[p]art of the confusion stems directly from the
fact that he was returned back to work and then almost immediately had a return of pain in the
back and new symptoms in the neck.”
In a February 29, 2008 report, Dr. Louis G. Horn, a Board-certified neurosurgeon, noted
that despite returning appellant to work without restriction it did “not imply resolution of
[appellant’s] back pain.” He opined that appellant’s symptoms and inability to tolerate work

1

Appellant actually filed a recurrence claim. However, the Office treated it as a new occupational disease claim.
The record reflects that appellant has a prior claim for an injury to the back on October 23, 2002 under
File No. xxxxxx427.

2

were a result of his ongoing back problem and not a new problem. Appellant also submitted
reports from a physician’s assistant and from a nurse.
By decision dated May 16, 2008, the Office denied modification of its February 8, 2008
decision.
Appellant requested reconsideration on June 12, 2008 and submitted additional evidence
including several reports and treatment records from Dr. Woodbury. The Office also received
additional nurse’s notes from a physician’s assistant. In a July 9, 2008 report, Dr. Horn
recommended pain management.
On May 14, 2008 Dr. Woodbury noted that appellant was seen for lumbago. Appellant
had upper lumbar pain which also traveled along the medial scapular border. Dr. Woodbury
diagnosed lumbago and lumbar intervertebral disc with myelopathy. In a May 28, 2008 report,
he opined that appellant had “tried to make it very clear that [he felt] the aches and pains in the
lower back [were] stemming directly from his old prior injury.” Appellant was released to work
without restrictions. Dr. Woodbury noted that appellant’s case was closed and he was
determined to be free of his injury. Appellant injured himself at work on November 2 and 5,
2007 and had pain in new areas of the neck in addition to the lumbar region. In a June 11, 2008
report, Dr. Woodbury noted treating appellant for lumbago that he related was the “exact same
pain he had before in the lower spine and legs but now has in addition cervical pain” and pain in
the upper lumbar region. He noted that he had a “very long and detailed discussion about his
injury and how when he was returned back to work essentially this cleared out the record and
when injured the [Office] considered this to be a new injury even though it was an exacerbation
of the old injury.” Dr. Woodbury diagnosed lumbago and lumbar intervertebral disc with
myelopathy.
On July 3, 2008 appellant stated that his back failed under the strain of his position. He
submitted treatment notes dated March 4 to July 15, 2008 from Dr. Traina Pacurar, a Boardcertified physiatrist, who advised that appellant had low back pain without surgery,
hyperlipidemia, anxiety disorder, radiculopathy and neuropathy. Dr. Pacurar also diagnosed low
back pain with myelopathy.
By decision dated September 4, 2008, the Office denied modification of the May 16,
2008 decision. It advised appellant that his back condition was currently accepted under his
other File No. xxxxxx427 and open for medical care.
On September 9, 2008 appellant requested reconsideration. He contended that his
existing back condition never resolved. On August 4, 2008 Dr. Gary P. Kaufman, a Boardcertified neurological surgeon, stated that appellant requested that he “assume responsibility for
writing his medications.” Dr. Kaufman noted that he had declined to accept the patient due to
his complex medical history.
By decision dated September 22, 2008, the Office denied appellant’s request for
reconsideration without a review of the merits on the grounds that insufficient evidence was
submitted.

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LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained in
the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.3 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated upon
a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant. The medical
evidence required to establish causal relationship, generally, is rationalized medical opinion
evidence. Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by the
claimant.5
ANALYSIS -- ISSUE 1
Appellant alleged that his back condition resulted from bending, stooping, lifting,
walking and standing at work and particularly noted that his condition was due to his activities
associated with drilling pilot holes into precut wood from October 29 through
November 5, 2007. The evidence supports that he performed these duties as part of his job.
However, appellant submitted insufficient medical evidence to establish that his back condition
was caused or aggravated by these particular duties. The Office properly developed appellant’s
claim as an occupational disease claim since he attributed his condition to new employment
factors occurring over a period of more than one day.6
2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

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

5

Id.

6

20 C.F.R. § 10.5(q) (defines the term occupational disease).

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Appellant submitted reports from Dr. Horn, who recommended pain management and
opined that his condition had not resolved. Dr. Horn stated that appellant’s symptoms and
inability to tolerate work “are a result of his ongoing back problem and not those of some new
problem.” The Board does not have appellant’s prior back claim on this appeal. To the extent
that Dr. Horn was addressing the present claim, he did not provide a specific diagnosis or explain
how appellant’s back condition was caused or aggravated by the specific work factors alleged by
appellant. His reports are insufficient to establish appellant’s claim.
Dr. Woodbury opined that he had “tried to make it very clear that [he felt] the aches and
pains in the lower back [were] stemming directly from his old prior injury.” The Board notes
that the present claim concerns a new occupational disease and does not pertain to his prior back
injury claim. Furthermore, Dr. Woodbury noted that appellant injured himself at work on
November 2 and 5, 2007 and was now experiencing “pain in new novel areas of the neck in
addition to the old lumbar region.” He did not provide any further explanation to address how
these activities at work caused or aggravated a cervical or lumber condition. The Board has long
held that medical opinions not containing rationale on causal relation are entitled to little
probative value are generally insufficient to meet appellant’s burden of proof.7 On June 11, 2008
Dr. Woodbury attributed appellant’s condition to his previous claim for a back injury. He also
related that appellant “now has in addition cervical pain and he is complaining of pain in the
upper lumbar region as well.” Dr. Woodbury noted that “when he was returned back to work …
it was an exacerbation of the old injury.” This is insufficient to establish appellant’s claim as
Dr. Woodbury did not adequately explain how particular work activities, such as bending or
lifting, caused or aggravated a diagnosed medical condition upon appellant’s return to work.
Other reports submitted by Dr. Woodbury do not address causal relationship and are of limited
probative value. The reports of Dr. Pacurar are insufficient to establish the claim as the
physician did not support causal relationship.8
The record also contains reports from physician’s assistants and nurses. Section
8101(2) of the Act9 defines the term “physician” to include surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope
of their practice as defined by the applicable state law. Health care providers such as nurses,
acupuncturists, physician’s assistants and physical therapists are not physicians under the Act.
Their opinions on causal relationship do not constitute rationalized medical opinions and have no
weight or probative value.10

7

Carolyn F. Allen, 47 ECAB 240 (1995).

8

See K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 13, 2007) (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).
9

See 5 U.S.C. § 8101(2). See also Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board has held that
a medical opinion, in general, can only be given by a qualified physician).
10

Jane A. White, 34 ECAB 515, 518 (1983).

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The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.11
Neither the fact that the condition became apparent during a period of employment nor the belief
that the condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship. Causal relationship must be substantiated by reasoned medical
opinion evidence, which is appellant’s responsibility to submit.12
As there is no probative, rationalized medical evidence addressing and explaining why
appellant’s back condition was caused and/or aggravated by factors of his employment, appellant
has not met his burden of proof in establishing that he sustained a medical condition in the
performance of duty causally related to factors of employment.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of the Act,13 the Office may reopen a case for review on the merits
in accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
regulations, which provides that a claimant may obtain review of the merits if the written
application for reconsideration, including all supporting documents, sets forth arguments and
contains evidence that:
“(1) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(2) Advances a relevant legal argument not previously considered by [the
Office]; or
“(3) Constitutes relevant and pertinent new evidence not previously considered by
the [the Office].”14
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.15
ANALYSIS -- ISSUE 2
Appellant disagreed with the denial of his claim and requested reconsideration on
September 9, 2008. The underlying issue on reconsideration is medical in nature. However,
appellant did not submit any relevant or pertinent new medical evidence on the issue of whether
he sustained an injury in the performance of duty.
11

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

12

Id.

13

5 U.S.C. § 8128(a).

14

20 C.F.R. § 10.606(b).

15

Id. at § 10.608(b).

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In his September 9, 2008 request for reconsideration appellant reiterated his previous
arguments. The submission of evidence which repeats or duplicates evidence that is already in
the case record does not constitute a basis for reopening a case for merit review.16 Appellant did
not provide any relevant and pertinent new evidence. He did not allege or demonstrate that the
Office erroneously applied or interpreted a specific point of law or advance a relevant legal
argument not previously considered by the Office. Consequently, appellant is not entitled to a
review of the merits of his claim based on the first and second above-noted requirements under
section 10.606(b)(2).17 He also submitted an August 4, 2008 report from Dr. Gary Kaufman,
who stated that he declined to accept appellant as a patient. This report is not relevant or
pertinent to the issue on appeal. Dr. Kaufman did not provide any opinion regarding whether
appellant’s back condition was caused or aggravated by work factors. The submission of
evidence that does not address the particular issue involved does not constitute a basis for
reopening a case.18
Consequently, the evidence submitted by appellant on reconsideration does not satisfy
any of the three criteria, noted above, for reopening a claim for merit review. Therefore, the
Office properly denied his request for reconsideration.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained an injury in the performance of duty. The Board also finds that the Office properly
refused to reopen his case for further review of the merits of his claim under 5 U.S.C. § 8128(a).

16

Khambandith Vorapanya, 50 ECAB 490 (1999); John Polito, 50 ECAB 347 (1999); David J. McDonald,
50 ECAB 185 (1998).
17

20 C.F.R. § 10.606(b)(2).

18

Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000); Robert P.
Mitchell, 52 ECAB 116 (2000).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 22 and 4, May 16 and February 8, 2008 are affirmed.
Issued: November 19, 2009
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS BENEFITS ADMINISTRATION,
Salt Lake City, UT, Employer
__________________________________________

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Appearances:
Tammy W. Schuyler, for the appellant
Office of Solicitor, for the Director

Docket No. 12-1605
Issued: January 7, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 23, 2012 appellant, through his representative, filed a timely appeal from an
April 20, 2012 Office of Workers’ Compensation Programs’ (OWCP) decision denying his
request for reconsideration of the merits of his claim. As more than 180 days elapsed from the
date of the last merit decision of November 10, 2011 to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
only has jurisdiction over the nonmerit decision.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s claim for further
review of the merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 6, 2011 appellant, then a 57-year-old clerk, filed a traumatic injury claim (Form
CA-1) alleging injuries to his right arm and right leg while pushing a cart in the performance of
duty on March 31, 2011.
By decision dated June 16, 2011, OWCP denied the claim on the basis that the evidence
submitted was not sufficient to establish a firm medical diagnosis in connection with the claimed
incident.
On June 27, 2011 appellant, through his representative, requested reconsideration and
submitted a June 13, 2011 report by Dr. David A. McGuire, a Board-certified orthopedic
surgeon, who obtained a history that appellant injured himself on March 31, 2011 while on the
job when he was pushing a heavy file cart. He indicated that appellant had a mild stroke, which
was diagnosed by a magnetic resonance imaging scan, after the March 31, 2011 event.
Dr. McGuire diagnosed right knee medial and lateral meniscus tears and opined that the
diagnoses were related directly to the March 31, 2011 employment incident.
In a June 14, 2011 report, Dr. Loren J. Jensen, a Board-certified orthopedic surgeon,
diagnosed right shoulder impingement and opined that it was inextricably linked to appellant’s
cerebral vascular accident (CVA) or stroke. Upon examination, he found a significant restriction
of motion, in part due to impingement and part due to muscular weakness from the stroke. On
June 23, 2011 Dr. Jensen indicated that appellant was three months from his injury and stroke.
Upon examination, he found symmetric range of motion, with most of the stiffness being stroke
related, and no obvious rotator cuff weakness, though some generalized stroke weakness.
By decision dated November 10, 2011, OWCP modified the June 16, 2011 decision to
find that the evidence of record failed to establish that the March 31, 2011 incident occurred at
the time, place and in the manner alleged.
On March 20, 2012 appellant, through his representative, requested reconsideration. He
submitted medical reports from the Veterans Administration Health Center System dated
February 15 through March 2, 2012.
By decision dated April 20, 2012, OWCP denied appellant’s request for reconsideration
of the merits finding that he did not submit pertinent new and relevant evidence or show that
OWCP erroneously applied or interpreted a point of law not previously considered. It noted that
the evidence he submitted was irrelevant and dated nearly one year after the date of injury.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to a review of an OWCP decision as
a matter of right; it vests OWCP with discretionary authority to determine whether it will review

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an award for or against compensation.2 OWCP, through regulations, has imposed limitations on
the exercise of its discretionary authority under section 8128(a).3
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.4 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.5 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.6
The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record7 and the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.8
ANALYSIS
OWCP denied appellant’s claim of injury on March 31, 2011 finding that he did not
establish the claimed traumatic incident. In support of his March 20, 2012 reconsideration
request, appellant submitted medical reports from Veterans Administration Health Center
System dated February 15 through March 2, 2012. The Board finds that submission of these
documents did not require reopening appellant’s case for merit review as they failed to address
the relevant issue of whether the March 31, 2011 incident occurred at the time, place and in the
manner alleged. Therefore, they do not constitute relevant and pertinent new evidence and are
not sufficient to require OWCP to reopen the claim for consideration of the merits.
Appellant did not submit any evidence to show that OWCP erroneously applied or
interpreted a specific point of law or advanced a relevant legal argument not previously
considered by OWCP, nor did he submit any relevant and pertinent new evidence not previously

2

5 U.S.C. § 8101 et seq. Under section 8128 of FECA, the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
3

See Annette Louise, 54 ECAB 783, 789-90 (2003).

4

20 C.F.R. § 10.606(b)(3). See A.L., Docket No. 08-1730 (issued March 16, 2009).

5

20 C.F.R. § 10.607(a).

6

Id. at § 10.608(b).

7

See A.L., supra note 4. See also Eugene F. Butler, 36 ECAB 393, 398 (1984).

8

Id. See also Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

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considered. The Board finds that appellant did not meet any of the necessary requirements and is
not entitled to further merit review.9
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s claim for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the April 20, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 7, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

9

See L.H., 59 ECAB 253 (2007).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
DEPARTMENT OF VETERAN AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
CINCINNATI VA MEDICAL CENTER,
Cincinnati, OH, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1245
Issued: March 11, 2022

Case Submitted on the Record

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

JURISDICTION
On August 17, 2021 appellant, through counsel, filed a timely appeal from a June 21, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted December 4, 2018 employment incident.
FACTUAL HISTORY
On November 3, 2020 appellant, then a 41-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that on December 4, 2018 she injured her right arm when she grabbed a
patient who attempted to leave the premises while in the performance of duty. She explained that
the patient became agitated, started to swing his cane at the staff, and attempted to leave the
hospital. Appellant asserted that she grabbed him at the same time the police attempted to subdue
him by placing him on the bed which jerked her arm to the left and pulled her down with the patient
onto the bed. She noted that she initially experienced immediate pain to her wrist and arm, which
worsened with certain activities and continued days later. Appellant stopped work on
December 7, 2018.
In a November 18, 2020 development letter, OWCP notified appellant of the deficiencies
of her claim. It advised her of the type of factual and medical evidence needed and provided a
factual questionnaire for her completion. OWCP afforded appellant 30 days to respond. No
further evidence was submitted.
By decision dated December 21, 2020, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record was insufficient to establish a medical diagnosis in connection
with the accepted December 4, 2018 employment incident. It concluded, therefore, that the
requirements had not been met to establish an injury as defined by FECA.
In a December 4, 2018 report, Dr. Jason T. Hildebrant, an internist, related that appellant
was involved in a work-related altercation with a patient who was trying to leave the hospital. He
summarized her account that the patient became agitated and aggressive, and that she tried to
redirect him back to his bed while a coworker relieved him of his cane. Dr. Hildebrant noted that
appellant was unsure whether she injured her arm from being hit by the cane or by the patient.
Appellant reported having aching pain in her right forearm. Dr. Hildebrant conducted a physical
examination and diagnosed right arm pain.
A December 15, 2018 x-ray of the right wrist revealed no acute osseous injury. A right
hand x-ray of even date demonstrated no fracture or dislocation. A right forearm x-ray of even
date revealed mild degenerative changes.
In an August 31, 2020 medical report, Dr. Glen A. McClung, a Board-certified orthopedic
surgeon, noted that appellant presented with right shoulder pain after she fell on her right shoulder.
He conducted a physical examination and diagnosed a possible right shoulder partial rotator cuff
tear.
In a November 18, 2020 medical report, Dr. McClung reported that appellant sustained a
work-related injury of the right shoulder “back in December” when a patient grabbed and pulled
her arm. He noted that she reinjured her right shoulder “in April.” Dr. McClung conducted a

2

physical examination and diagnosed probable right shoulder distal clavicle osteolysis, right
shoulder impingement, and a possible partial rotator cuff tear.
A November 30, 2020 magnetic resonance imaging (MRI) scan of the right shoulder
revealed moderate-to-severe supraspinatus and mild infraspinatus tendinosis without tear as well
as mild acromioclavicular (AC) joint osteoarthritis with acromial morphology.
In a December 2, 2020 medical report, Dr. McClung conducted a physical examination and
diagnosed right shoulder impingement, AC arthrosis, and rotator cuff tendinitis.
In a December 10, 2020 form report, Dr. McClung noted that appellant’s condition began
in April 2020 and diagnosed right shoulder pain, rotator cuff tendonitis, impingement, and AC
arthrosis. He advised that she was scheduled for right shoulder surgery on December 28, 2020.
In a December 28, 2020 operative report, Dr. McClung noted that appellant underwent
surgery, including right shoulder arthroscopies with subacrominal decompression, distal clavicle
excision, and extensive debridement. He diagnosed right shoulder impingement, AC arthrosis,
bursitis, and synovitis.
In a letter dated January 12, 2021, appellant, through counsel, requested a telephonic
hearing before a representative of OWCP’s Branch of Hearings and Review. The hearing was
held on April 19, 2021.
By decision dated June 21, 2021, the hearing representative affirmed, as modified, the
December 21, 2020 decision, finding that the medical evidence submitted was sufficient to
establish a diagnosed medical condition. The claim remained denied, however, as the medical
evidence of record was insufficient to establish causal relationship between appellant’s diagnosed
conditions and the accepted December 4, 2018 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an emp loyee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 4 that an injury was sustained in the performance of duty, as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the

3

Supra note 1.

4

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).

3

employment injury. 5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time and place, and in the manner alleged. The second component is
whether the employment incident caused a personal injury and can be established only by medical
evidence.7
The medical evidence required to establish a causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 8 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specif ic employment factors
identified by the employee. 9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted December 4, 2018 employment incident.
In his November 18 2020 medical report, Dr. McClung noted that appellant sustained a
work-related injury of the right shoulder “back in December” when a patient grabbed and pulled
her arm. He also indicated that she reinjured her right shoulder “in April.” Dr. McClung diagnosed
right shoulder distal clavicle osteolysis, right shoulder impingement, and a possible partial rotator
cuff tear. While his report is generally supportive of causal relationship, he did not offer any
explanation or medical rationale as to how appellant could have developed the diagnosed right
shoulder conditions due to the accepted December 4, 2018 employment incident. The Board has
held that a report is of limited probative value regarding causal relationship if it does not contain

5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
9

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

4

medical rationale explaining how a given medical condition is related to the accepted employment
incident.10 For these reasons, this report is insufficient to establish the claim.
In his reports dated December 2, 10, and 28, 2020, Dr. McClung provided multiple
diagnoses related to appellant’s right shoulder and arm. However, he did not provide an opinion
on causal relationship. The Board has held that medical evidence that does not offer an opinion
regarding the cause of an employee’s condition is of no probative value. 11 Thus, these reports are
also insufficient to establish appellant’s claim.
In an August 31, 2020 medical report, Dr. McClung noted that appellant fell on her right
shoulder and diagnosed a possible right shoulder partial rotator cuff tear. However, he failed to
provide a firm diagnosis in connection with the accepted December 4, 2018 employment incident.
The Board has long held that a medical report lacking a firm diagnosis and a rationalized medical
opinion regarding causal relationship is of no probative value.12 Thus, this report is insufficient to
establish appellant’s claim.
Dr. Hildebrant, in his December 4, 2018 medical report, indicated that appellant was
involved in a work-related altercation with a patient who was trying to leave the hospital while
threatening staff members with his cane. He diagnosed right arm pain. However, the Board has
held that pain is a description of a symptom, not a clear diagnosis of a medical condition. 13 A
medical report lacking a firm diagnosis is of no probative value.14 This report is, therefore,
insufficient to establish a diagnosed medical condition causally related to the accepted
employment incident.
The remaining medical evidence includes radiographic studies. The Board has held,
however, that diagnostic studies, standing alone, lack probative value and are, therefore,
insufficient to establish the claim. 15

10
B.H., Docket No. 20-077 (issued October 21, 2020); see S.Y., Docket No. 20-0470 (issued July 15, 2020); T.J.,
Docket No. 19-1339 (issued March 4, 2020); Y.D., Docket No. 16-1896 (issued February 10, 2017) (finding that a
report is of limited probative value regarding causal relationship if it does not contain medical rationale describing the
relation between work factors and a diagnosed condition/disability).
11
L.T., Docket No. 20-0582 (issued November 15, 2021); A.C., Docket No. 21-0087 (issued November 9, 2021);
D.B., Docket No. 19-0514 (issued January 27, 2020); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).
12

W.G., Docket No. 20-0439 (issued July 13, 2020); R.L., Docket No. 20-0284 (issued June 30, 2020); P.C., Docket
No. 18-0167 (issued May 7, 2019).
13

C.S., Docket No. 20-1354 (issued January 29, 2021); D.R., Docket No. 18-1408 (issued March 1, 2019); D.A.,
Docket No. 18-0783 (issued November 8, 2018).
14

C.S., id.; J.P., Docket No. 20-0381 (issued July 28, 2020); R.L., Docket No. 20-0284 (issued June 30, 2020).

15

J.E., Docket No. 21-0956 (issued November 23, 2021); J.K., Docket No. 20-0591 (issued August 12, 2020); J.P.,
Docket No. 19-0129 (issued December 13, 2019).

5

As the medical evidence of record is insufficient to establish that appellant’s diagnosed
right arm condition is causally related to the accepted December 4, 2018 employment incident, the
Board finds that appellant has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted December 4, 2018 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the June 21, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 11, 2022
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.A., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
North Hollywood, CA, Employer
__________________________________________

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

Docket No. 11-508
Issued: October 5, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 28, 2011 appellant filed a timely appeal from a December 23, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are:
(1) whether OWCP properly rescinded acceptance of certain
compensable work factors, and (2) whether OWCP met its burden of proof to terminate
compensation for wage-loss and medical benefits effective April 20, 2010.
FACTUAL HISTORY
The case was before the Board on a prior appeal. In a decision dated June 25, 2007, the
Board reversed OWCP’s decisions dated April 21 and November 17, 2006 that terminated
1

5 U.S.C. § 8101 et seq.

appellant’s compensation.2 The Board noted that OWCP had prepared a statement of accepted
facts dated June 12, 1990, which accepted that “management was unresponsive in resolving
problems in a civilized manner. The claimant experienced racial discrimination as the clerical
[sic] harassed the claimant without intervention on the part of claimant’s supervisor.” It was also
accepted that appellant was singled out for counseling, excluded from unit meetings and training
assignments, given assignments not similar to other claim representatives, reprimanded in a loud
voice on May 28, 1987 and worked with a supervisor who had little knowledge of relevant
regulations arid offered little technical assistance.
The Board noted a June 20, 2005 statement of accepted facts, provided to the second
opinion psychiatrist Dr. Robert Hepps, found unsubstantiated the allegations of racial
discrimination and being singled out for counseling, without further explanation. The Board
found the June 20, 2005 statement of accepted facts did not provide an adequate background for
development of the evidence. In addition, the Board indicated that, if OWCP was rescinding
acceptance of certain compensable factors, it should issue an appropriate decision with specific
findings.
In a memorandum dated January 28, 2009, OWCP indicated that factors of employment
that had been considered compensable would be rescinded in an appropriate decision. It noted
that the 2005 statement of accepted facts would be used for a second opinion evaluation.
Appellant was referred to Dr. Alberto Lopez, a psychiatrist. In a report dated April 20, 2009,
Dr. Lopez reviewed a history of injury and results on examination. He diagnosed depressive
disorder. Dr. Lopez stated in pertinent part, “The condition related to employment, in my
opinion, no longer exists. The condition was more than 20 years ago. In the meantime there
have been many more serious problems, specifically the patient’s many medical problems, the
death of her brother in 1991, and the more recent diagnosis of bone marrow cancer. There is not
any continuing relationship between the factors of employment and any degree of current
depression which, in any event, is quite minor.” Dr. Lopez stated that appellant was not
precluded from returning to work from a psychiatric point of view, and any disability was due to
her physical problems and age, rather than the employment-related condition.
In a notice of proposed termination dated March 11, 2010, OWCP reviewed the June 12,
1990 statement of accepted facts. It found that each of the factors discussed in the 1990
statement of accepted facts were not substantiated as a compensable work factor. With respect to
an allegation of race discrimination, it found no evidence of record to substantiate the allegation.
It did find that the factors described in the 2005 statement of accepted facts were compensable:
(1) a clerk would not do tasks assigned by appellant and therefore appellant had difficulty
completing her own tasks, (2) the clerk shook her finger in appellant’s face, and (3) appellant’s
supervisor took no action with respect to the problems appellant encountered with the clerk. As
to the medical evidence, OWCP found the weight of the evidence was represented by Dr. Lopez.
In a handwritten statement dated April 6, 2010, appellant contended that she still suffered
from symptoms as a result of the treatment she received at work. She advised that she had no
emotional problems prior to encountering a hostile work environment.
2

Docket No. 07-429 (issued June 25, 2007).

2

By letter dated April 8, 2010, appellant’s representative stated that there were other
compensable work factors. He listed nine factors which he argued were compensable. The
allegations not previously addressed included being singled out for an assignment that combined
into one unit work that had previously been performed by two to four other employees, being
given a detail in Watts where she trained employees and helped that office improve its statistical
standing, and a supervisor allowing other employees to use appellant’s personal identification
number on input documents, and then charging her with their errors.
By decision dated April 20, 2010, OWCP finalized the termination and rescission of
compensable work factors. It reviewed each of the allegations raised in the April 8, 2010 letter
and found there were no additional compensable work factors.
Appellant requested a hearing before an OWCP hearing representative, which was held
on October 7, 2010. On November 9, 2010 appellant submitted medical evidence. In a report
dated October 8, 2010, a Dr. Robert Fusco indicated that appellant was upset over the
termination of her compensation benefits. He diagnosed major depression, recurrent.
By decision dated December 23, 2010, an OWCP hearing representative affirmed the
April 20, 2010 decision. The hearing representative found the weight of the evidence was
represented by Dr. Lopez.
LEGAL PRECEDENT -- ISSUE 1
The Board has upheld OWCP’s authority to reopen a claim at any time on its own motion
under 5 U.S.C. § 8128 and, where supported by the evidence, set aside or modify a prior decision
and issue a new decision.3 The Board has noted, however, that the power to annul an award is
not an arbitrary one and that an award for compensation can only be set aside in the manner
provided by the compensation statute.4 OWCP has the burden of proof to adjust or modify
entitlement to compensation.5 In establishing that its prior acceptance was erroneous, OWCP is
required to provide a clear explanation of its rationale for rescission.6
With respect to a claim based on harassment or discrimination, a claimant must establish
a factual basis for the claim by supporting the allegations with probative and reliable evidence.7
An employee’s allegation that he or she was harassed or discriminated against is not
determinative of whether or not discrimination occurred.8 It is well established that
administrative or personnel matters, although generally related to employment, are primarily

3

Eli Jacobs, 32 ECAB 1147 (1981).

4

Doris J. Wright, 49 ECAB 230 (1997); Shelby J. Rycroft, 44 ECAB 795 (1993).

5

See V.C., 59 ECAB 137 (2007).

6

Belinda R. Darville, 54 ECAB 656 (2003).

7

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

8

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

3

administrative functions of the employer rather than duties of the employee.9 The Board has also
found, however, that an administrative or personnel matter may be a factor of employment where
the evidence discloses error or abuse by the employing establishment.10 In determining whether
the employing establishment erred or acted abusively, the Board has examined whether the
employing establishment acted reasonably.11
ANALYSIS -- ISSUE 1
In this case, OWCP did not rescind acceptance of the claim itself, but rescinded
acceptance of certain work factors that it had previously indicated were compensable work
factors. It is important to clarify which incidents are compensable work factors under FECA, as
medical evidence must be based on a proper understanding of the work factors that may be
considered as contributing to an employment-related condition.
The March 11, 2010 notice and April 20, 2010 decision do provide a clear explanation as
to why allegations that were found to be compensable in the 1990 statement of accepted facts are
not supported by the evidence of record. In the March 11, 2010 notice of proposed termination,
OWCP reviewed 12 specific allegations that had been included in the 1990 statement of accepted
facts, including a claim of racial discrimination, being singled out for counseling, criticisms of
management, administrative matters such as performance appraisals, disciplinary actions and
exclusion from training assignments. As OWCP explained, none of these allegations are
supported by probative evidence of record. Appellant had filed a complaint of discrimination
based on race before the Equal Employment Opportunity Commission, but the only evidence of
record found the allegations were not substantiated by the record. There was no probative
evidence establishing error or abuse regarding any reprimands, performance appraisals or other
administrative matters alleged. The Board finds no probative evidence to substantiate a
compensable work factor with respect to the allegations discussed in the 1990 statement of
accepted facts.
OWCP properly rescinded acceptance of these factors and explained its
findings.
OWCP did find that there were three compensable work factors, as noted in the 2005
statement of accepted facts. Appellant has not established any additional compensable work
factors. The Board notes appellant raised additional allegations in an April 8, 2010 letter. There
is an allegation of overwork, but this must be supported by the evidence of record.12 Appellant
did not submit any probative evidence establishing the allegation as compensable. There are
additional allegations that are not accompanied by a detailed statement or evidence. For
example, appellant alleged she was given a detail where she trained employees in 1984 and
1985, and the employing establishment improved its statistical standing. It is not clear whether
appellant was alleging administrative error or how this contributed to an emotional condition,
and no evidence was submitted substantiating a compensable work factor. She alleged error
9

Anne L. Livermore, 46 ECAB 425 (1995); Richard J. Dube, 42 ECAB 916 (1991).

10

See Michael Thomas Plante, 44 ECAB 510 (1993); Kathleen D. Walker, 42 ECAB 603 (1991).

11

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

12

Bobbie D. Daly, 53 ECAB 691 (2002).

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regarding use of PIN numbers, but did not provide a detailed discussion of this incident or
evidence substantiating the allegation of error. The evidence of record did not establish any
additional compensable work factors.
LEGAL PRECEDENT -- ISSUE 2
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation. After it has been determined that an employee has disability causally related to
his employment, OWCP may not terminate compensation without establishing that the disability
had ceased or that it was no longer related to the employment.13
ANALYSIS -- ISSUE 2
OWCP terminated compensation based on the report from the second opinion
psychiatrist, Dr. Lopez. In his April 28, 2009 report, Dr. Lopez provided a history and reviewed
the evidence of record. An important issue is whether he had an accurate background on which
to base his opinion. As the Board noted in its prior decision, the 2005 statement of accepted
facts was inadequate at that time, since OWCP had not explained the inconsistency between the
2005 and 1990 accepted facts in the case. The subsequent development of the case, as discussed
above, indicated that the only accepted substantiated compensable work factors were the factors
outlined in the 2005 statement of accepted facts: (1) a clerk would not do tasks assigned by
appellant and therefore appellant had difficulty completing her own tasks, (2) the clerk shook her
finger in appellant’s face, and (3) appellant’s supervisor took no action with respect to the
problems appellant encountered with the clerk. The compensable factors were provided to
Dr. Lopez and established a factual background regarding work factors. Dr. Lopez provided a
rationalized medical opinion that appellant’s employment-related condition had ceased. He
noted the time elapsed from the exposure to the employment factors and the subsequent
nonemployment-related physical conditions and psychological factors. Dr. Lopez provided a
rationalized medical opinion based on a complete background.
The record does not contain a probative medical opinion establishing a continuing
employment-related condition. The Board finds the weight of the evidence is represented by
Dr. Lopez.
On appeal appellant argues that the rescission and termination of benefits was wrongful
as OWCP waited 23 years and then reviewed the file in a manner that failed to provide him due
process. It is well established that OWCP may review a case on its own motion,14 and in this
case did provide appellant notice of termination and an opportunity to respond. Appellant stated
that she was of advanced age and should not be brushed aside because OWCP lost or destroyed
part of the record. There was no indication that any relevant evidence had been lost or
destroyed. The record did not contain probative evidence with respect to the establishment of
compensable work factors alleged by appellant. Appellant again stated that the factors listed in

13

Elaine Sneed, 56 ECAB 373 (2005); Patricia A. Keller, 45 ECAB 278 (1993); 20 C.F.R. § 10.503.

14

5 U.S.C. § 8128(a).

5

the April 8, 2010 letter were compensable work factors, but as the Board noted above, no
probative evidence was provided substantiating additional compensable work factors.
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 OWCP properly rescinded acceptance of certain compensable work
factors. The Board further finds OWCP met its burden of proof to terminate compensation as of
April 20, 2010.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 23, 2010 is affirmed.
Issued: October 5, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 08-560
Issued: June 20, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 18, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated September 20, 2007, denying her claim for
compensation. 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 established a back condition causally related to factors
of her federal employment.
FACTUAL HISTORY
On August 20, 2004 appellant, then a 36-year-old processing clerk, filed an occupational
disease claim (Form CA-2) alleging that she sustained a lumbar herniated disc as a result of her
federal employment. She indicated on the claim form that she was lifting, bending and twisting
during the Christmas mail season and in October and November 2003 at the flat sorting machine

(FSM). The reverse of the claim form indicated that appellant had been working light duty since
December 2003. Appellant first became aware of an employment-related condition on
February 18, 1999.
On September 27, 2004 appellant stated that she aggravated her back at work in
December 1998 and reported it to her supervisor. She indicated that she was diagnosed with a
herniated disc but no claim form was filed. Appellant reported she continued to have back pain.
Appellant submitted an August 19, 2004 report from Dr. Jessica Seematter, a chiropractor, who
recommended that she not work on an FSM due to her chronic L5-S1 disc problem.
Dr. Seematter noted that when appellant was not working on the FSM, her spine would show
occasional misalignments that are correctable with chiropractic adjusting and ergonomic
changes. The record also contains reports from a physician commencing November 24, 2003
recommending light duty.1
By decision dated November 23, 2004, the Office denied appellant’s claim for
compensation. The Office found the medical evidence was insufficient to establish the claim.
Appellant requested reconsideration and submitted treatment notes from Dr. Bendt
Peterson, III, an orthopedic surgeon. In a September 21, 2004 note, Dr. Peterson indicated that
appellant was seen six years earlier for an L5-S1 herniated disc. On January 20, 2005
Dr. Peterson discussed the results of a functional capacity evaluation and indicated that appellant
was restricted to 25 pounds lifting infrequently. In an April 27, 2005 statement, appellant
reported she had been lifting heavy sacks during Christmas 1998 and was treated by Dr. Peterson
on February 18, 1999. Appellant referred to another OWCP File No. “where recently it
reaggravated my injury again.”
In a decision dated June 17, 2005, the Office denied modification of the November 23,
2004 decision, finding the medical evidence was insufficient to establish the claim.
Appellant again requested reconsideration of her claim. In a report dated March 10,
2006, Dr. John Semon, an orthopedic surgeon, reported appellant had a long history of back pain
which she stated began after a work-related injury in December 1998. He diagnosed acute
cervical strain, chronic low back pain syndrome and probable anxiety. In a report dated June 7,
2005, Dr. Seematter recommended that appellant have a back supported chair at work.
By decision dated August 14, 2006, the Office denied modification of the June 17, 2005
decision based on the lack of probative medical evidence.
Appellant requested reconsideration on August 13, 2007. She submitted an August 10,
2007 report from Dr. Daniel Koch, a psychologist, who stated that he initially treated appellant
on June 24, 2005 for complaints of stress and depression. He reviewed appellant’s medical
history and stated that she was a chronic pain patient. Dr. Koch stated that appellant had a
herniated disc and over time was apparently developing cervical strain problems as well.

1

The signature of the physician is illegible.

2

In a decision dated September 20, 2007, the Office denied modification of the August 14,
2006 decision as the medical evidence was insufficient to establish the claim.
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of her claim by the weight of the reliable, probative
and substantial evidence, including that an injury was sustained in the performance of duty as
alleged and that any specific condition or disability claimed is causally related to the
employment injury.3
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
and (3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant.4
Causal relationship is a medical question that can generally be resolved only by
rationalized medical opinion evidence.5 A physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors must be based on a complete factual and medical background of the claimant.6
Additionally, in order to be considered rationalized, the opinion must be expressed in terms of a
reasonable degree of medical certainty and must be supported by medical rationale, explaining
the nature of the relationship between the diagnosed condition and appellant’s specific
employment factors.7
ANALYSIS
Appellant has identified activities in her federal employment such as lifting, bending,
twisting, pushing and reaching as contributing to her back condition. It noted that she originally
injured her back while lifting in December 1998, resulting in an L5-S1 herniated disc, with
subsequent aggravations caused by her continuing work activities.8 The burden of proof is on
appellant to submit medical evidence that contains a complete and accurate background, a

2

5 U.S.C. §§ 8101-8193.

3

20 C.F.R. § 10.115(e), (f) (2005); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

4

Ruby I. Fish, 46 ECAB 276, 279 (1994).

5

See Robert G. Morris, 48 ECAB 238 (1996).

6

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

7

Id.

8

Appellant referred to another claim filed, but the nature of the other claim is not clear from the record.

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diagnosis and a rationalized medical opinion on causal relationship between the diagnosed
condition and the identified employment factors.
The medical evidence of record is not sufficient to meet appellant’s burden of proof.
Neither Dr. Peterson, Dr. Semon, Dr. Koch nor any physician of record provides a rationalized
medical opinion on the issue of causal relation. Dr. Peterson noted in September 2004 that he
had treated appellant six years prior for a herniated disc, without discussing causal relationship
with employment. As to work restrictions in 2005, he provided no diagnosis or opinion as to
causal relationship with the identified employment factors. Dr. Koch reported appellant’s history
showed chronic back pain, without discussing the relevant orthopedic issues. None of the
physicians provides a complete history discussing appellant’s employment duties or provides an
opinion with supporting medical rationale as to how her work caused or contributed to her
claimed condition. The Board accordingly finds that appellant did not meet her burden of proof
and the Office properly denied the claim for compensation.
CONCLUSION
Appellant did not meet her burden of proof to establish a back condition causally related
to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 20, 2007 is affirmed.
Issued: June 20, 2008
Washington, DC

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

David S. Gerson, 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
__________________________________________
S.Z., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Chicago, IL, Employer
__________________________________________

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

Docket No. 08-2082
Issued: April 6, 2009

Case Submitted on the Record

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

JURISDICTION
On July 21, 2008 appellant, through his representative, filed a timely appeal from the
June 19, 2008 merit decision of the Office of Workers’ Compensation Programs’ hearing
representative, who affirmed the denial of wage-loss compensation. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of the case.
ISSUE
The issue is whether the Office properly denied reimbursement for four hours of wage
loss on August 2, 2007 and two hours of wage loss on August 14, 2007.
FACTUAL HISTORY
On July 27, 2005 appellant, then a 56-year-old supply technician, sustained an injury in
the performance of duty when he slipped on a wet floor. The Office accepted his claim for right
inguinal sprain/strain, bilateral hip/thigh sprain, bilateral aggravation of trochanteric or hip
bursitis, aggravation of degenerative lumbosacral disease and major depression. Appellant

received compensation for temporary total disability. On May 8, 2007 he was released to limited
duty.
Appellant claimed compensation for four hours of wage loss on August 2, 2007. He also
claimed compensation for two hours of wage loss on August 14, 2007. In a decision dated
January 18, 2008, the Office denied compensation because there was no medical evidence to
support appellant’s contention that he had medical appointments on those dates for treatment of
his work injury.
Appellant requested a review of the written record by an Office hearing representative.
He explained that he saw Monica Schwartz, a licensed clinical social worker, on August 2
and 14, 2007 for treatment of his accepted major depression. Appellant submitted a “Client
Payment History” showing that he paid $15.00 cash to a social service organization on August 2
and 14, 2007.
In a decision dated June 19, 2008, an Office hearing representative affirmed the denial of
compensation for August 2 and 14, 2007. She found no progress notes for therapy on those
dates. The hearing representative noted that the client payment history was unsigned and that
appellant had not submitted the charges for consideration of payment in the Office’s automated
bill pay system. She concluded that it could not be established that appellant was treated on
August 2 or 14, 2007 for residuals of an employment-related condition.
On appeal, appellant’s attorney contends that the Office’s June 19, 2008 decision is
contrary to fact and law.
LEGAL PRECEDENT
The United States shall furnish to an employee who is injured while in the performance
of duty, the services, appliances and supplies prescribed or recommended by a qualified
physician, which the Secretary of Labor considers likely to cure, give relief, reduce the degree of
the period of any disability, or aid in lessening the amount of any monthly compensation.1 The
employee need not be disabled to receive such treatment.2
An employee who loses wages in undergoing examination or treatment authorized by the
Office may be reimbursed for these wages. Lost wages are paid only for the time needed for
examination or treatment and travel needed to obtain it.3 As a rule, no more than four hours of
compensation should be allowed for routine medical appointments. Longer periods of time may
be allowed when required by the nature of the medical procedure or the need to travel a
substantial distance to obtain the medical care.4
1

5 U.S.C. § 8103(a).

2

20 C.F.R. § 10.310(a) (1999).

3

Federal (FECA) Procedure Manual, Part 3 -- Medical, Administrative Matters, Chapter 3.900.5.c
(October 1990).
4

Id. at Chapter 3.900.8 (November 1998).

2

ANALYSIS
Appellant’s claim for compensation is premised on his allegation that he received
medical treatment for his accepted major depression on August 2 and 14, 2007. However, the
only evidence appellant submitted to support his claim was a “Client Payment History” from a
social service organization showing that he made a $15.00 cash payment on both dates.5
Although the payment history appears consistent with appellant’s claim, it fails to
establish that he received medical treatment for his accepted major depression on those dates.
The payment history does not disclose the reason for or the duration of any appointment or the
nature of any services rendered. Appellant was advised by the Office to submit a medical report
from a physician supporting his disability for work. Because he did not provide the Office with
the evidence necessary to support his claim, the Board will affirm the denial of benefits.
CONCLUSION
The Board finds that the Office properly denied reimbursement for four hours of wage
loss on August 2, 2007 and two hours of wage loss on August 14, 2007.

5

The Board has no jurisdiction to review evidence submitted to the record after the Office’s June 19, 2008 decision.
20 C.F.R. § 501.2(c).

3

ORDER
IT IS HEREBY ORDERED THAT the June 19, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 6, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hartford, CT, Employer
__________________________________________
Appearances:
Lynne A. Ustach, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 12-346
Issued: January 25, 2013

Case Submitted on the Record

ORDER AFFIRMING CASE AND DENYING REQUEST FOR ORAL
ARGUMENT
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On December 6, 2011 appellant, through her attorney, filed a timely appeal from a
June 9, 2011 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her request for a hearing before the Branch of Hearings and Review. The appeal was
docketed as number 12-346.
By decision dated July 22, 2009, OWCP denied appellant’s occupational disease claim
for failing to establish fact of injury. On September 24, 2009 appellant requested reconsideration
of OWCP’s decision and submitted additional medical evidence in support of her claim.
By decision dated December 17, 2009, OWCP modified its July 22, 2009 decision
finding that the evidence of record established fact of injury. It denied appellant’s claim,
however, on the grounds that the evidence did not establish that her medical condition was
related to factors of her federal employment.
By letter dated April 14, 2011, appellant, through counsel, requested a hearing. By
decision dated June 9, 2011, the Branch of Hearings and Review denied her request for an oral
hearing on the grounds that she was not entitled to a hearing as a matter of right because she had
previously requested reconsideration. It exercised its discretion and further determined that the

issue in the case could equally well be addressed by requesting reconsideration from OWCP and
submitting evidence not previously considered which establishes that her condition was causally
related to factors of her federal employment.
On December 6, 2011 appellant, through counsel, filed a notice of appeal to the Board
and submitted a timely request for oral argument, asserting that OWCP improperly denied her
claim for compensation.
The Board has duly considered the matter and finds that OWCP properly found in its
June 9, 2011 decision that appellant was not entitled to an oral hearing or examination of the
written record as a matter of right. Section 8124(b)(1) of the Federal Employees’ Compensation
Act (FECA) provides that a claimant for compensation who is not satisfied with a decision of the
Secretary is entitled, on request made within 30 days after the date of the issuance of the decision
and before review under section 8128(a), to a hearing on her claim before a representative of the
Secretary.1 As appellant had previously requested reconsideration on September 24, 2009 and
OWCP issued its reconsideration decision on December 17, 2009, she was not entitled to a
hearing as a matter of right under section 8124(b)(1) of FECA.2
OWCP then exercised its discretion and determined that appellant’s hearing request could
equally well be addressed by requesting reconsideration and submitting additional evidence to
address the issue in this case. The Board finds that there is no evidence of record that OWCP
abused its discretion in denying appellant’s hearing request.3 Thus, the Board finds that
OWCP’s June 9, 2011 decision denying appellant’s request for an oral hearing was proper under
the law and facts of this case.4
The Board further finds that appellant’s request for oral argument before the Board
should be denied. Pursuant to 20 C.F.R. § 501.5(a), oral argument may be held in the discretion
of the Board.5 Although her request was timely filed, appellant failed to provide a need for
further oral argument before the Board. OWCP’s June 9, 2011 nonmerit decision determined
that appellant was not entitled to a hearing as a matter of right because she had previously
requested reconsideration. In the opinion of the Board, oral argument in this appeal would
further delay issuance of a Board decision and not serve a useful purpose. For these reasons, oral
argument is denied.

1

5 U.S.C. § 8124(b)(1); Peggy R. Lee, 46 ECAB 527 (1995).

2

Id.

3

Daniel J. Perea, 42 ECAB 214, 221 (1990).

4

Appellant must file her reconsideration request within one year of OWCP’s December 17, 2009 merit decision.
OWCP regulations and procedure provide that OWCP will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the claimant’s application for
review shows clear evidence of error on the part of OWCP. Id. at § 10.607(b); Federal (FECA) Procedure Manual,
Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3d (January 2004).
5

20 C.F.R. § 501.5(a).

2

IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated June 9, 2011 is affirmed and appellant’s request for oral argument before the
Board is denied.
Issued: January 25, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

3


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

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

Docket No. 21-0136
Issued: March 28, 2022

Case Submitted on the Record

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

JURISDICTION
On November 2, 2020 appellant filed a timely appeal from an October 8, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). 1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case. 3
1
On November 2, 2020 appellant also filed an appeal from a purported October 1, 2020 decision of OWCP.
However, the October 1, 2020 document is a proposed termination notice rather than a final decision of OWCP. The
only final adverse decision over which the Board may exercise jurisdiction is the October 8, 2020 merit decision. See
20 C.F.R. §§ 501.2(c) and 501.3.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the October 8, 2020 decision, appellant submitted additional evidence to OWCP
and on appeal to the Board. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is
limited to the evidence in the case record that was before OWCP at the time of its f inal decision. Evidence not before
OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is
precluded from reviewing this additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
FACTUAL HISTORY
This case has previously been before the Board. 4 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On April 24, 2013 appellant, then a 31-year-old automation clerk, filed a traumatic injury
claim (Form CA-1) alleging that on April 14, 2013 she sustained an injury to her neck and back
area when she engaged in reaching and lifting duties while in the performance of duty.5 She
stopped work on April 22, 2013. OWCP accepted that appellant sustained aggravation of
preexisting cervical spondylosis and paid appellant wage-loss compensation for disability from
work commencing April 22, 2013 on the supplemental rolls and commencing December 15, 2013
on the periodic rolls.
On January 15, 2015 appellant filed a claim for compensation (Form CA-7) for a schedule
award due to her accepted April 14, 2013 employment injury. In support of her claim, she
submitted an October 28, 2014 report in which Dr. Jonathan Nissanoff, a Board-certified
orthopedic surgeon, determined that she had a 30 percent “combined whole person impairment
rating.”
By decision dated March 11, 2015, OWCP denied appellant’s claim for a schedule award.
By decision dated October 22, 2015, OWCP denied modification of the March 11, 2015
decision. On April 7, 2016 appellant requested reconsideration and submitted additional evidence.
By decision dated April 14, 2016, OWCP denied her request for reconsideration of the merits of
her claim pursuant to 5 U.S.C. § 8128(a).

4

Docket No. 15-1437 (issued May 9, 2016).

5

Based on the description of injury, appellant’s claim was converted to an occupational disease claim (Form CA-2)
because the employment activities occurred over a period longer than one workday or shift. A traumatic injury refers
to injury caused by a specific event or incident or series of incidents occurring within a single workday or work shift,
whereas an occupational disease refers to an injury produced by employment over a period longer than a single workday
or shift. 20 C.F.R. §§ 10.5(q), (ee), respectively; R.V., Docket No. 18-1037 (issued March 26, 2019); Brady L. Fowler,
44 ECAB 343, 351 (1992).

2

Appellant also appealed to the Board and, by decision dated May 9, 2016, 6 the Board
affirmed the decision. 7
In a July 25, 2018 report, Dr. Kamshad Raiszadeh, a Board-certified orthopedic surgeon,
determined that appellant had zero percent permanent impairment of the upper extremities
stemming from the cervical spine. He noted that, although an electromyogram/nerve conduction
velocity (EMG/NCV) study suggested mild carpal tunnel syndrome and an ulnar condition, there
was no frank neurologic evidence of either condition upon which to rate a diagnosis-based
impairment. Dr. Raiszadeh referenced symptoms of pain in appellant’s wrists and found one
percent permanent impairment of each upper extremity due to the reported symptoms by utilizing
Table 15-2 (Wrist Regional Guide) on page 395 of the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).8
In an October 22, 2018 report, Dr. David M. Kupfer, a Board-certified orthopedic surgeon,
indicated that appellant had a history of bilateral carpal tunnel syndrome and left ulnar neuropathy.
A February 15, 2019 EMG/NCV study found no sensory or motor findings emanating from the
cervical spine. The study revealed mild findings in the ulnar and median nerves.
On April 17, 2019 OWCP referred appellant’s medical record to Dr. Herbert White, a
Board-certified orthopedic surgeon serving as an OWCP district medical adviser (DMA). It
requested an opinion on permanent impairment utilizing The Guides Newsletter, Rating Spinal
Nerve Extremity Impairment Using the Sixth Edition (July/August 2009) (The Guides Newsletter),
which is a supplemental publication of the sixth edition of the A.M.A., Guides. In an April 22,
2019 report, Dr. White discussed the diagnostic testing of record and opined that there was no
evidence of compression of the cervical spine. He concluded that, under The Guides Newsletter,
there was no spinal nerve root abnormality that would result in a ratable upper extremity
impairment.
On May 7, 2019 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and series of questions, for a second opinion examination and evaluation with Dr. Jon P.
Kelly, a Board-certified orthopedic surgeon. It requested an opinion on permanent impairment
utilizing The Guides Newsletter. In a July 17, 2019 report, Dr. Kelly discussed appellant’s factual
and medical history and reported the findings of the physical examination he conducted on that
date. He noted atypical and equivocal medical findings without regard to any true ulnar or carpal
tunnel condition. Dr. Kelly reported that appellant exhibited normal upper extremity sensory and
motor findings. 9 He indicated that she had subjective complaints of possible radicular symptoms
of the upper extremities, but advised that the diagnostic testing of record, including a magnetic
6

Supra note 4.

7

Appellant also appealed January 2 and 27 and June 8, 2015 merit decisions of OWCP, which the Board affirmed
in its May 9, 2016 decision, but the subject matters of these decisions are not currently before the Board.
8

A.M.A., Guides (6 th ed. 2009).

9

Dr. Kelly indicated that appellant had reached maximum medical improvement (MMI) by the date of his
examination.

3

resonance imaging (MRI) scan of the cervical spine, did not demonstrate evidence of neural
impingement. Dr. Kelly determined that, therefore, appellant did not have a ratable permanent
impairment of the upper extremities under the sixth edition of the A.M.A., Guides and The Guides
Newsletter.
On August 28, 2019 OWCP again referred appellant’s case to Dr. White in his capacity as
a DMA. In a September 10, 2019 report, Dr. White found that she did not have a ratable permanent
impairment of the upper extremities. He expressed his agreement with the conclusions of
Dr. Kelly.
By decision dated September 16, 2019, OWCP denied appellant’s schedule award claim,
finding that she did not meet her burden of proof to establish permanent impairment of a scheduled
member or function of the body.
On October 14, 2019 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review. During the hearing, held on February 12, 2020, she
argued that she had permanent impairment of her upper extremities due to bilateral carpal tunnel
syndrome and a cubital tunnel condition.
Appellant submitted additional medical evidence, including September 19 and 30, 2019
reports from Dr. Kupfer who diagnosed cervical disc disorder with radiculopathy, history of
bilateral carpal tunnel syndrome, and left ulnar radiculopathy at the cubital tunnel with intermittent
ulnar nerve subluxation.
By decision dated April 28, 2020, OWCP’s hearing representative affirmed the
September 16, 2019 decision, finding that appellant failed to establish an upper extremity
impairment emanating from the cervical spine.
On July 10, 2020 appellant requested reconsideration of the April 28, 2020 decision.
Appellant submitted additional medical evidence, including May 19 and June 4, 2020
reports from Dr. Enass Rickards, a Board-certified orthopedic surgeon. In these reports,
Dr. Rickards diagnosed bilateral carpal tunnel syndrome and left ulnar nerve lesion. A June 1,
2020 EMG/NCV study showed a left ulnar neuropathy with conduction block between the elbow
and wrist.
On July 16, 2000 OWCP referred appellant, along with an updated SOAF and a series of
questions, for a second opinion examination and evaluation with Dr. William P. Curran, a Boardcertified orthopedic surgeon. It requested that he provide an opinion on whether she continued to
have residuals of her accepted April 22, 2013 employment injury.
In a September 1, 2020 report, Dr. Curran discussed appellant’s factual and medical history
and reported the findings of the physical examination he conducted on that date. He noted that the
cervical compression test he conducted was negative and that she did not exhibit spasms in her
cervical spine. The Phalen’s test was positive in both wrists. Dr. Curran diagnosed, inter alia,
cervical strain, and clinical and electrical evidence of left cubital tunnel syndrome. He opined that

4

the June 1, 2020 EMG/NCV study of appellant’s upper extremities was negative for bilateral
carpal tunnel syndrome and he found no objective findings of the accepted condition of cervical
spondylosis. Dr. Curran noted that the most recent cervical MRI scan, dated March 8, 2019, was
entirely within normal limits. He found evidence of a left cubital tunnel syndrome, which caused
numbness, tingling, and weakness of digits four and five of the left hand , but indicated that this
was a nonindustrial condition. Dr. Curran advised that appellant had reached MMI.
By decision dated October 8, 2020, OWCP denied modification of the April 28, 2020
decision.
LEGAL PRECEDENT
The schedule award provisions of FECA 10 and its implementing regulations11 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, OWCP has adopted the A.M.A., Guides as
the uniform standard applicable to all claimants. 12 As of May 1, 2009, the sixth edition of the
A.M.A., Guides is used to calculate schedule awards. 13
Neither FECA nor its implementing regulations provide for the payment of a schedule
award for the permanent loss of use of the back/spine or the body as a whole. 14 However, a
schedule award is permissible where the employment-related spinal condition affects the upper
and/or lower extremities. 15 The sixth edition of the A.M.A., Guides (2009) provides a specific
methodology for rating spinal nerve extremity impairment in The Guides Newsletter, which is a
supplemental publication of the sixth edition of the A.M.A., Guides. It was designed for situations
where a particular jurisdiction, such as FECA, mandated ratings for extremities and precluded
ratings for the spine. The FECA-approved methodology is premised on evidence of radiculopathy
affecting the upper and/or lower extremities. The appropriate tables for rating spinal nerve
extremity impairment are incorporated in the Federal (FECA) Procedure Manual. 16

10

5 U.S.C. § 8107.

11

20 C.F.R. § 10.404.

12

Id. See also T.T., Docket No. 18-1622 (issued May 14, 2019).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5a (March 2017); id. at Chapter 3.700.2 and Exhibit 1 (January 2010).
14

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see A.G., Docket No. 18-0815 (issued January 24, 2019);
Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).
15

Supra note 13 at Chapter 2.808.5c(3) (March 2017).

16

Supra note 13 at Chapter 3.700, Exhibit 4 (January 2010).

5

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
In his July 17, 2019 report, Dr. Kelly discussed appellant’s factual and medical history and
reported the findings of the physical examination he conducted on that date. He noted atypical
and equivocal medical findings without regard to any true ulnar o r carpal tunnel condition.
Dr. Kelly reported that appellant exhibited normal upper extremity sensory and motor findings.
He indicated that she had subjective complaints of possible radicular symptoms of the upper
extremities, but advised that the diagnostic testing of record, including an MRI scan of the cervical
spine, did not demonstrate evidence of neural impingement. Dr. Kelly determined that, therefore,
appellant did not have a ratable permanent impairment of the upper extremities under the sixth
edition of the A.M.A., Guides. Moreover, Dr. White, a DMA, found in a September 10, 2019
report that she did not have a ratable permanent impairment of the upper extremities. Dr. White
expressed his agreement with the conclusions of Dr. Kelly.17
Appellant has not submitted probative medical evidence establishing ratable permanent
impairment of the upper extremities. The Board has held that an opinion on permanent impairment
is of little probative value if it is not derived in accordance with the standards adopted by OWCP
and approved by the Board as appropriate for evaluating schedule losses. 18
Appellant submitted a July 25, 2018 report from Dr. Raiszadeh who referenced symptoms
of pain in her wrists and found one percent permanent impairment of each upper extremity due to
the reported symptoms by utilizing Table 15-2 on page 395 of the sixth edition of the A.M.A.,
Guides.19 However, OWCP has not accepted an employment-related wrist condition. Moreover,
Dr. Raiszadeh’s report is of little probative value because he has not adequately explained how the
employment-related conditions resulted in a ratable impairment under the A.M.A., Guides.20 In
addition, he acknowledged in the same report that appellant had zero percent permanent
impairment of the upper extremities stemming from her cervical spine. Dr. Raiszadeh also noted
that, although an EMG/NCV study suggested mild carpal tunnel syndrome and an ulnar co ndition,
there was no frank neurologic evidence of either condition upon which to rate a diagnosis -based
impairment. The Board notes that neither of these conditions has been accepted by OWCP.
The Board finds that OWCP properly relied on the opinion of Dr. Kelly, an OWCP referral
physician, in denying appellant’s schedule award claim. Dr. Kelly’s comprehensive and well-

17
The Board notes that Dr. Curran, an OWCP referral physician, indicated in a September 1, 2020 report that he
found no objective findings of the accepted condition of cervical spondylosis. OWCP did not ask him to comment on
permanent impairment.
18

See N.A., Docket No. 19-0248 (issued May 17, 2019); James Kennedy, Jr., 40 ECAB 620, 626 (1989).

19

A.M.A., Guides (6 th ed. 2009).

20

See supra note 19.

6

rationalized July 17, 2019 report constitutes the most recent assessment of her upper extremity
impairment and represents the weight of the medical evidence with respect to the matter.
Appellant may request a schedule award at any time based on evidence of a new exposure
or medical evidence showing progression of an employment-related condition resulting in
permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the October 8, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 28, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7