United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Greensboro, NC, Employer
__________________________________________

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

Docket No. 14-1719
Issued: December 5, 2014

Case Submitted on the Record

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

JURISDICTION
On August 4, 2014 appellant filed a timely appeal from a February 26, 2014 merit
decision and a May 15, 2014 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its May 15, 2014 decision.
The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision.
Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 501.2(c)(1); Dennis E. Maddy,
47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). Appellant may submit this evidence to
OWCP, together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§ 10.606(b)(2).

ISSUES
The issues are: (1) whether appellant met his burden of proof to establish a low back
injury in the performance of duty on November 22, 2013; and (2) whether OWCP properly
denied his request for further merit review under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On December 2, 2013 appellant, then a 57-year-old labor custodian, filed a traumatic
injury claim (Form CA-1) alleging that on November 22, 2013 he bent down to plastic wrap
empty letter trays and felt a sharp pain in his right lower back.
In a November 27, 2013 emergency room report, Dr. Willoughby Hundley, Boardcertified in emergency medicine, reported that appellant complained of right lower back pain
radiating to the right thigh which began six days prior as a result of bending over and pulling.
He diagnosed sacroiliac sprain.
In a November 27, 2013 diagnostic report, Dr. Nripendra Devanath, a Board-certified
radiologist, reported that a magnetic resonance imaging (MRI) scan of the lumbar spine revealed
no evidence of fracture, dislocation or vertebral body compression.
In a December 2, 2013 Attending Physician’s Report (Form CA-20), Dr. Paul A. Bailey,
Board-certified in family medicine, reported that on November 22, 2013 appellant sustained a
right lower back injury when he was wrapping empty equipment and twisted his upper body. He
diagnosed right sciatica with preexisting consequential and acquired degenerative joint disease,
degenerative disc disease, and dextroscoliosis. Dr. Bailey checked the box marked “yes” when
asked if he believed the condition was caused or aggravated by appellant’s employment activity.
He further stated that the mechanism of injury caused acute right lower back pain and right
sciatica. In duty status reports (Form CA-17) dated December 2 and 9, 2013, Dr. Bailey
provided appellant with work restrictions. Treatment notes dated December 2, 2013 were also
provided.
By letter dated December 18, 2013, OWCP informed appellant that the evidence of
record was insufficient to support his claim and requested additional factual and medical
evidence.
In a January 21, 2014 narrative statement, appellant described his employment duties,
noting that in mid-November he began to experience back spasms and pain in his legs. On
November 22, 2013 he was bent over while wrapping tubs and felt a sharp pain in his lower
back. The pain became excruciating on November 27, 2013 which led appellant to seek
emergency medical treatment. Appellant noted no preexisting injuries other than a thyroid
problem.
In support of his claim, appellant submitted medical reports and Form CA-17’s dated
December 19, 2013 to January 17, 2014 from Dr. Peyman Nazmi, a Board-certified
anesthesiologist, who reported that on November 22, 2013 appellant was wrapping mail and felt
a pop in his back, causing pain in both legs. He denied a prior history of similar pain complaints.

2

Upon physical examination and review of diagnostic testing, Dr. Nazmi diagnosed lumbar
radiculopathy, myofascial pain, and lumbar degenerative disc disease. He opined that
appellant’s pain complaints were the result of the November 2013 work injury.
Physical therapy reports dated December 18, 2013 to January 30, 2014 from Mark
Waligora, a physical therapist, were also received.
By decision dated February 26, 2014, OWCP denied appellant’s claim finding that the
medical evidence of record failed to establish that his diagnosed conditions were causally related
to the accepted November 22, 2013 employment incident.
On April 15, 2013 appellant requested reconsideration of OWCP’s decision. He stated
that he was submitting an updated January 17, 2014 medical report from Dr. Nazmi which
provided International Statistical Classification of Diseases and Related Health Problems (ICD9) codes in the assessment category rather than the diagnosis category.
In an updated January 17, 2014 medical report, Dr. Nazmi provided a history of the
November 22, 2013 employment incident and findings on physical examination. He diagnosed
lumbar radiculopathy, myofascial pain, lumbar degenerative disc disease, and chronic pain
syndrome with corresponding ICD-9 codes. Dr. Nazmi opined that appellant’s pain complaints
were the result of the November 22, 2013 employment incident.
Appellant also resubmitted Dr. Nazmi’s January 2, 2014 Form CA-17, Dr. Bailey’s
December 2, 2013 treatment notes, and physical therapy notes dated January 13 and 15, 2014
from Mr. Waligora.
By decision dated May 15, 2014, OWCP denied appellant’s request for reconsideration
finding that he neither raised substantive legal questions nor included new and relevant evidence.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability 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 on a traumatic injury or an occupational disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
3

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

4

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

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actually experienced the employment incident which is alleged to have occurred.5 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.6 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. This medical opinion
must include an accurate history of the employee’s employment injury and must explain how the
condition is related to the injury. The weight of medical evidence is determined by its reliability,
its probative value, its convincing quality, the care of analysis manifested, and the medical
rationale expressed in support of the physician’s opinion.7
ANALYSIS -- ISSUE 1
OWCP accepted that the November 22, 2013 employment incident occurred as alleged.
The issue is whether appellant established that the incident caused him a low back injury. The
Board finds that he did not submit sufficient medical evidence to support that his diagnosed back
conditions are causally related to the November 22, 2013 employment incident.8
Dr. Bailey’s December 2, 2013 report noted appellant’s treatment and described the
November 22, 2013 employment incident as related by appellant. On the Form CA-20, he
provided a diagnosis of right sciatica with preexisting consequential and acquired degenerative
joint disease, degenerative disc disease, and dextroscoliosis. Though Dr. Bailey checked the box
marked “yes” when asked if he believed appellant’s condition was caused or aggravated by the
employment incident, the Board has held that a report that addresses causal relationship with a
checkmark, without medical rationale explaining how the work conditions caused the alleged
injury, is of diminished probative value and insufficient to establish causal relationship.9 He
failed to explain the mechanism of injury by detailing how bending over while wrapping tubs
could cause appellant injury.
In medical reports dated December 19, 2013 to January 17, 2014, Dr. Nazmi described
the November 22, 2013 employment incident and provided findings on physical examination.
He diagnosed lumbar radiculopathy, myofascial pain, and lumbar degenerative disc disease and
opined that appellant’s pain complaints were the result of the November 2013 work injury.
5

Elaine Pendleton, 40 ECAB 1143 (1989).

6

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

7

James Mack, 43 ECAB 321 (1991).

8

See Robert Broome, 55 ECAB 339 (2004).

9

See Calvin E. King, Jr., 51 ECAB 394 (2000); see also Frederick E. Howard, Jr., 41 ECAB 843 (1990).

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The Board finds that the opinion of Dr. Nazmi is not well rationalized. Dr. Nazmi failed
to provide a detailed medical history or address appellant’s preexisting conditions as noted by
Dr. Bailey. His statement on causation fails to provide a sufficient explanation as to the
mechanism of injury pertaining to this traumatic injury claim, namely, how bending over while
wrapping tubs would cause or aggravate appellant’s sciatica or other preexisting conditions.10
Medical reports without adequate rationale on causal relationship are of diminished probative
value and do not meet an employee’s burden of proof.11
Dr. Devanath’s November 27, 2013 report interpreted diagnostic imaging studies and
provided no opinion on the cause of appellant’s injury.
While Dr. Hundley’s
November 27, 2013 report provided a diagnosis of sacroiliac sprain, the Board has held that
medical evidence that does not offer any opinion regarding the cause of an employee’s condition
is of limited probative value.12 The physical therapy notes dated December 18, 2013 to
January 30, 2014 are also insufficient to establish appellant’s claim as they were not signed by a
physician. Registered nurses, physical therapists, and physicians assistants, are not physicians as
defined under FECA, their opinions are of no probative value.13 Any medical opinion evidence
appellant may submit to support his claim should reflect a correct history and offer a medically
sound explanation by the physician of how the specific employment incident, in particular
physiologically, caused or aggravated his back injury.
Appellant’s honest belief that the November 22, 2013 employment incident caused his
medical problem is not in question, but that belief, however sincerely held, does not constitute
the medical evidence necessary to establish causal relationship. In the instant case, the record
lacks rationalized medical evidence establishing a causal relationship between the
November 22, 2013 employment incident and appellant’s injury. Thus, appellant has failed to
meet his burden of proof.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under FECA section 8128(a), OWCP
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.14 Section 10.608(b) of OWCP regulations
10

S.W., Docket No. 08-2538 (issued May 21, 2009).

11

Ceferino L. Gonzales, 32 ECAB 1591 (1981); see Lee R. Haywood, 48 ECAB 145 (1996); see L.M., Docket
No. 14-973 (issued August 25, 2014); R.G., Docket No. 14-113 (issued April 25, 2014); K.M., Docket No. 13-1459
(issued December 5, 2013); A.J., Docket No. 12-548 (issued November 16, 2012).
12

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

13

5 U.S.C. § 8102(2) of FECA provides as follows: (2) ‘physician includes surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as
defined by State law. FECA provides that the term “physician” includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. See also Roy L. Humphrey, 57 ECAB 238 (2005).
14

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

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provide that when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.15
ANALYSIS -- ISSUE 2
The Board finds that the refusal of OWCP to reopen appellant’s case for further
consideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a), did not constitute an
abuse of discretion.
The issue presented on appeal is whether appellant met any of the requirements of
20 C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the
claim. In his April 15, 2014 application for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law. He did not advance a new and relevant
legal argument. Appellant’s argument was that his injury was employment related. The
underlying issue in this case was whether his injury was causally related to the accepted
November 22, 2013 employment incident. That is a medical issue which must be addressed by
relevant medical evidence.16
While appellant submitted an “updated” January 17, 2014 medical report from
Dr. Nazmi, this report is not relevant to establishing causal relationship between appellant’s
diagnosed conditions and the November 22, 2013 employment incident. Dr. Nazmi’s “updated”
January 17, 2014 report is essentially identical and repetitive of his prior January 17, 2014 report
which was previously considered by OWCP. The report only contained corresponding ICD-9
codes and an additional diagnosis of chronic pain syndrome with no new opinion on causal
relationship.17 Material which is duplicative of that already contained in the case record does not
constitute a basis for reopening a case. Pursuant to 20 C.F.R. § 10.608, OWCP properly denied
merit review.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a traumatic
injury on November 22, 2013 in the performance of duty, as alleged. OWCP properly denied his
request for reconsideration without a merit review.

15

K.H., 59 ECAB 495 (2008).

16

See Bobbie F. Cowart, 55 ECAB 746 (2004).

17

Evidence that repeats of duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a case. Eugene F. Butler, 36 ECAB 393 (1984). See Kenneth R. Mroczkowski, 40
ECAB 855 (1989).

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated May 15 and February 26, 2014 are affirmed.
Issued: December 5, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.L., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Southeastern, PA,
Employer
__________________________________________

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

Docket No. 07-180
Issued: May 3, 2007

Case Submitted on the Record

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

JURISDICTION
On October 25, 2006 appellant filed a timely appeal from a May 5, 2006 decision of the
Office of Workers’ Compensation Programs, adjudicating a schedule award claim. 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 more than a 15 percent impairment of his left upper
extremity.

FACTUAL HISTORY
On March 29, 1993 appellant, then a 37-year-old mail handler, sustained acute cervical,
thoracic and lumbosacral strains and sprains, and a left shoulder strain and sprain in the
performance of duty.1 On November 20, 2003 he filed a claim for a schedule award.
On August 12, 2003 Dr. David Weiss, an attending osteopathic orthopedist, found that
appellant had a 24 percent impairment of the left upper extremity, including 10 percent for left
shoulder resection arthroplasty (surgery involving a joint), based on Table 16-27 at page 506 of
the fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment,2 10 percent for grip strength deficit, based on Table 16-32 and 16-34 at page 509, 2
percent for decreased range of motion, including flexion of 170 degrees (1 percent) and
abduction of 160 degrees (1 percent), based on Figure 16-40 at page 476 and Figure 16-43 at
page 477, and 3 percent for pain-related impairment, based on Figure 18-1 at page 574.
On February 23, 2004 a district medical adviser, found that appellant had a 15 percent
impairment of the right upper extremity based on the physical findings of Dr. Weiss, including
10 percent for appellant’s arthroplasty, 3 percent for pain and 2 percent for decreased range of
motion. He indicated that the fifth edition of the A.M.A., Guides at page 508 precluded grip
strength impairment in situations involving impairment due to pain, decreased range of motion or
absence of parts (resection), all of which were included in the impairment rating of Dr. Weiss.
By decision dated March 3, 2004, the Office granted appellant a schedule award for 46.8
weeks for the period August 12, 2003 to July 4, 2004 based on a 15 percent impairment of the
left upper extremity.3
Appellant requested a hearing that was held on February 28, 2006.
On May 5, 2006 the Office hearing representative denied modification of the March 3,
2004 decision.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act4 and its
implementing regulation5 set forth the number of weeks of compensation payable to employees
1

The file for the 1993 left shoulder injury was combined with the file for appellant’s accepted September 13,
1989 injury which included the conditions of a left shoulder acromioclavicular joint separation, rotator cuff tear and
adhesive capsulitis. Appellant underwent left shoulder surgery in 1990 consisting of arthrotomy, acromioplasty,
ligament resection (excision of a structure) and debridement of the rotator cuff.
2

A.M.A., Guides (5th ed. 2001).

3

The Federal Employees’ Compensation Act provides for 312 weeks of compensation for 100 percent loss or loss
of use of an arm. 5 U.S.C. § 8107(c)(1). Multiplying 312 weeks by 15 percent equals 46.8 weeks of compensation.
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

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sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides6 has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.7
ANALYSIS
The Office accepted that appellant sustained a left shoulder acromioclavicular joint
separation, rotator cuff tear, adhesive capsulitis, acute cervical, thoracic and lumbosacral strains
and sprains, and a left shoulder strain and sprain in the performance of duty and related surgery
which included arthrotomy, acromioplasty, ligament resection and debridement of the rotator
cuff.
Dr. Weiss found that appellant had a 24 percent impairment of the left upper extremity,
including 10 percent for arthroplasty, based on Table 16-27 at page 506 of the A.M.A., Guides;
10 percent for grip strength deficit, based on Table 16-32 and 16-34 at page 509, 2 percent for
decreased range of motion, including flexion of 170 degrees (1 percent) and abduction of 160
degrees (1 percent), based on Figure 16-40 at page 467 and Figure 16-43 at page 477, and 3
percent for pain-related impairment, based on Figure 18-1 at page 574.
The district medical adviser found that appellant had a 15 percent impairment of the left
upper extremity based on the physical findings of Dr. Weiss,8 including 10 percent for the
arthroplasty, 3 percent for pain and 2 percent for decreased range of motion.
Regarding grip strength, the A.M.A., Guides states in section 16.8 at page 508:
“In a rare case, if the examiner believes the individual’s loss of strength represents
an impairing factor that has not been considered adequately by other methods in
the [A.M.A.], Guides, the loss of strength may be rated separately…. If the
examiner judges that loss of strength should be rated separately in an extremity
that presents other impairments, the impairment due to loss of strength could be
combined with the other impairments, only if based on unrelated etiologic or
pathomechanical causes. Otherwise, the impairment ratings based on objective
anatomic findings take precedence. Decreased strength cannot be rated in the
presence of decreased motion [range of motion], painful conditions, deformities,

6

Joseph Lawrence, Jr., 53 ECAB 331 (2002).

7

20 C.F.R. § 10.404.

8

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002) (these procedures contemplate that, after obtaining all necessary medical
evidence, the file should be routed to an Office medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides, with the medical adviser providing rationale for the
percentage of impairment specified, especially when there is more than one evaluation of the impairment present).

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or absence of parts (e.g., thumb amputation) that prevent effective application of
maximal force in the region being evaluated.” (Emphasis in the original.)
There is no basis for including impairment due to loss of grip strength in appellant’s left
upper extremity impairment rating. Dr. Weiss provided objective anatomic findings based on
appellant’s resection arthroplasty and range of motion and he also found impairment due to pain.
Therefore, additional impairment based on grip strength is precluded by the procedures in the
A.M.A., Guides.
Regarding impairment due to pain, Dr. Weiss did not support, with medical rationale, his
calculation of a three percent impairment based on Chapter 18 of the A.M.A., Guides. Section
18.3b of Chapter 18 at page 571 of the A.M.A., Guides provides that “Examiners should not use
this chapter to rate pain-related impairment for any condition that can be adequately rated on the
basis of the body and organ impairment rating systems given in other chapters of the [A.M.A.,]
Guides.” Dr. Weiss did not explain why appellant’s pain-related impairment could not be
adequately addressed by applying Chapter 16 of the A.M.A., Guides which addresses upper
extremity impairment, specifically section 16.5, “Impairment of the Upper Extremities Due To
Peripheral Nerve Disorders” which states at page 482:
“Upper extremity impairments due to sensory deficits or pain resulting from
peripheral nerve disorders are determined according to the grade of severity in
diminution or loss of function and the relative maximum upper extremity
impairment value of the nerve structure involved, as shown in the classification
(a) and procedural (b) steps described in Table 16-10 and the impairment
determination method detailed in section 16.5b.”
Dr. Weiss did not explain why application of Chapter 16 was not adequate to calculate
appellant’s impairment due to upper extremity pain, justifying application of Chapter 18 of the
A.M.A., Guides. In turn, the district medical adviser incorporated the pain rating of Dr. Weiss
under Chapter 18 without explaining why application of Chapter 16 was not adequate to
calculate appellant’s impairment due to upper extremity pain. The Board finds that further
development of the medical evidence is required regarding appellant’s impairment due to
sensory loss or pain based on application of the procedures in Chapter 16 of the fifth edition of
the A.M.A., Guides.
CONCLUSION
The Board finds that this case is not in posture for a decision. Further development of the
medical evidence is required regarding appellant’s left upper extremity impairment due to pain.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 5, 2006 is set aside and the case is remanded for further
action consistent with this decision.
Issued: May 3, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Binghamton, NY, Employer
__________________________________________

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

Docket No. 16-0361
Issued: May 3, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 21, 2015 appellant filed a timely appeal from an October 15, 2015
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than
180 days elapsed between the last merit decision of OWCP dated December 23, 2014, 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 lacks jurisdiction to review the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
of his claim pursuant to 5 U.S.C. § 8128(a).
On appeal appellant contends that he sustained a work-related foot condition and
submitted additional medical evidence.2
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, in addition to the evidence appellant submitted on appeal, he also submitted new evidence
following the issuance of the October 15, 2015 OWCP decision. The Board is precluded from reviewing evidence
which was not before OWCP at the time it issued its final decision. See 20 C.F.R. § 501.2(c)(1). Therefore, this
additional evidence cannot be reviewed by the Board.

FACTUAL HISTORY
On September 17, 2014 appellant, then a 53-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that on June 12, 2013 he first became aware of his plantar
fasciitis and realized that his condition was caused or aggravated by delivering mail over a
period of time.
By letter dated October 1, 2014, OWCP notified appellant about the deficiencies of his
claim and afforded him 30 days to submit additional evidence. It also requested that the
employing establishment submit medical evidence, if appellant had been treated at its medical
facility.
In medical reports dated June 12 and July 15, 2013 and March 11 and September 16,
2014, Dr. Parker M. Gennett, an attending podiatrist, provided findings on physical and x-ray
examination and diagnosed plantar fasciitis/iosis, bilateral synovitis “TPT,” and bilateral medial
calcaneal nerve (MCN) entrapment. In an October 2, 2014 duty status report (Form CA-17), he
diagnosed left foot plantar fasciitis, nerve entrapment, and synovitis. Dr. Gennett noted that
appellant’s diagnosed conditions were due to walking while delivering mail. He advised that
appellant was able to perform regular full-time work.
In an October 10, 2014 statement, appellant attributed his claimed injury to delivering
mail on hard and soft (grassy) surfaces and going up and down stairs continually eight hours a
day for 26 years.
In a December 19, 2014 decision, OWCP denied appellant’s claim. It found that the
medical evidence was insufficient to establish that he sustained an injury and/or medical
condition causally related to the accepted work event(s). OWCP reissued the December 19,
2014 decision on December 23, 2014.
On July 13, 2015 appellant requested reconsideration. He resubmitted Dr. Gennett’s
June 12 and July 15, 2013 and March 11, September 16, and October 2, 2014 reports.
In a July 22, 2013 Family and Medical Leave Act (FMLA) form, Dr. Gennett indicated
that since June 6, 2000 appellant had ongoing bilateral foot pain due to plantar fasciitis and tarsal
tunnel for which he received injections. In reports dated January 15 and 27 and April 28, 2015,
he noted that appellant presented for examination following recent foot surgery. Dr. Gennett
provided examination findings, reviewed x-ray results, and assessed appellant as being status
post correction left endoscopic plantar fasciotomy. Appellant had right plantar fasciitis and right
MCN. In a January 12, 2015 report, Dr. Gennett described appellant’s bilateral foot surgery. In
a March 10, 2015 note, he released him to return to work with no restrictions.
By decision dated October 15, 2015, OWCP denied further merit review of appellant’s
claim. It found that the evidence submitted was repetitious, irrelevant, and immaterial.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation, either under its own authority or on

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application by a claimant.3 Section 10.608(a) of OWCP’s regulations provide that a timely
request for reconsideration may be granted if OWCP determines that the employee has presented
evidence and/or argument that meet at least one of the standards described in section
10.606(b)(3).4 This section provides that the application for reconsideration must be submitted
in writing and set forth arguments and contain evidence that either: (i) shows that OWCP
erroneously applied or interpreted a specific point of law; or (ii) advances a relevant legal
argument not previously considered by OWCP; or (iii) constitutes relevant and pertinent new
evidence not previously considered by OWCP.5 Section 10.608(b) provides that when a request
for reconsideration is timely but fails to meet at least one of these three requirements, OWCP
will deny the application for reconsideration without reopening the case for a review on the
merits.6
ANALYSIS
The Board finds that OWCP properly refused to reopen appellant’s case for further
reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).
In support of his July 13, 2015 request for reconsideration, appellant neither
demonstrated that OWCP erroneously applied or interpreted a specific point of law, nor did he
advance a relevant legal argument not previously considered by OWCP. He submitted
Dr. Gennett’s FMLA form, reports, and notes dated July 22, 2013 to March 10, 2015. The notes
document that appellant was status post correction left endoscopic plantar fasciotomy, he had
right plantar fasciitis and right MCN, and evinced that he could return to work with no
restrictions as of March 10, 2015. This evidence, while new, is irrelevant to the issue of whether
appellant sustained a foot condition causally related to the accepted employment factors.
Dr. Gennett did not attribute appellant’s diagnosed conditions and surgery to the accepted
employment factors. The submission of evidence or argument that does not address the
particular issue involved does not constitute a basis for reopening a case.7
Appellant resubmitted Dr. Gennett’s June 12 and July 15, 2013 and March 11,
September 16, and October 2, 2014 reports. However, these reports are insufficient to justify a
merit review of the claim as they are duplicative of evidence previously considered by OWCP.
Evidence that repeats or duplicates evidence already in the case record has no evidentiary value
and does not constitute a basis for reopening a claim for merit review.8 The Board finds,
therefore, that these reports are insufficient to reopen appellant’s claim for a merit review.9

3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.608(a).

5

Id. at § 10.606(b)(3).

6

Id. at § 10.608(b).

7

R.M., 59 ECAB 690 (2008); Betty A. Butler, 56 ECAB 545 (2005).

8

Denis M. Dupor, 51 ECB 482 (2000).

9

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

3

The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
On appeal appellant argues the merits of his claim. The Board noted above that it only
has jurisdiction over OWCP’s October 15, 2015 nonmerit decision which denied his request for
reconsideration and, therefore, is precluded from conducting a merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for further merit review
of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the October 15, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 3, 2016
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Fayetteville, NC, Employer
__________________________________________

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

Docket No. 19-0851
Issued: November 18, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On March 11, 2019 appellant filed a timely appeal from a December 3, 2018 merit decision
and a March 5, 2019 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the March 5, 2019 decision, OWCP received additional evidence. 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 final 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.

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish more than
three percent permanent impairment of her left lower extremity, for which she previously received
a schedule award and whether she has established permanent impairment of the right lower
extremity warranting a schedule award; and (2) whether OWCP properly denied appellant’s
request for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On February 17, 1993 appellant, then a 32-year-old office automation clerk, filed a
traumatic injury claim (Form CA-1) alleging that on February 16, 1993 she sustained a lower back
injury when she fell while in the performance of duty. OWCP accepted her claim for lumbar
sprain, other psychogenic pain, and adhesive capsulitis of right shoulder.
By decision dated February 28, 2000, OWCP granted appellant a schedule award for three
percent permanent impairment of her left lower extremity.
On December 21, 2015 OWCP expanded acceptance of appellant’s claim to include lumbar
radiculopathy. On June 13, 2017 it further expanded acceptance of her claim to include lumbar
spondylosis with myelopathy.
In a report dated July 6, 2018, Dr. Howard Weiss, an osteopathic physician specializing in
physical medicine and rehabilitation, noted appellant’s history of injury, conducted a physical
examination, and provided findings. He diagnosed chronic low back pain, lumbar degenerative
disc disease, fusion of lumbar spine, and lumbar radiculopathy. Dr. Weiss indicated that appellant
had sustained three percent lower extremity permanent impairment related to her chronic lumbar
radiculopathy from her accepted February 16, 1993 employment injury.
On August 6, 2018 appellant filed a claim for a schedule award (Form CA-7).
In a development letter dated August 16, 2018, OWCP informed appellant that additional
medical evidence was needed to establish her schedule award claim. It advised her to submit a
report from her treating physician which evaluated her permanent impairment pursuant to the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides).3 OWCP also requested a supplemental report from Dr. Weiss to remedy the
deficiencies in his July 6, 2018 report. It afforded appellant days for submission of the necessary
evidence.
In a supplement to his July 6, 2018 report, dated September 26, 2018, Dr. Weiss noted
appellant’s physical examination findings regarding the lower extremities. Regarding motor
deficit, he noted that she had normal bilateral lower extremity findings, regarding sensory deficit,
he related that she had decreased sensation of the left foot at the L5-S1 distribution. Dr. Weiss
related that he was clarifying that appellant’s impairment rating of three percent was for the right

3

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

2

leg related to her right lumbosacral radiculopathy, and based on Table 17-4 on page 571 of the
A.M.A., Guides. He also indicated that she had sustained 12 percent whole body impairment.
In a letter dated October 22, 2018, OWCP notified Dr. Weiss that his impairment rating of
three percent of the right lower extremity secondary to the February 16, 1993 employment injury
was deficient as it neither referenced the A.M.A., Guides nor specified the tables and pages used
to calculate appellant’s impairment rating. It informed him of the correct source to calculate an
impairment rating and specifically what information he needed to include. OWCP afforded
Dr. Weiss 30 days to submit the necessary evidence. It subsequently received a duplicate copy of
his September 26, 2018 report.
On November 7, 2018 OWCP referred appellant’s case, along with a statement of accepted
facts and medical record, to Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving as
a district medical adviser (DMA). In his permanent impairment rating evaluation report dated
November 8, 2018, Dr. Katz utilized the A.M.A., Guides Newsletter, Rating Spinal Nerve
Extremity Impairment Using the Sixth Edition (July/August 2009) (The Guides Newsletter).
Regarding the right lower extremity, he determined that, for spinal nerves L3, L4, L5, and S1,
appellant had no motor deficit and no sensory deficit, which equaled a total permanent impairment
of 0 percent. Regarding the left lower extremity at L5, the DMA determined that she had a mild
sensory deficit, a class of diagnosis (CDX) of 1, a grade modifier of 1 for functional history
(GMFH), and a grade modifier of 4 for clinical studies (GMCS). He reported that, following
assignment of grade modifiers, application of the net adjustment formula resulting in +2, which
amounted to a class 1, grade D or two percent permanent impairment. The DMA also noted no
motor deficit. Regarding the left lower extremity at S1, he concluded the same grade modifier
calculations as L5, which resulted in class 1 with an adjustment +2 from the default value which
equaled class 1, grade E totaling 1 percent permanent impairment. The DMA combined the L5
and S1 left lower extremity impairment ratings to total three percent permanent impairment of the
left lower extremity. He indicated that Dr. Weiss’ impairment determination could not be accepted
as probative because FECA neither allowed a schedule award for the spine nor recognized whole
person impairment except for the lung. Therefore, the DMA explained that Dr. Weiss’ whole
person impairment rating of 12 percent could not be accepted as probative. He recommended a
permanent impairment rating of three percent for the left lower extremity, 0 percent for the right
lower extremity, and indicated the date of maximum medical improvement (MMI) was
July 6, 2018.
By decision dated December 3, 2018, OWCP denied appellant’s schedule award claim
finding that the medical evidence of record was insufficient to establish entitlement to a schedule
award for her right lower extremity, and the evidence did not support impairment to the left lower
extremity greater than what was already paid in OWCP’s February 28, 2000 decision.
On February 21, 2019 appellant requested reconsideration of OWCP’s December 3, 2018
decision. She submitted additional medical evidence along with her request including duplicate
diagnostic reports, duplicate operative reports, treatment notes, and other medical evidence that
did not address a permanent impairment rating.
By decision dated March 5, 2019, OWCP denied appellant’s request for reconsideration of
the merits of her claim.

3

LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA,4 and its implementing federal regulations,5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
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 for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.6 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.7
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.8 However, a schedule
award is permissible where the employment-related spinal condition affects the upper and/or lower
extremities.9 The sixth edition of the A.M.A., Guides (2009) provides a specific methodology for
rating spinal nerve extremity impairment.10 It was designed for situations where a particular
jurisdiction, such as FECA, mandated ratings for extremities and precluded ratings for the spine.
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 OWCP’s procedure manual.11
For peripheral nerve impairments to the upper or lower extremities resulting from spinal
injuries, OWCP’s procedures indicate that The Guides Newsletter is to be applied.12 The Board
has long recognized the discretion of OWCP to adopt and utilize various editions of the A.M.A.,
Guides for assessing permanent impairment.13 In particular, the Board has recognized the adoption
of this methodology for rating extremity impairment, including the use of The Guides Newsletter,

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also id. Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
8

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see B.C., Docket No. 17-1617 (issued January 8, 2018); Jay K.
Tomokiyo, 51 ECAB 361, 367 (2000).
9

See supra note 7 at Chapter 2.808.5(c)(3) (March 2017).

10
E.L., Docket No. 18-1492 (issued March 19, 2019); see also supra note 7 at Chapter 3.700, Exhibit 1, note 5
(January 2010). The Guides Newsletter is included as Exhibit 4.
11

See supra note 7 at Chapter 3.700, Exhibit 4 (January 2010); C.S., Docket No. 18-0394 (issued August 15, 2019).

12

Supra note 10.

13

E.R., Docket No. 18-1646 (issued May 17, 2019); D.S., Docket No. 14-0012 (issued March 18, 2014).

4

as proper in order to provide a uniform standard applicable to each claimant for a schedule
award for extremity impairment originating in the spine.14
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish more than three
percent permanent impairment of her left lower extremity, for which she previously received a
schedule award, or permanent impairment of the right lower extremity warranting a schedule
award.
Regarding the left lower extremity, Dr. Weiss has not offered a permanent impairment
rating of appellant’s left lower extremity.
The DMA, Dr. Katz, utilized The Guides Newsletter to find three percent permanent
impairment of appellant’s left lower extremity due to her L5 and S1 spinal nerve impairments
pursuant to page 6, Table 2. In rating the L5 impairment, he found a GMFH of 1, a GMCS of 4.
Using the net adjustment formula (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX), the DMA
calculated that appellant had a net adjustment of (1-1) + (4-1) + (1-1) = 3 equaling a grade C, the
maximum, rating for two percent permanent impairment due to mild sensory deficit. In rating her
S1 permanent impairment, for mild sensory deficit, he found a GMFH of 1, a GMCS of 4. Using
the net adjustment formula, the DMA calculated that appellant had a net adjustment of (1-1) +
(4-1) + (1-1) = 3 equaling a grade C, the maximum allowable, rating of 1 percent. Based on these
calculations, he properly concluded that she had a combined three percent permanent impairment
of the left lower extremity, based upon L5/S1 mild sensory deficits, related to her accepted lumbar
spine conditions. The Board finds that the DMA properly determined that appellant had three
percent permanent impairment of her left lower extremity, based upon mild sensory loss at L5/S1.
Regarding appellant’s right lower extremity, in support of her claim, appellant submitted a
July 6, 2018 report from Dr. Weiss, who indicated that she had sustained a three percent lower
extremity impairment related to her chronic lumbar radiculopathy from her accepted February 16,
1993 employment injury. OWCP requested a supplemental report from Dr. Weiss. In his
September 26, 2018 supplemental report, Dr. Weiss noted that appellant’s impairment rating of
three percent was for the right left related to right lumbosacral radiculopathy and based on Table
17-4 on page 571 of the A.M.A., Guides. He noted that she had no sensory or motor deficits of
the right lower extremity. In an October 22, 2018 development letter, OWCP again notified
Dr. Weiss that his calculations were deficient, explained what evidence he needed to submit, and
afforded him 30 days to submit the necessary evidence. However, Dr. Weiss did not submit
additional calculations. He failed to adequately explain how the A.M.A., Guides supported his
findings of three percent permanent impairment of the right lower extremity.15
The DMA, reviewed Dr. Weiss’ report and explained that appellant had no right lower
extremity sensory or motor deficits related to spinal nerve roots and therefore no applicable
impairment using The Guides Newsletter. The Board finds that the DMA properly applied The
14

E.R., id.; see A.R., Docket No. 17-1504 (issued May 25, 2018); E.D., Docket No. 13-2024 (issued April 24, 2014).

15

See J.T., Docket No. 17-1465 (issued September 25, 2019).

5

Guides Newsletter, which requires sensory or motor loss of the lower extremity due to
radiculopathy to establish permanent impairment of the lower extremity.16 Appellant has therefore
not established permanent impairment of her right lower extremity.
Appellant has submitted no other current medical evidence in conformance with the sixth
edition of the A.M.A., Guides, or The Guides Newsletter, addressing a ratable permanent
impairment of the left or right lower extremities. While Dr. Weiss also indicated that she had a
permanent impairment of the whole body, there is no statutory basis for the payment of a schedule
award for whole body impairment under FECA.17 Accordingly, the Board finds that appellant has
not met her burden of proof to establish greater impairment than that which was previously
awarded.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of new exposure, or medical evidence showing a progression of an employment-related
condition resulting in impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.18 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.19 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.20
A timely request for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.21 If the request is timely, but fails to meet at least one of the requirements
for reconsideration, OWCP will deny the request for reconsideration without reopening the case
for a review on the merits.22

16

See M.T., Docket No. 19-0373 (issued August 22, 2019).

17

See K.Y., Docket No. 18-0730 (issued August 21, 2019).

18
This section provides in pertinent part: the Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
19

20 C.F.R. § 10.607.

20

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Supra note 7 at Chapter 2.1602.4
(February 2016). Timeliness is determined by the document receipt date of the request for reconsideration as indicated
by the received date in the integrated Federal Employees’ Compensation System. Id. at Chapter 2.1602.4b.
21

Id. at § 10.606(b)(3).

22

Id. at § 10.608(a), (b); see also C.C., Docket No. 18-0316 (issued March 14, 2019).

6

ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Preliminarily, the Board finds that OWCP did not receive additional evidence of permanent
impairment with appellant’s February 21, 2019 reconsideration request. The Board will therefore
consider this a proper reconsideration request as opposed to a claim for an increased schedule
award.23
In her February 21, 2019 request for reconsideration, appellant did not argue that OWCP
erroneously applied or interpreted a specific point of law or advance a relevant legal argument not
previously considered by OWCP. Thus, she was not entitled to a review of the merits of her claim
based on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).24
In support of her reconsideration request, appellant submitted additional medical evidence
including duplicate diagnostic reports, duplicate operative reports, treatment notes, and other
medical evidence that did not address a schedule award impairment rating. The Board has held
that evidence which repeats or duplicates evidence already of record does not constitute a basis for
reopening a case.25 The underlying issue in this case is the degree of permanent impairment of
appellant’s lower extremities due to her employment injury. The Board finds that the new evidence
submitted was not relevant and pertinent as it does not contain new evidence addressing the current
extent of her employment-related permanent impairment.26 Thus, appellant was not entitled to a
review of the merits of her claim based on the third above-noted requirements under 20 C.F.R.
§ 10.606(b)(3).
The Board accordingly finds that appellant has not met any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish more than three
percent permanent impairment of the left lower extremity, for which she previously received a
schedule award, and that she has not established permanent impairment of the right lower
extremity warranting a schedule award. The Board further finds that OWCP properly denied her
request for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

23

P.D., Docket No. 18-0962 (issued September 18, 2019).

24

E.R., supra note 13; see J.B., Docket No. 17-0628 (issued June 28, 2017).

25

E.R., id.; E.N., Docket No. 16-1000 (issued September 20, 2016); D.K., 59 ECAB 141 (2007).

26

L.S., Docket No. 19-0592 (issued September 6, 2019).

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ORDER
IT IS HEREBY ORDERED THAT the March 5, 2019 and December 3, 2018 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: November 18, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.J., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, BUFFALO
NATIONAL RIVER, Harrison, AR, Employer
__________________________________________

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

Docket No. 15-1115
Issued: September 22, 2015

Case Submitted on the Record

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

JURISDICTION
On April 21, 2015 appellant filed a timely appeal from a January 12, 2015 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that she sustained
a urinary tract infection in the performance of duty.
FACTUAL HISTORY
On August 27, 2014 appellant, then a 57-year-old wildland fire radio operator, filed an
occupational disease claim alleging that her urinary tract infection of August 10, 2014 was due to
1

5 U.S.C. § 8101 et seq.

factors of her federal employment. She cited the camp conditions, where workers had to use
porta-potties, portable hand washing stations, endure high temperatures, and limited air
conditioning. Appellant was required to sit during 14- to 16-hour work shifts. She alleged that
these contributed to her condition. The employing establishment noted that appellant did not
stop work, but worked while taking antibiotic medication.
Evidence submitted with the claim included: an August 15, 2014 urinalysis lab report
and an August 18, 2014 microbiology report.
In an August 16, 2014 medical report, Dr. Geoff Richardson, a Board-certified family
practitioner, noted the conditions in which appellant worked and diagnosed urinary tract
infection. The provider opined that her work conditions on a more probable than not basis likely
predisposed her to getting an infection.
In a September 8, 2014 report, Dr. Richardson noted that appellant was seen for
evaluation of possible urinary infection and that she had been working as a radio operator at the
fire camp and spent long days sitting. A urinary tract infection was diagnosed.
In a November 14, 2014 letter, OWCP advised appellant of the deficiencies in her claim
and provided her the opportunity to submit additional factual and medical evidence. This
included a physician’s rationalized opinion as to how her work factors resulted in the diagnosed
condition. Appellant was accorded 30 days in which to provide such information.
In a December 4, 2014 statement, the employing establishment acknowledged that the
conditions at the large fire camps were full of dirt and dust, had minimal hand washing and
lavatory facilities, and showers for personal hygiene were only available once every three days.
The employing establishment did not dispute that appellant contracted the reported illness while
at fire camp. No other evidence was received.
By decision dated January 12, 2015, OWCP denied the claim finding that the medical
evidence failed to establish that the diagnosed medical condition was causally related to the work
conditions in the fire camp.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.2 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.3
2

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

3

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

2

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) 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 is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable 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.4
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.5 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors.6 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.7
ANALYSIS
OWCP denied appellant’s claim because the medical evidence did not establish that her
urinary tract infection was caused or aggravated by her work conditions.
The determination of whether an employment injury is causally related to work factors is
generally established by medical evidence.8 Thus, appellant’s statements pertaining to the cause
of her condition before OWCP and on appeal have no probative value.
In the August 16, 2014 medical report, Dr. Richardson noted appellant’s working
conditions she worked under at the fire camp and diagnosed a urinary tract infection. The
4

Solomon Polen, 51 ECAB 341 (2000).

5

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); Michael S. Mina, 57 ECAB
379 (2006).
6

J.J., Docket No. 09-27 (issued February 10, 2009); Sedi L. Graham, 57 ECAB 494 (2006).

7

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

8

Lois E. Culver (Clair L. Culver), 53 ECAB 412 (2002).

3

provider opined that her work conditions on a more probable than not basis likely predisposed
her to getting an infection. An opinion on causal relationship based on a more probable than not
basis does not establish causal relationship because it is unsupported by medical rationale
explaining how appellant’s work conditions actually caused the diagnosed conditions.9 As the
medical provider failed to provide a rationalized opinion explaining how factors of her federal
employment at the fire camp caused or aggravated her urinary tract condition, this report is
insufficient to establish appellant’s claim.
In his September 8, 2014 report, Dr. Richardson noted that appellant was working as a
radio operator at the fire camp and spent long days sitting. While he diagnosed a urinary tract
infection, he offered no opinion on the causal relationship of the condition. The Board has held
that medical evidence that does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship.10
The diagnostic testing provided is also insufficient to establish appellant’s claim because
it does not address causation and thus is insufficient to establish the causal relationship between
any diagnosed condition and the established work factors.11
Because appellant has not submitted rationalized medical evidence to support her
allegation that her condition is causally related to her identified employment factors, she failed to
meet her burden of proof to establish a claim.
On appeal, appellant asserts that the medical evidence submitted supports her claim. As
noted, the evidence of record is insufficient to establish causal relationship. She has the burden
to establish causal relationship through the submission of rationalized medical opinion
evidence.12
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her
urinary tract infection was due to factors of employment, as alleged.

9

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

10

See C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

11

S.E., id.; Conard Hightower, 54 ECAB 796 (2003).

12

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

4

ORDER
IT IS HEREBY ORDERED THAT the January 12, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 22, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., Appellant
and
DEPARTMENT OF LABOR, MINE SAFETY &
HEALTH ADMINISTRATION, Norton, VA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 11-1628
Issued: December 22, 2011

Case Submitted on the Record

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

JURISDICTION
On July 1, 2011 appellant filed a timely appeal from a February 24, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) finding that he abandoned
his hearing request. Because more than 180 days elapsed between the last merit decision dated
November 15, 2010 to the filing of this appeal, the Board lacks jurisdiction to review the merits
of this case1 pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3.3
ISSUE
The issue is whether OWCP properly found that appellant abandoned his request for a
hearing.
1

An appeal of OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of the
decision. See 20 C.F.R. §§ 501.2(c) and 501.3.
2

5 U.S.C. § 8101 et seq.

3

On September 27, 2011 the Board denied appellant’s request for an oral hearing.

FACTUAL HISTORY
On October 13, 2009 appellant, then a 62-year-old coal mine safety and health inspector,
filed a traumatic injury claim alleging that on October 2, 2009 he sustained a left knee injury
when he twisted it while ascending a stairway. He submitted an October 9, 2009 left knee x-ray;
an October 15, 2009 magnetic resonance imaging (MRI) scan of the left knee and October 22,
2009 work restrictions from Dr. Souhail Shamiyeh, a Board-certified internist.
In an October 14, 2010 letter, OWCP advised appellant of the deficiencies in his claim
and requested additional evidence, including a medical report in which his physician provided a
rationalized medical opinion as to how the work incident caused or aggravated the claimed
injury. Appellant was accorded 30 days in which to provide the requested information. No
additional evidence was submitted.
By decision dated November 15, 2010, OWCP denied appellant’s claim on the basis that
he did not submit medical evidence which diagnosed a medical condition in connection with the
claimed event.
On November 22, 2010 appellant requested an oral hearing.
By letter dated January 12, 2011, OWCP’s Branch of Hearings and Review notified
appellant that a telephone hearing was scheduled for February 16, 2011 at 8:00 a.m. eastern time.
It instructed him to call the provided toll-free number a few minutes before the hearing time and
enter in the pass code when prompted.
On February 14, 2011 OWCP received a letter from appellant indicating that the hearing
scheduled for February 16, 2011 was no longer necessary. Appellant stated that his insurance,
BlueCross BlueShield, had accepted that his knee condition was not work related and had paid
bills from Vanderbilt Hospital.
By decision dated February 24, 2011, OWCP’s Branch of Hearings and Review found
that appellant abandoned his requested hearing. It found that he received written notification of
the hearing 30 days in advance, but failed to appear. The Branch of Hearings and Review further
determined that nothing in the record established that appellant contacted or attempted to contact
OWCP either prior to or subsequent to the scheduled hearing to explain his failure to participate.
OWCP concluded that he abandoned his hearing request.
LEGAL PRECEDENT
Under FECA and its implementing regulations, a claimant who has received a final
adverse decision by OWCP is entitled to receive a hearing upon writing to the address specified
in the decision within 30 days of the date of the decision for which a hearing is sought.4 Unless
otherwise directed in writing by the claims examiner, OWCP’s hearing representative will mail a
notice of the time and place of the hearing to the claimant and any representative at least 30 days

4

5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a).

2

before the scheduled date.5 OWCP has the burden of proving that it mailed notice of a scheduled
hearing to a claimant.6
OWCP’s procedure manual provides that a hearing can be considered abandoned only
under very limited circumstances.7 All three of the following conditions must be present: (1) the
claimant has not requested a postponement; (2) the claimant has failed to appear at a scheduled
hearing; and (3) the claimant has failed to provide any notification for such failure within 10
days of the scheduled date of the hearing. Under these circumstances, OWCP’s hearing
representative will issue a formal decision finding that the claimant has abandoned his or her
request for a hearing.8
Under 20 C.F.R. § 10.622 (a) a claimant and/or representative may withdraw the hearing
request at any time up to and including the day the hearing is held or the decision issued.
Withdrawing the hearing request means the record is returned to the jurisdiction of the district
OWCP and no further requests for a hearing on the underlying decision will be considered.9
ANALYSIS
The Board finds that appellant withdrew his request for a hearing; therefore, OWCP
improperly determined that he abandoned his request for a hearing. OWCP scheduled a
telephonic hearing before an OWCP hearing representative at 8:00 a.m. on February 16, 2011.
The record shows that OWCP mailed appropriate notice to the claimant at his last known
address. In a letter received by OWCP February 14, 2011, appellant requested that the
February 16, 2011 hearing be cancelled as his private insurance accepted the claim and paid his
medical bills. OWCP therefore improperly found that he abandoned his request for a hearing, as
OWCP procedures provide that a finding of abandonment requires that three conditions be met:
the claimant did not request a postponement; the claimant failed to appear at a scheduled
hearing; and the claimant has failed to provide any notification for such failure within 10 days of
the scheduled date of the hearing.10 As appellant requested that the hearing be cancelled prior to
the scheduled date of the hearing, the three conditions for abandonment have not been met.
Appellant requested that the February 16, 2011 hearing be cancelled in a letter which was
received by OWCP on February 14, 2011. As noted, under OWCP’s regulations at section
10.622, appellant may withdraw the hearing request at any time up to and including the day the
hearing is held. Appellant timely withdrew the hearing scheduled for February 16, 2011. For
this reason, no further requests for a hearing on the underlying decision will be considered.
5

20 C.F.R. § 10.617(b).

6

See Michelle R. Littlejohn, 42 ECAB 463 (1991).

7

Claudia J. Whitten, 52 ECAB 483 (2001).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(e) (January 1999).
9

20 C.F.R. § 10.622(a).

10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(e) (January 1999).

3

On appeal, appellant references billing issues between BlueCross BlueShield and
Vanderbilt Hospital with regard to his nonwork-related knee operation. The Board has no
jurisdiction over this matter as it does not involve a determination with respect to claims of
federal employees under FECA.11 Furthermore, there are no provisions in FECA or the
regulations for payment to an injured employee of medical and other expenses incurred but not
actually paid by the employee.12
CONCLUSION
The Board finds that appellant withdrew his request for a hearing and is therefore not
entitled to a hearing before OWCP regarding the same issue. However, OWCP improperly
determined that appellant abandoned his request for a hearing.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 24, 2011 is affirmed as modified.
Issued: December 22, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

11

5 U.S.C. § 8149; Glenn E. Erickson, 25 ECAB 9, 16 (1973).

12

See generally P.C., 59 ECAB 587 (2008).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
WEAPONS STATION EARLE, Colts Neck, NJ,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
James S. Lomax, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1966
Issued: March 4, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 25, 2012 appellant, through her attorney, filed a timely appeal from an
August 29, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP) that
denied her claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
November 25, 2011.
On appeal appellant’s attorney asserts that OWCP’s decision is based on erroneous
findings of fact and conclusions of law.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On December 21, 2011 appellant, then a 53-year-old security assistant, filed a traumatic
injury claim alleging that on November 25, 2011, while moving boxes in an employing
establishment attic, she sustained cellulitis and a blood clot in her left leg. She stopped work on
November 28, 2011.
In a November 28, 2011 report, Dr. Warren K. Churgin, an internist, noted a history that
appellant had a sore throat, cough and tender left calf for one week. He provided physical
examination findings, noting that the left calf was tender to palpation but not hot, red or swollen.
Dr. Churgin diagnosed acute tonsillitis and deep vein thrombosis (DVT) of the left lower
extremity and recommended a venous Doppler study. He noted additional conditions of rosacea,
anxiety disorder, Crohn’s disease, herpes simplex, thyroid nodule, lumbar and thoracic
radiculitis, reflux esophagitis and postgastric bypass for obesity.
On December 29, 2011 the employing establishment controverted the claim. It submitted
a November 28, 2011 venous Doppler study report advising that there was no sonographic
evidence of DVT in the left lower extremity. In separate disability slips dated November 28,
2011, Dr. Churgin advised that appellant could return to work on November 30, 2011 and also
on December 5, 2011.
On prescription blanks dated December 12, 2011, Dr. Venitha Yadalla, a Board-certified
internist, advised that appellant had been under her care since December 3, 2011 for a left leg
DVT. She should not work for one week and then could perform light duty. In a January 9,
2012 report, Dr. Churgin noted that appellant was diagnosed with a left DVT after a second
Doppler study.
On January 5, 2012 OWCP informed appellant of the evidence needed to develop her
claim. In a January 25, 2012 statement, appellant provided a timeline regarding the claimed
injury. She indicated that the attic in which she was working on Friday, November 25, 2011, had
mice droppings, spiders and centipedes. Appellant and other employees went up to the attic that
morning. When they returned downstairs for lunch, she had left leg pain and her ankle was red.
Appellant told someone that something bit her. She spent the weekend resting and had chills and
fever. On Monday, November 28, 2011, appellant went to work and told personnel that her leg
was still bothering her and she went to see Dr. Churgin later that morning.
In a January 12, 2012 report, Dr. Yadalla noted that appellant reported that she injured
her left leg at work on November 25, 2011 and was treated since December 3, 2011. She
reviewed physician reports, hospital records and Doppler results, and opined that appellant’s
DVT diagnosis resulted in cellulitis and appellant’s “injury to left leg is directly related to her
present DVT condition.” Dr. Yadalla noted that the condition required close monitoring and
appellant had been removed from work until February 2, 2012. She appended a list of enclosed
medical reports, including reports from Centra State Medical Center dated December 1
to 13, 2011. These reports are not in the case record.

2

By decision dated February 8, 2012, OWCP denied the claim finding that the medical
evidence was not sufficient to establish that appellant’s left leg condition was causally related to
the accepted work event.
Appellant, through her attorney, timely requested a hearing.
In a December 12, 2011 certification of health care provider, Dr. Yadalla advised that
appellant had a left DVT for which she was on medication and could not constantly walk, sit or
stand. The condition commenced on December 3, 2011 and would probably last three to six
months. Dr. Yadalla noted that appellant’s pain could be crippling and that she was
incapacitated for the period December 4, 2011 to January 4, 2012. In a second health care
provider form dated February 6, 2012, she reiterated the diagnosis and conclusion that the
condition would last three to six months. Dr. Yadalla advised that appellant needed continued
leave for the period February 2 to 27, 2012, noting that appellant was still experiencing pain and
cramps “at the site of injury/DVT” and had not reached a therapeutic anticoagulation level.
Appellant was experiencing high blood pressure readings due to stress-related job issues, and the
conditions were “directly related to current on-the-job injury, leave status and financial status.”
Dr. Yadalla noted that appellant was scheduled for a Doppler test on February 16, 2012. In an
April 29, 2012 report, she stated that appellant provided a history of having been bitten by an
unknown insect at approximately 11:00 a.m. on November 25, 2011. At 2:00 p.m. that day,
appellant began to experience fever and chills. Dr. Yadalla described Dr. Churgin’s reports and
the negative Doppler study. She indicated that appellant went to the emergency room on
December 3, 2011 due to increasing left leg pain, cramping, swelling and rash and a Doppler test
there revealed a blood clot that caused a DVT. Dr. Yadalla described appellant’s treatment and
the physiology of a DVT and noted that she also had Crohn’s disease which included a weakened
immune system. She stated:
“An insect bite penetrated the skin spreading to deeper tissues. As the bacteria
spreads, patient experiences fever, chills and swollen glands as a common sign.
The antibiotics given to treat at home do not go directly to the blood stream and
intravenous drugs are often required, thus resulting in a diagnosis of with
[c]ellulitis.”
Dr. Yadalla continued that, when bacteria from an insect goes into the blood and creates this
reaction, there is no way of diagnosing what type of insect bit appellant. She opined that
appellant’s reaction was from an insect that carried a bacteria that the patient’s immune system
could not obliterate. In an April 30, 2012 treatment note, Dr. Yadalla noted that appellant felt
less stressed, but still had heightened anxiety and still had soreness and cramps of the left leg.
She diagnosed status post left leg DVT, anxiety and hypertension.
At the hearing, held on June 12, 2012, appellant testified regarding the November 25,
2011 visit to the attic at work. At lunch, she noticed her leg hurt and she developed chills and
fever. Appellant reported to coworkers that maybe something bit her. She left work early, was
sick all weekend and went to work Monday morning. Appellant went to see Dr. Churgin who
prescribed medication. She stated that her condition worsened, and that she went to the
emergency room on Friday, December 2, 2012 and Saturday, December 3, 2012, when she was
admitted. Appellant was discharged on December 6, 2012 and saw Dr. Yadalla for follow-up

3

care. She discussed photographs of record showing her left lower extremity with a rash and a
purported insect/spider bite. Appellant stated that at the present time she was working four hours
a day with restrictions. The hearing representative advised appellant and her attorney that
contemporaneous medical evidence was needed to support that she was bitten at work. The
record was left open for 30 days.
In a June 12, 2012 statement, a Cheri A. Williams, indicated that on November 28, 2011
appellant reported that she had been ill with chills and fever the previous weekend, that her left
leg hurt, and that she thought something bit her while she was in the attic. Appellant showed her
ankle, which was swollen and red.
In correspondence dated July 9, 2012, Marcy Claire Boyle-Fetherman, an injury
compensation specialist, noted that the employing establishment had no medical documentation
as to when a bug bite might have occurred. The employing establishment submitted a
December 21, 2011 e-mail from a coworker who indicated that on November 25, 2011 she,
appellant, and other personnel were in the attic.
In treatment notes dated June 28 and July 12, 2012, Dr. Yadalla noted that appellant
reported having problems at work and with her workers’ compensation claim. Appellant had
gone to the emergency room with a panic attack and was planning on quitting her job because it
was too stressful. Dr. Yadalla diagnosed hypertension, anxiety, depression, panic attacks and
insomnia.
In an August 29, 2012 decision, an OWCP hearing representative denied appellant’s
claim finding that the evidence did not establish that her left leg condition was due to her work
activity on November 25, 2011. She noted that the contemporaneous medical evidence did not
establish that appellant sustained a bug bite, and that Dr. Churgin’s November 28, 2011 report
stated unequivocally that there was no swelling or redness in the calf.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, 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. Regardless of whether the asserted claim involves traumatic
injury or occupational disease, an employee must satisfy this burden of proof.2
OWCP regulations, at 20 C.F.R. § 10.5(ee) define a traumatic injury as a condition of the
body caused by a specific event or incident or series of events or incidents within a single
workday or shift.3 To determine whether an employee sustained a traumatic injury in the
performance of duty, OWCP must determine whether “fact of injury” is established. First, an
2

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

3

20 C.F.R. § 10.5(ee); Ellen L. Noble, 55 ECAB 530 (2004).

4

employee has the burden of demonstrating the occurrence of an injury at the time, place and in
the manner alleged, by a preponderance of the reliable, probative and substantial evidence.
Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish a causal relationship between the employment incident and the alleged
disability and/or condition for which compensation is claimed. An employee may establish that
the employment incident occurred as alleged, but fail to show that his or her disability and/or
condition relates to the employment incident.4
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.5 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.6 Neither the mere fact that a disease or condition manifests itself during a period of
employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.7
ANALYSIS
The Board finds that on November 25, 2011 appellant was moving boxes in an attic at the
employing establishment. The incident was accepted by OWCP. The Board, however, finds that
the medical evidence of record is insufficient to establish that she sustained a bug bite or left leg
injury caused by this incident.
The medical evidence contemporaneous with the claimed injury includes Dr. Churgin’s
November 28, 2011 report. Dr. Churgin noted that appellant had a history of a tender calf for a
week. Physical examination demonstrated left leg tenderness, but the extremity was not hot, red
or swollen. Dr. Churgin did not mention a history of a bug bite or other trauma to the leg. He
diagnosed acute tonsillitis and ordered a Doppler study that was negative for DVT. The history
reported to Dr. Churgin, his physical findings and the November 28, 2011 Doppler study fail to
support that appellant sustained a bug bite at work on November 25, 2011 or any other workrelated medical condition.
Dr. Yadalla submitted reports beginning on December 3, 2011. While appellant testified
at the hearing and Dr. Yadalla reported that appellant had been hospitalized with a diagnosis of
DVT, there are no hospital records before the Board. On January 12, 2012 Dr. Yadalla reported
that appellant’s injury to her left leg was related to the DVT but did not report a history of calf
tenderness as reported to Dr. Churgin. She submitted additional reports in which she advised
that appellant could not work and diagnosed other conditions, such as hypertension and stress. It
was not until April 29, 2012, five months after the November 25, 2011 employment incident,
4

Gary J. Watling, supra note 2.

5

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

6

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 385 (1989).

7

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

5

that Dr. Yadalla noted that appellant reported that she was possibly bitten by an insect on
November 25, 2011, which could lead to cellulitis or DVT. While the opinion of a physician
supporting causal relationship need not be one of absolute medical certainty, the opinion must
not be speculative or equivocal. The opinion should be expressed in terms of a reasonable
degree of medical certainty.8
The opinion of a physician supporting causal relationship must be one of reasonable
medical certainty that the condition for which compensation is claimed is causally related to
federal employment and such relationship must be supported with affirmative evidence,
explained by medical rationale and be based upon a complete and accurate medical and factual
background of the claimant.9 Dr. Yadalla did not provide sufficient explanation as to how
appellant sustained a bug bite on November 25, 2011 that caused her DVT and necessitated total
disability. Her opinion is therefore insufficient to meet appellant’s burden of proof.
The photographs submitted by appellant do not constitute competent medical evidence as
they include no certification of the specific time and place of photography or a medical opinion
as to what the photographs demonstrate.
The Board finds that as appellant did not submit sufficient medical evidence to establish
that she sustained a left leg condition caused by the November 25, 2011 employment incident.
She did not meet 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 did not establish that she sustained an injury causally
related to the November 25, 2011 employment incident.

8

Ricky S. Storms, 52 ECAB 349 (2001).

9

Patricia J. Glenn, 53 ECAB 159 (2001).

6

ORDER
IT IS HEREBY ORDERED THAT the August 29, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 4, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Milwaukee, WI, Employer
)
___________________________________________ )
C.H., Appellant

Appearances:

Docket No. 08-1825
Issued: February 5, 2009

Case Submitted on the Record

Appellant, pro se
Office of Solicitor, for the Director

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

JURISDICTION
On June 17, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated June 12, 2008, which granted her a schedule
award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of the case.
ISSUE
The issue is whether appellant has more than a seven percent permanent impairment of
the left lower extremity.
FACTUAL HISTORY
On May 26, 2005 appellant, then a 48-year-old letter carrier, filed a traumatic injury
claim alleging that, on February 23, 2005, while delivering her mail route she experienced left
leg and knee pain. She stopped work on May 19, 2005 and returned to a light-duty job on
February 13, 2006. The Office accepted appellant’s claim for a lesion of the medial femoral
condyle and authorized arthroscopic surgery which was performed on May 31, 2005.

Appellant came under the treatment of Dr. James R. Flesch, a Board-certified orthopedic
surgeon, who treated her for left knee pain. Dr. Flesch noted an x-ray of the left knee
demonstrated no abnormalities and diagnosed left knee pain with possible internal derangement.
On May 25, 2005 he advised that appellant’s left knee gave way as she was walking down steps
causing her to fall. A May 23, 2005 magnetic resonance imaging (MRI) scan of the left knee
revealed a tear of the medial meniscus and a questionable tear of the lateral meniscus. On
May 31, 2005 Dr. Flesch performed arthroscopic surgery on the left knee, chondroplasty of the
medial femoral condyle and diagnosed medial femoral condyle defect of the left knee. In reports
dated June 17 and 30, 2005, he diagnosed osteochondral lesion of the left medial femoral
condyle. Dr. Flesch returned appellant to sedentary work on August 1, 2005. On April 5, 2006
he opined that appellant reached maximum medical improvement and diagnosed medial
compartment osteoarthritis of the left knee and status post medial femoral chondroplasty. On
January 10, 2007 Dr. Flesch provided permanent sedentary restrictions.
On October 6, 2007 appellant filed a claim for a schedule award. On April 8, 2008
Dr. Flesch advised that appellant was post chondroplasty of the medial femoral condyle and
reached maximum medical improvement on April 5, 2006. He noted that appellant’s pain
symptoms were controlled by medication but she still experienced episodes of swelling.
Dr. Flesch noted findings upon physical examination of no limp, normal alignment, no definite
effusion, range of motion of 0 to 115 degrees on the right compared to 0 to 140 degrees on the
left, mild crepitus was present and varus/valgus strain was zero degrees with slight medial laxity
with valgus strain on the left. He noted that standing x-rays were obtained and the sunrise views
revealed no narrowing of the patellofemoral space, the standing upright view demonstrated
narrowing of the medial compartment of the left knee compared to the right, a small anterior
osteophyte formation on the medial tibial plateau and the medial joint compartment measured
three millimeters (mm). Dr. Flesch noted that, under the fifth edition of the of the American
Medical Association, Guides to the Evaluation of Permanent Impairment,1 (A.M.A., Guides),
appellant sustained a seven percent impairment of the left lower extremity and referenced Table
17-31, page 544.
In a report dated May 8, 2008, the Office medical adviser agreed that appellant sustained
seven percent impairment of the left lower extremity. He noted that maximum medical
improvement occurred on April 5, 2006. Dr. Flesch noted that appellant had four percent
impairment for Grade 3 pain in the distribution of the femoral nerve to the left knee2 and three
percent impairment for arthritis based on cartilage interval.3 The medical adviser noted using the
Combined Values Chart to arrive at seven percent impairment of the left lower extremity.
In a decision dated June 12, 2008, the Office granted appellant a schedule award for
seven percent permanent impairment of the left lower extremity. The period of the schedule
award was from April 5 to August 24, 2006.

1

A.M.A., Guides (5th ed. 2001).

2

Id. at 482, 552, Table 16-10, 17-37.

3

Id. at 544, Table 17-31.

2

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act4 and its
implementing regulations5 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.
ANALYSIS
On appeal, appellant contends that she has greater impairment than the seven percent
rating of the left lower extremity.
In a report dated April 8, 2008, Dr. Flesch noted that appellant’s pain symptoms were
controlled by medication but she still experienced episodes of swelling. He noted a range of
motion of 0 to 115 degrees on the right, 0 to 140 degrees on the left and mild crepitus.
Dr. Flesch found that standing x-rays with sunrise views revealed no narrowing of the
patellofemoral space, the standing upright view demonstrated narrowing of the medial
compartment of the left knee compared to the right, a small anterior osteophyte formation on the
medial tibial plateau and a medial joint compartment measuring three mm. He advised that in
accordance with the A.M.A., Guides appellant had seven percent impairment of the left lower
extremity pursuant to Table 17-31, page 544.
The Office’s medical adviser reviewed Dr. Flesch’s findings and correlated them to
provisions in the A.M.A., Guides. On report dated May 8, 2008 he advised that appellant
sustained seven percent impairment of the left lower extremity. For sensory deficit or pain,
appellant was classified as Grade 3, for a 60 percent sensory deficit or pain,6 in the distribution
of femoral nerve. The A.M.A., Guides provides that the maximum allowed for total impairment
of the femoral nerve is two percent.7 The Board notes that, when the maximum for the femoral
nerve, 2 percent, is multiplied by the 60 percent allowed for a Grade 3 sensory deficit, this yields
1.2 percent impairment, rounded to 1 percent, for sensory loss.8 The medical adviser calculated
that appellant had four percent impairment of the left lower extremity for sensory deficit or pain
in the distribution of the femoral nerve, under Table 16-10 of the A.M.A., Guides.9 Therefore,
he incorrectly calculated appellant’s impairment for sensory deficit or pain in the distribution of
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404 (1999).

6

A.M.A., Guides at 482, Figure 16-10.

7

Id. at 552, Figure 17-37.

8

Id. at 482, 552, Table 16-10, 17-37.

9

Id. at 482, Figure 16-10.

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the femoral nerve. Additionally, the medical adviser incorrectly found that appellant had three
percent impairment for an arthritis cartilage interval of three mm. The A.M.A., Guides provides
for seven percent impairment of the lower extremity, not three percent, when the arthritis
cartilage interval is three mm based on x-ray.10
Using the Combined Values Chart,11 this revised calculation would provide appellant
with eight percent permanent impairment of the left lower extremity. The Board will modify the
Office’s June 12, 2008 decision to reflect that appellant has eight percent permanent impairment
to her left knee.
On appeal, appellant asserts that the amount of the schedule award is insufficient as she
can no longer work. The Board has held, however, that the amount payable pursuant to a
schedule award does not take into account the effect that the impairment has on employment
opportunities, wage-earning capacity, sports, hobbies or other lifestyle activities.12
CONCLUSION
The Board finds that appellant has no more than eight percent permanent impairment of
the left lower extremity.

10

Id. at 544, Figure 17-31.

11

Id. at 605.

12

Ruben Franco, 54 ECAB 496 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the June 12, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: February 5, 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

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