United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.S., Appellant
and
DEPARTMENT OF THE ARMY, Monterey, CA,
Employer
__________________________________________

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

Docket No. 12-144
Issued: May 17, 2012

Case Submitted on the Record

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

JURISDICTION
On October 28, 2011 appellant, through her attorney, filed a timely appeal from a June 1,
2011 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 an injury causally
related to the accepted July 23, 2010 employment incident.
FACTUAL HISTORY
On September 1, 2010 appellant, then a 46-year-old assistant professor, filed a traumatic
injury claim, alleging that she sustained back injury on July 23, 2010 while moving her office
from the third floor to the first floor. She claimed that lifting boxes and binders, as well as
moving her desk caused injury in her back, hip and right leg, with radiation of pain into her right
leg.
1

5 U.S.C. § 8101 et seq.

On September 8, 2010 OWCP requested that appellant submit additional evidence
including a medical report containing a diagnosis of her condition and medical rationale in
support of that diagnosis.
Dr. Michelle Krueger-Kalinski, a Board-certified physician in emergency medicine,
stated in an August 26, 2010 report that appellant had to carry numerous items up and down the
stairs about seven times on July 23, 2010 and that appellant started having back pain
immediately thereafter. She also noted that appellant’s MRI scan revealed an “L4-5 broad-based
dis[c] bulging with annular fissure in the left foraminal region as well as facet arthropathy and a
small osteophyte causing mild narrowing of the spinal canal -- both neural foramina.”
Dr. Krueger-Kalinski diagnosed severe intractable right lower extremity radiculopathy secondary
to L4-5 disease. On a form report she checked “yes” to the question: “Are your findings and
diagnosis consistent with patient’s account of injury or onset of illness?”
A physical therapist reported on August 30, 2010 stated that appellant was being treated
for lumbar pain with right sciatica consistent with L5 nerve compression and possible disc bulge
at L5-S1.
In an October 5, 2010 report, Dr. Linda Smith, a family practitioner, diagnosed appellant
with low back pain and answered “yes” to the question of whether appellant’s injury was work
related. She also referred appellant to Dr. Dragan Dimitrov, a Board-certified neurosurgeon.
On October 14, 2010 OWCP received a magnetic resonance imaging (MRI) scan report
dated August 24, 2010 from Dr. Danied Braslau, a Board-certified diagnostic radiologist, who
diagnosed lower lumber spondylosis.
By decision dated October 18, 2010, OWCP accepted the incident but denied appellant’s
claim on the grounds that she had failed to establish that she sustained an injury causally related
to her accepted work incident.
Appellant submitted a request for hearing before the Branch of Hearings and Review on
November 10, 2010.
Dr. Dimitrov reported on February 24, 2011 that appellant alleged that pain in her right
hip and lower back began on July 23, 2010 after moving her desk. He diagnosed her with
degenerative changes of the lumbar spine at L4-5 with moderate lateral recess stenosis and disc
protrusion. Dr. Dimitrov indicated that “it is clear that [appellant’s] right leg symptoms began at
the time of the incident in her office,” but that “it is difficult to tell whether her symptoms are
related to a lumbar strain or due to the lumbar spondylosis and dis[c] protrusion.”
In an April 26, 2011 report, Dr. Dimitrov diagnosed appellant with lumbar stenosis of the
lateral recess which has a degenerative pattern. He also stated that she “does have a disc bulge
which could be post-traumatic and related to her work-related injury.” Dr. Dimitrov noted that it
is plausible that the desk lifting incident aggravated the preexisting degenerative stenosis, and
caused a disc bulge which led to her current constellation of symptoms, but there is no way to be
absolutely certain. He further stated that, because appellant had no clear nerve root signs, or
radiculopathy, it was equally plausible, that her symptoms are caused by a muscular or tendon
strain as a result of the desk lifting incident.

2

On June 1, 2011 OWCP’s hearing representative affirmed the denial of appellant’s claim
on the grounds that the medical evidence was not sufficient to establish that a medical condition
was causally related to the work event.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his claim by the weight of the evidence,3 including that she sustained an
injury in the performance of duty and that any specific condition or disability for work for which
she claims compensation is causally related to that employment injury.4 As part of her burden,
the employee must submit rationalized medical opinion evidence based on a complete factual and
medical background showing causal relationship.5 The weight of medical evidence is determined
by its reliability, its probative value, its convincing quality, the care of the analysis manifested
and the medical rationale expressed in support of the physician’s opinion.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. 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. 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 In
addition, the Board has long held that medical conclusions unsupported by rationale are of
diminished probative value and insufficient to establish causal relationship.8
ANALYSIS
Appellant has alleged that she sustained back, hip and right leg injuries as a result of
lifting and moving heavy boxes, binders and her desk during an office move on July 23, 2010.
The Board finds that she has submitted insufficient medical evidence to establish that her alleged
medical conditions were causally related to her accepted work event.
Appellant has submitted medical reports which provide several diagnoses of her low back
condition.

2
3

5 U.S.C. §§ 8101-8193.
J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

4

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

G.T., id. Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

6

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

7

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

8

See Albert C. Brown, 52 ECAB 152 (2000).

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Causal relationship between appellant’s diagnosed back condition and her workplace
injury must be established by a physician’s rationalized medical opinion. Dr. Krueger-Kalinski’s
August 26, 2010 medical report noted appellant’s workplace incident, and also provided a
diagnosis for appellant’s condition, severe intractable right lower extremity radiculopathy,
secondary to L4-5 disc disease. However, the report did not contain a rationalized medical
opinion establishing the requisite causal link. Dr. Krueger-Kalinski answered “yes” to indicate
that appellant’s findings and diagnosis were consistent with her account of injury or onset of
illness. However, she did not discuss whether appellant’s condition was degenerative in nature,
and she did not discuss how appellant’s activities during the move on July 23, 2010 caused the
condition he diagnosed approximately one month later. The Board has held that an opinion on
causal relationship, which consists only of a physician checking “yes” to a medical form report
question on whether the claimant’s disability was related to the history, is of diminished
probative value.9 As such, this report is of limited probative value.
On August 24, 2010 Dr. Braslau diagnosed lower lumbar spondylosis, on the basis of
appellant’s MRI scan examination, but he offered no opinion regarding the cause of appellant’s
condition.
A physical therapist reported on August 30, 2010 that appellant was being treated for
lower back pain with right sciatica consistent with L5 nerve compression and possible L5-S1
herniated disc. Section 8101(2) of 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. As nurses, physician’s
assistants, physical and occupational therapists are not “physicians” as defined by FECA, their
opinions regarding diagnosis and causal relationship are of no probative medical value.10
Dr. Smith’s October 5, 2010 report also lacks probative value as it does not provide a
rationalized medical explanation of causal relationship between a diagnosed condition and the
accepted work event. She also checked a box “yes” indicating that appellant’s low back pain
was work related, but she offered no other opinion regarding appellant’s diagnosis or causal
relationship.
Dr. Dimitrov’s February 24 and April 26, 2011 medical reports did not provide a
definitive diagnosis of appellant’s condition or definitive opinion regarding the cause of her
condition. He opined that she had a disc bulge which “could be” post-traumatic and related to
her work incident, but he also stated that it was plausible that the desk lifting incident aggravated
preexisting degenerative stenosis and caused a disc bulge. But then Dr. Dimitrov noted that
since appellant had no clear-cut nerve root “signs” or radiculopathy, it was equally plausible that
appellant’s symptoms were caused by a muscle or tendon strain. His reports are speculative in
nature and do not establish a clear diagnosis based upon objective medical findings. Moreover
neither report provided medical rationale explaining how appellant’s back conditions were
caused by her specific move-related activities on July 23, 2010. Dr. Dimitrov merely concluded
that “desk-lifting” could have aggravated her condition. As noted above, a physician’s opinion
on causal relationship must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific compensable employment factors.
9

Lucrecia, M. Nelson, 42 ECAB 583, 594 (1991).

10

See Roy L. Humphrey, 57 ECAB 238 (2005).

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The Board has held that medical reports consisting solely of conclusory statements without
supporting rationale are of little probative value.11
In the absence of rationalized medical opinion evidence, appellant failed to meet her
burden.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an injury as a
result of her employment activities on July 23, 2010.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 1, 2011 is affirmed.
Issued: May 17, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11

A.C., Docket No. 11-1800 (issued March 21, 2012); William C. Thomas, 45 ECAB 591 (1994).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.N., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Newark, NJ, Employer
__________________________________________

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Appearances:
Appellant, pro se
Catherine P. Carter, Esq., for the Director

Docket No. 14-1764
Issued: December 2, 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 August 14, 2014 appellant filed a timely appeal from a March 12, 2014 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he was in the
performance of duty when injured on January 15, 2014.
On appeal, the Director of OWCP filed a November 19, 2014 pleading in which she
asserts that the decision on appeal should be affirmed pursuant to the “going and coming rule.”2
1

5 U.S.C. § 8101 et seq.

2

Rosa M. Thomas-Hunter, 42 ECAB 500 (1991).

She contends that, while appellant was clearly commuting to a training when the motor vehicle
accident occurred, he was approximately 7.5 miles away and had not yet signed in at the offsite
facility. The Director further contends that none of the recognized exceptions to the “going and
coming rule” apply to the present case, and as appellant has not demonstrated that he was doing
anything other than coming or going to work, his injury did not occur in the performance of duty.
FACTUAL HISTORY
On January 18, 2014 appellant, then a 30-year-old federal air marshal whose duty station
was located in West Orange, New Jersey, filed a traumatic injury claim alleging that he sustained
a cervical spine fracture, a collapsed right lung, a concussion, numerous lacerations, high blood
loss, and extensive bruising when he was involved in a motor vehicle accident at 7:50 a.m. on
January 15, 2014. He stated that the accident occurred while he was en route from his home in
Cream Ridge, New Jersey to an offsite training class in New Lisbon, New Jersey. Joseph J.
Koury, an employing establishment supervisor, controverted the claim, stating that appellant was
not in the performance of duty and was driving his personal vehicle at the time of the accident.
Appellant stopped work on January 15, 2014.
In an e-mail dated January 21, 2014, Mr. Koury stated that appellant’s January 15, 2014
training class was scheduled from 8:00 a.m. to 3:30 p.m. and he had instructed the air marshals
to arrive at the training venue at 7:30 a.m. Those air marshals electing to use governmentprovided transportation were to arrive at the employing establishment at 6:30 a.m. for transit to
the training facility. Mr. Koury noted that, because appellant lived near the training venue, he
was authorized to use his personal vehicle for transportation, as did two other air marshals.
Appellant was not provided mileage reimbursement. At 5:44 a.m. on January 15, 2014
Mr. Koury notified training attendees by e-mail that the weather conditions were hazardous, and
he advised everyone to exercise caution and take their time. He changed the arrival time to 7:45
a.m. as he did not want anyone to rush due to the poor road conditions.
A New Jersey Police crash investigation report dated January 15, 2014 indicated that a
motor vehicle accident occurred at approximately 7:39 a.m. that morning on State Highway 70 in
Pemberton Township. The roadway was wet with heavy fog in the air. Appellant was forced off
the road by another vehicle, lost control, and was struck by a third vehicle.3 He was transported
to Cooper University Hospital Trauma Center in Camden, New Jersey. In a discharge report
dated January 15, 2014, Dr. Ju Lin Wang, noted that appellant was diagnosed with a fracture of
the occipital condyle on the right, a pneumothorax on the right, and a scalp laceration. He was
discharged on January 16, 2014 with a neck brace and was to follow-up with his primary care
physician and Dr. Johnathan David Bussey, an osteopath who practices neurosurgery.4 By letter

3

Two witnesses verified the circumstances of the collision.

4

A computerized tomography (CT) scan of the head and cervical spine at 9:40 a.m. on January 15, 2014
demonstrated a nondisplaced right occipital condyle fracture, a right apical pneumothorax, no intracranial
hemorrhage, and no acute facial bone fractures. Portable bilateral shoulder x-rays were unremarkable. An abdomen
and pelvis CT scan demonstrated no acute injury. A follow-up chest x-ray on January 23, 2014 demonstrated no
pneumothorax or pleural effusion.

2

dated February 7, 2014, OWCP informed appellant of the evidence needed to support his claim
and also requested evidence from the employing establishment.
An ambulance service report dated January 15, 2014 indicated that upon arrival at the
crash scene, appellant was sitting in his vehicle with blood on his face and did not appear to be in
distress. He was stabilized and transported to Cooper Trauma Center. In a January 15, 2014
consultation report, Dr. Bussey noted that appellant was neurologically intact. He diagnosed
right occipital condyle fracture, status-post motor vehicle accident and prescribed a cervical
collar for six weeks and pain medication. On March 4, 2014 Dr. Bussey advised that appellant
could return to work on March 10, 2014.
In a March 4, 2014 statement, appellant related that he was instructed by his supervisor to
attend a training class being held in New Lisbon, New Jersey, on January 15, 2014, and he was
authorized to report directly to the venue rather than first reporting to the employing
establishment. He indicated that the motor vehicle accident occurred approximately 7.5 miles
from the training location at 7:50 a.m. on January 15, 2014. Appellant maintained that he was in
pay status and indicated that he did not receive mileage reimbursement for using his personal
vehicle to travel to the training site. He attached e-mail correspondence dated January 13, 2014
which provided directions to the training facility. A timesheet signed by appellant but not by a
supervisor indicates that his compensable hours were 7:45 a.m. to 3:45 p.m. and he claimed 0.25
hours of regular pay and 7.75 hours of sick leave. He returned to full-time modified duty on
March 10, 2014.
In correspondence dated March 10, 2014, David Wichterman, an employing
establishment workers’ compensation manager, advised that since appellant lived near the
training facility, for his personal convenience he was allowed to drive his personal vehicle and
report directly for training on January 15, 2014. He maintained that appellant was not in the
performance of duty because the motor vehicle accident occurred off-premises and, at the time of
the accident, he was not engaging in any duties related to his employment. Mr. Wichterman
cited the case M.H. in which the Board affirmed the rescission of acceptance of injuries sustained
in a motor vehicle accident when the employee in that case, also a federal air marshal, was
injured while driving to work.5
In an undated statement, appellant asserted that he was in the performance of duty on
January 15, 2014 because he was on the clock, and his ability to report directly to the training
avoided approximately three hours of overtime pay status. He indicated that his assigned duty
location was at an employing establishment field office 15 miles from an airport and he attached
the January 21, 2014 e-mail communication from Mr. Koury.
By decision dated March 12, 2014, OWCP denied the claim, finding that appellant was
not in the performance of duty when injured on January 15, 2014.

5

Docket No. 10-1337 (issued April 19, 2011).

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LEGAL PRECEDENT
Congress, in providing for a compensation program for federal employees, did not
contemplate an insurance program against any and every injury, illness or mishap that might
befall an employee contemporaneous or coincidental with his or her employment. Liability does
not attach merely upon the existence of an employee/employer relation. Instead, Congress
provided for the payment of compensation for “the disability or death of an employee resulting
from personal injury sustained while in the performance of his duty.”6 The phrase “while in the
performance of duty” has been interpreted by the Board to be the equivalent of the commonly
found prerequisite in workers’ compensation law of “arising out of and in the course of
employment.” In addressing this issue, the Board has stated: “In the compensation field, to
occur in the course of employment, in general, an injury must occur: (1) at a time when the
employee may reasonably be said to be engaged in his or her master’s business; (2) at a place
where he or she may reasonably be expected to be in connection with the employment; and
(3) while he or she was reasonably fulfilling the duties of his or her employment or engaged in
doing something incidental thereto.”7 In deciding whether an injury is covered by FECA, the
test is whether, under all the circumstances, a causal relationship exists between the employment
itself, or the conditions under which it is required to be performed, and the resultant injury.8
The Board has recognized, as a general rule that off-premises injuries sustained by
employees having fixed hours and places of work while going to or coming from work, are not
compensable as they do not arise out of and in the course of employment. Such injuries are
merely the ordinary, nonemployment hazards of the journey itself which are shared by all
travelers. There are recognized exceptions which are dependent upon the particular facts relative
to each claim: (1) where the employment requires the employee to travel on the highways;
(2) where the employing establishment contracts to and does furnish transportation to and from
work; (3) where the employee is subject to emergency calls, as in the case of firefighters; and
(4) where the employee uses the highway to do something incidental to his employment with the
knowledge and approval of the employing establishment.9
In addressing the going and coming rule, Larson states, “When the employee is paid an
identifiable amount as compensation for time spent in a going or coming trip, the trip is within
the course of employment.”10 The Board has held that an exception to the general going and
coming rule is made for travel from home when the employee is to perform a “special errand”:
in such a situation the employer is deemed to have agreed, expressly or impliedly, that the
employment service should begin when the employee leaves home to perform a special errand.
Ordinarily, cases falling within this exception involve travel which differs in time, or route, or
because of an intermediate stop, from the trip which is normally taken between home and work.
6

5 U.S.C. § 8102(a); Angel R. Garcia, 52 ECAB 137 (2000).

7

George E. Franks, 52 ECAB 474 (2001).

8

Mark Love, 52 ECAB 490 (2001).

9

Supra note 4.

10

A. Larson, The Law of Workers’ Compensation § 14.06(1) (2008).

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In such a case the hazard encountered in the trip may differ somewhat from that involved in
normally going to and returning from work. However, the essence of the exception is not found
in the fact that a greater or different hazard is encountered but in the agreement to undertake a
special task. For this reason, coverage is afforded from the time the employee leaves home, even
though in time and route the journey may be, in part, identical to that normally followed in going
to work.11
ANALYSIS
Appellant’s fixed duty station was at an employing establishment field office located in
West Orange, New Jersey. On January 15, 2014 he left his home in Cream Ridge, New Jersey,
to drive his personal vehicle to a training class held at an offsite location in New Lisbon, New
Jersey. The employing establishment provided transportation from appellant’s duty station to the
training location, but appellant had permission to drive to the training in his personal vehicle
because the offsite location was closer to his home. At approximately 7:39 a.m. that morning
appellant was injured in a motor vehicle accident as he was traveling to the New Lisbon, New
Jersey training session. He had been instructed to arrive at the training at 7:45 a.m.
The employing establishment controverted the claim, noting that appellant was driving
his personal vehicle at the time of the accident. Both Mr. Koury, appellant’s supervisor, and
Mr. Wichterman, an employing establishment workers’ compensation program manager, noted
that appellant was permitted to drive his personal vehicle to the training session for personal
convenience and asserted that, because appellant’s injury occurred off premises and when he was
not engaging in any duties related to his employment, he was not in the performance of duty.
As noted above, as a general rule, off-premises injuries sustained by employees having
fixed hours and places of work while going to or coming from work, are not compensable as they
do not arise out of and in the course of employment. Such injuries are merely the ordinary,
nonemployment hazards of the journey itself which are shared by all travelers.12 While appellant
did not have fixed weekly hours as an air marshal, the record supports that he was instructed to
report for training at 7:45 a.m. on January 15, 2014. Regarding the exceptions to the going and
coming rule, appellant’s employment did not require that he travel on the highways and he was
not engaged in a special errand or mission incident to his employment at the time of the injury.
The accident occurred on a public highway, which was not a part of or under the control of the
employing establishment. As the Board noted in the case Joyce Hodge,13 the fact that appellant
was reporting to an alternate work site or that she was attending training did not exclude her
from the going and coming rule. The Board concluded that appellant’s injury was the result of
an ordinary, nonemployment hazard of the journey itself, which was shared by all travelers.

11

Elmer L. Cook, 11 ECAB 163 (1964).

12

Supra note 4.

13

Docket No. 96-1958 (issued December 8, 1998).

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Similarly, in the case at hand, no evidence of record supports that appellant’s injury falls within
any of the exceptions to the general going and coming rule.14
The Board has recognized that FECA covers an employee 24 hours a day when the
employee is on travel status and engaged in activities essential or incidental to such duties.15
However, as the Board noted in the case M.H.,16 air marshals are not in travel status while
commuting to work. Moreover, in this case appellant was not reimbursed for mileage from his
home to either his duty station in West Orange, New Jersey or to the training location in New
Lisbon, New Jersey.
Appellant did not establish any special degree of inconvenience or urgency or show that
his trip on January 15, 2014, in and of itself, was a substantial part of any service for which he
was employed.17 His travel to attend training and was no more for the benefit of the employer
than any other worker’s commute. Appellant’s decision to travel to the training in his personal
vehicle was by his own choice, not by any mandate of the employer.18 He was driving his own
vehicle for his personal convenience when transportation to the training was otherwise provided
by the employing establishment.
The Board therefore finds that, based on these considerations, appellant was not in the
performance of duty at the time of the January 15, 2014 motor vehicle accident.19
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a traumatic injury in the performance of duty on January 15, 2014.

14

Id.

15

See Ann P. Drennan, 47 ECAB 750 (1996); Richard Michael Landry, 39 ECAB 232 (1987) and cases cited
therein.
16

Supra note 4.

17

Jon Louis Van Alstine, 56 ECAB 136 (2004).

18

Supra note 4.

19

Supra note 16.

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ORDER
IT IS HEREBY ORDERED THAT the March 12, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.20
Issued: December 2, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Boar

20

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

7


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

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Appearances:
Robert Dunlap, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-618
Issued: June 23, 2008

Case Submitted on the Record

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

JURISDICTION
On December 26, 2007 appellant filed a timely appeal from an October 16, 2007 Office
of Workers’ Compensation Programs’ nonmerit decision. Because more than one year has
elapsed between the last merit decision dated December 15, 2006 and the filing of this appeal on
December 26, 2007, the Board lacks jurisdiction to review the merits of appellant’s claim
pursuant to 20 C.F.R. §§ 501(2)(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for
reconsideration of his claim under 5 U.S.C. § 8128.
FACTUAL HISTORY
Appellant, a 58-year-old boiler operator, injured his neck on March 6, 1994 while
reaching overhead to tighten a boiler valve. He filed a claim for benefits, which the Office
accepted for cervical strain.

On December 9, 2005 appellant filed a Form CA-2a claim for benefits, alleging that he
sustained a recurrence of disability as of October 17, 2005 causally related to his accepted
cervical condition.
By letter dated June 22, 2006, the Office advised appellant that it required additional
factual and medical evidence to determine whether he was eligible for compensation benefits
based on a recurrence of disability. The Office asked appellant to submit a comprehensive
medical report from his treating physician describing his symptoms and the medical reasons for
his condition and an opinion as to whether his claimed condition as of October 17, 2005 was
causally related to his March 6, 1994 employment injury.
By decision dated August 8, 2006, the Office denied appellant’s claim for a recurrence of
his accepted cervical condition.
By letter dated November 12, 2006, appellant requested reconsideration. He did not
submit any additional medical evidence.
By decision dated November 22, 2006, the Office denied appellant’s application for
review on the grounds that it neither raised substantive legal questions nor included new and
relevant evidence sufficient to require the Office to review its prior decision.
By letter dated December 8, 2006, appellant requested reconsideration. He submitted
reports dated July 28 and October 16, 2006 from Dr. Seema Anand, Board-certified in internal
medicine. In the July 28, 2006 report, Dr. Anand stated:
“This is a 57-year-old male [who] comes in today with complaints of worsening
pain in cervical area with radiation towards arms. Says Lortas helps somewhat
but does not relieve the pain completely. [Appellant] has severe degenerative
joint disease of [the spine] and a posterior dis[c] herniation is noted at C6 level.”
He recommended referral to a neurosurgeon.
On October 16, 2006 Dr. Anand noted that appellant continued to complain of persistent
neck pain radiating into his arms. He stated:
“This is to state that [appellant] suffers with significant cervical area pain. In my
opinion his present condition is related to his previous injury in 1994. It is a
known fact that accelerated arthritis is evident in old traumatic areas.”
By merit decision dated December 15, 2006, the Office denied appellant’s claim, finding
that Dr. Anand did not provide sufficient rationale for his stated conclusion on causal relation.
By letter dated August 7, 2007, appellant’s attorney requested reconsideration. Appellant
resubmitted the reports of Dr. Anand and an August 16, 1994 magnetic resonance imaging
(MRI) scan which indicated a probable left C6-7 herniated nucleus pulposus; possible left C4-5
herniated nucleus pulposus versus spondylosis; multiple levels of degenerative disc disease; and
narrow spinal canal without true stenosis.

2

By decision dated October 16, 2007, the Office denied appellant’s application for review
on the grounds that it neither raised substantive legal questions nor included new and relevant
evidence sufficient to require further merit review.
LEGAL PRECEDENT
Under 20 C.F.R. § 10.606(b), a claimant may obtain review of the merits of his or her
claim by showing that the Office erroneously applied or interpreted a specific point of law; by
advancing a relevant legal argument not previously considered by the Office; or by submitting
relevant and pertinent evidence not previously considered by the Office.1 Evidence that repeats
or duplicates evidence already in the case record has no evidentiary value and does not constitute
a basis for reopening a case.2
ANALYSIS
In the present case, appellant has not shown that the Office erroneously applied or
interpreted a specific point of law; he has not advanced a relevant legal argument not previously
considered by the Office; and he has not submitted relevant and pertinent evidence not
previously considered by the Office. The evidence appellant submitted is not pertinent to the
issue on appeal. The Board has held that the submission of evidence which does not address the
particular issue involved in the case does not constitute a basis for reopening the claim.3
Appellant has not submitted any new medical evidence which addresses the relevant issue of
whether appellant’s claimed cervical condition was causally related to factors of her federal
employment. The reports from Dr. Anand were previously considered and rejected by the Office
and are therefore cumulative and repetitive.
The August 1994 MRI scan, taken 11 years prior to the alleged recurrence of disability,
contains findings of cervical herniation but is not relevant to the issue of whether appellant’s
disability in 2005 was caused or aggravated by the March 1994 employment injury. Appellant’s
reconsideration request failed to show that the Office erroneously applied or interpreted a point
of law nor did it advance a point of law or fact not previously considered by the Office. The
Office did not abuse its discretion in refusing to reopen appellant’s claim for a review on the
merits.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for
reconsideration on the merits of his claim under 5 U.S.C. § 8128(a).

1

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

2

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

3

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

3

ORDER
IT IS HEREBY ORDERED THAT the October 16, 2007 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: June 23, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.M., Appellant
and
U.S. NAVY, PUGET SOUND NAVAL
SHIPYARD, Bremerton, WA, Employer
__________________________________________

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

Docket No. 12-590
Issued: September 24, 2012

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 January 24, 2012 appellant filed a timely appeal from an August 16, 2011 decision of
the Office of Workers’ Compensation Programs (OWCP), which affirmed its decision dated
December 23, 2010. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether OWCP met its burden of proof to establish that the employmentrelated temporary aggravation of osteoarthrosis of both knees resolved by April 30, 2004.
FACTUAL HISTORY
On January 10, 2007 appellant, then a 59-year-old shipfitter, filed an occupational disease
claim alleging that he developed arthritis of the knees as a result of performing his work duties.
He became aware of his condition and realized it was causally related to his employment on
1

5 U.S.C. §§ 8101-8193.

December 11, 2006. Appellant was separated from his employment on April 30, 2004 due to his
inability to do his job due to his carpal tunnel syndrome.2
Appellant was treated by Dr. Michael McManus, a Board-certified orthopedic surgeon,
on October 27, 2006 for severe secondary osteoarthritis of the medial compartment in both
knees. He noted originally injuring his left knee in the 1970’s when he stepped into a hole and
had surgery in 1971. Appellant injured his right knee while working at a shipyard in 1976 and
had surgery. He noted worsening pain in the 1980’s, which he attributed to work as a shipfitter
requiring repetitive climbing in confined spaces, kneeling and squatting. Appellant opined that
his knee condition was the natural progression of osteoarthritis of the medial compartments due
to bilateral open medial meniscectomies. On November 30, 2006 Dr. McManus diagnosed
severe osteoarthritis, greatest at the medial compartment, bilateral knees and status post bilateral
open medial meniscectomies, multifactorial, probably in part related to work activities as a
shipfitter. On March 29, 2007 he noted that appellant was a shipfitter for 27 years and noted that
his work duties included repetitive climbing, squatting and kneeling. Dr. McManus opined that
these activities significantly contributed to the permanent severe secondary osteoarthritis of both
knees.
In a decision dated March 29, 2007, OWCP denied appellant’s claim for compensation.
Appellant requested an oral hearing which was held on July 19, 2007. He submitted
additional medical evidence. In reports dated May 30 and September 11, 2007, Dr. McManus
noted that appellant was a shipfitter for 27 years and had a history of bilateral open medial
meniscectomies in the 1970’s. He noted that a shipfitter performed repetitive climbing, squatting
and kneeling and worked in confined spaces. Dr. McManus opined that these activities over
years significantly contributed to the progression of degenerative disease in his knees.
In an October 15, 2007 decision, the hearing representative set aside the March 29, 2007
OWCP decision and remanded the case for further medical development. She directed OWCP to
refer appellant to a second opinion physician to address the causal relationship between the
diagnosed knee condition and the accepted work factors.
OWCP referred appellant to Dr. Richard E. Hall, a Board-certified orthopedic surgeon,
for a second opinion evaluation. In a November 29, 2007 report, Dr. Hall discussed appellant’s
work history. He noted a moderately obese man with scars over both knees, bilateral knee
effusions, osteophytic spurring ridges on the medial compartment, patellofemoral crepitus,
positive Lachman bilaterally and significant degenerative changes. Dr. Hall diagnosed bilateral
knee degenerative joint disease osteoarthritis, narcotic habituation and upper extremity
impairments. He noted the degenerative joint disease of the knees was ongoing. Dr. Hall opined
that the contributing work factors were less likely the cause of the disease and that, more
probable than not, it was the preexisting meniscal pathology resulting in a total meniscectomy
which caused appellant to develop osteoarthritis of the knees.

2

Appellant has an accepted occupational disease claim for bilateral carpal tunnel syndrome, claim number
xxxxxx527. This claim is not before the Board on this appeal.

2

Appellant submitted reports from Dr. McManus, dated December 20, 2007 and
February 8, 2008, who noted appellant’s complaints of ongoing pain, swelling and crepitus of
bilateral knees. Dr. McManus diagnosed severe secondary osteoarthritis of the medial
compartment bilateral knees, work related.
In a decision dated May 16, 2008, OWCP denied appellant’s claim for benefits. It
determined that the weight of the medical evidence as determined by Dr. Hall did not establish
that appellant’s bilateral knee condition was related to the accepted work factors.
On May 28, 2008 appellant requested an oral hearing.
In an October 1, 2008 decision, an OWCP hearing representative set aside the May 16,
2008 decision and remanded the case for medical development. She found a conflict in medical
opinion between Dr. Hall, who opined that appellant’s preexisting knee condition and surgery
made him susceptible to the development of arthritis and Dr. McManus, who opined that
appellant’s osteoarthritis of both knees was worsened by his employment duties.
On December 7, 2007 OWCP referred appellant to Dr. Donald Hubbard, a Boardcertified orthopedic surgeon. In a January 23, 2009 report, Dr. Hubbard reviewed the record and
examined appellant. He diagnosed by history bilateral knee joint injury, left early 1970 and right
1974 to 1975, with open bilateral knee arthrotomy and excision of medial menisci, cumulative
trauma of the bilateral knee joint related to work activities of heavy lifting/carrying, prolonged
kneeling/squatting and bilateral severe unicompartmental/medial joint space arthrosis.
Dr. Hubbard opined that the condition of bilateral knee arthrosis was medically connected to
work factors. He opined that, because appellant underwent a bilaterally complete medial
meniscectomy in the 1970’s, his knee joints were at increased risk for the development of
bilateral medial compartment arthrosis. Dr. Hubbard indicated that appellant’s bilateral knee
arthrosis conditions were not at maximum medical improvement and the prognosis for his
condition was poor without bilateral joint knee total knee arthroplasties. He could not state with
probability that the knee conditions had been aggravated by employment activities at the
shipyard based on the available medical evidence.
In a decision dated February 19, 2009, OWCP accepted appellant’s claim for a resolved
temporary aggravation of osteoarthrosis of the bilateral knee. On February 22, 2009 appellant
requested an oral hearing.
In a decision dated June 4, 2009, an OWCP hearing representative set aside the
February 19, 2009 decision and instructed OWCP to seek clarification from Dr. Hubbard
regarding whether appellant had residuals of his accepted condition and whether the aggravation
was temporary or permanent.
On July 10, 2009 OWCP requested Dr. Hubbard to provide clarification of his opinion.
In a July 22, 2009 report, Dr. Hubbard noted that, based on the objective medical evidence,
appellant’s work duties as a shipfitter did not contribute to a worsening of his bilateral knee
condition. He noted that knee joint arthritis routinely developed after menisci surgery which was
performed prior to appellant’s employment. Dr. Hubbard advised that physical activities did not

3

objectively aggravate individuals with meniscectomies but temporarily aggravated preexisting
objective and subjective complaints in individuals with preexisting deterioration or pathology.
In an August 7, 2009 decision, OWCP again accepted appellant’s claim for a temporary
aggravation of osteoarthrosis of both knees.
On August 18, 2009 appellant requested an oral hearing.
In a decision dated November 3, 2009, an OWCP hearing representative vacated the
August 7, 2009 decision. She found that Dr. Hubbard’s July 22, 2009 report was contradictory
and lacked sufficient rationale to resolve the medical conflict. The hearing representative noted
that Dr. Hubbard originally opined that appellant’s bilateral knee condition was connected to his
work exposure but stated in his addendum that work activities did not contribute to his bilateral
knee condition. OWCP was directed to refer appellant to a new impartial specialist.
On December 14, 2009 OWCP referred appellant to Dr. Lance N. Brigham, a Boardcertified orthopedic surgeon. In a January 6, 2010 report, Dr. Brigham reviewed the medical
record and examined appellant. He diagnosed osteoarthritis by history of both knees on a more
probable than not basis secondary to the prior history of open medial meniscectomies from
1974 and 1975. Dr. Brigham noted a history of hypertension and industrially-related carpal
tunnel release. Progressive osteoarthritis of the medial compartment of the knees was
documented in x-rays from 2002 to 2007. Appellant had limited range of motion with flexion
contracture of both knees, moderate medial instability of both knees and pain to palpation of the
medial lateral joint of both knees. Dr. Brigham opined that appellant’s condition was due to
progressive arthritis of the medial and patellofemoral joints, which was more likely related to the
history of bilateral open medial meniscectomies in 1974 and 1975. He opined that the bilateral
arthritis was unrelated to any work conditions as appellant worked light duty from 1994 to 2004
using a cart to deliver mail. Appellant further reported that his symptoms did not begin until the
mid 1980’s and he did not seek medical care until the late 1980’s to early 1990’s. Dr. Brigham
noted that complete meniscectomies in young individuals had a higher incidence of progressive
arthritis. He noted that no preexisting condition was aggravated by work factors; however, with
a natural progression of arthritis of the knees appellant had episodes of pain no matter what
activities were considered. Dr. Brigham opined that the bilateral knee arthritis was not affected
by employment as appellant performed light duty the last 10 years of his job by using a cart that
protected his knees. X-ray review revealed arthritis in both knees in 2002 that progressed
through 2007, which was a period appellant was not working. Dr. Brigham advised that
appellant was a candidate for a total knee replacement which was not the result of work activities
but the natural progression of arthritis of the medial compartment of both knees secondary to
bilateral open medial meniscectomies. He noted that appellant could not return to work as a
shipfitter but could return to work full time as a mail runner with restrictions, which were
attributed to the bilateral medial compartment arthritis of the knees.
In a decision dated January 25, 2010, OWCP found that appellant’s accepted temporary
aggravation of osteoarthrosis of both knees resolved by April 30, 2004. It found that
Dr. Brigham, while opining that work factors did not cause or aggravate the knee arthritis, he
indicated that appellant would have had episodes of pain, resolving within a day or two, no
matter what activities he performed. Based on this, OWCP found that the accepted condition

4

resolved by April 30, 2004, when appellant stopped work. Appellant requested an oral hearing
which was held on June 24, 2010.
In a September 20, 2010 decision, the hearing representative set aside the January 25,
2010 decision and remanded the matter to OWCP for further medical development. She
instructed OWCP to amend the statement of accepted facts to provide an affirmative finding on
appellant’s federal job duties, both the full and limited-duty positions and to provide the referee
physician with definitions of direct causation, aggravation, acceleration and precipitation.
On November 15, 2010 OWCP requested that Dr. Brigham clarify his opinion and state
whether he reviewed the statement of accepted facts and the definitions of causal relationship
and address whether appellant’s preexisting condition was aggravated by employment factors.
In a November 22, 2010 supplemental report, Dr. Brigham reviewed the statement of accepted
facts and the definitions of causal relationship. He advised that his previous opinion did not
change. Dr. Brigham found that the preexisting bilateral arthritis of the medial compartments of
both knees was not aggravated by appellant’s employment activities.
In a decision dated December 23, 2010, OWCP found that appellant’s temporary
aggravation of osteoarthrosis of the bilateral knees resolved by April 30, 2004. Appellant
requested an oral hearing which was held on May 25, 2010.
In a decision dated August 16, 2011, an OWCP hearing representative affirmed OWCP’s
decision dated December 23, 2010.
LEGAL PRECEDENT
The United States shall pay compensation for the disability of an employee resulting
from personal injury sustained while in the performance of duty.3 Once OWCP accepts a claim
it has the burden of justifying modification or termination of compensation. After it has
determined that an employee has disability causally related to his employment, it may not
terminate compensation without establishing that the disability has ceased or is no longer related
to the employment injury.4 The fact that OWCP accepted an employee’s claim for a specified
period of disability does not shift the burden of proof to the employee. The burden is on OWCP
to demonstrate an absence of employment-related disability or residuals in the period subsequent
to the date of termination or modification.5
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an evaluation.6 In situations where there exist opposing
3

5 U.S.C. § 8102(a).

4

D.M., Docket No. 10-857 (issued January 3, 2011); Edwin Lester, 34 ECAB 1807 (1983).

5

See Elsie L. Price, 54 ECAB 734, 739 (2003); Raymond M. Shulden, 31 ECAB 297 (1979); Anna M. Blaine
(Gilbert H. Blaine), 26 ECAB 351 (1975).
6

5 U.S.C. § 8123(a).

5

medical reports of virtually equal weight and rationale and the case is properly referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on proper factual and medical background,
must be given special weight.7 When OWCP obtains an opinion from an impartial medical
specialist for the purpose of resolving a conflict in the medical evidence and the specialist’s
opinion requires clarification or elaboration, OWCP must secure a supplemental report from the
specialist to correct the defect in his original report.8 However, when the impartial specialist is
unable to clarify or elaborate on the original report or if a supplemental report is also vague,
speculative or lacking in rationale, OWCP must submit the case record and a detailed statement
of accepted facts to another impartial specialist for the purpose of obtaining a rationalized
medical opinion on the issue.9
ANALYSIS
OWCP accepted a temporary aggravation of osteoarthrosis of the bilateral knees that
resolved by April 30, 2004. As noted, its acceptance of a claim for a specified period does not
shift the burden of proof to the claimant. It is OWCP’s burden to establish that appellant did not
have residuals from the accepted injury. It based its decision to terminate benefits on
Dr. Brigham’s reports. The Board finds that OWCP properly terminated benefits.
The initial medical conflict between the opinions of Dr. McManus, appellant’s treating
physician, and the second opinion physician, Dr. Hall, with regard to whether appellant’s
osteoarthritis of both knees was aggravated by his employment duties. Appellant saw
Dr. Hubbard to resolve the medical conflict. However, Dr. Hubbard’s July 22, 2009 report was
contradictory and lacked rationale so appellant was properly referred to a second impartial
medical specialist, Dr. Brigham, for a new impartial medical examination.10
Dr. Brigham conducted an impartial medical examination and issued reports dated
January 6 and November 22, 2010. In his January 6, 2010 report, he diagnosed osteoarthritis of
the bilateral knees secondary to prior history of open medial meniscectomies from
1974 and 1975. Dr. Brigham noted that appellant’s bilateral knee condition was due to
progressive arthritis of the medial and patellofemoral, which was most likely related to the
bilateral open medial meniscectomies in 1974 and 1975. He opined that the bilateral arthritis
was unrelated to any work conditions as appellant worked light duty from 1994 to 2004 using a
cart to deliver mail which protected his knees. Dr. Brigham noted that appellant’s preexisting
condition was not aggravated by employment factors but advised that those with a natural
progression of arthritis of the knees will have temporary episodes of pain with activity that
would resolve within a day or two. He opined that the bilateral knee arthritis was not caused by
7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4b(3)(b)
(March 1994, October 1995 and May 2003), citing Raymond E. Heathcock, 32 ECAB 2004 (1981).
8

Raymond A. Fondots, 53 ECAB 637, 641 (2002); Nancy Lackner (Jack D. Lackner), 40 ECAB 232 (1988);
Rayon K. Ferrin, Jr., 39 ECAB 736 (1988).
9

R.G., Docket No. 11-79 (September 9, 2011); Nancy Keenan, 56 ECAB 687 (2005).

10

See supra notes 8 and 9.

6

his employment. Dr. Brigham indicated that appellant was a candidate for total knee
replacements but the surgery was not due to work activities but the natural progression of
arthritis that was secondary to bilateral open medial meniscectomies. He noted that appellant
could work full time with restrictions that were attributed to the bilateral medial compartment
arthritis of the knees. In a supplemental report dated November 22, 2010, Dr. Brigham reviewed
the revised statement of accepted facts and advised that his previous opinion did not change. He
opined that the preexisting bilateral arthritis of the medial compartments of the knees was not
aggravated by appellant’s employment.
Accordingly, OWCP’s finding that appellant’s temporary aggravation of osteoarthrosis of
his knees resolved by the time he stopped work, April 30, 2004, is supported by the wellrationalized medical opinion of Dr. Brigham, whose conclusion that appellant no longer had any
work-related residuals was supported by his examination of appellant, his review of the record
and appellant’s work history.11
On appeal, appellant asserts that the accepted temporary aggravation of osteoarthrosis of
the bilateral knees did not resolve April 30, 2004 and contends that Dr. Brigham’s opinion was
inaccurate and insufficient to resolve the medical conflict. As noted, Dr. Brigham’s opinion is
supported by his review of appellant’s history, evaluation of medical evidence and examination
findings. He reviewed appellant’s history and, as noted above, demonstrated an awareness of the
work injury. Dr. Brigham extensively reviewed the medical evidence and the statement of
accepted facts dated November 15, 2010. He provided findings on examination and noted a
review of the diagnostic testing in support of his conclusion. Dr. Brigham found no objective
basis on which to attribute any continuing residuals of appellant’s employment. His opinion
establishes that appellant’s work-related condition resolved.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to establish that the employmentrelated temporary aggravation of degenerative disc disease had resolved.

11

Richard O’Brien, 53 ECAB 234 (2001).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 16, 2011 is hereby affirmed.
Issued: September 24, 2012
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

8


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

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Appearances:
Steven Brown, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-272
Issued: May 9, 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 November 19, 2012 appellant, through her attorney, filed a timely appeal from an
October 22, 2012 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.
ISSUES
The issues are: (1) whether a February 24, 2004 loss of wage-earning capacity (LWEC)
determination should be modified as of August 8, 2006 due to a material worsening of a
consequential emotional condition; and (2) whether the accepted conditions for the November 5,
1990 claim should include additional emotional conditions.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 5, 1990 appellant, then 43-year-old mail carrier, filed a traumatic injury
claim (Form CA-1) alleging that she sustained injuries in the performance of duty on
November 5, 1990. On the claim form, she stated that a dog came at her and, while backing up,
she fell on her buttocks. The claim was initially accepted for a ruptured cervical disc. Appellant
underwent cervical disc surgeries on December 20 and 27, 1990. A statement of accepted facts
(SOAF) notes that the claim was also accepted for cervical degenerative disc disease and a
consequential adjustment reaction.2
Appellant returned to work in a light-duty position at four hours a day on
August 18, 2003. In a report dated October 1, 2003, Dr. Lawrence Dickinson, a neurosurgeon,
stated that she was tolerating the light-duty position.
By decision dated February 24, 2004, OWCP determined that appellant’s actual earnings
in the position represented her wage-earning capacity. It found that she was a full-time
employee when injured, but found the medical evidence showed she could only work part time.
OWCP determined appellant’s LWEC and reduced her compensation for wage loss.
The record indicates that appellant stopped working on August 7, 2006. In a report dated
August 14, 2006, Dr. Thomas Powers, a psychiatrist, stated that appellant had been hospitalized.
He reported that a day prior to hospitalization she had been confronted with a new job
description that she had been forced to sign. Dr. Powers diagnosed acute stress reaction, major
depression “by history work related” and anxiety disorder with panic attacks “work aggravated.”
In a report dated August 15, 2006, Dr. Dickinson noted that appellant had a “breakdown”
at work on August 7, 2006. He stated that she had neck pain with radicular arm pain and
numbness in the right arm. Dr. Dickinson reported that appellant had cervical spondylosis and a
chronic pain disorder. In a report dated December 18, 2006, Dr. Ravi Panjabi, a Board-certified
anesthesiologist, reported that appellant had multiple problems, with neck pain, weakness in the
upper extremity, low back and leg pain with weakness in both legs. He opined that appellant
was totally disabled.
On March 20, 2007 appellant filed a claim for compensation (Form CA-7) commencing
August 8, 2006. In a form report (Form CA-20) dated March 7, 2007, Dr. Panjabi diagnosed
post lumbar and cervical laminectomy syndromes and checked a box “yes” the conditions were
employment related. The history of injury noted was a January 2006 knee injury and the period
of disability commenced August 8, 2006.
In a report dated July 13, 2007, Dr. Robert Wu, an otolaryngologist, stated that appellant
had problems every month or so with a sudden blockage of her throat, which he related to the
prior cervical surgeries. He stated the breathing problems began in 1995.
2

The record indicates that appellant has filed other claims: a 1986 back injury, accepted for lumbar strain and
lumbar herniated disc, a 1986 claim for sleep deprivation, a January 6, 2006 claim for knee injuries, accepted for a
knee contusions and strains and a left knee torn meniscus and a claim for an emotional condition resulting from
August 1, 2006 incidents.

2

By decision dated December 6, 2007, OWCP denied the claim for compensation
commencing August 8, 2006. It found that the evidence was insufficient to warrant modification
of the February 24, 2004 LWEC determination.
In a report dated January 2, 2008, Dr. Panjabi stated that appellant had developed right
vocal cord paralysis as a result of the 1990 anterior cervical discectomy and fusion. OWCP
referred the case for a second opinion examination by Dr. Barry Baron, an otolaryngologist. In a
report dated February 27, 2008, Dr. Baron diagnosed a right vocal cord paralysis and opined that
it was causally related to the cervical surgeries.
By report dated April 30, 2008, Dr. Powers stated that he continued to treat appellant for
a psychiatric condition “which is a work-related illness caused by a work injury.” He noted that
she was being treated for breathing problems as well.
In a decision dated August 18, 2008, OWCP’s hearing representative affirmed the
December 6, 2007 decision. The hearing representative found the evidence was not sufficient to
warrant modification of the February 24, 2004 LWEC.
Appellant underwent throat surgery on August 26, 2008, described by Dr. Wu as a
laryngoscopy with vocal cord stripping.
By letter dated November 19, 2011, counsel argued that the LWEC determination should
be modified based on appellant’s accepted psychiatric condition. Appellant submitted a
November 8, 2011 report signed by Dr. Powers and a family therapist. The report provided a
history and diagnosed major depressive disorder, severe without psychotic features, panic
disorder without agoraphobia and generalized anxiety disorder. The history noted the
November 5, 1990 incident and stated that appellant had been harassed by her supervisor.
Dr. Powers stated, “Some sequelae from [appellant’s] throat surgery and other recent events have
made [appellant’s] life more difficult,” also noting a May 2011 motor vehicle accident. He
stated that appellant’s current symptoms were “much the same as they have been since she began
treatment in 2007,” but remained chronic and perhaps exacerbated by recent circumstances.
Appellant’s injuries and pain had overwhelmed her ability to cope and thrown her into a
depression. Dr. Bowers found that appellant’s Global Assessment of Functioning (GAF) was 38.
In light of this and the severity of her psychiatric symptoms, appellant was unable to work.
Dr. Powers stated that in light of the fact that her physical injuries were severe and longstanding,
and that she had been acknowledged to suffer employment-related psychiatric injuries for a
number of years, “it would appear that the only reasonable conclusion would be that this lady is
no longer able to work at all since at least August 8, 2006, when she was admitted to the
inpatient psychiatric unit of Eden Hospital.”
With respect to appellant’s physical condition, OWCP referred the case for a second
opinion examination regarding a proposed cervical surgery. In a report dated May 17, 2012,
Dr. Mohinder Nijjar, a Board-certified orthopedic surgeon, opined that the surgery was
appropriate for the employment-related condition.
By decision dated June 6, 2012, OWCP determined that, with respect to the accepted
consequential adjustment reaction, there was no material worsening that warranted modification

3

of the February 24, 2004 LWEC determination.
insufficient to establish modification.

It found that the medical evidence was

Appellant requested a review of the written record on July 6, 2012. On July 27, 2012
OWCP received a July 26, 2012 report from Dr. Nijjar, stating that she had been totally disabled
from August 26, 2008, the date of the throat surgery performed by Dr. Wu. In a memorandum
dated August 26, 2012, OWCP determined that appellant was entitled to compensation for total
disability as of August 26, 2008.
By decision dated October 22, 2012, OWCP’s hearing representative affirmed the June 6,
2012 decision. The hearing representative also found that the accepted consequential conditions
should not be expanded to include major depressive disorder, panic disorder and generalized
anxiety disorder.
LEGAL PRECEDENT -- ISSUE 1
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was, in fact, erroneous.3 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.4
A medical opinion must be of reasonable medical certainty and supported by medical
rationale to be of probative value.5 Rationalized medical opinion evidence is medical evidence
that is based on a complete factual and medical background and supported by medical rationale
explaining the basis for the opinion offered.6
ANALYSIS -- ISSUE 1
As to the first issue, the Board notes that on appeal appellant’s representative states that
the issue is moot, because OWCP modified the LWEC as of August 26, 2008. The
representative also refers to disability prior to the modification. The claim for total disability
commencing August 8, 2006 indicates that the issue of modification of the LWEC is still
pertinent, as appellant must show a modification was warranted as of August 8, 2006 to be
entitled to compensation for total disability as of that date. The Board also notes that the
decisions on appeal with respect to this issue were limited to whether there was a material
worsening of appellant’s consequential emotional condition. Appellant’s November 19, 2011
letter did not argue that the February 24, 2004 LWEC determination was erroneous, or discuss a
material change in an orthopedic condition as of August 8, 2006. The issue presented is whether

3

Sue A. Sedgwick, 45 ECAB 211 (1993).

4

Id.

5

D.I., 59 ECAB 158 (2007).

6

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

4

appellant has established a material change in the nature and extent of the employment-related
consequential adjustment reaction arising from the November 5, 1990 injury.
In this regard the medical evidence does not establish a material change in the accepted
adjustment reaction on or about August 8, 2006. The August 14, 2006 report from Dr. Powers
refers to a recent incident involving an administrative matter with appellant’s supervisor. The
claim for compensation regarding alleged employment incidents in early August 2006 is not
before the Board on this appeal. Dr. Powers did not discuss the November 5, 1990 injury, the
accepted adjustment reaction, or provide an opinion as to a material change in that condition. In
an April 30, 2008 report, Dr. Powers referred briefly to treatment for a “work-related illness”
without further detail or explanation.
The November 8, 2011 report does provide a history of the November 5, 1990 injury and
the cervical surgeries, but also includes allegations of harassment by a supervisor. The report
does not specifically discuss the accepted adjustment reaction as a consequence of the
November 5, 1990 injury. The diagnoses provided did not include the accepted consequential
injury. Dr. Powers concluded that appellant was disabled since August 8, 2006. There was no
medical rationale with respect to causal relationship between any disability and the consequential
adjustment reaction. There is a general reference to physical injuries and psychiatric injuries,
without any specific discussion of the consequential adjustment reaction, the job appellant had
been performing and a rationalized opinion that there was a material change in the employmentrelated condition that caused disability for the light-duty job on or about August 8, 2006.
It is, as noted above, appellant’s burden of proof to establish modification of the existing
LWEC determination on or about August 8, 2006. With respect to a consequential emotional
condition, the Board finds the evidence does not establish a material change causing disability as
of August 8, 2006. Appellant may request modification of an LWEC determination, supported
by new evidence or argument, at any time before OWCP.
LEGAL PRECEDENT -- ISSUE 2
It is an accepted principle of workers’ compensation law that, when the primary injury is
shown to have arisen out of an in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause.7 If a subsequent injury is the direct and natural result of a
compensable primary injury, it is compensable.8
ANALYSIS -- ISSUE 2
The November 8, 2011 report from Dr. Powers diagnosed major depressive disorder,
severe without psychotic features, panic disorder without agoraphobia and generalized anxiety
disorder. Appellant argued that the diagnoses should be accepted under the current claim. The
November 8, 2011 report does not, however, provide a rationalized medical opinion explaining
7

See T.N., Docket No. 12-1056 (issued December 18, 2012).

8

Debra L. Dillworth, 57 ECAB 516, 519 (2006).

5

how the diagnosed conditions were a direct and natural result of the accepted injuries.
Dr. Powers refers to incidents of harassment, a motor vehicle accident and “recent events.”
These potentially independent intervening causes must be adequately discussed with respect to
any opinion on causal relationship. To establish the diagnosed conditions as consequential
injuries, there must be a rationalized medical opinion addressing how the emotional conditions
were a direct and natural result of the November 5, 1990 employment injuries, rather than an
intervening cause.9
On appeal, appellant acknowledges that the November 8, 2011 report indicates factors
other than the November 5, 1990 injury contributed to her condition, but argued that OWCP was
requiring there must be a significant contribution from the employment injury. It is not a
question of improper apportionment of the injury. A consequential injury must be shown to be
the direct and natural result of the compensable injury. Dr. Powers did not provide an opinion
that each of the diagnosed conditions was the direct and natural result of the November 5, 1990
employment injury, with supporting medical rationale discussing the other incidents noted.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that the February 24, 2004 LWEC
determination should be modified as of August 8, 2006 due to a material worsening of a
consequential emotional condition. The Board further finds that the medical evidence did not
establish additional emotional conditions as a consequence of the November 5, 1990 injury.

9

See S.S., 59 ECAB 315 (2008).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 22, 2012 is affirmed.
Issued: May 9, 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
__________________________________________
K.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
JAMES A. HALEY VETERANS HOSPITAL
Tampa, FL, Employer
__________________________________________

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Appearances:
Lenin Perez, for the appellant
Office of Solicitor, for the Director

Docket No. 15-1476
Issued: May 6, 2016

Case Submitted on the Record

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

JURISDICTION
On June 29, 2015 appellant, through his representative, filed a timely appeal of a May 26,
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 to consider the merits of the case.
ISSUE
The issue is whether OWCP paid appropriate schedule award compensation benefits.
On appeal, appellant’s representative argues that appellant’s schedule award was not
based on a correct pay rate and that his pay rate should be based on the date of his last exposure,
or if based on December 4, 2012 the date disability began, then he should receive consumer price
index (CPI) adjustments to the December 4, 2012 pay rate. He does not contest the percentage
of appellant’s schedule award.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 3, 2012 appellant, then a 58-year-old electrical equipment repairer, filed a
traumatic injury claim (Form CA-1) alleging that he developed severe pain and burning in his
neck, shoulders, arms, back, and both legs on November 27, 2012. In a separate statement, he
asserted that he was attempting to clear a room on November 27, 2012 and to move a 600-pound
generator. The tires on the generator were flat, and when appellant pulled on it, he fell to the
floor experiencing severe pain in his neck, shoulders, arms, back, and legs.
The employing establishment provided appellant with an authorization for examination
and/or treatment (Form CA-16) on December 4, 2012. Appellant’s attending physician,
Dr. Samy F. Bishai, an orthopedic surgeon, examined appellant on December 4, 2012 and
described appellant’s attempt to move the generator on November 27, 2012. He found loss of
range of motion in both shoulders and diagnosed herniated lumbar disc with radiculopathy,
internal derangement of the shoulders bilaterally, and cervical disc syndrome with radiculopathy.
Appellant underwent a nerve conduction velocity study on December 5, 2012 which
demonstrated extended entrapment of the posterior sciatic nerve at L5-S1. He also underwent
left shoulder x-rays, which demonstrated lateral downsloping of the acromion.
OWCP requested additional factual and medical information by letter dated
December 28, 2012.
By decision dated February 11, 2013, OWCP denied appellant’s claim on the basis that
he failed to provide medical evidence of a specific diagnosed condition resulting from his
accepted employment incident.
On February 4, 2013 the employing establishment indicated that light-duty work was
available. Appellant accepted the light-duty position on February 12, 2013. He requested an
oral hearing on February 21, 2013 from OWCP’s Branch of Hearings and Review.
An OWCP hearing representative, following a preliminary review, issued a decision on
May 22, 2013, which set aside and remanded the February 11, 2013 decision for OWCP to refer
appellant for a second opinion evaluation.
On June 6, 2013 OWCP referred appellant to Dr. William Dinenberg, a Board-certified
orthopedic surgeon, for a second opinion evaluation. In his July 8, 2013 report, Dr. Dinenberg
described appellant’s November 27, 2012 employment incident as attempting to move a
600-pound generator and falling down hitting his buttocks on the ground and his left shoulder
into a wall. He reviewed a left shoulder magnetic resonance imaging scan which demonstrated
acromiohumeral impingement with no gross rotator cuff tear or labral tear, as well as
tendinopathy of the subscapularis tendon, and advanced degenerative changes of the
acromioclavicular joint. Dr. Dinenberg found forward flexion of the left shoulder to
100 degrees, abduction of 90 degrees with complete supraspinatus and external rotation strength.
He reported that appellant had positive impingement sign of the left shoulder and that the
acromioclavicular joint on the left was tender to palpation. Dr. Dinenberg also found that
appellant had positive cross arm pain. He diagnosed cervical sprain and strain, degenerative disc

2

disease of the cervical spine, lumbar sprain and strain with right lower extremity radiculopathy,
lumbar degenerative disc disease with multiple levels of severe spinal stenosis, degenerative
disease of the bilateral hips, and bilateral shoulder impingement.
Dr. Dinenberg responded to OWCP’s questions and opined that appellant’s left shoulder
impingement was connected to his November 27, 2012 employment incident. He noted that
appellant struck his left shoulder against a wall as a result of his fall and that this was the
etiology of his left shoulder pain. Dr. Dinenberg found that the employment incident resulted in
decreased range of motion of the left shoulder and a positive impingement sign. He further
determined that appellant’s lumbosacral sprain and strain with right lower extremity
radiculopathy as well as his cervical sprain and strain were related to appellant’s November 27,
2012 work incident. Dr. Dinenberg concluded that appellant was partially disabled and should
avoid bending, kneeling, climbing, crawling, or stooping as well as work above shoulder level
bilaterally. He provided a lifting, pushing, and pulling restriction of 20 pounds.
By decision dated July 19, 2013, OWCP accepted appellant’s claim for left shoulder
impingement, cervical strain, and lumbar back sprain with right lower extremity radiculopathy.
Dr. Bishai examined appellant on August 20, 2013 and found tenderness in the left
shoulder overlying the anterior, lateral, and posterior aspects of the left shoulder joint. He
reported forward elevation of 80 degrees, backward elevation of 10 degrees, abduction of 95
degrees and adduction of 15 degrees with external rotation of 50 degrees, and internal rotation of
20 degrees. On October 16, 2013 Dr. Bishai found that appellant’s left shoulder demonstrated
decreased abduction of 80 degrees with the remainder of his left shoulder range of motion
consistent from August 20, 2013. He examined appellant on November 20, 2013, January 30,
February 28, and April 8, 2014 finding that appellant’s left shoulder range of motion was
consistent with his October 16, 2013 report. In his April 8, 2014 report, Dr. Bishai stated that
appellant had reached maximum medical improvement as of that date. He stated that based on
the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment, (A.M.A., Guides)2 appellant was entitled to a schedule award based on loss of range
of motion “because the reduced range of motion of this man’s shoulder has indeed been the most
disabling part of this patient’s injury to the left shoulder joint.” Dr. Bishai utilized Table 15-343
of the A.M.A., Guides and found that 80 degrees of flexion was 9 percent impairment, that
10 degrees of extension was 2 percent impairment, that 80 degrees of abduction was 6 percent
impairment, that 15 degrees of adduction was 1 percent impairment, that 20 degrees of internal
rotation was 4 percent impairment, and that 50 degrees of external rotation was 2 percent
impairment resulting in 24 percent permanent impairment of the left upper extremity.
Appellant filed a claim for compensation (Form CA-7) requesting a schedule award on
May 2, 2014. On the reverse of the form, the employing establishment indicated that his annual
salary on November 27, 2012 was $48,573.62. OWCP’s medical adviser reviewed Dr. Bishai’s
impairment rating on May 13, 2014 and agreed with the method of assessing the impairment and

2

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

3

Id. at 475, Table 15-34.

3

the amount of the impairment rating. In a note dated July 29, 2014, he opined that appellant
reached maximum medical improvement on April 8, 2014 as found by Dr. Bishai.
OWCP contacted the employing establishment and noted that the employing
establishment reported that appellant earned $23.26 per hour with no premium pays for an
annual salary of $48,543.62 rather than $48,573.62 as reported on the (Form CA-7). The
employing establishment stated that appellant did not stop work until December 4, 2012, that he
received continuation of pay from December 4, 2012 to January 6, 2013, and that he returned to
work full time on January 7, 2013. On August 11, 2014 it stated that appellant worked a second
shift and earned $23.26 per hour with an additional $1.74 per hour shift differential resulting in
$25.00 per hour for 80 hours during a two-week period. OWCP determined that his base pay
rate was $23.26 per hour at the time he first stopped work on December 4, 2012 and that he
received night differential of 7.5 or $1.74 per hour resulting in $69.78 weekly night differential.
It further determined that appellant’s weekly base rate was $933.53 added to $69.78, resulting in
$1,003.31 for his weekly pay rate. OWCP found that he was entitled to 74.88 weeks of
compensation due to 24 percent permanent impairment of the right upper extremity, or
$11,824.71.
By decision dated August 14, 2014, OWCP granted appellant a schedule award for
24 percent permanent impairment of his left arm. It determined that he was entitled to 74.88
weeks of compensation at the 75 percent rate or $752.48 per week. OWCP stated that the
effective date of pay rate was December 4, 2012 and that appellant was entitled to $11,824.72
from April 8 through July 26, 2014 with compensation payments of $3,009.93 continuing every
four weeks through September 14, 2015.
Appellant requested an oral hearing on August 19, 2014. He also requested a lump sum
payment of his schedule award. In a letter dated December 1, 2014, OWCP informed appellant
that the lump sum value of his schedule award was $29,480.82. Appellant requested a lump sum
payment of his schedule award on December 5, 2014.
Appellant’s representative appeared at the oral hearing on March 11, 2015 before an
OWCP hearing representative. He argued that OWCP had utilized an incorrect pay rate in
calculating appellant’s schedule award as no CPIs were included. Appellant testified that he
continued to perform his date-of-injury position. Appellant’s representative argued that
appellant’s pay rate should be based on his date of maximum medical improvement,
April 8, 2014. In the alternative, he argued that, if based on his date of disability, December 4,
2012, appellant was entitled to CPIs for March 2013, March 2014, and March 2015.
By decision dated May 26, 2015, the hearing representative affirmed OWCP’s
August 14, 2014 decision, finding that there was no medical evidence supporting more than
24 percent permanent impairment of the left upper extremity and that appellant was not
contesting the amount of the schedule award, but instead the rate of pay and CPIs. She found
that OWCP utilized the correct pay rate, December 4, 2012, the date disability began, to
calculate appellant’s schedule award payment.

4

LEGAL PRECEDENT
Under FECA, monetary compensation for disability or impairment due to an employment
injury is paid as a percentage of monthly rate.4 Section 8101(4) provides that monthly pay
means the monthly pay at the time of injury or the monthly pay at the time disability begins or
the monthly pay at the time compensable disability recurs, if the recurrence begins more than
six months after the injured employee resumes regular full-time employment with the United
States, whichever is greater.5 OWCP procedures provide that, if the employee did not stop work
on the date of injury or immediately afterwards, defined as the next day, the record should
indicate the pay rate for the date of injury, and the date disability began. The greater of the two
should be used in computing compensation, and if they are the same, the pay rate should be
effective on the date disability began.6
Section 8146(a) of FECA provides that compensation payable on account of disability or
death which occurred more than one year before the effective date of a cost-of-living increase
(determined in accordance with the provisions of the section) shall be increased by the percent of
the increase.7 Legislative history shows that this phrase means compensation payable for an
employment-related condition where the entitlement to such compensation occurred more than
one year before the effective date of the cost-of-living increase.8
In cases of disability, a beneficiary is eligible for cost-of-living adjustments under section
8146(a) where injury-related disability began more than one year prior to the date the cost-ofliving adjustment took effect. The employee’s use of continuation of pay, as provided by section
8118, or of sick or annual leave during any part of the period of disability does not affect the
computation of the one-year period.9 The disability need not have been continuous for the whole
year before the increase.10
When an injury does not result in disability but compensation is payable for permanent
impairment, a beneficiary is eligible for cost-of-living adjustments under section 8146(a) of
FECA where the award for such impairment began more than one year prior to the date the costof-living adjustment took effect.11 When there is prior injury-related disability, OWCP
4

See 5 U.S.C. §§ 8105-07.

5

Id. at § 8101(4). K.B., Docket No. 13-569 (issued June 17, 2013).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.5(a)(3)
(August 2012).
7

5 U.S.C. § 8146(a).

8

Franklin L. Armfield, 29 ECAB 500 (1978) (holding that the claimant was not eligible for a cost-of-living
increase, as provided by section 8146(a), unless the date of his entitlement to compensation occurred more than a
year before the effective date of the cost-of-living increase).
9

20 C.F.R. § 10.420(a); supra note 6, Computing Compensation, Chapter 2.901.16(a) (March 2014).

10

Id.

11

20 C.F.R. § 10.420(b).

5

procedures indicate that the CPI start date for the schedule award is the effective date of the
applicable pay rate.12
ANALYSIS
The Board finds that OWCP correctly determined the pay rate used to issue appellant’s
schedule award. However, the Board further finds that this case is not in posture for a decision
reporting CPI adjustments.
Appellant’s representative challenged OWCP’s use of the date of disability in calculating
appellant’s schedule award. He alleged that appellant’s pay rate should be based on the date of
last exposure. The Board finds that OWCP properly determined that appellant’s schedule award
based on his traumatic injury claim should be based on his date of disability,
December 4, 2012.13 OWCP procedures provide that a schedule award based on a traumatic
injury should have a pay rate date based on the date of injury, the date disability begins or the
date of recurrence of disability whichever is greater. Appellant has not alleged a recurrence of
disability so the recurrence pay rate is not applicable. The record establishes that his date of
injury, November 27, 2012, and his date of disability, December 4, 2012, pay rates are the same.
Therefore, the Board finds that the appropriate date for pay rate in this case is December 4,
201214 as utilized by OWCP.
Appellant’s representative further questioned OWCP’s failure to apply CPI adjustments
to the December 4, 2012 pay rate used to calculate the August 14, 2014 schedule award. OWCP
procedures support that appellant is entitled to any CPI adjustments occurring one year after the
December 4, 2012 pay rate date and prior to his date of maximum medical improvement. Thus
any CPI adjustments after December 4, 2013 should be included in his pay rate for his April 8,
2014 schedule award.15
OWCP’s calculations for determining appellant’s pay rate for the purposes of his
schedule award did not include any CPI adjustments. It discussed his yearly salary on
November 27, 2012 and weekly salary based on his earnings on December 4, 2012.16 The
May 26, 2015 OWCP decision failed to make findings on CPI adjustments after
December 4, 2013.
12

Supra note 6 at Chapter 2.900 Exhibit 1 (August 2012) (Determining Effective Pay Rate Date for Schedule
Awards).
13

Id., but see D.D., Docket No. 15-193 (issued May 11, 2015) (finding that where an injury is sustained over a
period of time, the pay rate for a schedule award on the date of last exposure is appropriate).
14

Supra note 6 states that, if the employee did not stop work on the date of injury or the next day, and the
disability began at a later date, the case record should show the pay rate for both the date of injury and the date
disability begins. The greater of the two will be used in computing compensation. If they are the same, the pay rate
should be effective on the date disability begins.
15

Supra note 6 at Chapter 2.900 Exhibit 1 (August 2012) (Determining Effective Pay Rate Date for Schedule
Awards).
16

The Board notes that these salary amounts are the same.

6

On remand, OWCP shall issue an appropriate final decision on appellant’s entitlement to
schedule award compensation with a clear explanation of how it calculated the amount of the
award, including the application of CPI adjustments.17
CONCLUSION
The Board finds that OWCP properly determined the pay rate used to issue appellant’s
schedule award. The Board further finds, however, that the case is not in posture for a decision
as OWCP did not address CPI adjustments in formulating his schedule award.
ORDER
IT IS HEREBY ORDERED THAT the May 26, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further development consistent with this decision of the Board.
Issued: May 6, 2016
Washington, DC

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

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

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

17

The Board further notes that appellant requested a lump sum settlement of his schedule award in accordance
with 5 U.S.C. § 8135 of FECA. OWCP’s procedures provide that there is no provision for inclusion of possible
future CPIs at the time a lump sum schedule award is calculated. Supra note 6, Computing Compensation Chapter
2.901.16(a)(6) (March 2014).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
MIAMI VETERANS AFFAIRS HEALTHCARE,
Miami, FL, Employer
__________________________________________

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

Docket No. 14-157
Issued: April 21, 2014

Case Submitted on the Record

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

JURISDICTION
On October 28, 2013 appellant filed a timely appeal from the May 10, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied her injury
claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of appellant’s case. The
Board also has jurisdiction to review OWCP’s July 25, 2013 nonmerit decision denying her
hearing request as untimely.
ISSUES
The issues are: (1) whether appellant’s February 7, 2013 work incident caused an injury;
and (2) whether OWCP properly denied her hearing request.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 28, 2013 appellant, then a 48-year-old vocational rehabilitation specialist, filed
a traumatic injury claim alleging that she sustained an injury in the performance of duty on
February 7, 2013 when she was involved in a motor vehicle accident. She described the nature
of her injury as a bruised right forearm, right elbow pain and low back pain.
In a decision dated May 10, 2013, OWCP denied appellant’s injury claim. It found that
the evidence supported that the incident occurred as alleged but that he had submitted no medical
evidence providing a diagnosis resulting from the incident. Appeal rights attached to the
decision advised that any hearing request must be made in writing, within 30 calendar days after
the date of the decision, as determined by the postmark of the letter.
In correspondence postmarked June 11, 2013, appellant requested a review of the written
record by an OWCP hearing representative.
In a decision dated July 25, 2013, OWCP denied appellant’s hearing request. It found
that the request was untimely, and therefore he was not entitled to a hearing as a matter of right.
OWCP considered the request nonetheless, but denied a discretionary hearing on the grounds
that the reconsideration process provided appellant an alternative appeal right.
Appellant argues that she sent her request in a timely manner on May 31, 2013.
LEGAL PRECEDENT -- ISSUE 1
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.2 An employee seeking benefits under FECA
has the burden of proof to establish the essential elements of his or her claim. When an
employee claims that he or she sustained an injury in the performance of duty, he or she must
submit sufficient evidence to establish that he or she experienced a specific event, incident or
exposure occurring at the time, place and in the manner alleged. He or she must also establish
that such event, incident or exposure caused an injury.3
Causal relationship is a medical issue4 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the claimant,5 must be
one of reasonable medical certainty6 and must be supported by medical rationale explaining the

2

Id. at § 8102(a).

3

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

4

Mary J. Briggs, 37 ECAB 578 (1986).

5

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

6

See Morris Scanlon, 11 ECAB 384, 385 (1960).

2

nature of the relationship between the diagnosed condition and the established incident or factor
of employment.7
ANALYSIS -- ISSUE 1
OWCP accepts that the February 7, 2013 work incident occurred as alleged. Appellant
has therefore met her burden to establish that she experienced a specific incident occurring at the
time, place and in the manner alleged. The question becomes whether the February 7, 2013
work incident caused an injury.
Appellant has submitted no medical evidence providing a diagnosis of any medical
condition. If OWCP wanted to accept her claim, it would not know what medical condition to
accept or what medical treatment to authorize. Moreover, the record contains no narrative
opinion from a physician soundly explaining how the February 7, 2013 employment incident
caused any diagnosed medical condition.
As appellant has failed to support her claim with any medical opinion evidence, the
Board finds that she has not met her burden to establish the critical element of causal
relationship. The Board will therefore affirm the May 10, 2013 decision denying her claim for
compensation benefits.
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides:
“Before review under section 8128(a) of this title, a claimant for compensation not
satisfied with a decision of the Secretary under subsection (a) of this section is
entitled, on request made within 30 days after the date of the issuance of the
decision, to a hearing on his claim before a representative of the Secretary.”8
The hearing request must be sent within 30 days (as determined by postmark or other
carrier’s date marking) of the date of the decision for which a hearing is sought.9 OWCP has
discretion, however, to grant or deny a request that is made after this 30-day period.10 In such a

7

See William E. Enright, 31 ECAB 426, 430 (1980).

8

5 U.S.C. § 8124(b)(1).

9

20 C.F.R. § 10.616(a).

10

Herbert C. Holley, 33 ECAB 140 (1981).

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case OWCP will determine whether a discretionary hearing should be granted or, if not, will so
advise the claimant with reasons.11
ANALYSIS -- ISSUE 2
OWCP denied appellant’s claim on May 10, 2013. Appellant had 30 days or until
June 10, 2013, to send her request for a hearing. She argues that she sent the request on
May 31, 2013, but the record shows that her request was postmarked on June 11, 2013. As this
was outside the 30-day window, the Board finds that appellant’s request was untimely.
This means that appellant was not entitled to a hearing as a matter of right. Nonetheless,
OWCP had discretion to grant one. Exercising that discretion, it denied appellant’s request on
the grounds that she could pursue the issue in her case equally well through the reconsideration
process. The Board has held that the denial of a hearing on these grounds is a proper exercise of
OWCP’s discretion.12
As appellant may address the issue of causal relationship by requesting reconsideration
from OWCP and submitting a physician’s well-reasoned medical opinion on whether the
February 7, 2013 employment incident caused a diagnosed medical condition, the Board finds
that OWCP did not abuse its discretion in denying appellant’s untimely hearing request. The
Board will therefore affirm OWCP’s July 25, 2013 decision.
CONCLUSION
The Board finds that appellant has not met her burden to establish that the February 7,
2013 employment incident caused an injury. The Board also finds that OWCP properly denied
appellant’s hearing request as untimely.

11

Rudolph Bermann, 26 ECAB 354 (1975).

12

E.g., Jeff Micono, 39 ECAB 617 (1988).

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ORDER
IT IS HEREBY ORDERED THAT the July 25 and May 10, 2013 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: April 21, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5