United States Department of Labor
Employees’ Compensation Appeals Board

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DEPARTMENT OF HOMELAND
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SECURITY, TRANSPORTATION SECURITY )
ADMINISTRATION, Charleston, SC,
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Employer
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_________________________________________ )
W.W., Appellant

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

Docket Nos. 11-1248 & 11-1707
Issued: April 17, 2012

Case Submitted on the Record

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

JURISDICTION
On April 26, 2011 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) merit decision of March 1, 2011 which denied modification a
wage-earning capacity determination. On July 18, 2011 she also timely appealed OWCP’s
June 10, 2011 schedule award decision. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.2

1
2

5 U.S.C. § 8101 et seq.

The record contains a June 27, 2011 decision that affirmed the denial of compensation for intermittent periods.
Appellant did not appeal this decision.

ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that
modification of the wage-earning capacity determination was warranted; and (2) whether
appellant has more than a one percent impairment of her right leg, for which she received a
schedule award.
FACTUAL HISTORY
This case has previously been before the Board.3 In a July 11, 2011 decision, the Board
affirmed OWCP’s March 10, 2010 decision which found that appellant did not meet her burden
of proof to establish a recurrence of disability for the period beginning June 30, 2009 causally
related to her July 12, 2007 employment injury. The facts and history contained in the prior
appeal are incorporated by reference.
Appellant’s claim was accepted for right hip and right thigh sprains and enthesopathy of
the hip region. On October 23, 2009 OWCP issued a wage-earning capacity decision reducing
her wage-loss compensation to zero. It found that appellant was employed as a transportation
security officer with wages of $638.54 a week effective July 13, 2007. Appellant’s wages were
equal to or exceeded the current pay for the job held at the time of injury. OWCP found that her
actual earnings fairly and reasonably represented her wage-earning capacity. It also found that
appellant demonstrated the ability to perform the duties of this job for more than two months and
it was suitable for appellant’s partially disabled condition. OWCP also found that the position
was not temporary.
An April 6, 2009 report from Dr. Douglas Hein, a Board-certified orthopedic surgeon and
OWCP referral physician, diagnosed hip strain and resolved iliopsoas strain. He noted that
appellant’s current diagnosis was a small labral tear with intermittent hip pain. Appellant also
had intermittent groin pain as a result of her work injury. Dr. Hein opined that she could perform
limited duty with permanent restrictions for eight hours a day. Appellant could walk for no more
than four hours a day, bend or stoop for no more than one hour a day and lift for no more than
one hour a day and no more than 40 pounds.
In a June 5, 2009 report, Dr. Bright McConnell, a Board-certified orthopedic surgeon,
diagnosed bursitis, tendinitis in the hip region and lumbar stenosis. He found that appellant was
at maximum medical improvement with respect to her work-related condition of right hip and
thigh sprain. Dr. McConnell noted that her previous restrictions included limits on prolonged
standing, not to exceed four hours, avoidance of repetitive bending or stooping and lifting
restrictions of 40 pounds. He explained that appellant had residuals of lumbosacral disc disease
with intermittent S1 neuropathy, documented by appellant as a work-related injury.
Dr. McConnell believed that this was aggravated by her work injury of July 12, 2007 but that it
was not an accepted condition. He advised that no further treatment was warranted for the
accepted condition of right hip and thigh sprain. On February 4, 2010 Dr. McConnell clarified
his walking restriction and explained that appellant could walk “frequently” in 250 to 1,000
3

Docket No. 10-1922 (issued July 11, 2011).

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strides. On April 16, 2010 he provided a work capacity evaluation which noted that her
restrictions were permanent. Dr. McConnell stated that appellant could walk for one to two
hours, no bending or stooping, no lifting over 25 pounds for two to three hours and no kneeling,
squatting or climbing.
Appellant requested a schedule award on June 4, 2010. She provided a February 17,
2009 report from Dr. James K. Aymond, a Board-certified orthopedic surgeon, who noted that
appellant had evidence of neural foraminal stenosis at L5-S1 level pursuant to a magnetic
resonance imaging (MRI) scan and the narrowing was aggravated by her twisting injury of
July 12, 2007. Dr. Aymond opined that she reached maximum medical improvement and that
she had a seven percent impairment of the whole person.
In a June 23, 2010 report, an OWCP medical adviser indicated that appellant was in a
chronic pain management program. He stated that the evidence did not permit assessment of true
impairment of the right leg. In a June 23, 2010 addendum, the medical adviser explained that he
had overlooked Dr. Hein’s April 6, 2009 report. He stated that Dr. Hein’s report was clear and
objective. Appellant had a normal gate and normal findings for the right hip and thigh. The
medical adviser noted that x-rays were normal and concluded that there was no basis for a
permanent impairment other than bursitis or other soft tissue lesion. He referred to Table 16-4
Hip Regional Grid of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) and noted that the bursitis or soft tissue condition affecting the hip
region provided for a default value of class 1 and a C category. The medical adviser opined that
appellant had a one percent permanent impairment of the right lower extremity.4
In a June 29, 2010 report, Dr. J. Edward Nolan, a Board-certified anesthesiologist and
pain management specialist, noted treating appellant since October 26, 2009 for pelvic/hip pain,
lumbar radiculopathy and muscle spasms. In an October 26, 2009 report, he saw her for pain in
the neck, right shoulder, mid back, low back, right leg and buttocks. Deep tendon reflexes were
intact and symmetrical in the bilateral upper and lower extremities. Sensory function was
grossly intact in the bilateral upper and lower extremities and motor function was normal.
Appellant walked with a limp. She had mild cervical pain in the right paraspinous musculature
to the right trapezius muscle; mild to moderate right shoulder pain; radiculopathy and moderate
lumbar radiculitis pain with range of motion in the right L1-L2, L4-L5 and L5-S1 distribution to
the groin and knee. Appellant had moderate right groin pain. Dr. Nolan diagnosed pelvic/hip
pain, disuse atrophy of the muscles, lumbar radiculopathy and muscle spasms. He opined that
there was nothing structurally in the hip that caused appellant’s pain. On November 3, 2009
Dr. Nolan advised that she could return to work on November 4, 2009 with a 40-pound lifting
restriction, no bending, squatting or crawling, and no pushing or pulling of heavy objects. In a
November 17, 2009 work excuse, he indicated that appellant called his office to report that she
was unable to work due to increased pain. Dr. Nolan provided work excuses for her absence
from work on November 28 and December 26, 2009 due to increased pain. In a January 25,
2010 report, he explained that appellant indicated that she was unable to walk long distances due
to her hip, groin and leg pain and asked that Dr. McConnell explain why she had issues with
prolonged walking. On January 26, 2010 Dr. Nolan requested that appellant be excused from
4

A.M.A., Guides 512 (6th ed. 2008).

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work on January 16 and 22, 2010 due to increased hip pain. He advised that she could not walk
prolonged distances. Dr. Nolan submitted other notes and work excuses reporting appellant’s
status and her disability on intermittent dates due to pain.
On July 15, 2010 appellant requested reconsideration of OWCP’s October 23, 2009
wage-earning capacity decision. She alleged that her condition continued until she was removed
from the employing establishment.5 Appellant advised OWCP that she had used all her sick
leave, annual leave and compensatory time because of her work-related injury. In a letter dated
August 13, 2010, she disagreed with the one percent impairment rating provided by the medical
adviser. Appellant also requested compensation for wage loss.
In an August 20, 2010 treatment note, Dr. Antonio Hernandez, a Board-certified internist,
noted treating appellant since January 8, 2010. He indicated that she did not experience an
increase in her blood pressure until after her work injury on July 12, 2007.
In a letter dated August 25, 2010, Martha A. Stitt, a senior human resources specialist,
noted that appellant’s compensation was reduced to zero based upon the suitability of the job that
was offered to her and which she accepted in 2007. She advised that appellant worked in the
position for about three years until her separation on June 25, 2010 which was due to
administrative matters unrelated to her injury. Ms. Stitt challenged appellant’s allegation that her
absences were due to her work injury or that she had a worsening of her work-related condition.
In an August 31, 2010 letter, appellant requested that OWCP allow her to work in her
part-time position. She contended that she had never recovered from her work injury. Appellant
repeated her concerns in letters dated September 3 and 23, 2010. The record contains several
claims for recurrence of disability commencing from November 10, 2009.
In a September 7, 2010 letter, OWCP provided Dr. Aymond with a copy of the medical
adviser’s report for review and comment. No response was received. On October 18, 2010
OWCP requested that the medical adviser review the file.
In an October 18, 2010 addendum, OWCP’s medical adviser advised that the date of
maximum medical improvement should be February 17, 2009, the date of Dr. Aymond’s report.
On October 21, 2010 OWCP denied modification of the October 23, 2009 wage-earning
capacity decision.
On October 25, 2010 OWCP granted appellant a schedule award for one percent
permanent impairment of the right leg. The award covered 2.88 weeks, from June 8 to 28, 2009.
On November 10, 2010 appellant requested a telephonic hearing from the October 25,
2010 schedule award decision. The hearing was held on March 21, 2011.

5

The record indicates that the employing establishment removed appellant effective June 26, 2010 for failure to
follow instructions and for being absent without leave.

4

On November 27, 2010 appellant requested reconsideration of the October 21, 2010
wage-earning capacity decision. She described the circumstances surrounding her injury until
she was terminated and alleged that she continued to be in physical and mental pain. Appellant
referred to a 2007 incident in a supermarket where she slipped. She argued that her medical
condition had worsened with increased disability.
By decision dated March 1, 2011, OWCP denied modification of the October 23, 2009
loss of wage-earning capacity decision.
In a letter dated April 19, 2011, appellant repeated her disagreement with the schedule
award decision. She indicated that she was unable to walk “distances” without pain. Appellant
indicated that she believed that she needed a second opinion.
By decision dated June 10, 2011, OWCP’s hearing representative affirmed the
October 25, 2010 schedule award decision.
LEGAL PRECEDENT -- ISSUE 1
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.6
OWCP’s procedure manual provides that, if a formal loss of wage-earning capacity
decision has been issued, the rating should be left in place unless the claimant requests
resumption of compensation for total wage loss.7 The procedure manual further indicates that,
under these circumstances, the claims examiner will need to evaluate the request according to the
customary criteria for modifying a formal loss of wage-earning capacity decision.8
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.9 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.10

6

See Katherine T. Kreger, 55 ECAB 633 (2004).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995).
8

Id.

9

Tamra McCauley, 51 ECAB 375, 377 (2000).

10

Id.

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ANALYSIS -- ISSUE 1
OWCP determined that appellant was unable to return to her date-of-injury position. The
employing establishment offered her a position as a transportation security officer on
July 13, 2007.
OWCP reduced appellant’s compensation benefits based on her actual earnings as a
transportation security officer on October 23, 2009, more than 60 days after she returned to
work. It found that she was employed as a transportation security officer for with wages of
$638.54 per week effective July 13, 2007. OWCP found that the position fairly and reasonably
represented appellant’s wage-earning capacity. It also found that she had demonstrated the
ability to perform the duties of this job for over two months, and the position was considered
suitable for her partially disabled condition. OWCP also found that there was no evidence that
the position was temporary and reduced appellant’s wages to zero as the current pay rate was
equal to or greater than the pay rate at the time of the injury.
Appellant continued to work in this position until her separation on June 25, 2010 due to
administrative matters unrelated to her injury. She then requested a resumption of compensation
for wage loss. Appellant alleged that her condition did not improve and she was removed from
the employing establishment.
The Board finds that the original wage-earning capacity determination was not in error.
OWCP’s wage-earning capacity determination was consistent with section 8115(a) of FECA
which provides that the wage-earning capacity of an employee is determined by appellant’s
actual earnings if her actual earnings fairly and reasonably represent her wage-earning
capacity.11 The position was not temporary or part time. Appellant worked in this position from
July 12, 2007 until she was separated from her position on June 25, 2010 due to matters
unrelated to her work injury.
Appellant also has not shown a material change in the nature and extent of the injuryrelated condition. Reports from Dr. Nolan noted her status, work restrictions and her complaints
of pain. These are insufficient to establish a material change in appellant’s injury-related
condition. While Dr. Nolan provided excuses for work on dates in which she had pain and
muscle spasms, he did not explain how this represented a material change in her accepted right
hip and right thigh sprains and enthesopathy of the hip region. In his June 29, 2010 report, he
advised that he had been treating appellant since October 26, 2009 for pelvic/hip pain, lumbar
radiculopathy and muscle spasms but he did not address whether the nature and extent of the
injury-related conditions had changed materially. Many of Dr. Nolan’s reports noted treating her
for pain and symptoms unrelated to the injury-related conditions involving the right hip and
thigh. He did not offer any opinion to explain how appellant’s accepted conditions had
materially changed and would cause her to be disabled for her job as a transportation security
officer. Therefore, these reports are of limited probative value and do not establish a basis for
modification of OWCP’s wage-earning capacity determination.

11

A.P., 58 ECAB 198 (2006).

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Additionally, Dr. McConnell, in his June 5, 2009 report, indicated that appellant had
residuals of lumbosacral disc disease with intermittent S1 neuropathy, which he believed was
aggravated by appellant’s July 12, 2007 work injury, but it was not an accepted condition.12 He
explained that no further treatment was warranted with regard to appellant’s accepted hip
conditions. In his February 4, 2010 report, Dr. McConnell clarified appellant’s work restrictions.
However, he did not offer any opinion to explain how her accepted conditions would cause her
to be disabled for her job as a transportation security officer. Thus, Dr. McConnell’s reports are
of limited probative value. No other medical reports specifically address how there was a
material worsening of appellant’s accepted conditions that prevented her from performing her
transportation security officer job.
The Board finds that the medical evidence does not establish a material change in the
nature and extent of appellant’s injury-related conditions and that the accepted conditions caused
her to be disabled for her job as a transportation security officer. Furthermore, there is no
evidence in the record that she was retrained or otherwise vocationally rehabilitated.
As noted, the burden of proof is on the party attempting to show a modification of the
wage-earning capacity. In this case, appellant has not met any of the three criteria for modifying
OWCP’s October 23, 2009 wage-earning capacity determination.13
On appeal, appellant asserts a material change in her accepted conditions. However, as
explained, the medical evidence does not establish that an injury-related condition caused
increased disability. Appellant may request modification of the wage-earning capacity
determination, supported by new evidence or argument, at any time before OWCP.
LEGAL PRECEDENT -- ISSUE 2
The schedule award provision of FECA14 and its implementing federal regulations,15 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted

12

For conditions not accepted by OWCP as being due to an employment injury, the claimant bears the burden of
proof to establish that the condition is causally related to the work injury. Jaja K. Asaramo, 55 ECAB 200 (2004).
13

After she filed her April 26, 2011 appeal of OWCP’s denial of modification of its wage-earning capacity
decision, OWCP issued a September 15, 2011 decision that denied modification of the wage-earning capacity
determination. The September 15, 2011 OWCP decision is null and void as OWCP and the Board may not have
concurrent jurisdiction over the same issue. See Russell E. Lerman, 43 ECAB 770 (1992); Douglas E. Billings, 41
ECAB 880 (1990).
14

5 U.S.C. § 8107.

15

20 C.F.R. § 10.404.

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the A.M.A., Guides as the uniform standard applicable to all claimants.16 For decisions issued
after May 1, 2009, the sixth edition will be used.17
In addressing lower extremity impairments, the sixth edition requires identifying the
impairment class for the diagnosed condition (CDX), which is then adjusted by grade modifiers
based on Functional History (GMFH), Physical Examination (GMPE) and Clinical Studies
(GMCS).18 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).19
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.20
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.21 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.22 A schedule award is not payable for an impairment of the
whole body.23
ANALYSIS -- ISSUE 2
In support of her claim for a schedule award, appellant provided a February 17, 2009
report from Dr. Aymond who noted her history, examined her and rated permanent impairment.
Dr. Aymond opined that she had a seven percent impairment of the whole person. However, as
noted above, a schedule award is not payable for an impairment of the whole body.24 Thus, this
report is of limited probative value.

16

Id. at § 10.404(a).

17

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

18

A.M.A., Guides 494-531; see J.B., Docket No. 09-2191 (issued May 14, 2010).

19

A.M.A., Guides 521.

20

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
21

Pamela J. Darling, 49 ECAB 286 (1998).

22

Thomas J. Engelhart, 50 ECAB 319 (1999).

23

N.M., 58 ECAB 273 (2007).

24

Id.

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Board precedent is well settled however that, when an attending physician’s report gives
an estimate of impairment, but does not indicate that the estimate is based upon the application
of the A.M.A., Guides or improperly applies the A.M.A., Guides, OWCP is correct to follow the
advice of its medical adviser or consultant where he or she has properly utilized the A.M.A.,
Guides.25
In a June 23, 2010 report, OWCP’s medical adviser reviewed the medical record and
determined that there were no abnormal physical findings regarding the accepted conditions in
the right hip or thigh. Furthermore, he indicated that x-rays were normal and concluded that
there was no basis for a permanent impairment other than bursitis or other soft tissue lesion. The
medical adviser found that appellant had one percent leg impairment under Table 16-4 for a class
1 bursitis. He determined the default leg impairment was one percent and with the assigned
grade modifier there was no adjustment under the net adjustment formula.26 The Board finds
that the medical adviser’s June 23, 2010 report properly applies the medical findings of record to
the A.M.A., Guides and establishes that appellant has no more than one percent impairment of
her right lower extremity for which she received a schedule award.
Although appellant argues on appeal that she had greater impairment, this assertion is not
supported in the medical record. There is no medical evidence of record in conformance with
the sixth edition of the A.M.A., Guides, which supports any greater impairment of her right leg.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that
modification of the wage-earning capacity determination was warranted. The Board further
finds that she has no more than a one percent impairment of her right lower extremity, for which
she received a schedule award.

25

See Ronald J. Pavlik, 33 ECAB 1596 (1982); Robert R. Snow, 33 ECAB 656 (1982); Quincy E. Malone, 31
ECAB 846 (1980).
26

A.M.A., Guides 512.

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ORDER
IT IS HEREBY ORDERED THAT the June 10 and March 1, 2011 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: April 17, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 15-0304
Issued: July 28, 2015

Case Submitted on the Record

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

JURISDICTION
On November 24, 2014 appellant, through counsel, filed a timely appeal from a
November 3, 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 established a recurrence of total disability for the period
December 4, 2013 to January 14, 2014 causally related to her May 26, 2010 employment injury.
Appellant’s counsel argues that OWCP’s decision is contrary to fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 25, 2010 appellant, then a 27-year-old city carrier, filed a traumatic injury
claim alleging that on May 26, 2010, she tripped and fell on a driveway while walking on uneven
concrete, turned her ankle, and sustained injuries to her left ankle, left hand, and right lower leg.
OWCP accepted her claim for left hand contusion, right leg contusion, and sprain of the left
ankle.
Appellant underwent an approved left ankle arthroscopy with debridement on
March 30, 2012. She stopped work for this surgery and returned to work with restrictions on
October 10, 2012. Specifically, appellant’s modified assignment was for work as a modified city
carrier. Her duties involved casing/pull down for one to two hours, driving/sitting for six to
seven hours, walking/standing for two to four hours, and fine manipulation/grasping for four to
eight hours. The physical requirements of the modified assignment were walking/standing for
two to four hours, driving/sitting for six to eight hours, reaching above shoulder for up to two
hours, and lifting/carrying up to 25 pounds for five to six hours.
On November 6, 2013, an internist with an illegible signature, limited appellant to
lifting/carrying up to 10 pounds continuously and 25 pounds intermittently. He noted that she
could sit eight hours a day; stand continuously two hours a day and intermittently four hours a
day; walk continuously for 30 minutes and intermittently for four hours; climb one to two hours
a day; kneel one hour a day, bend/stoop one to two hours per day; twist 30 minutes to one hour a
day; push/pull for 30 minutes a day; and reach above her shoulder continuously for 15 minutes at
a time for four hours a day. He further noted that appellant could perform simple grasping, fine
manipulation, and driving a motor vehicle for eight hours a day.
On November 27, 2013 the employing establishment offered a revised modified
assignment offer for work as a permanent letter carrier. The position had work hours of
7:30 a.m. to 4:00 p.m., with two days off (Sunday/rotating) a week. In a letter sending appellant
the offer, the postmaster noted that she would work two to four hours on casing and/or dismount
delivery and one hour of curb line delivery when available. The effective date of the position
was listed as December 2, 2013. The postmaster indicated that the employing establishment
needed to adhere to twisting restrictions of 30 minutes to 1 hour a day, and that curb-line
delivery required continually twisting while making deliveries. Appellant’s duties would include
two to four hours daily of casing/pulling down, walking/standing/dismounting, and lifting up to
25 pounds intermittently. She would also carry curb-line delivery for 30 minutes to one hour a
day.
Appellant signed the form indicating that she accepted the position under protest. She
indicated on the form that she would like OWCP to decide if this was an acceptable job offer.
Appellant noted that, as an eight-hour employee on a T-6 job, her assignment changes daily, and
management has not guaranteed her an eight-hour job offer. She argued that management
changed her prior job offer when they falsified information on her Form CA-17. Appellant
contended that she was not given an opportunity to update her restrictions and that the employing
establishment had refused her any work.

2

In a December 2, 2013 report, Dr. James D. Solmen, appellant’s treating Board-certified
orthopedic surgeon, assessed appellant with a history of an ankle sprain status postsurgical
debridement via ankle arthroscopy now with recurring symptoms in the same location. He noted
that although it was not likely for impingement to recur with mild repetitive trauma, it is
certainly a possibility and recommended a trial diagnostic injection into the ankle joint. In a
December 2, 2013 duty status report, Dr. Solmen returned appellant to work with restrictions
similar to the November 6, 2013 report, with the exception of allowing her to stand eight hours a
day, twist one to two hours a day, and reach above shoulder two to four hours a day.
In a December 3, 2013 letter, appellant asked the postmaster to consider whether the seat
in the long life vehicle (LLV) moved side to side, and that would take away the twisting she
would be required to do on curb line.
In a December 26, 2013 duty status report, Dr. Solmen kept the same basic restrictions
but now noted that appellant could twist six and one-half hours a day. He noted that she needed
five minutes of rest after standing greater than two hours and no use of mailbag.
Appellant submitted time analysis forms. She indicated that on December 3, 2013 she
was sent home after working two and one-half hours because there was no work available.
Appellant further indicated that there was no work available from December 4, 2013 through
January 14, 2014.
In a January 21, 2014 letter to OWCP, appellant advised that she was on vacation from
November 22 to December 2, 2013 and that the new job offer arrived while she was on vacation.
She argued that this job offer violated her rehabilitation job offer and that she was uncomfortable
signing it. Appellant contended that she did not know until she returned to work that it was not a
full-time job offer.
In a February 5, 2014 letter, counsel argued that the employing establishment withdrew
the limited-duty offer. He argued that the employing establishment was harassing appellant by
giving her only very limited hours per day to come in and then send her home.
OWCP paid appellant for intermittent hours lost on December 3, 2013 and for the period
January 15 through February 21, 2014.
By decision dated March 4, 2014, OWCP denied appellant’s claim for compensation for
the period December 4, 2013 through January 14, 2014.
On March 10, 2014 appellant requested a telephone hearing with an OWCP hearing
representative. At the hearing, held on September 10, 2014, appellant’s counsel argued that the
medical evidence established that she was disabled for intermittent periods in December 2013
and January 2014. Appellant testified at the hearing and indicated that she was still receiving
Cortisone shots. She indicated that, on December 4, 2013, she was doing full-time, limited-duty
rehabilitation employee work with a reasonable accommodation job offer that allowed her to do
curb line and milk stopping. Appellant testified that on December 4, 2013 the employing
establishment wanted her to carry a mailbag and that she was not allowed to do that because of
her other injuries. She testified that when she returned from vacation that the postmaster gave
her a new job offer and stated that she had to sign it that day or she would be sent home.
3

By decision dated November 3, 2014, the hearing representative affirmed OWCP’s
March 4, 2014 decision.
LEGAL PRECEDENT
OWCP’s definition of a recurrence of disability means an inability to work after an
employee has returned to work, caused by a spontaneous change in a medical condition, which
had resulted from a previous injury or illness without an intervening injury or new exposure.
The term also means the inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to his or her work-related
injury or illness is withdrawn or when the physical requirements of such an assignment are
altered so that they exceed his or her established physical limitations.2
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence
establishes that he or she can perform the limited-duty position, the employee has the burden of
proof to establish a recurrence of total disability and that he or she cannot perform such limitedduty work. As part of this burden, the employee must show a change in the nature or extent of
the injury-related condition or a change in the nature and extent of the light-duty job
requirements.3 To establish a change in the nature and extent of the injury-related condition,
there must be probative medical evidence of record. The evidence must include a rationalized
medical opinion, based on a complete and accurate factual and medical history and supported by
sound medical reasoning, that the disabling condition is causally related to employment factors.4
ANALYSIS
The Board finds that appellant did not establish a recurrence of total disability for the
period December 4, 2013 to January 14, 2014, causally related to the May 26, 2010 employment
injury.
Appellant has not submitted rationalized medical opinion evidence that establishes a
change in the nature and extent of the injury-related condition.5 The duty status reports note her
limitations, but do not provide any comprehensive explanation of her injury or the alleged
recurrence. Dr. Solmen’s report of December 2, 2013 is insufficient to establish a recurrence as
it is not rationalized and is speculative. Accordingly, appellant has not submitted rationalized
medical evidence indicating that she had sustained a recurrence such that she could not perform
her work.6
2

See John I. Echols, 53 ECAB 481 (2002); Terry R. Hedman, 38 ECAB 222 (1986).

3

P.A., Docket No. 10-1225 (issued April 20, 2011); Maurissa Mack, 50 ECAB 498 (1999).

4

Vanessa Young, 55 ECAB 575 (2004).

5

See A.D., Docket No. 14-2066 (issued February 11, 2015).

6

When no such rationale is present, the medical evidence is of diminished probative value. J.B., Docket No. 141474 (issued March 13, 2015).

4

A recurrence can also be found if a work assignment given to appellant to accommodate
her restrictions is withdrawn, and she argues that, under this criteria, she sustained a recurrence.
This argument is without merit. Although the employing establishment changed the job
description, there is no indication that the new position exceeded appellant’s limitations. The
position offered on November 27, 2013 is similar to the prior job, with the exception that it adds
twisting/curb line delivery limited to 30 minutes to one hour. This new limitation was in
response to a new duty status report of November 6, 2013 which indicated that appellant could
twist only 30 minutes to one hour a day. Dr. Solmen amended the restriction in a December 2,
2013 report wherein he indicated that she could twist for one to two hours a day. In a
December 26, 2013 report, he indicated that appellant could twist six and one-half hours a day.
Dr. Solmen appeared to increase the twisting allowance based on her desire to perform curb-line
delivery. The Board notes that, in a December 3, 2013 letter, appellant asked the postmaster to
consider that the seat in the LLV does move side to side and that this would take away the
twisting she would do on curb line. However, the employing establishment had previously
indicated that it must adhere to her twisting restrictions and that curb-line delivery required
continual twisting while making deliveries. All the remaining job requirements indicated that
appellant’s restrictions would be upheld. Appellant would not have to lift more than 25 pounds
intermittently for two to four hours a day, walk/stand/dismount duties limited to two to four
hours a day, and stand reach above shoulder for two to four hours a day. All these restrictions
were within the limitations set by Dr. Solmen. There is no evidence to support appellant’s
contention that this was not a full-time job offer as the work hours are listed as 7:30 a.m. to 4:00
p.m. with two days off a week. Given the above evidence, appellant has failed to establish that
there was a change in the nature and extent of her light-duty job requirements.7
As appellant has not established a changed in the nature and extent of the injury-related
condition or a change in the nature and extent of the light-duty job requirements, she has failed to
meet her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established a recurrence of total disability for the
period December 4, 2013 to January 14, 2014 causally related to her May 26, 2010 employment
injury.

7

See L.B., Docket No. 14-140 (issued June 2, 2014).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 3, 2014 is affirmed.
Issued: July 28, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.D., Appellant
and
U.S. POSTAL SERVICE, HARKER HEIGHTS
POST OFFICE, Harker Heights, TX, Employer
__________________________________________

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

Docket No. 21-0297
Issued: July 2, 2021

Case Submitted on the Record

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

JURISDICTION
On December 23, 2020 appellant, through counsel, filed a timely appeal from a
September 4, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the September 4, 2020 decision, appellant submitted additional evidence to
OWCP. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish a consequential left
knee condition causally related to the accepted November 15, 2017 employment injury.
FACTUAL HISTORY
This case has previously been before the Board on a different issue.4 The facts and
circumstances as set forth in the Board’s prior decision are incorporated herein by reference. The
relevant facts are as follows.
On November 16, 2017 appellant, then a 37-year-old postal support employee mail clerk,
filed a traumatic injury claim (Form CA-1) alleging that on November 15, 2017 she sprained and
bruised her right foot when an equipment gate fell on her leg while in the performance of duty.
She stopped work on November 21, 2017 and returned to part-time, limited-duty work for
approximately six hours per day on December 13, 2017. OWCP accepted appellant’s claim for
right foot and ankle sprains. On March 28, 2018 appellant stopped work again.5
On July 31, 2019 appellant underwent OWCP-approved right ankle arthroscopic surgery
and stopped work. OWCP paid her wage-loss compensation on the supplemental rolls beginning
July 31, 2019.
In a report dated August 28, 2019, Dr. Thomas Martens, an osteopath who specializes in
family medicine, described the history of the November 15, 2017 employment injury and noted
that appellant recently underwent right ankle surgery. He reported right ankle examination
findings of mild tenderness over the lateral ligament and two well-healed incisions. Upon
examination of appellant’s left lower extremity, Dr. Martens observed mild swelling of the left
ankle and tenderness of the left lateral/medial knee joint with limited range of motion (ROM). He
diagnosed right foot and right ankle sprains. Dr. Martens opined that appellant was incapacitated
from work beginning July 31, 2019 due to her work-related injuries.
On October 26, 2019 appellant returned to part-time, limited-duty work for four hours per
day. OWCP continued to pay her wage-loss compensation for partial disability.
In a December 3, 2019 report, Dr. Martens indicated that he had treated appellant for workrelated right ankle and foot sprain injuries. Upon examination of appellant’s right ankle, he
observed tenderness over the lateral ligament and limited ROM secondary to pain. Examination
of appellant’s left knee revealed tenderness of the left lateral and medial knee joint, pain on
palpation, and limited ROM secondary to pain. Dr. Martens noted that a July 17, 2018 left knee
magnetic resonance imaging (MRI) scan had revealed a complex tear of the lateral meniscus body
and posterior horn. He requested that the acceptance of appellant’s claim be expanded to include
complex tear of the lateral meniscus of the left knee as a direct result of appellant’s authorized
4

Docket No. 19-0955 (issued February 3, 2020).

5
Appellant subsequently filed claims for compensation (Form CA-7) for disability for the period March 28 through
April 28, 2018. OWCP denied appellant’s claim by decision dated August 6, 2018, which was affirmed by an OWCP
hearing representative on March 11, 2019. Appellant appealed to the Board. By decision dated February 3, 2020, the
Board affirmed the March 11, 2019 OWCP decision. Id.

2

right ankle surgery. Dr. Martens noted that appellant’s left knee lateral meniscus tear was
“consequential to the right ankle/foot injury as she was required to wear the boot due to the pain
and discomfort.” He explained that the lateral meniscus was on the outside of the knee and began
to lose its resiliency as the altered gait and weight was placed heavily on the left lower extremity.
Dr. Martens reported that appellant was immobilized in a walking boot on January 5, 2018 and
recounted how appellant continued to ambulate with a walking boot for months while she
attempted to return to work.
Appellant provided a July 17, 2018 left knee MRI scan, which revealed a complex tear of
the lateral meniscus body and posterior horn, moderate lateral compartment arthrosis, and mild
medial compartment arthrosis with articular cartilage thinning. She also submitted reports dated
January 5 through October 4, 2018 from Dr. Ryan Shock, a podiatrist, who treated appellant for
her right ankle sprain and indicated that appellant’s right foot was immobilized in a walking boot.
In a February 11, 2020 report, Dr. Martens indicated that appellant was treated for follow
up of her work-related right ankle and foot injuries. He noted that they were waiting for appellant’s
claim to be expanded to include a left knee injury. Dr. Martens conducted an examination and
diagnosed right foot and ankle sprains.
On February 21, 2020 OWCP requested that a district medical adviser (DMA) review
Dr. Martens’ reports and comment on whether he agreed with his opinion that appellant’s left knee
condition was a consequence of the accepted November 15, 2017 employment injury.
In a March 10, 2020 report, Dr. Nathan Hammel, a Board-certified orthopedic surgeon
serving as the DMA, noted his review of appellant’s history and referenced appellant’s accepted
conditions of right ankle and right foot sprains. He expressed his disagreement with Dr. Martens’
opinion that appellant sustained a consequential left knee injury due to her November 15, 2017
employment injury. Dr. Hammel indicated that the mechanism of injury was incapable of
producing a meniscus tear and that there was no correlation between temporary immobilization
and contralateral meniscus tear. In response to the questions posed by OWCP, he reported that
there was a delay complaint of left knee symptoms and the mechanism of injury listed on the
statement of accepted facts (SOAF) was incapable of producing a meniscus tear. Dr. Hammel
postulated that there is no generally accepted practice, which correlates temporary immobilization
with contralateral meniscus tear. He further indicated that there was “no medical literature to
support that temporary gait alterations from surgery or immobilization causes degenerative
conditions like the complex tear of the lateral meniscus.”
By decision dated April 8, 2020, OWCP denied the expansion of the acceptance of
appellant’s claim to include a consequential left knee condition, finding that the medical evidence
of record was insufficient to establish that the additional condition was caused or aggravated by
her accepted November 15, 2017 employment injury.
On April 14, 2020 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held on July 7, 2020.
OWCP subsequently received reports dated March 16 through August 20, 2020 from
Dr. Shock regarding his medical treatment for appellant’s right ankle and foot sprains.

3

By decision dated September 4, 2020, OWCP’s hearing representative affirmed the
April 8, 2020 decision.
LEGAL PRECEDENT
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.6
To establish causal relationship, the employee must submit rationalized medical opinion
evidence.7 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 accepted employment injury.8 The weight of the medical evidence is determined by its
reliability, its probative value, its convincing quality, the care of analysis manifested, and the
medical rationale expressed in support of the physician’s opinion.9
When an injury arises in the course of employment, every natural consequence that flows
from that injury likewise arises out of the employment, unless it is the result of an independent
intervening cause attributable to a claimant’s own intentional misconduct.10 Thus, a subsequent
injury, be it an aggravation of the original injury or a new and distinct injury, is compensable if it
is the direct and natural consequence of a compensable primary injury.11
ANALYSIS
The Board finds that this case is not in posture for decision.
In a December 3, 2019report, Dr. Martens, appellant’s treating physician, requested that
the acceptance of appellant’s claim be expanded to include complex tear of the lateral meniscus of
the left knee as a direct result of appellant’s authorized right ankle surgery. He opined that
appellant’s left knee condition was consequential to her right ankle and foot injury because she
was required to wear a walking boot. On February 21, 2020 OWCP requested that a DMA review

6

J.R., Docket No. 20-0292 (issued June 26, 2020); W.L., Docket No. 17-1965 (issued September 12, 2018); V.B.,
Docket No. 12-0599 (issued October 2, 2012); Jaja K. Asaramo, 55 ECAB 200, 204 (2004).
7

See W.C., Docket No. 19-1740 (issued June 4, 2020); S.A., Docket No. 18-0399 (issued October 16, 2018); see
also Robert G. Morris, 48 ECAB 238 (1996).
8
E.M., Docket No. 18-1599 (issued March 7, 2019); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB
345 (1989).
9

D.S., Docket No. 20-0146 (issued June 11, 2020); M.V., Docket No. 18-0884 (issued December 28, 2018); James
Mack, 43 ECAB 321 (1991).
10

See S.M., Docket No. 19-0397 (issued August 7, 2019); Mary Poller, 55 ECAB 483, 487 (2004).

11

A.T., Docket No. 18-1717 (issued May 10, 2019); Susanne W. Underwood (Randall L. Underwood), 53 ECAB
139 (2001).

4

Dr. Martens’ report and comment on whether he agreed with his opinion that appellant’s left knee
condition was a consequence of the accepted November 15, 2017 employment injury.
In a March 10, 2020 report, the DMA indicated that the described mechanism of injury was
incapable of producing a meniscus tear. In response to OWCP’s questions, he reported that there
was a delay in reporting the complaint of left knee symptoms, and that the mechanism of injury
listed on the SOAF was incapable of producing a meniscus tear. The DMA postulated that there
is no generally accepted practice, which correlates temporary immobilization with contralateral
meniscus tear. He further indicated that there was “no medical literature to support that temporary
gait alterations from surgery or immobilization causes degenerative conditions like the complex
tear of the lateral meniscus.” The DMA, however, did not provide sufficient medical reasoning to
support his conclusory statements that appellant had not developed a consequential left knee
condition.12 He opined that mechanism of injury listed on the SOAF was incapable of producing
a meniscus tear; however, he did not provide an explanation for his opinion. The DMA failed to
explain how walking with an altered gait due to immobilization did not contribute to a
consequential left knee condition.13 The Board has held that a report is of limited probative value
if a physician does not provide medical rationale explaining his or her conclusion on that matter.14
It is well established that proceedings under FECA are not adversarial in nature and, while
appellant has the burden to establish entitlement to compensation, OWCP shares responsibility in
the development of the evidence.15 It has an obligation to see that justice is done.16 Accordingly,
once OWCP undertakes to develop the medical evidence, it has the responsibility to do so in a
manner that will resolve the relevant issues in the case.17 In this case, the DMA failed to offer a
rationalized medical explanation regarding why appellant did not sustain a consequential left knee
condition causally related to the accepted November 15, 2017 employment injury. Due to the
deficiencies in the DMA’s report, OWCP should have sought clarification or referred appellant for
a second opinion evaluation.18
On remand OWCP shall refer appellant, together with a SOAF and a list of specific
questions, to a specialist in the appropriate field of medicine, for a second opinion evaluation in
order to resolve the issue of whether appellant developed a consequential left knee condition

12
See D.T., Docket No. 20-0234 (issued January 8, 2021); see also K.C., Docket No. 19-1251 (issued
January 24, 2020).
13

See T.B., Docket No. 20-0182 (issued April 23, 2021); see also J.H., Docket No. 19-0513 (issued
September 24, 2019).
14

L.G., Docket No. 19-0142 (issued August 8, 2019); C.M., Docket No. 14-0088 (issued April 18, 2014).

15
See e.g., M.G., Docket No. 18-1310 (issued April 16, 2019); Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985);
Michael Gallo, 29 ECAB 159, 161 (1978); William N. Saathoff, 8 ECAB 769, 770-71; Dorothy L. Sidwell, 36 ECAB
699, 707 (1985).
16
See A.J., Docket No. 18-0905 (issued December 10, 2018); William J. Cantrell, 34 ECAB 1233, 1237 (1983);
Gertrude E. Evans, 26 ECAB 195 (1974).
17

T.K., Docket No. 20-0150 (issued July 9, 2020); T.C., Docket No. 17-1906 (issued January 10, 2018).

18

M.S., Docket No. 19-0282 (issued August 2, 2019); V.H., Docket No. 14-0433 (issued July 3, 2014).

5

causally related to the accepted November 15, 2017 employment injury.19 If the second opinion
physician disagrees with the explanations provided by Dr. Martens, he or she must provide a fullyrationalized explanation regarding why the accepted employment injury was insufficient to have
caused or contributed to his current left knee meniscal tear. Following this and any other such
further development deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the September 4, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: July 2, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

19

T.S., Docket No. 18-1702 (issued October 4, 2019).

6


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

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

Docket No. 07-1905
Issued: February 4, 2008

Case Submitted on the Record

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

JURISDICTION
On July 3, 2007 appellant filed a timely appeal from an April 10, 2007 nonmerit decision
of the Office of Workers’ Compensation Programs denying her request for reconsideration on
the grounds that it was untimely filed and failed to establish clear evidence of error. Because
more than one year has elapsed between the last merit decision dated February 16, 2006 and the
filing of this appeal, the Board lacks jurisdiction to review the merits of appellant’s claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the April 10,
2007 nonmerit decision.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that her request for reconsideration was not timely
filed and failed to demonstrate clear evidence of error.

FACTUAL HISTORY
On January 20, 1998 appellant filed an occupational disease claim alleging a cervical
condition resulting from factors of her federal employment. The claim was originally accepted
for cervical strain and was later expanded to include disc protrusion at C5-6.1 Appellant returned
to full-time modified duty on October 26, 2000.
Appellant’s treating physician, Dr. Gerald Keane, a Board-certified physiatrist, reported
that she continued to experience residuals from the accepted cervical condition, including spasms
and restricted range of motion. On the other hand, the Office’s second opinion physician,
Dr. Jerrold Sherman, a Board-certified orthopedic surgeon, opined that appellant’s cervical
condition had resolved. In order to resolve the conflict in medical opinion, the Office referred
appellant to Dr. John Batcheller, a Board-certified orthopedic surgeon, for an impartial medical
examination. Based on Dr. Batcheller’s opinion that appellant no longer had residuals of the
accepted work conditions, the Office terminated appellant’s benefits by decision dated
October 4, 2002. On June 5, 2003 the October 4, 2002 decision was set aside by an Office
hearing representative for further clarification of the impartial medical examiner’s (IME’s)
report.
Concluding that Dr. Batcheller’s reports were insufficient to resolve the existing conflict,
the Office referred appellant to Dr. Clarence Boyd, a Board-certified orthopedic surgeon, for an
impartial medical examination. In a November 14, 2003 report, Dr. Boyd opined that appellant
had no residual symptoms related to either the bilateral carpal tunnel syndrome or the accepted
cervical spine injury. Based on his report, the Office terminated appellant’s entitlement to
continued benefits on November 26, 2003, finding that the weight of the medical evidence
established that she no longer had residuals of the accepted work-related conditions. By decision
of an Office hearing representative dated September 12, 2004, the Office was instructed to obtain
a supplemental report from Dr. Boyd to clarify his opinion. In a supplemental report dated
March 4, 2005, Dr. Boyd stated that the results of a January 29, 2003 magnetic resonance
imaging (MRI) scan were consistent with his normal physical examination, which revealed full,
active range of motion in the cervical spine, with no evidence of neurologic abnormalities in
either upper extremity, no nerve root encroachment and no herniated disc. He opined that
appellant’s duties as a clerk would not have caused her degenerative disc disease or joint disease
in her cervical spine.
By decision dated March 8, 2005, the Office terminated appellant’s benefits, finding that
the weight of the medical evidence, which was encompassed in the opinion of Dr. Boyd,
established that appellant no longer had residuals of her work-related conditions. Appellant
requested an oral hearing and, in support thereof, submitted reports from Dr. Keane reflecting his
opinion that her cervical condition was caused by years of repetitive employment activities. She
submitted a November 4, 2004 MRI scan report; reports from Dr. Cecil Chang, a Board-certified
neurological surgeon, for the period March 28, 2003 through November 14, 2005, which
1

Appellant’s January 11, 1993 occupational disease claim File No. 13-1005704 was accepted for right wrist
strain and bilateral carpal tunnel syndrome. By decision dated January 19, 2005, the Office affirmed a
November 26, 2003 decision, finding that appellant had no residuals from the accepted bilateral upper extremity
injury. The case involved in this appeal File No. A13-1154348 became the master file number for both cases.

2

provided a diagnosis of cervical spondylosis at C5-6; and an operative report for discectomy and
fusion at C5-6 performed on July 14, 2005.
By decision dated February 16, 2006, an Office hearing representative affirmed the
March 8, 2005 decision. The representative found that Dr. Boyd’s reports were well-reasoned
and were based upon a proper factual background. He concluded that the IME’s reports
represented the weight of the medical evidence and established that appellant no longer had
residuals of the accepted work-related conditions.
In an undated letter, received by the Office on February 21, 2007, appellant requested
reconsideration of the Office’s February 16, 2006 decision, contending that Dr. Boyd’s reports
were insufficient to establish that her accepted work-related conditions had resolved. Appellant
stated that she was submitting new medical information from Dr. Chang, which consisted of
unsigned notes. She submitted numerous documents which had been previously provided and
considered by the Office.2 The record contains a copy of a letter from Robert B. Rutter to
Dr. Chang requesting his cooperation in answering questions related to appellant’s cervical
condition. The letter contains undated, unsigned notes, which are largely illegible.
By decision dated April 10, 2007, the Office denied appellant’s request for
reconsideration on the grounds that it was not timely filed and failed to present clear evidence of
error.
LEGAL PRECEDENT
The Office, through regulation, has imposed limitations on the exercise of its
discretionary authority under section 8128(a) of the Federal Employees’ Compensation Act.3
The Office will not review a decision denying or terminating a benefit unless the application for
review is filed within one year of the date of that decision.4 When an application for review is
untimely, the Office undertakes a limited review to determine whether the application presents
clear evidence that the Office’s final merit decision was in error.5 The Office procedures stated
that the Office will reopen a claimant’s case for merit review, notwithstanding the one-year filing
limitation set forth in 20 C.F.R. § 10.607, if the claimant’s application for review shows “clear

2

Previously, submitted documents included: May 12, 2005 and January 24, 2004 reports from Dr. Weinstein;
November 15, 2005 and August 10, 2004 reports from Dr. Keane; a July 19, 2005 report from Dr. Chang; a
January 12, 1996 report from a Dr. David A. Hunt; and an October 9, 1998 report from a Dr. Jaime Lopez.
3

5 U.S.C. §§ 8101-8193, 5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.607; see also Alan G. Williams, 52 ECAB 180 (2000).

5

Veletta C. Coleman, 48 ECAB 367 (1997).

3

evidence of error” on the part of the Office.6 In this regard, the Office will limit its focus to a
review of how the newly submitted evidence bears on the prior evidence of record.7
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office. The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error. Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.8 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office. To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office’s decision.9 The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the
part of the Office such that the Office abused its discretion in denying merit review in the face of
such evidence.10 The Board has held that the submission of evidence or argument already in the
case record11 or the submission of evidence or argument which does not address the particular
issue involved, does not constitute a basis for reopening a case.12
ANALYSIS
The Office properly determined that appellant failed to file a timely application for
review. Section 10.607(a) provides that an application for reconsideration must be sent within
one year of the date of the Office decision for which review is sought.13 In this case, the oneyear time limitation began to run the day following the issuance of the February 16, 2006
decision, the last merit decision in the case.14 The regulations further provide that the application
6

See Gladys Mercado, 52 ECAB 255 (2001). Section 10.607(b) provides: “[The Office] will consider an
untimely application for reconsideration only if the application demonstrates clear evidence of error on the part of
[it] in its most recent decision. The application must establish, on its face, that such decision was erroneous.”
20 C.F.R. § 10.607(b).
7

See Alberta Dukes, 56 ECAB 247 (2005); see also Nelson T. Thompson, 43 ECAB 919 (1992).

8

See Alberta Dukes, supra note 7; see also Leon J. Modrowski, 55 ECAB 196 (2004).

9

Id.

10

See Alberta Dukes, supra note 7. See also Pete F. Dorso, 52 ECAB 424 (2001); John Crawford, 52 ECAB
395 (2001).
11

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

12

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

13

20 C.F.R. § 10.607(a) (1999).

14

See Angel M. Lebron, Jr., 51 ECAB 488 (2000).

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will be deemed timely if postmarked within the time period allowed.15 The Office received
appellant’s undated request for reconsideration on February 21, 2007. The record does not
include a copy of the envelope in which appellant submitted her request for reconsideration or
any other evidence of mailing or receipt that would otherwise establish a timely filing.16 As the
request was undated and the record is devoid of any additional information that would render
appellant’s request timely, the Office properly relied on the February 21, 2007 date of receipt,
rendering the request untimely. Because the Office received appellant’s request more than one
year after its February 16, 2006 merit decision, she must demonstrate clear evidence of error on
the part of the Office in rendering its decision.17
In accordance with its internal guidelines and with Board precedent, the Office properly
performed a limited review to determine whether appellant’s application for review showed clear
evidence of error that would warrant reopening her case for merit review under section 8128(a)
of the Act, notwithstanding the untimeliness of her application. In her February 21, 2007 request
for reconsideration, appellant contended that Dr. Boyd’s reports were insufficient to establish
that her accepted work-related conditions had resolved. Appellant stated that she was submitting
new medical information from Dr. Chang; however, the evidence submitted consisted of
unsigned, illegible notes, which are of no probative value.18 She also submitted numerous
documents which had been previously provided and considered by the Office. The Board finds
that the evidence submitted is not of sufficient probative value to prima facie shift the weight of
the evidence in favor of the claimant and raise a substantial question as to the correctness of the
Office’s decision. Appellant did not allege error on the part of the Office, but merely reiterated
her argument that her work-related condition had not resolved and that the opinions of her
treating physicians should be accorded greater weight than that of the impartial medical
examiner. Documents which duplicate evidence already in the case record have no evidentiary
value.19 Similarly, illegible notes, allegedly provided by Dr. Chang, lack probative value in that
they are unsigned and fail to address the issue involved. Thus, the evidence and argument
submitted by appellant are insufficient to show clear evidence of error by the Office.

15

20 C.F.R. § 10.607(a) (1999).

16

The Office’s procedures require that an imaged copy of the envelope that enclosed the request for
reconsideration should be in the case record. If there is no postmark or it is not legible, other evidence such as a
certified mail receipt, a certificate of service and affidavits may be used to establish the mailing date. In the absence
of such evidence, the date of the letter itself should be used. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.3(b)(1) (January 2004).
17

20 C.F.R. § 10.607(b) (1999). See Anna Marie Feeley , Docket No. 05-1643 (issued October 17, 2005).

18

The Board has consistently held that unsigned medical reports are of no probative value, Merton J. Sills,
39 ECAB 572, 575 (1988) and that any medical evidence upon which the Office relies to resolve an issue must be in
writing and signed by a qualified physician. James A. Long, 40 ECAB 538, 541 (1989).
19

See Helen E. Paglinawan, 51 ECAB 591 (2000).

5

CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s claim for review of
its February 16, 2006 decision. The Board finds that appellant’s reconsideration request was
untimely and failed to establish clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the April 10, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 4, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


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

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Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1114
Issued: August 26, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On April 5, 2013 appellant, through his attorney, filed a timely appeal from a January 28,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying his
claim for an employment-related injury. 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 sustained right
hip and left elbow conditions in the performance of duty causally related to factors of his federal
employment.
On appeal, counsel contends that appellant’s performance of his full-time job duties for
the period November 30, 2010 through June 15, 2012 led to an aggravation and exacerbation of a
preexisting hip condition, which he sustained at work on November 23, 2010.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 25, 2012 appellant, then a 50-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that he sustained right hip and left elbow conditions due to factors of
his federal employment, including standing, walking, bending, lifting, sitting and walking up and
down stairs. He stated that he had previously submitted a traumatic injury claim which was
denied by OWCP, but over time his condition worsened and he became unable to work.2
By letter dated July 16, 2012, OWCP requested additional factual and medical
information from appellant. It allotted him 30 days to submit additional evidence and respond to
its inquiries.
Subsequently, appellant submitted an August 6, 2012 narrative statement indicating that
his duties included walking to deliver mail, standing to case mail, lifting inserts of flats, bending,
lifting and loading his vehicle. He stated that he was not trying to circumvent a traumatic injury
claim, but filed an occupational disease claim because he was unable to perform his full duties as
they aggravated his conditions.
In reports dated August 12, 2011 through June 18, 2012, Dr. Robert S. Goldstein, a
Board-certified orthopedic surgeon, diagnosed right greater trochanteric bursitis, right greater
trochanteric ascites and left lateral epicondylitis. On August 12, 2011 he indicated that appellant
fell down the steps at work in November 2010 and had a sharp pain in the right hip the day after
the fall. On December 2, 2011 Dr. Goldstein reported that appellant continued to have right hip
pain which fluctuated day-by-day. Appellant complained of lower back pain radiating to
bilateral buttocks, more so in the right buttock going down the right leg and reported difficulty
getting up from a chair. He also complained of left shoulder pain which woke him up at night.
There was occasional neck pain and radiating pain going down the left arm. On June 18, 2012
Dr. Goldstein indicated that appellant worked on his feet all day and complained of lower back
pain, left elbow pain when lifting objects and stabbing pain in the right hip which radiated down
to the knee and the foot, especially when walking, bending, doing side movements and going up
and down stairs.
By decision dated October 4, 2012, OWCP denied the claim on the basis that the medical
evidence failed to establish a causal relationship between the diagnosed conditions and the
implicated employment factors.
On October 24, 2012 appellant, through his attorney, requested reconsideration and
submitted a September 14, 2012 report from Dr. Goldstein who reviewed appellant’s medical
history and reiterated his diagnoses. Dr. Goldstein opined that appellant’s right hip injury was
causally related to the accident that occurred when he fell down steps on November 23, 2010 and
stated that he was not relating the left elbow problem to the same incident as it was not reported
to him until much later in appellant’s treatment. He opined that appellant was totally disabled
for work as he was unable to: walk over three to four blocks without rest; lift or carry heavy
2

By decision dated January 11, 2011, OWCP denied appellant’s claim for a traumatic injury under OWCP File
No. xxxxxx444 on the basis that the evidence was insufficient to establish that the November 23, 2010 incident of
him slipping as he descended the stairs occurred, as alleged.

2

loads due to radiating pain in his right hip area; and had difficulty loading a postal vehicle,
bending and walking up and down stairs. Dr. Goldstein concluded that appellant did not have an
aggravation or exacerbation of a preexisting condition in his left elbow or right hip area.
By decision dated January 28, 2013, OWCP denied medication of its October 4, 2012
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA and that an injury4 was sustained in the performance of duty. These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in a claim for an
occupational disease claim, an employee must submit the following: (1) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; (2) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence. The opinion of the physician must
be based on a complete factual and medical background of the employee, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the employee.7
ANALYSIS
The Board finds that appellant did not meet his burden of proof to establish a claim that
federal employment factors caused or aggravated his right hip and left elbow conditions. While
appellant submitted a statement in which he identified the factors of employment that he believed
caused the condition, in order to establish a claim that he sustained an employment-related
3

5 U.S.C. §§ 8101-8193.

4

OWCP regulations define an occupational disease or illness as a condition produced by the work environment
over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
5

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

6

See D.R., Docket No. 09-1723 (issued May 20, 2010). See Roy L. Humphrey, 57 ECAB 238, 241 (2005);
Ruby I. Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
7

See O.W., supra note 5.

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injury, he must also submit rationalized medical evidence which explains how his medical
conditions were caused or aggravated by the implicated employment factors.8
In his reports, Dr. Goldstein diagnosed right greater trochanteric bursitis, right greater
trochanteric ascites and left lateral epicondylitis. On August 12, 2011 he indicated that appellant
fell down the steps at work in November 2010 and had a sharp pain in the right hip the day after
the fall. On June 18, 2012 Dr. Goldstein indicated that appellant worked on his feet all day and
complained of lower back pain, left elbow pain when lifting objects and stabbing pain in the
right hip which radiated down to the knee and the foot, especially when walking, bending, doing
side movements and going up and down stairs. On September 14, 2012 he opined that
appellant’s right hip injury was causally related to the accident that occurred when he fell down
steps on November 23, 2010. Dr. Goldstein concluded that appellant did not have an
aggravation or exacerbation of a preexisting condition in his left elbow or right hip area. He
provided firm diagnoses and identified appellant’s work duties. However, Dr. Goldstein failed to
provide a rationalized opinion explaining how factors of appellant’s federal employment, such as
sitting, standing, walking, bending, lifting, loading a vehicle and walking up and down stairs,
caused or aggravated his right hip and left elbow conditions. Lacking thorough medical rationale
on the issue of causal relationship, his reports are insufficient to establish that appellant sustained
an employment-related injury.
As appellant has not submitted any rationalized medical evidence to support his
allegation that he sustained an injury causally related to the indicated employment factors, he
failed to meet his burden of proof to establish a claim.
On appeal, counsel contends that appellant’s performance of his full-time job duties for
the period November 30, 2010 through June 15, 2012 led to an aggravation and exacerbation of a
preexisting hip condition, which he sustained at work on November 23, 2010. OWCP has not
accepted that appellant experienced an employment-related incident on November 23, 2010.9
The Board has held that the mere fact that appellant’s symptoms arise during a period of
employment or produce symptoms revelatory of an underlying condition does not establish a
causal relationship between appellant’s condition and his employment factors.10 For the reasons
stated above, the Board finds the attorney’s arguments are not substantiated.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.

8

A.C., Docket No. 08-1453 (issued November 18, 2008); Donald W. Wenzel, 56 ECAB 390 (2005); Leslie C.
Moore, 52 ECAB 132 (2000).
9

See supra note 2.

10

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

4

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained right hip and left elbow conditions in the performance of duty causally related to
factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the January 28, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 26, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.B., Appellant
and
DEPARTMENT OF DEFENSE, CHINA LAKE
NAVAL AIR WEAPONS STATION, POLICE
DEPARTMENT, China Lake, CA, Employer
__________________________________________

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

Docket No. 08-464
Issued: September 25, 2008

Case Submitted on the Record

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

JURISDICTION
On December 5, 2007 appellant filed a timely appeal from February 1, June 28 and
September 26, 2007 decisions of the Office of Workers’ Compensation Programs denying her
traumatic injury claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant was injured in the performance of duty on
December 13, 2006.
FACTUAL HISTORY
On December 14, 2006 appellant, then a 62-year-old security guard, filed a traumatic
injury claim (Form CA-1) asserting that on December 13, 2006 at 5:20 p.m., shortly after a
minor traffic collision in which she was not injured, she sustained low back injuries when
Officer E. Hamilton, a coworker, threw her to the ground, placed his knee on her back and

handcuffed her. The employing establishment asserted that the incident was not in the
performance of duty as the officer restrained her because she caused a traffic accident then failed
to obey his instructions. The employing establishment noted that appellant’s scheduled start time
was 5:30 p.m. Appellant asserted that she arrived early on December 13, 2006 as she needed to
complete training, choose a schedule and read e-mails.
In a January 25, 2007 letter, the employing establishment stated that on December 13,
2006 appellant’s vehicle struck the stopped patrol car of Officer Hamilton and Officer Jared
Roark, a trainee. Appellant then proceeded without slowing or stopping. The officers got into
their patrol car and pursued appellant to the parking lot. The officers then recognized her.
Officer Hamilton twice ordered appellant to turn around and interlock her fingers behind her
head, then forcibly took her to the ground and handcuffed her. Appellant was then told about the
collisions and taken to the emergency room as she was diabetic. On December 14, 2006 she
advised the employing establishment that she had a breakthrough seizure. Appellant had been on
medication due to a seizure several years before. The employing establishment noted that the
parking lot was on its premises and appellant “may arrive anywhere from 10 minutes to 1 hour
before her scheduled work time” to attend to scheduling or other matters.
Appellant submitted medical evidence. In a December 20, 2006 report, Dr. Susan E.
Hammon, an employing establishment physician, noted appellant’s history of a seizure disorder,
diabetes and hypertension. She related appellant’s account of the December 13, 2006 events.
Appellant’s attending physician released her to work with no driving and no carrying a gun.
Dr. Hammon noted work restrictions in follow-up reports. In a January 23, 2007 report,
Dr. Adel Rizkallah, an attending osteopathic physician, noted a history of lumbar problems.1 He
stated that, according to appellant, the December 13, 2006 incident and “method of restraints …
exacerbated her back condition.”
By decision dated February 1, 2007, the Office denied appellant’s claim on the grounds
that causal relationship was not established. It accepted the December 13, 2006 incident as work
related but found the medical evidence insufficient to establish the incident caused an injury.
In a February 14, 2007 letter, appellant requested a review of the written record. She
contended that she was kneeling down in compliance with Officer Hamilton’s instructions when
he slammed her to the concrete. Appellant submitted additional evidence.
In an April 13, 2007 report, Dr. Kathryn Mason, an attending Board-certified family
practitioner, opined that a herniated L5-S1 disc “certainly could have been, and likely was,
caused by being forcefully thrown to the ground.”
In a May 29, 2007 letter, the employing establishment stated that the December 13, 2006
incident occurred on its premises at 5:14 p.m., 16 minutes before appellant’s scheduled 5:30 p.m.
start time.

1

A January 29, 2004 magnetic resonance imaging scan showed mild diffuse lumbar spondylosis, a moderate disc
extrusion at L3-4 and foraminal stenosis from L1 to L5.

2

By decision dated and finalized June 28, 2007, an Office hearing representative affirmed
the February 1, 2007 decision. The hearing representative found that the December 13, 2006
incident was not in the performance of duty as appellant had not yet begun work. Also, as
appellant failed to follow Officer Hamilton’s instructions, the altercation became a personal
dispute not considered within the performance of duty.
In a July 25, 2007 letter, appellant requested reconsideration, reiterating her account of
events in several statements. She submitted additional evidence.
In a December 13, 2006 statement, Officer Hamilton stated that at 5:10 p.m. that day, a
vehicle with no lights on struck his patrol car then kept traveling. He and Officer Roark pursued
the vehicle in their patrol car. The vehicle then parked in the police department lot. The driver
exited and faced toward Office Hamilton. He recognized appellant. Officer Hamilton then
detained appellant, placed her in handcuffs and escorted her into the department.
In a December 13, 2006 statement, Officer Roark recalled that, while on duty with
Officer Hamilton at 5:10 p.m. that day, he heard “screeching tires and crunching metal.” He saw
a vehicle that appeared out of control strike their patrol car, then continue on. The two officers
pursued the vehicle to the police department parking lot and blocked it in. Appellant then exited
the car. Officer Hamilton ordered her to turn around, then detained her.
In a December 14, 2006 statement, appellant described exiting her car and seeing Officer
Roark “with his gun pointed at me. [Officer] Hamilton told [her] to get down, get down. He
threw [appellant] to the ground and put his knee in [her] back and handcuffed [her].”
On January 25, 2007 appellant filed a complaint against Officers Hamilton and Roark for
excessive and unnecessary force. In a March 28, 2007 letter, the employing establishment
advised that an internal investigation failed to prove or disprove her allegations.
By decision dated September 26, 2007, the Office denied modification on the grounds
that the evidence submitted was insufficient. It found that the new evidence supported that the
December 13, 2006 incident occurred while commuting due to a personal traffic dispute. The
Office further found that appellant “did not follow instructions given by the police officer” and
therefore “the assault occurred for private reasons.”
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act; that the claim
was filed within the applicable time limitation; that an injury was sustained while in the
performance of duty as alleged; and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.3 These are the essential

2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989).

3

elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.4
Section 8102(a) of the Act provides for payment of compensation for disability or death
of an employee resulting from personal injury sustained while in the performance of her duty.5
This phrase is regarded as the equivalent of the coverage formula commonly found in workers’
compensation laws; namely, arising out of and in the course of employment.6 Whereas arising
out of the employment addresses the causal connection between the employment and the injury,
arising in the course of employment pertains to work connection as to time, place and activity.7
To arise in the course of employment, an injury must occur at a time when the employee
may reasonably be said to be engaged in her master’s business, at a place when she may
reasonably be expected to be in connection with her employment and while she was reasonably
fulfilling the duties of her employment or engaged in doing something incidental thereto. As to
the phrase “in the course of employment,” the Board has accepted the general rule of workers’
compensation law that, as to employees having fixed hours and places of work, injuries
occurring on the premises of the employing establishment, while the employees are going to or
from work, before or after working hours or at lunch time, are compensable.8 The Board has
held that a parking lot used by employees may be considered part of the employing
establishment’s premises where it is affirmatively demonstrated that the employer owned,
maintained or controlled the parking facility, used the facility with the owner’s special
permission or provided parking for its employees.9
ANALYSIS
Appellant asserted that she sustained a herniated lumbar disc in the performance of duty
on December 13, 2006 when tackled and handcuffed by a coworker. The Office initially
accepted the December 13, 2006 incident as work related. In subsequent decisions, it found it
did not occur in the performance of duty. The evidence indicates that the incident occurred at the
time, place and in the manner alleged. It must now be determined whether the incident occurred
in the performance of duty.10
4

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

5

5 U.S.C. § 8102(a).

6

See Bernard E. Blum, 1 ECAB 1 (1947).

7

See Robert J. Eglinton, 40 ECAB 195 (1988).

8

Narbik A. Karamian, 40 ECAB 617, 618 (1989).

9

Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

10

The Board notes that, in its June 28 and September 26, 2007 decisions, the Office included language
implicating the affirmative defense of willful misconduct. However, to the extent that it is raising the affirmative
defense of willful misconduct, it cannot do so when an Office hearing representative invokes the affirmative defense
for the first time in his or her decision after an initial denial on another ground. Gayle M. Petty, 46 ECAB
996 (1995).

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On December 13, 2006 appellant drove to the employing establishment’s premises on her
way to her designated parking lot. While on her way to the parking lot, she struck a vehicle then
collided with the rear of a stopped patrol car. Appellant drove on without stopping. These
collisions caused Officers Hamilton and Roark, employing establishment security officers, to
pursue appellant’s vehicle as she left the scene of an accident. When appellant exited her car,
Officer Hamilton detained her, bringing her to the ground. Although she alleged that she had a
seizure on December 13, 2006 which caused her to drive recklessly, neither officer saw signs of
a seizure or other distress at the time of her detention.
The December 13, 2006 incident took place on the employing establishment’s premises
within a reasonable interval of appellant’s schedule start time. However, appellant was not
engaged in her employment duties or any tasks reasonably incidental thereto. The mere location
of the altercation on the employing establishment’s premises during work hours does not bring it
within the performance of duty. The Board has held that arrests or altercations with police
officers occurring on an employing establishment’s premises are not within the performance of
duty unless the claimant was engaged in performing his or her assigned duties.11
The present case is similar to the circumstances in Jeremiah Bowles.12 In Bowles, the
claimant ran a stop sign on the employing establishment’s premises on his way to report for duty.
Employing establishment security officers detained him because of the traffic violation. The
claimant became belligerent and was injured. The Board found that appellant was not injured in
the performance of duty as there was no causal relationship between the altercation and the
employment itself.13 In the present case, employing establishment security officers detained
appellant after she caused two vehicular collisions and proceeded to drive on without stopping.
The Board finds that these collisions were unrelated to appellant’s employment. Appellant was
not engaged in her federal duties or tasks incidental thereto at the time of the altercation.
Accordingly, the Board finds that appellant was not in the performance of duty at the time she
sustained a lumbar injury on December 13, 2006.14
CONCLUSION
The Board finds that appellant was not injured in the performance of duty on
December 13, 2006.

11

Vincent A. Rosenquist, 54 ECAB 166 (2002); Alan G. Williams, 52 ECAB 180 (2000).

12

38 ECAB 652 (1987).

13

William Knauer, Docket No. 93-763 (issued July 11, 1994); 38 ECAB 652 (1987) (the Board held that a
claimant’s injuries sustained in an investigation of an off-premises motor vehicle accident imported onto the
employing establishment’s premises was not work related as there was no nexus between the incident and the
claimant’s employment).
14

As the claimed injury was not work related the Board need not address the medical evidence in this case.
Margaret S. Kzrycki, 43 ECAB 496 (1992).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 26, June 28 and February 1, 2007 are affirmed.
Issued: September 25, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6