United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Sedona, AZ, Employer
__________________________________________

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

Docket No. 18-1273
Issued: March 4, 2019

Case Submitted on the Record

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

JURISDICTION
On June 14, 2018 appellant filed a timely appeal from a March 8, 2018 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.2
ISSUE
The issue is whether appellant has met her burden of proof to establish disability during
the period March 5 through June 20, 2017 causally related to her accepted employment conditions.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the March 8, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

FACTUAL HISTORY
On April 18, 2017 appellant, then a 58-year-old rural letter carrier, filed an occupational
disease claim (Form CA-2) alleging that repetitive and cumulative work activities resulted in
lumbar disc herniation and calcific tendinitis of the right shoulder. In a supplemental statement,
she alleged that while in the performance of her rural carrier duties she had to lift up to 70 pounds,
over 100 times a day. Appellant stopped work on February 16, 2017. On July 18, 2017 OWCP
accepted the claim for calcific tendinitis of the right shoulder. It subsequently expanded
acceptance of the claim on November 13, 2017 to include aggravation of lumbar degenerative disc
disease with radiculopathy.
On January 23, 2018 appellant filed a claim for compensation (Form CA-7) for temporary
total disability from work for the period March 5 through July 13, 2017.
In a March 3, 2017 report, Dr. Kevin O’Donnell, an orthopedic surgeon specialist,
provided examination findings regarding appellant’s right shoulder, noting a slight reduction in
range of motion with moderate reduction in internal rotation and positive Hawkins and Neer
impingement tests. He provided an assessment of right shoulder pain, worsened, right shoulder
rotator cuff impingement, right shoulder subacromial bursitis, and right shoulder calcific tendinitis.
In a March 3, 2017 work status note, Dr. O’Donnell provided restrictions of no repetitive reaching
or lifting above head.
In a March 14, 2017 report, Dr. Marshall Meier, a physiatrist, noted that appellant had
ongoing low back and right lower extremity symptoms, which has worsened since onset three
years prior. He provided an assessment of lumbar radiculopathy, lumbar disc degeneration, lumbar
disc displacement, lumbar spondylosis with radiculopathy, and lumbar paraspinal myositis.
In an April 4, 2017 report, Paul Knott, a certified physician assistant, provided an
assessment of lumbar radiculopathy, lumbar disc degeneration, lumbar disc displacement, lumbar
paraspinal myositis, and lumbar spondylosis with radiculopathy. He indicated that appellant
wished to proceed with surgery. Mr. Knott opined that she was unable to work secondary to her
symptoms. Specifically, appellant could not tolerate lifting packages greater than 15 pounds.3 On
April 6, 2017 Dr. John F. Hall, a Board-certified orthopedic surgeon, cosigned Mr. Knott’s
April 4, 2017 report.
In a May 30, 2017 report, Dr. Hall provided an assessment of lumbar radiculopathy, lumbar
disc degeneration, lumbar disc displacement and lumbar paraspinal/myositis. He noted that
appellant has exhausted conservative therapy. Dr. Hall indicated that a posterior decompression
would be the most appropriate surgery for her symptoms, which began three years ago. He opined
that the changes associated with degenerative process and appellant’s symptoms “could be
attributable to her occupation,” which required lengthy hours and tasks involving lifting weight
greater than 50 pounds. Dr. Hall also opined that she was unable to work secondary to her
symptoms.

3
In an April 4, 2017 duty status report (Form CA-17), Mr. Knott indicated that appellant was totally disabled and
that surgery was pending. The duty status report was not cosigned by a physician.

2

On June 21, 2017 appellant underwent an L4-5 laminectomy with decompression, which
OWCP retroactively approved. On August 1, 2017 she resigned from the employing
establishment.
In a September 27, 2017 report, Dr. Michael Steingart, a Board-certified orthopedic
surgeon and an OWCP second opinion physician, reviewed the statement of accepted facts,
appellant’s medical record, and provided examination findings. He noted that she had a history of
a degenerative lumbar condition that was eventually surgically treated for spinal stenosis.
Dr. Steingart opined that appellant’s work, which involved heavy lifting, carrying loads, and
flexion and extension on a routine basis, was the source of her back complaints. Due to the fact
that a two-level laminectomy had been performed on June 21, 2017, he opined that she would be
unable to revert to her previous level. Dr. Steingart indicated, however, that there was no evidence
to support total disability beginning on February 16, 2017 for either appellant’s back or right
shoulder conditions as she would have been able to work, at least a light-duty job, up until the date
of surgery on June 21, 2017. In an attached work capacity evaluation (Form OWCP-5b), he
provided that appellant was unable to perform her usual job without restrictions, however, she was
capable of working a light and sedentary position.
In a January 30, 2018 letter, OWCP authorized wage-loss compensation benefits for the
period June 21 through July 13, 2017. However, it related that disability compensation could not
be authorized for the remainder of appellant’s claim as the evidence received did not contain a
medical opinion supported by objective findings that the accepted conditions had worsened such
that she was disabled from work from March 5 through June 20, 2017. OWCP advised appellant
to submit medical evidence which contained a well-rationalized medical explanation with
objective findings which supported disability for the remaining dates. It afforded her 30 days to
submit the requested information. No additional evidence was received.
By decision dated March 8, 2018, OWCP denied appellant’s claim for disability
compensation for the period March 5 through June 20, 2017. It found that Dr. Steingart had
determined that she would have been able to work at least a light-duty position until her surgical
procedure on June 21, 2017. Therefore, OWCP concluded that the medical evidence of record
was insufficient to support that appellant was disabled as a result of her accepted work-related
medical conditions from March 5 to June 20, 2017.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.5

4

Supra note 1.

5
S.J., Docket No. 17-0828 (issued December 20, 2017); G.T., Docket No. 07-1345 (issued April 11, 2008); Kathryn
Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

3

Disability means “the incapacity, because of an employment injury, to earn the wages the
employee was receiving at the time of injury.”6 The question of whether an employee is disabled
for work is an issue that must be resolved by competent medical evidence.7 The employee is
responsible for providing sufficient medical evidence to justify payment of any compensation
sought.8
For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work as a result of the accepted employment injury.9 The Board
will not require OWCP to pay compensation for disability in the absence of medical evidence
directly addressing the specific dates of disability for which compensation is claimed. To do so
would essentially allow an employee to self-certify his or her disability and entitlement to
compensation.10
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant’s treating physicians opined that appellant could only work with restrictions for
the period March 5 through June 20, 2017. In his March 3, 2017 report, Dr. O’Donnell reported
objective findings and provided assessments of right shoulder pain worsened, right shoulder rotator
cuff impingement, right shoulder subacromial bursitis, and right shoulder calcific tendinitis. He
provided temporary restrictions of no repetitive reaching or lifting above head.
Dr. Hall, in a report dated April 4, 2017, provided an assessment of lumbar radiculopathy,
lumbar disc degeneration, lumbar disc displacement, and lumbar paraspinal/myositis. In the
April 4, 2017 report, he related that appellant could not lift packages greater than 15 pounds.
Appellant was seen by Dr. Steingart, OWCP’s second opinion physician, on
September 27, 2017. Dr. Steingart opined that her work duties, which required heavy lifting,
carrying loads, and flexion/extension on a routine basis, were the source of her back complaints.

6

20 C.F.R. § 10.5(f).

7

See S.A., Docket No. 18-0399 (issued October 16, 2018); see also R.C., 59 ECAB 546, 551 (2008).

8

20 C.F.R. § 10.501(a).

9

Id. at § 10.501(a); see T.A., Docket No. 18-0431 (issued November 7, 2018); see also Amelia S. Jefferson, 57
ECAB 183 (2005).
10
See S.M., Docket No. 17-1557 (issued September 4, 2018); William A. Archer, 55 ECAB 674, 679 (2004);
Fereidoon Kharabi, 52 ECAB 291, 293 (2001).

4

He concluded that appellant “would be able to have worked up until the date of surgery, at least a
light[-]duty job.”11
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. The claimant has the burden of proof to establish entitlement to compensation. However,
OWCP shares responsibility in the development of the evidence to see that justice is done.12 Once
OWCP undertakes development of the record, it must do a complete job in procuring medical
evidence that will resolve the relevant issues in the case.13 Dr. Steingart’s statement that appellant
“would be able to have worked up until the date of surgery, at least a light duty job” is unclear as
to her precise capabilities within the referenced time period. Therefore, further development is
necessary.
On remand OWCP shall request clarification from Dr. Steingart supported by rationale
regarding her precise capabilities during the period March 5 through June 20, 2017. After such
further development as deemed necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

11
The Board notes that there is no evidence that the employing establishment offered appellant a light-duty
assignment during this period. 20 C.F.R. §10.500(a) provides that, in an accepted claim, an employee is not entitled
to compensation for any wage loss claimed on a Form CA-7 to the extent that evidence contemporaneous with the
period claimed on a Form CA-7 establishes that an employee had medical work restrictions in place, that light duty
within those work restrictions was available, and that the employee was previously notified in writing that such duty
was available. Here, OWCP did not accept appellant’s occupational disease claim until July 18, 2017, which was
after the period of disability claimed.
12

See R.C., Docket No. 15-0581 (issued June 8, 2016).

13

Richard F. Williams, 55 ECAB 343, 346 (2004).

5

ORDER
IT IS HEREBY ORDERED THAT the March 8, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this opinion.
Issued: March 4, 2019
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
__________________________________________

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

Docket No. 11-802
Issued: November 4, 2011

Case Submitted on the Record

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

JURISDICTION
On February 11, 2011 appellant filed a timely appeal from two Office of Workers’
Compensation Programs’ (OWCP) merit decisions dated October 20, 2010 and January 24, 2011
denying her claim for an employment-related injury. Pursuant to the Federal Employees’
Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that her hernia
condition is causally related to a July 1, 2008 employment incident, as alleged.
FACTUAL HISTORY
On July 18, 2010 appellant, then a 50-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that she sustained a hernia as a result of heavy lifting and carrying
1

5 U.S.C. § 8101 et seq.

mail while in the performance of duty on July 1, 2008. In a July 27, 2010 attending physician’s
report, Dr. Joel Hammond, a Board-certified general surgeon, diagnosed inguinal hernia. He
indicated that appellant had not previously had a hernia and opined that it was not caused or
aggravated by the employment activities described. Dr. Hammond reported that he performed
surgery to repair the hernia on June 30, 2010.
By letter dated August 11, 2010, OWCP requested additional factual and medical
evidence in support of the claim. It allotted 30 days for appellant to submit additional evidence
and respond to its inquiries.
Subsequently, appellant submitted an unsigned duty status report and an undated
narrative statement. In the narrative statement, she described her daily duties and indicated that
she developed a hernia on July 1, 2008 when she began to feel pain in her right groin area as she
was lifting her tub to set up for her deliveries that day. Appellant reported that she had a lump in
the right groin which became worse as she lifted her tubs at work.
In an August 4, 2010 medical report, Dr. Hammond excused appellant from work until
after her appointment on August 12, 2010. He indicated that her exact back to work day would
be determined at that time.
In a September 20, 2010 letter, the employing establishment concurred with appellant’s
allegations and attached a position description and the physical requirements of a city carrier. It
indicated that she was allowed a 30-minute lunch and two 15-minute breaks at work.
By decision dated October 20, 2010, OWCP administratively changed appellant’s claim
from an occupational disease claim to a traumatic injury claim and denied it on the basis that the
evidence submitted was insufficient to establish fact of injury. It found that the medical evidence
was not sufficient to establish that a medical condition was diagnosed in connection with the
July 1, 2008 employment incident, as alleged.
On November 9, 2010 appellant requested reconsideration and submitted additional
evidence.
Appellant submitted a June 30, 2010 operative report documenting her right inguinal
hernia repair surgery by Dr. Hammond.
In a November 2, 2010 report, Dr. Hammond stated that he had been treating appellant
since January 19, 2010. He opined that it was possible that her right groin hernia was work
related, although he did not obtain information from her at her initial visit to verify that
possibility.
By decision dated January 24, 2011, OWCP affirmed, as modified, the October 20, 2010
decision. It found that although the described employment activities occurred as alleged and a
firm diagnosis was provided, the medical evidence did not establish causal relationship.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury3 was sustained in the performance of duty, as alleged,
and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury. An employee may establish that the employment incident
occurred as alleged but fail to show that his or her condition relates to the employment incident.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.6
ANALYSIS
OWCP has accepted that the employment incident of July 1, 2008 occurred at the time,
place and in the manner alleged. The issue is whether appellant’s hernia condition resulted from
the July 1, 2008 employment incident. The Board finds that appellant did not meet her burden of
proof to establish a causal relationship between the condition for which compensation is claimed
and the July 1, 2008 employment incident.

2

5 U.S.C. §§ 8101-8193.

3

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident,
or series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
4

T.H., 59 ECAB 388 (2008).
1143 (1989).

See Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB

5

Id. See Shirley A. Temple, 48 ECAB 404 (1997); John J. Carlone, 41 ECAB 354 (1989).

6

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

3

On July 27, 2010 Dr. Hammond diagnosed inguinal hernia and opined that it was not
caused or aggravated by the employment incident. On November 2, 2010 he opined that it was
possible that appellant’s right groin hernia was work related, although he did not obtain
information from her at her initial visit to verify that possibility. A medical opinion on causal
relationship does not have to be one absolute certainty, but it must be one of reasonable medical
certainty and not speculative or equivocal in nature.7 The opinion should be expressed in terms
of a reasonable degree of medical certainty.8 Dr. Hammond’s opinion that it was possible that
appellant’s right groin hernia was employment related is vague, speculative in nature, and not
fully rationalized. Although the Board finds that Dr. Hammond did provide a firm diagnosis, he
failed to directly address the issue of causal relationship as he did not explain how the
mechanism of the July 1, 2008 employment incident caused or aggravated appellant’s condition.
For these reasons, Dr. Hammond’s reports are of limited probative value and not sufficient to
establish that appellant sustained an employment-related injury in the performance of duty on
July 1, 2008.
As appellant has not submitted any rationalized medical evidence to support her
allegation that she sustained an injury causally related to the July 1, 2008 employment incident,
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 submitted sufficient rationalized medical opinion
evidence to establish that the July 1, 2008 employment incident was causally related to the hernia
condition.

7

See Leonard J. O Keefe, 14 ECAB 42, 48 (1962) (where the Board held that medical opinions based upon an
incomplete history or which are speculative or equivocal in character have little probative value).
8

See supra note 6.

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ORDER
IT IS HEREBY ORDERED THAT the January 24, 2011 and October 20, 2010
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: November 4, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
U.S. POSTAL SERVICE, RUTLEDGE POST
OFFICE, Rutledge, TN, Employer
__________________________________________

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

Docket No. 20-1420
Issued: April 13, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 8, 2020 appellant filed a timely appeal from a June 25, 2020 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
FACTUAL HISTORY
On March 5, 2015 appellant, then a 53-year-old rural mail carrier, filed a traumatic injury
claim (Form CA-1) alleging that on March 2, 2015 he sprained his right hip when loading mail
while in the performance of duty. He stopped work on March 3, 2015. On April 24, 2015 OWCP
1

5 U.S.C. § 8101 et seq.

accepted appellant’s claim for a sprain of back, lumbar region. It paid him wage-loss
compensation on the supplemental rolls from August 19 through October 13, 2015.
In a September 14, 2015 medical report, Dr. Edward Kahn, a Board-certified orthopedic
surgeon, noted that appellant was essentially back to normal with regard to his idiopathic foot drop.
He prescribed a new medication and advised that appellant could return to working without
restrictions. In a subsequent October 13, 2015 medical report, appellant informed Dr. Kahn that,
aside from one episode of a flare up of back pain, he was doing fine and did not experience a foot
drop. Dr. Kahn advised that he had reached maximum medical improvement (MMI) and released
him from his care. Using the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment,2 (A.M.A., Guides), he found that appellant had no
impairment related to his injury.
On August 12, 2019 appellant filed a claim for a schedule award (Form CA-7).
In an August 23, 2019 development letter, OWCP advised appellant of the deficiencies of
his claim and requested medical evidence containing a detailed description of his permanent
impairment specific to the accepted work-related condition, a date of MMI, a final rating of
permanent impairment, and a discussion of the rationale for the calculation of the impairment
under the sixth edition of the A.M.A., Guides. It afforded him 30 days to submit the necessary
evidence.
In an August 5, 2019 medical report, Dr. Dewayne P. Darby, a Board-certified family
medicine specialist, followed up with appellant over complaints of left leg pain. He noted multiple
conditions, including degenerative joint disease involving multiple joints, left-sided sciatica and
low back pain. On evaluation of a diagnostic report of even date in which Dr. Samuel Bilyeu, a
Board-certified radiologist, performed an x-ray of appellant’s lumbar spine, Dr. Darby diagnosed
avascular necrosis of the head of the femur -- right and referred appellant for orthopedic surgery.
In an August 8, 2019 diagnostic report, Dr. Bilyeu performed a computerized tomography
(CT) scan of appellant’s right hip, finding mild right hip joint osteoarthritis.
In a September 6, 2019 statement, appellant explained that since his employment injury the
pain in his lower left lumbar had never resolved. He noted that he also experienced pain in his left
leg down to his toes which prevented him from standing longer than an hour without having to sit
down. Appellant noted that he spoke with a doctor who believed that the steroids he used to treat
his condition gave him pancreatitis and also may have caused his right hip problem.
By decision dated February 18, 2020, OWCP denied appellant’s schedule award claim,
finding that he had not submitted medical evidence to establish permanent impairment causally
related to an accepted employment condition.
On May 26, 2020 appellant requested reconsideration of OWCP’s February 18, 2020
decision.

2

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

2

Appellant attached a March 17, 2020 medical report wherein Dr. Michael Bratton, a Boardcertified orthopedic surgeon, noted that he followed up with appellant concerning his left leg pain
and a recent electromyogram study. On evaluation, Dr. Bratton diagnosed a foot drop, left foot.
Appellant also submitted a May 20, 2020 schedule award claim (Form CA-7).
By decision dated June 25, 2020, OWCP denied modification of its February 18, 2020
decision.
LEGAL PRECEDENT
The schedule award provisions of FECA3 and its implementing regulations4 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. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. For consistent
results and to ensure equal justice under the law for all claimants, OWCP has adopted the A.M.A.,
Guides as the uniform standard applicable to all claimants and the Board has concurred in such
adoption.5 As of May 1, 2009, the sixth edition of the A.M.A., Guides, published in 2009, is used
to calculate schedule awards.6
It is the claimant’s burden of proof to establish permanent impairment of the scheduled
member or function of the body as a result of an employment injury.7 OWCP procedures provide
that, to support a schedule award, the file must contain competent medical evidence which shows
that the impairment has reached a permanent and fixed state and indicates the date on which this
occurred (date of MMI), describes the impairment in sufficient detail so that it can be visualized
on review, and computes the percentage of impairment in accordance with the A.M.A., Guides.8
Its procedures further provide that, if a claimant has not submitted a permanent impairment
evaluation, it should request a detailed report that includes a discussion of how the impairment
rating was calculated.9 If the claimant does not provide an impairment evaluation and there is no

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id. at § 10.404(a); see also Jacqueline S. Harris, 54 ECAB 139 (2002).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2
and Exhibit 1 (January 2010).
7

T.K., Docket No. 19-1222 (issued December 2, 2019); Edward Spohr, 54 ECAB 806, 810 (2003); Tammy L.
Meehan, 53 ECAB 229 (2001).
8

Supra note 6 at Chapter 2.808.5 (March 2017).

9

Id. at Chapter 2.808.6(a) (March 2017).

3

indication of permanent impairment in the medical evidence of file, the claims examiner may
proceed with a formal denial of the award.10
Neither FECA, nor its implementing regulations provide for the payment of a schedule
award for the permanent loss of use of the back/spine or the body as a whole.11 However, a
schedule award is permissible where the employment-related spinal condition affects the upper
and/or lower extremities.12 The sixth edition of the A.M.A., Guides provides a specific
methodology for rating spinal nerve extremity impairment.13 It was designed for situations where
a particular jurisdiction, such as FECA, mandated ratings for extremities and precluded ratings for
the spine. The FECA-approved methodology is premised on evidence of radiculopathy affecting
the upper and/or lower extremities. The appropriate tables for rating spinal nerve extremity
impairment are incorporated into OWCP’s procedures.14
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of a scheduled member of function or the body, warranting a schedule award.
In his October 13, 2015 medical report, Dr. Kahn noted that, aside from a one episode flare
up of back pain, appellant was doing fine and did not experience his usual symptoms. Utilizing
the sixth edition of the A.M.A., Guides, he determined that appellant had achieved MMI and found
that he had no permanent impairment related to his accepted condition.
The Board finds that the medical evidence of record does not describe an impairment in
sufficient detail so that it can be visualized on review, and does not compute the percentage of
impairment in accordance with the most recent edition of the A.M.A., Guides.15 On August 23,
2019 OWCP requested that appellant submit a medical opinion addressing whether he had reached
MMI and the extent of permanent impairment; however, appellant did not provide such a rating.
Appellant has submitted no other medical evidence in conformance with either the A.M.A., Guides
or The Guides Newsletter, establishing permanent impairment of a scheduled member or function
of the body. The Board therefore finds that he has not met his burden of proof to establish his
schedule award claim.16

10

Id. at Chapter 2.808.6(c).

11

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see B.C., Docket No. 17-1617 (issued January 8, 2018);
Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).
12

Supra note 6 at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6a(3)
(March 2017).
13
The methodology and applicable tables were initially published in The Guides Newsletter, Rating Spinal Nerve
Extremity Impairment Using the Sixth Edition (The Guides Newsletter) (July/August 2009).
14

See supra note 6 at Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4.

15

C.T., Docket No. 18-0257 (issued May 21, 2019).

16

D.F., Docket No. 18-1337 (issued February 11, 2019).

4

Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of a scheduled member of function or the body, warranting a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the June 25, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 13, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.V., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Harlingen, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 12-22
Issued: May 2, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 30, 2011 appellant filed a timely appeal from Office of Workers’
Compensation Programs’ (OWCP) decisions dated May 17 and September 15, 2011. Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUES
The issue is whether appellant has established that he is entitled to a greater than five
percent schedule award for binaural hearing loss; and (2) whether OWCP properly exercised its
discretion in denying hearing aids.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
Appellant, a 56-year-old border patrol agent, filed an occupational disease claim (Form
CA-2) on July 1, 2010, alleging that he sustained a binaural hearing loss caused by factors of his
federal employment. While working at the employing establishment from January 1985 to
September 2010, he was exposed to loud noise from diesel engines on trains, buses leaving and
entering freight yards, daily traffic from semi-tractor trailers and other vehicles and firearms
training with automatic weapons. Appellant was not given hearing protection. He stated that he
and his coworkers stuffed ammunition into their ears as protection against loud noise. Appellant
submitted results of audiograms dated 1981 to 2010, which showed varying degrees of binaural
hearing loss.
On February 18, 2011 OWCP referred appellant with a statement of accepted facts to
Dr. James T. Wright, a Board-certified otolaryngologist, for a second opinion. In a March 30,
2011 report, Dr. Wright stated that appellant’s workplace exposure was sufficient as to intensity
and duration to have caused the loss in question. He diagnosed noise-induced sensorineural
hearing loss and opined that this condition was due to noise exposure at appellant’s federal
employment. Dr. Wright recommended noise protection and stated that appellant was a
borderline candidate for hearing aids. An audiogram performed on his behalf on February 30,
2011 reflected testing at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second
and revealed the following decibel losses: 15, 20, 25 and 25 for the right ear and 15, 20, 20 and
25 for the left ear respectively. Based on these results and in accordance with the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (6th
ed. 2009), Dr. Wright determined that appellant had a zero percent binaural hearing loss. He
found, however, that appellant had a five percent binaural hearing loss due to employmentrelated tinnitus on the grounds that his daily living activities were affected by this condition.
In an April 13, 2011 report, an OWCP medical adviser reviewed Dr. Wright’s report and
audiometric test results. He concluded that appellant had a zero percent binaural sensorineural
hearing loss but adopted Dr. Wright’s finding of a five percent binaural hearing loss due to
tinnitus. The medical adviser determined that the date of maximum medical improvement was
March 30, 2010, the date of Dr. Wright’s examination. He checked a box indicating that hearing
aids were not authorized.
In an April 18, 2011 decision, OWCP accepted appellant’s claim for binaural hearing loss
caused by tinnitus.
On April 29, 2011 appellant filed a Form CA-7 claim for a schedule award based on an
alleged binaural hearing loss.
By decision dated May 17, 2011, OWCP granted appellant a schedule award for a five
percent binaural hearing loss. This award covered the period March 30 to June 7, 2011 or a total
of 10 weeks of compensation.
On June 16, 2011 appellant requested reconsideration.

2

Appellant submitted a June 2, 2011 report from Dr. Gregory S. Rowin, an osteopath, who
stated that on examination appellant demonstrated an overall 30 percent hearing loss, markedly
worse in the high frequencies, down approximately 40 percent on average. Dr. Rowin noted that
appellant had a history of working around loud noise; he stated that loud noise exposure is a
factor in high frequency hearing loss. He asserted that, given appellant’s age and high frequency
loss, his hearing loss was probably secondary to his work around loud noise. Dr. Rowin opined
that appellant would benefit from hearing protection and hearing aids. He did not submit an
audiogram.
By decision dated September 15, 2011, OWCP denied modification of the May 17, 2011
decision.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA2 and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.4
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.5 Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second, the
losses at each frequency are added up and averaged.6 Then, the fence of 25 decibels is deducted.
The remaining amount is multiplied by a factor of 1.5 to arrive at the percentage of monaural
hearing loss.7 The binaural loss is determined by calculating the loss in each ear using the
formula for monaural loss; the lesser loss is multiplied by five, then added to the greater loss and
the total is divided by six to arrive at the amount of the binaural hearing loss.8 The Board has
concurred in OWCP’s adoption of this standard for evaluating hearing loss.9

2

Id. at § 8107.

3

20 C.F.R. § 10.404. Effective May 1, 2009, OWCP began using the A.M.A., Guides (6th ed. 2009).

4

Id.

5

Federal (FECA) Procedure Manual, Part 3 -- Schedule Awards, Special Determinations, Chapter 2.0700.4b
(January 2010).
6

Id.

7

Id.

8

Id.

9

See Donald Stockstad, 53 ECAB 301 (2002), petition for recon., granted (modifying prior decision), Docket No.
01-1570 (issued August 13, 2002).

3

ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a binaural hearing loss due to work-related noise
exposure. It developed the claim by referring appellant to Dr. Wright. On February 30, 2011
Dr. Wright examined appellant and an audiogram was obtained on the physician’s behalf. He
found, using OWCP’s standard procedures, that appellant’s noise exposure in his federal
employment was not sufficient to cause ratable binaural hearing loss. The February 30, 2011
audiogram tested decibel losses at 500, 1,000, 2,000 and 3,000 cycles per second and recorded
decibel losses of 15, 20, 20 and 25 respectively in the right ear. The total decibel loss in the right
ear is 80. When divided by 4, the result is an average hearing loss of 20 decibels. The average
hearing loss of 20 is reduced by the fence of 25 decibels to equal 0 decibels, which when
multiplied by the established factor 1.5, resulted in a 0 percent impairment of the right ear. The
audiogram tested decibel losses for the left ear at 500, 1,000, 2,000 and 3,000 cycles per second
and recorded decibel losses of 15, 20, 25 and 25 respectively. The total decibel loss in the left
ear is 85. When divided by 4, the result is an average hearing loss of 21.50 decibels. The
average hearing loss of 21.50 is reduced by the fence of 25 decibels to equal 0, which when
multiplied by the established factor of 1.5, resulted in 0 percent impairment of the left ear.
Therefore, under this calculation appellant had a zero percent binaural hearing loss.
However, Dr. Wright found that appellant had a five percent binaural hearing loss due to
tinnitus. OWCP’s medical adviser concurred in this finding, which OWCP relied on in granting
appellant a five percent binaural schedule award. The Board notes that the A.M.A., Guides
provide that tinnitus in the presence of unilateral or bilateral hearing impairment may impair
speech discrimination. The Board has, therefore, allowed an addition up to five percent for
tinnitus, in the presence of measurable hearing loss, if the tinnitus impacts the ability to perform
the activities of daily living.10
Appellant sought an additional award and requested reconsideration. In support of his
request he submitted the June 2, 2011 report of Dr. Rowin, who opined that appellant had an
overall 30 percent hearing loss. This report is lacking in probative value, however, as it was not
supported by audiometric evidence.11
Although appellant submitted results from audiometric testing performed from
January 1985 to September 2010, these audiograms are insufficient to satisfy appellant’s burden
of proof as they do not comply with the requirements set forth by OWCP. These tests lack
speech testing and bone conduction scores and were not prepared or certified as accurate by a
physician as defined by FECA. None of the audiograms were accompanied by a physician’s
opinion addressing how his employment-related noise exposure caused or aggravated any
hearing loss. OWCP is not required to rely on this evidence in determining the degree of
appellant’s hearing loss because it does not constitute competent medical evidence and,
10

R.D., 59 ECAB 127 (2007).

11

The Board notes that a description of appellant’s impairment must be obtained from appellant’s physician,
which must be in sufficient detail so that the claims examiner and others reviewing the file will be able to clearly
visualize the impairment with its resulting restrictions and limitations. See Peter C. Belkind, 56 ECAB 580,
585 (2005).

4

therefore, is insufficient to satisfy his burden of proof.12 Dr. Wright provided a thorough
examination and a reasoned opinion explaining how the findings on examination and testing
were due to the noise in appellant’s employment. The Board finds that his report represents the
weight of the evidence. The Board, therefore, affirms OWCP’s September 15, 2011 decision, as
there was no other probative evidence in the record establishing that appellant sustained any
greater impairment.
On appeal, appellant contends that he sustained a hearing loss greater than the five
percent awarded by OWCP. In the instant case, the audiometric test performed on February 30,
2011 was the only test of record performed within the past two years that was certified by a
physician.13 This test showed that there was no documented, measurable hearing loss
attributable to appellant’s federal employment. As noted above, it is appellant’s burden to
submit a properly certified audiogram for review if he objects to the audiogram selected by
OWCP for determining the degree of hearing loss.14 The Board will affirm that he has not
established that he is entitled to more than five percent schedule award for binaural hearing
loss.15
LEGAL PRECEDENT -- ISSUE 2
Section 8103(a) of FECA provides that the United States shall furnish to an employee
who is injured while in the performance of duty, the services, appliances and supplies prescribed
or recommended by a qualified physician, which the Secretary of Labor considers likely to cure,
give relief, reduces the degree or the period of any disability or aid in lessening the amount of
any monthly compensation.16 OWCP must, therefore, exercise discretion in determining whether
the particular service, appliance or supply is likely to affect the purposes specified in FECA.17
ANALYSIS -- ISSUE 2
The Board further finds that the medical evidence of record supports that appellant is not
entitled to hearing aids. There is no medical evidence from a physician recommending that he be
provided with hearing aids or any other medical treatment for his employment-related hearing
loss. While Dr. Wright stated that appellant was a borderline case for requiring hearing aids, this
opinion is at best equivocal and, as noted above, it is within OWCP’s discretion to determine
whether appellant required hearing aids pursuant to section 8103. The Board finds that under

12

Joshua A. Holmes, 42 ECAB 231, 236 (1990).

13

See H.S., 58 ECAB 690 (2007); John C. Messick, 25 ECAB 333 (1974).

14

See Holmes, supra note 12.

15

The Board notes that an award for hearing loss should be based on objective medical evidence, in accordance
with the standards contained in the A.M.A., Guides, as outlined above.
16

5 U.S.C. § 8103.

17

OWCP has broad discretionary authority in the administration of FECA and must exercise its discretion to
achieve the objectives of section 8103. Marjorie S. Greer, 39 ECAB 1099 (1988).

5

these circumstances OWCP did not abuse its discretion under section 8103(a) by denying
authorization for hearing aids.18
CONCLUSION
The Board finds that appellant has no greater than a five percent binaural hearing loss for
which OWCP granted him a schedule award. The Board finds that OWCP did not abuse its
discretion in denying authorization for hearing aids.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 15 and May 17, 2011 are affirmed.
Issued: May 2, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

18

This does not preclude appellant from seeking authorization for hearing aids or other appropriate medical
treatment. See Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Services and Supplies, Chapter
3.400.3(d)(2) (October 1990); Raymond VanNett, 44 ECAB 480 (1993).

6


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Washington, DC, Employer
)
___________________________________________ )
J.A., Appellant

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

Docket No. 08-2096
Issued: June 18, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 23, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ decision dated July 3, 2008, which denied modification of a
January 11, 2008 decision denying her claim for an emotional condition. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof in establishing that she developed
an emotional condition in the performance of duty.
FACTUAL HISTORY
On October 26, 2007 appellant, then a 29-year-old city letter carrier, filed a traumatic
injury claim alleging that on October 3, 2007 she had a panic attack and experienced insomnia
and depression as a result of stress at work. She stopped work on October 3, 2007.
In an October 15, 2007 statement, appellant alleged that she was harassed and subject to
reprisals and retaliation from management for filing an Equal Employment Opportunity (EEO)

complaint. She noted that she was improperly disciplined on several occasions from
November 23, 2004 to September 25, 2007. Appellant alleged that on August 24, 2006 her
request to review her personnel file was denied by Marcia McKeithan, her manager, but that on
July 12, 2007 her supervisor, Deenvaughn Rowe, allowed her to do so. She asserted that she was
improperly denied sick leave on July 27 and September 19, 2007. Appellant alleged that her
local union was not diligent in representing her. She stated that on October 1, 2007 Mr. Rowe
improperly inspected her mail route. Appellant also alleged that, on August 15, 2007,
Ms. McKeithan did not honor her light-duty restrictions and that, on August 23 and
September 21, 2007, Mr. Rowe assigned her duties beyond her work restrictions.
Appellant submitted emergency room discharge instructions from Doctors Community
Hospital dated October 3, 2007 for anxiety, a panic attack and insomnia.
By letter dated December 10, 2007, the Office asked appellant to submit additional
evidence, including a detailed description of the employment factors or incidents that she
believed contributed to her claimed illness. In a letter of the same date, it requested the
employing establishment address appellant’s allegations of stress in the workplace.
Appellant submitted January 4, 2008 records from Dr. Joel S. Ganz, a Board-certified
psychiatrist, who treated her for job-related anxiety, insomnia and depression.
In a January 11, 2008 decision, the Office denied appellant’s claim finding that the
evidence was not sufficient to establish that the events occurred as alleged. It further noted that
there was no medical evidence which provided a diagnosis which could be connected to the
claimed events.
In letters dated April 2 and May 8, 2008, appellant requested reconsideration. She
submitted letters of warning dated November 24, 2004 and March 23, 2006, for irregular
attendance and unauthorized penalty overtime. Appellant submitted several letters of suspension
dated February 101 and 17,2 April 43 and September 22, 2007.4 In letters dated February 13
and 20, 2007, she filed grievances relating to the February 10 and 17, 2007 suspensions noting
that she was never informed that she had to be back at the station after her route by 5:00 p.m.
Appellant also submitted two grievance resolution forms dated June 26 and July 5, 2007, which
noted that she would be paid annual leave from February 8 to 10, 2005 and also receive $300.00.
She submitted an August 22, 2007 light-duty job offer, effective August 23, 2007 to February 23,
2008, in which she was limited to casing and carrying one route, processing forward mail and
1

In a seven-day suspension dated February 10, 2007, the employer noted that appellant was instructed to report to
the station by 5:00 p.m. but reported late on February 6, 7 and 8, 2007.
2

In a 14-day suspension dated February 17, 2007, the employer noted that appellant was instructed to report to
the station by 5:00 p.m. but reported late on February 13, 15 and 16, 2007.
3

In a 14-day suspension dated April 4, 2007, the employer noted that appellant used annual leave instead of sick
leave from February 3 to 5, 2007, she was late to work on February 14, 15, 26 and 27 and March 10, 12 and 17,
2007, she used unscheduled leave on March 14, 2007 and was absent without leave on March 23 and 24, 2007.
4

In a seven-day suspension dated September 22, 2007, the employer noted that appellant failed to properly scan a
barcode on a delivery confirmation package.

2

editing books and returns for eight hours daily pursuant to restrictions set forth by her treating
physician. Appellant submitted a settlement agreement for the September 21, 2007 EEO
complaint, which noted that Ms. McKeithan would not discuss appellant’s personal business on
the workroom floor and that appellant would receive a copy of the seven-day suspension. She
also submitted an October 1, 2007 letter she sent to her union regarding the union’s failure to
provide documentation, resolutions and assistance in filing her grievances.
In an October 15, 2007 statement, appellant reiterated allegations that she was harassed
and retaliated against by management and improperly disciplined.
She submitted a
memorandum from Mr. Rowe dated October 23, 2007, which advised that she had not been to
work since October 2, 2007 and failed to submit acceptable documentation to substantiate her
absence. Mr. Rowe requested that appellant submit documentation supporting her absence
immediately and every 14 days thereafter until she returned to duty. He further advised appellant
to attend a predisciplinary interview on October 29, 2007. Appellant submitted a settlement
agreement dated November 14, 2007 in which the suspension issued on December 11, 2006 was
removed from her file. In a declaration dated November 28, 2007, she alleged that she was
sexually harassed by Mr. Rowe on October 1, 2007 and noted that he made remarks with a
sexual connotation. On January 10, 2008 appellant asserted that Mr. Rowe insisted that she work
overtime in violation of her restrictions.
Appellant submitted a May 10, 2005 return to work certificate from Dr. Ophnell
Cumberbatch, a Board-certified internist, indicating that she could return to work on
May 11, 2005. She submitted treatment notes from a Cignet Health Center dated July 3 to
October 2, 2007, which noted appellant’s treatment for recurrent back pain, stress and a panic
attack. Appellant submitted notes from Dr. Memunatu Bangura, a Board-certified family
practitioner, dated October 8 and 15, 2007, noting that she could return to work on
October 29, 2007. Reports from Dr. Ganz, dated January 25 to May 12, 2008, diagnosed panic
disorder, depression and sexual abuse.
By decision dated July 3, 2008, the Office denied modification of the prior decision on
the grounds that the claimed emotional condition did not occur in the performance of duty.
LEGAL PRECEDENT
To establish her claim that appellant sustained an emotional condition in the performance
of duty, she must submit the following: (1) medical evidence establishing that she has an
emotional or psychiatric disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to her condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to her emotional condition.5
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,6 the Board
5

Donna Faye Cardwell, 41 ECAB 730 (1990).

6

28 ECAB 125 (1976).

3

explained that there are distinctions to the type of employment situations giving rise to a
compensable emotional condition arising under the Federal Employees’ Compensation Act.7
There are situations where an injury or an illness has some connection with the employment but
nevertheless does not come within the concept or coverage under the Act.8 When an employee
experiences emotional stress in carrying out her employment duties and the medical evidence
establishes that the disability resulted from her emotional reaction to such situation, the disability
is generally regarded as due to an injury arising out of and in the course of employment. This is
true when the employee’s disability results from her emotional reaction to a special assignment
or other requirement imposed by the employing establishment or by the nature of her work.9
There are situations where an injury or an illness has some connection with the employment but
nevertheless does not come within the concept or coverage under the Act. Where the disability
results from an employee’s emotional reaction to her regular or specially assigned duties or to a
requirement imposed by the employment, the disability comes within the coverage of the Act.
On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or her frustration from not being permitted to work in a
particular environment or to hold a particular position.10
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.11 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.12
ANALYSIS
Appellant alleged that she was harassed and subjected to reprisals and retaliation by
management for filing an EEO complaint and sexually harassed by Mr. Rowe. She noted several
incidents, specifically indicating that she was improperly disciplined on several occasions, her
request to review her personnel file was denied by Ms. McKeithan, she was improperly denied
sick leave on July 27 and September 19, 2007, Mr. Rowe improperly inspected her mail route on
October 1, 2007 and Mr. Rowe and Ms. McKeithan did not honor her light-duty restrictions.
7

5 U.S.C. §§ 8101-8193.

8

See Anthony A. Zarcone, 44 ECAB 751, 754-55 (1993).

9

Lillian Cutler, supra note 6.

10

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler, supra
note 6.
11

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

12

Id.

4

To the extent that incidents alleged as constituting harassment by a supervisor are
established as occurring and arising from appellant’s performance of her regular duties, these
could constitute employment factors.13 However, for harassment to give rise to a compensable
disability under the Act, there must be evidence that harassment did in fact occur. Mere
perceptions of harassment are not compensable under the Act.14
The factual evidence fails to support appellant’s claim for harassment or retaliation. The
record reveals through disciplinary notices that on November 23, 2004 appellant was late in her
deliveries, on March 23, 2006 she was issued a letter of warning for irregular attendance, on
February 10 and 17 and April 4, 2007, she was suspended for unsatisfactory work performance
as she was instructed to report to the station by 5:00 p.m. but arrived late and, on September 25,
2007, she was suspended for unsatisfactory work performance for failure to scan a barcode on a
delivery confirmation package. There is no evidence showing that the employing establishment
acted improperly in these matters. Regarding appellant’s allegation that she was not permitted to
review her file on August 24, 2006, she provided no evidence to support her contention and
subsequently noted that, on July 12, 2007, Mr. Rowe permitted her to review the file. With
regard to her allegation that she was sexually harassed by Mr. Rowe, she failed to provide any
corroborating statements or other evidence supporting any specific incidents. The factual
evidence fails to support appellant’s claim that she was harassed or treated disparately by her
supervisor. Rather, the evidence supports that on several occasions appellant was irregular in
attendance, arrived at the station past her deadline and regularly used unscheduled leave.15
Although appellant alleged that her supervisors engaged in actions which she believed
constituted harassment, she provided no corroborating evidence or witness statements to
establish her allegations.16 The Board notes that general allegations of harassment are not
compensable.17
Appellant also indicated that she filed an EEO claim for harassment and several
grievances; however, the Board further notes that grievances and EEO complaints, by
themselves, do not establish workplace harassment or unfair treatment occurred.18 She submitted
a settlement agreement of the EEO complaint dated September 21, 2007, which noted that
Ms. McKeithan would not discuss appellant’s personal business on the workroom floor and that
she would receive a copy of the seven-day suspension. However, none of the information
submitted regarding EEO or grievance matters establishes improper action by the employing
establishment with regard to appellant. Thus, the evidence regarding these matters does not

13

David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

14

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991). See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a
claimant must substantiate allegations of harassment or discrimination with probative and reliable evidence).
15

Supra note 1 to 4.

16

See William P. George, 43 ECAB 1159, 1167 (1992) (claimed employment incidents not established where
appellant did not submit evidence substantiating that such incidents actually occurred).
17

See Paul Trotman-Hall, 45 ECAB 229 (1993).

18

James E. Norris, 52 ECAB 93 (2000).

5

establish a compensable employment factor. Appellant has not established a compensable
employment factor under the Act with respect to the claimed harassment.
Appellant also alleged that the local union was not diligently representing her in her
claim and failed to provide documentation, resolutions and assistance in filing her grievances
against the employing establishment. However, the Board has generally held that matters
pertaining to union activities are not deemed to be employment factors19 and that union activities
are generally personal in nature and not considered to be in the course of employment.20
Appellant’s allegations regarding the union decisions to represent her relate to internal union
affairs and are not within the course of employment.21
Other allegations by appellant regarding her work assignments relate to administrative or
personnel actions. In Thomas D. McEuen,22 the Board held that an employee’s emotional
reaction to administrative actions or personnel matters taken by the employing establishment is
not covered under the Act as such matters pertain to procedures and requirements of the
employer and do not bear a direct relation to the work required of the employee. The Board
noted, however, that coverage under the Act would attach if the factual circumstances
surrounding the administrative or personnel action established error or abuse by the employing
establishment superiors in dealing with the claimant. Absent evidence of such error or abuse, the
resulting emotional condition must be considered self-generated and not employment generated.
In determining whether the employing establishment erred or acted abusively, the Board has
examined whether the employing establishment acted reasonably.23
Appellant’s allegations that the employing establishment improperly disciplined her
relate to administrative or personnel matters unrelated to her regular or specially assigned work
duties. The Board finds that the employing establishment did not act unreasonably in this
administrative matter.24 Although the handling of disciplinary actions and evaluations are
generally related to the employment, they are administrative functions of the employer and not
duties of the employee.25 Appellant alleged that she was improperly disciplined from
November 24, 2004 to September 22, 2007 for insubordination, irregular attendance and
unsatisfactory work performance.
The record does not establish that the employing
establishment acted unreasonably in these matters. Although the seven-day suspension issued on

19

See George A. Ross, 43 ECAB 346 (1991).

20

Marie Boylan, 45 ECAB 338 (1994).

21

See id.

22

See Thomas D. McEuen, supra note 10.

23

See Richard J. Dube, 42 ECAB 916, 920 (1991).

24

See Janet I. Jones, 47 ECAB 345, 347 (1996), Jimmy Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate,
41 ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988).
25

Id.

6

December 11, 2006 was removed from her file this does not establish error or abuse.26 Appellant
presented no corroborating evidence to support that the employing establishment erred or acted
abusively with regard to these allegations. Thus, appellant has not established administrative
error or abuse in the performance of these actions and therefore they are not compensable under
the Act.
Appellant alleged that on August 24, 2006 her request to review her personnel file was
denied by Ms. McKeithan. The Board has found that an employee’s complaints concerning the
manner in which a supervisor performs her duties as a supervisor or the manner in which a
supervisor exercises her supervisory discretion fall, as a rule, is outside the scope of coverage
provided by the Act. This principle recognizes that a supervisor or manager in general must be
allowed to perform her duties, that employees will at times dislike the actions taken, but that
mere disagreement or dislike of a supervisory or management action will not be actionable,
absent evidence of error or abuse.27 Appellant presented no corroborating evidence or witness
statements to support that the employing establishment erred or acted abusively with regard to
these allegations. The evidence does not indicate that the employing establishment acted
unreasonably. Appellant has not established administrative error or abuse in the performance of
these actions and therefore they are not compensable under the Act.
Appellant alleged that she was denied sick leave on July 27 and September 19, 2007.
The Board notes that the handling of leave requests and attendance matters are generally related
to the employment, they are administrative functions of the employer and not duties of the
employee.28 The Board finds that the employing establishment acted reasonably in this
administrative matter. The record reveals that appellant was disciplined on several occasions for
unscheduled leave and was informed that her job was in jeopardy due to her irregular attendance.
Appellant has not shown that the employing establishment erred or acted abusively in this
matter.
Appellant alleged that on October 1, 2007 her supervisor Mr. Rowe improperly inspected
her mail route. Although the monitoring of activities at work is generally related to the
employment, it is an administrative function of the employer, and not a duty of the employee.29
Appellant has presented no corroborating evidence to support that the employing establishment
erred or acted abusively with regard to these allegations. Appellant was informed by
management that all routes had to be inspected on a yearly basis and October 1, 2007 was the
beginning of the fiscal year, therefore the inspection was not unusual. The Board finds that the
evidence does not show that the employing establishment acted unreasonably in its effort to
monitor appellant’s work as a way of improving her job performance.

26

See Linda K. Mitchell, 54 ECAB 748 (2003) (the mere fact that the employing establishment lessened a
disciplinary action did not establish that the employing establishment erred or acted in an abusive manner).
27

See Marguerite J. Toland, 52 ECAB 294 (2001).

28

See Judy Kahn, 53 ECAB 321 (2002).

29

See Dennis J. Balogh, 52 ECAB 232 (2001); see also John Polito, 50 ECAB 347 (1999).

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Appellant also generally alleged that she was forced to work beyond her tolerance. She
noted that, on August 15, 2007, Ms. McKeithan would not honor her light-duty restrictions and
that, on August 23 and September 21, 2007, Mr. Rowe assigned her duties in violation of her
work restrictions. The Board notes that assignment of duties beyond an employee’s work
tolerance limitations can be a compensable factor of employment.30 However, appellant has not
provided any specific evidence establishing that the employing establishment assigned her duties
beyond her limitations. On December 10, 2007 the Office requested appellant submit factual
evidence, including a detailed description of the employment factors or incidents that she
believed contributed to her claimed illness. Appellant did not provide any additional factual
information on this aspect of her claim. The record contains no probative evidence supporting
appellant’s assertions that the employing establishment erred in providing a job within her
restrictions. Instead, the evidence indicates that the employing establishment sought to
accommodate appellant’s restrictions. The record establishes that the employer provided
appellant with light duty as noted in job offer dated August 22, 2007. Therefore, the Board finds
that there is insufficient evidence to establish that appellant worked beyond her restrictions.
Consequently, appellant has not established her claim for an emotional condition as she
has not attributed her claimed condition to any compensable employment factors.31
CONCLUSION
The Board finds that the evidence fails to establish that appellant sustained an emotional
condition in the performance of duty.

30

See Kim Nguyen, 53 ECAB 127 (2001).

31

As appellant has failed to establish a compensable employment factor, the Board need not address the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496 (1992).

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ORDER
IT IS HEREBY ORDERED THAT the July 3 and January 11, 2008 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: June 18, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
PORTLAND VETERANS AFFAIRS MEDICAL
CENTER, Portland, OR, Employer
__________________________________________

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

Docket No. 17-1204
Issued: August 22, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On May 11, 2017 appellant filed a timely appeal from a March 30, 2017 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish an injury in the
performance of duty on January 9, 2017.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 13, 2017 appellant, then a 24-year-old human resources assistant, filed a
traumatic injury claim (Form CA-1) alleging that at 7:40 a.m. on Monday, January 9, 2017, she
sustained right ankle and tibia fractures, and ligament dislocation due to a fall. She indicated
that, while traveling to a work-related training session at another Veterans Affairs campus, she
exited the C-Tran bus at the bus stop and slipped on black ice directly underneath the bus door.
Appellant noted that the bus stop was located at the intersection of East 13th Street and Broadway
Street in Vancouver, Washington. She stopped work on January 9, 2017 and returned to
modified work on February 3, 2017.2
On the claim form appellant’s immediate supervisor indicated that appellant’s duty
station was the Portland Veterans Affairs Medical Center at 3710 S.W. U.S. Veterans Hospital
Road in Portland, Oregon, and her regular work hours were 8:00 a.m. to 4:30 p.m., Monday
through Friday. The supervisor noted that the employing establishment was controverting
appellant’s request for continuation of pay because the claimed injury occurred off of the
employing establishment’s premises, and appellant was not involved in official “off premises”
duties. He checked a box marked “No” in response to a question asking whether appellant was
injured in the performance of duty, but added the notation, “Unknown, employee claimed that
she was getting off the public transportation bus.”
Appellant submitted medical evidence in support of her claim. In a January 9, 2017
report, Dr. Brett T. Jensen, an attending Board-certified emergency medicine physician,
indicated that appellant reported she slipped and fell on ice on January 9, 2017 after stepping off
a bus, and that she landed on her posterior. He discussed the findings of right ankle x-rays
obtained on that date and diagnosed fractures of the right fibula and tibia. In a January 9, 2017
report, Dr. Kevin M. Kahn, an attending Board-certified orthopedic surgeon, detailed an open
reduction internal fixation (ORIF) of trimalleolar right ankle fracture without fixation of
posterior lip and ORIF of right syndeasmosis ligament injury, with excisional
irrigation/debridement down to subcutaneous tissue and delayed primary closure of irregular
traumatic wound.3 Appellant submitted other medical reports, dated between January 9 and
February 20, 2017, regarding the initial treatment of her right ankle condition and her
postsurgery recovery.4
On an employing establishment “Incident Report” form completed on February 13, 2017,
appellant’s immediate supervisor noted, “On or about [January] 9, 2017 the employee claimed
that while she was stepping off the bus [she] slipped on ice not on [Veterans Affairs] property.
He indicated that appellant was treated in a nonemploying establishment emergency room and
was hospitalized as an in-patient.

2

On the Form CA-1 appellant requested continuation of pay.

3

The surgical procedure was not authorized by OWCP.

4

The record contains a duty status report (Form CA-17) in which an attending physician indicated that appellant
could work eight hours per day with work restrictions

2

In a February 14, 2017 form letter, an employing establishment human resources assistant
indicated that the employing establishment was controverting appellant’s claim for continuation
of pay and identified the reason for the controversion by placing a check next to a sentence on
the form letter which reads, “The injury occurred off the agency’s premises, and the employee
was not engaged in official ‘off-premises’ duties.”
On February 22, 2017 the employing establishment offered appellant a full-time
transitional-duty assignment which involved performing her regular duties while using a
wheelchair, except for those duties outside her work restrictions of no standing, walking,
bending, stooping, twisting, pushing, or pulling.
In a February 24, 2017 letter, OWCP requested that appellant submit additional factual
and medical evidence in support of her claim, including completion of a development
questionnaire. If the injury occurred off the employing establishment premises, appellant was to
identify the location where the injury occurred in relation to her “workplace/training location.”
On March 28, 2017 OWCP received appellant’s response to the February 24, 2017
development letter and questionnaire. Appellant indicated, “No” in response to the questions
regarding whether she was injured on the employing establishment premises and whether she
was injured on property owned, controlled, or managed by the employing establishment. In
response to the request to identify the location where the injury occurred in relation to her
“workplace/training location,” appellant indicated, “Broadway and 13th bus stop (see map).”5
Appellant signed the questionnaire on March 28, 2017 and provided additional comments below
her signature. She indicated that on January 9, 2017 she was on travel duty for training outside
her regular duty station and noted that she would have been eligible for “comp-time” for travel
because the travel was outside her regular tour hours. Appellant made reference to the attached
maps outlining her trip to Vancouver, Washington, and estimated that she would have claimed
45 minutes of “comp-time” beyond her regular commuting time. She asserted that, according to
an attached Office of Personnel Management (OPM) fact sheet, she would have been on
“compensated hours” if she had traveled under arduous weather-related conditions.6 Appellant
noted that on January 9, 2017 there was an ice storm and roads were treacherous.
Appellant also submitted medical reports from March 2017 and copies of previously
submitted medical reports.

5

Appellant submitted copies of online searches she had conducted with Google Maps, including the trip by public
transport between her residence at 1221 N.W. 11th Avenue in Portland, Oregon, and the Vancouver Campus of the
Portland Veterans Affairs Medical Center at 1601 East 4th Plain Boulevard in Vancouver, Washington (a distance of
approximately 9.3 miles), and the trip by public transport between the intersection of East 13th Street and Broadway
Street in Vancouver, Washington, and the Vancouver Campus of the Portland Veterans Affairs Medical Center (a
distance of approximately 1.3 miles)
6

Appellant submitted a portion of an OPM document containing the heading “Fact Sheet: Hours of Work for
Travel.”

3

In a March 30, 2017 decision, OWCP denied appellant’s claim for a January 9, 2017
work injury. It found that appellant established that she was a federal employee who filed a
timely claim, that the injury, accident, or employment factor occurred, and that a medical
condition had been diagnosed in connection with the injury or event. OWCP further found that
appellant failed to establish the element of performance of duty and noted that her case was
denied because the evidence of record was insufficient to establish that the claimed injury and/or
medical condition arose during the course of employment and within the scope of compensable
work factors. It noted, “The reason for this finding is that you were injured off the premises of
your employing agency and not engaged in a work activity or any off-premises duty for your
employer.”
LEGAL PRECEDENT
FECA provides for the payment of compensation for the disability or death of an
employee resulting from a personal injury sustained while in the performance of duty.7 The
phrase sustained while in the performance of duty has been interpreted by the Board to be the
equivalent of the commonly found requisite in workers’ compensation law of arising out of and
in the course of employment.8 In the course of employment deals with the work setting, locale,
and time of injury, whereas arising out of the employment encompasses not only the work
setting, but also the requirement that an employment factor caused the injury.9
To occur in the course of employment, in general, an injury must occur: (1) at a time
when the employee may reasonably be stated to be engaged in his or her master’s business; (2) at
a place where he or she may reasonably be expected to be in connection with the employment;
and (3) while he or she was reasonably fulfilling the duties of his or her employment or engaged
in doing something incidental thereto.10
This alone is not sufficient to establish entitlement to benefits for compensability. The
concomitant requirement of an injury arising out of the employment must be shown, and this
encompasses not only the work setting, but also a causal concept, the requirement being that the
employment caused the injury in order for an injury to be considered as arising out of the
employment.11
OWCP’s procedure manual provides that the employing establishment is required to
complete the reports and statements needed and then submit the evidence to OWCP. In several
types of claims (e.g., stress claims, claims with performance of duty issues such as premises,
temporary duty travel, or recreational injuries), a statement from the employing establishment is

7

5 U.S.C. § 8102(a). See also P.S., Docket No. 08-2216 (issued September 25, 2009).

8

A.K., Docket No. 09-2032 (issued August 3, 2010); C.O., Docket No. 09-0217 (issued October 21, 2009).

9

Id.

10

T.F., Docket No. 08-1256 (issued November 12, 2008); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

11

G.R., Docket No. 16-0544 (issued June 15, 2017); M.T., Docket No. 16-0927 (issued February 13, 2017).

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imperative to properly develop and adjudicate the claim.12 OWCP’s procedure manual further
provides that the protection of the FECA is not limited to injuries which occur on the industrial
premises, and it contains provisions regarding the necessary information to be obtained when an
employee has claimed that an injury occurred while on travel status.13
ANALYSIS
Appellant filed a Form CA-1 alleging that at 7:40 a.m. on Monday, January 9, 2017, she
sustained injury to her right ankle/leg due to a fall on ice that occurred when exiting a bus in
Vancouver, Washington. In a March 24, 2017 decision, OWCP denied appellant’s claim finding
that she had not established that her claimed injury occurred in the performance of duty.
The Board finds that the case is not in posture for decision regarding whether appellant
sustained an injury in the performance of duty on January 9, 2017.
The Board notes that proceedings under FECA are not adversarial in nature and OWCP is
not a disinterested arbiter.14 While appellant has the burden of proof to establish entitlement to
compensation, OWCP shares the responsibility in the development of the evidence, particularly
when such evidence is of the character normally obtained from the employing establishment or
other governmental source.15 The employing establishment, in a February 14, 2017 letter,
controverted appellant’s claim for a January 9, 2017 work injury by generally asserting that the
injury occurred off the employing establishment premises, and that appellant was not engaged in
official “off-premises” duties at the time of her fall on January 9, 2017.16 However, appellant
claimed that, at the time of her January 9, 2017 fall, she was on official travel status for the
purpose of attending a training session at another location of the employing establishment in
Vancouver, Washington. OWCP has not adequately developed this aspect of appellant’s claim.
The employing establishment generally denied that appellant was engaged in work-related duties

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.7a(2)
(June 2011).
13

Id. at -- Claims, Performance of Duty, Chapter 2.804.5 (August 1992). For injuries sustained in a travel status
the record must contain evidence showing when and where the employee last performed official duty, the distance
between the place of injury and the place where official duty was last performed, between what points the employee
was traveling when injured, the purpose of the trip, when and where the employee was next expected to perform
official duty, whether at the time of the injury the employee was riding in or driving a government-owned vehicle,
and whether the employee’s travel expenses were reimbursable. The record must also contain evidence regarding
whether the injury occurred on the direct or most usually traveled route between the place of last official duty and
the place where the employee was expected to next perform official duty and, if not, the nature and extent of the
deviation should be given with a full explanation of the reason for such deviation. Id. at Chapter 2.804.5d.
14

See L.L., Docket No. 12-0194 (issued June 5, 2012); N.S., 59 ECAB 422 (2008).

15

Id. See also M.B., Docket No. 17-0536 (issued June 22, 2017).

16

Appellant’s duty station was the Portland Veterans Affairs Medical Center at 3710 S.W. U.S. Veterans Hospital
Road in Portland, Oregon, and her regular work hours were 8:00 a.m. to 4:30 p.m., Monday through Friday.

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on January 9, 2017, but it was not asked to specifically respond to appellant’s claim of being on
official travel status to attend work-related training on January 9, 2017.17
On remand OWCP should further development the question of whether appellant was on
travel status on January 9, 2017 or otherwise was on official duty status to attend work-related
training in Vancouver, Washington. After such further development as deemed necessary, it
should issue a de novo decision regarding appellant’s claim for a January 9, 2017 work injury.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the March 30, 2017 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded to OWCP for further
action consistent with this decision.
Issued: August 22, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

17

In a February 24, 2017 letter, OWCP requested that appellant submit additional factual and medical evidence in
support of her claim. It asked her to complete a questionnaire posing various questions regarding the factual
circumstances of her January 9, 2017 fall. OWCP did not send a development letter to the employing establishment
asking it to provide further specific information about the factual aspects of appellant’s claim, including her claim of
being on official travel status on January 9, 2017.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
FOUNDRY & PROPELLER CENTER,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 07-2369
Issued: February 25, 2008

Case Submitted on the Record

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

JURISDICTION
On September 18, 2007 appellant filed a timely appeal of the April 19, 2007 merit
decision of the Office of Workers’ Compensation Programs, which denied modification of a
prior decision terminating wage-loss compensation. 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 has any injury-related residuals after May 11, 2004.
FACTUAL HISTORY
This case was previously before the Board. Appellant, a 52-year-old management
analyst, injured both wrists on January 26, 2004 when she fell in the parking area adjacent to her
office building. She has an accepted traumatic injury claim for bilateral wrist sprain. Appellant
was off work beginning February 4, 2004. Her physician of record, Dr. John S. Taras, advised

that appellant could perform limited-duty work beginning March 16, 2004.1 Subsequently,
Dr. Taras discharged appellant from his care and released her to return to regular work effective
May 11, 2004. Appellant, however, did not resume work.
Based on Dr. Taras’ opinion, the Office terminated appellant’s wage-loss compensation
effective May 11, 2004. The Office’s January 12, 2005 decision terminating compensation was
affirmed by a hearing representative on January 31, 2006. In a decision dated July 7, 2006, the
Board affirmed the hearing representative’s decision.2
On September 22, 2006 appellant requested reconsideration. In an August 1, 2006 report,
Dr. Steven J. Valentino, a Board-certified orthopedic and reconstructive spine surgeon, noted
that he first treated appellant on May 26, 2004. He provided numerous reports that were
previously considered by both the Office and the Board.3 Most recently, Dr. Valentino reiterated
his opinion that appellant’s January 26, 2004 fall at work caused a bilateral wrist sprain and
aggravated the carpometacarpal (CMC) arthritis about the right wrist. He recommended that
appellant undergo surgery to remove the right CMC joint. Absent surgery, appellant was
disabled from gainful employment involving the use of her right hand.
By decision dated April 19, 2007, the Office reviewed the claim on the merits, but denied
modification of the decision terminating wage-loss compensation effective May 11, 2004.
LEGAL PRECEDENT
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.4 Having determined that an employee has a disability
causally related to his or her federal employment, the Office may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.5 After termination or modification of compensation benefits, clearly warranted on
the basis of the evidence, the burden for reinstating compensation benefits shifts to appellant.6
ANALYSIS
The Board previously affirmed the Office’s decision to terminate wage-loss
compensation effective May 11, 2004.
The remaining question is whether appellant
demonstrated that she has employment-related residuals after May 11, 2004.
1

Dr. Taras is a Board-certified orthopedic surgeon specializing in hand surgery.

2

Docket No. 06-909 (issued July 7, 2006).
reference.

The Board’s July 7, 2006 decision is incorporated herein by

3

Many of Dr. Valentino’s earlier reports, which covered the period of May 2004 to December 2005, are
described in detail in the Board’s prior decision dated July 7, 2006.
4

Curtis Hall, 45 ECAB 316 (1994).

5

Jason C. Armstrong, 40 ECAB 907 (1989).

6

Joseph A. Brown Jr., 55 ECAB 542, 544 n.5 (2004).

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The only relevant medical evidence submitted since the Board’s previous review was
Dr. Valentino’s August 1, 2006 report. In this latest report, he reiterated his earlier finding that
appellant’s January 26, 2004 fall aggravated her right CMC joint arthritis. But much like the
earlier reports, Dr. Valentino’s August 1, 2006 opinion lacks adequate rationale to support his
opinion on causation. He stated that it was “clear” the work-related injury was responsible for
aggravating appellant’s arthritis. However “clear” the relationship may be in Dr. Valentino’s
estimation, he nonetheless failed to explain how the two were connected.
In his August 1, 2006 report, Dr. Valentino referenced a number of x-ray reports,
magnetic resonance imaging scans and bone scans from May and June 2004 that documented
appellant’s right wrist degenerative arthritic condition. But there was one x-ray he omitted from
his discussion. A July 28, 2004 right hand x-ray similarly showed osteoarthritis of the first
carpometacarpal articulation. However, the Board-certified radiologist who reviewed this
particular film also noted that there was “[n]o evidence of post-traumatic change.” This x-ray
report tends to detract from Dr. Valentino’s long-held view that appellant’s January 26, 2004 fall
aggravated her preexisting degenerative arthritis.
Dr. Valentino did not fail to explain his opinion and omitted relevant contradictory
evidence from his analysis. As such, his August 1, 2006 report is insufficient to satisfy
appellant’s burden for reinstating compensation following the Office’s proper termination
effective May 11, 2004.
CONCLUSION
The Board finds that appellant failed to establish that she has any injury-related residuals
after May 11, 2004.

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ORDER
IT IS HEREBY ORDERED THAT the April 19, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 25, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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