United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Letcher, SD, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 20-0574
Issued: August 19, 2020

Case Submitted on the Record

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

JURISDICTION
On January 18, 2020 appellant filed a timely appeal from a November 1, 2019 merit
decision and a December 4, 2019 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a hearing
loss causally related to the accepted August 2, 2019 employment incident of exposure; and
(2) whether OWCP properly denied appellant’s request for reconsideration of the merits of his
claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 17, 2019 appellant, then a 46-year-old postal support employee, filed a
traumatic injury claim (Form CA-1) alleging that on August 2, 2019 he was injured when a weather
siren went off as he was walking outside of the employing establishment while in the performance
of duty. He indicated that he could feel his eardrums expand in his head and that he experienced
constant ringing in his left ear and bad headaches as a result. On the reverse side of the claim form
appellant’s supervisor checked a box marked “No” to indicate her belief that appellant was not in
the performance of duty when his injury occurred and reasoned that “He was done working for the
day -- Outside work factor” at the time of his injury. Appellant did not stop work.
In an August 12, 2019 medical report, Dr. William Graham, a Board-certified
otolaryngologist, evaluated appellant for acoustic trauma and left ear tinnitus related to the
August 2, 2019 employment incident in which he was exposed to a loud siren at work. Appellant
denied a prior history of hearing loss or acoustic trauma. Dr. Graham also noted that he had
previously evaluated appellant in 2014 for decreased hearing in the left ear and tinnitus. He
diagnosed tinnitus laterally left, hearing loss in the left ear, unspecified, and occupational exposure
to noise.
In an August 19, 2019 letter, the employing establishment controverted appellant’s claim
contending that his injury was not work related because he was off the clock and he “could have
been anywhere else” when the sirens went off and had the same thing happen. It also observed
that appellant was seen by Dr. Graham in 2014 with complaints of decreased hearing in his left ear
and tinnitus.
In an undated statement, appellant explained that on the afternoon of August 2, 2019 he
was finishing work for the day at the employing establishment’s facility in Alexandria, where he
was assigned to work that afternoon because the employing establishment was in the process of
hiring a new employee for that office. As appellant walked outside, a loud and high-pitched
weather alarm went off. He stated that when the alarm was in his direction he could feel his
eardrums expand in his head. Appellant ran to his car to try and block out some of the noise and
waited several minutes for the alarm to stop before he left. He explained that he immediately
experienced pain in both ears and had a ringing or buzzing sensation mostly in his left ear.
Appellant indicated that he has experienced ringing in his ear since the alarm went off.
In a development letter dated August 20, 2019, OWCP advised appellant of the factual and
medical deficiencies of his claim. It informed him of the type of evidence necessary to establish
his claim and provided a questionnaire for his completion regarding the circumstances of his
claimed injury. OWCP also requested a narrative medical report from appellant’s treating
physician, which contained a detailed description of findings and diagnoses, explaining how the
alleged incident caused, contributed to, or aggravated his medical conditions. In a separate
development letter of even date, it requested that the employing establishment provide additional
information regarding appellant’s traumatic injury claim. OWCP afforded both parties 30 days to
respond.
An August 28, 2019 medical report with an illegible signature noted that appellant
underwent an audiometric evaluation with otoscopic screening in response to the symptoms he

2

was experiencing since the August 2, 2019 employment incident. The otoscopic viewing was
noted to be unremarkable bilaterally and appellant’s hearing was found to be within the normal
limits bilaterally.
In an August 29, 2019 response to OWCP’s questionnaire, appellant indicated that his
injury occurred on the sidewalk and in the parking lot of the employing establishment. He claimed
that he was still on the premises performing his duty for a travel assignment when the injury
occurred. Appellant explained that he had not sustained any other injury at that time or prior to
the alleged employment incident. He indicated that he had experienced buzzing or ringing in his
ear since the incident and occasional bad headaches. Appellant also attached photographs of the
parking lot and surrounding area where the alleged incident occurred.
In a September 10, 2019 statement in response to OWCP’s development letter, the
employing establishment indicated that appellant reported that at the time of the alleged injury he
was going home for the day and headed to his car in the employing establishment parking lot.
By decision dated September 30, 2019, OWCP denied appellant’s traumatic injury claim
finding that the evidence of record was insufficient to establish that his diagnosed conditions were
causally related to the accepted August 2, 2019 employment incident.
In an October 14, 2019 statement, appellant explained that he was seen by Dr. Graham in
2014 because he had a cold and wax on his eardrum that was removed. He also noted that he had
suffered from headaches and also sustained a neck injury from the weather siren, and had
undergone treatment from a chiropractor.
On October 21, 2019 appellant requested reconsideration of OWCP’s September 30, 2019
decision and submitted additional medical evidence.
In medical reports dated from September 27 to October 24, 2019, Dr. Scott Mullenmeister,
a Board-certified chiropractic specialist, evaluated appellant for left-sided upper back and neck
pain that occurred on August 2, 2019 when he jerked his neck after hearing a loud storm siren.
Appellant also reported experiencing headaches and ringing in his left ear since the incident.
Dr. Mullenmeister diagnosed segmental and somatic dysfunction of the cervical region,
cervicalgia, episodic tension headache, segmental and somatic dysfunction of the thoracic region,
pain in the thoracic spine and segmental, and somatic dysfunction of the pelvic region.
By decision dated November 1, 2019, OWCP denied modification of its September 30,
2019 decision.
On November 20, 2019 appellant requested reconsideration of OWCP’s November 1, 2019
decision. In an attached statement of even date, he contended that he was not given a straight
answer on what information was needed from Drs. Graham and Mullenmeister in order to satisfy
his claim. Appellant further explained that his 2014 visit with Dr. Graham was unrelated and that
there was no problem with his ear until the August 2, 2019 employment incident.
By decision dated December 4, 2019, OWCP denied appellant’s request for reconsideration
finding that the evidence submitted was irrelevant or immaterial and thus had no bearing on the
issue or was inconsequential in regards to the issue.
3

LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish 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,2 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.3 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.5 First,
the employee must submit sufficient evidence to establish that he actually experienced the
employment incident at the time and place, and in the manner alleged.6 Second, the employee
must submit sufficient evidence to establish that the employment incident caused a personal
injury.7
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence sufficient to establish such causal relationship.8 The opinion of the physician
must be based on a complete factual and medical background, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.9
In administering FECA, OWCP must attempt to obtain any evidence which is necessary
for the adjudication of the case which is not received when the notice or claim is submitted. Some
initial claims require full-scale medical development because the nature of exposure is in question,
the diagnosis is not clearly identified, or the relationship of the condition to the exposure is not
obvious. Certain types of conditions, such as hearing loss and asbestosis claims, require OWCP

2

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
3
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
4

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
5

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

6

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

7

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

8

K.V., Docket No. 18-0723 (issued November 9, 2018).

9

I.J., 59 ECAB 408 (2008).

4

to refer the claimant for examination by a qualified specialist if the report submitted by the claimant
does not meet all of its requirements for adjudication.10
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision.
OWCP accepted that appellant was exposed to a siren on August 2, 2019 while in the
performance of duty. Consequently, regardless of the specific decibel level of exposure, it must
consider whether the employment-related noise exposure was sufficiently prolonged to result in
acoustic trauma.11 Such a question is medical in nature and should be resolved by a Board-certified
otolaryngologist.12
While Dr. Graham, in his August 12, 2019 medical report, diagnosed tinnitus laterally left,
hearing loss in the left ear, unspecified and occupational exposure to noise, his report lacked
sufficient rationale and thus lacked probative value to establish the claim. However, as a hearing
loss claim, OWCP was required under its own procedures to refer him for examination by a
qualified specialist.13
As OWCP failed to properly develop the evidence, the Board finds that the case must be
remanded for the required referral to a qualified specialist for a medical evaluation in accordance
with its procedures.14 After this and other further development as may be deemed necessary,
OWCP shall issue a de novo decision regarding whether appellant’s workplace noise exposure
caused, contributed to, or aggravated his hearing loss condition.15
CONCLUSION
The Board finds that this case is not in posture for decision.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.9 (June 2011).
See also id. at Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600 (October 1990).
11

See W.P., Docket No. 15-0597 (issued January 27, 2016).

12

Id.

13

Supra note 10.

14

Id. at Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(b) (January 2013). See also M.W., Docket No. 10992 (issued December 9, 2010).
15

In light of the Board’s disposition in Issue 1, Issue 2 is rendered moot.

5

ORDER
IT IS HEREBY ORDERED THAT the December 4 and November 1, 2019 decisions of
the Office of Workers’ Compensation Programs are set aside and the case is remanded for further
proceedings consistent with this decision of the Board.
Issued: August 19, 2020
Washington, DC

Christopher J. Godfrey, Deputy Chief Judge
Employees' Compensation Appeals Board

Janice B. Askin, Judge
Employees' Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New York, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-2024
Issued: May 10, 2010

Case Submitted on the Record

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

JURISDICTION
On August 4, 2009 appellant filed a timely appeal from a February 5, 2009 nonmerit
decision of the Office of Workers’ Compensation Programs denying his request for
reconsideration. As no Office merit decision was issued within 180 days of the filing of this
appeal, the Board does not have jurisdiction to review the merits of the case pursuant to 20
C.F.R. §§ 501.2(c) and 501.3(e).1
ISSUE
The issue is whether the Office properly denied appellant’s January 1, 2009 request for
reconsideration under 5 U.S.C. § 8128.

1

For Office decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal of
Office decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e) (2008).

FACTUAL HISTORY
On January 24, 2005 appellant, then a 27-year-old regular letter carrier, sustained a
traumatic injury to his neck, shoulder and lower back while pushing his mail cart in the snow.
He stopped work on January 26, 2005 and did not return. The Office accepted the claim for
cervical lumbosacral sprains.
The Office referred appellant for a second opinion examination with Dr. Jacqueline
Emmanuel, a Board-certified orthopedic surgeon. In an October 18, 2006 report, Dr. Emmanuel
advised that appellant had no findings on examination consistent with the accepted conditions of
sprain of the neck or sprain of the lumbosacral joint. She opined that the accepted conditions had
resolved and no further medical treatment or physical therapy was indicated. Dr. Emmanuel
found that appellant was capable of returning to his full duties as a letter carrier. Dr. Igor Cohen,
an attending neurologist, and Dr. Paolo Perrone, an attending Board-certified internist, supported
that appellant remained totally disabled and required physical therapy. The Office found a
conflict in medical opinion and referred the case to Dr. Salvatore J. Sclafani, a Board-certified
orthopedic surgeon, selected as the impartial medical examiner.2 In an April 26, 2007 report,
Dr. Sclafani noted that, while appellant had multiple subjective complaints, there were no
objective findings to warrant disability or continued medical treatment. He advised that
appellant had two years of therapy and, while symptomatic, there were no signs of any atrophy
of the right upper extremity, which one would anticipate with any significant injury, disc
herniation or cervical radiculopathy. Dr. Sclafani found that appellant reached maximum
medical improvement and could return to work without restrictions. By decision dated
February 28, 2008, the Office terminated appellant’s compensation benefits effective March 16,
2008 based on the opinion of the impartial medical examiner.
On December 2, 2008 appellant requested an oral hearing. The Office subsequently
received physical therapy treatment notes and a February 20, 2008 report from Dr. Cohen who
noted that appellant presented with frequent radiating neck pain and a history of work-related
injury and symptoms. Dr. Cohen advised that diagnostic testing was consistent with disc
herniations at C4 through C7 with right C5 radiculopathy and cervical myofasciitis. He noted
treatment recommendations and opined that appellant remained totally disabled due to his workrelated injury.
By decision dated December 17, 2008, the Office denied appellant’s hearing request as it
was not submitted within 30 days of the February 28, 2008 decision.
In a January 1, 2009 letter, appellant requested reconsideration. He asked that the Office
send an acknowledgment of his request and contact him if there was anything more he needed to
do. No additional information was submitted.
By decision dated February 5, 2009, the Office denied appellant’s request for
reconsideration finding that he did not raise any substantive legal questions or include any new
and relevant evidence. Appellant’s request was insufficient to warrant further merit review.
2

In a December 20, 2006 report, Dr. Cohen noted findings and diagnoses and opined that appellant continues to
have total disability as a result of his work-related injuries.

2

LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a), the
Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.3 Section 10.608(b) of Office
regulations provide that when an application for reconsideration does not meet at least one of the
three requirements enumerated under section 10.606(b)(2), the Office will deny the application
for reconsideration without reopening the case for a review on the merits.4 The Board has held
that the submission of evidence or argument which does not address the particular issue involved
does not constitute a basis for reopening a case.5
ANALYSIS
Appellant’s January 1, 2009 request for reconsideration did not allege or demonstrate that
the Office erroneously applied or interpreted a specific point of law. He did not advance a
relevant legal argument not previously considered by the Office. Appellant is not entitled to a
review of the merits of his claim based on the first and second requirements under section
10.606(b)(2).
Appellant did not submit relevant and pertinent new evidence not previously considered
by the Office. After the termination of his benefits, he submitted physical therapy notes and a
February 20, 2008 report from Dr. Cohen. This evidence is not relevant to the underlying
medical issue of whether appellant has a continuing medical condition or disability causally
related to his 2005 work injury. Dr. Cohen noted that appellant remained symptomatic and
opined that appellant remained totally disabled due to his work-related injury. This report is
insufficient to require further merit review as it is duplicative and repetitive of Dr. Cohen’s prior
opinion which the Office previously considered.6
Furthermore, the physical therapy notes do not constitute relevant new evidence on the
issue of appellant’s disability related to his accepted injury and are duplicative of treatment
records previously reviewed. Therefore, the evidence received by the Office after the
termination of appellant’s compensation benefits does not warrant reopening the case for a merit
review.
On appeal, appellant contends that he never received any instructions from the Office
prior to his reconsideration request being denied. However, it is his responsibility to submit any
3

20 C.F.R. § 10.606(b)(2); D.K., 59 ECAB ___ (Docket No. 07-1441, issued October 22, 2007).

4

Id. at § 10.608(b); K.H., 59 ECAB ___ (Docket No. 07-2265, issued April 28, 2008).

5

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

6

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a case. See Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB
393, 398 (1984).

3

additional relevant evidence or legal argument concerning his claim. This is clearly stated in the
appeal rights appellant received with the February 28, 2008 termination decision. Therefore,
appellant was properly advised as to his appellate rights.
The Board finds that the Office properly determined that appellant was not entitled to
further review of the merits of his claim pursuant to the requirements under section 10.606(b)(2).
The Board properly denied his January 1, 2009 request for reconsideration.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for further review of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the February 5, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 10, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Denver, CO, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-311
Issued: July 8, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 20, 2013 appellant filed a timely appeal from the June 14, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which awarded additional
compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of this case.2
ISSUE
The issue is whether appellant has more than a 23 percent impairment of her right lower
extremity.

1
2

5 U.S.C. § 8101 et seq.

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). The Board therefore has no jurisdiction to review medical evidence dated August 14, 2013, which
appellant submits on appeal.

FACTUAL HISTORY
On June 28, 2004 appellant, then a 46-year-old clerk
occupational disease claim alleging that her plantar fibromas were
eight hours a day on her feet at work. OWCP accepted her claim
fibromas and authorized surgery. It also accepted appellant’s
tendinitis.

(sales associate), filed an
a result of spending at least
for bilateral plantar fasciitis
claim for bilateral tibialis

OWCP granted appellant schedule awards for a 15 percent impairment to each lower
extremity.
OWCP later expanded its acceptance to include a left medial meniscus tear. In 2011, it
awarded an additional 9 percent impairment for the left lower extremity, for a total impairment
of 24 percent.
OWCP also expanded its acceptance to include right medial meniscus tear and
aggravation of preexisting chondromalacia patella. It would later make clear that it was
accepting bilateral chondromalacia patellae.
Appellant filed a claim for an additional schedule award. Dr. Christopher B. Ryan, the
attending Board-certified physiatrist, evaluated her impairment on November 12, 2012. He
noted that since he last saw appellant OWCP had accepted a meniscal injury and aggravation of
patellofemoral arthritis in the right knee. Appellant further noted debridement of the medial and
lateral menisci on the right as well as a patellar chondroplasty.
Dr. Ryan described his findings on examination, including some soft tissue swelling,
some atrophy in the quadriceps on the right, more than the left. Range of motion, performed
three times with a goniometer, showed 10 degrees of extension lag and 90 degrees of full flexion.
Dr. Ryan found that appellant had reached maximum medical improvement.
Dr. Ryan’s primary diagnosis was patellofemoral arthritis. Referencing the American
Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed. 2009), he found
that appellant’s default impairment rating was three percent for a class 1 or mild problem.3
Dr. Ryan adjusted this to four percent based on moderate range of motion findings.4 He noted
that appellant’s lower extremity questionnaire indicated a class 3 or severe problem, which was
assumed to be unreliable and therefore excluded from the grading process.5

3

A.M.A., Guides 511 (Table 16-3).

4

Id. at 549 (Table 16-23) and 517 (Table 16-7).

5

Id. at 516.

2

Dr. Ryan also diagnosed primary knee joint arthritis. He found a default impairment
rating of seven percent for a class 1 or mild problem.6 Dr. Ryan adjusted this by one percent for
moderate range of motion findings.7
Dr. Ryan noted that appellant had partial medial and lateral meniscectomies. He found a
default impairment rating of 10 percent for partial medial and lateral meniscectomy.8 Moderate
range of motion findings adjusted this to 12 percent.
Using range of motion as a standalone method of evaluating impairment, Dr. Ryan found
a 30 percent impairment of appellant’s right lower extremity.9 “Clearly, as the sixth edition of
the A.M.A., Guides deems a 10-degree extension lag to be such a significant impairment and it is
functionally so, then it makes the most sense to utilize this method to rate her lower extremity.”
Dr. Ryan concluded that appellant had a 30 percent impairment of her right lower extremity
attributable to her knee.
OWCP’s medical adviser reviewed Dr. Ryan’s impairment evaluation. He explained that
under the A.M.A., Guides impairment based on range of motion was permissible only if no other
approach was available for the rating. Otherwise, range of motion was used as a physical
examination adjustment factor. Further, appellant had demonstrated normal range of motion
twice since her surgery and so her significant deficits on Dr. Ryan’s examination were
inconsistent with her documented best efforts and therefore not reliable.
OWCP’s medical adviser noted that the examiner should use the diagnosis with the
highest impairment rating in that region that is causally related, which was the diagnosis of
partial medial and lateral meniscectomy, with its default impairment value of 10 percent. He
adjusted this down to 8 percent based on her normal functional history. The medical adviser
concluded that appellant had an eight percent impairment of her right lower extremity due to her
knee.
On June 14, 2013 OWCP issued a schedule award for an additional 8 percent impairment
of appellant’s right lower extremity, for a total impairment of 23 percent.
LEGAL PRECEDENT
The schedule award provision of FECA10 and the implementing regulations11 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
6

Supra note 3.

7

Supra note 4.

8

Id. at 509.

9

Id. at 549 (Table 16-23).

10

5 U.S.C. § 8107.

11

20 C.F.R. § 10.404.

3

specify the manner in which the percentage of loss shall be determined. The method used in
making such a determination is a matter that rests within the sound discretion of OWCP.12
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. OWCP has adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses.13 As of May 1, 2009, the sixth edition of the A.M.A.,
Guides is used to calculate schedule awards.14
ANALYSIS
Diagnosis-based impairment is the primary method of evaluating the lower limb.
Impairment is determined first by identifying the relevant diagnosis and then by selecting the
class of the impairment: no objective problem, mild problem, moderate problem, severe
problem, very severe problem approaching total function loss. This will provide a default
impairment rating. The evaluator may then adjust the default rating up or down slightly for
grade, which is determined by such grade modifiers or nonkey factors as functional history,
physical examination and clinical studies.15
Dr. Ryan, the evaluating physiatrist, found that appellant had a 30 percent impairment of
her right lower extremity due to loss of knee motion. OWCP’s medical adviser correctly noted
that range of motion is used to determine actual impairment values only when it is not possible to
otherwise define impairment.16
Diagnosis-based impairment is the method of choice for evaluating impairment under the
sixth edition of the A.M.A., Guides. In most cases, only one diagnosis in a region, such as the
knee, will be appropriate. If a patient has two significant diagnoses, the examiner should use the
diagnosis with the highest impairment rating in that region that is causally related for the
impairment calculation.17
Dr. Ryan’s primary diagnosis was patellofemoral arthritis, with a rating from one to five
percent, depending on adjustments. Appellant also had primary knee arthritis, with a rating of

12

Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986).

13

Supra note 11; Ronald R. Kraynak, 53 ECAB 130 (2001).

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010).
15

A.M.A., Guides 497.

16

Id. at 497, 552 (step 12). As a point of clarification, knee extension lag and flexion contracture are different
concepts. Id. at 544. Dr. Ryan found 10 degrees of extension lag. Table 16-23, page 549, defines knee motion
impairment in terms of flexion and flexion contracture, not extension lag. He mistakenly treated the two concepts
the same.
17

Id. at 497, 499, 529.

4

five to nine percent. It was her diagnosis of partial medial and lateral meniscectomy, with its
range of 7 to 13 percent that offered the highest impairment rating in that region.
Table 16-3, page 509, shows a default impairment rating of 10 percent for a class 1 or
mild problem. Dr. Ryan found that appellant’s lower extremity questionnaire, showing a class 3
or severe problem, was unreliable. According to the A.M.A., Guides: “If the functional history
is determined to be unreliable or inconsistent with other documentation, it is excluded from the
grading process.”18 Thus, rather than grade appellant’s functional history as normal, the modifier
is disregarded altogether in the grading adjustment.19
On physical examination, Dr. Ryan found some soft tissue swelling and some
(unmeasured) atrophy in the quadriceps on the right, more than the left. OWCP’s medical
adviser found this consistent with mild examination findings, which do not warrant an
adjustment to the default impairment value. In addition to the medical adviser’s observation that
appellant had previously demonstrated normal range of motion after surgery, the Board notes
that 90 degrees of flexion (and no flexion contracture) amounts to a mild impairment under
Table 16-23, page 549, and therefore warrants no adjustment to the default impairment value
even if the range of motion findings were reliable.
Because clinical studies were used to establish the diagnosis and default impairment
value, they may not be used again in the impairment calculation to adjust the default value.20
Accordingly, appellant’s right lower extremity impairment due to the knee remains 10
percent. Combined with the 15 percent impairment previously awarded for different regions,
appellant has a 24 percent total impairment of the right lower extremity.21 The Board finds,
therefore, that she is entitled to an additional schedule award of nine percent, rather than the net
eight percent awarded on June 14, 2013.
CONCLUSION
The Board finds that appellant has a 24 percent total impairment of her right lower
extremity, entitling her to an additional schedule award of 9 percent, not 8 percent as previously
awarded.

18

Id. at 516.

19

Id.

20

Id. at 515-16.

21

Id. at 604 (Combined Values Chart).

5

ORDER
IT IS HEREBY ORDERED THAT the June 14, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed as modified and the case remanded for further
action consistent with this opinion.
Issued: July 8, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.W. , Appellant
and

U.S. POSTAL SERVICE, POST OFFICE,
Portland, ME, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Daniel B. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-73
Issued: May 20, 2014

Case Submitted on the Record

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

JURISDICTION
On October 7, 2013 appellant, through his attorney, filed a timely appeal from an
April 25, 2013 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 sustained more than 38 percent permanent impairment of
the right lower extremity, for which he received a schedule award.
On appeal, counsel asserts that OWCP should not have relied on the opinion of the
impartial medical examiner as he allegedly failed to use a goniometer in assessing range of
motion. He contends that OWCP should have relied on the opinion of appellant’s attending
physician, who used a goniometer to measure ranges of motion.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on or before February 2, 2001 appellant, then a 43-year-old letter
carrier, sustained an aggravation of osteoarthritis of the right hip. It later expanded the claim to
include an aggravation of osteoarthritis of the right knee. On June 2, 2003 Dr. Brian J. McGrory,
an attending Board-certified orthopedic surgeon, performed a primary uncemented total
arthroplasty of the right hip, using the posterior approach. Appellant received wage-loss
compensation on the daily rolls for work absences from June 2, 2003 until he returned to full
duty in the fall.
On October 4, 2004 appellant filed a claim for recurrence of disability (Form CA-2a)
related to a March 8, 2004 slip and fall with subsequent right knee pain. He asserted that he fell
because of his right hip. In an October 19, 2004 letter, OWCP advised appellant of the
additional evidence needed to determine if he were claiming a new injury or a recurrence of
disability. As appellant did not submit additional evidence, OWCP denied the recurrence claim
by decision dated December 6, 2004.
On April 3, 2007 he filed a second claim for recurrence of disability for a March 5, 2007
slip and fall on ice. In a March 16, 2007 report, Dr. Stephen J. Kelly, an attending Boardcertified orthopedic surgeon, noted appellant’s account of a slip and fall at work on March 5,
2007, with subsequent right hip pain. Dr. McGrory restricted appellant to light duty through
March 23, 2007, observing full, painless range of motion of the right hip as of March 30, 2007.
By decision dated July 18, 2007, OWCP denied the claim due to a lack of medical evidence.
On September 24, 2010 appellant claimed a schedule award. He submitted a
September 17, 2010 right leg impairment rating from Dr. Byron Hartunian, an attending Boardcertified orthopedic surgeon, utilizing the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (hereinafter, A.M.A., Guides). On
examination, appellant observed a normal gait and no neurologic impairment of either leg. He
obtained the following ranges of motion for the right hip: 93 degrees flexion; 5 degrees
extension; 35 degrees abduction; 10 degrees adduction; 5 degrees internal rotation; and 15
degrees external rotation. Dr. Hartunian noted mild crepitus and medial joint line tenderness in
the right knee. He reviewed February 8, 2010 x-rays that showed a well-seated total hip
replacement, three millimeter medial joint space in the right knee. Dr. Hartunian diagnosed
status post right total hip arthroplasty and degenerative right knee medial joint arthritis. He
opined that appellant reached maximum medical improvement one year after the June 2, 2003
arthroplasty. Dr. Hartunian explained that appellant’s degenerative arthritis continued to worsen,
causing continued loss of range of motion, most significantly involving hip rotation. Under
Table 16-4 of the A.M.A., Guides, the Hip Regional Grid, he found a class 4 diagnosis-based
impairment (CDX) according to Table 16-242 for moderate motion deficit. Dr. Hartunian
assigned a grade 2 modifier for a moderate deficit according to the American Academy of
Orthopedic Surgeons lower limb questionnaire showing difficulties with activities of daily living.
He assessed a grade 4 modifier for clinical studies (GMCS) as there was a zero cartilage interval
2

Table 16-24, page 549 of the sixth edition of the A.M.A., Guides is entitled “Hip Motion Impairments -- Lower
Extremity Impairment.”

2

in the right hip prior to surgery. The class 4 CDX added one point to each grade modifier
according to pages 521 and 522 of the A.M.A., Guides. Dr. Hartunian applied the net adjustment
formula of GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX) to find a net adjustment of zero,
“yielding a class 4, grade C impairment of 67 percent.” Regarding the right knee, he found a
class 1 CDX for knee joint arthritis according to Table 16-3, the Knee Regional Grid, due to a
three millimeter cartilage interval on standing x-ray. Dr. Hartunian noted a physical examination
modifier (GMPE) of zero as there were no motion deficits or “palpatory findings.” He utilized
the Net Adjustment Formula to find a -1 net adjustment, “yielding a class 1, grade B impairment
of 6 percent.” Dr. Hartunian used the Combined Values Chart to calculate a total 69 percent
impairment of the right lower extremity.
In an October 28, 2010 report, Dr. Craig Uejo, a Board-certified orthopedic surgeon and
OWCP medical adviser, reviewed Dr. Hartunian’s impairment rating. He found that the
objective clinical findings did not support more than 34 percent impairment of the right leg.
Dr. Uejo opined that the ranges of motion obtained by Dr. Hartunian did not comport with earlier
findings, particularly Dr. McGrory’s March 30, 2007 observation of full ranges of right hip
motion. He explained that it was not medically probable that hip motion should drastically
decrease within seven years of arthroplasty without a known cause. Dr. Uejo assigned a class 3
CDX for a “fair result” right hip arthroplasty, with a default 37 percent impairment rating for the
right leg, reduced by three points to 34 percent due to a grade 1 modifier. In a November 16,
2010 supplemental report, he concurred with Dr. Hartunian’s assessment of six percent
impairment of the right knee. Dr. Uejo combined the 6 percent impairment with 34 percent
impairment for the right hip to equal a total 38 percent impairment of the right lower extremity.
By decision dated December 15, 2010, OWCP granted appellant a schedule award for 38
percent impairment of the right leg. The 38 percent impairment rating, from the Combined
Values Chart, combined 34 percent impairment for status post right hip arthroplasty with limited
motion, and 6 percent impairment of the right knee. The award was based on appellant’s weekly
pay rate of $805.65 as of June 2, 2003. The period of the award ran from June 2, 2004 to
July 8, 2006. On January 11, 2011 appellant requested an oral hearing. He contended that
Dr. Uejo’s calculations were confused.
In a March 23, 2011 decision, an OWCP hearing representative found that the case was
not in posture for a decision due to a conflict of medical opinion between Dr. Uejo, for OWCP,
and Dr. Hartunian, for appellant, regarding the appropriate percentage of impairment. To resolve
the conflict, OWCP referred appellant, the medical record and a statement of accepted facts to
Dr. David Markellos, a Board-certified orthopedic surgeon, for an impartial medical
examination.
Dr. Markellos submitted an August 25, 2011 report reviewing the medical record and
statement of accepted facts. He obtained right hip x-rays which showed appropriate placement
and excellent alignment of the hip prosthesis. Dr. Markellos obtained standing x-rays of the
right knee showing minimal degenerative changes with a well-preserved joint space of nearly
four millimeters. He noted a one centimeter leg length discrepancy, shorter on the left leg.
Dr. Markellos noted the following range of motion measurements for the right hip: 108 degrees
forward flexion; 22 degrees internal rotation; 48 degrees external rotation; 38 degrees abduction.
He noted full range of motion with the right knee, with full strength, sensation and pulses

3

throughout the right knee, lower leg and foot. Dr. Markellos diagnosed status post right total hip
replacement for treatment of progressive degenerative arthritis. He found 37 percent impairment
of the right leg according to Table 16-4 for status post arthroplasty with a fair result as
determined by range of motion. Dr. Markellos characterized the ranges of motion he measured
on examination as “mild,” a class 3 CDX with a default score of 37 percent. He agreed with
Dr. Uejo’s assignment of a grade 1 modifier, resulting “in three points subtracted result[ing] in
the same final lower extremity of 34 percent.” In a February 27, 2012 supplemental report,
Dr. Markellos concurred with Dr. Hartunian’s finding of six percent impairment based on the
right knee. Using the Combined Values Chart, he found a total 38 percent impairment of the
right leg. In a July 25, 2012 report, an OWCP medical adviser concurred with Dr. Markellos’
impairment rating and methods of calculation.
By decision dated September 4, 2012, OWCP found that appellant had not established
that he sustained more than 38 percent impairment of the right lower extremity, for which he
received a schedule award. It accorded the weight of the medical evidence to Dr. Markellos.
In a September 25, 2012 letter, appellant requested a telephonic hearing, held
February 14, 2013. At the hearing, counsel asserted that OWCP should have relied on
Dr. Hartunian’s finding of 67 percent impairment of the right leg as he used a goniometer to
measure range of motion whereas Dr. Markellos did not. He also contended that OWCP used an
incorrect pay rate to calculate the schedule award.
In a December 28, 2012 statement, appellant asserted that Dr. Markellos did not use a
goniometer during his examination. He explained that the “tool has been described to me and
[he] understood what it [was] because of what [he had] been told and because it was used by
Dr. Hartunian” during his impairment evaluation.
In a December 28, 2012 letter, counsel asserted that Dr. Markellos did not provide
physical findings to substantiate his finding that appellant had only a mild range of motion
impairment of the right hip. In a February 14, 2013 letter, he contended that Dr. Markellos’
opinion could not represent the weight of the medical evidence as he did not use a goniometer.
Counsel also asserted that OWCP should have utilized March 1, 2010 as the pay rate date as this
was the date of his impairment rating.
Following the hearing, counsel submitted a February 5, 2013 report from Dr. Hartunian,
contending that his range of motion measurements remained valid and demonstrated a moderate
level of impairment. He stated that his September 17, 2010 opinion remained unchanged.
Appellant retired from federal employment effective January 31, 2013.
By decision dated April 25, 2013, an OWCP hearing representative affirmed OWCP’s
September 4, 2012 decision regarding the percentage of permanent impairment. The hearing
representative modified the September 4, 2012 decision to reflect that award should be based on
appellant’s pay rate as of August 25, 2011. The hearing representative remanded the case to
obtain appellant’s pay rate as of August 25, 2011 and issuance of an amended schedule award to
correct appellant’s pay rate.

4

LEGAL PRECEDENT
The schedule award provisions of FECA3 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. FECA, however,
does not specify the manner in which the percentage loss of a member shall be determined. The
method used in making such determination is a mater which rests in the sound discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The
American Medical Association, Guides to the Evaluation of Permanent Impairment has been
adopted by OWCP as a standard for evaluation of schedule losses and the Board has concurred in
such adoption.4 For schedule awards after May 1, 2009, the impairment is evaluated under the
sixth edition of the A.M.A., Guides, published in 2008.5
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).6 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition (CDX), which is then adjusted by grade modifiers based on Functional
History (GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS).7 The net
adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.8
ANALYSIS
OWCP accepted that appellant sustained an aggravation of right hip and knee
osteoarthritis, necessitating a total arthroplasty of the right hip. Following two slip and fall
incidents, Dr. McGrory, an attending Board-certified orthopedic surgeon, found full and painless
motion of the right hip as of March 30, 2007.
Appellant claimed a schedule award on September 24, 2010. Dr. Hartunian, an attending
Board-certified orthopedic surgeon, provided a September 17, 2010 impairment rating finding a
69 percent impairment of the right leg, based on moderate range of motion impairments of the
3

5 U.S.C. § 8107.

4

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5a (January 2010); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards,
Chapter 3.700.2 and Exhibit 1 (January 2010).
6

A.M.A., Guides (6th ed. 2008), page 3, section 1.3, “The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.”
7

A.M.A., Guides 494-531 (6th ed. 2008).

8

5 U.S.C. § 8123(a).

5

right hip totaling 67 percent impairment, and 6 percent impairment due to right knee
osteoarthritis. On October 28 and November 16, 2010 OWCP obtained the opinion of Dr. Uejo,
a Board-certified orthopedic surgeon and OWCP medical adviser, who assigned a default 37
percent impairment to the right lower extremity for total hip arthroplasty with a fair result, and 6
percent impairment due to right knee osteoarthritis.
He opined that Dr. Hartunian’s
measurements for range of motion were not supported by the medical record and were not
medically reasonable. OWCP initially granted appellant a schedule award for 38 percent
impairment of the right leg, then found a conflict of medical opinion between Dr. Hartunian and
Dr. Uejo. It selected Dr. Markellos, a Board-certified orthopedic surgeon, to resolve the conflict.
In August 25, 2011 and February 27, 2012 reports, Dr. Markellos provided range of
motion measurements for the right hip in the category of “mild” impairment under Table 16-24.
He opined that as appellant had a class 3 diagnosis-based impairment, with a default value of 37
percent, reduced by 3 points to 34 percent due to the grade 1 modifier as found by Dr. Uejo.
Combined with the 6 percent impairment for degenerative arthritis in the right knee, this resulted
in 38 percent impairment of the right leg. An OWCP medical adviser concurred with this
assessment on July 25, 2012. OWCP therefore issued a September 4, 2012 decision finding that
appellant had not established that he sustained more than the 38 percent impairment of the right
leg previously awarded. Following a hearing, it affirmed the percentage of impairment by an
April 25, 2013 decision but directed modification of the monetary amount by adjusting the date
of the pay rate utilized.
The Board finds that Dr. Markellos’ impairment rating, as reviewed by OWCP medical
adviser, is entitled to the weight of the medical evidence, as it was based on the medical record
and statement of accepted facts, and utilized the appropriate tables and grading schemes of the
sixth edition of the A.M.A., Guides. When a case is referred to an impartial medical specialist
for the purpose of resolving a conflict in medical opinion, the opinion of such specialist, if
sufficiently well rationalized and based on a proper background, must be given special weight.9
Therefore, OWCP’s April 25, 2013 decision finding 38 percent impairment of the right lower
extremity was proper under the facts and circumstances of this case.
On appeal, counsel contends that OWCP improperly relied on the opinion of
Dr. Markellos, the impartial medical examiner, as he allegedly did not use a goniometer to obtain
the range of motion measurements reported. He noted that the sixth edition of the A.M.A.,
Guides at pages 543 to 548 mandated the use of a goniometer in assessing range of motion.
Counsel also noted that Dr. Hartunian used a goniometer to measure the six ranges of hip motion
as required by the sixth edition of the A.M.A., Guides. He requested that either the Board
authorize a schedule award for the percentage of impairment found by Dr. Hartunian, or remand
the case for Dr. Markellos to provide accurate range of motion measurements following the
goniometric protocols set forth in the A.M.A., Guides.
Section 16.7, page 543 of the sixth edition of the A.M.A., Guides entitled “Range of
Motion Impairment,” provides that “Range of motion (ROM) determination is an essential
component of LE impairment ratings with a strong historical precedent.… Surface goniometry
9

Y.A., 59 ECAB 701 (2008).

6

can be carried out reliably and effectively on the joints of the extremities, so that range of motion
can be objectively determined. The conventional ROM goniometric procedures previously
advocated in the A.M.A., Guides should be followed.” Figure 16-9, page 547, “Using a
Goniometer to Measure Flexion of the Right Hip” also provides that “[a]ccurate measurements
of the lower extremity can also be obtained using a proper inclinometer….”
In J.B.,10 the Board found that an impartial examiner’s failure to use a goniometer in
obtaining range of motion measurements negated the probative value of his report. The Board
held that a proper range of motion evaluation under the fifth edition of the A.M.A., Guides
required “actual goniometer readings or linear measurements.” The sixth edition of the A.M.A.,
Guides states specifically that the “conventional ROM [range of motion] goniometric procedures
previously advocated in the [A.M.A.,] Guides should be followed,” encompassing the fifth
edition requirements cited to in J.B. The Board finds, however, that there is insufficient
evidence in the present case to establish that Dr. Markellos did not use a goniometer or properly
determine appellant’s range of motion. Dr. Markellos provided very specific ranges of motion
and referred to them as measurements, indicating the use of a measuring tool or instrument. The
Board notes that although Dr. Markellos did not state that he used a goniometer, neither did
Dr. Hartunian. This is problematic, as in his December 28, 2012 statement, appellant asserted
that his knowledge of goniometers came from observing Dr. Hartunian use a goniometer as well
as from unspecified descriptions. Also, appellant did not indicate if Dr. Markellos used an
inclinometer, the alternative assessment tool permitted by the A.M.A., Guides.11 Under these
circumstances, there is insufficient evidence that Dr. Markellos did not follow the appropriate
A.M.A., Guides measurement protocols for assessing range of motion.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that he sustained more than 38 percent
impairment of the right lower extremity, for which he received a schedule award.

10

Docket No. 08-969 (issued November 17, 2008).

11

A.M.A., Guides 547.

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 25, 2013 is affirmed.
Issued: May 20, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.N., Appellant
and
U.S. POSTAL SERVICE, DOWNTOWN POST
OFFICE, Wichita, KS, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 21-0070
Issued: March 9, 2022

Case Submitted on the Record

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

JURISDICTION
On October 22, 2020 appellant, through counsel, filed a timely appeal from an August 21,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1

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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the August 21, 2020 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.

ISSUE
The issue is whether OWCP properly denied appellant’s request for authorization of
additional surgery.
FACTUAL HISTORY
On October 25, 2014 appellant, then a 36-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that on that date she twisted her left ankle when she stepped
off of a porch onto grass while in the performance of duty. 4 OWCP accepted the claim for left
ankle sprain. Appellant returned to limited duty and, as of May 12, 2015, worked full-time regular
duty. On June 18, 2015 OWCP accepted an additional condition of left tarsal syndrome. On
June 23, 2015 appellant underwent an OWCP-authorized left tarsal tunnel release with neurolysis
and an additional nonauthorized left partial plantar fascia release which were performed by
Dr. Shawn Morrow, a Board-certified orthopedic foot and ankle surgeon. OWCP paid appropriate
benefits and she returned to full-time work in a limited-duty capacity on August 10, 2015.
On October 27, 2015 appellant saw Dr. Steven Howell, a Board-certified orthopedic
surgeon, specializing in ankle and foot surgery. On November 20, 2015 Dr. Howell requested
authorization for additional surgery involving incision of left foot fascia, decompression of tibial
nerve, partial removal of ankle/heel, and partial removal of foot bone. Additional requests were
submitted on January 5, March 9, and June 15, 2016.
On September 16, 2016 OWCP forwarded appellant’s medical record and a statement of
accepted facts (SOAF) to Dr. William Tontz, a Board-certified orthopedic surgeon serving as a
district medical adviser (DMA), to determine whether her requested surgery was medically
necessary and causally related to her accepted left ankle sprain and left tarsal tunnel syndrome. In
a September 20, 2016 report, Dr. Tontz opined that there was evidence of a temporal relationship
between the October 25, 2014 employment injury and the proposed incision of foot fascia,
decompression of tibia nerve, partial removal of ankle/heel and partial removal of foot bone, but
there was insufficient evidence in the case record of failed conservative management to support
plantar fascia release. He thereafter concluded that the proposed incision of foot fascia,
decompression of tibia nerve, partial removal of ankle/heel, and partial removal of foot bone were
not medically necessary.
On November 17, 2016 OWCP referred appellant, along with the medical record and a
SOAF, to Dr. Michael J. Johnson, a Board-certified orthopedic surgeon, for a second opinion
evaluation. In a November 22, 2016 report, Dr. Johnson reviewed the medical record and the
SOAF and indicated that appellant had received appropriate conservative treatment since her last
surgical procedure, which had not improved enough to allow her to return to full duty. He opined
that only the decompression of tibia nerve (tarsal tunnel release revision) was medically necessary
and causally related to the accepted left tarsal tunnel syndrome. Dr. Johnson opined that the other
4
At the time of injury, appellant was working with medical restrictions under a traumatic injury under OWCP File
No. xxxxxx267. In that claim, OWCP accepted that her fall on August 13, 2016 resulted in right hand contusion, head
contusion, chondromalacia patellae, right knee, nondisplaced fracture of base of fifth metacarpal bone, right hand, and
carpal tunnel syndrome, right upper limb. It has administratively combined these claims, with OWCP File No.
xxxxxx493 serving as the master file.

2

proposed procedures were not causally related to the employment injury or the accepted
conditions. He indicated that the proposed incision of plantar fascia/plantar fascia release was not
related to the accepted diagnosis or secondary to mechanism of injury, the removal of bone
spur/partial removal of ankle/heel was due degenerative/arthritis and not traumatic injury, and the
partial resection of bone/ossicia excision/partial removal of foot bone was a
congenital/developmental deformity to navicular bone which preexisted the employment injury.
On January 17, 2017 OWCP provided Dr. Morrow a copy of Dr. Johnson’s second opinion
report and requested whether he agreed that only the decompression of tibia nerve surgery was
causally related to the October 25, 2014 employment injury and the accepted left tarsal tunnel
syndrome condition. On February 10, 2017 Dr. Morrow concurred with Dr. Johnson’s opinion.
On March 7, 2017 Dr. Howell disagreed with Dr. Johnson’s opinion on causal relation. He
opined that the increased dorsal impingement of the navicular was due to some loss of arch
secondary to the plantar fascial release, which was secondary to employment-related plantar
fasciitis. In a March 21, 2017 report, Dr. Howell also opined that appellant’s talonavicular
spurring was causally related to the accepted conditions. He explained that she had no pain prior
to her injury which worsened after her surgery, consistent with an os naviculare secundum that
loosened up with her original injury and the subsequent spurring was impinging more following
the slight loss of the arch support after the plantar fascial release. Dr. Howell indicated that this
preexisting condition was worsened by the employment injury.
On March 27, 2017 OWCP found a conflict in medical opinion between Dr. Howell and
Dr. Johnson regarding causal relationship and the medical necessity of the specific proposed
surgical procedures. It referred appellant to Dr. Sami Framjee, a Board-certified orthopedic
surgeon, for an impartial medical evaluation.
However, OWCP found that Dr. Framjee had not answered the questions submitted. On
May 18, 2018 it related that appellant would be referred for a new impartial medical evaluation.
On September 13, 2018 OWCP referred appellant, an updated SOAF and a series of
questions, to Dr. Dale D. Dalenberg, a Board-certified orthopedic surgeon, for an impartial
medical evaluation. The SOAF noted that the accepted conditions were a left ankle sprain and left
tarsal tunnel syndrome, and that on June 23, 2015 appellant underwent a left tarsal tunnel release
with neurolysis and left partial plantar fascia release. In its series of questions, OWCP specifically
inquired as to whether the recommended incision of foot fascia, decompression of tibia nerve,
partial removal of ankle/heel, and partial removal of foot bone were medically necessary for, and
causally related to, the accepted conditions of the accepted left ankle sprain and left tarsal tunnel
syndrome.
In a December 21, 2018 report, Dr. Dalenberg noted that appellant was examined on
October 4, 2018. He advised that the proposed procedures were unlikely to improve her condition
and that failure to address her dorsal foot pain and popping by not addressing the talonavicular
joint problem would leave ongoing complaints. Dr. Dalenberg explained that there was no
evidence that performing another tarsal tunnel release would make any difference and the areas of
numbness did not support that it was just tarsal tunnel syndrome. He opined that the proposed
decompression of the tibial nerve was not medically necessary as it had already been performed,
it did not help or had worsened appellant’s symptoms, and it would not fully address her
3

objectively demonstrated numbness. Dr. Dalenberg explained that the proposed excision of the
plantar fascia was not for an accepted condition and was not medically necessary with a
predominant complaint of dorsal pain and foot/ankle popping and pain. He further opined that the
proposed bone removal, particularly removal of the plantar calcaneal spur, was not related to the
accepted conditions and, while it was usually done in conjunction with plantar fascia release, he
opined that it would not appreciably improve appellant’s symptoms. Dr. Dalenberg also advised
that the proposed partial resection of bone/ossicle excision/partial removal of foot bone was not
medically necessary or causally related to the accepted left ankle sprain and left tarsal tunnel
syndrome. He explained that there was evidence of an old dorsal lip avulsion fracture, which was
akin to an ankle sprain, but was never diagnosed or treated. This condition was probably subtly
unstable given her popping complaint, and management was usually c onservative treatment.
Dr. Dalenberg also advised that late surgical treatment was not standard and may be considered
controversial.
By decision dated February 19, 2019, OWCP denied authorization of the requested surgical
procedures. The special weight of the medical evidence was accorded to th e opinion of
Dr. Dalenberg, the impartial medical examiner (IME).
On February 25, 2019 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held telephonically on
June 7, 2019.
OWCP received additional evidence, including x-rays of appellant’s left foot dated
October 4, 2018, which noted small plantar spur and mild degenerative spurring along the dorsal
midfoot.
In an April 2, 2019 report, Dr. Howell indicated that the x-rays taken that day of appellant’s
left foot showed prominent spurring with a very small surface area for weight bearing on the
plantar aspect of her heel directly where she was tender on examination. Appellant also had
numbness and tingling on the bottom of her foot consistent with tarsal tunnel syndrome, which he
believed that had not been completely decompressed, and spurring at the dorsum of the
talonavicular joint. Dr. Howell opined that he could help her with the surgery he previously
offered and outlined his proposed approach. He noted that appellant had been evaluated by an
orthopedist who was not a foot/ankle expert. Dr. Howell questioned the opinion that her condition
would not improve as it was not certain that her tarsal tunnel condition had been adequately
released. He noted that appellant would also benefit by a simple removal of the spurring from the
talonavicular joint and disagreed with Dr. Dalenberg that the talonavicular ligaments would be
involved.
By decision dated June 18, 2019, an Office hearing representative set aside OWCP’s
February 19, 2019 decision and remanded the case to OWCP for further development and a de
novo decision. The hearing representative directed OWCP to have Dr. Dalenberg review
Dr. Howell’s April 2, 2019 report.
In a July 1, 2019 letter, OWCP requested that Dr. Dalenberg review Dr. Howell’s April 2,
2019 report and issue a supplemental report.

4

In a November 20, 2019 addendum, Dr. Dalenberg reviewed Dr. Howell’s April 2, 2019
report and indicated that his concern was that the results of the tarsal tunnel release were uncertain.
He noted that literature documented worse results with revision release, and that results could be
compromised by adhesive neuritis and intraneural damage, which could be the reason for
appellant’s ongoing symptoms. Dr. Dalenberg explained that appellant had a predominance of
dorsal foot pain and popping during his examination, which was not anatomically related to a tarsal
tunnel syndrome diagnosis, and he believed that performing the same surgery would not be
warranted, as the prior procedure had not been successful, and her current symptoms were not due
to tarsal tunnel syndrome. He noted that he had performed various procedures about the foot and
ankle and indicated that he had similar credentials to Dr. Howell. Dr. Dalenberg also noted that
he was called upon by OWCP to weigh in on whether the proposed surgery was for conditions
specified in the SOAF and whether such treatments were likely to be successful. He reiterated his
concern that, while distal release was an indication for revision tarsal tunnel release, it may not be
successful. Dr. Dalenberg also explained that the basis of his medical opinion was the fact that a
large part of appellant’s symptomatology (dorsal foot pain and popping) had nothing to do with
the accepted tarsal tunnel syndrome. He agreed with Dr. Howell that ligament reconstruction
around the talonavicular joint or fusion was not standard with this clinical presentation and
explained that this was mentioned in his prior report as ideas on how to address the dorsal foot
pain and popping. Dr. Dalenberg agreed with dorsal fragment excision but explained that the
procedure was unrelated to the accepted ankle sprain, and tarsal tunnel syndrome.
By decision dated February 25, 2020, OWCP again denied authorization of the requested
surgical procedures. It accorded the special weight of the medical to the opinion of Dr. Dalenberg,
the IME.
On March 4, 2020 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held telephonically on
June 11, 2020.
In a July 2, 2020 report, Dr. Howell indicated that he did not understand Dr. Dalenberg’s
opinion that appellant’s symptoms on the dorsum of the foot were unsubstantiated by her other
complaints. He explained that her dorsal foot pain was consistent with talonavicular spurring and
the numbness on the bottom of her foot was consistent with an incompletely released tarsal tunnel.
Dr. Howell opined that appellant had a reasonable chance of responding satisfactorily to the
proposed surgical procedure.
By decision dated August 21, 2020, OWCP’s hearing representative affirmed the
February 25, 2020 decision.
LEGAL PRECEDENT
Section 8103 of FECA 5 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 OWCP considers likely to cure, give relief, reduce

5

Supra note 2 at § 8103.

5

the degree, or the period of disability, or aid in lessening the amount of monthly compensation. 6
In interpreting section 8103 of FECA, the Board has recognized that OWCP has broad discretion
in approving services provided, with the only limitation on OWCP’s authority being that of
reasonableness. 7
While OWCP is obligated to pay for treatment of employment-related conditions, appellant
has the burden of proof to establish that the expenditure is incurred for treatment of the effects of
an employment-related injury or condition. 8 Proof of causal relationship in a case such as this
must include supporting rationalized medical evidence. 9 In order to prove that the procedure is
warranted, appellant must establish that the procedure was for a condition causally related to the
employment injury and that the procedure was medically warranted. Both of these criteria must
be met in order for OWCP to authorize payment. 10
FECA provides that, if there is disagreement between an OWCP-designated physician and
the employee’s physician, OWCP shall appoint a third physician who shall make an examination. 11
For a conflict to arise the opposing physicians’ viewpoints must be of virtually equal weight and
rationale.12 Where OWCP has referred the case to an IME to resolve a conflict in the medical
evidence, the opinion of such a specialist, if sufficiently well-reasoned and based upon a proper
factual background, must be given special weight. 13 If the IME is unable to clarify or elaborate on
his original report, or if his supplemental report is vague, speculative, or lacking in rationale,
OWCP shall refer appellant to a new IME.14
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for authorization of
additional surgery.
OWCP properly found that a conflict in medical opinion existed between Dr. Howell,
appellant’s attending physician, who recommended incision of foot fascia, decompression of tibia
nerve, partial removal of ankle/heel and partial removal of foot bone, and Dr. Johnson, the second
6

Id., see also N.G., Docket No. 18-1340 (issued March 6, 2019).

7

D.S., Docket No. 19-1698 (issued June 18, 2020); D.W., Docket No. 19-0402 (issued November 13, 2019); see
also Daniel J. Perea, 42 ECAB 214, 221 (1990) (holding that abuse of discretion by OWCP is generally shown
through proof of manifest error, clearly unreasonable exercise of judgment, or administrative actions which are
contrary to both logic, and probable deductions from established facts).
8

See R.M., Docket No. 19-1319 (issued December 10, 2019); Debra S. King, 44 ECAB 203, 209 (1992).

9

Id.; see also K.W., Docket No. 18-1523 (issued May 22, 2019); Bertha L. Arnold, 38 ECAB 282 (1986).

10

See T.A., Docket No. 19-1030 (issued November 22, 2019); Cathy B. Millin, 51 ECAB 331, 333 (2000).

11

5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; K.C., Docket No. 18-0378 (issued June 18, 2019).

12

Id.

13

J.H., Docket No. 19-0513 (issued September 24, 2019).

14

See C.E., Docket No. 19-1923 (issued March 30, 2021); M.S., Docket No. 18-1228 (issued March 8, 2019); R.H.,
Docket No. 17-1903 (issued July 5, 2018).

6

opinion physician, who opined that only the recommended decompression of the tibia nerve was
medically necessary and causally related to the accepted left tarsal tunnel syndrome.
Consequently, it referred her to Dr. Framjee, an IME, to resolve the conflict in medical opinion
pursuant to 5 U.S.C. § 8123(a). However, Dr. Framjee was unable to clarify or elaborate on his
original report in response to OWCP’s questions and it was unlikely that he would respond to an
additional request for clarification. OWCP, therefore, properly referred appellant to a new IME.15
It referred her to Dr. Dalenberg, serving as the new IME, to resolve the conflict in medical opinion.
The Board finds that the special weight of the medical evidence rests with the opinion of
Dr. Dalenberg, who examined appellant, reviewed the medical evidence, and found that the
authorization of additional surgery regarding decompression of tibial nerve was not medically
necessary and additional surgery involving incision of lef t foot fascia, partial removal of
ankle/heel, and partial removal of foot bone were not medically necessary, or causally related to,
the accepted left ankle sprain and left tarsal tunnel syndrome.
The record reflects that Dr. Dalenberg was provided with a SOAF, which listed the
accepted conditions and noted appellant’s June 23, 2015 surgery involved a left tarsal tunnel
release with neurolysis and left partial plantar fascia release. The left partial plantar fascia release
was not authorized by OWCP and was for a condition which OWCP had not accepted. 16
Dr. Dalenberg also provided a series of questions which specifically requested that he provide
medical rationale to support his opinion on the medical necessity for the proposed surgery
involving incision of foot fascia, decompression of tibia nerve, partial removal of ankle/heel, and
partial removal of foot bone.
In his December 21, 2018 report, Dr. Dalenberg opined that the proposed decompression
of the tibial nerve was not medically necessary as it had already been performed, it did not help or
had worsened appellant’s symptoms, and it would not fully address her objectively demonstrated
numbness. He opined, however, that the proposed incision of the plantar fascia, and the partial
removal of ankle/heel, and foot bone were not medically necessary or causally related to the
accepted left ankle sprain and left tarsal tunnel syndrome. Dr. Dalenberg explained that incision
of the plantar fascia was not medically necessary for a predominant complaint of dorsal pain and
foot/ankle popping and pain and, while removal of plantar calcaneal spurs was usually done in
conjunction with plantar fascia release, it would not appreciably improve appellant’s symptoms.
With regard to the proposed partial resection of bone/ossicle excision/partial removal of foot bone,
he explained that it was not medically necessary as appellant had a dorsal foot sprain which was
probably subtly unstable given her popping complaint and management was usually closed.
In response to Dr. Howell’s April 2, 2019 report, Dr. Dalenberg, in his November 21, 2019
report, reiterated that it was not medically warranted to repeat the tarsal tunnel release. He
explained that the results of the tarsal tunnel release was uncertain, noting literature documented
worse results with revision release, that the original surgery had not been successful, and that the
15

Id.

16

When an employee claims that, a condition not accepted or approved by OWCP was due to an employment
injury, he or she bears the burden of proof to establish that the condition is causally related to the employment injury.
See T.E., Docket No. 18-1595 (issued March 13, 2019); T.F., Docket No. 17-0645 (issued August 15, 2018); Jaja K.
Asaramo, 55 ECAB 200 (2004).

7

results could be compromised by adhesive neuritis and intraneural damage. Dr. Dalenberg further
indicated that appellant’s symptomatology (dorsal foot pain and popping) were from something
other than tarsal tunnel syndrome and was not anatomically related to the accepted tarsal tunnel
syndrome. The Board further notes that, while he agreed with the dorsal fragment excision and
that such removal was usually done in conjunction with plantar fascia release, he opined that the
procedure was not for a diagnosis in the SOAF and was unrelated to the accepted ankle sprain and
tarsal tunnel syndrome. As previously discussed, OWCP has not accepted an employment-related
plantar fasciitis condition and appellant has failed to meet her burden of proof to establish her
burden of proof.
In situations where the case is referred to an IME for the purpose of resolving a medical
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight. 17 The Board finds that Dr. Dalenberg provided
a well-rationalized opinion based on a complete background, his review of the SOAF, the medical
record, and his examination findings. Thus, Dr. Dalenberg’s opinion that the requested procedures
were not medically warranted for the accepted conditions is entitled to the special weight of the
evidence.18
The Board further finds that Dr. Howell’s reports, are insufficient to overcome the special
weight accorded to Dr. Dalenberg because reports from a physician who was on one side of a
medical conflict resolved by an IME are insufficient to overcome the special weight accorded the
report of the IME or create a new conflict. 19
The only limitation on OWCP’s authority in approving or denying service under FECA is
one of reasonableness. 20 OWCP obtained an impartial medical examination by Dr. Dalenberg who
opined that the requested surgical procedures were not med ically warranted for the accepted
conditions. It, therefore, had sufficient evidence upon to deny surgery and did not abuse its
discretion.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for authorization of
additional surgery.

17

See D.S., Docket No. 19-1698 (issued June 18, 2020); C.W., Docket No. 17-0918 (issued January 5, 2018);
Patricia J. Glenn, 53 ECAB 159 (2001).
18

See D.S., id., P.F., Docket No. 16-0693 (issued October 24, 2016).

19

J.M., Docket No. 18-1387 (issued February 1, 2019); D.M., Docket No. 17-1992 (issued September 12, 2018);
S.F., Docket No. 17-1427 (issued May 16, 2018).
20

See T.A., Docket No. 19-1030 (issued November 22, 2019); Cathy B. Millin, 51 ECAB 331, 333 (2000).

8

ORDER
IT IS HEREBY ORDERED THAT the August 21, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 9, 2022
Washington, DC

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

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

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

9


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

)
)
)
)
)
)
)
)

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

Docket No. 19-1783
Issued: March 30, 2020

Case Submitted on the Record

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

JURISDICTION
On August 22, 2019 appellant filed a timely appeal from an August 1, 2019 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 a medical condition
causally related to the accepted June 6, 2019 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The record provided to the Board includes evidence received after OWCP issued its August 1, 2019 decision.
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 June 14, 2019 appellant, then a 25-year-old mail carrier, filed a traumatic injury claim
(Form CA-1) alleging that on June 6, 2019 she sustained injuries to her right wrist, left knee, and
left leg when she was struck by a vehicle when she was crossing the street while in the performance
of duty. She stopped work on that same day.
In a June 20, 2019 development letter, OWCP advised appellant of the deficiencies of her
claim and afforded her 30 days to submit the necessary medical evidence and factual information.
Appellant submitted a June 10, 2019 medical report from Dr. Marvin Moy, Board-certified
in disaster medicine, noting pain in the right wrist, left knee, and left leg as a result of being hit by
a scooter when crossing the street on June 6, 2019. She was noted to present with difficulty bearing
weight and was referred for a magnetic resonance imaging (MRI) scan of the right wrist and left
knee.
OWCP also received a June 24, 2019 duty status report (Form CA-17) from Dr. Moy,
noting that appellant sustained an injury to her left leg and right wrist on June 6, 2019. Dr. Moy
provided work restrictions and diagnosed left knee and left leg sprains.
In an attending physician’s report (Form CA-20) of even date, Dr. Moy diagnosed right
wrist, left knee, and left leg sprains and checked a box marked “yes” indicating that appellant’s
conditions were caused or aggravated by an employment activity. He noted a period of total
disability from June 7 to July 15, 2019.
Appellant subsequently submitted a July 10, 2019 report by Lisa Gillespie, a nurse, which
indicated that she remained off work because of right wrist, left knee, and left leg sprains. It noted
that she was currently attending physical therapy.
In a July 11, 2019 note, Dr. Moy reported that appellant was currently under his care and
had been since June 10, 2019. He indicated that she was unable to return to work from July11 to
August 12, 2019.
By decision dated August 1, 2019, OWCP denied appellant’s claim. It found that while
she had established that the employment incident occurred as alleged, the evidence of record was
insufficient to establish a medical diagnosis in connection with the accepted incident. Thus,
OWCP concluded that the requirements had not been met to establish an injury as defined by
FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including 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

3

Supra note 1.

2

limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. 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 component is whether the employment incident
caused a personal injury and can be established only by medical evidence.7
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.8 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee.9
ANALYSIS
The Board finds, that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted June 6, 2019 employment incident.
Appellant submitted a June 10, 2019 medical report by Dr. Moy diagnosing pain in the
right wrist, left knee, and left leg. However, the Board has held that pain is a symptom and not a
compensable medical diagnosis.10 Further, the Board has held that medical reports which do not
provide a firm diagnosis or render an opinion on causal relationship are of no probative value and

4

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6
P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

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

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

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
10

I.M., Docket 19-1038 (issued January 23, 2020); R.C., Docket No. 19-0376 (issued July 15, 2019).

3

are insufficient to establish the claim.11 Accordingly, this report is insufficient to satisfy
appellant’s burden of proof to establish her claim.12
In a June 24, 2019 duty status report (Form CA-17), Dr. Moy diagnosed left knee and left
leg sprains. While his report contains diagnoses, it lacks any explanation of how the accepted
June 6, 2019 incident caused appellant’s left knee and left leg sprains. Without explaining
physiologically how the accepted employment incident caused or contributed to the diagnosed
conditions, Dr. Moy’s reports are of limited probative value.13 Accordingly, the Board finds that
the report is also insufficient to establish appellant’s claim.
In an attending physician’s report (Form CA-20) of even date, Dr. Moy diagnosed right
wrist, left knee, and left leg sprains and checked a box marked “yes” indicating that appellant’s
conditions were caused or aggravated by an employment activity. The Board has held, however,
that medical evidence on causal relationship that consists only of a physician checking “yes” to a
medical form question on whether the claimant’s condition was related to the history given is of
little probative value.14 Without any explanation or rationale for the conclusion reached, such
report is insufficient to establish causal relationship.15
The record also contains a report from Ms. Gillespie, a nurse, dated July 10, 2019. Health
care providers such as nurses, acupuncturists, physician assistants, and physical therapists are not
considered “physicians” as defined under FECA.16 Thus, the nurse report does not constitute
medical evidence and has no weight or probative value.17
As appellant has not submitted rationalized medical evidence explaining how her
diagnosed medical conditions are causally related to the accepted June 6, 2019 employment
incident, the Board finds that she has not met her burden of proof to establish her claim.18

11

V.U., Docket No. 19-0755 (issued November 25, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018);
D.K., No. 17-1549 (issued July 6, 2018).
12
T.G., Docket No. 19-0904 (issued November 25, 2019); L.D., Docket No. 17-1581 (issued January 23, 2018);
Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).
13

See J.G., Docket No. 19-1116 (issued November 25, 2019); E.G., Docket No. 19-0914 (issued October 18, 2019);
A.B., Docket No. 16-1163 (issued September 8, 2017).
14

S.F., Docket No. 16-1276 (issued October 10, 2017); N.L., Docket No. 17-0454 (issued April 6, 2017); Lillian M.
Jones, 34 ECAB 379, 381 (1982).
15

N.V., Docket No. 17-0107 (issued July 3, 2017); Deborah L. Beatty, 54 ECAB 334 (2003) (the checking of a box
marked yes in a form report, without additional explanation or rationale, is insufficient to establish causal relationship).
16

5 U.S.C. § 8102(2) of FECA provides that the term physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. See also P.A., supra note 6.; K.C., Docket No. 19-0834 (issued October 28, 2019).
17

P.A., id.; A.A., Docket No. 19-0957 (issued October 22, 2019); K.H., Docket No. 18-0036 (issued
September 16, 2016).
18

See E.G., supra note 13; Linda I. Sprague, 48 ECAB 386, 389-90 (1997).

4

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted June 6, 2019 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the August 1, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 30, 2020
Washington, DC

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

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

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

5