United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.N., Appellant
and
DEPARTMENT OF THE ARMY, FORT
HUNTER LIGGETT, Fort Hunter Liggett, CA,
Employer
__________________________________________

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

Docket No. 12-357
Issued: June 4, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 30, 2011 appellant filed a timely appeal from a June 2, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for a
hearing as untimely. Since more than 180 days elapsed from the most recent merit decision of
April 2, 2010 to the filing of this appeal, the Board lacks jurisdiction to review the merits of the
claim pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for an oral hearing as
untimely.
1
2

5 U.S.C. § 8101 et seq.

For OWCP decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal
of OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. See 20
C.F.R. §§ 501.2(c) and 501.3.

FACTUAL HISTORY
OWCP accepted that on September 2, 2008 appellant, then a 61-year-old recreation aid,
sustained a left shoulder and upper arm sprain as a result of lifting heavy materials during the
construction of a storage shed. He stopped work and returned to full-time light duty on
November 22, 2008.
Appellant submitted a request for disability compensation for the period October 25 to
November 19, 2008. He submitted medical reports from Rudy M. Garcia, a family practitioner,
and Lee M. Goldman, a Board-certified family practitioner, dated from October 15, 2008 to
December 17, 2009, as well as hospital records.
In a decision dated April 2, 2010, OWCP denied appellant’s claim for disability
compensation finding that the medical evidence failed to establish that he was disabled for work
due to the accepted September 2, 2008 work injury.
In a form postmarked March 31, 2011 and received by OWCP on April 5, 2011, appellant
requested an oral hearing. He provided a December 16, 2008 medical report by Mr. Garcia and
resubmitted several other progress reports.
By decision dated June 2, 2011, OWCP denied appellant’s request for an oral hearing on
the grounds that it was not timely filed. It found that his hearing request was postmarked
March 31, 2011, more than 30 days since the last OWCP decision was issued on April 2, 2010.
OWCP exercised its discretion by considering appellant’s hearing request and further denied it as
the issues involved could be addressed equally well pursuant to a valid request for
reconsideration and submitting evidence not previously considered to support his claim.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides that a claimant for compensation not satisfied with
a decision of the Secretary is entitled, on request made within 30 days after the date of the
issuance of the decision, to a hearing on his claim before a representative of the Secretary.3
Sections 10.617 and 10.618 of the federal regulations implementing this section of FECA
provide that a claimant shall be afforded a choice of an oral hearing or a review of the written
record by a representative of the Secretary.4 A claimant is entitled to a hearing or review of the
written record as a matter of right only if the request is filed within the requisite 30 days as
determined by postmark or other carrier’s date marking and before the claimant has requested
reconsideration.5 Although there is no right to a review of the written record or an oral hearing if
not requested within the 30-day time period, OWCP may within its discretionary powers grant or
deny appellant’s request and must exercise its discretion.6 OWCP procedures require that it
3

5 U.S.C. § 8124(b)(1).

4

20 C.F.R. §§ 10.616, 10.617.

5

Id. at § 10.616(a).

6

Eddie Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 ECAB 155 (1999).

2

exercise its discretion to grant or deny a hearing when the request is untimely or made after
reconsideration under section 8128(a).7
ANALYSIS
On April 2, 2010 OWCP denied appellant’s request for disability compensation.
Appellant requested an oral hearing in an appeal form dated March 29, 2011 and postmarked
March 31, 2011. It determined that his request was made more than 30 days after the date of
issuance of OWCP’s April 2, 2010 decision.
The Board finds that appellant was not entitled to a hearing as a matter of statutory right
under section 8124(b)(1) of FECA. The Board notes that appellant did not submit a written
request for an oral hearing by May 3, 2010, 30-calendar days after OWCP’s April 2, 2010
decision. Because his request was postmarked March 31, 2011, his request was untimely.
Although appellant’s request for a review of the written record was untimely, OWCP has
the discretionary authority to grant the request and it must exercise such discretion. In its June 2,
2011 decision, it properly exercised its discretion by notifying appellant that it had considered
the matter in relation to the issue involved and indicated that additional argument and evidence
could be submitted with a request for reconsideration. The Board has held that the only
limitation on OWCP’s authority is reasonableness and an abuse of discretion is generally shown
through proof of manifest error, a clearly unreasonable exercise of judgment or actions taken
which are contrary to both logic and probable deductions from established facts.8 The evidence
of record does not establish that OWCP abused its discretion in its denial of appellant’s request
for an oral hearing. On appeal, appellant asserts that the medical evidence demonstrated that he
remained off work until November 19, 2008 as a result of his accepted right shoulder sprain
injury. As stated, however, the Board does not have jurisdiction over the disability
compensation issue on the present appeal.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for an oral hearing as
untimely.9

7

See R.T., Docket No. 08-408 (issued December 16, 2008); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Hearings and Reviews of the Written Record, Chapter 2.1601.2(a) (October 2011).
8

Samuel R. Johnson, 51 ECAB 612 (2000).

9

The Board notes that appellant submitted additional evidence following the June 2, 2011 nonmerit decision.
Since the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision,
the Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57
ECAB 126 (2005). Appellant may submit that evidence to OWCP along with a request for reconsideration.

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 2, 2011 is affirmed.
Issued: June 4, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF THE ARMY, MEDICAL
COMMAND, Fort Benning, GA, Employer
__________________________________________

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

Docket No. 20-0882
Issued: June 23, 2021

Case Submitted on the Record

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

JURISDICTION
On March 16, 2020 appellant, through counsel, filed a timely appeal from a February 26,
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.
ISSUE
The issue is whether appellant has met his burden of proof to establish a medical condition
causally related to the accepted May 15, 2014 employment incident.

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.

FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On January 27, 2017 appellant, then a 55-year-old maintenance mechanic, filed a traumatic
injury claim (Form CA-1) alleging that on May 14, 2015 he injured his left elbow when he
overextended it while in the performance of duty. He did not stop work.
Appellant submitted medical reports and treatment notes dated May 15, 2015 through
April 6, 2016, wherein Dr. Phillip Hajeck and Dr. Benjamin Thomas, Board-certified orthopedic
surgeons, noted that appellant sought treatment for complaints of left elbow pain beginning in
August 2014. They diagnosed left upper extremity pain, left elbow pain, left medial epicondylitis,
left median nerve neuritis, left carpal tunnel syndrome, left cubital tunnel syndrome, and
hyperextension. OWCP also received a January 19, 2016 operative report, which indicated that
he underwent carpal and cubital tunnel release surgery.
By decision dated March 24, 2017, OWCP accepted that the May 14, 2015 employment
incident occurred, as alleged, but denied appellant’s traumatic injury claim because the evidence
of record did not include medical evidence containing a diagnosis in connection with the accepted
employment incident. It concluded, therefore, that the requirements had not been met to establish
an injury as defined by FECA.
On April 4, 2017 appellant requested a hearing before a representative of OWCP’s Branch
of Hearings and Review, which was held on October 12, 2017. He clarified that the date of injury
was May 15, 2014 and that he first sought medical treatment in August 2014.
By decision dated December 13, 2017, OWCP’s hearing representative modified the
March 24, 2017 decision to find that the medical evidence of record was sufficient to establish
medical diagnoses of left medial epicondylitis, left carpal tunnel syndrome, and left cubital tunnel
syndrome. The claim remained denied, however, as the medical evidence of record was
insufficient to establish causal relationship between the diagnosed conditions and the accepted
May 15, 2014 employment incident.
On July 3, 2018 appellant, through counsel, requested reconsideration and submitted an
April 3, 2018 report by Dr. Waldo E. Floyd, III, a Board-certified orthopedic surgeon. He
described the May 15, 2014 employment incident and opined that this history was consistent with
the diagnostic findings of a ruptured triceps tendon.
By decision dated October 3, 2018, OWCP denied modification of its prior decision.
Appellant filed an appeal before the Board. By decision dated June 18, 2019, the Board
affirmed the October 3, 2018 decision.4
3

Docket No. 19-0310 (issued June 18, 2019).

4

Supra note 3.

2

On January 6, 2020 appellant, through counsel, requested reconsideration.
In a December 30, 2019 report, Dr. Sami E. Moufawad, a Board-certified physical
medicine and rehabilitation and pain medicine specialist, noted the May 15, 2014 date of injury
and recounted that appellant was operating a hammer drill at work when the bit got caught and
caused him to overextend his left shoulder and elbow. He discussed the medical treatment that
appellant received, including three surgeries on his left elbow and wrist.5 Dr. Moufawad recounted
that appellant currently complained of burning and tingling in his left forearm from the elbow
down to the left ring and little fingers, weakness, numbness, and tingling of the left elbow, and
weak grip. Upon examination of appellant’s left upper extremity, he observed decreased sensation
to light touch on the ulnar aspect of the distal left forearm and ring and little fingers and decreased
sensory to sharp and dull discrimination in the left ulnar nerve distribution. Dr. Moufawad also
provided range of motion (ROM) findings for appellant’s left shoulder and elbow. He noted that
appellant was diagnosed with ulnar neuritis of the cubital tunnel and left triceps partial tear.
Dr. Moufawad explained that when the power drill got caught, the motor continued to
work, forcing appellant’s elbow and shoulder into hyperextension and abduction. He opined that,
“[t]hese conditions are all the results of the mechanism of injury, whereas his elbow was forced in
hyperflexion and abduction while holding the left handle of the hammer drill.” Dr. Moufawad
explained that with a wrist hyperextension injury, the median nerve must have been squeezed by
these tendons against the transverse carpal ligament, which resulted in the development of carpal
tunnel syndrome and median neuritis at the wrist. He also discussed the mechanism of injury of
how the hyperextension and abduction of appellant’s left upper extremity caused a stretching and
tear of appellant’s left triceps muscle. Dr. Moufawad requested that appellant’s claim be expanded
to include left carpal tunnel syndrome, left ulnar neuritis at the cubital tunnel, left medial
epicondylitis, and left triceps partial tear.
By decision dated February 26, 2020, OWCP denied modification.6
LEGAL PRECEDENT
An employee seeking benefits under FECA7 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
limitation of FECA,8 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

5

Dr. Moufawad also noted that appellant had retired due to disability, effective March 31, 2019.

6

OWCP noted that it was denying modification of the June 18, 2019 decision. However, OWCP has no jurisdiction
to review a Board decision. The decisions and orders of the Board are final as to the subject matter appealed and such
decisions and orders are not subject to review, except by the Board. See 20 C.F.R. § 501.6(d). The proper subject of
review was OWCP’s October 3, 2018 merit decision.
7

Supra note 2.

8
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).

3

employment injury.9 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.10
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, OWCP must first determine whether fact of injury has been established.11
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.12 Second, the employee must submit evidence, in the form
of probative medical evidence, to establish that the employment incident caused a personal
injury.13
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.14 The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factor(s) identified by the employee.15 The weight of the medical
evidence is determined by its reliability, its probative value, its convincing quality, the care of
analysis manifested, and the medical rationale expressed in support of the physician’s opinion.16
ANALYSIS
The Board finds that this case is not in posture for decision.
Preliminary, the Board notes that it is unnecessary for the Board to consider the evidence
that was previously considered in its June 18, 2019 decision, which found that appellant had not

9

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
10

R.R., Docket No. 19-0048 (issued April 25, 2019); 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).
11

D.B., Docket No. 18-1348 (issued January 4, 2019); S.P., 59 ECAB 184 (2007).

12

D.S., Docket No. 17-1422 (issued November 9, 2017); Bonnie A. Contreras, 57 ECAB 364 (2006).

13

B.M., Docket No. 17-0796 (issued July 5, 2018); David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB
354 (1989).
14

See S.A., Docket No. 18-0399 (issued October 16, 2018); see also Robert G. Morris, 48 ECAB 238 (1996).

15

M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41
ECAB 345 (1989).
16

James Mack, 43 ECAB 321 (1991).

4

met his burden of proof to establish his traumatic injury claim.17 Findings made in prior Board
decisions are res judicata, absent any further review by OWCP under section 8128 of FECA.18
Following OWCP’s October 3, 2018 decision, appellant submitted a December 30, 2019
report by Dr. Moufawad. He described the May 15, 2014 employment incident and discussed the
medical treatment that appellant had received. Dr. Moufawad provided examination findings and
noted that appellant was diagnosed with ulnar neuritis of the cubital tunnel and left triceps partial
tear. He explained that when the power drill got caught, the motor continued to work and forced
appellant’s elbow and shoulder into hyperextension and abduction. Dr. Moufawad opined that,
“[t]hese conditions are all the results of the mechanism of injury, whereas his elbow was forced in
hyperflexion and abduction while holding the left handle of the hammer drill.” He further
discussed the mechanism of injury of how hyperextension and abduction of appellant’s left upper
extremity contributed to appellant’s carpal tunnel syndrome, medial epicondylitis, and tear of his
left triceps muscle.
The Board finds that, while Dr. Moufawad’s report was not completely rationalized, it is
sufficient to require further development of the medical evidence.19 Dr. Moufawad accurately
described the May 15, 2014 employment incident and provided an explanation as to how the
hyperextension and abduction of appellant’s left upper extremity resulted in his diagnosed left
upper extremity conditions. Further, he is a Board-certified physician who is qualified in his field
of medicine to render an opinion on causal relationship. The Board has held that it is unnecessary
that the evidence of record in a case be so conclusive as to suggest causal connection beyond all
possible doubt. Rather, the evidence required is only that necessary to convince the adjudicator
that the conclusion drawn is rational, sound, and logical.20 Although Dr. Moufawad’s opinion is
insufficiently rationalized to establish causal relationship, it does raise an uncontroverted inference
regarding causal relationship between the diagnosed condition and the accepted employment
incident sufficient to require that OWCP further develop the medical evidence in the claim.21
It is well established that proceedings under FECA are not adversarial in nature and, while
appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.22 OWCP has an obligation to see that justice is
done.23

17

Docket No. 19-310, supra note 3.

18

G.B., Docket No. 19-1448 (issued August 21, 2020); E.B., Docket No. 17-1497 (issued March 19, 2019);
Robert G. Burns, 57 ECAB 657 (2006).
19

See E.G., Docket No. 20-1184 (issued March 1, 2021).

20

W.M., Docket No. 17-1244 (issued November 7, 2017); E.M., Docket No. 11-1106 (issued December 28, 2011).

21

J.H., Docket No. 18-1637 (issued January 29, 2020); D.S., Docket No. 17-1359 (issued May 3, 2019); William J.
Cantrell, 34 ECAB 1223 (1983).
22

E.G., Docket No. 19-1296 (issued December 19, 2019); A.P., Docket No. 17-813 (issued January 3, 2018);
Jimmy A. Hammons, 51 ECAB 219 (1999).
23
See B.C., Docket No. 15-1853 (issued January 19, 2016); E.J., Docket No. 09-1481 (issued February 19, 2010);
John J. Carlone, 41 ECAB 354 (1989).

5

On remand, OWCP shall refer appellant, the case record, and a statement of accepted facts
to a specialist in the appropriate field of medicine for an evaluation and a well-rationalized opinion
as to whether his diagnosed left upper extremity conditions are causally related to the accepted
May 15, 2014 employment incident. If the physician opines that the diagnosed conditions are not
causally related to the employment incident, he or she must provide a rationalized explanation as
to why their opinion differs from that articulated by Dr. Moufawad. After this and other such
further development of the case record as OWCP deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the February 26, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: June 23, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bethesda, MD, Employer
__________________________________________

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

Docket No. 08-1651
Issued: December 5, 2008

Case Submitted on the Record

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

JURISDICTION
On May 23, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated May 14, 2008 denying an additional schedule
award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of this case.
ISSUE
The issue is whether appellant has more than an eight percent permanent impairment to
his right leg.
FACTUAL HISTORY
The case was before the Board on a prior appeal. In a decision dated September 29,
2003, the Board set aside a December 3, 2002 Office decision and remanded the case for further
development. The Board noted that the Office did not explain why it selected a diagnosis-based
leg impairment rating of two percent rather than an eight percent anatomic rating for thigh

atrophy. The history of the case is provided in the Board’s prior decision and is incorporated
herein by reference.
By decision dated March 10, 2004, the Office issued a schedule award for an additional
six percent permanent impairment to the right leg. The period of the award was 23.04 weeks
commencing October 1, 2001.
In a report dated December 11, 2006, Dr. Irvin Guterman, an attending orthopedic
surgeon, opined that appellant had a 10 percent right leg permanent impairment. He explained
that appellant had an eight percent impairment for thigh atrophy, and a two percent impairment
for a partial lateral meniscectomy.
An Office medical adviser reviewed the evidence and opined in a February 13, 2008
report that appellant’s right leg impairment was eight percent. The medical adviser explained
that impairment for atrophy could not be combined with a diagnosis-based meniscectomy
impairment.
By decision dated May 14, 2008, the Office determined that appellant was not entitled to
an additional schedule award.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act provides that, if there is
permanent disability involving the loss or loss of use of a member or function of the body, the
claimant is entitled to a schedule award for the permanent impairment of the scheduled member
or function.1 Neither the Act nor the regulations specify the manner in which the percentage of
impairment for a schedule award shall be determined. For consistent results and to ensure equal
justice for all claimants, the Office has adopted the American Medical Association, Guides to the
Evaluation of Permanent Impairment as the uniform standard applicable to all claimants.2
ANALYSIS
The A.M.A., Guides uses anatomic, functional and diagnosis-based assessments to
evaluate leg impairments. An impairment based on muscle atrophy is an anatomic assessment
based on Table 17-6,3 while an impairment for partial lateral meniscectomy is a diagnosis-based
method under Table 17-33.4 The A.M.A., Guides specifically provide at Table 17-2, that the
evaluator should not combine both muscle atrophy with a diagnosis-based impairment.5
1

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
2

A. George Lampo, 45 ECAB 441 (1994).

3

A.M.A., Guides 530, Table 17-6.

4

Id. at 546, Table 17-33.

5

Id. at 526, Table 17-2.

2

Dr. Guterman opined that appellant had a 10 percent right leg impairment, combining an
8 percent muscle atrophy impairment with a 2 percent impairment for the partial lateral
meniscectomy. The Office medical adviser properly found that the A.M.A., Guides preclude
these two evaluation methods from being combined. The Board accordingly finds the Office
properly determined that appellant does not have greater than the eight percent impairment
previously received.
CONCLUSION
The evidence does not establish more than an eight percent permanent impairment to the
right leg.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 14, 2008 is affirmed.
Issued: December 5, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, Fresno, CA,
Employer
__________________________________________

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

Docket No. 18-1298
Issued: April 12, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On June 19, 2018 appellant, through counsel, filed a timely appeal from an April 27, 2018
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 April 27, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish more than nine
percent permanent impairment of the left lower extremity, for which he previously received a
schedule award.
FACTUAL HISTORY
On June 24, 2011 appellant, then a 43-year-old file clerk, filed a traumatic injury claim
(Form CA-1) alleging that, on June 22, 2011, he sustained a left upper thigh injury as a result of
loading a trailer when his shoe gripped on the trailer floor and he felt a pull in his upper thigh while
in the performance of duty. He stopped work on June 23, 2011. OWCP initially accepted the
claim for left hip and thigh sprain as well as left-sided pain in joint, pelvic region and thigh. It
later expanded the accepted conditions to include anterior labral tear of the left hip based on a
March 19, 2012 second opinion report from Dr. Alice Martinson, a Board-certified orthopedic
surgeon. Appellant underwent OWCP-authorized left hip surgeries on November 15, 2012 and
January 8, 2014. He returned to full-time modified-duty work effective January 5, 2017.
In a February 1, 2017 report based on his examination of January 17, 2017, Dr. Sanjay J.
Chauhan, a Board-certified neurologist, provided a rating of permanent impairment and advised
that appellant’s lower extremity functional scale of 16/80 was suggestive of at least a moderate
degree of difficulty overall due to his hip condition. Based upon the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides)4 for
the diagnosis of trochanteric bursitis he found a class 1 default value of seven percent and assigned
grade modifiers of 2 for functional history (GMFH), 2 for clinical studies (GMCS), and 2 for
physical examination (GMPE) resulting in nine percent left lower extremity permanent
impairment. For the diagnosis of labral tear, applying the same grade modifiers Dr. Chauhan
found three percent left lower extremity permanent impairment. For the diagnoses of tenosynovitis
and left hip chromic strain, which he noted were “lumped together” on page 514, Table 16-4, he
found a class 1 diagnosis of five percent, which using the same grade modifiers resulted in seven
percent left lower extremity permanent impairment. The combined values of the ratings were 20
percent permanent impairment of the left lower extremity.
On April 13, 2017 appellant filed a claim for a schedule award (Form CA-7).
In a letter dated April 25, 2017, OWCP advised appellant that it was referring the schedule
award determination and report of Dr. Chauhan to its district medical adviser (DMA) for review
of his calculations. It requested that he provide a detailed narrative medical report based on a
recent examination that included a date of maximum medical improvement (MMI). Appellant was
afforded 30 days to respond.
On April 27, 2017 Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving as a
DMA, reviewed the medical evidence of record and found that Dr. Chauhan’s impairment
evaluation could not be accepted as probative for the purpose of recommending a schedule award
because he used Table 16-4 for three separate diagnoses. He explained that, according to page 497
of the sixth edition of the A.M.A., Guides, “If a patient has two significant diagnoses, for instance,
4

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

2

ankle instability and posterior tibial tendinitis, the examiner should use the diagnosis with the
highest causally-related impairment rating for the impairment calculation.”
Dr. Katz found that appellant’s most impairing diagnosis was chronic trochanteric bursitis.
He noted that the lesser impairments of labral tear and tenosynovitis were duplicative and,
therefore, not considered. Dr. Katz concurred with Dr. Chauhan’s calculation that appellant had a
class 1 diagnosis for chronic trochanteric bursitis and a GMFH of 2 due to his functional scale
score of 16/80, representing moderate degree of difficulty. He also concurred with Dr. Chauhan’s
finding of a GMPE of 2 due to appellant’s range of motion (ROM) deficit, motor strength deficit,
status postsurgery, and antalgic gait, and a GMCS of 2 due to appellant’s abnormal clinical studies
suggestive of a moderate problem. Dr. Katz concluded that appellant had nine percent permanent
impairment of the left lower extremity based on Dr. Chauhan’s February 1, 2017 report and opined
that appellant reached MMI on January 17, 2017, the date of Dr. Chauhan’s examination upon
which the report was based.
In a supplemental report dated April 28, 2017, Dr. Chauhan indicated that appellant had
reached MMI as of February 18, 2015 and again opined that appellant had 20 percent permanent
impairment of the left lower extremity for his accepted diagnosis of left hip sprain, trochanteric
bursitis of left hip, left hip tenosynovitis, and left hip internal derangement. He noted no
preexisting permanent impairment.
In an additional supplemental report dated July 1, 2017, Dr. Chauhan revisited his
impairment calculation and referred to Chapter 16.7, page 543, which states that “[ROM]
determination is [an] essential component of [lower extremity] LE impairment rating with strong
historical precedent.” He provided ROM measurements of the left lower extremity and opined
that appellant had 30 percent permanent impairment for his left hip dysfunction.
On August 10, 2017 Dr. Katz reviewed the medical evidence and explained that the
A.M.A., Guides provides on page 497 (Chapter 16) that “[ROM] is primarily used as a physical
examination adjustment factor and is only used to determine actual impairment values when it is
not possible to otherwise define impairment.” He reiterated his opinion that the use of Table 164, the Hip Regional Grid, was the appropriate method for determination of impairment in
appellant’s case and the key diagnostic factors in that table took loss of ROM into consideration
as a factor. Dr. Katz noted that in his prior report, Dr. Chauhan utilized Table 16-4 for “hip strain,
moderate motion deficit,” finding seven percent permanent impairment of the left lower extremity.
The DMA concluded that his selection of the key diagnostic factor of trochanteric bursitis resulted
in the higher impairment and was, therefore, utilized as it was beneficial to appellant to do so and
consistent with the A.M.A., Guides methodology.
By decision dated August 16, 2017, OWCP granted appellant a schedule award for nine
percent permanent impairment of the left lower extremity, relying on the reports from
Drs. Chauhan and Katz. The award covered 25.92 weeks for the period January 17 to July 17,
2017 (and a fraction of a day).
On August 23, 2017 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
A telephonic hearing was held on February 13, 2018. Appellant provided testimony and
the hearing representative held the case record open for 30 days for the submission of additional
3

evidence. Following the hearing, appellant submitted a February 15, 2018 progress report from
Dr. Chauhan that did not provide an opinion on the issue of permanent impairment.
By decision dated April 27, 2018, the hearing representative affirmed the prior schedule
award decision, finding that Dr. Katz represented the weight of the medical evidence.
LEGAL PRECEDENT
The schedule award provisions of FECA5 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 scheduled member shall be
determined. For consistent results and to ensure equal justice, OWCP has adopted the A.M.A.,
Guides as the uniform standard for evaluation of schedule losses and the Board has concurred in
such adoption.6 For decisions issued after May 1, 2009, the sixth edition is used to calculate
schedule awards.7
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).8 In evaluating lower extremity impairments, the sixth edition requires
identifying the impairment class for the diagnosed condition (CDX), which is then adjusted by
grade modifiers based on GMFH, GMPE, and GMCS.9 The net adjustment formula is (GMFH CDX) + (GMPE - CDX) + (GMCS - CDX). Evaluators are directed to provide reasons for their
impairment rating choices, including the choices of diagnoses from regional grids and calculations
of modifier scores.10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish more than nine
percent permanent impairment of his left lower extremity, for which he previously received a
schedule award.
In support of his schedule award claim, appellant submitted a February 1, 2017 report from
Dr. Chauhan indicating that an impairment rating for his accepted diagnoses was calculated based
on his examination of January 17, 2017. Dr. Chauhan opined that appellant had 9 percent
permanent impairment based on his trochanteric bursitis condition, 3 percent permanent
5

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

6

20 C.F.R. § 10.404; see also B.W., Docket No. 18-1415 (issued March 8, 2019); Bernard A. Babcock, Jr., 52
ECAB 143 (2000).
7

See D.T., Docket No. 12-0503 (issued August 21, 2012); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Schedule Awards and Permanent Disability Claims, Chapter 2.808.6.6a (March 2017); see also Part 3 -- Medical,
Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
8
A.M.A., Guides (6th ed., 2009), p.3, section 1.3, International Classification of Functioning, Disability and Health
(ICF): A Contemporary Model of Disablement.
9

Id. at 494-531.

10

See R.V., Docket No. 10-1827 (issued April 1, 2011).

4

impairment based on his labral tear, and 7 percent permanent impairment based on his
tenosynovitis and left hip chronic strain, which converted to a total of 20 percent permanent
impairment of the left lower extremity.
In a supplemental report dated April 28, 2017, Dr. Chauhan revised his earlier findings and
indicated that appellant had reached MMI as of February 18, 2015 and he had 20 percent
permanent impairment of the left lower extremity. In a second supplemental report dated July 1,
2017, he revisited his impairment calculation using the ROM method and opined that appellant
had 30 percent permanent impairment for his left hip dysfunction.
In accordance with its procedures, OWCP referred the evidence of record to a DMA,
Dr. Katz, who reviewed the clinical findings of Dr. Chauhan and determined that appellant had
nine percent permanent impairment of the left lower extremity based upon Dr. Chauhan’s
objective findings. He further determined that appellant’s date of MMI was January 17, 2017, the
date of Dr. Chauhan’s examination upon which his impairment rating was based. Dr. Katz
concurred with Dr. Chauhan that appellant’s most impairing diagnosis was chronic trochanteric
bursitis, which was a class 1 diagnosis. He also concurred with Dr. Chauhan’s grade modifiers of
2 for functional history (GMFH), physical examination (GMPE), and clinical studies (GMCS).
Dr. Katz disagreed, however, that appellant’s impairment rating should be based on the
ROM method. He explained, in his August 10, 2017 report, that the A.M.A., Guides provide that
loss of ROM is primarily used as a physical examination adjustment factor and is only used to
determine actual impairment values when it is not possible to otherwise define impairment.
Dr. Katz concluded that the use of Table 16-4, the Hip Regional Grid, was an appropriate method
for determination of impairment in appellant’s case and the key diagnostic factors in that table
took into consideration appellant’s loss of ROM as a factor. He explained that his selection of the
key diagnostic factor of trochanteric bursitis resulted in the higher impairment and was, therefore,
utilized as it was beneficial to appellant to do so and consistent with the A.M.A., Guides
methodology.
The Board finds that Dr. Katz adequately explained how he arrived at his rating of
permanent impairment by listing specific tables and pages in the A.M.A., Guides. The Board also
finds that Dr. Katz properly interpreted and applied the standards of the sixth edition of the
A.M.A., Guides to conclude that appellant qualified for nine percent permanent impairment of the
left lower extremity. Dr. Katz’ opinion therefore represents the weight of the medical evidence
and supports that appellant does not have a greater left lower extremity impairment than the nine
percent previously awarded.
The Board finds that there is no current medical evidence of record, in conformance with
the sixth edition of the A.M.A., Guides, establishing that appellant has more than nine percent
permanent impairment of the left lower extremity. Accordingly, appellant has not established
entitlement to a schedule award greater than that previously awarded.11

11
FECA provides for reduction of compensation for subsequent injury to the same body member. It provides that
schedule award compensation is reduced by the compensation paid for an earlier injury where the compensation in
both cases are for impairment of the same member or function and where it is determined that the compensation for
the later disability in whole or part would duplicate the compensation payable for the preexisting disability. 5 U.S.C.
§ 8108; 20 C.F.R. § 10.404(c).

5

Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish more than nine
percent permanent impairment of the left lower extremity, for which he previously received a
schedule award.
ORDER
IT IS HEREBY ORDERED THAT the April 27, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 12, 2019
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.A., Appellant
and
TENNESEE VALLEY AUTHORITY, HEAVY
EQUIPMENT, Muscle Shoals, AL, Employer
__________________________________________

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

Docket No. 09-1551
Issued: January 21, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On June 1, 2009 appellant filed a timely appeal from a May 22, 2009 merit decision of
the Office of Workers’ Compensation Programs denying his hearing loss claim. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly denied appellant’s claims as untimely under
section 8122 of the Federal Employees’ Compensation Act.
FACTUAL HISTORY
On December 23, 2008 appellant, a 61-year-old truck driver, filed an occupational
disease claim (Form CA-2) for a hearing loss. He alleged that he first realized his condition and
that it was caused by his employment on November 5, 2008. Appellant’s date of last exposure
was October 16, 1994.
By letters dated December 24, 2008, the Office requested that appellant and the
employing establishment provide further factual and medical information. The employing

establishment was specifically requested to provide copies of all medical examination reports
pertaining to hearing loss.
In response to the Office’s request, appellant submitted a record of his employment
history, including results from an audiogram dated November 5, 2008.
In a telephone memorandum dated May 20, 2009, the Office noted a conversation held on
that day with the employing establishment, requesting “medical from TVA Health Unit.” The
memorandum noted that “they will try to get any available medical records to us asap! I asked
that these be sent within the next week.”
By decision dated May 22, 2009, the Office denied the claim because it was not timely
filed. It found that appellant should have been aware of the relationship between his hearing loss
and his employment by the date of his last exposure, October 16, 1994.
LEGAL PRECEDENT
The Act1 provides that the United States shall pay compensation as specified by this
subchapter for disability or death of an employee resulting from personal injury sustained while
in the performance of duty.2 A claimant seeking compensation under the Act must establish the
essential elements of his claim, including that he was an employee within the meaning of the
Act.3
Section 8122(a) of the Act states that an original claim for compensation for disability or
death must be filed within three years after the injury or death.4 Section 8122(b) provides that, in
latent disability cases, the time limitation does not begin to run until the claimant is aware or by
the exercise of reasonable diligence should have been aware, of the causal relationship between
the employment and the compensable disability.
The statute provides an exception to the three-year limit for filing, which states that a
claim may be regarded timely if an immediate superior had actual knowledge of the injury within
30 days.5 The Board has held that a program of annual audiometric examinations conducted by
an employing establishment may constructively establish actual knowledge of a hearing loss
such as to put the immediate supervisor on notice of an on-the-job injury.6

1

5 U.S.C. §§ 8101-8193.

2

Id. at § 8102(a).

3

Tim G. Baysinger, 54 ECAB 762 (2003).

4

5 U.S.C. § 8122(a).

5

Id. at § 8122(a).

6

Roger D. Dicus, 56 ECAB 290 (2005).

2

ANALYSIS
Appellant’s date of last exposure was October 16, 1994 and appellant alleges he has not
been exposed to hazardous noise since 1994. He alleges that he did not become aware of his
hearing loss until November 5, 2008. The Board finds this case is not in posture for decision.
Although it is the burden of appellant to establish his or her claim, the Office also has a
responsibility in the development of the factual evidence, particularly when such evidence is of
the character normally obtained from the employing establishment or other government source.7
Once the Office has begun investigation of a claim, it must pursue the evidence as far as
reasonably possible, particularly when such evidence is in the possession of the employing
establishment and is, therefore, more readily accessible to the Office.8
In this case, the Office requested by letter dated December 24, 2008 that the employing
establishment submit all medical records pertaining to appellant’s hearing loss or problems. It
followed up by telephone conference on May 20, 2009 and requested that the employing
establishment submit these records within a week, the employer informed the Office that it
would submit the records as soon as possible. Nonetheless, the Office however denied the claim
two days later. As such, the Office did not “pursue the evidence as far as reasonably possible.”
The employing establishment health unit medical records pertaining to hearing
examinations are necessary in this case because these records can establish whether appellant
knew or should have known of his hearing loss prior to 2008. These records can assist the Office
in determining whether the employing establishment had notice of appellant’s hearing loss prior
to his retirement in 1994.
Therefore, the Office’s May 22, 2009 decision is set aside and the case remanded. On
remand the Office, following whatever further development it deems appropriate, shall issue a de
novo decision evaluating the medical evidence of record.9
CONCLUSION
The Board finds that the case is not in posture for decision.

7

R.E., 59 ECAB ___ (Docket No. 07-1604, issued January 17, 2008); Truda Lee Murray Moles, 7 ECAB
791 (1956).
8

Marco A. Padilla, 51 ECAB 202, 208 (1999); Leon C. Collier, 37 ECAB 378, 379 (1986).

9

Further evidence was received by the Office subsequent to the May 22, 2009 decision. The Board’s review is
limited to the evidence in the case record that was before the Office at the time of its final decision. 20 C.F.R.
§ 501.2(c).

3

ORDER
IT IS HEREBY ORDERED THAT the May 22, 2009 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further development consistent
with this decision of the Board.
Issued: January 21, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.Q., Appellant
and
GOVERNMENT SERVICES
ADMINISTRATION, Washington, DC,
Employer
__________________________________________

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

Docket No. 11-1127
Issued: May 14, 2012

Case Submitted on the Record

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

JURISDICTION
On April 5, 2011 appellant filed a timely appeal from a March 14, 2011 merit decision of
the Office of Workers’ Compensation Programs (OWCP) which affirmed a decision terminating
his compensation benefits. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.2
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s
compensation benefits for his accepted injury effective August 1, 2010.

1
2

5 U.S.C. §§ 8101-8193.

OWCP also issued June 22 and July 8, 2010 decisions denying claims for intermittent wage loss. Appellant has
not appealed these decisions.

FACTUAL HISTORY
On October 26, 1979 appellant, then a 29-year-old temporary carpenter, was injured
when he was lifting a sheet of drywall. OWCP accepted the claim for lumbosacral strain.
Appellant stopped work on December 13, 1979, returned on January 4, 1980, stopped again on
March 2, 1980 and returned again on April 14, 1980. He was separated from his job on June 20,
1980 and did not return.3 Appellant received wage-loss compensation.
From March 16, 1982 to June 24, 1992, appellant was treated by Dr. Denis R. Harris, a
Board-certified orthopedic surgeon, for low back pain related to injuries sustained at work on
June 19, 1978 and October 26, 1979. Dr. Harris diagnosed sciatica, spondylolisthesis and
ruptured disc causally related to the work injury of October 26, 1979. Appellant was also treated
by Dr. Alvaro A. Sanchez, a Board-certified orthopedist, from September 23, 1981 to August 22,
1983, for low back pain subsequent to the work injury in 1979. Dr. Sanchez diagnosed
spondylolysis at L5-S1. Appellant was referred for vocational rehabilitation in 1988 and
obtained a certificate in computer technology from a community college but did not return to
work.
Appellant came under the treatment of Dr. Mark H. Henderson, Jr., a Board-certified
orthopedist, on April 4, 2006, who noted a history of appellant’s 1979 work injury. Examination
revealed normal range of motion of the back, negative impingement sign and normal reflexes,
sensation and strength. X-rays showed spondylosis and a small herniated disc at L4-5.
Dr. Henderson diagnosed chronic disability with sciatica, lumbar spondylosis and petit mal
seizure. He opined that because of appellant’s age and seizure disorder it was unlikely he could
be gainfully employed and was totally disabled.
OWCP referred appellant to Dr. Kevin F. Hanley, a Board-certified orthopedic surgeon,
for a second opinion. In a June 25, 2009 report, Dr. Hanley noted the history of the 1978 and
1979 injuries. He advised that examination revealed a normal gait, no limp, no evidence of
scoliosis or spasm and no neurological compromise. Dr. Hanley diagnosed history of
musculoligamentous straining injury to the lumbar spine. He noted that appellant had a
lumbosacral strain 30 years prior that resolved and did not lead to long-term disability.
Dr. Hanley stated that a review of the record suggested that appellant could perform his work
duties after the injury. Appellant no longer had residuals of his work injury and was at
maximum medical improvement. Dr. Hanley indicated that appellant had not been treated by a
physician regularly since the 1980’s or require additional treatment. He opined that appellant’s
current condition was related to 30 years of bodily neglect, petit mal epilepsy and fractures to the
femur and tibia which combined to make appellant unfit for duty and unemployable. Dr. Hanley
noted no objective factors of disability were directly related to the accepted industrial accidents
nor were the subjective complaints related to his work injury. He found that the work injury of
1979 was no longer a disabling factor and there were no restrictions on his activity as a
consequence of the injury. Dr. Hanley noted that appellant was capable of returning to his prior
3

On June 19, 1978 appellant sustained a traumatic injury when he was thrown from a truck and OWCP accepted
lumbosacral myoligamentous strain in connection with the incident, File No. xxxxxx378. OWCP consolidated this
case with the current claim before the Board.

2

occupation as a carpenter. He opined that appellant was unemployable for reasons other than his
industrial injury and recommended vocational rehabilitation.
On September 4, 2009 OWCP issued a notice of proposed termination of compensation
benefits based on Dr. Hanley’s report.
Appellant submitted letters dated September 17 to 25, 2009, and disputed the proposed
termination of compensation asserting that OWCP’s referral physician did not perform a medical
examination, a procedure or test before rendering an opinion. He indicated that Dr. Hanley
merely provided an opinion based on the review of his medical file. Appellant contended that
Dr. Hanley was biased and not competent to render an opinion on his disability and his benefits
should not be terminated based on his report. He asserted that evidence from his treating
physician, Dr. Henderson, confirmed that he had residuals of his work injury. Appellant
submitted an April 4, 2006 report from Dr. Henderson, previously of record.
By decision dated June 28, 2010, OWCP terminated appellant’s compensation benefits
effective August 1, 2010. It found that Dr. Hanley’s report represented the weight of the medical
evidence and established that he had no continuing residuals of his accepted injuries.
On July 27, 2010 appellant requested a review of the written record. He submitted letters
to his representatives dated July 13 to August 16, 2010 disputing the findings of Dr. Hanley.
Appellant submitted reports dated January 14 to May 7, 1981 from Dr. Saad Kassen, a Boardcertified orthopedist, who treated appellant for back pain and radiculopathy. Also submitted
were reports from Dr. Sanchez dated September 21, 1981 to August 22, 1983 and Dr. Harris
dated August 25, 1983 to June 9, 1994, who treated appellant for his work-related back injury
and diagnosed spondylolysis at L5-S1 related to his 1979 employment injury. Reports dated
March 8 to June 10, 1993 from Dr. Keith Segalman, a Board-certified orthopedist, noted
appellant’s treatment for a hand injury. A June 11, 1993 report from Dr. Edward Rabbitt, a
Board-certified internist, noted that appellant could return to work full time with restrictions.
Appellant submitted a June 21, 2010 report from Dr. Henderson who noted seeing appellant that
date after previously evaluating him in 2006 when he was considered permanently disabled.
Dr. Henderson noted that appellant stopped driving 15 years prior. He opined that, given
appellant’s age of 60, long-term disability and susceptibility to seizures which were not treatable,
appellant was not a candidate for rehabilitation but was totally disabled.
In a decision dated August 17, 2010, OWCP denied appellant’s request for a review of
the written record as not timely filed.
In a letter dated August 31, 2010, appellant asserted that he timely filed his request for a
review of the written record and provided a certified mail receipt. He submitted Dr. Henderson’s
April 4, 2006 and June 21, 2010 reports, previously of record. Appellant also submitted a
correspondence to his congressional representatives and an Equal Employment Opportunity
(EEO) decision, finding that he was unlawfully discriminated against based on race when he was
separated from employment on June 20, 1980.
In a decision dated December 14, 2010, OWCP vacated the August 17, 2010 decision
finding that appellant’s request for a review of the written record was timely filed.

3

In a decision dated March 14, 2011, an OWCP hearing representative affirmed the
June 28, 2010 OWCP decision.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation benefits.4 After it has determined that an employee has disability causally
related to his or her federal employment, OWCP may not terminate compensation without
establishing that the disability has ceased or that it is no longer related to the employment.5 The
right to medical benefits for an accepted condition is not limited to the period of entitlement for
disability. To terminate authorization for medical treatment, OWCP must establish that a
claimant no longer has residuals of an employment-related condition, which require further
medical treatment.6
ANALYSIS
OWCP accepted appellant’s claim for a lumbar strain and also for a lumbosacral
myoligamentous strain. On June 3, 2009 OWCP referred appellant for a second opinion
evaluation to Dr. Hanley, an orthopedist. In his report dated June 25, 2009, Dr. Hanley noted an
essentially normal physical examination and diagnosed history of musculoligamentous straining
injury to the lumbar spine. He noted that appellant sustained a lumbosacral strain 30 years ago
which resolved and did not lead to long-term disability. Dr. Hanley opined that appellant no
longer had residuals of this injury and was a maximum medical improvement and required no
additional treatment for his work injury. He noted that the work injury of 1979 was no longer
disabling factor and there were no restrictions on his activity as a consequence of the injury and
appellant was capable of returning to his prior occupation as a carpenter. Dr. Hanley opined that
appellant’s current condition was related to 30 years of bodily neglect, petit mal epilepsy and
fractures to the femur and tibia which combine to make appellant unfit for duty and
unemployable at this time unrelated to his industrial injury. He found no basis on which to
attribute any continuing condition or disability to the accepted injuries.
Thereafter, appellant submitted an April 4, 2006 report from Dr. Henderson, who noted
an essentially normal examination and diagnosed chronic disability with sciatica, lumbar
spondylosis and petit mal seizure. Dr. Henderson opined that because of appellant’s age and
seizure disorder it was unlikely he could be gainfully employed and was totally disabled.
Similarly, in a June 21, 2010 report, he opined that given appellant’s age, long-term disability
and susceptibility to seizures, appellant was not a candidate for rehabilitation, but was totally
disabled. However, none of Dr. Henderson’s reports specifically provide new medical reasoning
to explain how any continuing condition or disability was causally related to the 1978 and 1979
accepted low back sprains. Rather, he opined that appellant’s disability was related to his age
and seizure disorder which were not work related.
4

Gewin C. Hawkins, 52 ECAB 242 (2001); Alice J. Tysinger, 51 ECAB 638 (2000).

5

Mary A. Lowe, 52 ECAB 223 (2001).

6

Id.; Leonard M. Burger, 51 ECAB 369 (2000).

4

Other medical reports from Dr. Kassen dated January 14 to May 7, 1981, Dr. Sanchez
dated September 21, 1981 to August 22, 1983, and Dr. Harris dated August 25, 1983 to June 9,
1994, Dr. Keith Segalman, a Board-certified orthopedist, dated March 8 to June 10, 1993, and
Dr. Rabbitt dated June 11, 1993, significantly predate the termination of benefits and
consequently fail to address whether any continuing condition or disability was causally related
to the October 26, 1979 work injury.
The Board finds that the opinion of Dr. Hanley represents the weight of the evidence and
establishes that appellant’s work-related conditions have resolved. Dr. Hanley indicated that
appellant did not have residuals from the condition of lumbar strain and had no restrictions due
to the work injury, rather, indicated that appellant was disabled due to conditions unrelated to his
industrial injury. There is no contemporaneous medical evidence of equal weight supporting
appellant’s claim for continuing disability and medical residuals.
For these reasons, OWCP met its burden of proof in terminating appellant’s benefits for
his accepted conditions.
On appeal appellant disagreed with the findings of the second opinion physician and
asserted that he was permanently disabled from work due to his accepted lumbar strain. He
indicated that Dr. Henderson’s reports supported his claim but were not properly considered by
OWCP. The Board notes that in order for OWCP to terminate benefits it must establish that a
claimant no longer has residuals of an employment-related condition, which required further
medical treatment. As noted above, appellant’s treating physician, Dr. Henderson, did not
specifically provide new medical reasoning to explain how any continuing condition or disability
was causally related to the accepted work injuries that involved low back sprains. Rather, he
opined that appellant’s disability was related to his age and seizure disorder and not to his workrelated lumbar condition. OWCP subsequently referred appellant to Dr. Hanley, a referral
physician, who found that appellant’s work-related lumbar sprain had resolved. There is no
medical evidence contemporaneous with the termination of benefits which supports that
appellant has continuing residuals or disability due to the accepted low back sprains. OWCP met
its burden of proof to terminate benefits.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.7
CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate benefits effective
August 1, 2010.

7

Appellant requested oral argument before the Board which was scheduled for March 1, 2012. However, he did
not appear for the scheduled oral argument.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 14, 2011 is affirmed.
Issued: May 14, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Merrifield, VA, Employer
__________________________________________

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)

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

Docket No. 19-0966
Issued: September 18, 2019

Case Submitted on the Record

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

JURISDICTION
On April 4, 2019 appellant filed a timely appeal from a November 28, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed since the last merit decision, dated May 11, 2018, to the filing of this appeal, pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction to review the merits of this case.
ISSUE
The issue is whether OWCP properly determined that appellant abandoned her request for
a telephonic hearing before an OWCP hearing representative.
FACTUAL HISTORY
On April 9, 2018 appellant, then a 24-year-old city carrier assistant, filed a traumatic injury
claim (Form CA-1) alleging that on March 27, 2018 she sustained head, left hand, and left leg
1

5 U.S.C. § 8101 et seq.

injuries when a bus sideswiped her vehicle as she was securing her seatbelt while in the
performance of duty. She first received medical care and stopped work on the date of the incident.
By development letter dated April 9, 2018, OWCP advised appellant of the factual and
medical deficiencies of her claim and instructed her as to the additional information necessary to
establish her claim. It also provided a questionnaire for her completion. OWCP afforded appellant
30 days to respond.
OWCP thereafter received medical evidence documenting appellant’s treatment from
March 28 through May 8, 2018. However, no response to the development questionnaire was
received.
By decision dated May 11, 2018, OWCP denied appellant’s traumatic injury claim, finding
that the evidence of record failed to establish that the March 27, 2018 employment incident
occurred as alleged. It concluded, therefore, that the requirements had not been met to establish
an injury as defined by FECA.
On June 7, 2018 appellant requested a telephonic hearing with a representative of OWCP’s
Branch of Hearings and Review. In support of her claim, she submitted additional medical
evidence.
By letter dated October 11, 2018, OWCP’s hearing representative notified her that in
response to her request, OWCP’s Branch of Hearings and Review had scheduled a telephonic
hearing for November 15, 2018 at 11:15 a.m. Eastern Standard Time (EST). The hearing notice
was mailed to appellant’s last known address2 and she was provided with a toll-free number to call
and the appropriate passcode. Appellant did not, however, call in for the hearing at the appointed
time. She also did not contact OWCP’s Branch of Hearings and Review within 10 days thereafter
to explain her failure to appear.
By decision dated November 28, 2018, OWCP’s Branch of Hearings and Review
determined that appellant had abandoned her request for a telephonic hearing.
LEGAL PRECEDENT
A claimant who has received a final adverse decision by OWCP may obtain a hearing by
writing to the address specified in the decision within 30 days of the date of the decision for which
a hearing is sought.3 Unless otherwise directed in writing by the claimant, the hearing
representative will mail a notice of the time and place of the hearing to the claimant and any

2

By letter dated June 11, 2018, OWCP acknowledged appellant’s change of address.

3

20 C.F.R. § 10.616(a).

2

representative at least 30 days before the scheduled date.4 OWCP has the burden of proving that
it properly mailed to a claimant and any representative of record a notice of a scheduled hearing.5
A claimant who fails to appear at a scheduled hearing may request in writing, within 10
days after the date set for the hearing, that another hearing be scheduled. Where good cause for
failure to appear is shown, another hearing will be scheduled and conducted by teleconference.
The failure of the claimant to request another hearing within 10 days, or the failure of the claimant
to appear at the second scheduled hearing without good cause shown, shall constitute abandonment
of the request for a hearing.6
ANALYSIS
The Board finds that OWCP properly determined that appellant abandoned her request for
a telephonic hearing before an OWCP hearing representative.7
Following OWCP’s May 11, 2018 initial decision denying appellant’s traumatic injury
claim, she filed a timely request for a telephonic hearing before a representative of OWCP’s
Branch of Hearings and Review. By letter dated October 11, 2018, a hearing representative
notified appellant that, in response to her request, OWCP’s Branch of Hearings and Review had
scheduled a telephonic hearing for November 15, 2018 at 11:15 a.m., EST. OWCP properly
mailed the hearing notice to appellant’s last known address of record.8 Appellant failed to call in
for the scheduled hearing using the provided telephone number. She did not request a
postponement or provide an explanation to OWCP for her failure to attend the hearing within 10
days of the scheduled hearing.9 The Board thus finds that OWCP properly determined that
appellant abandoned her request for a telephonic hearing.10
CONCLUSION
The Board finds that OWCP properly determined that appellant abandoned her request for
a telephonic hearing before an OWCP hearing representative.

4

Id. at § 10.617(b).

5

W.H., Docket No. 18-0369 (issued November 29, 2018).

6
20 C.F.R. § 10.622(f); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written
Record, Chapter 2.1601.6(g) (October 2011). See also A.J., Docket No. 18-0830 (issued January 10, 2019); L.B.,
Docket No. 18-0533 (issued August 27, 2018).
7

M.R., Docket No. 18-1643 (issued March 1, 2019).

8

Absent evidence to the contrary, a letter properly addressed and mailed in the ordinary course of business is
presumed to have been received. This is called the mailbox rule. See C.Y., Docket No. 18-0263 (issued
September 14, 2018). Appellant did not submit evidence of nondelivery of OWCP’s October 11, 2018 hearing notice
such that the presumption of receipt would be rebutted.
9

E.S., Docket No. 19-0567 (issued August 5, 2019).

10

A.J., supra note 6.

3

ORDER
IT IS HEREBY ORDERED THAT the November 28, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 18, 2019
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.D., Appellant
and
DEPARTMENT OF THE ARMY, RESERVE
OFFICERS TRAINING CORPS, Norman, OK,
Employer
__________________________________________

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Appearances:
Brooke Rich, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-1037
Issued: January 12, 2011

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 March 3, 2010 appellant filed a timely appeal from an October 28, 2009 merit
decision of the Office of Workers’ Compensation Programs and a nonmerit decision dated
January 5, 2010. Pursuant to 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 sustained a left shoulder injury in the performance
of duty on June 24, 2009; and (2) whether the Office properly refused to reopen appellant’s case
for reconsideration under 5 U.S.C. § 8128.
FACTUAL HISTORY
Appellant, a 29-year-old cadet, filed a claim for benefits on August 12, 2009, alleging
that he injured his left shoulder on June 24, 2009 while sliding down an exercise rope. He
submitted an August 14, 2009 treatment slip from Oklahoma Sport and Orthopedics Institute.

Appellant was examined on August 11, 2009 and diagnosed with a superior labrum anterior to
posterior (SLAP) lesion of the left shoulder and a left rotator cuff strain.
By letter dated September 21, 2009, the Office advised appellant that it required additional
factual and medical evidence to determine whether he was eligible for compensation benefits. It
asked him to submit a comprehensive medical report from a treating physician describing his
condition with an opinion as to whether it was causally related to the employment incident. The
Office requested that appellant submit the evidence within 30 days.
In an August 11, 2009 report, Dr. Richard Kirkpatrick, a Board-certified orthopedic
surgeon, advised that appellant injured his left shoulder about six weeks prior while engaged in a
rope course exercise. Appellant continued to engage in activities with the Reserve Officers
Training Corps (ROTC) and experienced pain and discomfort in the left shoulder with occasional
popping. On examination, he had full range of motion and a mildly positive Neer impingement
sign, with some mild tenderness over his acromioclavicular (AC) joint and over the anterior
aspect of his shoulder. Appellant advised that x-ray results were relatively normal in the
glenohumeral joint but showed some mild AC joint arthritis. Dr. Kirkpatrick diagnosed a
possible labral pathology versus rotator cuff tendinitis/bursitis. He scheduled appellant for a
magnetic resonance imaging (MRI) scan.
In a September 15, 2009 report, Dr. Kirkpatrick stated that a left shoulder MRI scan
showed partial surface injury to the supraspinatus with some impingement and AC joint arthritis.
He diagnosed a SLAP lesion and impingement of the rotator cuff. Dr. Kirkpatrick did not see a
large labral component and administered a subacromial injection.
In an October 15, 2009 report, Chris Travis a physician’s assistant, related appellant’s
complaints of left shoulder pain and soreness.
In a decision dated October 28, 2009, the Office denied appellant’s claim. It found that he
failed to submit sufficient medical evidence to support a left shoulder injury on June 24, 2009
due to the accepted incident.
On November 19, 2009 appellant requested reconsideration.
In August 28, 2009 report, Mr. Travis advised that appellant sustained a left shoulder
labral tear. Medical evidence previously of record was also submitted.
By decision dated January 5, 2010, the Office denied appellant’s request for review on the
ground that it did not raise any substantive legal questions or included new and relevant evidence
sufficient to require further merit review.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing that the essential elements of his or her claim including the fact that the
1

5 U.S.C. § 8101-8193.

2

individual is an “employee of the United States” within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained in
the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.2 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.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
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.4 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused an injury.5 The medical evidence required to
establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.6
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.7
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.8 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
ANALYSIS -- ISSUE 1
The Office accepted that appellant descended an exercise rope on June 24, 2009. The
question of whether the employment incident caused his left shoulder condition must be

2

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

3

Victor J. Woodhams, 41 ECAB 345 (1989).

4

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

5

Id. The term “[traumatic] injury,” is defined at 20 C.F.R. § 10.5(ee).

6

Carlone, supra note 4.

7

See Joe T. Williams, 44 ECAB 518, 521 (1993).

8

Id.

3

established by probative medical evidence.9 Appellant has not submitted sufficient medical
evidence to establish that the June 24, 2009 employment incident caused the claimed injury.
Appellant submitted reports from Dr. Kirkpatrick, who stated that appellant experienced
pain on the lateral side of his left shoulder while engaged in a June 24, 2009 rope course
exercise. He had pain, discomfort and some occasional popping in his left shoulder, which
worsened with activity. On September 15, 2009 Dr. Kirkpatrick advised that a left shoulder MRI
scan showed a SLAP lesion, impingement of the rotator cuff and a partial surface injury to his
supraspinatus with some AC joint arthritis.
The weight of medical opinion is determined by the opportunity for and thoroughness of
examination, the accuracy and completeness of physician’s knowledge of the facts of the case,
the medical history provided, the care of analysis manifested and the medical rationale expressed
in support of stated conclusions.10 Although Dr. Kirkpatrick provided a diagnosis of appellant’s
condition, he did not adequately address how this condition was caused by the June 24, 2009
incident on which appellant slid down a rope. The medical reports of record did not explain how
appellant sustained a SLAP lesion/tear while descending an exercise rope on June 24, 2009.
Dr. Kirkpatrick’s report on causal relationship is of limited probative value in that he did not
provide adequate medical rationale in support of his opinion.11 He did not describe appellant’s
accident in any detail or how the accident would have been competent to cause the claimed left
SLAP lesion/tear. Dr. Kirkpatrick’s opinion is generalized in nature and equivocal in that he
briefly concluded that appellant’s condition was causally related to the June 24, 2009 work
incident. There is insufficient rationalized evidence of record. The reports from Mr. Travis, a
physician’s assistant, have no probative value. Reports from a physician’s assistant are not
considered medical evidence as a physician’s assistant is not a physician as defined under the
Act.12 Therefore, appellant failed to provide sufficient evidence addressing how the work
incident of June 24, 2009 caused or contributed to the claimed lower back injury.
The Office advised appellant of the evidence required to establish his claim; however, he
failed to submit such evidence. Appellant did not provide a medical opinion which describes or
explains the medical process through which the June 24, 2009 work accident would have caused
the claimed injury. Accordingly, he did not establish that he sustained a left shoulder injury in
the performance of duty. The Office properly denied appellant’s claim for compensation.
LEGAL PRECEDENT -- ISSUE 2
Pursuant to 20 C.F.R. § 10.606(b), a claimant may obtain review of the merits of his or
her claim by showing that the Office erroneously applied or interpreted a specific point of law;
by advancing a relevant legal argument not previously considered by the Office; or by submitting

9

Carlone, supra note 4.

10

See Anna C. Leanza, 48 ECAB 115 (1996).

11

William C. Thomas, 45 ECAB 591 (1994).

12

See 5 U.S.C. § 8101(a); Ricky S. Storms, 52 ECAB 349 (2001).

4

relevant and pertinent evidence not previously considered by the Office.13 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.14
ANALYSIS -- ISSUE 2
In the present case, appellant has not shown that the Office erroneously applied or
interpreted a specific point of law; nor has he advanced a relevant legal argument not previously
considered by the Office. The evidence he submitted is not pertinent to the issue on appeal. The
Board has held that the submission of evidence which does not address the particular issue
involved in the case does not constitute a basis for reopening the claim.15 Appellant submitted a
Form CA-16 dated from Mr. Travis, a physician’s assistant. As noted a physician’s assistant is
not a physician and the report does not constitute medical evidence under section 8101(2).
Appellant has not submitted any relevant medical evidence addressing the issue of whether he
sustained a left shoulder injury in the performance of duty on June 24, 2009. The medical
reports previously of record were considered by the Office in the decision denying his claim.
This evidence is therefore cumulative and duplicative.16 Appellant’s reconsideration request
failed to show that the Office erroneously applied or interpreted a point of law nor did it advance
a point of law or fact not previously considered by the Office. The Office did not abuse its
discretion in refusing to reopen his claim for a review on the merits.17
CONCLUSION
The Board finds that appellant has failed to establish that he sustained a left shoulder
injury in the performance of duty on June 24, 2009. The Board finds that the Office properly
refused to reopen his case for reconsideration on the merits of his claim under 5 U.S.C.
§ 8128(a).

13

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

14

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

15

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

16

See Patricia G. Aiken, 57 ECAB 441 (2006).

17

The Board notes that appellant submitted additional evidence to the record following the July 16, 2008 Office
decision. The Board’s jurisdiction is limited to a review of evidence which was before the Office at the time of its
final review. 20 C.F.R. § 501(c).

5

ORDER
IT IS HEREBY ORDERED THAT the January 5, 2010 and October 28, 2009
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: January 12, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board

___________________________________________
)
)
)
and
)
)
DEPARTMENT OF AGRICULTURE, FOREST )
SERVICE, Yreka, CA, Employer
)
___________________________________________ )
S.D., Appellant

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

Docket No. 08-503
Issued: June 16, 2008

Case Submitted on the Record

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

On November 28, 2007 appellant filed a timely appeal of an August 13, 2007 decision of
the Office of Workers’ Compensation Programs which found that she did not sustain an injury in
the performance of duty. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof in establishing that she sustained
an injury in the performance of duty on July 15, 2005.
FACTUAL HISTORY
On July 18, 2005 appellant, then a 23-year-old forestry service technician, filed a
traumatic injury claim alleging that on July 15, 2005 she hit uneven ground and sustained an
injury to her left knee while in the performance of duty. She did not initially stop work.
By letter dated July 9, 2007, the Office advised appellant that additional factual and
medical evidence was needed. It provided her 30 days to submit the requested information.

The Office then received a February 19, 2007 report from Dr. Ronald D. Wobig, a Boardcertified orthopedic surgeon, who indicated that appellant had a previous history of an anterior
cruciate ligament (ACL) tear of her left knee in 1999 which was surgically repaired. He advised
that she had recovered until she sustained an injury two years later in a basketball game and tore
her ACL reconstruction and underwent surgery at that time. Dr. Wobig noted that appellant had
recently reinjured herself despite conservative management and there was some concern that she
might have a meniscal tear. On March 22, 2007 he performed a left knee arthroscopic medial
meniscectomy with intracondylar notch osteophyte excision.
In an August 3, 2007 statement, appellant described her activities on the date of injury.
She alleged that she was cutting juniper trees on a mountain and, while walking down a slope on
uneven terrain, she felt her knee slip and it later swelled. Additionally, appellant noted that she
had prior knee injuries, which included two previous tears of her ACL and surgery. She stated
that she first sought medical treatment for her condition in October 2005. Additionally, the
Office received an athletic training medical history form from appellant dated October 20, 2005.
By decision dated August 13, 2007, the Office denied appellant’s claim. The Office
found that the evidence was sufficient to show that the claimed event occurred on July 15, 2005.
However, the Office found that there was insufficient medical evidence supporting that the
accepted employment incident caused a diagnosed condition.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act2 and that an injury was
sustained in the performance of duty.3 These are the essential elements of each compensation
claim, regardless of whether the claim is predicated upon a traumatic injury or an occupational
disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred. The second
component is whether the employment incident caused a personal injury and generally this can
be established only by medical evidence.5

1

5 U.S.C. §§ 8101-8193.

2

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

3

James E. Chadden, Sr., 40 ECAB 312 (1988).

4

Delores C. Ellyett, 41 ECAB 992 (1990).

5

See John J. Carlone, 41 ECAB 354, 357 (1989).

2

The employee must also submit sufficient evidence, generally only in the form of medical
evidence, to establish that the employment incident caused a personal injury.6 The medical
evidence required to establish causal relationship is usually rationalized medical evidence.
Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant.7
ANALYSIS
Appellant alleged that she was walking on uneven surfaces and sustained an injury to her
left knee in the performance of duty on July 15, 2005. The Office accepted that the claimed
event, walking on uneven surfaces, occurred in the performance of duty at work. The Office
found and the Board agrees that the claimed incident, walking on uneven surfaces at work,
occurred in the performance of duty at work.
However, the medical evidence is insufficient to establish that the employment incident
caused an injury. The medical reports of record do not establish that walking on uneven surfaces
at work caused a personal injury on July 15, 2005. The medical evidence contains no reason or
explanation of how the specific employment incident on July 15, 2005 caused or aggravated an
injury.8
Appellant submitted a February 19, 2007 report from Dr. Wobig, who noted her previous
history of ACL tears from 1999 and then two years later in a basketball game. While Dr. Wobig
noted that appellant had recently reinjured herself and had a possible meniscal tear, he did not
mention the July 15, 2005 employment incident and address how this incident caused or
aggravated a particular medical condition. The Office also received a March 22, 2007 operative
report from Dr. Wobig, who performed a left knee arthroscopic medial meniscectomy with
intracondylar notch osteophyte excision. However, Dr. Wobig did not offer any opinion on
causal relationship between the diagnosed condition and the July 15, 2005 employment incident.9
Appellant did not submit any other medical evidence that specifically addressed how the
July 15, 2005 incident caused or aggravated a diagnosed medical condition. Consequently, she
has submitted insufficient medical evidence to establish that the July 15, 2005 incident caused an
injury.
6

Id. For a definition of the term “traumatic injury,” see 20 C.F.R. § 10.5(ee).

7

Id.

8

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
9

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006) (medical evidence which does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).

3

CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
sustained an injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the August 13, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued:
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4