United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.L., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Aurora, IL,
Employer
__________________________________________

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

Docket No. 15-0832
Issued: July 28, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 3, 2015 appellant filed a timely appeal from a February 19, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant established entitlement to continuation of pay.
FACTUAL HISTORY
On November 8, 2014 appellant, then a 50-year-old mail handler, initiated a traumatic
injury claim (Form CA-1) alleging that he strained his lower back while moving postal
equipment on the same date. Appellant’s supervisor signed the form on December 12, 2014 and
1

5 U.S.C. § 8101 et seq.

advised that notice of injury was also received on December 12, 2014. Appellant stopped work
on November 8, 2014 and began receiving continuation of pay on November 9, 2014.2
In a November 8, 2014 statement accompanying the claim, appellant asserted that he felt
a twinge in his lower back while dispatching letters.
In a November 10, 2014 report, Dr. Michael Collins, a Board-certified internist, noted
examining appellant on November 8, 2014. He advised that appellant was injured when he was
pushing a cart on November 8, 2014. Dr. Collins diagnosed low back strain and indicated that
appellant could only perform modified work.
In a January 12, 2015 decision, OWCP accepted appellant’s claim for low back strain. It
requested appellant to provide evidence to support whether written notice of injury was given
within 30 days of injury, as the evidence indicated that the employing establishment was not
informed until December 12, 2014.
Appellant submitted additional evidence, but he did not provide any further evidence
regarding whether the employing establishment was given earlier written notice of his injury.
In a February 19, 2015 decision, OWCP denied appellant’s request for continuation of
pay, finding that the injury was not reported on an appropriate form within 30 days of the injury.
The decision specified that it only concerned entitlement to continuation of pay and did not
affect appellant’s entitlement to other compensation benefits.
LEGAL PRECEDENT
Section 8118 of FECA3 provides for payment of continuation of pay, not to exceed 45
days, to an employee who has filed a claim for a period of wage loss due to traumatic injury with
his or her immediate supervisor on a form approved by the Secretary of Labor within the time
specified in section 8122(a)(2) of this title. Section 8122(a)(2) provides that written notice of
injury must be given as specified in section 8119. The latter section provides in part that notice
of injury shall be given in writing within 30 days of the injury.4 Claims that are timely under
section 8122 are not necessarily timely under section 8118(a). FECA authorizes continuation of
pay for an employee who has filed a valid claim for traumatic injury.5 Section 8118(a) makes
continuation of pay contingent on the filing of a written claim within 30 days of the injury.

2

The Board notes that two different versions of the first page of the traumatic injury claim form were submitted
to OWCP by the employing establishment. One contains appellant’s signature, but is essentially illegible. The other
lists the date of injury and the date of notice as November 8, 2014, and contains a handwritten notation that it was
completed “for clarity purposes only.”
3

5 U.S.C. § 8118.

4

Id. at § 8119(a), (c); see also Gwen Cohen-Wise, 54 ECAB 732 (2003).

5

Id. at § 8118(a).

2

When an injured employee makes no written claim for a period of wage loss within 30 days, he
or she is not entitled to continuation of pay, notwithstanding prompt notice of injury.6
Section 10.205 of OWCP regulations provide in pertinent part that to be eligible for
continuation of pay, a person must: (1) have a traumatic injury which is job related and the
cause of the disability, and/or the cause of lost time due to the need for medical examination and
treatment; (2) file Form CA-1 within 30 days of the date of the injury; and (3) begin losing time
from work due to the traumatic injury within 45 days of the injury.7
ANALYSIS
Appellant filed a traumatic injury claim on November 8, 2014 for an injury sustained that
date. However, appellant’s supervisor noted that he did not receive the claim form until
December 12, 2014, more than 30 days after appellant’s November 8, 2014 injury. In OWCP’s
January 12, 2015 decision, it requested appellant to submit evidence of an earlier written claim.
No evidence was received by OWCP which supports an earlier written notice. The evidence of
record establishes that appellant did not file his claim within 30 days from the date of injury, as
required by section 10.205(a)(2) of OWCP’s regulations.8 The Board therefore finds that
appellant is not entitled to continuation of pay.
On appeal, appellant submitted documentation indicating that he began receiving wageloss compensation in January 2015.9 The Board’s jurisdiction in this appeal is limited to
appellant’s continuation of pay claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant is not entitled to continuation of pay.

6

See P.R., Docket No. 08-2239 (issued June 2, 2009); see also W.W., 59 ECAB 533 (2008).

7

20 C.F.R. § 10.205(a).

8

See Guy W. Adkins, Docket No. 94-177 (issued on June 6, 1995) (finding that the notice of traumatic injury
claim form was “filed,” for continuation of pay purposes, on the date reflected in the official supervisor’s report).
9

Appellant submitted new evidence on appeal. 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. The Board has no jurisdiction to review
evidence submitted for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

3

ORDER
IT IS HEREBY ORDERED THAT the February 19, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 28, 2015
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, Dallas, TX,
Employer
__________________________________________

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

Docket No. 15-0425
Issued: March 14, 2016

Case Submitted on the Record

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

JURISDICTION
On December 16, 2014 appellant timely appealed the November 20, 2014 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on or about
March 31, 2014.
FACTUAL HISTORY
Appellant, a 60-year-old contact representative, filed a claim (Form CA-2) for bilateral
carpal tunnel syndrome (CTS) that allegedly arose in the performance of duty on or about
1

5 U.S.C. §§ 8101-8193.

March 31, 2014. She realized that her condition was employment related when performing
everyday duties required wearing a brace on both hands.
Appellant’s position description indicated that she worked in an office setting and was
required to sit for long periods of time, talk over the telephone using a headset, have face-to-face
contact, do light lifting, and read information from a computer screen or input using a keyboard.
Dr. Jeff X. Zhao, an orthopedic surgeon, examined appellant on May 1, 2014 for
complaints of bilateral hand pain, left greater than right. Appellant’s current complaints dated
back six months. Dr. Zhao also noted a prior history of bilateral CTS in the late 1990s that was
treated conservatively. In recent months, appellant noted increased weakness in her upper
extremities, as well as pain, mostly on the left side. She awakened at night because of her
symptoms. Dr. Zhao conducted a physical examination and obtained x-rays of both hands. He
diagnosed bilateral CTS and recommended electrodiagnostic testing to assess the severity of
appellant’s condition. Dr. Zhao noted that appellant was employed in the service industry, but
did not comment on her specific employment duties or otherwise address the etiology of her
bilateral CTS.
The results of a May 19, 2014 bilateral upper extremity electromyography and nerve
conduction study (EMG/NCV) were consistent with carpal tunnel syndrome.
During a May 29, 2014 follow-up appointment, Dr. Zhao reexamined appellant and
reviewed the recent EMG/NCV results. He diagnosed bilateral CTS, left greater than right, and
recommended conservative treatment, including left wrist corticosteroid injection therapy, which
appellant tolerated well. Dr. Zhao instructed her to return for follow-up in eight weeks.
In a July 9, 2014 development letter, OWCP explained the basic elements to establishing
a claim under FECA. It advised appellant that the evidence submitted thus far did not include an
employment-related diagnosis. There was no evidence that appellant’s CTS was either caused or
aggravated by her employment. OWCP also inquired about the specific employment duties that
appellant believed contributed to her claimed condition. The attached questionnaire asked that
she describe all duties that required exertion or repeated movement of the wrist or hand. OWCP
also inquired about the frequency and duration of the implicated employment activities.
Additionally, appellant was asked to provide information about any personal activities outside
her federal employment, and to describe all previous injuries involving her hands, arms, or
wrists. OWCP afforded her 30 days to submit the requested information.
On July 28 and August 22, 2014 appellant wrote to OWCP requesting that she be
permitted to change physicians. Her stated reason for the change was that Dr. Zhao refused to
complete appellant’s workers’ compensation forms.
In an August 27, 2014 decision, OWCP denied appellant’s occupational disease claim.
Appellant did not provide a clear statement detailing specific work factors that she believed

2

caused her condition. OWCP noted that she did not complete and return the July 9, 2014
questionnaire. Accordingly, it found that appellant failed to establish fact of injury.2
Appellant timely requested reconsideration.
In an August 29, 2014 narrative statement, appellant described the employment duties she
believed caused her bilateral CTS. She indicated she worked in a call center and 95 percent of
all activities were executed via computer. Appellant worked full time; eight hours a day, five
days a week. She described constant manipulation of her fingers/hands through typing and/or
the use of a computer mouse. Upon signing onto her computer/telephone each day, calls
automatically came through and, for each tax payer, appellant had to input his/her personal
information to access the taxpayer’s account. After inputting individual taxpayer information
into her computer, appellant would perform research using various tools and programs, initiate
contract agreements, adjust or modify account information, record all actions performed and the
reason(s) for such actions, and then close the taxpayer’s account. Appellant stated there was
virtually no down time between calls. As soon as one taxpayer disconnected, another caller was
automatically routed to the open line, and the same above-described actions were more or less
repeated depending on the complexity of the particular call. Appellant stated that while
performing her daily duties, she began experiencing increased discomfort and pain in her wrists
and hands, which made it difficult to perform her required tasks. She obtained wrist splints,
which she wore during the day while working. However, splinting provided only temporary
relief, and the pain and tingling returned and progressed throughout appellant’s arms and
shoulders, at which point she sought medical attention. Appellant stated that her injury could not
have come from any nonoccupational source because she had not engaged in any sports, hobbies,
or outside activities.
In a November 20, 2014 merit decision, OWCP denied the claim because appellant failed
to establish that her bilateral carpal tunnel syndrome was causally related to her accepted
employment exposure.
LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of establishing the essential
elements of her claim by the weight of the reliable, probative, and substantial evidence, including
that an injury was sustained in the performance of duty as alleged and that any specific condition
or disability claimed is causally related to the employment injury.3
2

In a separate letter also dated August 27, 2014, OWCP advised appellant that given her claim was denied, she
was free to select any physician she wanted to treat her claimed condition.
3

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is a
medical question, which generally requires rationalized medical opinion evidence to resolve the issue. See
Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on whether there is a causal relationship between
the diagnosed condition and the implicated employment factors must be based on a complete factual and medical
background. Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical rationale,
explaining the nature of the relationship between the diagnosed condition and appellant’s specific employment
factors. Id.

3

To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
and (3) medical evidence establishing that the diagnosed condition is causally related to the
identified employment factors.4
ANALYSIS
Appellant alleged that her bilateral carpal tunnel syndrome is due to her daily
employment activities as a contact representative. The record indicates a prior history of
bilateral CTS in the late 1990s which was treated conservatively. OWCP initially denied
appellant’s claim on the basis that she had not provided specific details regarding the
employment activities she believed either caused or contributed to her bilateral carpal tunnel
syndrome. Since then, appellant provided an August 29, 2014 statement describing her various
contact representative duties. She explained that she was a full-time employee and 95 percent of
her daily work activities were executed via computer. Appellant described her work as involving
constant manipulation of her fingers/hands through typing and/or the use of a computer mouse.
The contact representative position description noted, inter alia, that the job required sitting for
long periods of time, talking over the telephone, and computer input using a keyboard. OWCP’s
latest decision found that appellant established the factual component of her claim with respect to
the alleged occupational exposure. There was also evidence of a medical diagnosis; bilateral
carpal tunnel syndrome. However, OWCP denied appellant’s claim on the basis that her carpal
tunnel syndrome was not shown to be employment related.
The relevant medical evidence consists of Dr. Zhao’s May 1 and 29, 2014 progress notes,
as well as the May 19, 2014 EMG/NCV results. Appellant’s electrodiagnostic test results do not
address the etiology of her carpal tunnel syndrome. Dr. Zhao’s May 2014 progress notes are
similarly insufficient. Although he was aware appellant worked in the service industry, he did
not demonstrate any particular knowledge of her duties as a contact representative. Moreover,
Dr. Zhao did not specifically comment on the cause of appellant’s bilateral carpal tunnel
syndrome. On July 9, 2014 OWCP advised appellant that the above-noted evidence was
insufficient to satisfy her burden. However, she did not submit the requested medical
questionnaire or submit additional medical evidence.
The mere fact that a condition manifests itself during a period of employment is not
sufficient to establish causal relationship.5 Temporal relationship alone will not suffice.6
Furthermore, appellant’s personal belief that her employment activities either caused or
contributed to her condition is insufficient, by itself, to establish causal relationship.7
Accordingly, the Board finds that the medical evidence of record fails to establish that her
4

Victor J. Woodhams, supra note 3.

5

20 C.F.R. § 10.115(e).

6

See D.I., 59 ECAB 158, 162 (2007).

7

20 C.F.R. § 10.115(e); Phillip L. Barnes, 55 ECAB 426, 440 (2004).

4

bilateral carpal tunnel syndrome is causally related to her accepted occupational exposure as a
contact representative.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision.8
CONCLUSION
The medical evidence fails to establish that appellant’s bilateral carpal tunnel syndrome is
employment related. Consequently, appellant has not shown that she sustained an injury in the
performance of duty on or about March 31, 2014.
ORDER
IT IS HEREBY ORDERED THAT the November 20, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.9
Issued: March 14, 2016
Washington, DC

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

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

8

5 U.S.C. § 8128(a); 20 C.F.R. §§ 10.605 - 10.607.

9

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
DEPARTMENT OF THE AIR FORCE, ELGIN
AIR FORCE BASE, FL, Employer
__________________________________________

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

Docket No. 09-2344
Issued: August 25, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 25, 2009 appellant filed a timely appeal from the October 16, 2008 and
March 23, 2009 merit decisions of the Office of Workers’ Compensation Programs denying his
traumatic injury 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 appellant sustained an injury while in the performance of duty on
August 25, 2008.
FACTUAL HISTORY
On September 2, 2008 appellant, a 43-year-old lead firefighter, filed a traumatic injury
claim alleging that he sustained injuries to his left knee while exiting a crash equipment vehicle
on August 25, 2008.
In a letter dated September 9, 2008, the Office informed appellant that he had not
submitted sufficient information or evidence to establish his claim. Appellant was advised to

provide a detailed account of the alleged injury and a physician’s report, with a diagnosis and a
rationalized opinion as to how the diagnosed condition was caused by the claimed event.
Appellant submitted physical therapy records dated April 22 and August 28, 2008. On
April 22, 2008 Robert Mann, a physical therapist, stated that appellant had undergone prior knee
surgery on November 20, 2007 and experienced constant pain with prolonged standing. On
August 28, 2008 Jeri M. Hartzog, a doctor of physical therapy (DPT), noted that appellant was
nine months postarthroscopic debridement and lateral meniscus repair of the left knee and had
recently collapsed when his knee gave way. He stated that appellant had experienced a
decreased range of motion over the past four months, as well as left knee pain and decreased
function.
In a September 3, 2008 report, Dr. Leo C. Chen, a Board-certified orthopedic surgeon,
stated that appellant developed sharp pain and swelling in his left knee suddenly approximately
one week earlier. There was no history of a specific injury, nor did he notice the rapid onset of
swelling. Basically, appellant “just noticed the problem.” Examination of the left knee revealed
tenderness at the general anterior aspect of the knee. There was no ecchymosis, crepitus or
atrophy. Lateral subluxation was not palpably present and there was no significant deformity.
Appellant was able to do a straight leg lift. The anterior drawer test, lateral pivot shift test and
lateral pivot shift grind test were negative. The Lachman test was negative. The medial and
lateral collateral ligaments were stable both in flexion and extension. The posterior drawer test,
reverse lateral pivot shift test and sag test were negative. Dr. Chen diagnosed left knee pain and
possible torn lateral meniscus. He stated that, due to the nature of the injury, the problem may
recur and the symptoms may progress.
In a September 5, 2008 attending physician’s report, Dr. Chen described the history of
injury as twisted left knee. He diagnosed left knee sprain and indicated by placing a checkmark
in the “yes” box that the injury was caused or aggravated by the employment activity described.
Dr. Chen noted that appellant had no preexisting condition. On September 17, 2008 he reiterated
that appellant had no history of specific injury.
In a decision dated October 16, 2008, the Office denied appellant’s claim. It accepted
that the August 25, 2008 incident occurred as alleged, but found there was insufficient medical
evidence to establish that the incident caused injury to his left knee.
On November 18, 2008 appellant requested review of the written record. In a
November 17, 2008 report, Dr. Chen stated that magnetic resonance imaging (MRI) scan
changes were consistent with a possible tear in the medial meniscus.1 He provided a
November 4, 2008 report of a functional capacity evaluation, which was performed by Brenda J.
Royster, a work strategies manager, who determined that appellant was capable of performing
the very heavy work of a fire fighter. Appellant informed her that his left knee symptoms
increased on July 10 and August10, 2008.

1

The record contains reports of MRI scans dated September 28, 2007 and October 8, 2008.

2

By decision dated March 23, 2009, the Office affirmed its October 16, 2008 decision.2
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides for payment of compensation for
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.3 The phrase “sustained while in the performance of duty” is regarded as
the equivalent of the coverage formula commonly found in workers’ compensation laws, namely,
arising out of and in the course of employment.4
An employee seeking benefits under the Act has the burden of proof to establish the
essential elements of his 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 Act, that an injury was sustained in the performance of duty as
alleged, and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.5 When an employee claims that he sustained a
traumatic injury in the performance of duty, he must establish the fact of injury, consisting of
two components, which must be considered in conjunction with one another. The first is
whether the employee actually experienced the incident that is alleged to have occurred at the
time, place and in the manner alleged. The second is whether the employment incident caused a
personal injury and generally this can be established only by medical evidence.6
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.7 An award of
compensation may not be based on appellant’s belief of causal relationship.8 Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is

2

The Board notes that appellant submitted additional evidence after the Office rendered its November 18, 2005
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before the Office at the time of its
final decision. Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 501.2(c);
Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). Appellant may submit
this evidence to the Office, together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20
C.F.R. § 10.606(b)(2).
3

5 U.S.C. § 8102(a).

4

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Charles E. McAndrews, 55 ECAB 711 (2004); see also Bernard D. Blum, 1
ECAB 1 (1947).
5

Robert Broome, 55 ECAB 339 (2004).

6

Deborah L. Beatty, 54 ECAB 340 (2003). See also Tracey P. Spillane, 54 ECAB 608 (2003); Betty J. Smith, 54
ECAB 174 (2002). The term “injury” as defined by the Act, refers to a disease proximately caused by the
employment. 5 U.S.C. § 8101 (5). See 20 C.F.R. § 10.5(q)(ee).
7

Katherine J. Friday, 47 ECAB 591, 594 (1996).

8

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

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sufficient to establish a causal relationship.9 Simple exposure to a workplace hazard does not
constitute a work-related injury entitling an employee to medical treatment under the Act.10
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is evidence that includes a physician’s rationalized opinion on whether there is
a causal relationship between the claimant’s diagnosed condition and the established incident or
factor of employment. The opinion 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 established incident or factor of employment.11
ANALYSIS
The Office accepted that appellant was a federal employee, that he timely filed his claim
for compensation benefits and that the August 25, 2008 workplace incident occurred as alleged.
The issue, therefore, is whether he submitted sufficient medical evidence to establish that the
employment incident caused an injury. The medical evidence of record does not contain a
rationalized medical opinion from a qualified physician establishing that the work-related
accident caused or aggravated any particular medical condition or disability. Therefore,
appellant has failed to satisfy his burden of proof.
Reports from appellant’s treating physician, Dr. Chen, are insufficient to establish his
claim. On September 3, 2008 Dr. Chen diagnosed left knee pain and possible torn lateral
meniscus. His diagnosis is speculative and without objective physical or diagnostic findings to
support a condition causing the pain, is not compensable under the Act.12 Dr. Chen offered no
opinion on the cause of appellant’s condition. He stated that appellant developed sharp pain and
swelling in his left knee suddenly approximately one week earlier, that there was no history of a
specific injury and that appellant did not notice the rapid onset of swelling. Basically, appellant
“just noticed the problem.” 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.13
In a September 5, 2008 attending physician’s report, Dr. Chen described the history of
injury as “twisted left knee.” He diagnosed left knee sprain and indicated by placing a
checkmark in the “yes” box that the injury was caused or aggravated by the employment activity
described. A mere checkmark or affirmative notation in response to a form question on causal
relationship is not sufficient to establish a claim.14 Dr. Chen did not describe how the accepted
9

Id.

10

20 C.F.R. § 10.303(a).

11

John W. Montoya, 54 ECAB 306 (2003).

12

See John L. Clark, 32 ECAB 1618 (1981).

13

Michael E. Smith, 50 ECAB 313 (1999).

14

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

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event, namely, exiting a vehicle, was competent to cause appellant’s diagnosed condition. His
report did not refer to the August 25, 2008 incident as a possible cause of the diagnosed sprain.
The Board notes that Dr. Chen indicated that appellant had no preexisting condition. The record
is clear, however, that appellant suffered from a left knee condition for which he underwent
surgery on November 20, 2007. Therefore, Dr. Chen’s report is based on an inaccurate medical
history and is of diminished probative value.
Dr. Chen’s September 17 and November 17, 2008 reports do not contain an opinion on
causal relationship and are therefore of limited probative value. As they reflect that appellant did
not recall any history of specific injury, they undermine his claim that his left knee condition was
caused by the August 25, 2008 incident.
On April 22, 2008 Robert Mann, a physical therapist, stated that appellant had undergone
knee surgery on November 20, 2007 and that he was experiencing constant pain with prolonged
standing. On August 28, 2008 Jeri M. Hartzog, a physical therapist, noted that appellant was
nine months postarthroscopic debridement and lateral meniscus repair of the left knee and had
recently collapsed when his knee gave way. As a physical therapist is not considered a
“physician” under the Act, these reports do not constitute probative medical evidence.15
Similarly, the November 4, 2008 report of a functional capacity evaluation, which was
performed by Ms. Royster, a work strategies manager, does not constitute probative medical
evidence. The remaining medical evidence of record (including MRI scan reports) which does
not contain an opinion on causal relationship, is of limited probative value and insufficient to
establish appellant’s claim.
The record does not provide sufficient opinion from a physician supporting appellant’s
contention that his condition was causally related to the August 25, 2008 incident. Appellant
expressed his belief that his left knee condition resulted from the accepted employment incident.
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.16
Neither the fact that the condition became apparent during a period of employment, nor the belief
that the condition was caused or aggravated by employment factors or incidents, is sufficient to
establish causal relationship.17 Causal relationship must be substantiated by reasoned medical
opinion evidence, which it is appellant’s responsibility to submit. Therefore, appellant’s belief
that his condition was caused by the work-related incident is not determinative.

15

A medical report may not be considered as probative medical evidence if there is no indication that the person
completing the report qualifies as “physician” as defined in 5 U.S.C. § 8101(2). Section 8101(2) of the Act provides
as follows: “(2) ‘physician’ includes surgeons, podiatrists, dentists, clinical psychologists, optometrists,
chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.” See
Merton J. Sills, 39 ECAB 572, 575 (1988).
The Board notes that Ms. Hartzog refers to herself as a DPT. A DPT is a postbaccalaureate degree conferred
upon successful completion of a doctoral level professional or postprofessional physical therapy education program.
Therefore, Ms. Hartzog is not considered to be a physician under the Act.
16

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

17

Id.

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The Office advised appellant that it was his responsibility to provide a comprehensive
medical report which described his symptoms, test results, diagnosis, treatment, and the doctor’s
opinion, with medical reasons, on the cause of his condition. Appellant failed to submit
appropriate medical documentation in response to the Office’s request. As there is no probative,
rationalized medical evidence addressing how his claimed condition was caused or aggravated
by his employment, appellant has not met his burden of proof to establish that he sustained an
injury in the performance of duty causally related to factors of his federal employment.
On appeal, appellant submitted additional evidence, which he contends establishes that
his left knee condition was caused by the August 25, 2008 work incident. The Board’s
jurisdiction is limited to reviewing the evidence that was before the Office at the time of its final
decision. Therefore, this additional evidence cannot be considered by the Board.18 Appellant
may submit this evidence to the Office, together with a request for reconsideration, pursuant to 5
U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(2).
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof to establish that he
sustained a traumatic injury in the performance of duty on August 25, 2008.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 23, 2009 and October 16, 2008 are affirmed.
Issued: August 25, 2010
Washington, DC

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

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

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

18

20 C.F.R. § 501.2(c); Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952).

6


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

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

Docket No. 18-0867
Issued: July 17, 2019

Case Submitted on the Record

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

JURISDICTION
On March 18, 2018 appellant filed a timely appeal from a February 7, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a lower back injury
causally related to the accepted December 12, 2017 employment incident.

1

5 U.S.C. § 8101 et seq.

2
The Board notes that, following the February 7, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On December 20, 2017 appellant, then a 24-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that she suffered a lower back strain as a result of a December 12,
2017 motor vehicle accident (MVA) while in the performance of duty.
In a January 2, 2018 development letter, OWCP noted that, apart from the Form CA-1, it
had not received additional documentation in support of appellant’s claim. It explained the
requirements for establishing entitlement to FECA benefits, and requested that she submit factual
evidence regarding the alleged MVA and a narrative medical report from a qualified physician that
included a specific diagnosis and an explanation as to how the reported employment incident either
caused or aggravated the diagnosed medical condition(s). OWCP afforded appellant’s 30 days to
submit the requested factual information and medical evidence.
In a January 24, 2018 statement appellant explained that, on December 12, 2018, at 11:47
a.m., she was involved in an “‘on-the-job’” injury caused by a MVA. She explained that she was
in her employing establishment vehicle stopped in traffic when a sports utility vehicle rear-ended
her. Appellant further stated that the force of the impact caused her body to jerk back and forth,
which resulted in a lower back sprain.
OWCP received a Metropolitan Police Department traffic crash report, the contents of
which are largely illegible.
OWCP also received a December 21, 2017 note from Dr. Lynette Brown, a Board-certified
internist, who indicated that appellant was being treated for low back pain. Dr. Brown advised
that appellant should avoid lifting greater than 10 pounds and avoid standing and sitting for long
periods. She excused appellant from work for the period from December 15 through 31, 2017.
Dr. George Freeman Jr., a chiropractor, examined appellant on December 26, 2017 and
noted a December 12, 2017 date of injury. Appellant complained of lower back pain after being
involved in an MVA in which she had been rear-ended.3 Dr. Freeman diagnosed acute
lumbosacral sprain and recommended physical therapy. The report is otherwise illegible.
Additionally, OWCP received physical therapy treatment records, which are illegible.
On January 4, 2018 Dr. Inder Chawla, a Board-certified physiatrist, advised that appellant
should not work for four weeks.
By decision dated February 7, 2018, OWCP accepted that the December 12, 2017
employment incident occurred as alleged, but denied appellant’s traumatic injury claim because
the evidence of record did not contain a diagnosed medical condition 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.

3

In a January 24, 2018 addendum, Dr. Freeman clarified that appellant was operating a mail delivery truck at the
time of the accident.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation of FECA,5 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.6 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.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.8 Fact
of injury consists of two components that must be considered in conjunction with one another.
The first component is whether the employee actually experienced the employment incident that
allegedly occurred.9 The second component is whether the employment incident caused a personal
injury.10
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.11 Aphysician’s opinion on whether there is a causal relationship
between the diagnosed condition and the accepted employment incident must be based on a
complete factual and medical background.12 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and the
specific employment incident.13
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a lower back
injury causally related to the accepted December 12, 2017 employment incident.

4

Id.

5
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6

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

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).
8

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

9

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

10

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

11

T.H., supra note 8 at 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

12

M.V., Docket No. 18-0884 (issued December 28, 2018).

13

Id.; Victor J. Woodhams, 41 ECAB 345, 352 (1989).

3

In a December 21, 2017 note, Dr. Brown indicated that appellant was being treated for
“low back pain.” She further advised that appellant should avoid lifting greater than 10 pounds,
and avoid standing and sitting for long periods. Dr. Brown excused appellant from work for the
period December 15 through 31, 2017. However, her December 21, 2017 note did not mention
appellant’s December 12, 2017 employment incident or include a medical diagnosis. As OWCP
correctly noted, pain is a symptom, not a specific medical diagnosis.14
Dr. Chawla’s January 4, 2018 prescription pad note excusing appellant from work for four
weeks did not include either a history of injury or a specific medical diagnosis. He merely advised
against working. Appellant’s burden of proof includes demonstrating that the employment
incident caused a personal injury.15 Dr. Chawla’s work excuse note is silent on that particular
issue. As he has not offered an opinion on causal relationship, his report is of no probative value
on that issue,16 and therefore, it is insufficient to satisfy appellant’s burden of proof.
Dr. Freeman, a chiropractor, examined appellant on December 26, 2017 and diagnosed
acute lumbosacral sprain. He also referenced her December 12, 2017 work-related MVA.
However, Dr. Freeman did not treat appellant for a subluxation of the spine as demonstrated by
x-ray.17 If the diagnosis of a subluxation as demonstrated by x-ray is not established, the
chiropractor is not a physician as defined under FECA and his or her report is of no probative value
to the medical issue presented.18 The Board finds that, as the evidence of record does not include
an x-ray establishing the diagnosis of subluxation, Dr. Freeman’s opinion is of no probative value
to establish appellant’s claim.19
Appellant’s physical therapy treatment records, which are largely illegible, similarly do not
constitute competent medical evidence from a physician, and therefore, these records are
insufficient to establish entitlement to FECA benefits.20

14

Findings of pain or discomfort alone do not satisfy the medical aspect of the fact of injury medical determination.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803.4a(6) (August 2012).
15

See supra note 10.

16

Medical evidence that does not offer an opinion regarding the cause of an employee’s condition or disability is
of no probative value on the issue of causal relationship. See L.B., Docket No. 18-0533 (issued August 27, 2018);
D.K., Docket No. 17-1549 (issued July 6, 2018).
17

Subluxation means an incomplete dislocation, off-centering, misalignment, fixation or abnormal spacing of the
vertebrae, which must be demonstrable on any x-ray film to an individual trained in the reading of x-rays. 20 C.F.R.
§ 10.5(bb).
18

K.S., Docket No. 18-1781 (issued April 8, 2019); Mary A. Ceglia, 55 ECAB 626, 630 (2004).

19

Id.

20

5 U.S.C. § 8102(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. See also Roy L. Humphrey, 57 ECAB 238 (2005). David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006)
(lay individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical
opinion under FECA); Jane A. White, 34 ECAB 515, 518 (1983) (physical therapist); 5 U.S.C. § 8101(2); 20 C.F.R.
§ 10.5(t).

4

As appellant has not provided any rationalized medical evidence establishing a lower back
injury causally related to the accepted December 12, 2017 employment incident, she has not met
her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established a lower back injury causally related to
the accepted December 12, 2017 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the February 7, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 17, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SAFETY
ADMINISTRATION, FEDERAL AIR
MARSHAL SERVICE, Renton, WA, Employer
__________________________________________

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

Docket No. 21-1055
Issued: March 30, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On July 7, 2021 appellant, through counsel, filed a timely appeal from a June 23, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3

1

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

5 U.S.C. § 8101 et seq.

The Board notes that following the June 23, 2021 decision, appellant submitted additional evidence to
OWCP. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to modify OWCP’s
September 28, 2018 loss of wage-earning capacity (LWEC) determination.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On October 1, 2013 appellant, then a 46-year-old federal air marshal, filed a traumatic
injury claim (Form CA-1) alleging that on September 25, 2013 he injured his cervical spine when
participating in a mandatory high intensity interval training while in the performance of duty.
OWCP accepted the claim for a cervical strain. On August 6, 2014 it expanded the acceptance of
the claim to include cervical disc herniation at C6-7. Appellant stopped work on August 6, 2014
and OWCP paid him wage-loss compensation for disability from work on the supplemental rolls.
He sought treatment for his conditions with Dr. Jason Thompson, a Board-certified orthopedic
surgeon. On August 26, 2014 appellant underwent OWCP-authorized surgery for a C6-7 cervical
disc arthroplasty. Commencing October 11, 2014 OWCP paid appellant wage-loss compensation
on the periodic rolls.
In a January 29, 2015 report, Dr. Thompson discussed appellant’s status post C6-7 disc
arthroplasty. He opined that appellant could return to work in the public sector as he had no
restrictions on lifting, bending, twisting, or exercising. However, Dr. Thompson found that
appellant could not return to a law enforcement position where the potential for unexpected
physical violence to the head and neck could be anticipated.
On February 3, 2015 OWCP referred appellant to Dr. Louis Kretschmer, a Board-certified
orthopedic surgeon, for a second opinion evaluation. In a February 17, 2105 narrative report,
Dr. Kretschmer indicated that, although, appellant did not have any specific restrictions, he would
not be able to return to work as a federal air marshal as it would be unsafe for him to participate in
vigorous physical confrontation with fellow employees during training or aggressive passengers
on an airplane. He indicated that appellant would be an excellent candidate for vocational
rehabilitation. In an accompanying February 17, 2015 work capacity evaluation (Form OWCP5c), Dr. Kretschmer determined that appellant’s restrictions were permanent and that appellant
was capable of performing sedentary-, light-, and medium-duty work.
On March 19, 2015 OWCP referred appellant for vocational rehabilitation to find a suitable
position within the restrictions provided by Dr. Kretschmer on February 17, 2015. On June 15,
2015 appellant submitted a change of address and notified OWCP that h e was relocating from
Maple Valley, Washington to Chandler, Arizona. From September 8, 2015 through February 11,
2016, appellant underwent training to become a Certified Protection Professional (CPP). After
obtaining his CPP certification, he worked with his vocational rehabilitation counselor for job
placement. Beginning August 9, 2016 appellant sought treatment with Dr. Steven Berman, a
treating physician.

4

Docket No. 19-1410 (issued November 5, 2020).

2

In a September 29, 2016 memorandum, appellant’s vocational rehabilitation counselor
noted that the position of internal security manager was vocationally suitable for appellant. She
found that the position remained medically suitable as the duties were within appellant’s work
limitations and the position was available in sufficient numbers within appellant’s commuting area
based on an August 29, 2016 labor market survey. The vocational rehabilitation counselor
reported that appellant would expect to earn the average wage of $19.45 per hour due to his prior
experience and his recently acquired CPP industry certification.
On December 7, 2016 appellant submitted another change of address and notified OWCP
that he was relocating from Chandler, Arizona to Sparks, Nevada.
On December 7, 2017 OWCP requested that appellant’s treating physician evaluate his
functional capabilities by completing a Form OWCP-5c. On a December 12, 2017 Form OWCP5c, Dr. Berman reported that appellant had reached maximum medical improvement (MMI) and
his restrictions remained unchanged. He reported that appellant could perform sedentary-, light-,
and medium-duty work.
On February 2, 2018 OWCP asked appellant’s vocational rehabilitation counselor to
perform a labor market survey for the purpose of determining if the internal security manager
position was available in appellant’s new job market of Sparks, Nevada. On March 28, 2018 the
counselor confirmed that the internal security manager job still met appellant’s criteria based on
the March 23, 2018 labor market survey. She reported that appellant was capable of working as
an internal security manager and that labor market surveys showed that the position was reasonably
available in his commuting area of Sparks, Nevada. The Department of Labor, Dictionary of
Occupational Titles (DOT) describes the internal security manager position (DOT #378.137-0102)
as involving supervision and coordination of activities of store detectives, conducting private
investigations, and selling internal protective service to wholesale and retail businesses. The
position required assigning store detectives to shifts at various locations according to job
requirements and workers’ abilities, skills, and experience. The DOT, on a job classification report
(Form OWCP-66), described the physical requirements of the position as light work to include
exerting up to 20 pounds of force occasionally. The counselor reported that the salary for this
position ranged from $18.00 to $23.00 per hour based on the labor market survey. She
recommended the average wage of $20.50 per hour based on appellant’s previous experience
performing this position and his recently acquired CPP industry certification.
In a letter dated July 9, 2018, Dr. Berman verified that appellant had reached MMI and was
capable of working full time with the restrictions that had been in place since 2014. He reported
that appellant was in a permanent stationary status and there were no significant changes to his
condition since the last visit. Dr. Berman found that there were no changes in his work status or
the recommended work restrictions.
On August 23, 2018 OWCP notified appellant that it proposed to reduce his wage-loss
compensation pursuant to 5 U.S.C. §§ 8106 and 8115. It advised him that he was only partially
disabled from work and that the position of internal security manager (DOT #378.137 -0102) was
medically and vocationally suitable with regard to his medical limitations, work experience, and
education. OWCP explained that the physical requirements of the internal security manager did
not exceed the restrictions imposed by Dr. Berman’s December 12, 2017 and July 9, 2018 reports.
It found that appellant was capable of earning wages at the rate of $820.00 per week as an internal
security manager and that the position was reasonably available within his commuting area.
OWCP provided an attachment detailing the application of the formula set forth in Albert C.
3

Shadrick.5 It afforded appellant 30 days to submit evidence and argument challenging the
proposed action.
In a September 9, 2018 letter, counsel disagreed with the proposed reduction of
compensation. He argued that the job analysis was improper because it was based on appellant’s
prior residence in Seattle, Washington. Counsel asserted that the job availability and wage rate
should have been based on the job market for Sparks, Nevada, where appellant currently resided.
He further argued that the job availability and hourly wage was likely far less in Sparks, Nevada
and requested a new labor market survey.
By decision dated September 28, 2018, OWCP reduced appellant’s wage-loss
compensation benefits, effective September 30, 2018, based on his ability to earn wages of
$820.00 per week as an internal security manager. It verified that the March 23, 2018 labor market
study, was conducted for his commuting area in and around Reno, Nevada and not Seattle,
Washington as asserted by counsel for appellant. OWCP explained that the physical duties of the
position were in accordance with the restrictions provided by Dr. Berman’s July 9, 2018 report,
and that appellant’s rehabilitation counselor had determined that he was vocationally capable of
performing the constructed position. It further found that appellant was no longer totally disabled
from work and that the position of internal security manager was medically and vocationally
suitable, and represented his wage-earning capacity. OWCP applied the Shadrick 6 formula to
determine appellant’s LWEC and adjust his compensation.
On October 9, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review. During the hearing held on
January 25, 2019, appellant testified that he was unable to accept most of the jobs in the labor
market study due to other conditions.
By decision dated March 29, 2019, OWCP’s hearing representative affirmed the
September 28, 2018 decision. She concluded that the position of internal security manager
reasonably and accurately reflected his wage-earning capacity and his compensation was properly
reduced effective September 30, 2018.
Appellant appealed to the Board and, by decision dated November 5, 2020,7 the Board
affirmed OWCP’s March 29, 2019 decision.
On December 7, 2020 appellant, through counsel, requested modification of OWCP’s
September 28, 2018 LWEC determination. He submitted an October 20, 2020 report from
Dr. Paul Fry, a Board-certified orthopedic surgeon serving as an OWCP referral physician, who
advised that, during a September 22, 2020 physical examination, appellant had examination
findings of “a diminished cervical range of motion.” Dr. Fry noted that appellant’s clinical
examination showed that all measurements of his cervical range of motion were symmetrical on
the right and left. He indicated that range of motion measurements of the shoulders were optimal
and symmetrical, and that bilateral upper extremity strength measurements were optimal at 5/5.
Dr. Fry opined that appellant had residuals of his work injury resulting from cervical disc surgery
and indicated that he was unable to perform the duties of his date-of-injury position as a federal
5

5 ECAB 376 (1953).

6

Id.

7

Supra note 4.

4

air marshal. He completed a Form OWCP-5c confirming appellant’s ability to work full time with
restrictions, including lifting no more than 25 pounds intermittently.
In a January 13, 2021 report, Dr. Berman noted appellant’s subjective complaints of dull
aching, throbbing, squeezing, and cramping, but noted that as to the head and neck he had “full
range of motion, no abnormal findings.” He also indicated that appellant had no neurological
abnormalities and that he had normal strength and flexion of the bilateral upper extremities.
Dr. Berman advised that the musculature of appellant’s neck was noted to be of “normal strength
and tone.” He indicated that he would refer appellant for x-ray testing to determine if there had
been any changes in his cervical spine.
Appellant also submitted an x-ray report of his cervical spine, obtained on February 1,
2021, which contained an impression of status post artificial disc replacement at C6 -7 without
evidence of dynamic instability, as well as mild straightening of cervical lordosis in neutral
position.
By decision dated June 23, 2021, OWCP determined that appellant has not met his burden
of proof to modify OWCP’s September 28, 2018 LWEC determination. It found that the evidence
submitted by appellant on reconsideration did not show that his injury-related condition prevented
him from working as an internal security manager.
LEGAL PRECEDENT
Once OWCP accepts a claim it has the burden of proof to justify termination or
modification of compensation benefits. 8 An injured employee who is either unable to return to the
position held at the time of injury or unable to earn equivalent wages, but who is not totally
disabled for all gainful employment, is entitled to compensation computed based on his or her
LWEC.9 An employee’s actual earnings generally best reflect his or her wage-earning capacity. 10
Absent evidence that actual earnings do not fairly and reasonably represent the employee ’s wageearning capacity, such earnings must be accepted as representative of the individual’s wageearning capacity. 11 But if actual earnings do not fairly and reasonably represent the employee’s
wage-earning capacity or the employee has no actual earnings, then wage -earning capacity is
determined with due regard to the nature of the injury, the degree of physical impairment, the
employee’s usual employment, age, qualifications for other employment, the availability of
suitable employment and other factors and circumstances that may affect wage -earning capacity
in his disabled condition. 12
OWCP must initially determine the employee’s medical condition and work restrictions
before selecting an appropriate position that reflects his or her vocational wage -earning capacity. 13
The medical evidence OWCP relies upon must provide a detailed description of the employee’s
8

James B. Christenson, 47 ECAB 775, 778 (1996); Wilson L. Clow, Jr., 44 ECAB 157 (1992).

9

5 U.S.C. § 8115(a); 20 C.F.R. §§ 10.402, 10.403; see Alfred R. Hafer, 46 ECAB 553, 556 (1995).

10

Hayden C. Ross, 55 ECAB 455, 460 (2004).

11

Id.

12

5 U.S.C. § 8115(a); Mary Jo Colvert, 45 ECAB 575 (1994); Keith Hanselman, 42 ECAB 680 (1991).

13

M.A., 59 ECAB 624, 631 (2008).

5

condition and the evaluation must be reasonably current. 14 Where suitability is to be determined
based on a position not actually held, the selected position must accommodate the employee’s
limitations from both injury-related and preexisting conditions, but not limitations attributable to
post-injury or subsequently acquired conditions. 15
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an OWCP wage-earning capacity specialist for
selection of a position listed in the Department of Labor’s Dictionary of Occupational Titles
(DOT) or otherwise available in the open labor market that fits the employee ’s capabilities with
regard to his or her physical limitations, education, age and prior experience.16 Once this selection
is made, a determination of wage rate and availability in the open labor market should be made
through contact with the state employment service or other applicable service. 17 Finally,
application of the principles set forth in the Shadrick decision will result in the percentage of the
employee’s LWEC.18
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous. 19 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination. 20
ANALYSIS
The Board finds that appellant has not met his burden of proof to modify OWCP’s
September 28, 2018 LWEC determination.
By decision dated November 5, 2020, 21 the Board affirmed OWCP’s March 29, 2019
decision, finding the September 28, 2018 LWEC determination was proper. Findings made in

14

Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on a
Constructed Position, Chapter 2.816.4d (June 2013).
15

N.J., 59 ECAB 171, 176 (2007); Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning
Capacity Based on a Constructed Position, Chapter 2.816.4c (June 2013).
16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Vocational Rehabilitation Services, Chapter 2.813.7b
(February 2011).
17

The job selected for determining wage-earning capacity must be a position that is reasonably available in the
general labor market in the commuting area in which the employee resides. David L. Scott, 55 ECAB 330, 335 n.9
(2004); Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on a
Constructed Position, Chapter 2.816.6 (June 2013).
18

20 C.F.R. § 10.403(d); see also Albert C. Shadrick, supra note 5.

19

C.R., Docket No. 14-111 (issued April 4, 2014); Sharon C. Clement, 55 ECAB 552 (2004).

20

See T.M., Docket No. 08-975 (issued February 6, 2009).

21

Supra note 4.

6

prior Board decisions are res judicata absent further review by OWCP under section 8128 of
FECA.22
The Board finds that appellant has not shown that modification of the September 28, 2018
LWEC determination is warranted by establishing that a spontaneous worsening of his injuryrelated condition after the issuance of the September 28, 2018 LWEC determination prevented
him from working as an internal security manager. 23
Appellant submitted an October 20, 2020 report from Dr. Fry, an OWCP referral physician,
who advised that, during a September 22, 2020 physical examination, appellant had examination
findings of “a diminished cervical range of motion.” He further discussed appellant’s examination
findings and opined that appellant had residuals of his work injury which prevented him from
performing the duties of his date-of-injury position as a federal air marshal. Dr. Fry completed a
Form OWCP-5c confirming appellant’s ability to work full time with restrictions, including lifting
no more than 25 pounds intermittently. In a January 13, 2021 report, Dr. Berman noted appellant’s
subjective complaints of dull aching, throbbing, squeezing, and cramping, but indicated that as to
the head and neck he had “full range of motion, no abnormal findings.” He also noted that
appellant had no neurological abnormalities and that he had normal strength and flexion of the
bilateral upper extremities. Dr. Berman advised that the musculature of appellant’s neck was noted
to be of “normal strength and tone.” Appellant also submitted an x-ray report of his cervical spine,
obtained on February 1, 2021, which contained an impression of status post artificial disc
replacement at C6-7 without evidence of dynamic instability, as well as mild straightening of
cervical lordosis in neutral position.
The Board finds that the submitted reports of Dr. Fry and Dr. Berman, as well as the
diagnostic testing report, are of no probative value in showing that a worsening of appellant’s
injury-related condition prevented appellant from working as an internal security manager, i.e., the
position that served as the basis for the September 28, 2018 LWEC determination. These reports
do not provide an opinion that appellant was unable to work as an internal security manager.
Dr. Fry’s report contains restrictions that would allow him to work in the position. The Board has
held that medical evidence that does not offer an opinion regarding a given medical matter, such
as the inability to perform a given position, is of no probative value on that matter.24 Therefore,
these reports are insufficient to establish appellant’s request for modification of the September 28,
2018 LWEC determination.
The Board further finds that appellant has not shown that modification of the September 28,
2018 LWEC determination is warranted by establishing that he was subsequently retrained or
otherwise vocationally rehabilitated. 25 Therefore, appellant has not met any of the three prongs of
the standards for modifying an LWEC determination.

22

C.D., Docket No. 19-1973 (issued May 21, 2020); B.W., Docket No. 17-0366 (issued June 7, 2017); Clinton E.
Anthony, Jr., 49 ECAB 476 (1998).
23

Id.

24

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

25

See supra note 19.

7

Appellant may request modification of the LWEC determination, supported by new
evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that appellant has not met his burden of proof to modify OWCP’s
September 28, 2018 LWEC determination.
ORDER
IT IS HEREBY ORDERED THAT the June 23, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 30, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.K., Appellant
and
DEPARTMENT OF THE AIR FORCE,
PITTSBURGH IAP AIR RESERVE STATION,
Coraopolis, PA, Employer
__________________________________________

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

Docket No. 10-1055
Issued: April 21, 2011

Case Submitted on the Record

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

JURISDICTION
On March 8, 2010 appellant filed a timely appeal from a January 29, 2010 merit decision
of the Office of Workers’ Compensation Programs. Pursuant to the Federal Employees’
Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
traumatic injury in the performance of duty on May 11, 2009.
FACTUAL HISTORY
On June 29, 2009 appellant, then a 55-year-old supply technician, filed a traumatic injury
claim alleging that he sustained injuries to his right shoulder, neck and arm on May 11, 2009
1

5 U.S.C. § 8101 et seq.

when a box of body armor that he stacked fell and struck his right shoulder. He did not stop
work.
In a May 14, 2009 report from Dr. Donald L. Aivalotis, a chiropractor, appellant
presented localized pain and numbness of the right shoulder and neck that began two weeks
earlier at work. He examined appellant, observed limited range of motion (ROM) due to pain
and noted C2, C5-C7 and T5-T7 subluxations.
A May 28, 2009 x-ray report from Dr. Frank Papa, a diagnostic radiologist, revealed
bony anterior fusion of the C2-C3 and C3-C4, mild narrowing of the left foramen at C4-C5,
straightening of the lordotic curvature on flexion view and mild exaggeration on extension view
and disc space narrowing at C5-C6 and to a mild extent at C6-C7. He stated that “there is no
acute fracture or subluxation” in any of the seven views obtained. Dr. Papa also commented that
appellant’s right shoulder had no acute fracture or dislocation.
In Dr. Aivalotis’ July 15, 2009 report, appellant related that he was counting body armor
jackets when he “turned and twisted” to catch a falling, 200-pound box of armor. He denied any
preexisting injuries. On physical examination, Dr. Aivalotis observed moderate to severe
segmental dysfunction at the cervical, thoracic and right shoulder areas with significant cervicalbrachial radiculitis in the right hand, a mild increase in paresthesia with right cervical
compression, diminished cervical ROM, limited right shoulder abduction and flexion with pain
and acromioclavicular joint crepitus. He concluded that appellant’s injuries were work related
and diagnosed cervical and thoracic strain complicated by cervical segmental dysfunction,
thoracic segmental dysfunction that was causing cervical radiculitis and a right shoulder sprain
possibly involving the rotator cuff or anterior capsule. Dr. Aivalotis also supplied progress notes
for the period May 14 to July 23, 2009.
An August 14, 2009 report from Dr. Jon A. Levy, a Board-certified orthopedic surgeon,
noted that appellant was moving boxes of body armor at work “when he essentially got trapped
and developed the acute onset of pain in the right trapezial area, radiating down the right arm,
with paresthesia in the hand on the right.” He examined appellant and found positive Spurling,
Neer and Hawkins signs. Dr. Levy reviewed appellant’s prior x-rays and pointed out diffuse
cervical osteoarthritis, bridging anterior osteophytes and mild listhesis of the C6-C7. He
diagnosed cervical radiculopathy and subacromial bursitis.
An August 18, 2009 magnetic resonance imaging (MRI) scan report from Dr. Thomas
Kavic, a Board-certified diagnostic radiologist, identified mild C5-C6 disc space narrowing,
minimal posterior C4-C5 and C5-C6 disc bulging and the absence of cervical dislocation or
compression fractures. He advised that the findings were compatible with mild degenerative C5C6 disc disease.
In an August 21, 2009 report, Dr. Levy specified that appellant was injured at the
employing establishment in May 2009 and commented that appellant experienced ongoing
intermittent neck pain and numbness in his right forearm. He noted that a cervical MRI scan
showed only mild degenerative changes at the C5-C6.

2

On September 23, 2009 the Office notified appellant that the evidence submitted was
insufficient and advised him about the evidence needed to establish his claim.
Appellant subsequently provided an October 9, 2009 report from Dr. Levy, which noted
that appellant “is clinically doing reasonably well in terms of his shoulder” but experienced
intermittent headaches and neck pain, hand paresthesia and a cold sensation in his feet and
underwent a computerized tomography scan during an emergency room evaluation. Dr. Levy
examined appellant and found no demonstrable sensory deficit in the upper or lower extremities.
He assessed that appellant’s clinical complaints were consistent with cervical radiculopathy, but
no focal neurological deficits existed. Dr. Levy added that a previous MRI scan showed
degenerative changes but no high-grade cord compression or canal compromise and that
“physical therapy undertaken was referable to the trauma sustained in the workplace.”
In an October 14, 2009 addendum, Dr. Aivalotis asserted that vertebral subluxation
complex was demonstrated and confirmed by a May 28, 2009 x-ray.
Appellant also submitted physical therapy notes for the period September 9 to
October 19, 2009.
By decision dated October 26, 2009, the Office denied appellant’s claim, finding the
medical evidence insufficient to establish that he sustained a work-related right shoulder, neck or
arm injury on May 11, 2009.
Appellant requested reconsideration on December 7, 2009 and stated that he was
counting and stacking boxes of body armor on May 11, 2009 when the top box struck his right
shoulder after he unsuccessfully attempted to stop it from shifting.
In an October 19, 2009 report, Dr. Levy noted that appellant “presented to my office for
an evaluation referable to injury sustained in the workplace on May 11, 2009.” He opined that
appellant sustained a combination of subacromial bursitis and cervical radiculopathy. Dr. Levy
noted that there was radiographic evidence of preexisting cervical degenerative disease, but
concluded that appellant “now is suffering from cervical radiculopathy as the result of the injury
sustained in the workplace.” He added that “based on history provided, I do believe [that
appellant’s] ongoing subjective complaints are consistent with his injury sustained in the
workplace.”
By decision dated January 29, 2010, the Office denied modification of the October 26,
2009 decision.
LEGAL PRECEDENT
An employee seeking compensation under the Act2 has the burden of establishing the
essential elements of his claim by the weight of reliable, probative and substantial evidence,3
2

5 U.S.C. §§ 8101-8193.

3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

3

including that he is an “employee” within the meaning of the Act and that he filed his claim
within the applicable time limitation.4 The employee must also establish that he sustained an
injury in the performance of duty as alleged and that his disability for work, if any, was causally
related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.6
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s 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, 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
The evidence supports that appellant was counting and stacking boxes of body armor on
May 11, 2009 when the top box fell and struck his right shoulder. However, he has not
submitted sufficient medical evidence establishing that this work incident caused or contributed
to a diagnosed medical condition.
Dr. Levy’s August 14, 2009 report stated that appellant sustained cervical radiculopathy
and subacromial bursitis when he “essentially got trapped” while moving boxes of body armor at
the employing establishment. In his August 21, October 9 and 19, 2009 reports, he specified that
the incident occurred on May 11, 2009 and reiterated that appellant was injured at work.
Nonetheless, Dr. Levy did not offer any medical rationale explaining how moving boxes of body
armor caused or contributed to appellant’s condition. Medical reports not fortified by rationale
on causal relation are entitled to little probative value and are generally insufficient to meet an
employee’s burden of proof.8 The need for rationalized medical opinion evidence regarding
causal relationship is particularly important in this case since Dr. Levy acknowledged
radiographic evidence of a preexisting cervical degenerative disease in his October 19, 2009
4

R.C., 59 ECAB 427 (2008).

5

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

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

7

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

8

S.S., 59 ECAB 315, 322 (2008); George Randolph Taylor, 6 ECAB 986, 988 (1954).

4

report. In addition, his opinion was based on appellant being “trapped” while moving boxes of
body armor on May 11, 2009, which conflicts with appellant’s numerous assertions that a box of
body armor fell and struck his right shoulder. Medical opinions based on an incomplete or
inaccurate history are of diminished probative value.9
Dr. Aivalotis’ May 14 and July 15, 2009 chiropractic reports diagnosed cervical and
thoracic subluxations related to appellant’s federal employment do not constitute medical
evidence of causal relationship. A medical issue can only be resolved through the submission of
probative medical evidence from a physician.10 The term “physician” includes chiropractors
only to the extent that their reimbursable services are limited to treatment consisting of manual
manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist.11 While
Dr. Aivalotis maintained in his October 14, 2009 addendum that his vertebral subluxation
complex diagnosis was confirmed by a May 28, 2009 x-ray, Dr. Papa’s May 28, 2009 x-ray
report explicitly ruled out such a finding noting that there was “no acute fracture or subluxation.”
He did not explain how this x-ray confirmed a subluxation diagnosis in light of Dr. Papa’s clear
finding that there was no subluxation on the x-ray. As Dr. Aivalotis is not a physician under the
Act, his opinion lacks probative medical value.12 Likewise, appellant’s physical therapy notes
lack probative value because a physical therapist is not a physician under the Act.13
Appellant argues on appeal that the medical evidence was sufficient to justify a favorable
decision on his claim, that he did not miss any work due to injury and that he simply wanted
medical treatment. As discussed above, the medical evidence was insufficient to demonstrate
that the May 11, 2009 incident caused or contributed to appellant’s condition.
CONCLUSION
The Board finds that appellant failed to establish that he sustained a traumatic injury in
the performance of duty on May 11, 2009.

9

M.W., 57 ECAB 710 (2006); James A. Wyrick, 31 ECAB 1805 (1980).

10

See Gloria J. McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (medical
opinion, in general, can only be given by a qualified physician).
11

5 U.S.C. § 8101(2); Merton J. Sills, 39 ECAB 572, 575 (1988). Subluxation means an incomplete dislocation,
off-centering, misalignment, fixation or abnormal spacing of the vertebrae which must be demonstrable on any x-ray
film to an individual trained in the reading of x-rays. 20 C.F.R. § 10.5(bb).
12

Even assuming, for the sake of argument, that Dr. Aivalotis meets the Act’s criteria as a physician, his opinion
is of probative medical value only with regard to the spine itself. See George E. Williams, 44 ECAB 530 (1993).
13

Jennifer L. Sharp, 48 ECAB 209 (1996).

5

ORDER
IT IS HEREBY ORDERED THAT the January 29, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 21, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 11-1100
Issued: December 20, 2011

Case Submitted on the Record

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

JURISDICTION
On April 1, 2011 appellant filed a timely appeal from a November 5, 2010 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that she was disabled from June 29, 2009
through February 10, 2010 causally related to her May 8, 2009 employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 12, 2009 appellant, then a 31-year-old rural carrier associate, filed a claim
alleging that on May 8, 2009 she injured her low back and neck in a motor vehicle accident.2
OWCP accepted her claim for lumbar strain.
On July 2, 2009 appellant filed a claim for compensation from June 29 through
July 3, 2009.
In a report dated May 27, 2009, Dr. Bhisit Bhothinard, a Board-certified neurologist,
evaluated appellant at the request of her attending physician. He noted that the truck that she
was driving on May 8, 2009 rolled over. Dr. Bhothinard discussed appellant’s current
complaints of shaking over her whole body. He opined that she was demonstrating
“considerable amount of psychological overlay with the convulsion reaction.” In a duty status
report dated June 3, 2009, Dr. Bhothinard opined that appellant required a release from a
psychiatrist prior to resuming work.
A magnetic resonance imaging (MRI) scan study of the lumbar spine showed a broadbased disc herniation extending into the neural foramina causing moderate narrowing on the left
and moderate compression of the left exiting nerve roots.
In a report dated June 4, 2009, Dr. Peter Somers, Board-certified in family medicine,
related that he initially diagnosed low back pain and muscle spasm following appellant’s work
injury and found that she should remain off work for one week. When appellant experienced
increased pain, he referred her to a neurologist who diagnosed a psychosomatic condition. In a
form report dated July 1, 2009, Dr. Somers diagnosed a disc bulge at L4-5 and constant shaking.
He found that appellant was partially disabled. In a duty status report of the same date,
Dr. Somers advised that she was unable to perform her job duties.3
On July 6, 2009 Dr. Aaron Koonce, a Board-certified neurologist, evaluated appellant for
back pain, numbness and a tremor. He reviewed the history of her motor vehicle accident. On
examination Dr. Koonce found a “melodramatic” examination. He diagnosed paresthesia and
lumbar disc displacement. Dr. Koonce found that appellant’s condition was psychosomatic.4
By decision dated September 14, 2009, OWCP denied appellant’s claim for
compensation beginning June 29, 2009.
In letters dated September 16, 2009, OWCP requested that Dr. Bhothinard, Dr. Koonce
and Dr. Paul Santiago, a Board-certified neurosurgeon, discuss whether appellant had continued
findings of lumbar strain or any other condition due to her May 8, 2009 employment injury. It
further requested that the physicians address whether she could return to her usual employment.

2

At the time of her injury, appellant worked one day per week.

3

In a duty status report dated August 19, 2009, Dr. Somers found that appellant was not able to work.

4

An electromyogram obtained on July 16, 2009 revealed normal findings.

2

In a report dated September 21, 2009, Dr. Santiago reviewed appellant’s history of a
motor vehicle accident with low back pain radiating into both sides. He diagnosed posttraumatic lumbar strain and polyradiculopathy. Dr. Santiago stated, “If indeed [appellant] did
suffer significant lumbar strain or traumatic injury to her nerve roots, this may take years to
improve to a tolerable level.”
In a report dated September 29, 2009, Dr. Koonce noted that appellant overturned her
vehicle into a ditch on May 8, 2009 when she swerved to avoid an animal.5 He related that a
neurological examination yielded no abnormal findings. Dr. Koonce diagnosed a conversion
disorder and stated:
“While there may be no definite physical explanation for [appellant’s] symptoms
and no reason that [she] could not return to her duties based upon [the] lack of
physical findings, the conversion disorder can certainly in and of itself be
disabling. Therefore, it is entirely possible based upon these psychological facts
[she] may not be able to return to work unless these issues are addressed by a
mental health professional.”
By letter dated November 30, 2009, OWCP referred appellant to Dr. James T. Galyon, a
Board-certified orthopedic surgeon, for a second opinion examination. On December 31, 2009
Dr. Galyon noted that she was not wearing her seat belt at the time of her May 8, 2009 motor
vehicle accident because she “could not reach across to the mailboxes while wearing her
seatbelt.” On examination he found a mildly positive straight leg raise and tenderness over the
sciatic notch of the left leg. Dr. Galyon determined that an MRI scan study showed a disc
herniation compression on the left nerve root. He recommended evaluation by a neurosurgeon to
determine whether appellant required surgery. Dr. Galyon diagnosed a herniated disc at L4-5
with left nerve root compression. He stated:
“I do believe that the findings are causally related to the motor vehicle accident.
[Appellant] denies having had any previous back problems consistent with this.
The mechanism would be that she was thrown about in the truck as it left the
highway and [slid] into a ditch. [Appellant] was unrestrained in the driver’s seat
for reasons already explained.
“I do not believe that [appellant] will be able to return to work as a rural mail
carrier eight hours per day because sitting in a truck leaning from one side to the
other to deliver mail would aggravate her problem. I do believe that she needs to
have neurosurgical attention to be able to return to her regular work. [Appellant]
is currently unable to perform that type of work. The work restrictions would be
prolonged sitting, prolonged standing, reaching to the right or the left and nor
driving while taking any form of pain medication.”

5

On October 29, 2009 Dr. Benjamin H. Soeter, a Board-certified anesthesiologist, diagnosed a lumbar herniated
disc and recommended injection. He continued to provide pain management services for appellant.

3

On January 26, 2010 OWCP expanded acceptance of appellant’s claim to include a
ruptured lumbar disc. On February 27, 2010 appellant accepted a modified position with the
employing establishment.
On September 23, 2010 appellant requested reconsideration of the September 14, 2009
decision. She asserted that she could not work from May 8, 2009 until February 2010 and that
the employing establishment did not offer her limited duty during this time.
By decision dated November 5, 2010, OWCP denied modification of its September 14,
2009 decision. It found that appellant’s attending physician had not provided a reasoned opinion
that she was unable to return to work. OWCP further determined that Dr. Galyon found that she
could perform modified employment and that the employing establishment indicated that such
work was available.
On appeal, appellant argues that from June 29, 2009 through February 10, 2010 her
attending physician did not release her to return to work. She maintains that the employing
establishment did not offer her modified duty until February 11, 2010.
LEGAL PRECEDENT
The term disability as used in FECA6 means the incapacity because of an employment
injury to earn the wages that the employee was receiving at the time of injury.7 Whether a
particular injury caused an employee disability for employment is a medical issue which must be
resolved by competent medical evidence.8 When the medical evidence establishes that the
residuals of an employment injury are such that, from a medical standpoint, they prevent the
employee from continuing in the employment held when injured, the employee is entitled to
compensation for any loss of wage-earning capacity resulting from such incapacity.9 The Board
will not require OWCP to pay compensation for disability in the absence of any medical
evidence directly addressing the specific dates of disability for which compensation is claimed.
To do so would essentially allow employee’s to self-certify their disability and entitlement to
compensation.10
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter. While the claimant has the responsibility to establish entitlement to compensation,
OWCP shares responsibility in the development of the evidence. It has the obligation to see that
11

6

5 U.S.C. § 8101 et seq.; 20 C.F.R. § 10.5(f).

7

Paul E. Thams, 56 ECAB 503 (2005).

8

Id.

9

Id.

10

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

11

Vanessa Young, 55 ECAB 575 (2004).

4

justice is done.12 Accordingly, once OWCP undertakes to develop the medical evidence further,
it has the responsibility to do so in the proper manner.13
ANALYSIS
OWCP accepted that appellant sustained lumbar strain due to a May 8, 2009 motor
vehicle accident. Appellant filed a claim for compensation commencing June 29, 2009. On
November 30, 2009 OWCP referred her for a second opinion examination with Dr. Galyon. In a
report dated December 31, 2009, Dr. Galyon diagnosed a disc herniation at L4-5 compressing
against the left nerve root as a result of the May 8, 2009 motor vehicle accident. He found that
appellant was disabled from her usual employment pending surgery and provided work
restrictions. Based on Dr. Galyon’s opinion, OWCP expanded acceptance of the claim to
include a ruptured herniated disc.
As discussed, proceedings under FECA are not adversarial in nature and OWCP is not a
disinterested arbiter. While the claimant has the burden to establish entitlement to compensation,
OWCP shares responsibility to see that justice is done.14 Further, once OWCP undertakes to
develop the medical evidence further, it has the responsibility to do in a manner that will resolve
the relevant issues in the case.15 Dr. Galyon did not specifically address whether appellant was
disabled from June 29, 2009 until the time of his evaluation, however, his opinion supports that
she experienced disability following her motor vehicle accident. As OWCP sought the opinion
of him, it has the responsibility to obtain an opinion that adequately addresses the relevant
issues.16 On remand, it should request that Dr. Galyon provide a supplemental report regarding
appellant’s ability to work from June 29, 2009 through the time of his examination.17
After this and any other further development that OWCP deems necessary, it should issue
a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

12

Richard E. Simpson, 55 ECAB 490 (2004).

13

Melvin James, 55 ECAB 406 (2004).

14

Jimmy A. Hammons, 51 ECAB 219 (1999).

15

See Melvin James, supra note 13.

16

Id.; see also Peter C. Belkind, 56 ECAB 580 (2005).

17

There is no evidence that the employing establishment offered appellant modified employment during the
relevant time period.

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ORDER
IT IS HEREBY ORDERED THAT the November 5, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: December 20, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6