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

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-712
Issued: January 27, 2010

Case Submitted on the Record

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

JURISDICTION
On January 22, 2009 appellant filed a timely appeal from the May 5, 2008 and January 2,
2009 decisions of the Office of Workers’ Compensation Programs that denied his claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
appeal.
ISSUE
The issue is whether appellant established that he sustained an ankle or hip condition as a
consequence of his accepted osteoarthritis of the right knee or major depressive disorder.
On appeal, his attorney contends that the report of the impartial specialist failed to
explain how appellant’s work-related injury did not contribute in any way or to any degree to the
claimed consequential conditions.
FACTUAL HISTORY
On January 27, 2005 appellant, then a 51-year-old retired mail handler, filed an
occupational disease claim attributing degenerative joint disease of his right knee to walking,

standing, lifting mail and loading trucks in his federal employment. He first became aware of the
disease on November 2, 2000 and of its relationship to his employment on January 7, 2005.1 On
February 16, 2006 the Office accepted that appellant sustained a permanent aggravation of
osteoarthritis of his right knee.2 Appellant elected to receive compensation benefits as of
March 10, 2003 and was placed on the periodic rolls. On June 27, 2007 the Office accepted
major depressive disorder as employment related.
On October 24, 2007 appellant, through his attorney, requested that his claim be accepted
for consequential ankle and hip conditions. In an October 10, 2007 report, Dr. Gary L. Smith, an
attending Board-certified orthopedic surgeon, noted that appellant developed severe arthritis of
the right knee following a fracture and fracture management and complaints of discomfort in his
ankle with weight-bearing activities. Because of the knee deformity, appellant had unusual
stress on his ankle. Dr. Smith advised that a significant portion of appellant’s ankle symptoms
were related to a limp and awkward gait because of his deformed right knee. Appellant also had
complaint of groin and buttock pain and symptoms of synovitis in the right hip which the
physician also attributed to appellant’s right knee condition. In an October 18, 2007 report,
Dr. Smith advised that total knee arthroscopy had been scheduled on several occasions but that
appellant had cancelled surgery.
On October 29, 2007 Dr. Arnold T. Berman, Board-certified in orthopedic surgery and an
Office medical adviser, reviewed the medical evidence of record. He noted that a magnetic
resonance imaging (MRI) scan demonstrated significant bulging discs at multiple levels of the
lumbar spine.3 This advanced lumbar spine pathology would be expected to have some radiation
to the right hip area. Dr. Berman stated that there was no reason to believe that appellant would
develop right hip pain from his knee abnormality. He attributed appellant’s foot drop to a
nonemployment-related proximal tibial fracture appellant sustained in August 1991. Dr. Berman
found that appellant’s right ankle and hip conditions should not be accepted as employment
related.
On November 6, 2007 the Office referred appellant to Dr. Yram J. Gross, a Boardcertified orthopedic surgeon, for a second opinion evaluation. In a December 12, 2007 report, he
reviewed of the medical record and appellant’s history of treatment. Appellant complained of
right knee pain, stiffness, locking and unsteadiness; right ankle pain with weakness and
unsteadiness since a foot drop that developed three years prior; and pain over the lateral aspect of
1

Appellant retired on disability effective January 7, 2005. Prior to his federal employment, on October 3, 1979
he had a work injury in which he fell 32 feet onto a factory roof injuring his wrists, ankles, both legs and spine. He
had multiple fractures and several surgeries subsequent to this accident including a November 1988 left below knee
amputation. In August 1991, appellant sustained a nonwork-related fracture of his right knee requiring open
reduction internal fixation surgery of his proximal tibia. He was also in a nonoccupational motor vehicle accident
on March 10, 2003 and had subsequent cervical disc surgery on May 13, 2003. Appellant stopped work in
May 2003 and did not return.
2

The Office had referred appellant to Dr. Stephen R. Bailey, a Board-certified orthopedic surgeon, who provided
a February 8, 2006 report in which he advised that appellant’s right knee was permanently aggravated by his
employment duties and that he was totally disabled.
3

An August 27, 2007 MRI scan of the lumbar spine demonstrated a very mild disc bulge at L2-3, a mild disc
bulge at L3-4, a diffuse disc bulge at L4-5, and a mild diffuse disc bulge at L5-S1.

2

the right hip, which began one year prior. Physical examination revealed a slightly asymmetric
gait with a left lower extremity prosthesis present. There was mild tenderness to palpation over
the greater trochanter of the right hip. The right knee demonstrated valgus alignment with
notable deformity and effusion with decreased range of motion and crepitance throughout.
Appellant reported decreased sensation in the first web space and over the dorsum of the foot but
not in a dermatomal distribution. Notable foot drop was present. Tibialis anterior and extensor
hallucis longus were manually graded at 1/5, and gastroc soleus strength at 2/5.
An x-ray of the pelvis demonstrated no evidence of fracture or dislocation. X-ray of the
right leg demonstrated marked valgus deformity and tricompartmental and patellofemoral endstage degenerative changes. X-ray of the right ankle demonstrated overall normal alignment
with no evidence of fracture, dislocation or subluxation. Dr. Gross diagnosed right knee endstage post-traumatic arthritis, the result of the nonindustrial August 1991 injury with workrelated aggravation; right lower extremity foot drop with subsequent ankle stiffness, not related
to the right knee condition or factors of federal employment; and right hip pain, not related to the
right knee condition or factors of federal employment. He found that appellant’s foot drop was
most likely related to the plateau fracture and its subsequent treatment, and the ankle stiffness
most likely related to the chronic foot drop. Dr. Gross recommended right knee arthroplasty and
stated once that appellant had been provided with adequate rehabilitation from knee
reconstruction, he would be able to tolerate sedentary work.
The Office found a conflict in medical opinion arose between Dr. Smith and Dr. Gross as
to whether appellant’s right ankle and hip conditions were employment related.4 It referred him
to Dr. Michael J. Seel, a Board-certified orthopedic surgeon, for an impartial medical
examination.
In a February 5, 2008 report, Dr. Seel reviewed the history of appellant’s accepted right
knee condition, medical treatment and a statement of accepted facts. He noted that appellant
complained of pain to the right lateral hip, low back and right buttock. Dr. Seel noted a history
of a nonemployment-related fall from a height in 1979 that ultimately resulted in a left below the
knee amputation in 1989. On August 26, 1991 appellant was helping to move a washing
machine that fell against his right leg and resulted in a proximal tibia fracture. He underwent an
open reduction and internal fixation on August 27, 1991. Cervical spine surgery was performed
in June 2003 and appellant had surgery on January 28, 2008 for a right total knee arthroplasty.
Dr. Seel provided finding on physical examination, noting satisfactory varus and valgus stability,
inability to dorsiflex the right lower extremity, and minimal inversion/eversion motion. The left
lower extremity revealed the prosthesis in place. Dr. Seel stated that appellant’s right lateral hip
pain was due to probable trochanteric bursitis with a history of right foot drop. He noted that
appellant’s claim has been accepted for a permanent aggravation of osteoarthritis of the right
knee. As appellant was 10 days post surgery, Dr. Seel anticipated that he would be able to return
to light-duty work at three months following surgery. He advised that appellant’s right hip and
foot drop conditions were not employment related. Dr. Seel noted that appellant required care
for his right knee condition consisting of physical therapy.

4

On January 21, 2008 Dr. Smith performed a total right knee arthroplasty.

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On February 20, 2008, Dr. Smith noted that appellant was progressing well following
surgery. On March 27, 2008 he noted that when appellant got off crutches and went to a cane, he
developed increased discomfort and swelling. Dr. Smith advised that x-rays of the knee
components looked good and recommended continued therapy.
In a May 5, 2008 decision, the Office found that appellant’s right ankle and hip
conditions were not consequential to his employment injury.
On May 8, 2008 appellant, through his attorney, requested a hearing. However, a review
of the written record was subsequently requested.
In a July 24, 2008 report, Dr. Smith advised that appellant was making a slow recovery
from his right knee surgery. He stated that as a result of appellant’s initial trauma to the right
leg, he had a chronic nerve injury that caused weakness of the right ankle and foot that made him
walk awkwardly and made the muscle pull on the ankle unevenly. Dr. Smith stated that physical
examination revealed normal motion with tenderness over the hip abductors and some pain with
resisted use but that x-rays showed no joint abnormality or arthritis. His clinical impression was
that the pain was a hip tendinitis or bursitis and that this condition was not directly related to hip
trauma but to limping caused by appellant’s left leg amputation and right knee deformity. In a
November 19, 2008 treatment note, Dr. Smith diagnosed total knee arthroplasty with continued
stiffness and quad weakness. He noted that appellant was to get a new left knee prosthesis.
In a January 2, 2009 decision, an Office hearing representative affirmed the May 5, 2008
decision.
LEGAL PRECEDENT
It is an accepted principle of workers’ compensation law that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause which is attributable to the employee’s own intentional conduct.5
Regarding the range of compensable consequences of an employment-related injury, Larson
notes that, when the question is whether compensability should be extended to a subsequent
injury or aggravation related in some way to the primary injury, the rules that come into play are
essentially based upon the concepts of “direct and natural results” and of the claimant’s own
conduct as an independent intervening cause. The basic rule is that a subsequent injury, whether
an aggravation of the original injury or a new and distinct injury, is compensable if it is the direct
and natural result of a compensable primary injury. Thus, once the work-connected character of
any condition is established, the subsequent progression of that condition remains compensable
so long as the worsening is not shown to have been produced by an independent nonindustrial
cause.6

5

Mary Poller, 55 ECAB 483 (2004).

6

A. Larson, The Law of Workers’ Compensation § 10.01 (November 2000).

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A claimant bears the burden of proof to establish a claim for a consequential injury.7 As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, showing causal relationship. Rationalized medical
evidence is evidence which relates a work incident or factors of employment to a claimant’s
condition, with stated reasons of a physician. The opinion must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship of
the diagnosed condition and the specific employment factors or employment injury.8
Section 8123(a) of the Act provides that if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.9 When the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.10
ANALYSIS
The Board finds that appellant has not established that his right ankle or hip conditions
are a consequence of the accepted aggravation of osteoarthritis of the right knee or major
depressive disorder.
The Office accepted that appellant sustained a permanent aggravation of degenerative
disease to his right knee and a major depressive disorder. Dr. Smith, an attending physician,
advised that a significant portion of appellant’ right ankle symptoms were related to the limp and
awkward gait due to his deformed right knee. He also noted complaints in the groin, buttock and
right hip synovitis which he attributed to the accepted right knee condition. Dr. Gross, a second
opinion physician, reviewed appellant’s history and diagnosed right knee end-stage degenerative
changes, which he attributed to appellant’s nonemployment-related injury in 1991. He found
that appellant’s right ankle condition was due to the right foot drop and not to the accepted
aggravation of degenerative disease. Dr. Gross advised that appellant’s right hip symptoms were
not employment related. The Office properly referred appellant to Dr. Seel for an impartial
medical examination based on the conflict arising between Dr. Smith and Dr. Gross.
Dr. Seel provided a February 5, 2008 report in which he extensively reviewed appellant’s
history of injuries to his right and left lower extremities and subsequent medical treatment. He
advised that the 1979 fall from height resulted in the left knee amputation of 1989 and was not
employment related. In 1991, appellant sustained a nonemployment-related fracture to the
proximal tibia of the right leg and underwent open reduction surgery. Dr. Seel noted that
appellant’s arthritis of the right knee was subsequently accepted as employment related. He
provided findings on physical examination, noting that appellant was 10 days post surgery for a
7

J.J., 60 ECAB ___ (Docket No. 09-27, issued February 10, 2009).

8

Charles W. Downey, 54 ECAB 421 (2003).

9

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

10

Manuel Gill, 52 ECAB 282 (2001).

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right total knee arthroplasty. Dr. Seel found that appellant’s right lateral hip pain was due to
trochanteric bursitis, a condition that was not causally related to appellant’s former federal
employment. He also noted that appellant’s right foot drop and ankle conditions were not work
related. Dr. Seel advised that appellant did not require further medical care for his accepted right
knee condition as he had recently undergone total knee replacement.
The Board finds that the report of Dr. Seel, the impartial medical specialist, constitutes
the weight of medical opinion. He provided a thorough review of the medical evidence and
based his opinion on a comprehensive examination of appellant’s right lower extremity.
Following examination by Dr. Seel, appellant submitted additional evidence from
Dr. Smith who reported on appellant’s recovery from right knee replacement surgery and stated
that, as a result of his initial right leg trauma in 1991, appellant had a chronic nerve injury that
caused weakness to the right ankle and foot. Dr. Smith appeared to revise his opinion as to
appellant’s right hip condition, noting that x-rays showed no joint abnormality or arthritis. His
impression was hip tendinitis or bursitis not related to hip trauma but by limping due to
appellant’s left leg amputation and right knee deformity. The Board notes that the additional
evidence from Dr. Smith is not sufficient to establish that appellant’s right hip or ankle
conditions were caused or contributed to by his federal employment. Dr. Smith did not
adequately explain how the aggravation of appellant’s right knee arthritis would produce
tendinitis or bursitis to the right hip. As noted, the right hip x-rays which Dr. Smith reviewed did
not show any joint abnormality or arthritis. In this regard, Dr. Smith supported the diagnosis of
bursitis as noted by Dr. Seel. The record reflects that appellant has significant injury to both
lower extremities. The medical evidence, however, does not establish his right hip or ankle
conditions as related to his former federal service as a mail handler.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that his right
hip or ankle conditions are a consequence of the accepted permanent aggravation of
osteoarthritis to the right knee.

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 2, 2009 and May 5, 2008 be affirmed.
Issued: January 27, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 19-1818
Issued: April 14, 2020

Case Submitted on the Record

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

JURISDICTION
On August 29, 2019 appellant, through counsel, filed a timely appeal from a July 5, 2019
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.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish that an incident
occurred in the performance of duty on February 15, 2018, as alleged.
FACTUAL HISTORY
On February 15, 2018 appellant, then a 45-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that he sustained injury at approximately 4:00 a.m. on that date when
a “tractor trailer moved w emp. inside -- jumped off” while in the performance of duty. He alleged
that he needed medical evaluation and possibly went into shock. On the reverse side of the claim
form, appellant’s supervisor checked a box marked “Yes” acknowledging that appellant had been
injured in the performance of duty. Appellant stopped work on that same date.
In a development letter dated February 23, 2018, OWCP informed appellant of the
deficiencies in his claim. It advised him of the type of factual and medical evidence necessary to
establish his claim and provided a factual questionnaire for his completion. OWCP afforded
appellant 30 days to respond.
In a February 15, 2018 state workers’ compensation report, appellant related that the driver
of a truck did not set the brake or chock the wheels, and the truck rolled forward toward his forklift,
causing him to dive off. In the same report, an unidentifiable healthcare provider diagnosed lower
back pain and lateral left knee strain.
Appellant presented to the emergency department on February 15, 2018 and was treated
by Dr. Timothy Billups, Board-certified in emergency medicine. Dr. Billups reported that
appellant was experiencing lower back and left lateral knee pain when the forklift appellant was
riding at work fell onto its side, causing him to swing out of the forklift. An x-ray of the lumbar
spine revealed lower lumbar spondylosis while an x-ray of the left knee revealed no acute osseous
abnormality. Dr. Billups diagnosed acute low back pain and left knee strain.
By decision dated April 16, 2018, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that the February 15, 2018 employment incident
occurred as alleged. It noted that it was unclear as to how and where the claimed injury occurred
because he provided inconsistent statements and had not responded to the February 23, 2018
development questionnaire. Therefore, the requirements had not been met to establish an injury
as defined by FECA.
An August 2, 2018 memorandum of telephone call (Form CA-110) related that appellant’s
manager, J.C., who was on site when the alleged employment incident occurred, had contacted
OWCP to verify that appellant sustained an injury on February 15, 2018 as alleged. She attested
that she saw him remove his seatbelt and jump out of the forklift. J.C. noted that appellant
subsequently fell to the concrete ground and the forklift landed on its side. She added that he was
visually disoriented and dizzy and that the employing establishment sent him to the hospital to see
whether he had any concussions or head injuries. J.C. indicated that her intent was to confirm that
appellant sustained an actual injury on February 15, 2018 and that the incident was very traumatic
for him.

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In a letter dated August 10, 2018, the employing establishment disagreed with OWCP’s
April 16, 2018 decision, asserting that the February 15, 2018 employment incident did occur as
alleged and that appellant sustained an injury as a result of the incident. J.C. again described the
employment incident noting that a tow motor fell from the back of the trailer truck to the concrete
ground of the parking lot on February 15, 2018. She explained that appellant appeared to be
shaken up and unsure of everything that happened during the employment incident “because it was
all within a very short time span.” J.C. noted that he was instructed by the employing establishment
to go to the emergency room following the February 15, 2018 employment incident to seek
medical treatment “due to the serious nature of what had occurred.”
On April 8, 2019 appellant, through counsel, requested reconsideration of the April 16,
2018 decision.
With the request for reconsideration, appellant submitted a September 6, 2018 medical
report, wherein Dr. James Goff, Board-certified in sports medicine, noted appellant’s complaint of
lower back pain and history of a worked-related injury on February 15, 2018. Appellant explained
that he was driving a forklift at the employing establishment where he worked and was loading a
semi-truck when it started to move. He indicated that he grabbed the handle in the forklift and
swung himself into the back of the semi-truck to avoid falling to the concrete ground and injured
his back. Dr. Goff noted that appellant’s pain severity was intermittent and elevated with sleeping
incorrectly, bending, lifting, pushing, and pulling. He further noted that appellant claimed that he
had no prior lower back surgery. Dr. Goff diagnosed lumbar region spondylosis.
By decision dated July 5, 2019, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
3

Id.

4

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

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

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are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. Second component is whether the employment incident
caused a personal injury and can be established only by medical evidence. 7
An injury does not have to be confirmed by eyewitnesses in order to establish the fact that
an employee sustained an injury in the performance of duty, but the employee’s statements must
be consistent with the surrounding facts and circumstances and his or her subsequent course of
action.8 The employee has not met his or her burden of proof to establish the occurrence of an
injury when there are such inconsistencies in the evidence as to cast serious doubt upon the validity
of the claim. Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast serious doubt on an employee’s statements
in determining whether a case has been established. An employee’s statement alleging that an
injury occurred at a given time and in a given manner is of great probative value and will stand
unless refuted by strong or persuasive evidence. 9
ANALYSIS
The Board finds that appellant has met his burden of proof to establish that the February 15,
2018 employment incident occurred in the performance of duty, as alleged.
Appellant has provided a consistent account of the time, place, and manner of injury that
has not been refuted by strong or persuasive evidence contained in the record. 10 He has
consistently described that he fell out of the forklift he was driving, either by jumping or swinging
out of it, which injured him. Appellant also noted that he was in shock and needed medical
evaluation. He immediately sought medical treatment in the emergency room on the same day
after his alleged employment incident.
The Board notes that appellant’s claim form was signed by his supervisor who
acknowledged that the employment incident had occurred in the performance of duty as alleged.
In an August 2, 2018 telephone memorandum (Form CA-110) and August 10, 2018 letter,
appellant’s manager, J.C., attested that she witnessed the February 15, 2018 employment incident
when he was dislodged from the forklift he was driving as a semi-truck moved toward the forklift.
She further explained that, after falling out of the forklift, appellant appeared visually disoriented,
shaken up, and unsure of everything that happened during the employment incident “because it

7

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

See J.M., Docket No. 19-1024 (issued October 18, 2019); M.F., Docket No. 18-1162 (issued April 9, 2019).

9

See M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67 (2007).

10

See S.W., Docket No. 17-0261 (issued May 24, 2017) (the Board found that OWCP improperly determined that
the alleged employment incident did not occur when appellant provided consistent accounts of the claimed incident
and there was no evidence to refute her detailed description).

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was all within a very short time span.” The employing establishment required him to seek
immediate medical attention following the incident.
As set forth above, a claimant’s statement that an injury occurred at a given time, place,
and in a given manner is of great probative value and will stand unless refuted by strong or
persuasive evidence. 11 Having found no convincing evidence of inconsistency, the Board finds
that appellant has established that the February 15, 2018 employment incident occurred in the
performance of duty, as alleged.
As appellant has established that, the February 15, 2018 employment incident factually
occurred, the question becomes whether this incident caused an injury.12 The case must therefore
be remanded for consideration of the medical evidence of record. Following this and other such
further development as is deemed necessary, OWCP shall issue a de novo decision addressing
whether appellant has met his burden of proof to establish an injury causally related to the accepted
February 15, 2018 employment incident. 13
CONCLUSION
The Board finds that appellant has met his burden of proof to establish that an incident
occurred in the performance of duty on February 15, 2018, as alleged. The case is not in posture
for decision, however, with regard to whether he has established an injury causally related to the
accepted February 15, 2018 employment incident.

11

A.C., Docket No. 18-1567 (issued April 9, 2019); Gregory J. Reser, 57 ECAB 277 (2005).

12

See C.M., Docket No. 19-0009 (issued May 24, 2019).

13

Supra note 11. See also Betty J. Smith, 54 ECAB 174 (2002).

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ORDER
IT IS HEREBY ORDERED THAT the July 5, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: April 14, 2020
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.K., Appellant
and
U.S. POSTAL SERVICE, HARTFORD
PROCESSING & DISTRIBUTION CENTER,
Hartford, CT, Employer
__________________________________________

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

Docket No. 17-1956
Issued: March 6, 2018

Case Submitted on the Record

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

JURISDICTION
On September 20, 2017 appellant filed a timely appeal from an August 21, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish a left elbow injury
causally related to the accepted September 28, 2016 employment incident.

1

5 U.S.C. § 8101 et seq.

2
Appellant submitted new evidence on appeal. However, the Board’s jurisdiction is limited to reviewing the
evidence that was before OWCP at the time of its final decision. Therefore, the Board is precluded from reviewing
this new evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On September 28, 2016 appellant, then a 59-year-old mail processing equipment
technician, filed a traumatic injury claim (Form CA-1) alleging that on that day he injured his
elbow and from his arm to his hand while putting on parts on machine belts, rollers, gates, and
bearings at work. He did not stop work at that time.
OWCP received an unsigned work status note dated September 30, 2016 from Premier
Urgent Care diagnosed left-sided lateral epicondylitis. The note also indicated that appellant was
fit for duty without restrictions that day.
OWCP also received a September 30, 2016 work status duty report (Form CA-17) from
Michelle L. Caudle, a physician assistant, who noted a history that on September 29, 2016
appellant injured his elbow and arm to hand while putting on parts on machine belts, rollers,
gates, and bearings. Ms. Caudle described clinical findings, diagnosed lateral epicondylitis due
to injury, and advised that appellant could perform his regular work duties. Documents from
Physical Therapy & Sports Medicine Centers indicated that appellant had appointments on
various dates during the period October 6 through November 10, 2016 for the treatment of his
elbow.
In a work status note dated October 14, 2016 and narrative reports dated October 14 and
21 and November 10, 2016, Dr. Cliff W. Wagner, an attending physician Board-certified in
emergency medicine, indicated that appellant had been seen for a follow-up visit for left elbow
pain. He reported appellant’s history and findings on examination. Dr. Wagner diagnosed
lateral epicondylitis, unspecified elbow stable/improved. He advised that appellant was fit for
duty without restrictions.
In reports and work status notes dated September 30 and October 21, 2016, Ms. Caudle
again noted appellant’s history and findings. She diagnosed lateral epicondylitis and indicated
that appellant could only work within restrictions.
A physical therapy recertification note dated November 10, 2016, signed by a physical
therapist and cosigned by Ms. Caudle, listed diagnoses of left elbow lateral epicondylitis, pain in
the left elbow and left arm, and weakness.
OWCP, by letter dated November 17, 2016, advised appellant of the deficiencies of his
claim. It attached a development questionnaire for his completion and afforded him 30 days to
submit additional medical and factual evidence.
OWCP subsequently received an additional document from Physical Therapy & Sports
Medicine Centers which noted appellant’s upcoming appointments.
On November 25, 2016 appellant responded to OWCP’s November 17, 2016
development questionnaire. He essentially reiterated the factual history of injury he provided on
the September 28, 2016 CA-1 form. Appellant related that he had no similar disability or
symptoms prior to his claimed injury.
OWCP received a November 28, 2016 report signed by Dr. Wagner. Dr. Wagner noted
that appellant was seen in urgent care on various dates from September 30 through
2

November 10, 2016 due to pain in his left elbow which developed while he was at work on
September 28, 2016. He related that this was brought on and aggravated by his job at the
employing establishment where he was required to perform repetitive motions with his left
elbow throughout the day. Dr. Wagner provided examination findings and restated his prior
diagnosis of lateral epicondylitis. He reported that appellant’s physical therapy treatment was
very helpful and was alleviating his pain and symptoms. Based on appellant’s description of his
work-related duties and symptoms, and examination findings, Dr. Wagner opined that his lateral
epicondylitis was caused or aggravated by his job-related responsibilities.
OWCP also received additional documents from Physical Therapy & Sports Medicine
Centers which noted appellant’s upcoming appointments.
Physical therapy addendum reports dated October 4 and November 10, 2016, cosigned by
Dr. Wagner, noted a history that appellant injured his left elbow while lifting/gripping and
pulling while working on a machine at the employing establishment. Dr. Wagner reiterated his
diagnosis of left elbow lateral epicondylitis. He also diagnosed pain in the left elbow and arm,
and weakness. Dr. Wagner provided a history of appellant’s medical treatment and discussed his
findings. In the October 4, 2016 addendum report, he determined that appellant was currently
unable to work at full capacity due to his inability to tolerate gripping, lifting, pulling, or pushing
secondary to impaired “ms” performance, joint mobility, posture, and pain associated with
symptoms consistent with lateral epicondylalgia. In the November 10, 2016 addendum report,
Dr. Wagner provided an assessment that appellant’s lateral elbow pain had improved with active
and passive range of motion and grip strength, but that he continued to experience elbow pain
when gripping or lifting.
In a March 1, 2017 decision, OWCP denied appellant’s traumatic injury claim as the
medical evidence of record did not contain a rationalized medical opinion sufficient to establish a
causal relationship between his diagnosed condition and the accepted September 28, 2016
employment-related incident.
On March 24, 2017 appellant requested reconsideration. He submitted an undated
narrative statement in which he described the September 28, 2016 work incident and indicated
that his injury was immediately reported to his supervisor. Appellant also submitted a
description of his mail processing equipment technician position, photographs of the equipment
on which he worked and parts he changed on the equipment, and assignment work sheets. He
described his medical treatment and claimed that he continued to perform his regular work duties
despite having pain and wearing an elbow support.
By decision dated August 21, 2017, OWCP conducted a merit review as the
reconsideration decision was delayed beyond 90 days.3 It denied modification of its March 1,

OWCP procedure provides: “When a reconsideration decision is delayed beyond 90 days, and the delay
jeopardizes the claimant’s right to review of the merits of the case by the Board, OWCP should conduct a merit
review. That is, the basis of the original decision and any new evidence should be considered and, if there is no
basis to change the original decision, an order denying modification (rather than denying the application for review)
should be prepared.” Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.7(a)
(October 2011); M.D., Docket No. 13-1344 (issued November 7, 2013).
3

3

2017 decision as the factual evidence submitted was immaterial to the underlying medical issue
in the case.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence5 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which compensation is claimed is causally related to
that employment injury.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.7
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time and place, and in the manner alleged.8
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.9 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing causal relationship between the claimed condition and the
identified factors.10 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that a
traumatic injury was caused by the September 28, 2016 employment incident. Appellant failed
to submit sufficient medical evidence to establish that he had a left elbow injury causally related
to the accepted employment incident.
Dr. Wagner’s November 28, 2016 report noted a history of the September 28, 2016 work
injury and appellant’s description of his work duties which required him to perform repetitive
motions with his left elbow. He discussed examination findings and diagnosed left elbow lateral
4

Supra note 1.

5

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

6

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

7

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

8

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

9
John J. Carlone, 41 ECAB 354 (1989); see supra note 1 at § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee),
10.5(q) (traumatic injury and occupational disease defined, respectively).
10

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

11

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

4

epicondylitis. Dr. Wagner opined that, based on appellant’s description of his job duties and
symptoms, and results on examination, the diagnosed condition was caused or aggravated by his
job-related responsibilities. However, he did not provide a probative, rationalized opinion
regarding whether the September 28, 2016 employment incident caused a personal injury.12
Dr. Wagner did not sufficiently explain why, medically, appellant would have sustained a left
elbow injury because he put parts on machine belts, rollers, gates, and bearings at work on
September 28, 2016. While his remaining reports dated October 4 and November 10, 2016 noted
a history of the September 28, 2016 employment incident and noted left elbow diagnoses, he did
not opine whether appellant’s conditions and resultant disability were caused by the accepted
employment incident.13 Thus, the Board finds that Dr. Wagner’s reports are insufficient to meet
appellant’s burden of proof.
Appellant also provided physical therapy records and notes from a physician assistant.
This evidence has no probative medical value. The Board has held that neither a physician
assistant nor a physical therapist is considered a physician as defined under FECA.14 As such,
this evidence is also insufficient to meet appellant’s burden of proof.
The Board finds that appellant has failed to submit rationalized, probative medical
evidence sufficient to establish that he sustained a left elbow injury causally related to the
September 28, 2016 employment incident. Appellant therefore did not meet his 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 met his burden of proof to establish a left elbow
injury causally related to the September 28, 2016 employment incident.

12

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
13
A.D., 58 ECAB 159 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).
14

The term physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors,
and osteopathic practitioners within the scope of their practice as defined by State law. 5 U.S.C. § 8102(2); Sean
O’Connell, 56 ECAB 195 (2004) (physician assistants); Jennifer L. Sharp, 48 ECAB 209 (1996) (physical
therapists). See also Gloria J. McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (a
medical issue such as causal relationship can only be resolved through the submission of probative medical evidence
from a physician).

5

ORDER
IT IS HEREBY ORDERED THAT the August 21, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 6, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.W., Appellant
and
DEPARTMENT OF THE AIR FORCE,
JBSA-RANDOLPH AIR FORCE BASE,
San Antonio, TX, Employer
__________________________________________

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

Docket No. 19-1966
Issued: May 1, 2020

Case Submitted on the Record

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

JURISDICTION
On September 26, 2019 appellant filed a timely appeal from an April 8, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The record provided to the Board includes evidence received after OWCP issued its April 8, 2019 decision.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish a back condition
causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On February 14, 2019 appellant, then a 51-year-old electronic mechanic, filed an
occupational disease claim (Form CA-2) alleging that she aggravated her preexisting lower back
condition due to factors of her federal employment. She noted that she experienced pain in the
lower back and right leg and suspected a pinched sciatic nerve. Appellant explained that she had
back surgery in 2016 and, due to repetitive lifting related to connecting and testing cables at work,
she had reinjured her back. She noted that she first became aware of her condition and realized its
relationship to her federal employment on December 1, 2018. Appellant did not stop work.
In support of her claim, appellant submitted a position description for an electronic
integrated systems mechanic and a notification of personnel action (Form SF-50) approved on
August 19, 2018 by the employing establishment, which advised that she was employed in that
position effective that same date. She also submitted an undated list of future medical
appointments scheduled for March 6 and 8, 2019.
In an undated statement, appellant noted that on May 7, 2018 the employing establishment
placed her on a different workload despite her complaint that it would violate her modified duties
of no lifting greater than 30 pounds which were in place after her 2016 back surgery. She asserted
that the repetitive lifting of units that weighed more than 30 pounds, sometimes even 80 pounds,
over a period of time reinjured her lower back. Appellant noted that the employing establishment
provided no reasonable accommodations for her and that she had to return to see her neurologist.
She indicated that she now experienced pain in the lower back down the right leg and the sciatic
nerve.
In a February 12, 2019 prescription slip, Dr. Kim. W. Johnston, a Board-certified
neurosurgeon, opined that appellant had exacerbated her right sciatica and advised that she should
not lift more than 30 pounds.
In a February 13, 2019 work status report, Jay A. Miller, a certified physician assistant
(PA-C), noted that appellant sustained a nonoccupational illness or injury and recommended that
she return to work with temporary medical restrictions.
In a statement dated February 14, 2019, appellant again noted that repetitive lifting of units
and test station cables weighing over 30 pounds caused a reinjury to her back. She noted that the
sciatic nerve in her back felt pinched and she had pain radiating down her right leg. Appellant
provided a December 1, 2018 date of injury. Mr. Miller diagnosed sciatica and recommended that
she return to limited-duty work for 30 days.

2

In a February 26, 2019 development letter, OWCP advised appellant of the deficiencies in
her claim and afforded her 30 days to submit appropriate medical evidence. No further evidence
was received.3
By decision dated April 8, 2019, OWCP denied appellant’s claim, finding that the medical
evidence submitted was insufficient to establish a causal relationship between her diagnosed
sciatica and the accepted factors of her federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,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 establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the claimant.8
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.9 The opinion of the physician must be based
on a complete factual and medical background of the employee, must be one of reasonable medical

3

In response to the February 26, 2019 development letter, appellant submitted copies of documents already of
record.
4

Supra note 1.

5
J.W., Docket No. 18-0678 (issued March 3, 2020); 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.S., Docket No.18-0657 (issued February 26, 2020); J.M., Docket No. 17-0284 (issued February 7, 2018);
James E. Chadden, Sr., 40 ECAB 312 (1988).
7

L.J., Docket No. 19-1343 (issued February 26, 2020); R.R., Docket No.18-0914 (issued February 24, 2020);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

S.C., Docket No. 18-1242 (issued March 13, 2019); R.H., 59 ECAB 382 (2008).

9
A.M., Docket No. 18-1748 (issued April 24, 2019); T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB
238 (1996).

3

certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and specific employment factors identified by the employee.10
In a case where a preexisting condition involving the same part of the body is present and
the issue of causal relationship therefore involves aggravation, acceleration, or precipitation, the
physician must provide a rationalized medical opinion that differentiates between the effects of the
work-related injury or disease and the preexisting condition.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a back condition
causally related to the accepted factors of her federal employment.
In support of her claim, appellant submitted a February 13, 2019 work status report
providing temporary work restrictions, a February 12, 2019 prescription slip by Mr. Miller, and an
occupational injury and illness report dated February 14, 2019 diagnosing sciatica by Mr. Miller.
Certain healthcare providers such as physician assistants are not considered “physician[s]” as
defined under FECA.12 Consequently, their medical findings and/or opinions will not suffice for
purposes of establishing entitlement to FECA benefits.13
As there is no rationalized medical evidence of record explaining how appellant’s
employment duties caused or aggravated her conditions, the Board finds that she has not met her
burden of proof.
On appeal appellant explains that she could not provide further medical evidence because
she needed to go through several processes such as setting schedules for appointments with her
neurologist and undergoing diagnostic studies. As set forth above, appellant failed to submit
sufficient evidence to establish her 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.

10

R.G., Docket No. 18-0792 (issued March 11, 2020); D.J., Docket No. 19-1301 (issued January 29, 2020); I.J.,
59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).
11
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
N.C., Docket No. 19-1191 (issued December 19, 2019); R.D., Docket No. 18-1551 (issued March 1, 2019).
12

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
Id. at § 8101(2). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter
2.805.3a(1) (January 2013); 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); K.W., 59 ECAB
271, 279 (2007).
13

4

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a back condition
causally related to the accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the April 8, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 1, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees' Compensation Appeals Board

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

5


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

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Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0392
Issued: October 18, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 29, 2015 appellant, through counsel, filed a timely appeal from an
October 30, 2015 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.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish an emotional
condition and additional physical conditions causally related to the November 13, 2013
employment incident.
On appeal, counsel contends that a June 12, 2015 medical report from Dr. Osafradu
Opam, an attending neurologist, a November 30, 2014 report from Dr. Peter Calapai, Ph.D., and
a December 2, 2014 report from Dr. Jeffrey I. Rubin, Ph.D., both licensed psychologists, are
sufficient to establish an injury in the performance of duty.
FACTUAL HISTORY
On November 14, 2013 appellant, then a 56-year-old parcel post collections driver, filed
a traumatic injury claim (Form CA-1) alleging that on November 13, 2013 he sustained
traumatic mental anguish as a result of being physically assaulted in the face and racially
attacked at work. He stopped work on the filing date of his claim and has not returned to work.
The employing establishment indicated that the incident occurred in the performance of duty.3
On November 15, 2013 the employing establishment issued a Form CA-16 authorizing
treatment by Dr. Akwasi A. Achampong, a Board-certified internist. In a November 15, 2013
attending physician’s report, Dr. Achampong provided a history that appellant was attacked and
assaulted at work. He diagnosed post-traumatic headache and indicated by checking a box
marked “yes” that the diagnosed condition was caused or aggravated by an employment activity.
Dr. Achampong advised that appellant was totally disabled from November 13 through
December 16, 2013.
By letter dated November 22, 2013, OWCP notified appellant of the deficiencies of his
claim and afforded him 30 days to submit additional factual and medical evidence.
In a disability certificate dated November 29, 2013, Dr. Opam advised that appellant was
totally incapacitated through December 29, 2013. He provided a history of injury that on
November 13, 2013 appellant was physically and verbally assaulted “by a white man.”
Dr. Opam diagnosed work-related status post left facial contusion, cervical myofascitis, and
post-traumatic acute stress disorder.
A November 30, 2013 medical report from a chiropractor’s office with an illegible
signature advised that on November 13, 2013 appellant was assaulted on the head and face at
work.
The provider noted appellant’s symptoms and diagnosed cervical brachial
neuropathy/radiculopathy, cervicalgia, cervical subluxations, and cervical sprain/strain. The
provider opined that the diagnosed conditions were causally related to the November 13, 2013
3

The record contains documents from the Kings County New York District Attorney’s office and the Criminal
Court for the City of New York indicating that the assailant was charged with several offenses including criminal
mischief as a hate crime, attempted assault, menacing, and harassment with respect to appellant on
November 13, 2013. Appellant stated that the assailant threatened him, used racial epithets, smacked him on the
face, grabbed his jacket, and broke his sunglasses. On November 14, 2013 the New York City Criminal Court,
Kings County Branch, issued a temporary order of protection directing the assailant to stay away from appellant.

2

incident. The provider recommended an x-ray of the cervical, thoracic, and lumbar spine to
evaluate for fracture, dislocation, misalignment, and a magnetic resonance imaging (MRI) scan
or computerized tomography scans to rule out herniated nucleus pulposus.
In a December 31, 2013 decision, OWCP denied appellant’s claim as the medical
evidence did not provide a rationalized medical opinion establishing that the accepted
employment incident caused or aggravated his post-traumatic headaches, left facial contusion,
cervical myofascitis, and post-traumatic/acute stress disorder.
In a December 30, 2013 disability certificate, received by OWCP on January 21, 2014,
Dr. Opam advised that appellant was totally incapacitated through February 9, 2014. He
reiterated his prior diagnoses of work-related status post left facial contusion, cervical
myofascitis, and post-traumatic acute stress disorder. Dr. Opam reported that appellant
continued to have active symptoms and active exacerbation.
By letter dated May 9, 2014, appellant, through a representative, requested
reconsideration of the December 31, 2013 decision.
In a February 27, 2014 follow-up report, Dr. Opam related that appellant was status post
his November 13, 2013 work-related accident. He noted his treatment and complaints of
recurrent headaches, neck pain and stiffness, anxiousness, poor sleep, and feeling stressed.
Dr. Opam provided findings on examination and addressed appellant’s treatment plan. In a
March 24, 2014 disability certificate, he advised that appellant was totally incapacitated through
May 4, 2014. Dr. Opam reiterated his prior work-related diagnoses and statement regarding
appellant’s current symptoms and exacerbation. In a March 31, 2014 updated report, he noted
appellant’s history of injury and referenced his prior diagnoses. Dr. Opam reiterated that
appellant’s medical conditions were directly related to the November 13, 2013 work incident.
He related that appellant’s facial contusions were consistent with the reported location of being
struck. Dr. Opam advised that it was a common consequence of face and neck trauma to suffer
post-traumatic headaches and cervicalgia of the type that appellant described and symptoms that
were evident on examination.
In a January 30, 2014 letter, James J. Baylis, a licensed clinical social worker, described
appellant’s history of injury and diagnosed post-traumatic stress disorder (PTSD).
In an August 8, 2014 decision, OWCP modified the December 31, 2013 decision in part,
finding that the medical evidence was sufficient to establish that appellant sustained a left facial
contusion as a result of the accepted November 13, 2013 employment incident. It found,
however, that the medical evidence did not provide a rationalized opinion establishing that his
brachial neuritis, unspecified subluxations, neck sprain/strain, cervical myofascitis, and posttraumatic acute stress disorder were causally related to the accepted work incident.
In a September 10, 2014 report, Dr. Opam noted that appellant had recurrent exacerbation
of symptoms from job-related injuries sustained on November 13, 2013. He reiterated his
diagnoses of cervical myofascitis and post-traumatic/acute stress disorder. Dr. Opam requested
that OWCP also accept cervical disc syndrome due to appellant’s present active symptoms and
acute exacerbation.

3

In an October 13, 2014 report, Dr. Opam opined that appellant’s post-traumatic
headaches, brachial neuritis, cervical myofascitis, and acute stress disorder were causally related
to his November 13, 2013 work incident. He related that appellant had trauma to the left side of
his head and neck that was forceful and unexpected. Appellant did not have ample opportunity
to steel himself against the intensity of the blow. Dr. Opam noted that when the head is
subjected to trauma of this type, the neck and upper back are exposed to incredible stress and
neurological consequences. Any wrenching or twisting of the cervical spine, such as when the
neck is forced beyond normal range of motion, results in irritation of the nerves in the spinal
column. This neurologic irritation results in symptoms such as headache, pain, or loss of
strength in the upper arm or back. Dr. Opam maintained that the force of the blow was reflected
in the facial contusion found on examination, caused snapping of the neck similar to whiplash
experienced by passengers in a motor vehicle accident. Not only did appellant have bruising in
the portion of the face that was the point of contact, he suffered the residual effects of the
neurologic collision caused by the sudden shifting of the cervical spine incidental to trauma.
These residual effects were diagnosed as brachial neuritis and cervical myofascitis, resulting in
symptomatic pain in the head, neck, upper back, and left arm. Based upon the narrative history
of traumatic injury, his findings on examination, and experience in the field of neurology,
Dr. Opam concluded that his diagnosed facial, head, and cervical conditions were physical
ramifications of the blow to the head and neck on November 13, 2013. Due to present active
symptoms and acute exacerbation, he requested that OWCP accept cervical disc syndrome.4
In an October 23, 2014 progress report, Dr. Calapai noted appellant’s therapy for stress
symptoms following the November 13, 2013 employment incident. He diagnosed PTSD on Axis
1, hypertension on Axis 3, unemployed, legal involvement, and history of trauma on Axis 4, and
55/60 on Axis 5. Appellant had no diagnosis on Axis 2.
On December 1, 2014 Dr. Opam reported findings on examination and offered diagnoses.
In a December 1, 2014 work capacity evaluation (Form OWCP-5c), he found that appellant was
unable to perform his usual job due to continued active symptoms and acute exacerbation.
Dr. Opam also found that appellant could not work eight hours a day with restrictions due to
increased stress/distress with recurrence of facial pain. In a December 1, 2014 disability
certificate, he advised that appellant was totally incapacitated through January 19, 2015.
Dr. Opam diagnosed left facial neuralgia. Also, on December 1, 2014 he referred appellant for
psychological treatment.5
In an October 30, 2014 cervical MRI scan, Dr. Myrna K. Nussbaum, a Board-certified
radiologist, noted a reversal of the normal cervical lordosis, and bilateral uncovertebral joint
hypertrophy C3-4 resulting in moderately severe right-sided and mild left-sided neuroforaminal
stenosis. She diagnosed moderate degenerative disc disease at C4-5, moderate degenerative disc
disease at C5-6, moderately severe degenerative disc disease at C6-7.
4

An October 15, 2014 x-ray report indicated that no facial bone fractures were identified.

5

Unsigned session notes addressed appellant’s psychological treatment from November 29, 2013 to
October 17, 2014. In prescriptions dated October 13, 2014 and February 2, March 19, and July 10, 2015, Dr. Opam
ordered physical therapy to treat cervical myofascitis. On March 19, 2015 he reported appellant’s responses to a
questionnaire regarding the extent and nature of his injuries.

4

On December 2, 2014 Dr. Rubin reported appellant’s history and findings. He diagnosed
PTSD, which developed consequentially on Axis 1, anxiety, depression, tension, and stress on
Axis 3, psychological stressors that included pain, fatigue, decreased physical capacity,
decreased productivity at home, strained interpersonal relations, inability to work (with related
financial difficulties), moderate severity (enduring circumstances) on Axis 4, and a global
assessment functioning (GAF) score of 90 prior to the November 13, 2013 employment injury
and a current GAF score of 50, which was incident related on Axis 5. Appellant had no
diagnosis on Axis 2. Dr. Rubin opined that the November 13, 2013 employment incident was
the clear, competent, and provocative cause of the consequential emotional and behavioral
symptoms and diagnoses described above. He noted that, while appellant was anxious,
psychological testing was necessary to determine quantitatively how his present anxiety was
specifically related to the accepted work incident. Dr. Rubin also recommended further
evaluation of the type and degree of his depression to determine whether he was suicidal and
whether his reported depression was causally related to the incident in question.
By letter dated July 9, 2015, appellant, through counsel, requested reconsideration of the
August 8, 2014 decision.
In a November 30, 2014 report, Dr. Calapai reiterated the diagnoses set forth in his
October 23, 2014 progress report.
In a June 12, 2015 report, Dr. Opam noted appellant’s history and findings. He reiterated
his diagnoses of cervicalgia, post-traumatic stress reaction, and post-traumatic facial injury.
Dr. Opam also diagnosed cervical disc syndrome with radiculopathy and post-traumatic
aggravated headaches. He noted that, in the November 13, 2013 accident, appellant was
verbally, with racial overtones, and physically assaulted by a white man exerting a tremendous
amount of pressure upon his left face and neck. Range of motion testing consistently showed
painful and significant limitations in the neck area. Dr. Opam related that these injuries had
healed very little by way of scar tissue formation, which was less elastic and less functional than
the original tissues they replaced. This reduced joint motion and resulted in the formation of
fibrosis and lack of normal movement of the nerve root within the intervertebral foramen,
causing irritation of the involved neural structures, and pain. These pathologies clinically
correlated with appellant’s symptoms, findings, physical limitations, and physical and mental
discomforts. Dr. Opam maintained that these findings explained his ongoing pain, suffering, and
physical impairments of the spine and left facial pain. He noted that the absence of prior trauma
to that area suggested that the disc pathologies, nerve, and left facial injuries did not preexist the
work injury. Dr. Opam advised that appellant subsequently developed pervasive general anxiety,
and sad depressed feelings related to the incident and the way it had affected his everyday life
and caused sleep difficulties. He noted that these symptoms often persist for many years and
sometimes through life, placing limitations on daily activities, and, at times, could be quite
disabling. Despite intensive physical therapy with different modalities and activity restrictions,
there was no full recovery. Appellant continued to show signs and symptoms of injury to the
cervical spine, left facial pain, and psychological symptoms such as angry feelings, life changes
due to the accident, general nervousness, forgetfulness, and a sense of general hopelessness
about life. Dr. Opam opined that these changes and symptoms were permanent and stress would
trigger recurrent pain episodes to these regions. He noted that appellant was prone to future and
frequent exacerbations of his symptom complex and further post-traumatic arthritic changes

5

could be expected to the injured areas as he aged, thus contributing to ongoing pain. Dr. Opam
opined that he was a candidate for more aggressive treatment modalities, which would result in
ongoing psychological consultation, pain management intervention, including long-term physical
therapy, and medication. He concluded that appellant’s prognosis was guarded and that his
conditions were chronic, permanent, and disabling in nature.
An April 14, 2014 progress note from Ultimate Pain Management contained an unknown
signature. The note provided appellant’s history of injury and complaints, examination findings,
and reviewed diagnostic test results. Appellant was diagnosed with neck pain, cervical disc with
myelopathy, and a cervical facet condition.
In an October 30, 2015 decision, OWCP denied modification of the August 8, 2014
decision. It found that the medical evidence submitted was insufficiently rationalized to
establish that appellant’s cervical and emotional conditions were causally related to the accepted
November 13, 2013 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence6 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.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
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place, and in the manner alleged.9
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.10 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the

6

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

7

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

8

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

9

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

10

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined, respectively).

6

identified factors.11 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.12
ANALYSIS
The Board finds that this case is not in posture for a decision regarding whether appellant
a sustained emotional condition and additional physical conditions causally related to the
November 13, 2013 employment incident.
Appellant filed a claim for a traumatic injury occurring on November 13, 2013. OWCP
accepted that the employment incident occurred and accepted a facial contusion, but it denied the
claim for additional conditions because the medical evidence was insufficiently rationalized to
establish a causal relationship between his diagnosed brachial neuritis, unspecified subluxations,
neck sprain/strain, cervical myofascitis, and post-traumatic acute stress disorder and his accepted
employment incident of being physically and verbally assaulted in the performance of his duties
as a parcel post collections driver. On appeal, counsel contends that Dr. Opam’s June 12, 2015
report establishes that appellant sustained an injury in the performance of duty.
Following the initial denial of his claim, appellant submitted two reports from Dr. Opam.
In an October 13, 2014 report, Dr. Opam described the accepted November 13, 2013
employment incident and opined that appellant’s post-traumatic headaches, brachial neuritis,
cervical myofascitis, and acute stress disorder were due to this work incident. In his October 13,
2014 report, he explained in detail how the intense and unexpected blow to the left side of
appellant’s head and neck caused the diagnosed physical and emotional conditions. With regard
to the physical component Dr. Opam specifically explained that when the head is exposed to
trauma of this type, especially when unexpected, appellant’s neck and upper back were exposed
to incredible stress. He opined that any wrenching or twisting of the cervical spine, such as
when the neck is forced beyond normal range of motion, result in irritation of the nerves which
are encased in the spinal column. This type of trauma manifests in symptoms such as headache,
pain, or loss of strength in the upper arm and back. In a June 12, 2015 report, Dr. Opam opined
that appellant’s permanent, chronic, and disabling cervicalgia, cervical disc syndrome with
radiculopathy, post-traumatic stress reaction, and post-traumatic facial injury resulted from the
November 13, 2013 work incident. He related that his opinion was based on his examination
findings and appellant’s symptomatology, physical limitations, and physical and mental
discomforts.
The Board finds that Dr. Opam’s reports contain a history of injury, diagnoses, and an
opinion that appellant’s physical and emotional conditions were caused by the accepted
employment incident with some rationale. These reports raise an uncontroverted inference of
causal relationship sufficient to require further development by OWCP.13

11

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

12

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

13

See E.J., Docket No. 09-1481 (issued February 19, 2010).

7

It is well established that proceedings under FECA are not adversarial in nature and while
the claimant has the burden of establishing entitlement to compensation, OWCP shares
responsibility in the development of the evidence to see that justice is done.14
The Board will, therefore, set aside OWCP’s October 30, 2015 decision denying
modification of the denial of appellant’s traumatic injury claim and remand the case to OWCP
for further development of the medical opinion evidence on the issue of casual relationship.
OWCP shall refer him, together with the case record and a statement of accepted facts, to an
appropriate specialist for an examination to determine whether he has any physical or emotional
conditions causally related to the accepted November 13, 2013 employment incident. After this
and such other development as it deems necessary, OWCP should issue a de novo decision on
appellant’s traumatic injury claim.
CONCLUSION
The Board finds that this case is not in posture for a decision as to whether appellant
sustained an emotional condition and additional physical conditions causally related to the
November 13, 2013 employment incident.

14

Id.; supra note 10.

8

ORDER
IT IS HEREBY ORDERED THAT the October 30, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: October 18, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
City of Industry, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Thomas L. Martin, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-832
Issued: November 13, 2008

Case Submitted on the Record

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

JURISDICTION
On January 22, 2008 appellant filed a timely appeal from schedule award decisions of the
Office of Workers’ Compensation Programs dated April 3 and November 28, 2007. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the appeal.
ISSUE
The issue is whether appellant has more than a 20 percent impairment of the right arm for
which he received a schedule award.
FACTUAL HISTORY
On October 21, 2004 appellant, then a 53-year-old distribution clerk, sustained injury to
his neck while pulling down letter mail. He stopped work and was seen that day by Dr. Ralph N.
Steiger, a Board-certified orthopedic surgeon. On December 20, 2004 the Office accepted that
appellant sustained an employment-related cervical strain. Appellant returned to part-time
limited duty four hours a day on December 6, 2004 and he received wage-loss compensation for

four hours a day. He again stopped work on January 20, 2005, returning to four hours of limited
duty on May 24, 2005.1
The Office referred appellant to Dr. J. Pierce Conaty, Board-certified in orthopedic
surgery, for a second opinion evaluation. By report dated January 26, 2005, Dr. Conaty
diagnosed a C7-T1 herniated disc with radiculopathy on the right. He recommended surgery and
provided restrictions to appellant’s physical activity. Dr. Conaty advised that appellant could
return to limited duty for four hours a day. On February 1, 2005 the Office accepted that
appellant sustained an employment-related herniated disc at C7-T1.2
The Office referred appellant to Dr. H. Harlan Bleecker, a Board-certified orthopedic
surgeon, for a second opinion evaluation. In an October 24, 2006 report, Dr. Bleecker provided
findings on examination, including range of motion and motor and sensory testing. He advised
that maximum medical improvement had not been reached because the accepted conditions
could be treated surgically. Dr. Bleecker recommended right shoulder surgery and an anterior
discectomy and fusion at C7-T1. He agreed that appellant could not perform his date-of-injury
position but could work four hours a day with physical restrictions.
On February 15, 2007 Dr. Steiger reviewed the report of Dr. Bleecker. He disagreed with
the opinion that appellant had not reached maximum medical improvement. Dr. Steiger noted
that appellant elected not to undergo surgery. He stated, “I believe that the patient has reached
maximum medical improvement; however, his cervical spine condition has not resolved and will
never resolve as he has permanent findings in the cervical spine.”
On March 23, 2007 an Office medical adviser reviewed the medical evidence and stated
that maximum medical improvement was reached on October 24, 2006, the date of
Dr. Bleecker’s report. The Office medical adviser applied the fifth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A.,
Guides)3 to find a right upper extremity impairment of 20 percent and no impairment to the left
arm.4
By decision dated April 3, 2007, the Office granted appellant a schedule award for 20
percent impairment to the right upper extremity. The date of maximum medical improvement
was October 24, 2006 and the award ran from March 18, 2007 to May 27, 2008.

1

Appellant has additional accepted claims for a right shoulder injury, Office file number xxxxxx829 and a lumbar
strain/sprain, Office file number xxxxxx232. The instant claim was adjudicated by the Office under file number
xxxxxx241.
2

The record reflects that on October 18, 2005 the Office denied appellant’s claim for wage-loss compensation
from January 21 to May 23, 2005. On January 22, 2007 the Office denied modification of this decision. Appellant
did not seek an appeal from these decisions to the Board.
3

A.M.A., Guides (5th ed. 2001); Joseph Lawrence, Jr., 53 ECAB 331 (2002).

4

The Office medical adviser found that appellant had a 12 percent total impairment for loss of shoulder motion
and a 9 percent sensory loss which, when combined, yielded a 20 percent right upper extremity impairment.

2

In a May 2, 2007 letter, appellant’s attorney stated that appellant was surprised to receive
the schedule award since he had not filed a claim. Appellant was concerned that the award
would displace his four hours of wage-loss compensation. In a June 5, 2007 letter, the Office
noted that Dr. Steiger, his attending physician, had advised that appellant was at maximum
medical improvement as he declined surgical treatment of his cervical condition. It noted that
appellant could request a hearing.
A hearing was held on September 25, 2007. Counsel stated that the impairment rating
was not at issue. Rather, he argued that maximum medical improvement had not been reached.
He also contended that, under Marie J. Born,5 appellant would be adversely affected because he
was only working four hours daily and, due to the schedule award, he would not receive
compensation for four hours of wage loss a day. Appellant testified regarding his condition and
reiterated that he did not want to undergo surgery for either his neck or right shoulder.
By decision dated November 28, 2007, an Office hearing representative affirmed the
April 3, 2007 schedule award decision.
LEGAL PRECEDENT
Under section 8107 of the Federal Employees’ Compensation Act6 and section 10.404 of
the implementing federal regulation,7 schedule awards are payable for permanent impairment of
specified body members, functions or organs. The Act, however, does not specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice under the law for all claimants, good administrative practice necessitates the use of
a single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides8 has been adopted by the Office and the Board has concurred in such adoption,
as an appropriate standard for evaluating schedule losses.9
It is the claimant’s burden to establish that he or she sustained a permanent impairment of
a scheduled member or function as a result of an employment injury.10 Office procedures
provide that, to support a schedule award, the file must contain competent medical evidence
which shows that the impairment has reached a permanent and fixed state and indicates the date
on which this occurred (“date of maximum medical improvement”), describes the impairment in
sufficient detail to include, where applicable, the loss in degrees of active and passive motion of
the affected member or function, the amount of any atrophy or deformity, decreases in strength
or disturbance of sensation or other pertinent description of the impairment and the percentage of
5

27 ECAB 623 (1976); petition for recon denied, 28 ECAB 89 (1976).

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

A.M.A., Guides, supra note 3.

9

See Joseph Lawrence, Jr., supra note 3; James J. Hjort, 45 ECAB 595 (1994); Leisa D. Vassar, 40 ECAB 1287
(1989); Francis John Kilcoyne, 38 ECAB 168 (1986).
10

Tammy L. Meehan, 53 ECAB 229 (2001).

3

impairment should be computed in accordance with the fifth edition of the A.M.A., Guides. The
procedures further provide that, after obtaining all necessary medical evidence, the file should be
routed to the Office medical adviser for an opinion concerning the nature and percentage of
impairment.11
ANALYSIS
The Board finds that the case is not in posture for decision.
Dr. Bleecker provided range of motion measurements for appellant’s right shoulder and
the Office referred his report to an Office medical adviser for review.12 Dr. Bleecker found 90
degrees of abduction which, under Figure 16-43 represents four percent impairment;13 forward
flexion of 90 degrees which, under Figure 16-40 is six percent impairment;14 and external
rotation of 90 degrees, which under Figure 16-46 represents no impairment. However, his
measurement for internal rotation was described as “hand to sac joint,” which the Office medical
adviser found represented two percent impairment.15 The Board notes that Dr. Bleecker did not
express the loss of internal rotation in terms of active degrees of motion and it is not readily
apparent how the medical adviser applied Figure 16-46 to determine that such physical
description resulted in two percent impairment. For this reason, the Board cannot confirm the 12
percent total loss in range of right shoulder motion as found by the medical adviser.
The Office medical adviser also applied Table 16-13, page 489, to determine impairment
to the right upper extremity due to combined motor and sensory deficits. Table 16-13 provides a
maximum combined motor and sensory impairment of the C7 nerve of 38 percent. The medical
adviser determined that the extent of impairment was Grade 4, or 25 percent under Tables 16-10
and 16-11, which totaled 9 percent impairment. However, the Board notes that multiplying the
maximum impairment of 38 percent under Table 16-13 by the 25 percent grade results in 9.5
percent impairment, which under Office procedures should be rounded to 10 percent.16 For these
reasons, the Board finds that the medical evidence of record does not support the extent of
permanent impairment determined by the Office. The case will be remanded to the Office for
further development on this issue.
On appeal, counsel for appellant notes that appellant was in receipt of wage-loss
compensation for the four hours a day he did not work and had not filed a claim for a schedule
11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Evaluation of Schedule Awards, Chapter 2.808.6(b-d)
(August 2002).
12

See Thomas J. Fragale, 55 ECAB 619 (2004).

13

A.M.A., Guides, supra note 3 at 477.

14

Id. at 476.

15

Id. at 479.

16

The policy of the Office is to round the calculated percentage of impairment to the nearest whole number. See
Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3b (June 2003). Fractions
are rounded up from .50. See Carl J. Cleary, 57 ECAB 563 (2006).

4

award. The Board notes that, under Office procedures, a schedule award may be made when it
can be medically determined that the claimant has reached maximum medical improvement.17
Dr. Bleecker opined that appellant had not reached maximum medical improvement because he
required surgery of both the right shoulder and an anterior discectomy and fusion at C7-T1.
However, Dr. Steiger disagreed on this point noting that appellant declined undergoing surgery
in treatment of his accepted condition. Therefore, the attending physician advised that maximum
medical improvement had been reached. This was reiterated by appellant at the September 25,
2007 hearing when he stated that he did not want surgery of his neck or right shoulder.
Therefore, the weight of medical opinion from his attending physician establishes that appellant
reached maximum medical improvement in the treatment of his accepted cervical condition.
On appeal, counsel also contends that Marie J. Born is applicable to the facts of this case
as appellant was in receipt of wage-loss compensation for four hours a day at the time the
schedule award was issued.18 In the Born case, the Board found that the employee was adversely
affected because the Office retroactively converted wage-loss compensation benefits paid into a
schedule award. Such is not the situation here. In the April 3, 2007 decision, the Office noted
that maximum medical improvement was reached on October 24, 2006. In this case, the period
of the award ran from April 18, 2007 to May 27, 2008 because it was disadvantageous to convert
compensation payments already made for wage loss since October 24, 2006 into schedule award
benefits. The schedule award granted in this case was not retroactive as found in Born. At the
expiration of his award, appellant is entitled to the reinstatement of his wage-loss compensation
benefits.19
CONCLUSION
The Board finds that the case is not in posture for decision.

17

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3(a)(1) (June
2003).
18

Marie J. Born, supra note 5.

19

If payment for wage-loss disability is interrupted to make a schedule award, such payments must be resumed at
the end of the schedule award. See Goldie Washington, 31 ECAB 239 (1979).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 3, 2007 be set aside and the case remanded for further
development consistent with this decision.
Issued: November 13, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6