United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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U.S. POSTAL SERVICE, HALE THORPE POST )
OFFICE, Baltimore, MD, Employer
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__________________________________________ )
R.M., Appellant

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

Docket No. 11-353
Issued: September 29, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On November 30, 2010 appellant filed a timely appeal from July 20 and October 5, 2010
decisions of the Office of Workers’ Compensation Programs (OWCP) that denied his claim for
an additional schedule award. Pursuant to the Federal Employees’ Compensation Act (FECA)1
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the schedule
award decision.
ISSUE
The issue is whether appellant established that he has more than a five percent
impairment of the right upper extremity and a five percent impairment of the left upper extremity
for which he received a schedule award.
On appeal appellant asserts that the opinion of his physician should be credited.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On September 23, 1998 appellant, then a 30-year-old letter carrier, filed an occupational
disease claim, alleging that his work duties caused bilateral carpal tunnel syndrome. OWCP
accepted the claimed condition and he underwent bilateral carpal tunnel releases. The claim was
later expanded to include bilateral lateral epicondylitis.
By decision dated December 31, 2002, OWCP found that his appellant’s employment,
effective March 7, 2002, fairly and reasonably represented his wage-earning capacity with zero
loss. On December 23, 2003 appellant filed a schedule award claim, that was denied by OWCP
on August 22, 2005 and affirmed by an OWCP hearing representative on January 25, 2006.
In a June 27, 2007 report, Dr. Robert A. Smith, a Board-certified orthopedic surgeon and
OWCP referral physician, advised that, in accordance with the fifth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A.,
Guides),2 appellant had a five percent impairment of each upper extremity due to his bilateral
carpal tunnel syndrome. An OWCP medical adviser agreed with this conclusion. By decision
dated September 20, 2007, appellant was granted a schedule award for a five percent impairment
of the right upper extremity and five percent impairment on the left. On March 28, 2008 an
OWCP hearing representative affirmed the September 20, 2007 schedule award decision.
On September 12, 2008 appellant filed an additional schedule award claim. On
October 15, 2008 OWCP asked that he provide an impairment rating within 30 days. Appellant
did not respond, and by decision dated November 18, 2008, OWCP denied his claim for an
additional schedule award.
On May 17, 2010 appellant filed a third schedule award claim. By letter dated May 20,
2010, OWCP informed him that impairment evaluations were to be completed in accordance
with the sixth edition of the A.M.A., Guides,3 and asked that his physician provide an
appropriate report and attached appropriate worksheets for the physician to complete. In
treatment notes and form reports dated October 23, 2008 to Apri1 15, 2010, Dr. Trudy Hall, an
attending Board-certified physiatrist, provided examination findings including paresthesias and
numbness, decreased grip strength and negative Tinel’s and Phalen’s signs. She provided
physical restrictions and diagnosed chronic bilateral carpal tunnel syndrome and chronic,
intermittent tendinitis.4 The physical findings described on April 15, 2010 included tenderness
along the left lateral epicondyle area and decreased sensation bilaterally along the first to third
digits. In reports dated from January 15, 2009 to April 22, 2010, Dr. C. Ufomadu, a Boardcertified internist, diagnosed bilateral carpal tunnel syndrome and provided physical restrictions.
By decision dated July 20, 2010, OWCP denied appellant’s claim for an additional
schedule award on the grounds that he had not provided the requested medical information. On
2

A.M.A., Guides (5th ed. 2001).

3

A.M.A., Guides (6th ed. 2008).

4

Appellant also submitted treatment notes from Elizabeth Allen, a physician’s assistant who is an associate of
Dr. Hall.

2

August 23, 2010 appellant requested reconsideration and submitted a worksheet dated August 9,
2010 in which Dr. Hall advised that under Table 16-10 appellant had a grade 3 sensory
impairment and that under Table 16-11 he had a grade 4 motor impairment, with a maximum
upper extremity impairment under Table 16-15. Dr. Hall found that the sensory impairment
yielded 18 percent upper extremity impairment and the motor impairment yielded 3 percent
upper extremity impairment, for a combined upper employment injury of 20 percent of each
upper extremity. In an August 19, 2010 treatment note, she provided physical examination
findings and diagnosed chronic carpal tunnel syndrome with hand and wrist pain, and
neuropathic symptoms.
In a September 21, 2010 report, Dr. Christopher P. Brigham, an OWCP medical adviser
who is Board-certified in family and occupational medicine, noted his review of the medical
record including Dr. Hall’s April 15 and August 9, 2010 reports. He noted that Dr. Hall had
utilized the fifth, not the sixth, edition of the A.M.A., Guides. Dr. Brigham noted the accepted
conditions indicated that appellant had a ratable impairment for bilateral carpal tunnel syndrome
and symptomatic left epicondylitis. He advised that, in accordance with section 15.4f and Table
15-23, for the right hand appellant had a grade modifier of 1 for test findings, based on a positive
preoperative electrodiagnostic study on August 6, 1998; a grade 2 modifier for history based on
Dr. Hall’s report of significant intermittent symptoms; and a grade 2 modifier for physical
findings, based on documentation of sensory deficits. OWCP’s medical adviser then totaled the
modifiers and found an average of 1.6, which he rounded up to 2, which resulted in a default
rating of a five percent right upper extremity impairment.
OWCP’s medical adviser then advised that, on the left, appellant also had a grade
modifier of 1 for test findings, based on a positive electrodiagnostic studies; a grade 1 modifier
for history for mild intermittent symptoms; and a grade 2 modifier for physical findings, based
on documentation of sensory deficits. He then totaled the modifiers and found an average of 1.3,
which he rounded to 1, which resulted in a default rating of a 2 percent right upper extremity
impairment due to carpal tunnel syndrome.
OWCP’s medical adviser then evaluated appellant’s left elbow, noting that two
methodologies could be used, the diagnosis-based impairment (DBI) method and the range of
motion (ROM) method. He used the former method, noting that Dr. Hall did not record any
deficits in left elbow motion, and found that, under the DBI method, under Table 15-4, Elbow
Regional Grid, for a diagnosis of lateral epicondylitis, a class 1 impairment for a history of
painful injury and residual symptoms without consistent objective findings yielded a default
rating of 1 percent. OWCP’s medical adviser assigned grade modifiers of 1 for functional
history and physical examination, in accordance with Tables 15-7 and 15-8 respectively. He
advised that there was no modifier under Table 15-9 for clinical studies as there was no report
that studies had been performed. OWCP’s medical adviser concluded that, under the net
adjustment formula, the impairment rating remained unadjusted, for a grade C, one percent left
upper extremity impairment due to lateral epicondylitis. He then combined the two percent left
upper extremity impairment for carpal tunnel syndrome with the one percent left upper extremity
impairment of epicondylitis, which yielded a three percent left upper extremity impairment.
OWCP’s medical adviser concluded that appellant currently had a five percent right upper
extremity impairment and a three percent left upper extremity impairment, and since he had

3

previously received a schedule award for a five percent impairment of each upper extremity, he
was not entitled to an increased award.
In a merit decision dated October 5, 2010, OWCP found that the weight of the medical
evidence rested with the opinion of Dr. Brigham because Dr. Hall had not provided an
impairment rating in accordance with the sixth edition of the A.M.A., Guides and concluded that
appellant was not entitled to an increased schedule award.5
LEGAL PRECEDENT
The schedule award provision of FECA,6 and its implementing federal regulations,7 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP adopted the
A.M.A., Guides as the uniform standard applicable to all claimants.8 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.9
For decisions issued after May 1, 2009, the sixth edition will be used.10
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).11 Under the sixth edition, for upper extremity impairments the evaluator
identifies the impairment class for the Diagnosed Condition (CDX), which is then adjusted by
grade modifiers based on Functional History (GMFH), Physical Examination (GMPE) and
Clinical Studies (GMCS).12 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) +
(GMCS-CDX).13
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.14 In
Table 15-23, grade modifiers levels (ranging from zero to four) are described for the categories
5

Appellant also claimed a number of short-term recurrences. OWCP accepted some and denied some.

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

10

FECA Bulletin No. 09-03 (issued March 15, 2009).

11

A.M.A., Guides, supra note 3 at 3, section 1.3, “The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.”
12

Id. at 385-419.

13

Id. at 411.

14

Id. at 449.

4

test findings, history and physical findings. The grade modifier levels are averaged to arrive at
the appropriate overall grade modifier level and to identify a default rating value. The default
rating value may be modified up or down by one percent based on functional scale, an
assessment of impact on daily living activities.15
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with OWCP’s medical adviser
providing rationale for the percentage of impairment specified.16
ANALYSIS
The Board finds that appellant has not established that he has more than a five percent
impairment of the right upper extremity and a five percent impairment on the left. The accepted
conditions are bilateral carpal tunnel syndrome and bilateral lateral epicondylitis. On
September 20, 2007 appellant was granted a schedule award for impairments of five percent on
the right and five percent on the left.
For decisions issued after May 1, 2009, the sixth edition of the A.M.A., Guides is to be
used in calculating schedule awards.17 The relevant medical evidence includes an August 9,
2010 report in which Dr. Hall rated appellant’s upper extremities in accordance with the fifth
edition of the A.M.A., Guides. A medical opinion not based on the appropriate edition of the
A.M.A., Guides has diminished probative value in determining the extent of a claimant’s
permanent impairment.18 Thus, Dr. Hall’s August 9, 2010 report is insufficient to establish
entitlement to an increased schedule award.
On September 21, 2010 Dr. Brigham reviewed the evidence, including Dr. Hall’s
April 15 and August 9, 2010 reports. Regarding the right upper extremity, he appropriately
utilized section 15.4f and Table 15-23 of the A.M.A., Guides.19 Dr. Brigham found that
appellant had a grade modifier of 1 for test findings, based on a positive preoperative
electrodiagnostic study on August 6, 1998;20 a grade 2 modifier for history based on Dr. Hall’s
report of significant intermittent symptoms; and a grade 2 modifier for physical findings, based
15

Id. at 448-50.

16

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
17

FECA Bulletin No. 09-03, supra note 10.

18

See Fritz A. Klein, 53 ECAB 642 (2002).

19

A.M.A., Guides, supra note 3 at 448-50.

20

Section 15.4 of the A.M.A., Guides provides that a preoperative electrodiagnostic test should be used in an
impairment rating unless postoperative studies are done for a clinical indication of failure to improve with surgery
and the postoperative study is clearly worse than the preoperative electrodiagnostic study, and only in this rare case
with the postoperative study be used. Id. at 448. In the case at hand, the postoperative electrodiagnostic studies
demonstrated an improvement.

5

on documentation of sensory deficits. He totaled the modifiers and found an average of 1.6,
which he rounded up to 2, which resulted in a default rating of a 5 percent right upper extremity
impairment. Regarding the left upper extremity, Dr. Brigham advised that appellant also had a
grade modifier of 1 for test findings, based on a positive electrodiagnostic studies; a grade 1
modifier for history for mild intermittent symptoms; and a grade 2 modifier for physical
findings, based on documentation of sensory deficits. He then properly totaled the modifiers and
found an average of 1.3, which he rounded to 1, which resulted in a default rating of a two
percent right upper extremity impairment for carpal tunnel syndrome. Dr. Brighan’s evaluation
of appellant’s left elbow properly applied the DBI method, noting that Dr. Hall did not record
ROM findings. He appropriately utilized Table 15-4, Elbow Regional Grid, for a diagnosis of
lateral epicondylitis.21 Dr. Brigham found a class 1 impairment for a history of painful injury
and residual symptoms without consistent objective findings, which yielded a default rating of
one percent, and assigned grade modifiers of 1 for functional history and physical examination,
in accordance with Tables 15-7 and 15-8 respectively.22 OWCP’s medical adviser noted that a
modifier under Table 15-923 for clinical studies was not indicated as the record did not indicate
that studies had been performed. He then properly applied the net adjustment formula and found
a grade C, one percent, left upper extremity impairment due to lateral epicondylitis. Dr. Brigham
then combined the two percent left upper extremity impairment for carpal tunnel syndrome with
the one percent left upper extremity impairment of epicondylitis, for a total three percent left
upper extremity impairment.
The Board finds that the record, as characterized by Dr. Brigham’s analysis of the
impairment evidence, supports that appellant has no more than a five percent right upper
extremity impairment and five percent impairment on the left, for which he received a schedule
award. There is no other medical evidence of record addressing the extent of his permanent
impairment under the appropriate edition of the A.M.A., Guides, which supports any greater
impairment, and since he had previously received a schedule award for a five percent impairment
of each upper extremity, he was not entitled to an increased award.24
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no more than a five percent right upper extremity
impairment and five percent impairment on the left.

21

Id. at 399.

22

Id. at 406, 408.

23

Id. at 410.

24

The Board notes that there is no medical evidence to support an impairment rating for right lateral
epicondylitis.

6

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 5 and July 20, 2010 be affirmed.
Issued: September 29, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
NATIONAL CEMETERY ADMINISTRATION,
Calverton, NY, Employer
__________________________________________

)
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)
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)

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

Docket No. 16-1071
Issued: December 14, 2016

Case Submitted on the Record

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

JURISDICTION
On April 25, 2016 appellant filed a timely appeal from a December 2, 2015 merit
decision and a March 29, 2016 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish an injury in the
performance of duty on September 7, 2015; and (2) whether OWCP properly denied appellant’s
request for a review of the written record.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant has submitted new evidence on appeal. However, the Board cannot consider this
evidence as its review of the case is limited to the evidence of record which was before OWCP at the time of its final
decision. 20 C.F.R. § 501.2(c); see Steven S, Saleh, 55 ECAB 169 (2003).

FACTUAL HISTORY
On September 7, 2015 appellant, then a 46-year-old clerk and assistant, filed a traumatic
injury claim (Form CA-1) claiming that at 7:00 a.m. on Monday, September 7, 2015, he
sustained injury to his left knee when he lifted a door stop with his left foot and heard a pop in
his left knee. He indicated that the claimed injury occurred at the Administrative Building of the
Calverton National Cemetery. On the same form, appellant’s immediate supervisor noted that
appellant’s regular work schedule was 8:00 a.m. to 4:30 p.m., Monday through Friday.3
Appellant stopped work on September 7, 2015 and received continuation of pay. OWCP
administratively approved a limited amount of medical expenses without formally considering
the merits of his claim.
Appellant submitted several medical reports, including a September 8, 2015 emergency
room report in which an attending nurse noted that he reported that he injured his left knee at
work and heard a pop on an unspecified date. The nurse provided a diagnosis of left quadriceps
muscle rupture. In a September 11, 2015 report, Dr. Philip Burns, an attending osteopath,
advised that appellant reported that on September 7, 2015 he was moving a doorjamb at work
when he experienced sharp pain in his left knee. He diagnosed medial meniscus tear of the left
knee, left knee pain, and gait disorder. In a September 23, 2015 report, Dr. Burns diagnosed
medial meniscus tear of the left knee and noted that appellant was under his care for a
“work[-]related injury sustained to his left knee on [September 7, 2015].” He recommended that
appellant be off work and noted that he would be reevaluated on October 16, 2015 at which time
a return to work date would be determined. On October 16, 2015 Dr. Burns found that appellant
could return to work on October 19, 2015.
In an October 30, 2015 letter, OWCP requested that appellant submit additional factual
and medical evidence in support of his claim for a September 7, 2015 work injury.4 It advised
that the current evidence of record “is not sufficient to support that [appellant was] injured while
performing any duty of [his] employment” and requested that appellant complete and return an
enclosed questionnaire regarding this matter. The questionnaire noted, “The evidence indicates
that [appellant was] injured before [his] regularly scheduled work hours at 7:00 a.m., whereas
[his] regularly scheduled work hours are 8:00 a.m. [to] 4:30 p.m.; and it is unclear whether you
were on [employing establishment] premises at the time of the injury.” The questionnaire
requested that appellant submit a position description and answer various questions regarding
whether he was on the employing establishment premises at the time of his claimed injury on
September 7, 2015, whether he was performing regularly assigned or ancillary work duties at the
time of injury, and, if he was in fact on the premises, why he was on the premises one hour prior
to his regular starting time. OWCP provided him 30 days to respond.
In an October 30, 2015 letter, OWCP requested that the employing establishment answer
several questions regarding appellant’s claim for a September 7, 2015 injury, including whether
3

The supervisor checked a box marked “yes” indicating that appellant’s claimed injury occurred in the
performance of duty.
4

OWCP noted that it had administratively approved a limited amount of medical expenses without formally
considering the merits of appellant’s claim and indicated, “Your claim has now been reopened for consideration
because the medical bills have exceeded $1,500.00.”

2

he was on the premises of the employing establishment at the time of his claimed injury and
whether he was performing official duties at the time. It provided the employing establishment
30 days to respond.
Appellant submitted copies of previously submitted medical reports, but he did not
submit a position description or complete the questionnaire provided by OWCP.
In a letter dated November 17, 2015, an employing establishment official noted that she
was responding to OWCP’s request for additional information regarding appellant’s claimed
September 7, 2015 work injury. She noted:
“At the time of the injury, [appellant] was on the premises owned by Calverton
National Cemetery. [He] was in the Administrative Building, he was going to use
the men’s room in the building. The door of the men’s room was being kept open
by a door stop attached to the door. [Appellant] went to lift the door stop with his
foot and felt a pop in his left knee.”5
In a decision dated December 2, 2015, OWCP denied appellant’s claim for a
September 7, 2015 work injury. It found that he had not established an injury in the performance
of duty on September 7, 2015. Regarding the reasons for this determination, OWCP noted:
“Specifically, [appellant’s] case is denied because the evidence is not sufficient to
establish that the injury and/or medical condition arose during the course of
employment and within the scope of compensable work factors. The reason for
this finding is that [he] did not respond to our factual questions so as to establish
that [he was] in the performance of duty when injured. Evidence indicates that
[appellant was] injured [one hour] before [his] regularly scheduled work hours.
As such, we asked that [he] explain why [he was] on [employing establishment]
premises when the injury occurred and whether [he was] performing regularly
assigned duties at the time of the injury. We also asked that [appellant] provide
written authorization giving [him] permission to be on the premises at that time.
However, [he] did not respond to our factual questions. Therefore, it is unclear
whether [appellant was] in the performance of duty when injured.”
In a form dated March 1, 2016 and postmarked March 1, 2016, appellant requested a
review of the written record by an OWCP hearing representative.
By decision dated March 29, 2016, OWCP denied appellant’s request for review of the
written record with an OWCP hearing representative. It found that his request was untimely as it
was not filed within 30 days of the issuance of OWCP’s December 2, 2015 merit decision.
OWCP indicated that, in its discretion, it had carefully considered appellant’s request and had
determined that the issue of the case could equally well be addressed by requesting
reconsideration and submitting additional evidence.

5

The record contains a hand-drawn map showing the location of a men’s room within a building. The map
contains the notation “employee” next to the location of the men’s room. It is unclear who produced this map.

3

LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.6
FECA provides for the payment of compensation for “the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.”7 The
phrase “sustained while in the performance of duty” has been interpreted by the Board to be the
equivalent of the commonly found prerequisite in workers’ compensation law of “arising out of
and in the course of employment.”8 The phrase “in the course of employment” is recognized as
relating to the work situation, and more particularly, relating to elements of time, place, and
circumstance. To arise in the course of employment, an injury must occur at a time when the
employee may reasonably be said to be engaged in the master’s business, at a place where he or
she may reasonably be expected to be in connection with the employment and while he or she
was reasonably fulfilling the duties of his or her employment or engaged in doing something
incidental thereto.”9 This alone is not sufficient to establish entitlement to benefits for
compensability. The concomitant requirement of an injury “arising out of the employment” must
be shown, and this encompasses not only the work setting, but also a causal concept, the
requirement being that the employment caused the injury.10
ANALYSIS -- ISSUE 1
On September 7, 2015 appellant filed a traumatic injury claim (Form CA-1) claiming that
at 7:00 a.m. on Monday, September 7, 2015 he sustained injury to his left knee when he lifted a
door stop with his left foot and heard a pop in his left knee. He claimed that the injury occurred
at the Administrative Building of the Calverton National Cemetery. On the same form,
appellant’s immediate supervisor noted that appellant’s regular work schedule was 8:00 a.m. to
4:30 p.m., Monday through Friday. In a decision dated December 2, 2015, OWCP denied his
claim for a September 7, 2015 work injury. It found that appellant had failed to establish that he
sustained an injury in the performance of duty on September 7, 2015.
Prior to denying appellant’s claim, OWCP advised him, in an October 30, 2015
development letter, that the current evidence of record was insufficient to support that he was
injured while performing any duty of his employment. It requested that he submit a position
description and answer various questions on an enclosed questionnaire regarding whether he was
6

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

7

5 U.S.C. § 8102(a).

8

Charles Crawford, 40 ECAB 474, 476-77 (1989).

9

Mary Keszler, 38 ECAB 735, 739 (1987).

10

Eugene G. Chin, 39 ECAB 598, 602 (1988).

4

on the employing establishment premises at the time of his claimed injury on September 7, 2015
whether he was performing regularly assigned or ancillary work duties at the time of injury, and,
if he was in fact on the premises, why he was on the premises one hour prior to his regular
starting time. OWCP provided appellant 30 days to respond, but he did not submit a position
description or complete the questionnaire provided by OWCP.11
The Board finds that the only factual information that appellant has supplied in support of
his claim is that, while at the Administrative Building of the Calverton National Cemetery at
7:00 a.m. on September 7, 2015, he sustained injury to his left knee when he lifted a door stop
with his left foot.12 The Board finds that, given the provision of such sparse details, he has failed
to establish an essential factual element of his case, i.e., that he sustained an injury in the
performance of duty on September 7, 2015. OWCP provided appellant an opportunity to provide
further essential details regarding the factual aspect of his traumatic injury claim. However,
appellant did not submit a position description or complete the factual questionnaire provided by
OWCP as requested. He did not provide any explanation of why he was on the premises one
hour prior to his regular starting time or provide any indication that he was performing regular or
ancillary work duties at the time of his claimed injury on September 7, 2015.13 As noted,
appellant has the burden of proof to establish the essential elements of his claim, including the
burden of proof to establish that the claimed injury occurred in the performance of duty.14 Under
the circumstances of the present case, he failed to establish the essential elements of his claim.
On appeal, appellant asserts that his supervisor asked him to come into work at 6:30 a.m.
on September 7, 2015 in order to “get orders done.” However, no such evidence was of record
when OWCP issued its December 2, 2015 decision denying his claim for a September 7, 2015
work injury.15
For these reasons, the Board finds that appellant did not meet his burden of proof to
establish an injury in the performance of duty on September 7, 2015. 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.

11

Appellant submitted medical evidence containing descriptions of the mechanism of the claimed September 7,
2015 injury, which are similar to the description provided on his September 7, 2015 Form CA-1. However, the
medical evidence did not provide any further factual information regarding the matters raised in the factual
questionnaire provided by OWCP.
12

Although the employing establishment acknowledged that appellant was on its premises on September 7, 2015
when lifting a door stop at the men’s room of the Administrative Building, it did not provide any information
regarding why he was on the premises an hour before his regular starting time. It did not indicate that he was
performing his regular or ancillary work duties at the time of the claimed injury. On the September 7, 2015 Form
CA-1, appellant’s supervisor checked a box marked “yes” indicating that appellant’s claimed injury occurred in the
performance of duty. However, she did not provide any further explanation of why she checked this box.
13

See supra notes 7 through 10 regarding the basic standards for showing an injury occurred in the performance
of duty.
14

See supra note 6.

15

The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. 20 C.F.R. § 501.2(c)(1).

5

LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides that “a claimant ... is entitled, on request made
within 30 days after the date of the issuance of the decision, to a hearing on his claim before a
representative of the Secretary.”16 Section 10.615 of OWCP’s federal regulations implementing
this section of FECA, provides that a claimant shall be afforded the choice of an oral hearing or a
review of the written record by a representative of the Secretary.17 Thus, a claimant has a choice
of requesting an oral hearing or a review of the written record pursuant to section 8124(b)(1) of
FECA and its implementing regulations. OWCP’s regulations and Board precedent provide that
the request for an oral hearing or review of the written record must be sent within 30 days of the
date of issuance of the decision (as determined by the postmark or other carrier’s date marking)
of the date of the decision for which an oral hearing or review of the written record is sought.18
ANALYSIS -- ISSUE 2
Appellant requested a review of the written record by an OWCP hearing representative of
OWCP’s December 2, 2015 merit decision by submitting a form postmarked March 1, 2016.
Therefore, OWCP properly found, in its decision dated March 29, 2016, that his request was
untimely as it was not filed within 30 days of the issuance of OWCP’s December 2, 2015 merit
decision.19
OWCP then properly exercised its discretion by noting, in its March 29, 2016 decision,
that it had carefully considered appellant’s request and had determined that the issue of the case
could equally well be addressed by requesting reconsideration and submitting additional
evidence.20 For these reasons, it properly denied his request for a review of the written record.21

16

5 U.S.C. § 8124(b)(1).

17

20 C.F.R. § 10.615.

18

Id. at § 10.616(a). A request for review of the written record is subject to the same requirement as an oral
hearing request that the request be sent within 30 days of OWCP’s final decision. See J.P., Docket No. 15-790
(issued June 3, 2015).
19

Supra note 17.

20

D.P., Docket No. 14-308 (issued April 21, 2014); D.J., Docket No. 12-1332 (issued June 21, 2013); Mary B.
Moss, 40 ECAB 640, 647 (1989).
21

The record contains a Form CA-16 which lists the date of injury as September 7, 2015 and which indicates,
“Lifting the door stop in the men’s room, felt a pop in left knee.” The Board notes that where an employing
establishment properly executes a Form CA-16 which authorizes medical treatment as a result of an employee’s
claim for an employment-related injury, the Form CA-16 form creates a contractual obligation, which does not
involve the employee directly, to pay for the cost of the examination or treatment regardless of the action taken on
the claim. See Tracy P. Spillane, 54 ECAB 608 (2003). The period for which treatment is authorized by a Form
CA-16 is limited to 60 days from the date of issuance, unless terminated earlier by OWCP. See 20 C.F.R.
§ 10.300(c).

6

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an injury in
the performance of duty on September 7, 2015. The Board further finds that OWCP properly
denied his request for a review of the written record.
ORDER
IT IS HEREBY ORDERED THAT the March 29, 2016 and December 2, 2015
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: December 14, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Urbandale, IA, Employer
__________________________________________

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

Docket No. 10-601
Issued: November 4, 2010

Case Submitted on the Record

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

JURISDICTION
On January 5, 2010 appellant filed a timely appeal from a September 29, 2009 merit
decision of the Office of Workers’ Compensation Programs denying his claim for an increased
schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant has more than 19 percent permanent impairment of the
right arm or 20 percent impairment of the left arm, for which he received schedule awards.
FACTUAL HISTORY
On October 30, 2004 appellant, then a 50-year-old letter carrier, filed an occupational
disease claim alleging that he sustained carpal tunnel syndrome due to factors of his federal
employment. The Office accepted his claim for bilateral carpal tunnel syndrome. Appellant
underwent a right carpal tunnel release on March 7, 2003 and a left carpal tunnel release on
January 17, 2005. By decision dated December 13, 2005, the Office granted him schedule

awards for a 19 percent permanent impairment of the right upper extremity and a 20 percent
permanent impairment of the left upper extremity. The period of the awards ran for 121.68
weeks from October 4, 2005 to February 2, 2008.
On March 24, 2008 appellant filed a claim for an increased schedule award. By letter
dated April 7, 2008, the Office requested that he submit medical evidence from his physician
supporting that he sustained increased permanent impairment.
By decision dated June 19, 2008, the Office denied appellant’s claim for an increased
schedule award. It noted that he had not submitted any supporting medical evidence.
On September 2, 2008 Dr. Teri S. Formanek, a Board-certified orthopedic surgeon,
performed a repeat left carpal tunnel release and, on October 15, 2008, she performed a repeat
right carpal tunnel release. In an April 16, 2009 report, she noted that appellant had active motor
function, but altered sensation in the median nerve bilaterally. Dr. Formanek released him to
return to work with restrictions and asserted that she did not believe that his condition would
substantially improve.
On April 17, 2009 appellant filed a claim for an increased schedule award. The Office
requested that he submit a detailed medical report from his attending physician supporting the
extent of permanent impairment in accordance with the American Medical Association, Guides
to the Evaluation of Permanent Impairment (6th ed. 2008) (A.M.A., Guides).
On August 26, 2009 the Office referred appellant to Dr. Charles F. Denhart, a Boardcertified physiatrist, for a second opinion examination on the extent of any permanent
impairment of the upper extremities. Dr. Denhart evaluated appellant on September 18, 2009.
He diagnosed status post bilateral carpal tunnel syndrome with a history of two bilateral carpal
tunnel releases. On physical examination, Dr. Denhart provided grip and pinch strength
measurements and noted that appellant complained of dyesthesia in the hand in a glove
distribution from the wrist and a lack of feeling in the thumb side of his hand on two-point
discrimination. He found no Tinel’s sign with gentle tapping. Dr. Denhart provided range of
motion findings for the bilateral wrists and stated:
“With respect to percent partial impairment, I have elected to use the wrist range
of motion measurements as the basis for his impairment rather than Table 15-23
which concerns entrapment compression neuropathies. I think that this best
reflects his functional impairment. In addition, this provides a somewhat higher
impairment rating and I am giving [appellant] the benefit of the doubt.”
Applying Table 15-32 of the sixth edition of the A.M.A., Guides, Dr. Denhart found that
appellant had a 14 percent permanent impairment of the right upper extremity and an 18 percent
permanent impairment of the left upper extremity. He used grade modifiers for functional
impairment to increase the degree of impairment to 15 percent for the right upper extremity and
19 percent for the left upper extremity. Dr. Denhart concluded that appellant reached maximum
medical improvement on September 18, 2009 on the right and August 29, 2009 on the left.
On September 25, 2009 the Office medical adviser reviewed Dr. Denhart’s impairment
rating for bilateral carpal tunnel using range-of-motion measurements of the wrist. He noted that
2

the sixth edition of the A.M.A., Guides provided that range of motion was used “primarily as a
physical examination adjustment factor and only to determine impairment … in the rare case
when it is not possible to otherwise define impairment.” The Office medical adviser found that
impairment due to residuals of carpal tunnel syndrome did not constitute a rare case.
Dr. Denhart concluded that as appellant previously received a 19 percent impairment for the
right upper extremity due to carpal tunnel syndrome and a 20 percent impairment of the left
upper extremity due to carpal tunnel syndrome, he had no additional impairment based on
Dr. Denhart’s opinion.
By decision dated September 29, 2009, the Office determined that appellant was not
entitled to a schedule award. The medical evidence did not establish any additional impairment
of either the right or left upper extremity.
On appeal, appellant contends that he has pain and limitations due to his bilateral carpal
tunnel.
LEGAL PRECEDENT
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).1 Under the sixth edition of the A.M.A., Guides, for upper extremity
impairments the evaluator identifies the impairment class for the diagnosed condition (CDX),
which is then adjusted by grade modifiers based on functional history (GMFH), physical
examination (GMPE) and clinical studies (GMCS).2 The net adjustment formula is (GMFH CDX) + (GMPE - CDX) + (GMCS - CDX).3
For evaluating impairment related to dysfunction of the median nerves, the sixth edition
of the A.M.A., Guides contains Appendix 15-B (Electrodiagnostic Evaluation of Entrapment
Syndromes). It provides that the criteria for carpal tunnel syndrome include distal motor latency
longer than 4.5 milliseconds for an 8-centimeter study; distal peak sensory latency of longer than
4.0 centimeters for a 14-centimeter distance; and distal peak compound nerve latency of longer
than 2.4 milliseconds for a transcarpal or midpalmar study of 8 centimeters. If different
distances were used in testing, correction to the above-stated distances could be accomplished by
assuming each one centimeter of distance required 0.2 milliseconds.4
If carpal tunnel syndrome is found under the standards of Appendix 15-B, impairment is
evaluated under the scheme found in Table 15-23 (Entrapment/Compression Neuropathy
Impairment) and accompanying relevant text.5 In Table 15-23, grade modifiers are described for
1

A.M.A., Guides 385, section 1.3, “The International Classification of Functioning, Disability and Health (ICF):
A Contemporary Model of Disablement.”
2

Id. at 385-419.

3

Id. at 411.

4

Id. at 487, Appendix 15-B.

5

Id. at 449, Table 15-23.

3

test findings, history and physical findings. A survey completed by a given claimant, known by
the name QuickDASH, is used to further modify the grade and to choose the appropriate
numerical impairment rating.6 If carpal tunnel syndrome is not found under the standards of
Appendix 15-B, impairment due to median nerve dysfunction is evaluated under the scheme
found in Table 15-21 (Peripheral Nerve Impairment: Upper Extremity Impairments).7 Under
Table 15-21, observed conditions are placed into classes (ranging from Class 0 to Class 4) based
on diagnosis and the severity of the condition. After the class is identified, the precise degree of
the impairment can be modified by various factors, including functional history, physical
examination and clinical studies.8
Proceedings under the Act are not adversarial in nature, nor are the Office a disinterested
arbiter. While the claimant has the responsibility to establish entitlement to compensation, the
Office shares responsibility in the development of the evidence. It has the obligation to see that
justice is done.10 Accordingly, once the Office undertakes to develop the medical evidence
further, it has the responsibility to do so in the proper manner.11
9

ANALYSIS
The Office accepted that appellant sustained bilateral carpal tunnel syndrome. On
December 13, 2005 it granted him a schedule award for a 19 percent permanent impairment of
the right upper extremity and a 20 percent permanent impairment of the left upper extremity.
Appellant underwent a repeat left carpal tunnel release in September 2008 and a repeat right
carpal tunnel release in October 2008. On April 16, 2009 Dr. Formanek, his attending physician,
opined that he had reached maximum medical improvement. Appellant subsequently filed a
claim for an increased schedule award. On April 30, 2009 the Office referred him to Dr. Denhart
for a second opinion examination on the extent of his permanent impairment.
In a September 18, 2009 impairment evaluation, Dr. Denhart diagnosed bilateral carpal
tunnel syndrome. He measured range of motion and found dysthesia of the wrists and loss of
feeling in the thumbs with no Tinel’s sign. Dr. Denhart determined that appellant’s impairment
rating due to carpal tunnel syndrome should be based on loss of range of motion. He applied
Table 15-32 on page 473 of the A.M.A., Guides relevant to determining impairment due to loss
of range of motion of the wrists and found that appellant had a 14 percent impairment of the right
upper extremity and an 18 percent permanent impairment of the left upper extremity.
Dr. Denhart adjusted the impairment upward using the grade modifier for functional history to
find a 19 percent left upper extremity impairment and a 15 percent right upper extremity
impairment. The sixth edition of the A.M.A., Guides, however, provides that range of motion is
6

Id. at 448.

7

Id. at 437-40, Table 15-21.

8

Id. at 406-09.

9

Paul C. Belkind, 56 ECAB 580 (2005); Vanessa Young, 55 ECAB 575 (2004).

10

B.S., 61 ECAB ___ (Docket No. 09-195, issued October 9, 2009); Richard E. Simpson, 55 ECAB 490 (2004).

11

Melvin James, 55 ECAB 406 (2004).

4

used primarily as a physical diagnosis adjustment factor and only to determine actual impairment
values when a grid permits its use as an option or when no other diagnosis-based section is
applicable.12 As discussed, Appendix 15-B on page 487 of the A.M.A., Guides contains criteria
for evaluating whether carpal tunnel syndrome is present using electrodiagnostic studies. If
carpal tunnel syndrome is found under Appendix 15-B, the impairment is evaluated under Table
15-23 on page 449, applicable to determining impairments due to compression neuropathies. If
carpal tunnel syndrome is not found under Appendix 15-B, the impairment is evaluated pursuant
to Table 15-21 on pages 436-444, applicable to determining peripheral nerve impairments of the
upper extremity. Neither Table 15-21 nor Table 15-23 indicate that range of motion may be used
as a stand alone rating and the A.M.A., Guides provides a diagnosis-based section for
determining impairments due to compression neuropathies and peripheral nerve impairments.
Thus, appellant’s impairment rating for carpal tunnel syndrome should not have been based on
range of motion. An Office medical adviser reviewed Dr. Denhart’s finding and noted that he
had incorrectly utilized the A.M.A., Guides. He concluded, however, that as Dr. Denhart found
no additional impairment, appellant was not entitled to a schedule award.
Proceedings under the Act are not adversarial in nature and the Office is not a
disinterested arbiter. While the claimant has the burden to establish entitlement to compensation,
the Office shares responsibility to see that justice is done.13 Once the Office undertakes to
develop the medical evidence further, it has the responsibility to do in a manner that will resolve
the relevant issues in the case.14 Neither the second opinion examiner Dr. Denhart nor the Office
medical adviser appropriately utilized the A.M.A., Guides to determine the extent of appellant’s
permanent impairment of the upper extremities. As the Office undertook development of the
medical evidence by referring appellant for a second opinion examination, it should secure a
report adequately addressing the relevant issue of the extent of his permanent impairment under
the sixth edition of the A.M.A., Guides. After such further development as it deems necessary,
the Office shall issue an appropriate decision regarding whether appellant is entitled to an
increased schedule award.
CONCLUSION
The Board finds that the case is not in posture for decision.

12

Id. at 387; see also A.M.A., Guides at 461 (range of motion section is to be used as a stand alone rating when
other grids refer to range of motion section or when no other diagnosis based estimate sections are applicable).
13

L.D., 61 ECAB ___ (Docket No. 09-1503, issued April 15, 2010); Jimmy A. Hammons, 51 ECAB 219 (1999).

14

See Paul C. Belkind, supra note 9; Melvin James, supra note 11.

5

ORDER
IT IS HEREBY ORDERED THAT the September 29, 2009 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: November 4, 2010
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.Y., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, San Antonio, TX, Employer
__________________________________________

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Appearances:
James R. Linehan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-769
Issued: February 8, 2008

Case Submitted on the Record

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

JURISDICTION
On January 25, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ November 15, 2006 merit decision affirming the termination of her
compensation benefits for failure to accept suitable employment. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation benefits on
the grounds that she refused to accept suitable work.
FACTUAL HISTORY
On December 11, 1999 appellant, then a 36-year-old mail processor, sustained injury to
her right elbow while “pulling trays of mail off of racks and loading into postcons.” On
January 21, 2000 the Office accepted her claim for right elbow epicondylitis and right shoulder
strain. Appellant’s claim was later accepted for bilateral shoulder sprains and upper arm and
wrist strains. The Office paid appropriate compensation and medical benefits.

Appellant returned to work on August 11, 2000 in a full-time position with modified
duties. She stopped working again on January 9, 2001 and remained off work until
February 11, 2002. Appellant returned to work in a modified position until March 9, 2003.
Dr. Nicolas Walsh, a Board-certified physiatrist, took her off work because the employing
establishment had not provided her with an ergonomic chair. Appellant returned to work on
July 12, 2003 and worked until July 22, 2003, when she again stopped work.
In a consultation note dated August 29, 2003, Dr. Salvador Baylan, a Board-certified
physiatrist, listed his impressions as cumulative trauma disorder (carpal tunnel syndrome, cubital
tunnel syndrome and radial tunnel syndrome); myofascial pain syndrome; possible peripheral
neuropathy, lateral epicondylitis, rule out cervical disc disease and reactive depression. On
September 29, 2003 he noted that a review of appellant’s records revealed problems involving
her shoulders, elbow, low back pain, depression and fibromyalgia. Dr. Baylan stated that
appellant’s most prominent problem was myofascial pain syndrome and fibromyalgia. He
recommended an exercise program and that she stay away from stressful situations that could
aggravate her fibromyalgia.
On October 9, 2003 Dr. Walsh advised that he would no longer see workers’
compensation patients. He referred appellant to Dr. Baylan.
In a letter dated December 17, 2003, the employing establishment notified the Office of a
proposed modified mail handler assignment. The duties required working at a table riffling mail
for 2 to 3 hours, collecting run reports for 30 minutes, checking employee badges at entrances for
2 hours, relief of guard shack for 30 minutes and other duties assigned within medical
restrictions for 2 hours. The physical requirements of the modified position were sitting and
facing mail (self-paced) for 2 to 3 hours, collecting reports and walking to collect damaged mail
for 30 minutes and visual observation use of radio/telephone as needed for 2 hours. It was noted
that all duties are self-paced and that an ergonomic chair was bought and would be provided for
appellant’s personal usage.
In a medical report dated January 15, 2004, Dr. Baylan found that appellant continued to
demonstrate signs and symptoms of myofascial pain syndrome and fibromyalgia pain syndrome
with persistent depression. Appellant had features of cumulative trauma disorder with no
evidence of frank carpal tunnel syndrome based on her last nerve conduction velocity study. Her
condition prevented her from performing many of her usual and customary activities. Dr. Baylan
noted that her condition warranted conservative intervention, i.e., trigger point injections and
myofascial release techniques as well as continued psychiatric care and medications.
By letter dated December 12, 2003, the Office referred appellant to Dr. Govindasamy
Durairaj, a Board-certified orthopedic surgeon, for a second opinion. In a report dated
February 5, 2004, he listed his impression as right bicipital tendinitis and lateral epicondylitis.
Dr. Durairaj noted that appellant had objective signs indicating shoulder and elbow conditions
which are currently active and disabling.
Appellant retired on January 20, 2004.

2

In a January 30, 2004 report, Dr. Kenneth L. Matthews, a psychiatrist, diagnosed a
depressive disorder, generalized anxiety disorder and post-traumatic stress disorder.
On February 9, 2004 the Office referred appellant for a functional capacity evaluation.
On March 1, 2004 the physical therapist indicated that appellant did not meet the return to work
requirements of her previous job. He noted that appellant’s return to work lifting requirement
was 50 pounds and that her maximum lift was 17.5 pounds, which correlated with a restricted
right shoulder range of motion. The physical therapist noted that appellant’s shoulder/elbow
strength was near normal. He recommended that alternate duty at a lower performance level be
considered.
In a letter dated March 25, 2004, Dr. Durairaj advised that appellant could return to
restricted duty for eight hours a day. In a work capacity evaluation completed on March 30,
2004, he noted that appellant could reach for zero to two hours, was limited to two to four hours
of repetitive movements in her wrists and elbows and pushing, pulling and lifting was limited to
two to four hours and 20 pounds.
By letter dated April 15, 2004, the Office forwarded a copy of the functional capacity
evaluation and Dr. Durairaj’s reports to Dr. Baylan. In a May 20, 2004 letter, Dr. Baylan
responded:
“I reviewed the evaluation of Dr. Durairaj and the completed [duty status report].
I concur with the assessment partly because other complicating conditions
stemming from the original injury were not mentioned or presumably
inadvertently left out. Dr. Walsh had noted earlier in the course of her evaluation
and treatment documented the presence of depression, anxiety, myofascial pain
syndrome and neuropathic pain syndrome. These conditions have contributed to
her chronic pain syndrome. These aforementioned conditions can have a direct
influence on her ability to work and maintain work. Please note, these conditions
are not static, and her pain and functional capacity will vary from day to day
impacting her job performance.
“I agree with the completed [work capacity evaluation]. I also agree with the
mismatch between her job demand and the functional capacity as determined by
the [functional capacity evaluation.]. I question her ability to maintain
employment with restrictions considering that her depression is still unresolved.”
On May 27, 2004 Dr. Baylan stated that appellant’s problem “was essentially chronic
pain syndrome involving the upper part of her body, neck, arm and associated fibromyalgia,
myofascial pain syndrome, depression and neuropathic pain. He noted that all of the
aforementioned conditions have precluded her from working and that she was now disabled.
On July 16, 2004 the employing establishment extended a modified mail handler job
offer to appellant. The position was in accordance with the restrictions set by Dr. Durairaj. The
position did not require appellant to exceed 20 pounds lifting and an ergonomic chair would be
provided. The employing establishment listed the duties of the modified position as working at a
table riffling mail (self-paced) for two to four hours, collecting run reports from machines from

3

one to two hours, relief for monitoring station one to two hours and additional duties within
restrictions as assigned by supervisor for one to two hours. The physical requirements involved
sitting and facing mail, walking several feet to collect reports and damaged mail not to exceed 20
pounds. It was noted that an ergonomic chair would be provided.
By letter dated July 20, 2004, the Office notified appellant that the employing
establishment had offered her a position as a modified light-duty mail handler. It found the
position to be within her physical limitations and confirmed that the position remained available.
The Office informed appellant that, if she failed to accept this position or demonstrate why her
failure to accept it was justified, her right to compensation would be terminated in keeping with
5 U.S.C. § 8106(c).
By letter dated August 8, 2004, received by the Office on August 13, 2004, appellant
requested a change in treating physicians. She made no response with regard to the job offer.
Appellant did not respond to the Office’s letter of July 20, 2004 within the requisite 30-day
period.
By decision dated August 26, 2004, the Office terminated appellant’s compensation
benefits as she did not accept a suitable position. The Office noted that she did not provide any
reasons for refusing the position. The employing establishment verified on August 20, 2004 that
the offered position continued to remain available to appellant.
On September 15, 2004 appellant requested an oral hearing.
By letter dated
November 18, 2004, the Office informed her of various hearing procedures and that she could
have a representative at the hearing.
In a report dated October 19, 2004, Dr. Alan W. Young, an osteopath, reviewed
appellant’s work and medical history. He listed his impressions as bilateral cubital and carpal
tunnel syndrome; right shoulder strain and chronic myofascial pain; and significant depression.
Dr. Young prescribed acupuncture.
At the hearing held on July 26, 2005 appellant described how her injury occurred. She
contended that she did not refuse suitable employment because she filed for disability retirement
as she was instructed to do by the Office.
In an October 10, 2005 report, a physician’s assistant in the office of Dr. Donald Bacon, a
Board-certified anesthesiologist, assessed appellant with arm pain and traumatic injury to
shoulder and upper arm. He noted that appellant continued to demonstrate evidence of ongoing
neck pain. The physician’s assistant stated that it was his opinion that her mood had been
impaired due to pain and physical dysfunction.
By decision dated October 27, 2005, the hearing representative affirmed the August 26,
2004 termination of benefits.
Appellant submitted further medical reports by Dr. Bacon dated from February 22
through August 23, 2006. Dr. Bacon treated her for adhesive capsulitis of shoulder, arm pain,
cervical strain and lateral and medial epicondylitis and provided multiple epidural steroid
injections. Dr. Bacon noted that appellant’s mood was impaired by her physical ailments.
4

On October 25, 2006 appellant, through her attorney, requested reconsideration. Counsel
submitted a copy of a decision of the Social Security Administration finding her disabled
commencing July 1, 2003 and continuing for at least 12 months with severe impairments of
bilateral carpal tunnel syndrome and major depressive disorder. Medical reports addressing
appellant’s emotional condition dated from October 10, 2001 through September 24, 2003
indicated that she was treated for a major depressive disorder. On July 7, 2003 Dr. Megaly V.
Marrero, a clinical psychologist, noted that appellant’s diagnosis of major depressive disorder
would significantly impact her ability to perform her job. She found that appellant could not
perform her job duties as a mail clerk, noting that she would have difficulty with repetitive
motion and that her pain increased her difficulties in concentrating.
By decision dated November 15, 2006, the Office denied modification of the October 27,
2005 decision.
LEGAL PRECEDENT
Section 8106(c)(2) of the Federal Employees’ Compensation Act states that a partially
disabled employee who refuses to seek suitable work or refuses or neglects to work after suitable
work is offered to, procured by or secured for him is not entitled to compensation.1 The Office
has authority under this section to terminate compensation for any partially disabled employee
who refuses or neglects suitable work when it is offered. Before compensation can be
terminated, however, the Office has the burden of demonstrating that the employee can work,
setting forth the specific restrictions, if any, on the employee’s ability to work and has the burden
of establishing that a position has been offered within the employee’s work restrictions, setting
forth the specific job requirements of the position.2 In other words, to justify termination of
compensation under 5 U.S.C. § 8106(c)(2), which is a penalty provision, the Office has the
burden of showing that the work offered to and refused or neglected by appellant was suitable.3
The implementing regulations provides that an employee, who refuses or neglects to
work after suitable work has been offered or secured for the employee has the burden of showing
that such refusal or failure to work was reasonable or justified and shall be provided with the
opportunity to make such a showing before entitlement to compensation is terminated.4 To
justify termination, the Office must show that the work offered was suitable and that appellant
was informed of the consequences of his refusal to accept such employment.5
The issue of whether an employee has the physical ability to perform a modified position
offered by the employing establishment is primarily a medical question that must be resolved by
1

5 U.S.C. § 8106(c)(2).

2

Frank J. Sell, Jr., 34 ECAB 547 (1983).

3

Glen L. Sinclair, 36 ECAB 664 (1985).

4

20 C.F.R. § 10.517(a) (1999); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment:
Determining Wage-Earning Capacity, Chapter 2.814.5(a)(5) (July 1997).
5

Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB 818 (1992).

5

medical evidence.6 In assessing medical evidence, the number of physicians supporting one
position or another is not controlling; the weight of such evidence is determined by its reliability,
its probative value and its convincing quality. The factors that comprise the evaluation of
medical evidence include the opportunity for and the thoroughness of physical examination, the
accuracy and completeness of the physician’s knowledge of the facts and medical history, the
care of analysis manifested and the medical rationale expressed in support of the physician’s
opinion.7 Office procedures state that acceptable reasons for refusing an offered position include
withdrawal of the offer, medical evidence of inability to do the work or travel to the job or the
claimant found other work which fairly and reasonably represents his or her earning capacity (in
which case compensation would be adjusted or terminated based on actual earnings).
Furthermore, if medical reports document a condition which has arisen since the compensable
injury and the condition disables the employee, the job will be considered unsuitable.8
ANALYSIS
The Office properly found that the modified job offer was suitable. Dr. Durairaj listed
appellant’s restrictions in his work capacity evaluation as reaching for zero to two hours, two to
four hours of repetitive movements with her wrists and elbows and pushing, pulling and lifting
limited to two to four hours and 20 pounds. Dr. Baylan, appellant’s treating physician, agreed
with these limitations. The employing establishment indicated that it would not exceed the
restrictions set forth in Dr. Durairaj’s March 30, 2004 report. The position did not require
appellant to exceed 20 pounds lifting and an ergonomic chair would be provided. Appellant’s
work would be self-paced which would allow her to stay within her restrictions. There is no
medical evidence of record to establish that the modified job offer was outside appellant’s
restrictions. The Board notes that Dr. Bacon merely discusses his treatment of appellant, not her
ability to perform the modified job offer.
On appeal appellant’s attorney correctly indicates that, if a medical condition has arisen
since the compensable injury and the condition disables the employee, the job will be
unsuitable.9 However, there was no medical evidence that appellant’s emotional condition
caused her to be disabled from performing the modified position. Although Dr. Marrero
expressed some concerns with regard to appellant’s abilities to perform her usual job, she did not
address appellant’s capacity to perform the modified job assignment.
Appellant also submitted a decision from the Social Security Administration. However,
the findings of other administrative agencies are not determinative of appellant’s disability under
the Federal Employees’ Compensation Act.10 The Social Security Act the Federal Employees’
6

See Marilyn D. Polk, 44 ECAB 673 (1993).

7

See Connie Johns, 44 ECAB 560 (1993).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.4(b)(4) (July 1997).
9

See Connie Johns, supra note 7.

10

Daniel Deparini, 44 ECAB 657, 660 (1993).

6

Compensation Act have different standards of medical proof on the question of disability.11
Thus, this evidence is not relevant with regard to appellant’s claim under the Federal Employees’
Compensation Act.
Appellant contends that the Office failed to give her proper notice of the proposed
termination of benefits for failure to accept suitable employment. By letter dated July 20, 2004,
the Office informed her of the modified light-duty position offered by the employing
establishment, noted that it reviewed the job offer and found it suitable and in accordance with
the medical limitations provided by Dr. Durairaj and that appellant’s physician, Dr. Baylan,
agreed with the limitations set by Dr. Durairaj. In this letter, the Office informed appellant of the
consequences of her failure to accept suitable employment and notified her that, if she failed to
accept the position, she must provide a written explanation of reasons within 30 days. She did
not respond within 30 days and the Office terminated compensation benefits. Accordingly, the
Office properly notified appellant of the modified position offer and of the consequences of her
failure to accept the position without a valid reason and appellant failed to respond within 30
days with reasons for refusing the position, the Office properly terminated benefits.
Appellant contends that the Office erroneously placed the burden of proof on her when
terminating benefits. This argument is without merit. In terminating appellant’s compensation
on August 26, 2004, the Office had the burden of proof to establish that the employing
establishment made an offer of suitable employment. The Office met its burden of proof to
terminate her compensation based on her refusal of suitable work. The burden then shifted to
appellant to show that her refusal to work in that position was justified.12
Finally, counsel’s contention that the Office failed to notify appellant of her right to
representation at the hearing is without merit. In the attachment to its November 18, 2004 letter
with regard to appellant’s hearing rights, the Office clearly advised that she could be represented
by another person at the hearing. There is no requirement that the hearing representative again
notify appellant of this right immediately prior to the hearing.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation benefits on
the grounds that she refused to accept suitable work.

11

Id.

12

See Ronald M. Jones, 52 ECAB 190 (2000).

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 15, 2006 is affirmed.
Issued: February 8, 2008
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
BENEFITS CENTER -- CIVILIAN, MEDICAL
COMMAND, FORT CARSON, CO, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
John S. Evangelisti, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1604
Issued: July 8, 2021

Case Submitted on the Record

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

JURISDICTION
On September 7, 2020 appellant, through counsel, filed a timely appeal from an August 18,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

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 her burden of proof to establish an injury in the
performance of duty on January 15, 2019, as alleged.
FACTUAL HISTORY
On January 23, 2019 appellant, then a 55-year-old registered nurse, filed a traumatic injury
claim (Form CA-1) alleging that on January 15, 2019 she sustained injuries to her right ankle and
foot, and the left side of her body when her right ankle “gave out” and she stumbled and fell on
her left side as she was walking in the hallway toward the nurses station while in the performance
of duty. She noted that she thought that her right ankle collapsed, and she did not have time to
break her fall. Appellant did not stop work.
On January 24, 2019 Dr. Jeannette Mercer, a family practitioner, diagnosed contusion of
the left lower extremity and a left arm injury. She noted that, as appellant was walking down the
hall at work, her right ankle gave way causing her to fall onto her left side. Appellant reported
that she had strained her right ankle on December 30, 2018 while exercising. Dr. Mercer
completed an attending physician’s report (Form CA-20) of even date and indicated by checking
a box marked “No” that appellant’s conditions were not work related as she injured her right ankle
at home which caused the fall at work.
In a February 7, 2019 note, Dr. Autumn N. Dean, a Board-certified family practitioner,
diagnosed contusions of the left upper and lower extremities. She noted the history of injury as a
fall at work on January 15, 2019 when appellant’s right ankle gave way. Dr. Dean noted that
appellant had previously injured her right ankle while exercising at home on December 30, 2018.
She also noted that appellant had sought medical treatment and was diagnosed with a right ankle
strain and advised that it would get better.
In a March 11, 2019 development letter, OWCP advised appellant of the deficiencies of
her claim and instructed her as to the factual and medical evidence necessary to establish her claim.
It provided her with a questionnaire for her completion. OWCP afforded appellant 30 days for a
response.
In February 7 and March 7, 2019 attending physician’s reports (Form CA-20), Dr. Dean
indicated by checking a box marked “No” indicating that she did not believe that appellant’s
diagnosed left arm injury and left leg contusion were caused or aggravated by employment activity.
She repeated her findings in March 7 and 22, 2019 treatment notes indicating that appellant’s right
ankle gave way causing her to fall onto her left side. Dr. Dean reiterated that appellant had
previously sustained a right ankle strain on December 30, 2018 while exercising.
In an undated response to OWCP’s development questionnaire, appellant asserted that she
was walking down the hall at work and fell. She alleged that she was walking at a normal gait and
speed when her right ankle rolled or collapsed and she fell to the floor landing on her left side.
Appellant experienced pain in her left arm, shoulder, hip, knee, shin, and right ankle.

2

In an April 3, 2019 witness statement, K.H., a coworker, noted on January 15, 2019 she
heard someone fall and found appellant on the floor in the middle of the hall. She was unsure what
had happened or whether appellant had twisted her right ankle. Appellant complained that she had
pain in her left arm, knee, and ankle.
By decision dated April 16, 2019, OWCP denied appellant’s traumatic injury claim,
finding that she had not established that the diagnosed conditions were causally related to the
accepted January 15, 2019 employment incident.
In an April 18, 2019 note, Dr. Dean indicated that appellant fell while holding papers in
her arms. She completed a Form CA-20 of even date, noting that appellant’s right ankle gave way
while walking down a hall at work causing appellant to fall on her left side. Dr. Dean indicated
by checking a box marked “Yes” that appellant’s diagnosed conditions of left shoulder strain and
left knee sprain were caused or aggravated by her employment activity.
On January 14, 2020 appellant, through counsel, requested reconsideration of the April 16,
2019 decision. She contended that, while she experienced an ankle strain on December 30, 2018,
she had fully recovered from that injury by the time of her fall at work on January 15, 2019.
Appellant further asserted that her January 15, 2019 fall was caused by work factors, specifically
the medical reports that she was carrying which prevented her from regaining her balance or
breaking her fall. She concluded that she had sustained an unexplained fall.
In a December 13, 2019 report, Dr. Jack Rook, a Board-certified physiatrist, noted
appellant’s history of injury on January 15, 2019. He reported that she had a misstep while
walking causing her right ankle to collapse and her to fall on the left side of her body. Dr. Rook
noted that Dr. Mercer had attributed appellant’s fall to her December 30, 2018 right ankle injury,
but that appellant reported that, at the time of her fall, she was not experiencing right ankle
symptoms, did not seek medical treatment after January 2, 2018 for her right ankle, and was
capable of performing full duty after December 30, 2018. He reviewed magnetic resonance
imaging (MRI) studies and found that these exhibited torn supraspinatus tendon and fraying of the
infraspinatus tendon in the left shoulder, and a sprained medial collateral ligament in the left knee.
Dr. Rook diagnosed left shoulder rotator cuff tear, left knee medial collateral ligament sprain,
permanent aggravation of osteoarthritis of the left knee, medial and lateral meniscal tears of the
right knee, permanent aggravation of right knee osteoarthritis, resolved right ankle sprain, and
bilateral hip and low back pain due to alteration of gait caused by work-related lower extremity
conditions.
In a December 21, 2019, appellant asserted that on December 30, 2018 she experienced
right ankle pain and swelling after exercising. She sought medical attention and all tests were
negative. Within two days of her right ankle injury, appellant alleged that she was symptom free.
On January 15, 2019 as she walked down the hall at work, her right ankle rolled or collapsed and
she fell injuring her left arm, shoulder, hip, knee, shin, and right ankle. Appellant alleged that at
the time of the fall she was carrying work-related medical reports. She asserted that she was unable
to regain her balance or break her fall due to holding the medical reports.
By decision dated April 8, 2020, OWCP denied modification of its April 16, 2019 decision.

3

On April 26, 2020 appellant, through counsel, requested reconsideration. She again
contended that she had recovered from her December 30, 2018 right ankle condition within a week.
Appellant also alleged that the medical records that she was carrying on January 15, 2019
contributed to her fall. She alleged that Dr. Rook’s report was entitled to the weight of the medical
opinion evidence or that there was a conflict of medical opinion evidence.
Appellant provided a January 2, 2019 note from Warren D. McDonald, a nurse practitioner,
who noted examining her for right ankle pain which developed after she was exercising on a
treadmill. She experienced soreness and slight swelling and reported that it hurt to walk.
Mr. McDonald diagnosed ankle strain.
By decision dated July 10, 2020, OWCP denied modification of its prior decisions.
On July 27, 2020 appellant, through counsel, requested reconsideration. She contended
that OWCP did not considered the contribution of work factors to her fall.
By decision dated August 18, 2020, OWCP denied modification of its prior decisions.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 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.4 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.5
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.6 The second component is whether the employment incident caused a personal
injury.7

3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

T.M., Docket No. 19-0380 (issued June 26, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

7

M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989).

4

It is a well-settled principle of workers’ compensation law, and the Board has so held, that
an injury resulting from an idiopathic fall -- where a personal, nonoccupational pathology causes
an employee to collapse and to suffer injury upon striking the immediate supporting surface and
there is no intervention or contribution by any hazard or special condition of employment -- is not
within coverage of FECA.8 Such an injury does not arise out of a risk connected with the
employment and is, therefore, not compensable. However, as the Board has made equally clear,
the fact that the cause of a particular fall cannot be ascertained or that the reason it occurred cannot
be explained, does not establish that it was due to an idiopathic condition.9
This follows from the general rule that an injury occurring on the industrial premises during
working hours is compensable unless the injury is established to be within an exception to such
general rule.10 OWCP has the burden of proof to submit medical evidence showing the existence
of a personal, nonoccupational pathology if it chooses to make a finding that a given fall is
idiopathic in nature.11 If the record does not establish that the particular fall was due to an
idiopathic condition, it must be considered as merely an unexplained fall, one which is
distinguishable from a fall in which it is definitely proven that a physical condition preexisted and
caused the fall.12
ANALYSIS
The Board finds that appellant has established that the January 15, 2019 incident occurred
in the performance of duty, as alleged.
In determining whether appellant’s injury occurred in the performance of duty, the Board
must first consider factors to determine whether the January 15, 2019 incident was caused by an
idiopathic fall. Factors to be considered include whether there is evidence of a preexisting
condition that caused her to fall, whether there were any intervening circumstances or conditions
that contributed to her fall, and whether she struck any part of her body against a wall, piece of
equipment, furniture, or similar object as she fell.13 As previously noted, OWCP bears the burden
of proof to establish an idiopathic fall.14

8
J.W., Docket No. 20-0598 (issued December 2, 2020); A.B., Docket No. 17-1689 (issued December 4, 2018);
L.G., Docket No. 13-0927 (issued August 27, 2013); Carol A. Lyles, 57 ECAB 265 (2005).
9

J.W., id.; M.M., Docket No. 08-1510 (issued November 25, 2008).

10

Dora J. Ward, 43 ECAB 767 (1992); Fay Leiter, 35 ECAB 176 (1983).

11

J.W., supra note 8; P.P., Docket No. 15-0522 (issued June 1, 2016).

12

See D.T., Docket No. 19-1486 (issued January 17, 2020); P.N., Docket No. 17-1283 (issued April 5, 2018);
John R. Black, 49 ECAB 624 (1998); Judy Bryant, 40 ECAB 207 (1988); Martha G. List, 26 ECAB 200 (1974).
13

D.T., id; P.P., supra note 11; Jennifer Atkerson, 55 ECAB 317 (2004).

14

Supra note 11.

5

On her claim form, appellant alleged that she was injured as a result of falling and hitting
the floor on January 15, 2019 after her right ankle rolled or gave way while in the performance of
duty.
The Board finds that the evidence of record fails to establish that appellant’s January 15,
2019 fall was solely the result of a personal, nonoccupational pathology. 15 Various medical
reports, including Dr. Mercer’s January 24, 2019 report, Dr. Dean’s February 7 through April 18,
2019 reports, and Dr. Rook’s December 13, 2019 report, describe how appellant injured her right
ankle on December 30, 2018 while exercising. However, she asserted, and Dr. Rook found, that
she had no right ankle symptoms after January 2, 2019 and could perform her full-duty work with
no restrictions on January 15, 2019. There is no medical evidence supporting that appellant sought
additional treatment for her right ankle between January 2 and 15, 2019. The factual evidence also
indicates that appellant was walking and carrying medical records when she fell.16 Dr. Rook
opined in his December 13, 2019 report that appellant’s previous right ankle condition was not the
sole cause of her fall on January 15, 2019 which he attributed in part to a misstep while in the
performance of duty.
While Dr. Mercer reported on January 24, 2019 that appellant had a preexisting right ankle
condition, and indicated by checking a box marked “No” on her Form CA-20 report of even date
that the January 15, 2019 incident was not employment related, the Board has held that an opinion
on causal relationship with check mark, without more by way of medical rationale, is insufficient
to establish the opinion asserted.17 In February 7 and March 7, 2019 Form CA-20 reports,
Dr. Dean checked a box marked “No” indicating that appellant’s January 15, 2019 fall was not
employment related; however, in an April 18, 2019 Form CA-20 she checked a box marked “Yes”
indicating that appellant’s January 15, 2019 fall was employment related. The Board has found
that inconsistent and contradictory reports from the same physician lack probative value and
cannot constitute competent medical evidence.18 As such these reports are insufficient to meet
OWCP’s burden of proof to establish that appellant experienced an idiopathic fall on
January 15, 2019.
The Board has held that the mere fact that an employee has a preexisting medical condition,
without supporting medical rationale to establish that it was the cause of the employment incident,
is insufficient to establish that a fall is idiopathic.19 If the record does not establish that, a particular
fall was due to an idiopathic condition, it must be considered as merely an unexplained fall, one
which is distinguishable from a fall in which it is definitely proved that a physical condition was
15

D.M., Docket No. 18-1552 (issued June 2, 2020).

16

See M.A., Docket No. 19-0341 (issued July 10, 2019) (in which appellant attributed his fall to a personal,
nonoccupational pathology without employment contribution); Anne Elizabeth Gruber, 04-1769 (issued January 24,
2005) (in which appellant’s physicians attributed her fall to her preexisting Parkinson’s disease with a reasonable
degree of medical certainty).
17

H.S., Docket No. 20-0939 (issued February 12, 2012).

18

Id.

19

Steven S. Saleh, 55 ECAB 169 (2003).

6

preexisting and caused the fall.20 The Board finds that OWCP has failed to meet its burden to
establish that appellant’s fall at work was of an idiopathic nature with no contribution or
intervention from employment factors; therefore, it is unexplained.21 The evidence of record is
sufficient to require OWCP to further develop the medical evidence and the case record.22
Accordingly, the case will be remanded for OWCP to determine whether appellant
sustained an injury causally related to the January 15, 2019 unexplained fall, and if so, to also
determine the nature and extent of disability, if any. Following any further development deemed
necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that appellant has established that the January 15, 2019 incident occurred
in the performance of duty, as alleged. The Board further finds that the case is not in posture for
decision regarding whether appellant has established an injury causally related to the January 15,
2019 unexplained fall.

20

Id.

21

R.D., Docket No. 13-1854 (issued December 23, 2014).

22

Robert A. Redmond, 40 ECAB 796, 801 (1989).

7

ORDER
IT IS HEREBY ORDERED THAT the August 18, 2020 decision of the Office of
Workers’ Compensation Programs is reversed. The case is remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: July 8, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

8