United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Houston, TX, Employer
__________________________________________

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Appearances:
Michael E. Woods, for the appellant
Office of Solicitor, for the Director

Docket No. 11-302
Issued: November 10, 2011

Case Submitted on the Record

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

JURISDICTION
On November 18, 2010 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’(OWCP) nonmerit decision dated October 19, 2010, which denied his
request for reconsideration on the grounds that it was not timely filed and failed to establish clear
evidence of error. Because more than one year has elapsed from the last merit decision dated
September 15, 2003 to the filing of this appeal on November 18, 2010, the Board lacks
jurisdiction to review the merits of his claim pursuant to the Federal Employees’ Compensation
Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 15, 2002 appellant, then a 56-year-old custodial laborer, sustained a right
shoulder injury at work when he was lifting a heavy box of grass and debris to put into a
dumpster. He stopped work on April 11, 2002. OWCP accepted the claim for right rotator cuff
tear and later expanded the claim to include rotator cuff syndrome. Appellant underwent
authorized operative arthroscopy, right shoulder with subacromial decompression, glenohumeral
synovectomy, open repair of rotator cuff avulsion and biceps tendodesis on June 18, 2002.
Follow-up surgery for decompression of the ulnar and median nerve was authorized and
completed on November 19, 2002.2 Appellant received compensation benefits for temporary
total disability.3
On August 6, 2003 the employing establishment offered a position as a modified fulltime regular (FTR) clerk. The position description included: that appellant monitor individuals
on the floor requesting access into particular offices; keep a log of visitors on a daily basis; check
visitors in/out of GPO/GPO Annex; issue temporary badges; and other duties as assigned by
supervisor within medical limitations.
On August 20, 2003 OWCP advised appellant that the modified FTR clerk position had
been found to be suitable to his capabilities and was currently available. Medical reports were
received by OWCP.
In a September 3, 2002 report, Dr. William R. Livesay, a Board-certified internist,
diagnosed coronary artery disease with exertional angina pectoris, status post coronary
angioplasty, mild cardiomegaly of borderline degree and noted that there was no evidence of
congestive heart failure. He also indicated that appellant was status “postop” lumbar
laminectomy for ruptured disc, steadily improving. Dr. Livesay noted that appellant was also
“status postop repair of a torn rotator cuff in the right shoulder with continued limitations and
reduced range of motion. He diagnosed additional conditions of diabetes mellitus and
hypertensive cardiovascular disease, uncomplicated. Dr. Livesay provided work restrictions
which included that appellant had no limitations in sitting or standing but that he was unable to
walk more than a half a block to a block before angina was induced and promptly relieved by
sublingual nitroglycerine. He advised no lifting on instructions from his orthopedist and no other
limitations.
In a separate September 3, 2002 report, Dr. Mehboob Nazarani, a Board-certified
psychiatrist and neurologist, advised that appellant was able to perform his activities of daily
living, function socially, care for his personal needs and concentrate. He diagnosed dysthymic
disorder, provisional post-traumatic stress disorder, chronic with delayed onset, history of high
blood pressure, diabetes, coronary artery disease, acid reflux disease, history of back and
shoulder injury and serious psychosocial stressors, including medical and financial problems.
Dr. Nazarani made no finding regarding appellant’s ability to work.

2

Further surgery was authorized on March 4, 2003 for right shoulder arthroscopic synovectomy and retrieval of
loose body. Dr. Thompson found that appellant had reached maximum medical improvement on June 11, 2003.
3

Appellant retired on November 28, 2003.

2

In a July 21, 2003 report, Dr. Steven Thompson, a Board-certified orthopedic surgeon,
advised that he had discussed appellant’s work restrictions. He noted that he “addressed only
[appellant’s] shoulder problems.” Dr. Thompson indicated that appellant could return to work
that did “not require any repetitive or heavy overhead lifting. Based on [appellant’s] shoulder,
he should be able to perform some type of sedentary occupation.” On July 23, 2003 he opined
that appellant reached his maximum medical improvement regarding the right shoulder and he
reiterated work restrictions.
OWCP indicated that the position was in accordance with his physicians’ restrictions.
Appellant was advised that he had 30 days to accept the position or provide an explanation for
refusing the position. OWCP informed him that if he failed to accept the offered position and
failed to demonstrate that, the failure was justified, his compensation would be terminated.
Appellant responded on the same day, August 20, 2003, that he declined the offered job
noting: “physical and mental disorders diagnosed/variety of prescription drug[s] that are mood
altering.” In a letter dated August 29, 2003, OWCP advised him that his reasons for refusing the
position were not acceptable and allowed an additional 15 days for him to accept the position.
Appellant was advised that no further reason for refusal would be considered.
Appellant submitted to the record on September 11, 2003 additional medical records
from Dr. Barry A. Nelms, a Board-certified orthopedic surgeon, reflecting a May 7, 2002
hemilaminectomy, foraminotomy and discectomy at L4-5 on the left side and follow-up reports.4
Dr. Nelms allowed that appellant could return to work eight hours per day with no excessive
bending effective August 8, 2002.
The record reflects a July 21, 2003 report from Dr. Thompson, received in the record on
July 31, 2003, that noted he “addressed only his shoulder problems. He can return to work that
does not require any repetitive or heavy overhead lifting. Based on his shoulder, he should be
able to perform some type of sedentary occupation.”
Appellant was placed in the Nurse Intervention Program and on July 22, 2003 a report
from Barbara Berkland, RN, CCM, noted: “I met with Dr. Thompson. He agreed he had no
knowledge of any other medical problems for [appellant]. [Dr. Thompson] completed another
OWCP-5 form. [Appellant] is in the process of putting information together for retirement.”
In a decision dated September 15, 2003, OWCP terminated appellant’s entitlement to
monetary compensation benefits effective October 5, 2003, due to his refusal to accept suitable
work.5

4

Although appellant claimed this was work related, OWCP had not accepted the back condition at the time of
surgery. This claim was later accepted for herniated nucleus pulposus at L4-5 and the surgery was ultimately
authorized by OWCP. This matter was handled under claim number xxxxxx338.
5

Appellant requested a review of the written record on October 21, 2003 but, on December 3, 2003, OWCP
denied the request as being untimely. On May 27, 2004 he requested a schedule award. However, on June 7, 2004,
OWCP advised appellant that he was not eligible for an award as he had refused suitable work. It directed him to
follow the appeal rights in his September 25, 2003 decision.

3

On August 28, 2006 OWCP received additional reports from Dr. Barry A. Nelms, a
Board-certified orthopedic surgeon. In his October 10, 2003 report, Dr. Nelms noted that he had
evaluated appellant for his low back and left-sided buttock pain on April 26, 2002. He noted that
while his initial treatment notes indicated that, the pain came without incident, he explained that
appellant actually informed him that the pain began a few weeks after a work injury to his
shoulder. Dr. Nelms opined that it appeared that appellant “injured his back at the same time, as
his shoulder, which has lead to his current problems.”
Appellant requested reconsideration on June 16, 2010 and his representative requested
reconsideration on June 17, 2010. The representative argued that appellant had filed a timely
request for reconsideration. He also argued that OWCP improperly terminated appellant’s
benefits because it had not considered preexisting nonaccepted medical conditions, including his
diabetes and post-traumatic stress disorder, as well as heart conditions which had arisen since his
surgery, when determining the suitability of the position. The representative noted that OWCP
had in the record at the time it made its suitability determination the September 3, 2002
psychiatric report of Dr. Nazarani, which noted appellant’s psychiatric treatment. He indicated
that appellant’s subsequently acquired conditions also disabled him from the offered position
and, thus, the job was unsuitable. Appellant’s representative alleged that a new report from
Dr. Thompson, dated December 17, 2008, clarified that the position was unsuitable. Appellant
also submitted nurses’ reports, his refusal to accept the offered position and numerous physical
therapy reports, progress notes and a letter to his Congressional representative dated
September 16, 2003.
In his December 17, 2008 treatment note, Dr. Thompson advised that, when he saw
appellant in 2003, he only considered his shoulder condition, not his neck or back. He explained
that appellant also had fairly significant cardiac disease and prostate cancer. Dr. Thompson
opined that while appellant “could return to work with restrictions solely based on his shoulder,
for the above mentioned reasons he was not able to return to work and in my estimate benefits
should not be denied.” He continued to treat appellant and submit reports. OWCP also received
copies of previously submitted reports from Dr. Thompson.
In a June 25, 2010 surgical report, Dr. Stephen D. Brown, a Board-certified orthopedic
surgeon, performed a right shoulder diagnostic arthroscopy, right shoulder rotator cuff
debridement and insertion of a pain pump. He also provided follow up and diagnostic reports.
By decision dated October 19, 2010, OWCP denied appellant’s request for
reconsideration on the grounds that the request was not timely and did not establish clear
evidence of error by OWCP.6
LEGAL PRECEDENT
Section 8128(a) of FECA7 does not entitle a claimant to a review of an OWCP decision
as a matter of right.8 This section vests OWCP with discretionary authority to determine whether
6

This decision superseded a July 1, 2010 decision, as appellant’s representative was not sent a copy of that
decision.
7

5 U.S.C. § 8128(a).

8

Thankamma Mathews, 44 ECAB 765, 768 (1993).

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it will review an award for or against compensation.9 OWCP, through its regulations, has
imposed limitations on the exercise of its discretionary authority. One such limitation is that it
will not review a decision denying or terminating a benefit unless the application for
reconsideration is filed within one year of the date of that decision.10 The Board has found that
the imposition of this one-year time limitation does not constitute an abuse of the discretionary
authority granted OWCP under 5 U.S.C. § 8128(a).11
OWCP’s regulations require that an application for reconsideration must be submitted in
writing and define an application for reconsideration as the request for reconsideration “along
with the supporting statements and evidence.”13 The regulations provide:
12

“[OWCP] will consider an untimely application for reconsideration only if the
application demonstrates clear evidence of error on the part of [OWCP] in its
most recent merit decision. The application must establish, on its face, that such
decision was erroneous.”14
In those cases where requests for reconsideration are not timely filed, OWCP must
nevertheless undertake a limited review of the application for reconsideration to determine
whether there is clear evidence of error pursuant to the untimely request in accordance with
section 10.607(b) of its regulations.15
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.16 The evidence must be positive, precise and explicit and must be
manifest on its face that OWCP committed an error.17 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.18 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.19 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record

9

Id. at 768, see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990).

10

20 C.F.R. §§ 10.607; 10.608(b). The Board has concurred in OWCP’s limitation of its discretionary authority;
see Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).
11

Id. at § 10.607(b); Thankamma Mathews, supra note 8 at 769; Jesus D. Sanchez, supra note 9 at 967.

12

Id. at § 10.606.

13

Id. at § 10.605.

14

Id. at § 10.607(b).

15

Thankamma Mathews, supra note 8 at 770.

16

Id.

17

Leona N. Travis, 43 ECAB 227, 241 (1991).

18

Jesus D. Sanchez, supra note 9 at 968.

19

Leona N. Travis, supra note 17.

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and whether the new evidence demonstrates clear error on the part of OWCP.20 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of OWCP’s decision.21
ANALYSIS
Appellant requested reconsideration on June 16, 2010. Since he filed his reconsideration
request more than one year following OWCP’s September 15, 2003 merit decision, OWCP
properly determined that the request was untimely.
Although appellant asserted on
reconsideration that he timely requested reconsideration, the record does not support this.
The underlying issue in this case is whether OWCP properly terminated wage-loss
benefits due to appellant’s refusal to accept suitable work. In the June 17, 2010 request for
reconsideration, appellant contended that OWCP failed to consider his nonemployment
conditions of post-traumatic stress disorder and diabetes at the time the position was offered.
A determination that an offered position is medically suitable is based on medical
evidence at the time the position is offered and includes consideration of nonemployment-related
conditions as well as employment-related conditions.22 The Board notes that while appellant
asserts that his other conditions were not considered, the record does not reflect this. The record
contains Dr. Livesay’s 2002 report, which listed the additional diagnoses and his opinion that
appellant could work with restrictions on lifting and as long as he did not need to walk more than
half a block. The September 3, 2002 report from Dr. Nazarani, upon which appellant’s
representative relies to show that appellant had post-traumatic stress disorder, does not provide
any opinion that he was unable to work as a result of said condition. These reports of record
were when OWCP found that appellant refused suitable work. The record does not support his
contention that all of his medical conditions were not considered by OWCP. Moreover, the
record at the time of termination did not establish the nonemployment-related conditions as
disabling. These assertions do not raise a substantial question concerning the correctness of
OWCP’s decision.
Appellant submitted a December 17, 2008 report from Dr. Thompson, who advised that
appellant could not have returned to work in 2003 in view of all of his conditions. However,
Dr. Thompson’s opinion in 2008, finding that appellant was unable to work in 2003 due to his
other medical conditions is less probative than the contemporaneous assessment of his overall
ability to work by the physicians who were then treating him for those other conditions. The
Board has held that the term “clear evidence of error” is intended to represent a difficult
standard. The claimant must present evidence which on its face shows that OWCP made an
error (for example, proof of a miscalculation in a schedule award). Evidence such as a detailed,
well-rationalized medical report which, if submitted prior to OWCP’s denial, would have created

20

Nelson T. Thompson, 43 ECAB 919, 922 (1992).

21

Leon D. Faidley, Jr., 41 ECAB 104, 114 (1989).

22

See Janice S. Hodges, 52 ECAB 379 (2001).

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a conflict in medical opinion requiring further development, is not clear evidence of error.23
Other medical reports and records submitted on reconsideration do not specifically address
appellant’s ability to perform the offered position and do not raise a substantial question as to the
correctness of OWCP’s decision.
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP, which in this case appellant did submit. The evidence, however,
must be positive, precise and explicit and must manifest on its face that OWCP committed an
error.24 Appellant has not, through the 2008 report of Dr. Thompson and as required by 20
C.F.R. § 10.607(b), demonstrated clear evidence of error on the part of OWCP in finding that he
refused to accept suitable work. His request for reconsideration does not establish “on its face”
that OWCP’s September 15, 2003 merit decision was erroneous. Therefore, the Board finds that
appellant has not established clear evidence of error in OWCP’s finding that he refused to accept
suitable work.
The Board notes that appellant’s representative repeated his reconsideration arguments on
appeal. As noted above, these arguments are insufficient to establish clear evidence of error.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.

23

E.R., Docket No. 09-599 (issued June 3, 2009).

24

D.O., Docket No. 08-1057 (issued June 23, 2009).

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ORDER
IT IS HEREBY ORDERED THAT the October 19, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 10, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Omaha, NE, Employer
__________________________________________

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

Docket No. 08-1450
Issued: November 17, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 21, 2008 appellant filed a timely appeal from an April 8, 2008 merit decision of
the Office of Workers’ Compensation Programs denying his claim. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that he sustained a left foot injury in the
performance of duty, causally related to factors of his federal employment.
FACTUAL HISTORY
On January 23, 2008 appellant, then a 57-year-old mail processing clerk, filed an
occupational disease claim alleging that employment factors caused injury to his left ankle. He
claimed he first noticed pain while at work on December 18, 2007 after “stepping on [his] left
foot and getting a sharp pain in the instep location of the left foot.” Subsequently, appellant
intermittently missed work and was put on light duty. He claimed that his foot injury was caused
by “working a lot on hard cement floors eight hours a day,” moving equipment up to 600

pounds, and the constant movement, bending, lifting and walking required by his position.
Appellant noted that he “never had a similar injury of this nature.”
On December 25, 2007 appellant stated that while getting out of bed he “again stepped on
[his] left foot wrong, again felt sharp pain in left foot.” On December 31, 2007 he saw Wendy
Johnson, a physician’s assistant. Appellant saw Ms. Johnson again on January 8, 2008, at which
time he was referred to Edward N. Prikaszczikow, a podiatrist.
In progress notes dated January 8, 2008, Dr. Prikaszczikow diagnosed appellant with
posterior tibial tendon dysfunction of the left foot and bilateral pronation. In a duty status report
dated February 19, 2008, he found tenosynovitis in appellant’s left foot and recommended
appellant only work four to six hours a day.
In response to the Office’s February 26, 2008 request for further factual and medical
information, appellant submitted additional progress records from Dr. Prikaszczikow dated
January 8 through February 29, 2008. On February 13, 2008 Dr. Prikaszczikow recorded that
appellant “somehow hurt his right foot,” felt a sudden pain when he stepped out of bed on
February 12, 2008, and was experiencing trouble walking due to continued pain. He diagnosed
appellant with a contusion on his lateral right foot and stated, “I think this positioning in getting
out of bed, along with putting full weight on the foot, caused some jamming of the joints on the
lateral column.” Dr. Prikaszczikow further stated that the injury was “indirectly related to
[appellant’s] work injury” to his left foot.
In an April 8, 2008 decision, the Office denied appellant’s claim. It found that, while
appellant established he was a federal employee and he had filed a timely claim, he did not
provide medical evidence demonstrating that his left foot condition was caused by his
employment.
LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act1
has the burden of establishing the essential elements of his claim by the weight of the reliable,
probative and substantial evidence,2 including that he is an “employee” within the meaning of
the Act3 and that he filed her claim within the applicable time limitation.4 The employee must
also establish that he sustained an injury in the performance of duty as alleged and that his
disability for work, if any, was causally related to the employment injury.5
1

5 U.S.C. §§ 8101-8193.

2

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
57 (1968).
3

See M.H., 59 ECAB ___ (Docket No. 08-120, issued April 17, 2008); Emiliana de Guzman (Mother of Elpedio
Mercado), 4 ECAB 357, 359 (1951); see 5 U.S.C. § 8101(1).
4

R.C., 59 ECAB ___ (Docket No. 07-1731, issued April 7, 2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954);
see 5 U.S.C. § 8122.
5

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

2

To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee 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 employee.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors.7
ANALYSIS
The Office accepted that appellant experienced pain in his left foot while in the
performance of duty. The issue is whether appellant submitted sufficient medical evidence to
establish that his claimed left foot condition was caused by his employment as a mail processing
clerk. The Board finds that appellant failed to meet his burden of proof in establishing that his
left foot injury was causally related to factors of his federal employment.
Appellant alleged that his employment duties of moving heavy equipment and constantly
moving, bending, lifting and walking, all on a hard cement floor, caused his left foot condition.
However, his belief alone, does not meet his burden to establish causation. Rather, appellant
must provide rationalized medical opinion establishing a causal relationship between these
employment duties and his diagnosed condition.8
Appellant submitted progress reports and duty status reports from Dr. Prikaszczikow,
however none of these reports contain rationalized medical opinion explaining how his left foot
condition was caused by his employment duties. On duty status reports dated February 19
and 29, 2008 the box requesting the physician to “[d]escribe how the injury occurred” was left
blank. Moreover, the only mention of causation in the progress notes was on February 13, 2008,
where Dr. Prikaszczikow mentioned an injury to his right foot was “indirectly related” to his
work injury to the left foot. This statement does not meet the standard for rationalized medical
opinion because it asserts a conclusion but does not explain how the conclusion was reached.
Therefore, the Board finds that Dr. Prikaszczikow has not established a causal relationship
between appellant’s left foot condition and the accepted factors of employment. Because the
physician did not describe the connection between appellant’s left foot symptoms and his
employment, the Office properly denied his occupational disease claim.

6

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

7

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
8

See id.

3

CONCLUSION
The Board finds that appellant has not established that he sustained a left foot injury in
the performance of duty, causally related to factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the April 8, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 17, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


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

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

Docket No. 09-834
Issued: November 24, 2009

Case Submitted on the Record

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

JURISDICTION
On February 9, 2009 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decision dated October 24, 2008 determining his permanent
impairment. 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 three percent impairment of his left lower
extremity and 12 percent impairment of his right lower extremity for which he has received
schedule awards.
FACTUAL HISTORY
On December 22, 1986 appellant, then a 32-year-old carrier, filed a traumatic injury
claim alleging that he sustained low back pain as a result of a motor vehicle accident on
December 10, 1986. On January 13, 1987 the Office accepted his claim for sprained back.
Appellant filed an occupational disease claim on June 7, 1999 alleging that on March 11, 1999

he realized that his right lateral disc herniation at L5-S1 was due to his employment duties of
lifting heavy boxes and climbing stairs. A magnetic resonance imaging (MRI) scan dated
February 8, 1999 demonstrated a right lateral disc herniation at the L5-S1 level with
encroachment of the S1 nerve root and annular bulging at L4-5. Appellant underwent a lumbar
discectomy in July 1999. The Office accepted appellant’s claim for lumbar disc herniation on
August 2, 1999. It entered appellant on the periodic rolls on December 21, 1999. Appellant
returned to light-duty work and alleged that he sustained a recurrence of total disability on
March 9, 2000. The Office returned appellant to the periodic rolls on April 13, 2000.
Dr. Massimo S. Fiandaca, a Board-certified orthopedic surgeon, performed a right L5-S1 far
lateral discectomy, right L5 hemilaminectomy and right L5-S1 foraminotomy on May 9, 2000.
By decision dated September 8, 2003, the Office terminated appellant’s wage-loss and
schedule award benefits effective September 7, 2003 on the grounds that he refused suitable
work. Appellant requested an oral hearing and by decision dated July 22, 2004, the Branch of
Hearings and Review reversed the Office’s decision.
Appellant requested a schedule award on November 4, 2005. In a report dated
December 7, 2005, Dr. Rodney Brooks, a Board-certified internist, opined that appellant reached
maximum medical improvement on August 22, 2005 and that he continued to experience back
pain radiating into both legs with muscle weakness in both lower extremities and severe
impairment of the hips of 20 percent due to loss of range of motion.
By decision dated December 27, 2005, the Office found that appellant’s position as a
modified letter carrier fairly and reasonably represented his wage-earning capacity and that he
was not entitled to further compensation for wage loss.
The Office granted appellant a schedule award on June 9, 2006 awarding him 17.28
weeks of compensation. Appellant requested an oral hearing on June 24, 2006 and by decision
dated November 7, 2006 the Branch of Hearings and Review set aside the Office’s decision and
remanded for issuance of a detailed schedule award determination. By decision dated
November 16, 2006, the Office granted appellant a schedule award for three percent impairment
of the right lower extremity and three percent impairment of the left lower extremity. Appellant
again requested an oral hearing.
Appellant submitted a report dated April 19, 2007 from Dr. Brooks opining that he
reached maximum medical improvement on October 3, 2002 and that he experienced low back
pain radiating into both legs with muscle weakness and sensory deficits. Dr. Brooks diagnosed
sciatic with lumbar radiculopathy. He stated that based on Table 15-15 of the A.M.A., Guides
appellant had a Grade 2 sensory loss or a 61 to 80 percent impairment. Dr. Brooks also noted
motor impairments and hip flexion of less than 50 percent in accordance with Table 17-9, page
537 of the fifth edition of the A.M.A., Guides.
By decision dated May 16, 2007, the Branch of Hearings and Review vacated the
Office’s November 16, 2006 decision and remanded the case for further review by the district
medical adviser. In a report dated May 18, 2007, the district medical adviser concluded that
appellant had three percent impairment of each lower extremity due to sensory impairment of the
S1 nerve root which did not impact the hip. He disagreed with the Grade 2 sensory impairment

2

as found by Dr. Brooks and instead found it more likely that appellant had a Grade 4 impairment.
The Office issued a schedule award decision on June 1, 2007 finding appellant had three percent
impairment of each of the lower extremities. Appellant requested an oral hearing.
Appellant underwent a nerve conduction study and electromyography on June 29, 2007
which demonstrated the presence of a long-standing chronic left L5 radiculopathy. In a report
dated July 30, 2007, Dr. Michael S. Sellman, a Board-certified neurologist, noted appellant’s
history of injury and noted his complaints of back pain radiating into his lower extremities. On
examination he found that appellant was uncomfortable, had trouble bending forward in an
attempt to reach his toes and had a positive straight leg raising test at 45 degrees on the left.
Dr. Sellman found that appellant had depressed reflexes with no major abnormality of sensation
and no muscular atrophy. He opined that appellant had reached maximum medical improvement
and that appellant had 12 percent impairment of the whole person due to his March 11, 1999
employment injury.
By decision dated January 3, 2008, the Branch of Hearings and Review set aside the
Office’s June 1, 2007 decision finding that the physicians had not properly applied the A.M.A.,
Guides and that the Office should refer appellant, a statement of accepted facts and a list of
specific questions to a Board-certified orthopedic surgeon for a second opinion evaluation and an
impairment rating in accordance with the A.M.A., Guides and a de novo decision.
On January 16, 2008 the Office referred appellant for a second opinion evaluation with
Dr. Kevin F. Hanley, a Board-certified orthopedic surgeon. In the accompanying statement of
accepted facts, the Office stated that appellant had a “preexisting arthritic condition” which was
not further identified. In a report dated February 8, 2008, Dr. Hanley noted appellant’s
symptoms of weakness on the right side with “dragging of the right foot” and numbness in the
lateral aspect of the left calf and foot. He found that appellant had decreased sensation and
tingling in both the L5 and S1 distributions along the left lateral calf down to the foot and across
the top of the foot. Appellant exhibited similar numbness on the right to a lesser degree and
weakness of dorsiflexion. He had no calf atrophy. Dr. Hanley diagnosed bilateral lumbar
radiculopathy, L5-S1 with motor elements at the L5 level on the right and sensory only on the
left. He found a Grade 4 weakness in accordance with Table 15-16 of 25 percent. Dr. Hanley
multiplied the value of the L5 nerve root found at Table 15-18 of 37 percent by 25 percent
impairment to reach an impairment of 9.25 percent. He found a Grade 4 sensory loss as well of
25 percent, or 2.5 percent impairment of the L5 and S1 nerve roots for 12 percent impairment of
the right lower extremity. In appellant’s left lower extremity, Dr. Hanley found Grade 4 or 25
percent sensory loss in both the L5 and S1 distributions for 3 percent of the left lower extremity.
He concluded that appellant reached maximum medical improvement on August 22, 2005.
The district medical adviser reviewed Dr. Hanley’s report on February 13, 2008 and
concurred with his impairment ratings finding that appellant had 12 percent impairment of his
right lower extremity and three percent impairment of his left lower extremity.
The Office issued a schedule award decision on March 11, 2008 finding that appellant
had an additional nine percent impairment of his right lower extremity. Appellant requested an
oral hearing on April 1, 2008.

3

Appellant filed a recurrence of disability claim on July 11, 2008 noting that he returned to
light-duty work on August 22, 2005 as an acting supervisor and alleging on June 13, 2008 he
stopped work due to a recurrence of total disability with numbness in his left leg. He stated that
on June 12, 2008 he lifted a tub of mail and felt a pull in his left lower back with numbness and
weakness of his left leg from the hip to the foot. A diagnostic report dated June 19, 2008
demonstrated moderate degenerative disc disease at L5-S1 with moderate narrowing of the disc
as well as marked narrowing of the left hip with cystic changes involving the left femoral head
suggestive of subcondral cyst and severe arthritis. In a letter dated July 29, 2008, the Office
suggested that appellant’s claim should be developed as a new traumatic injury. Appellant
requested compensation beginning August 8, 2008. In a letter dated October 24, 2008, the
Office requested additional medical evidence in support of appellant’s claim for total disability.1
Appellant testified at the oral hearing on August 13, 2008 and alleged that his left hip
arthritis should be considered in his permanent impairment rating. The hearing representative
stated that additional medical evidence was needed to determine whether appellant’s left hip
condition was a consequence of the work injury and noted that the Office had not yet accepted
this condition as employment related. By decision dated October 24, 2008, the Branch of
Hearings and Review affirmed the Office’s December 12, 2007 decision.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulations3 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, the Act 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 to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The American Medical Association, Guides to the
Evaluation of Permanent Impairment has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.4 Effective February 1, 2001, the Office
adopted the fifth edition of the A.M.A., Guides as the appropriate edition for all awards issued
after that date.5
A schedule award is not payable for a member, function or organ of the body not
specified in the Act or in the implementing regulations. As neither the Act nor the regulations
provide for the payment of a schedule award for the permanent loss of use of the back, no
1

As the Office has not issued a final decision on this issue, the Board will not address it for the first time on
appeal. 20 C.F.R. § 501.2(c).
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404 (1999).

4

Id.

5

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

4

claimant is entitled to such an award.6 However, as the schedule award provisions of the Act
include the extremities, a claimant may be entitled to a schedule award for permanent
impairment to an extremity even though the cause of the impairment originated in the spine.7
It is well established that in determining entitlement to a schedule award, preexisting
impairment to the scheduled member is to be included.8 The Board has further held that when a
claimant has two independent impairment components from one injury resulting in impairment
to the same scheduled member, each of which were due to separate pathomechanics which
occurred at separate times, then the components must both be evaluated under the A.M.A.,
Guides to ascertain the claimant’s total impairment to the scheduled member.9
ANALYSIS
The Board finds this case not in posture for decision. The Office accepted that appellant
sustained a herniated disc at L5-S1 due to his accepted employment injury on June 7, 1999.
Appellant alleged that he had permanent impairment to his lower extremities as a result of this
condition. The Office granted appellant a schedule award which considered the sensory and
motor deficits of his lower extremities due to nerve root impairment in his lumbar spine as a
result of his accepted employment injury. However, the record supports that appellant has left
hip impairment due to arthritis and a subchondral cyst. Beginning in 2005 appellant’s physicians
supported that he had limited range of motion of the left hip.
The statement of accepted facts developed by the Office for referral to the second opinion
physician included the statement that appellant had a preexisting arthritic condition, but did not
identify the location of this condition. The Office medical examiner excluded hip impairment
from his schedule award rating in May 2007 noting that the hip impairment was not due to the
accepted herniated disc. At his most recent oral hearing on August 13, 2008, appellant asserted
that his left hip conditions should be included in his permanent impairment rating. The Office
has not developed the issue of whether appellant’s left hip arthritis preexisted his June 7, 1999
employment injury and should be included in his schedule award determination based on Board
precedent. Furthermore, appellant indicated at the oral hearing that his left hip arthritis was
caused or aggravated as a consequence of his accepted back injury.
The extent of appellant’s permanent impairment of his lower extremities cannot be
definitively determined until the Office develops and issues appropriate decisions determining
whether or not appellant’s left hip arthritis preexisted his accepted employment injury. If this
condition preexisted the employment injury, then the Office should include any impairment
resulting from this condition in determining appellant’s permanent impairment in accordance
with the provisions of the A.M.A., Guides and Board precedent. If appellant’s hip arthritis did
not preexist his employment injury, the Office should determine whether or not appellant’s left
6

George E. Williams, 44 ECAB 530, 533 (1993).

7

Id.

8

Michael C. Milner, 53 ECAB 446, 450 (2002).

9

Cristeen Falls, 55 ECAB 420 (2004).

5

hip arthritis developed or was aggravated as a consequence of his accepted back injury. If
appellant’s left hip condition is a consequential injury, the Office should then determine whether
appellant is entitled to an additional impairment rating based findings of whether separate
pathomechanics occurred at separate times which resulted in the left lower extremity
impairments.
After this and such further development as the Office deems necessary, the Office should
issue an appropriate decision considering all applicable impairment of appellant’s lower
extremities.
CONCLUSION
The Board finds that the case in not in posture for decision as the record strongly suggests
that appellant had a preexisting or consequential injury to his left hip which the Office has not
appropriately developed in determining his permanent impairment.
ORDER
IT IS HEREBY ORDERED THAT the October 24, 2008 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further development consistent
with this decision of the Board.
Issued: November 24, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.W., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Toledo, OH,
Employer
__________________________________________

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

Docket No. 14-343
Issued: December 16, 2014

Case Submitted on the Record

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

JURISDICTION
On December 2, 2013 appellant, through her attorney, timely appealed the
October 9, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the claim.2
ISSUE
The issue is whether appellant sustained a recurrence of disability on July 31, 2012
causally related to her May 21, 2012 employment injury.

1
2

5 U.S.C. §§ 8101-8193.

The record on appeal contains evidence received after OWCP issued its October 9, 2013 decision. The Board is
precluded from considering evidence that was not in the case record at the time OWCP rendered its final decision.
20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
Appellant, a 47-year-old bulk mail technician, injured her low back and right knee on
May 21, 2012 when she slipped on a wet floor.3 After first treating the claim as a minor injury,
OWCP later developed the claim and, on September 28, 2012, accepted lumbar and right knee
sprains.4 On May 25, 2012 appellant accepted a full-time position as a modified business mail
technician. The limited-duty assignment was based on the May 24, 2012 work restrictions from
her treating physician, Dr. Robert L. Kalb, a Board-certified orthopedic surgeon. The position
required no more than one-hour of intermittent lifting and carrying (20 pounds), three hours of
sitting intermittently (rotate as needed), one-hour of standing and walking (rotate as needed) and
one-hour of intermittent pushing and pulling (20 pounds).
On June 26, 2012 appellant accepted another limited-duty assignment as a modified bulk
mail technician. This offer was based on Dr. Kalb’s June 19, 2012 work restrictions. Dr. Kalb
advised that appellant could perform a sit down job only. Appellant was not to drive at work and
was precluded from bending, stooping and climbing. Additionally, she could not carry anything
in excess of 20 pounds. As a modified bulk mail technician, appellant’s duties included data
input on the employer’s computer system. She also weighed items on a scale and performed
required webinars. There was also a catch-all responsibility of “any other requirements
necessary to perform [appellant’s] duties on the computer.” The position required appellant to
sit for seven hours. She was not expected to drive, bend, stoop, climb or carry anything over 20
pounds.
On July 9, 2012 appellant underwent a functional capacity evaluation (FCE) administered
by Jon Nickey, a physical therapist.5 The FCE results found her totally disabled. The therapist
explained that appellant was generally deconditioned but appeared to have provided good effort
during testing and attempted all tasks. The therapist recommended that she be placed on lifting
restrictions. Prior physical therapy reportedly provided little measureable increase in her
function or decrease in pain. Appellant would not be able to complete her current job with the
lifting requirements as given.6 He also stated that she would be unable to complete a job in the
sedentary category due to difficulty sitting for greater than 30 minutes.
Dr. Kalb reexamined appellant on July 31, 2012. He reviewed the results of a
July 2, 2012 lumbar magnetic resonance imaging (MRI) scan and the July 9, 2012 FCE.7 On
3

Appellant slipped, but avoided falling. A coworker, James Boatman, witnessed the May 21, 2012 employment
incident.
4

Appellant previously injured her right shoulder and lower back on January 19, 2010 when she slipped and fell
on ice (File No. xxxxxx304). OWCP accepted the claim for right shoulder sprain, right lumbar sprain and right
buttock contusion. Appellant also had a prior history of bilateral total knee arthroplasty in June 2008.
5

Mr. Nickey administered the July 9, 2012 FCE.

6

Mr. Nickey relied on appellant’s description of her duties rather than an official position description. Appellant
reported that her then-current duties required her to take mail from customers and put it on a scale to weigh and then
remove the item from the scale.
7

The July 2, 2012 MRI scan revealed a posterior disc bulge at L2-3, an annular tear at L3-4, disc bulge at L4-5,
and spondylolisthesis at L4-5 secondary to facet hypertrophy.

2

examination, appellant complained of back and right buttock pain, as well as right knee pain.
Dr. Kalb diagnosed right knee sprain, lumbar sprain and right buttock pain, which he attributed
to her May 21, 2012 employment injury. He also diagnosed comorbid obesity.8 Dr. Kalb
advised generally that appellant had permanent work restrictions per FCE.9
On August 16, 2012 appellant filed a claim for compensation (Form CA-7) beginning
July 31, 2012 noting that she was out of work due to the FCE.10
Dr. Kalb saw appellant again on October 2, 2012. Appellant complained of right knee
and low back pain. Dr. Kalb diagnosed lumbar sprain, contusion of buttock and knee sprain. He
did not specifically address appellant’s ability to work.
OWCP requested additional evidence from appellant to substantiate her claims for wage
loss. It noted that her acceptance on May 25, 2012 of a limited-duty assignment, but questioned
whether she had ever returned to work. Appellant submitted an October 25, 2012 statement
noting that she did return to work until July 31, 2012 when she realized that the results of the
FCE had rendered her totally disabled. She showed the results to her supervisor who told her to
end her tour and to take care.
By decision dated December 4, 2012, OWCP denied appellant’s claim for wage-loss
compensation commencing July 31, 2012 finding the evidence insufficient to establish a
recurrence due to her accepted conditions.11
Counsel timely requested an oral hearing, which was held on March 4, 2013.
In a November 27, 2012 consultation report, Dr. Amar N. Goyal, a Board-certified
anesthesiologist with a subspecialty in pain medicine, noted appellant’s complaint of right
shoulder pain, neck pain, right buttock and lower back pain. He noted an employment-related
injury in 2010 when she reportedly had slipped and fallen on a wet floor. Dr. Goyal diagnosed
lumbar sprain and knee/leg sprain. He did not address appellant’s work capacity.
In a January 10, 2013 examination, Dr. Kalb diagnosed lumbar sprain, contusion of
buttock, knee sprain, obesity, knee replacement, and degenerative lumbar intervertebral disc. He
noted that appellant’s symptoms were out of proportion to objective findings. Appellant
reportedly refused injections for pain management and also refused surgery for her lumbar spine.

8

Appellant was 5’1” and weighed 210 pounds.

9

The Ohio “Work Ability” form Dr. Kalb indicated that appellant could return to work with permanent
restrictions. Apart from a general reference to the FCE findings, Dr. Kalb did not otherwise describe appellant’s
“permanent” work restrictions.
10

Appellant filed additional CA-7 forms claiming wage-loss compensation for total disability through
September 20, 2013.
11

Appellant received 5½ hours of wage-loss compensation for various medical appointments during the period
July 31 to October 28, 2012.

3

Dr. Kalb also noted that the July 9, 2012 FCE indicated that she was totally disabled. He advised
that appellant had reached maximum medical improvement.12
On January 25, 2013 appellant was seen by Gregory Otto, a physician’s assistant. Her
chief complaints were right shoulder and low back pain. Mr. Otto noted a history of injury on
January 19, 2010 when appellant had slipped and fallen on ice at work. He diagnosed right
shoulder sprain and right lumbar sprain.
Dr. Tallat M. Rizk, a Board-certified physiatrist, examined appellant on
January 31, 2013. Appellant’s chief complaint was right shoulder pain. Dr. Rizk noted a
January 19, 2010 work-related injury involving the right shoulder, lower back and right buttock
where she had slipped and fallen on ice. He also noted the recent May 21, 2012 employment
injury where appellant sustained a lumbar sprain and right knee sprain, but he did not otherwise
describe how she was injured on May 21, 2012. Dr. Rizk also noted that a recent lumbar MRI
scan revealed an L3-4 left paracentral annular tear which was not seen on a prior MRI scan from
2009. He diagnosed chronic lumbar sprain and chronic right shoulder/arm sprain. Dr. Rizk
recommended including L3-4 annular tear as an accepted condition under appellant’s
May 21, 2012 injury claim.
A February 13, 2013 lumbar MRI scan revealed a moderate-to-large protrusion-type disc
herniation at L2-3. There was also a grade 1 anteriolisthesis of L4 on L5 with posterior disc
bulge and facet and ligamentous hypertrophy. Additionally, the February 13, 2013 lumbar MRI
scan revealed mild-to-moderate intervertebral disc space narrowing at L4-5.
Dr. Kafai Lai, a Board-certified orthopedic surgeon, examined appellant on
February 19, 2013 for a chief complaint of right knee pain. He noted a prior bilateral total knee
arthroplasty in 2009. Dr. Lai also noted appellant had slipped and fallen in 2010. He requested a
right knee x-ray.13 Based on his physical examination and review of the recent x-ray, Dr. Lai
stated that appellant’s right knee was stable. He deferred any disability assessment to Dr. Rizk.
In a February 28, 2013 report, Dr. Willis M. Morse, a Board-certified family practitioner,
advised that he had been appellant’s primary care physician since 2008. He noted having
initially treated her for lumbar disc disease with sciatic-type symptoms. A lumbar MRI scan
reportedly showed mild degenerative changes without significant disc herniation or canal or
neuroforaminal stenosis. Dr. Morse indicated that appellant’s pain was severe and she had seen
Dr. Kalb, who further noted that appellant initially did well, but she had progressive symptoms
which required increasing doses of pain medication. He noted the respective findings from her
July 2, 2012 and February 13, 2013 lumbar MRI scans. Dr. Morse also noted that appellant had
been having progressive right shoulder pain. Additionally, he described the findings of an
unidentified right shoulder MRI scan, which reportedly revealed, inter alia, a 50 percent tear of
12

Dr. Kalb advised appellant to return in one month. Appellant subsequently requested a change in treating
physician, which OWCP authorized.
13

The February 19, 2013 right knee x-ray revealed a total knee arthroplasty in place, in good alignment with no
acute abnormality and no loosening. There was very little joint effusion and some minor swelling. The reviewing
radiologist’s final impression was “Total knee in satisfactory alignment.”

4

the infraspinatus rotator cuff tendon. Dr. Morse indicated that appellant had progressive
worsening of her degenerative disease as a result of work she completed through the employing
establishment. He did not address her capacity for employment.
In an April 12, 2013 decision, the Branch of Hearings and Review affirmed the
December 4, 2012 decision denying wage-loss compensation for disability on or after
July 31, 2012.
On May 30, 2013 counsel requested reconsideration. He submitted a May 3, 2013 form
report from Dr. Rizk who diagnosed employment-related left L3-4 annular tear. The report
identified May 21, 2012 as the date of injury, but Dr. Rizk did not otherwise describe the
mechanism of injury.14
By decision dated June 3, 2013, OWCP denied appellant’s request for reconsideration.
On July 31, 2013 counsel again requested reconsideration. Dr. James H. Rutherford, a
Board-certified orthopedic surgeon, examined appellant on July 16, 2013 with respect to her
January 19, 2010 and May 21, 2012 employment injuries.15 He identified various positions she
held during her 28-year tenure with the employing establishment, including work as a letter
sorting machine operator, a flat sorting machine operator, window clerk, mail processor and bulk
mail entry unit clerk. Dr. Rutherford noted that appellant had not worked since July 31, 2012.
He noted a medical history that included bilateral total knee arthroplasty surgeries in June 2008.
Dr. Rutherford reviewed Dr. Kalb’s medical records from January 2012 to January 2013, which
initially involved treatment for right shoulder and lower back complaints and subsequent
aggravation of appellant’s lower back in May 2012. Additionally, he discussed the July 9, 2012
FCE results, which he attributed to Dr. Kalb. Dr. Rutherford also described various diagnostic
studies, including appellant’s lumbar MRI scans of July 2, 2012 and February 13, 2013. He
further noted that a prior lumbar MRI scan dated October 29, 2009 showed only “mild
degenerative changes.” Dr. Rutherford also summarized various treatment records from
Dr. Rizk and Dr. Morse.
When she saw Dr. Rutherford that day, appellant’s chief complaints included lower back
pain radiating into the bilateral buttocks and down the right leg to the foot. Appellant also
reported constant pain in the right shoulder frequently radiating down the right arm to the hand
and frequent bilateral knee pain -- severe on the right and moderate on the left. Dr. Rutherford
provided physical examination findings with respect to her neck, bilateral upper extremities, her
lumbar spine and bilateral lower extremities. He found that appellant had not reached maximum
medical improvement (MMI) regarding either the January 2010 injury or the May 2012 injury.
Dr. Rutherford stated that she had been unable to work even in a sedentary capacity since July 9,
2012 due to her accepted injuries under both claims. He further indicated that appellant’s
January 19, 2010 employment injury should be expanded to include right rotator cuff tear. With
respect to the May 21, 2012 employment injury, Dr. Rutherford advised that additional
14

OWCP also received additional treatment notes from Mr. Otto.

15

Dr. Rutherford identified the respective claim numbers, as well as the accepted conditions involving appellant’s
right shoulder, right buttock, lumbar region and her right lower extremity.

5

diagnostic studies would be beneficial in determining whether to accept L2-3 disc prolapse and
L4-5 spondylolisthesis as employment related.16 Regarding appellant’s June 2008 bilateral total
knee arthroplasty, he indicated that there was a poor result on the right and only a fair result on
the left. Considering all of appellant’s orthopedic conditions, Dr. Rutherford believed she was
permanently and totally disabled.
In an October 9, 2013 decision, OWCP denied modification of its prior decisions.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.17 Recurrence of disability also means an inability to work that takes place
when a light-duty assignment made specifically to accommodate an employee’s physical
limitations due to his or her work-related injury or illness is withdrawn or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.18 A recurrence of disability does not apply when a light-duty assignment is
withdrawn for reasons of misconduct, nonperformance of job duties or other downsizing or
where a loss of wage-earning capacity determination is in place.19
Absent a change or withdrawal of a light-duty assignment, a recurrence of disability
following a return to light duty may be established by showing a change in the nature and extent
of the injury-related condition such that the employee could no longer perform the light-duty
assignment.20
Where an employee claims a recurrence of disability due to an accepted
employment-related injury, he or she has the burden of establishing that the recurrence of
disability is causally related to the original injury.21 This burden includes the necessity of
furnishing evidence from a qualified physician who concludes that the condition is causally

16

Dr. Rutherford noted that neither condition was present on appellant’s preinjury October 29, 2009 lumbar MRI
scan.
17

20 C.F.R. § 10.5(x).

18

Id.

19

Id. at §§ 10.104(c) and 10.509; see Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter
2.1500.2 (June 2013).
20

Theresa L. Andrews, 55 ECAB 719, 722 (2004).

21

20 C.F.R. § 10.104(b); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter
2.1500.5a and 2.1500.6b (June 2013).

6

related to the employment injury.22 The physician’s opinion must be based on a complete and
accurate factual and medical history and supported by sound medical reasoning.23
ANALYSIS
Following her May 21, 2012 employment injury, appellant returned to work in a
limited-duty capacity on May 25, 2012. The employing establishment provided work as a
modified business mail technician based on Dr. Kalb’s May 24, 2012 work restrictions. Dr. Kalb
subsequently modified appellant’s work restrictions, resulting in a new limited-duty assignment
as a modified bulk mail technician, which appellant accepted on June 26, 2012. According to
Dr. Kalb’s June 19, 2012 restrictions, appellant could perform a sit down job only. She was
precluded from bending, stooping, and climbing and could not carry anything in excess of 20
pounds. Also, appellant was not permitted to drive at work. Appellant’s duties as a modified
bulk mail technician included data input on the employing establishment’s computer system.
The position required her to sit for seven hours. Appellant weighed items on a scale, performed
required webinars and was responsible for other requirements necessary to perform her duties on
the computer. She was not expected to drive, bend, stoop, climb or carry anything over 20
pounds. Appellant performed the duties of a modified bulk mail technician until July 31, 2012,
when her supervisor, Tonia Matamoros, sent her home.
Generally, the withdrawal of a light-duty assignment would constitute a recurrence of
disability where the evidence established continuing injury-related disability for duty.24
However, there is no evidence that the employing establishment withdrew appellant’s
limited-duty assignment on July 31, 2012. Ms. Matamoros sent appellant home that day and
placed her on leave without pay status based on appellant’s presentation of the July 9, 2012 FCE
and Dr. Kalb’s July 31, 2012 work restrictions. Dr. Kalb, while referencing the FCE in his
report, failed to adequately address whether appellant was totally disabled or the permanent work
restrictions that prevented appellant from performing her limited-duty position. Sending
appellant home under these circumstances was not tantamount to a withdrawal of her June 26,
2012 limited-duty assignment. Consequently, she failed to establish a withdrawal of her
limited-duty assignment effective July 31, 2012. The record does not establish that the
employing establishment altered the physical requirements of the June 26, 2012 limited-duty
assignment so as to exceed her physical limitations, as recommended by Dr. Kalb.25
Appellant may also establish a recurrence of disability by demonstrating a change in the
nature and extent of her injury-related condition such that she could no longer perform her
June 26, 2012 limited-duty assignment. Mr. Nickey, the physical therapist who conducted the
July 9, 2012 FCE, indicated that appellant would be unable to complete a job in the sedentary
22

See S.S., 59 ECAB 315, 318-19 (2008).

23

Id. at 319.

24

20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.6a(4)
(June 2013).
25

The record does not establish that the light-duty position was withdrawn pursuant to the National Reassessment
Program of the postal service.

7

category due to difficulty sitting for greater than 30 minutes. He found that she was disabled
from all work. Yet appellant continued to perform her sedentary, sit down job for another three
weeks. As a physical therapist, Mr. Nickey is not a physician as defined under FECA; his
opinion is not sufficient to establish total disability.26 Dr. Kalb subsequently reviewed the FCE
in a July 31, 2012 report which contradicts Mr. Nickey’s finding of total disability. He did not
state that appellant was totally disabled from work; rather, he indicated that she had permanent
work restrictions. Dr. Kalb’s response was under the heading “May [return to work] with
restrictions....” He explained that appellant’s work restrictions were permanent per FCE, but he
did not identify any specific limitations which rendered her totally disabled. Dr. Kalb’s July 31,
2012 follow-up treatment notes did not identify specific work limitations or otherwise state that
she could no longer perform her modified bulk mail technician duties. He previously advised
that she could perform a “sit down job only,” which she had been doing without incident since
June 26, 2012. Dr. Kalb saw appellant for a follow-up examination on October 2, 2012, but did
not address her ability to work. His January 10, 2013 report noted that the July 9, 2012 FCE
indicated that she was totally disabled; but he did not further address this issue. Thus, it is
unclear how appellant’s May 21, 2012 injury-related condition materially changed such that she
could no longer perform her modified bulk mail technician position commencing July 31, 2012.
Dr. Goyal, Dr. Rizk, Dr. Lai, and Dr. Morse each saw appellant subsequent to her
July 31, 2012 work stoppage, but none of them addressed her capacity for work. Dr. Rutherford
was the only physician of record to address the issue of disability. His July 16, 2013 report
addressed appellant’s January 19, 2010 and May 21, 2012 employment injuries. Dr. Rutherford
expressed familiarity with a number of her previous positions, but her June 26, 2012 limited-duty
assignment was not among them. Also, he was under the mistaken belief that Dr. Kalb
administered the July 9, 2012 FCE. Dr. Rutherford indicated that appellant had been unable to
work at even a sedentary capacity since July 9, 2012 due to her accepted injuries under both
claims. However, elsewhere in his report he noted that she last worked on July 31, 2012.
Appellant continued to perform her sedentary, sit down job for several weeks following the
July 9, 2012 FCE. The above-noted discrepancies and omissions undermine the probative value
of Dr. Rutherford’s July 16, 2013 report.
The Board finds that the medical evidence of record does not establish a change in the
nature and extent of appellant’s injury-related condition such that she could no longer perform
her modified bulk mail technician duties as of July 31, 2012. There is no evidence that the
employing establishment altered appellant’s limited-duty position or withdrew the position
effective July 31, 2012.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision.27

26

See supra note 24. The January 25 and May 22, 2013 treatment notes from Mr. Otto, a physician assistant, are
similarly insufficient for purposes of establishing entitlement under FECA.
27

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

8

CONCLUSION
Appellant failed to establish a recurrence of disability beginning July 31, 2012.
ORDER
IT IS HEREBY ORDERED THAT the October 9, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 16, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.O., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL SHIPYARD, Portsmouth, VA, Employer
__________________________________________

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Appearances:
David G. Jennings, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 15-0194
Issued: September 19, 2016

Case Submitted on the Record

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

JURISDICTION
On November 5, 2014 appellant, through counsel, filed a timely appeal of an October 9,
2014 Office of Workers’ Compensation Programs’ (OWCP) merit decision. Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has more than six percent binaural hearing loss for which
he received a schedule award.

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.

On appeal counsel argued that he should have received a schedule award for his bilateral
tinnitus.
FACTUAL HISTORY
On May 29, 2014 appellant, then a 58-year-old crane and rigging operator, filed an
occupational disease claim alleging that he developed bilateral hearing loss. He attributed his
hearing loss to noise at work. Appellant stated that he first became aware of his condition and
attributed it to his federal employment on October 3, 2002. In a letter dated June 3, 2014,
OWCP requested that appellant provide additional factual and medical evidence in support of his
claim.
Appellant submitted employing establishment audiograms. He indicated that he worked
at the employing establishment from 1977 as a rigger, nuclear inspector and quality assurance
specialist. Appellant stated that he was exposed to noise from pneumatic tools, chipping,
grinding, sandblasting, machinery, cranes and sirens. He utilized earplugs at work. Appellant
stated that he was last exposed to noise on January 3, 2014.
OWCP referred appellant and a statement of accepted facts for a second opinion
evaluation with Dr. Jeffrey Powell, a Board-certified otolaryngologist. Dr. Powell completed a
report on July 22, 2014 and indicated that appellant demonstrated a progressive high frequency
bilateral sensorineural hearing loss. He opined that the workplace exposure was sufficient to
cause the hearing loss. Dr. Powell indicated that appellant had tinnitus secondary to his hearing
loss. Appellant’s audiogram demonstrated in the right ear at the frequencies of 500, 1,000, 2,000
and 3,000 cycles per second (cps) 15, 35, 25, and 40 decibel losses, respectively and on the left
20, 25, 30 and 50 decibel losses, respectively. Dr. Powell applied a formula, totaling the losses,
subtracting 25 and multiplying by 1.5 to reach monaural losses of 9.375 on the left and 5.625 on
the right. He also found one percent impairment for tinnitus bilaterally. To reach appellant’s
binaural loss, he multiplied the percentage of the better ear, including the 1 percent for tinnitus in
both ears, by 5 and added the other ear and then divided by 6 to reach 7.25 binaural loss of
hearing.
An OWCP medical adviser reviewed Dr. Powell’s report on July 31, 2014 and agreed
with his findings regarding impairments without tinnitus. He applied the formulas and
concluded that appellant had 6.25 or 6 percent loss of hearing.
By decision dated August 5, 2014, OWCP accepted appellant’s claim for bilateral
sensorineural hearing loss and bilateral tinnitus. Appellant filed a claim for a schedule award on
August 28, 2014 and by decision dated October 9, 2014 OWCP granted him a schedule award
for six percent bilateral hearing loss.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
3

Id.

4

20 C.F.R. § 10.404. Effective May 1, 2009, OWCP began using the A.M.A., Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides) (6th ed. 2009).

2

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 to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.5
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.6 Using the frequencies of 500, 1,000, 2,000, and 3,000 cps, the losses at each
frequency are added up and averaged.7 Then, the fence of 25 decibels is deducted. The
remaining amount is multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing
loss.8 The binaural loss is determined by calculating the loss in each ear using the formula for
monaural loss; the lesser loss is multiplied by five, then added to the greater loss, and the total is
divided by six to arrive at the amount of the binaural hearing loss.9 The Board has concurred in
OWCP’s adoption of this standard for evaluating hearing loss.
ANALYSIS
OWCP accepted that appellant sustained binaural hearing loss due to noise. It developed
the claim by referring him to Dr. Powell. On July 22, 2014 Dr. Powell examined appellant and
an audiogram was obtained. She found, using OWCP’s standard procedures, that appellant’s
noise exposure in his federal employment was sufficient to cause binaural hearing loss. The
July 22, 2014 tested decibel losses at the frequencies of 500, 1,000, 2,000 and 3,000 cps were
added and averaged and the “fence of 25 decibels was deducted.10 The remaining amount was
multiplied by 1.5 to arrive at the percentage of monaural hearing loss. For a binaural hearing
loss, the loss in each ear is calculated using the above formula. The lesser loss is then multiplied
by five and added to the greater loss. This amount is then divided by six to arrive at the total
binaural hearing loss. For levels recorded in the left ear of 20, 25, 30, and 50, the above formula
derives 9.375 percent monaural loss and for levels recorded in the right ear of 15, 35, 25, and 40,
the above formula derives 5.625 percent monaural loss. According to the accepted formula these
combine to reach a 6.25 percent binaural loss of hearing.
An OWCP medical adviser concurred in the finding of 6.25 percent binaural hearing loss
based on the audiogram results, which OWCP rounded to grant appellant a schedule award for
six percent binaural hearing loss. OWCP’s procedures provide that in computing hearing loss,

5

Id.

6

Federal (FECA) Procedure Manual, Part 3 -- Schedule Awards, Special Determinations, Chapter 3.700.4.b
(January 2010).
7

Id.

8

Id.

9

Id.

10

The A.M.A., Guides points out that the loss below an average of 25 decibels is deducted as it does not result in
impairment in the ability to hear everyday sounds under everyday listening conditions.

3

percentages should not be rounded until the final percent for award purposes is obtained and
fractions should be rounded down from .49 or up from .50.11
The medical adviser, however, did not credit Dr. Powell’s finding of an additional one
percent bilateral hearing loss due to tinnitus. On appeal, appellant’s counsel argues that the
medical adviser erred by failing to include Dr. Powell’s rating of impairment for tinnitus. The
Board notes that the A.M.A., Guides at section 11.2b, page 24912 states that, if the tinnitus
interferes with daily living activities such as sleep, reading, enjoyment of quiet recreation, and
emotional well-being, up to five percent may be added to a measurable binaural hearing
impairment.
The Board finds this case not in posture for a decision as clarification is required from
Dr. Powell as to why he added one percent impairment for tinnitus. Regarding tinnitus, the
A.M.A., Guides states, tinnitus in the presence of unilateral or bilateral hearing impairment may
impair speech discrimination. Therefore, up to five percent may be added for tinnitus in the
presence of measurable hearing loss if the tinnitus impacts the ability to perform activities of
daily living (ADLs).13 Although Dr. Powell included one percent impairment for tinnitus in
appellant’s monaural impairment determinations, he did not address how this impacted him in
his ADLs.14
It is well established that proceedings under FECA are not adversarial in nature, nor is
OWCP a disinterested arbiter. While the claimant has the burden to establish entitlement to
compensation, OWCP shares the responsibility in the development of the evidence to see that
justice is done. As OWCP undertook development of the evidence by referring appellant to
Dr. Powell, it has the duty to secure an appropriate report addressing the relevant issues.15
Because Dr. Powell did not explain why he included a rating for tinnitus in his determination of
appellant’s hearing loss, the case will be remanded to OWCP to request Dr. Powell to provide a
supplemental report explaining his rationale for giving a one percent impairment rating for
tinnitus. Following this and any necessary further development, OWCP shall issue a de novo
decision relative to the extent and degree of appellant’s hearing impairment.
CONCLUSION
The Board finds that this case is not in posture for a decision as to whether appellant has
more than six percent binaural hearing loss, for which he received a schedule award.

11

See supra note 4; see e.g., V.B., Docket No. 14-8 (issued March 6, 2014).

12

A.M.A., Guides 249.

13

David W. Ferrall, 56 ECAB 362 (2005).

14

R.G., Docket No. 11-19 (issued August 3, 2011); J.P., Docket No. 09-1520 (issued March 1, 2010).

15

Peter C. Belkind, 56 ECAB 580 (2005).

4

ORDER
IT IS HEREBY ORDERED THAT the October 9, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision of the Board.16
Issued: September 19, 2016
Washington, DC

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

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

16

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
DEPARTMENT OF THE INTERIOR, FISH &
WILDLIFE SERVICE, Atlanta, GA, Employer
__________________________________________

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

Docket No. 18-1544
Issued: March 4, 2019

Case Submitted on the Record

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

JURISDICTION
On August 9, 2018 appellant filed a timely appeal from a July 3, 2018 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish a traumatic injury
causally related to the accepted December 12, 2017 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the July 3, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

FACTUAL HISTORY
On December 12, 2017 appellant, then a 27-year-old forester, filed a traumatic injury claim
(Form CA-1) alleging that, while assisting a hunter with a deer at a check station on December 10,
2017, he sustained a lower back injury in the performance of duty. He did not stop work.
By development letter dated December 18, 2017, OWCP advised appellant of the type of
medical and factual evidence needed to establish his claim, including a detailed statement
explaining how the injury occurred and a comprehensive medical report addressing the causal
relationship between a diagnosed condition and the employment incident. It afforded him 30 days
to respond.
The record contains an authorization for examination and/or treatment (Form CA-16) dated
December 20, 2017 from the employing establishment, which related that appellant was authorized
to receive treatment for a back condition. On the reverse side of the form, titled “Attending
Physician’s Report,” no findings or diagnoses were listed. A box was marked “yes” to the question
of whether appellant’s conditions were caused or aggravated by the employment activity
described. Appellant’s period of total disability was from December 12 to 17, 2017, and
appellant’s period of partial disability was from December 18 to 22, 2017.3
By decision dated January 22, 2018, OWCP found that appellant had established that the
December 10, 2017 employment incident occurred as alleged, but denied the claim as the evidence
of record was insufficient to establish that he sustained an injury causally related to the accepted
incident.
On April 12, 2018 appellant requested reconsideration and submitted additional medical
evidence.
In a chart note dated December 27, 2017, Dr. Charles Mayfield, a chiropractor, noted that
appellant sought treatment for sharp pain and tightness in the low back, discomfort in the back of
the neck, and discomfort in the mid back. He noted that x-rays had been obtained of appellant’s
cervical, thoracic, and lumbar spine. Dr. Mayfield did not note x-ray findings. In a section of his
report titled, “Daily Objective Findings” he listed “spinal restrictions/subluxations: C2, C5, T4,
T8, [and] L5 and right pelvis.” Dr. Mayfield diagnosed segmental and somatic dysfunction of the
pelvic region, segmental and somatic dysfunction of the lumbar region, low back pain, muscle
spasm of the back, segmental and somatic of the thoracic region, pain in the thoracic spine,
segmental and somatic dysfunction of the cervical region, and cervicalgia.
An unsigned x-ray report dated December 27, 2017 related that cervical, thoracic and
lumbar views had been taken of appellant’s spine. The only positive findings regarding the
cervical spine were decreased lordotic curve, and listing at C2, C5, and C6. Regarding the thoracic
spine, listing at T3, T8 was noted. The lumbar spine findings were listed as decreased lordotic
curve and listing at L4-5.

3

The signature contained in the physician’s box on the form is illegible.

2

In a clinic form dated January 4, 2018, received by OWCP on April 12, 2018, Jessica
Sharp, a family nurse practitioner, noted that appellant complained of right sciatic pain. She
indicated that appellant was on a trip when he experienced pain in the same place as the recent
injury. Ms. Sharp related that her impression was lower back pain with radiculitis.
In an MRI scan report dated February 1, 2018, received by OWCP on April 12, 2018,
Dr. Warren John Green, Board-certified in diagnostic radiology, noted that appellant had a central
disc protrusion at L4-5 and a prominent right paracentral disc herniation at L5-S1.
In discharge instructions dated February 14, 2018, Dr. Anthony Sin, Board-certified in
neurosurgery, noted that appellant had a surgical wound to his right back, and that he was not to
perform heavy lifting, pushing or pulling of heavy objects, driving, and to shower only.
In a letter dated March 28, 2018, Ms. Sharp indicated that appellant had pain with flexion
and over the SI joint. She noted that he was given a steroid injection, Toradol shot, and prescription
on December 12, 2017. Ms. Sharp noted that appellant returned to the clinic on January 4, 2018.
She related that he indicated that his condition improved from the previous treatment. However,
Ms. Sharp indicated that appellant went on a trip and the pain returned with worsened symptoms.
She indicated that an MRI scan was ordered and he was referred to a neurosurgeon based on those
results.
By decision dated July 3, 2018, OWCP denied modification of the January 22, 2018
decision.
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
evidence, 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, that
an injury was sustained in the performance of duty as alleged, and that any disability or specific
condition for which compensation is claimed is causally related to the employment injury.5 These
are the essential elements of each and every compensation claim regardless of whether the claim
is predicated on a traumatic injury or an occupational disease.6
In order to determine whether an employee actually 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 which must be considered in conjunction with
one another. The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred.7 The second component is whether the
4

Supra note 1.

5

M.M., Docket No. 17-1522 (issued April 25, 2018); Kathryn Haggerty, 45 ECAB 383, 388 (1994).

6

Kathryn Haggerty, id.; see also A.R., Docket No. 18-1126 (issued December 7, 2018).

7

See V.J., Docket No. 18-0452 (issued July 3, 2018); Bonnie A. Contreras, 57 ECAB 364 (2006).

3

employment incident caused a personal injury and generally can be established only by medical
evidence.8
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical evidence.9 The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the employee.10
The weight of the medical evidence is determined by its reliability, its probative value, its
convincing quality, the care of analysis manifested, and the medical rationale expressed in support
of the physician’s opinion.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a traumatic
injury causally related to the accepted December 12, 2017 employment incident.
In support of his claim, appellant submitted a chart note dated December 27, 2017 from
Dr. Mayfield, a chiropractor. Section 8101(2) of FECA12 provides that the term physician, as used
therein, includes chiropractors only to the extent that their reimbursable services are limited to
treatment consisting of manual manipulation of the spine to correct a subluxation, as demonstrated
by x-ray to exist and subject to regulation by the Secretary.13 While Dr. Mayfield noted that xrays had been performed in his office, he did not report that the x-rays demonstrated subluxations
of the vertebrae. He only noted spinal restrictions/ subluxation(s) C2, C5, T4, T8, and L5 and right
pelvis under daily objective findings. Dr. Mayfield also diagnosed segmental and somatic
dysfunction of the pelvic region, segmental and somatic dysfunction of the lumbar region,
segmental and somatic of the thoracic region, segmental and somatic dysfunction of the cervical
region; however, these diagnoses do not describe a dislocation of a vertebrae, but rather refer to
general regions of the spine. Furthermore, he again did not state that these diagnoses were based
upon x-ray evidence. Since Dr. Mayfield did not diagnose subluxation based upon x-ray evidence,
he is not a qualified physician under FECA.14
OWCP also received an unsigned x-ray report dated December 27, 2017. However, the
Board has held that unsigned reports and reports that bear illegible signatures cannot be considered

8

J.P., Docket No. 18-1165 (issued January 15, 2019); R.E., Docket No. 17-0547 (issued November 13, 2018).

9

M.M., supra note 5; Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10

K.R., Docket No. 18-1388 (issued January 9, 2019); I.J., 59 ECAB 408 (2008).

11

S.H., Docket No. 17-1660 (issued March 27, 2018).

12

5 U.S.C. § 8101(2).

13

See 20 C.F.R. § 10.311; M.B., Docket No. 17-1378 (issued December 13, 2018).

14

M.B., id.; Jay K. Tomokiyo, 51 ECAB 361, 367-68 (2000).

4

probative medical evidence because they lack proper identification.15 Thus, this report is of no
probative value.
Appellant also submitted a January 4, 2018 clinic form and a March 28, 2018 report signed
by Ms. Sharp. She indicated that appellant suffered from lower back pain. The Board has held
that medical reports signed solely by a nurse practitioner are of no probative value as a nurse
practitioner is not considered a physician as defined under FECA and therefore is not competent
to provide a medical opinion.16
Appellant also submitted an MRI scan report dated February 1, 2018, from Dr. Green. In
his impressions, Dr. Green noted that appellant had a central disc protrusion at L4-5 and a
prominent right paracentral disc herniation at L5-S1. However, the diagnostic study does not
address the etiology of appellant’s back condition. The Board has held that reports of diagnostic
tests lack probative value as they do not provide an opinion on causal relationship between
appellant’s employment duties and a diagnosed condition.17
Appellant also submitted discharge instructions dated February 14, 2018 from Dr. Sin.
Dr. Sin noted appellant’s limitations after surgery. This report neither provides a diagnosis nor a
rationalized medical opinion regarding appellant’s injury and the employment incident. The Board
has held that reports that do not provide an opinion on causal relationship are of no probative
value.18
Also of record is a Form CA-16 dated December 20, 2017. On the reverse side of the form,
titled “Attending Physician’s Report,” a box was marked “yes” to the question of whether
appellant’s conditions were caused or aggravated by the employment activity described. The
signature contained in the physician’s box on the form, however, is illegible. The Board has held
that reports which contain an illegible signature have no probative value, as it is not established
that the author is a physician.19
As appellant has not submitted sufficiently rationalized medical evidence to support his
claim that he sustained an injury causally related to the accepted December 12, 2017 employment
incident, he has not met his burden of proof.

15

See R.R., Docket No. 18-1093 (issued December 18, 2018).

16

See 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); 5 U.S.C. § 8101(2) (this subsection
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by state law). S.J., Docket No. 17-0783, n.2
(issued April 9, 2018) (nurse practitioners are not considered physicians under FECA).
17

J.M., Docket No. 17-1688 (issued December 13, 2018); see S.G., Docket No. 17-1054 (issued
September 14, 2017).
18

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

19

See D.D., 57 ECAB 734 (2006); Merton J. Sills, 39 ECAB 572, 575 (1988).

5

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 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 traumatic
injury causally related to the accepted December 12, 2017 employment incident.20
ORDER
IT IS HEREBY ORDERED THAT the July 3, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 4, 2019
Washington, DC

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

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

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

20

On December 20, 2017 the employing establishment issued a Form CA-16, authorization for examination and/or
treatment. When it 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 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. 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); Tracy P. Spillane, 54 ECAB 608, 610 (2003).

6