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

)
)
)
)
)
)
)
)

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

Docket No. 21-0995
Issued: March 2, 2022

Case Submitted on the Record

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

JURISDICTION
On June 17, 2021 appellant filed a timely appeal from a December 21, 2020 nonmerit
decision and an April 15, 2021 merit decision and 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.
ISSUES
The issues are: (1) whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error; and (2) whether
appellant has met his burden of proof to establish permanent impairment of a scheduled member
or function of the body, warranting a schedule award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. 2 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On May 10, 1989 appellant, then a 35-year-old mail handler, filed a traumatic injury claim
(Form CA-1) alleging that on May 9, 1989 he sustained a left knee injury when pulling an allpurpose container (APC) while in the performance of duty. He did not stop work but was granted
disability retirement on March 11, 1992. OWCP accepted that appellant sustained a sprain/strain
of the left knee and leg, a tear of the left lateral meniscus, and left corns/calluses. It authorized
arthroscopic surgery on the left knee, performed on January 23, 1990.3
On April 15, 2005 appellant filed a notice of recurrence of disability (Form CA-2a),
alleging that he experienced pain and weakness in his left knee commencing October 30, 2004,
causally related to the accepted May 10, 1989 employment injury.
By decision dated August 16, 2006, OWCP denied appellant’s recurrence of disability
claim, finding that the evidence of record was insufficient to establish that appellant sustained a
recurrence of disability commencing October 30, 2004 causally related to his work injury of
May 9, 1989.
On November 28, 2006 appellant appealed to the Board. 4 By decision dated June 7, 2007,
the Board affirmed the August 16, 2006 OWCP decision.
OWCP received additional evidence. Appellant subsequently submitted employing
establishment medical records dated March 4, 1977 through June 7, 1988 where he was treated for
several conditions including ankle, toe, right foot, and back pain. He was treated by Dr. Michael
Redlich, a Board-certified neurologist, on February 25, 1992 for cervical and thoracic disc
syndrome. Likewise, from March 12, 1993 through August 11, 2000, Dr. A. Janati, a Boardcertified neurologist, treated appellant for chronic neck and left lower extremity pain. He
diagnosed degenerative arthritis of the cervical and thoracic spine, which was related to trauma
while in the military in 1978. Appellant attended physical therapy from July 17, 1978 through
March 16, 2000. He also submitted a position description for a personnel clerk.
Dr. Azer treated appellant from October 20, 1989 through September 10, 1991 for
callouses on his left foot and left knee pain. OWCP received diagnostic studies from March 3,
1992 through December 21, 2017.

2

Docket No. 07-406 (issued June 7, 2007).

3

On January 23, 1990 Dr. Samir N. Azer, a Board-certified orthopedist, performed arthroscopy of the left knee,
removed loose chondral fracture, shaved crater, and diagnosed loose chondral body of the left knee with greater defect
of the left medial femoral condyle weight bearing surface.
4

Supra note 2.

2

On January 21, 2017 Dr. Ferdinand M. Amante, Jr., an orthopedic surgeon, reevaluated
appellant for a painful left knee. Appellant reported sustaining a proximal left leg fracture at 14
years old and underwent a left knee meniscectomy in 1990. He diagnosed osteoarthritis of the left
knee and left leg length discrepancy which could be an aggravating factor for osteoarthritis.
In a statement dated September 13, 2018, appellant provided a history of his employment
with the Federal Government. He sought to expand the acceptance of his claim to include
aggravated underlying preexisting medical conditions. In a statement dated December 13, 2018,
appellant again requested expansion of his claim.
In a medical certificate and report dated November 20, 2018, Dr. Emiliano B. Tablante, a
Board-certified orthopedist, noted a history of the May 9, 1989 work injury and provided a medical
history from May 1967 through January 2, 2018. He noted that appellant underwent a posterior
decompression L3-4 and L4-5 on January 2, 2018. Dr. Tablante noted findings on examination of
decreased stride length, tight on trapezius, paracervical and lats doris, muscle spasm o f lower
trapezius, intermittent localized pain of the knee and patella, muscle spasm with dull pain in the
feet and hand, and cervical pain with radiculopathy. He diagnosed left ganglion cyst of first
metatarsal head, focal right synovitis, posterior calcaneal spur, left os peroneum, right pes planus,
overpronation of the foot, osteoarthritis changes of the knees, left patella osteophyte, right knee
varus, status post chronic low back pain with radiculopathy, levoscoliosis, compression deformity
of the thoracic spine, thoracic spondylosis, cervical spondylosis with radiculopathy at C4-5, C5-6,
C6-7, mild anterior wedge compression deformities at C5-6, and bilateral carpal tunnel syndrome.
Dr. Tablante opined within a reasonable degree of medical certainty that the above medical
conditions were consequential to the accepted left knee and leg sprain/strain, left lateral meniscus
tear, and left calluses. He recommended further diagnostic work up including epidural cervical
injections and diagnostic arthroscopy of the left knee.
On May 30, 2019 appellant again requested his claim be reopened and expanded to include
additional conditions.
On September 28, 2020 appellant requested reconsideration of the August 16, 2006 OWCP
decision denying his recurrence claim. He alleged clear evidence of error in the last OWCP
decision based on OWCP’s failure to develop his subsequent injury claims after the January 25,
1990 OWCP-authorize arthroscopic left knee surgery revealed loose chondral bodies and defect
of the medial femoral condyle. Appellant also requested a schedule award for the left lower
extremity, and expansion of the acceptance of his claim.
On September 28, 2020 OWCP received an electromyogram (EMG) and nerve conduction
velocity (NCV) study dated September 18, 2003 that revealed multiple peripheral neuropathy,
sensorimotor affecting the lower more than upper extremities without ruling out bilateral chronic
cervical C5-6 radiculopathies and bilateral lumbar L5 radiculopathies. X-rays of the feet dated
October 3, 2017 revealed posterior calcaneal spurs and os peroneum of the left foot. An x -ray of
the right hip dated November 24, 2019 revealed no discrete fracture or dislocation. An x-ray of
both knees dated March 10, 2020 revealed mild degenerative osteoarthritic changes and bilateral
patellar enthresophytes.

3

On October 9, 2020 appellant filed a claim for compensation (Form CA-7) for a schedule
award.
In a development letter dated October 20, 2020, OWCP requested that appellant submit an
impairment evaluation addressing whether he had reached MMI and provide an impairment rating
using the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides).5 It afforded him 30 days to submit additional medical
evidence in support of his schedule award claim.
By decision dated December 21, 2020, OWCP denied appellant’s reconsideration request
of the August 16, 2006 recurrence decision, finding that it was untimely filed and failed to
demonstrate clear evidence of error.
By decision dated April 15, 2021, OWCP denied appellant’s schedule award claim, finding
that the medical evidence of record was insufficient to establish permanent impairment of a
scheduled member or function of the body, warranting a schedule award.
LEGAL PRECEDENT -- ISSUE 1
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.6 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought. 7 Timeliness is determined by the document receipt date (i.e.,
the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS)). 8
Imposition of this one-year filing limitation does not constitute an abuse of discretion. 9
OWCP may not deny a request for reconsideration solely because the application was not
timely filed. When a request for reconsideration is untimely, it undertakes a limited review to
determine whether the request demonstrates clear evidence that OWCP’s most recent merit
decision was in error. 10 OWCP’s procedures provide that it will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the
claimant’s request for reconsideration demonstrates clear evidence of error on the part of OWCP.11
5

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

6

5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
7

20 C.F.R. § 10.607(a).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (September 2020).

9

G.G., Docket No. 18-1074 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
10

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB
499, 501-02 (1990).
11

L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also id. at § 10.607(b); supra note 8 at Chapter 2.1602.5 (September 2020).

4

In this regard, OWCP will limit its focus to a review of how the newly submitted evidence bears
on the prior evidence of record. 12
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.13 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error. It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate 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 shift the weight of the evidence in favor of the claimant and raise a substantial question as to
the correctness of OWCP’s decision. The Board makes an independent determination as to
whether a claimant has demonstrated clear evidence of error on the part of OWCP. 14
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
OWCP’s regulations15 and procedures 16 establish a one-year time limit for requesting
reconsideration, which begins on the date of the last merit decision issued in the case. A right to
reconsideration within one year also accompanies any subsequent merit decision on the issues,
including a merit decision of the Board.17 The most recent merit decision on the recurrence issue
was the Board’s June 7, 2007 decision, which affirmed the denial of appellant’s claim for a
recurrence of disability on October 30, 2004. As OWCP received his request for reconsideration
on September 28, 2020, more than one year after the June 7, 2007 decision, the Board finds that it
was untimely filed. Because appellant’s request was untimely filed, he must demonstrate clear
evidence of error on the part of OWCP in its August 16, 2006 decision.

12

J.M., Docket No. 19-1842 (issued April 23, 2020); J.W., Docket No. 18-0703 (issued November 14, 2018);
Robert G. Burns, 57 ECAB 657 (2006).
13

S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 8 at Chapter 2.1602.5(a) (September 2020).

14

U.C., Docket No. 19-1753 (issued June 10, 2020).

15

20 C.F.R. § 10.607(a); see F.N., Docket No. 18-1543 (issued March 6, 2019); Alberta Dukes, 56 ECAB
247 (2005).
16

Supra note 8 at Chapter 2.1602.4 (September 2020); see L.A., Docket No. 19-0471 (issued October 29, 2019);
Veletta C. Coleman, 48 ECAB 367, 370 (1997).
17

20 C.F.R. § 10.607(b); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.4a. (September 2020); R.G., Docket No. 21-0540 (issued November 9, 2021); B.P., Docket No. 20-0178
(issued August 23, 2021); Debra McDavid, 57 ECAB 149 (2005).

5

Appellant submitted employing establishment medical records dated March 4, 1977
through June 7, 1988; treatment notes from Dr. Redlich dated February 25, 1992; reports from
Dr. Janati dated March 12, 1993 through August 11, 2000; physical therapy treatment notes from
July 17, 1978 through March 16, 2000; and reports from Dr. Azer dated October 20, 1989 through
September 10, 1991. These reports are not relevant to the recurrence claim as they predate the
alleged date of the recurrence and do not raise a substantial question as to whether the August 16,
2006 decision was in error. 18
Appellant submitted diagnostic studies dated March 3, 1992 through March 10, 2020
including x-rays, MRI scans, and an EMG/NCV study. Diagnostic studies, standing alone, lack
probative value on the issue of causal relationship. 19 Therefore, none of this evidence manifests
on its face that OWCP committed an error in denying appellant’s claim for recurrence of disability
commencing October 30, 2004. Thus, the evidence is insufficient to demonstrate clear evidence
of error.20
Appellant also submitted a January 21, 2017 report from Dr. Amante who diagnosed
osteoarthritis of the left knee and left leg length discrepancy, which could be an aggravating factor
for osteoarthritis. Similarly, in a medical certif icate and report dated November 20, 2018,
Dr. Tablante provided additional nonaccepted diagnoses and opined within a reasonable degree of
medical certainty the mentioned diagnoses were consequential to the accepted left knee and leg
sprain/strain, left lateral meniscus tear, and left calluses. However, these reports do not address
the claimed recurrence of disability commencing October 30, 2004. Thus, this evidence does not
raise a substantial question as to the correctness of OWCP’s August 16, 2006 merit decision. 21
As appellant has not raised an argument or submitted any evidence that manifests on its
face that OWCP committed an error in denying his recurrence claim, the Board finds that his
untimely request for reconsideration failed to demonstrate clear evidence of error. 22
LEGAL PRECEDENT -- ISSUE 2
The schedule award provisions of FECA, 23 and its implementing federal regulations,24 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
18

M.P., Docket No. 17-0367 (issued March 12, 2018); Leona N. Travis, 43 ECAB 227 (1991).

19

See P.A., Docket No. 18-0559 (issued January 29, 2020); A.P., Docket No. 18-1690 (issued December 12, 2019);
R.M., Docket No. 18-0976 (issued January 3, 2019).
20

J.C., Docket No. 20-1250 (issued May 24, 2021); W.D., Docket No. 19-0062 (issued April 15, 2019).

21

T.C., Docket No. 19-1709 (issued June 5, 2020); B.W., Docket No. 19-0626 (issued March 4, 2020).

22

Id.

23

5 U.S.C. § 8107.

24

20 C.F.R. § 10.404.

6

consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants. 25 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards. 26
It is the claimant’s burden of proof to establish permanent impairment of a scheduled
member or function of the body as a result of an employment injury. 27 OWCP’s procedures
provide that, to support a schedule award, the file must contain competent medical evidence, which
shows that the impairment has reached a permanent and fixed state and indicates that the date on
which this occurred (date of MMI), describes the impairment in sufficient detail so that it can be
visualized on review, and computes the percentage of impairment in accordance with the A.M.A.,
Guides.28 Its procedures further provide that, if a claimant has not submitted a permanent
impairment evaluation, it should request a detailed report that includes a d iscussion of how the
impairment rating was calculated. 29 If the claimant does not provide an impairment evaluation
and there is no indication of permanent impairment in the medical evidence of file, the claims
examiner may proceed with a formal denial of the award.30
The claimant has the burden of proof to establish that the condition for which a schedule
award is sought is causally related to his or her employment. 31 OWCP procedures, however,
further provide that if a claimant does not provide an impairment evaluation from his or her
physician when requested, and there is an indication of permanent impairment in the medical
evidence of file, the claims examiner (CE) should refer the claimant for a second opinion
evaluation. The CE may also refer the case to the DMA prior to scheduling a second opinion
examination to determine if the evidence in the file is sufficient for the DMA to provide an
impairment rating. If the case is referred for a second opinion, the report should contain the
information described in 6a above.32 If it does not contain this information, clarification with the
second opinion should be sought. 33

25

Id. at § 10.404(a).

26

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter
3.700.2 and Exhibit 1 (January 2010).
27

Edward Spohr, 54 ECAB 806, 810 (2003); Tammy L. Meehan, 53 ECAB 229 (2001).

28

Supra note 8 at Chapter 2.808.5 (March 2017).

29

Id. at Chapter 2.808.6(a) (March 2017).

30

Id. at Chapter 2.808.6(c).

31

Id.

32

Chapter 2.808.6a(1) provides that the medical evidence should include a detailed history of clinical presentation,
physical findings, functional history, clinical studies or objective tests, analysis of findings, and the appropriate
impairment based on the most significant diagnosis, as well as a discussion of how the impairment rating was
calculated. Supra note 8 at Chapter 2.808.6a.
33

Supra note 8 at Chapter 2.808.6d (March 2017).

7

ANALYSIS -- ISSUE 2
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
OWCP accepted the claim for sprain/strain of the left knee and leg, a tear of the left lateral
meniscus, left corns/calluses, and aggravation of other spondylosis with radiculopathy,
lumbosacral region. On October 9, 2020 appellant filed a claim for a schedule award. Under
FECA,34 where a claimant is seeking a schedule award, he or she must submit a medical report
that “must contain accurate measurements of the function of the organ or member, in accordance
with the A.M.A., Guides.”35 The burden is on the claimant to provide this evidence. 36
In support of his claim, appellant submitted a November 20, 2018 report by Dr. Tablante.
However, the Board finds that it is of diminished probative value because he neither utilized the
sixth edition of the A.M.A., Guides, nor found that appellant reached MMI. Therefore,
Dr. Tablante’s report is insufficient to establish permanent impairment of a scheduled member or
function of the body causally related to appellant’s accepted employment condition. 37
The remaining medical evidence submitted by appellant is also insufficient to establish
permanent impairment of a scheduled member or function of the body causally related to
appellant’s accepted employment condition as it also does not conform with the protocols of the
A.M.A., Guides.
Accordingly, the Board finds that appellant has not met his burden of proof.
Appellant may request a schedule award, or increased schedule award, at any time based
on evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased permanent impairment.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error. The Board
further finds that appellant has not met his burden of proof to establish permanen t impairment of
a scheduled member or function of the body, warranting a schedule award.

34

Supra note 1.

35

20 C.F.R. § 10.333.

36

Id. at § 10.115.

37

See M.G., Docket No. 19-0823 (issued September 17, 2019).

8

ORDER
IT IS HEREBY ORDERED THAT the April 15, 2021 and December 21, 2020 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: March 2, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board

)
S.B., Appellant y

)
and ) Docket No. 06-1511

) Issued:
DEPARTMENT OF THE ARMY, CORPS OF ) JUN 28 27
ENGINEERS, Washington, DC, Employer )

)
Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S, GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

On June 12, 2006 appellant filed an application for review of a March 6, 2006 decision of
the Office of Workers’ Compensation Programs.’ The appeal was docketed as 06-1511.

The Board, having reviewed the case record submitted by the Office, finds that the record
is incomplete as it does not contain the report of the February 2005 evaluation of Dr. Ritchie C.
Shoemaker, an attending Board-certified family practitioner. In the March 6, 2006 decision, the
Office hearing representative engaged in a significant discussion and analysis of the probative
value of Dr. Shoemaker’s February 2005 evaluation. The absence of this report is significant as
it precludes the Board from reviewing the grounds upon which the Office relied in determining
that appellant had not met her burden of proof to establish that she sustained an injury due to
exposure to environmental factors in the workplace.

' On October 18, 2004 appellant, then a 41-year-old strategic planner, filed an occupational disease claim alleging
that she sustained several injuries and conditions related to “sick building syndrome” because she was exposed to
harmful substances at work. In a January 7, 2005 decision, the Office denied appellant’s claim on the grounds that
she did not submit sufficient factual and medical evidence to establish that she sustained an injury due to exposure to
environmental factors in the workplace. By decision dated and finalized March 6, 2006, the Office hearing
representative affirmed the Office’s January 7, 2005 decision.
Because the record forwarded by the Office will not allow the Board an opportunity for an
informed adjudication of the appeal, the case record will be returned to the Office for proper
assemblage and an appropriate decision issued on appellant's claim in order to preserve her right of
appeal to the Board.

IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs”
March 6, 2006 decision be set aside and the case remanded for further action in conformance with
this order of the Board to be followed by an appropriate decision.

JUN 28 2007
Issued:
Washington, DC

Chief Judge

/ Gerson,
Employees’ Compensation Appeals Board

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


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Racine, WI, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 17-0526
Issued: May 12, 2017

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

On January 10, 2017 appellant, through counsel, filed a timely appeal of a November 22,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 The Board
docketed the appeal as No. 17-0526.3
On March 18, 2016 appellant, then a 48-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that she injured her right shoulder on December 29, 2015 due to
repetitively reaching her arm out of her truck to “put mail in curbside box.” She explained that
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

In its November 22, 2016 decision, OWCP’s Branch of Hearings and Review affirmed the denial of appellant’s
December 29, 2015 traumatic injury claim on the basis that she failed to establish the medical component of fact of
injury.
3

The record provided the Board includes evidence received after OWCP issued its November 22, 2016 decision.
On appeal, the Board is limited to reviewing the evidence that was before OWCP when it issued its final decision.
20 C.F.R. § 501.2(c)(1).

because of an unusual amount of snow on December 28, 2015, she was unable to get her work
vehicle close to her mailboxes on December 29, 2015. As a result, she was required to reach out
further to place mail into the mailboxes. Appellant indicated that the additional reaching
required by the weather conditions caused pain in her right shoulder and arm. Because of her
right upper extremity pain, she was unable to report for duty on December 30, 2015. Appellant
reportedly first sought medical treatment for her condition on January 4, 2016.
On March 28, 2016 appellant submitted her letter of resignation, which was effective
April 8, 2016. In addition to filing her Form CA-1, she filed claims (Form CA-7) for intermittent
wage loss from February 20 through April 1, 2016.
The employing establishment indicated that it had not received notification of the alleged
December 29, 2015 injury until March 29, 2016 and, consequently, it challenged appellant’s
claim based on the delayed notification. The 90-day delay reportedly hampered its ability to
investigate the circumstances/conditions that allegedly caused appellant’s claimed injury. The
employing establishment further noted that appellant already had a claim for a shoulder injury
(File No. xxxxxx164) for which she received compensation through February 19, 2016.4
Additionally, it noted that appellant had not submitted any medical documentation with her
Form CA-1.
By letter dated April 13, 2016, OWCP requested that appellant submit additional factual
and medical evidence in support of her traumatic injury claim. It specifically inquired as to the
reason for the delay in filing the claim. Appellant was afforded at least 30 days to submit the
requested information.
Appellant submitted a May 1, 2016 statement in which she again described the
circumstances of the claimed December 29, 2015 employment injury and the medical treatment
she received for her right shoulder beginning January 4, 2016. She also explained that her
October 17, 2017 injury claim (File No. xxxxxx164) was never closed, and when she injured
herself on December 29, 2015, she did not think to file a new injury form. When it was brought
to her attention to fill out a new form, appellant was reportedly confused as to which form to
submit (Form CA-1, CA-2 or CA-2a), so she completed them all. Management reportedly
informed appellant that she could not submit all three forms, so she and management decided on
Form CA-1.
OWCP did not receive any medical evidence within the allotted time frame. In the
interim, appellant had relocated to California and had not yet found a new treating physician.
By decision dated May 31, 2016, OWCP denied appellant’s claim for a work-related
right shoulder injury on December 29, 2015. It accepted that the December 29, 2015 incident
occurred as alleged. However, it denied appellant’s traumatic injury claim because the record
did not include any medical evidence containing a diagnosis in connection with the
December 29, 2015 incident. OWCP specifically noted that medical evidence in appellant’s
other claim (File No. xxxxxx164) could not be transferred to the current claim as none of the
reports were specific to the claimed December 29, 2015 injury.

4

The case record associated with File No. xxxxxx164 is not currently before the Board.

2

Appellant disagreed with the May 31, 2016 decision and timely requested a review of the
written record by a representative from OWCP’s Branch of Hearings and Review. She
submitted a June 14, 2016 medical report in which Dr. David R. Ross, an attending Boardcertified orthopedic surgeon, advised that, beginning on January 4, 2016, he saw appellant
several times through April 2016. Dr. Ross indicated that appellant did not initially provide him
with a history of an injury for December 29, 2015. He diagnosed partial-thickness rotator cuff
tear and biceps tendinitis, which was evident on a September 2015 magnetic resonance imaging
(MRI) scan. Dr. Ross posited that appellant significantly exacerbated her underlying shoulder
problem from her previous work-related injury due to repetitive reaching activities with her right
shoulder on December 29, 2015, as she described in her May 1, 2016 statement.
Appellant also submitted a February 22, 2016 progress note in which Dr. Ross discussed
the findings of his examination on that date and diagnosed right shoulder pain, status post
arthroscopy, distal clavicle excision, and subacromial decompression.
In a decision dated November 22, 2016, OWCP’s hearing representative affirmed the
May 31, 2016 decision denying appellant’s claim for a work-related right shoulder injury on
December 29, 2015. She found that appellant did not submit a rationalized medical report
relating her right shoulder condition to the implicated December 29, 2015 employment factor(s).
The Board finds that the case is not in posture for decision. Pursuant to 20 C.F.R.
§ 501.2(c)(1), 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. Decisions on claims are based on the written
record, which may include forms, reports, letters, and other evidence of various types such as
photographs, videotapes or drawings.5 Evidence may not be incorporated by reference, nor may
evidence from another claimant’s case file be used.6 Evidence contained in another of the
claimant’s case files may be used, but a copy of that evidence should be placed into the case file
being adjudicated.7 All evidence that forms the basis of a decision must be in that claimant’s
case record.8
The hearing representative’s November 22, 2016 decision, which is the subject of the
current appeal, includes extensive references to information associated with a prior claim of
appellant, i.e., her claim for an October 17, 2014 shoulder injury (File No. xxxxxx164). The
hearing representative referenced a number of reports which are not part of the current file,
including reports of a Dr. Donald J. Zoltan and Dr. Ross. In particular, the hearing
representative discussed a January 4, 2016 report of Dr. Ross from the earlier October 17, 2014
traumatic injury claim. The hearing representative relied on these various reports in denying
appellant’s current traumatic injury claim, as she mentioned in several parts of her decision that
the reports from the earlier claim for an October 17, 2014 injury did not mention a December 29,
2015 employment incident or injury. For example, in discussing the January 4, 2016 report of
5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5a
(June 2011).
6

Id.

7

Id.

8

Id.

3

Dr. Ross, the hearing representative noted that he made “no mention of the events claimed for
December 29, [2015].”
Although the hearing representative relied on the above-referenced information in
denying appellant’s claim for a work-related traumatic injury on December 29, 2015, she
neglected to include the referenced information from File No. xxxxxx164 in the current case
record.9 Because of this oversight, the Board is not in a position to make an informed decision
regarding appellant’s claim that she sustained a traumatic right shoulder injury at work on
December 29, 2015.10
As the record lacks sufficient evidence for the Board to render an informed decision, the
case shall be remanded to OWCP for further development. As noted, all evidence that forms the
basis of a decision must be included in the case record.11 After OWCP has developed the record
consistent with the above-noted directive, it shall issue a de novo decision regarding appellant’s
claim for a December 29, 2015 traumatic right shoulder injury.

9

At the conclusion of her analysis, the hearing representative advised that OWCP “may wish to combine both
claims for future review.” However, no such combination of claims occurred prior to the issuance of the
November 22, 2016 decision.
10

See K.P., Docket No. 15-1945 (issued February 10, 2016); M.C., Docket No. 15-1706 (issued
October 22, 2015).
11

Supra note 5.

4

ORDER
IT IS HEREBY ORDERED THAT the November 22, 2016 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: May 12, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Worth, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 16-0599
Issued: June 20, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 8, 2016 appellant filed a timely appeal from a December 24, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish lower back, right leg,
and right hip conditions causally related to factors of her federal employment.
FACTUAL HISTORY
On November 3, 2015 appellant, then a 56-year-old mail processing clerk, filed an
occupational disease claim (Form CA-2) alleging that she experienced discomfort to the lower
back along with sharp muscle spasms of the right leg and right hip as a result of bending, lifting
1

5 U.S.C. § 8101 et seq.

packages, and lifting sacks of mail in the performance of her federal employment duties. She
first became aware of her claimed condition on June 24, 2014 and of its relationship to her
federal employment on November 2, 2015. A supervisor noted that an employing establishment
controversion would be forthcoming because there was no medical evidence to support her
claimed conditions or a causal relationship between such conditions and her federal employment.
By letter dated November 13, 2015, the employing establishment controverted
appellant’s occupational disease claim. It contended that appellant had not submitted any
medical evidence to establish the claimed conditions as diagnosed by a physician, nor had
appellant submitted a report containing a rationalized medical opinion from a physician on the
issue of the causal relationship between the identified factors of her federal employment and the
claimed conditions.
On November 23, 2015 OWCP requested that appellant submit additional factual and
medical evidence in support of her claim. It noted that appellant had not submitted any medical
evidence from a physician and asked that appellant respond timely to its inquiries. Appellant
was afforded 30 days to submit this additional evidence, no response was received. OWCP also
sent a letter to the employing establishment requesting that it respond to its inquiries regarding
appellant’s duties of employment.
By decision dated December 24, 2015, OWCP denied appellant’s claim for
compensation. It found that she had not submitted any evidence containing a diagnosis related to
her alleged work factors and, thus, fact of injury had not been established.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while 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.2 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or occupational disease.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for

2

Gary J. Watling, 52 ECAB 278, 279 (2001); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

3

Michael E. Smith, 50 ECAB 313, 315 (1999).

2

which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.4
ANALYSIS
Appellant alleged lower back, right leg, and right hip conditions from bending, lifting
packages, and lifting sacks of mail during the course of her federal employment. The Board
finds that appellant did not submit any evidence from a qualified physician to establish the
existence of her claimed conditions. Before a determination can be made that an alleged
condition was causally related to employment duties, the evidence must establish a diagnosed
condition.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit medical evidence establishing the presence or existence of
the disease or condition for which compensation is claimed.6 Without such medical evidence
from a qualified physician containing a diagnosis related to the conditions claimed, appellant has
not established the existence of the conditions claimed. As such, appellant has failed to establish
that she had any diagnosed condition resulting from duties of her federal employment and has
not met her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish lower back,
right leg, and right hip conditions causally related to factors of her federal employment.

4

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

5

Supra note 4.

6

Id.

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 24, 2015 is affirmed.
Issued: June 20, 2016
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Carol Stream, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-27
Issued: July 3, 2014

Case Submitted on the Record

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

JURISDICTION
On October 3, 2013 appellant filed a timely appeal of a September 23, 2013 decision of
the Office of Workers’ Compensation Programs (OWCP), concerning a schedule award.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that she is entitled to a greater than seven
percent permanent impairment of the right lower extremity, for which she received a schedule
award.
FACTUAL HISTORY
On January 24, 2011 appellant, then a 46-year-old letter carrier, filed a traumatic injury
claim alleging that on January 12, 2011 she injured her right knee while delivering mail. OWCP
1

5 U.S.C. § 8101 et seq.

accepted the claim for right leg and knee sprain and right medial meniscus tear. It authorized
right knee arthroscopic surgery which was performed on February 21, 2013.
On November 17, 2012 appellant filed a claim for a schedule award.
In a May 18, 2013 report, Dr. Anatoly Rozman, an examining Board-certified physiatrist,
concluded that appellant had an eight percent right lower extremity permanent impairment using
the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides). In reaching this determination, he used Table 16-3,2 page 510 to find a five
percent lower extremity impairment based on appellant’s intercondylar fracture and finding of a
class 1 impairment. Next, using Table 16-8,3 page 519, Dr. Rozman found a grade modifier of
one based on Clinical Studies (GMCS) confirming the diagnosis. Using Table 16-7, page 517,
he found a grade modifier of one each for Physical Examination (GMPE) and Functional History
(GMFH). The net adjustment formula resulted in no change so that appellant had a five percent
impairment. Dr. Rozman then utilized Table 16-3,4 page 511 to find a class 1 or three percent
impairment for appellant’s chondromalacia. Using Table 16-6 and Table 16-7, pages 516-17,
respectively, he found a grade modifier of one for physical examination, a grade modifier of one
for clinical studies and a grade modifier of one for functional history, which resulted in adjusted
grade modifier of zero. Lastly, Dr. Rozman combined the five percent impairment rating for
femoral condyle fracture and three percent impairment for chondromalacia patella which resulted
in a total eight percent right lower extremity impairment.
In a September 2, 2013 report, OWCP’s medical adviser concluded that appellant had a
seven percent right lower extremity impairment. In reaching this determination, he used Table
16-3, page 511 for a full thickness articular cartilage defect. The medical adviser found no
change using the net adjustment formula.
By decision dated September 23, 2013, OWCP granted appellant a schedule award for a
seven percent impairment of the right lower extremity. The number of weeks was 20.16 and the
award ran from October 19, 2012 to March 9, 2013.
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
2

Dr. Rozman noted the table as 15-3, which appears to be a typographical error as page 510 is associated with
Table 16-3 and pertains to the lower extremity, the subject of the schedule award appeal.
3

In the report Dr. Rozman referenced Table 15-8 at page 519. This appears to be a typographical error as
Table 16-8 is located at page 519.
4

The doctor referenced Table 16-10, page 511 in his report, which appears to be a typographical error.
Table 16-3 is the table located at page 511.
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

2

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.7 Effective May 1, 2009, OWCP adopted the
sixth edition of the A.M.A., Guides as the appropriate edition for all awards issued after that
date.8 The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).9
In addressing lower extremity impairments, the sixth edition requires identifying the
impairment class for the diagnosed condition (CDX), which is then adjusted by grade modifiers
based on functional history, physical examination and clinical studies. The net adjustment
formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).10
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed through an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.11
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.12 When there are opposing reports of virtually
equal weight and rationale, the case must be referred to an impartial medical specialist, pursuant
to section 8123(a) of FECA, to resolve the conflict in the medical evidence.13

7

Id. See C.M., Docket No. 09-1268 (issued January 22, 2010); Billy B. Scoles, 57 ECAB 258 (2005).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claim,
Chapter 2.808.5 (February 2013); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards,
Chapter 3.700.2 and Exhibit 1 (January 2010).
9

A.M.A., Guides (6th ed., 2009), page 3, section 1.3, ICF: A Contemporary Model of Disablement.

10

Id. at 521. J.B., Docket No. 09-2191 (issued May 14, 2010).

11

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013). See C.K., Docket No. 09-2371 (issued August 18, 2010); Frantz Ghassan, 57
ECAB 349 (2006).
12

5 U.S.C. § 8123(a). See S.R., Docket No. 09-2332 (issued August 16, 2010); Y.A., 59 ECAB 701 (2008);
Darlene R. Kennedy, 57 ECAB 414 (2006).
13

A.R., Docket No. 09-1566 (issued June 2, 2010); M.S., 58 ECAB 328 (2007); Bryan O. Crane, 56 ECAB
713 (2005).

3

ANALYSIS
OWCP accepted the claim for right leg and knee sprain and right medial meniscus tear.
By decision dated September 23, 2013, it granted appellant a schedule award for a seven percent
right lower extremity impairment based upon OWCP’s medical adviser’s report.
In a September 2, 2013 report, an OWCP medical adviser advised that based on the
A.M.A., Guides appellant had seven percent impairment of the right lower extremity. Using
Table 16-3, Knee Regional Grid, Patellofemoral Arthritis, appellant was a class 1, mild problem,
with a seven percent impairment.
By contrast, in a May 18, 2013 report, Dr. Rozman opined that appellant had a total eight
percent impairment of the right lower extremity. He opined that, under Table 16-3, Knee
Regional Grid, Supracondylar or intercondylar fracture, appellant was a class with a default
value C or five percent impairment. Dr. Rozman noted that the net adjustment formula resulted
in no change. Next, he utilized Table 16-3, page 511 to find that appellant’s chonromalacia was
a class 1 or three percent impairment. Using the net adjustment formula, Dr. Rozman found the
grade modifier was zero. He then determined that appellant had a total eight percent right lower
extremity impairment by combining the impairment ratings for the femoral condyle fracture and
the chondromalcial patella.
The Board finds there is an unresolved conflict in the medical opinion evidence
concerning the extent of permanent impairment arising from appellant’s accepted employment
injury. Both OWCP’s medical adviser and Dr. Rozman used Table 16-3 of A.M.A., Guides to
come to differing calculations as to appellant’s permanent impairment of the right lower
extremity. Therefore, in order to resolve the conflict in the medical opinions, the case will be
remanded to OWCP for referral of the case record, including a statement of accepted facts and, if
necessary, appellant, to an impartial medical specialist for a determination regarding the extent
of her right lower extremity impairment as determined in accordance with the relevant standards
of the A.M.A., Guides. After such further development as OWCP deems necessary, a de novo
decision should be issued regarding the extent of appellant’s right lower extremity impairment.
CONCLUSION
The Board finds that this case is not in posture for a decision due to an unresolved
conflict in the medical opinion evidence regarding the percentage of impairment of the right
lower extremity.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 23, 2013 is set aside and the case remanded for further
proceedings consistent with the above opinion.
Issued: July 3, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Harrison, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-62
Issued: February 17, 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 October 9, 2008 appellant filed a timely appeal from a January 4, 2008 merit decision
of the Office of Workers’ Compensation Programs and a September 5, 2008 merit decision of a
hearing representative denying her claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant established that she sustained a right shoulder injury in the
performance of duty.
FACTUAL HISTORY
On November 7, 2007 appellant, then a 52-year-old rural mail carrier, filed a claim for an
occupational disease (Form CA-2) alleging that on October 17, 2007 she became aware of right
shoulder pain and on October 20, 2007 she realized the pain was related to her employment.
In an October 29, 2007 medical report, Dr. O. Daniel Fox, a Board-certified orthopedic
surgeon, reported that 12 years ago appellant experienced shoulder pain and was diagnosed with

tendinitis but was not treated. He stated that appellant continued to experience discomfort,
which had recently worsened due to an increased workload. Dr. Fox noted that appellant had
worked as a mail carrier for 12 years and that she was required to sort and deliver mail in the
same day. He further stated that in the past two weeks the volume of mail had increased
significantly, resulting in the onset of right shoulder pain.
In a duty status report (Form CA-17) dated October 29, 2007, Dr. Fox took appellant off
work until an estimated date of November 12, 2007, noting that she was injured while lifting her
shoulder.
By letter dated November 15, 2007, the Office notified appellant of the deficiencies in
her claim and requested she provide additional information.
A November 21, 2007 magnetic resonance imaging (MRI) scan of the right shoulder
revealed an intrasubstance tear of the supraspinatus tendon, an insertional tear of the
subscapularis tendon and mild acromioclavicular degenerative change.
On December 3, 2007 appellant accepted a light-duty position as a modified clerk.
On December 5, 2007 appellant was examined by Dr. Fox, who noted that she returned to
light duty but continued to experience persistent symptoms. Dr. Fox diagnosed chronic
tendinitis of the right shoulder due to overuse at work and resulting from a shoulder strain that
did not heal due to continued use. He stated that this was a work-related claim. Dr. Fox
recommended appellant continue light duty with no lifting, carrying, pushing or pulling for at
least six weeks and that all activities requiring the use of the right shoulder should be avoided.
By decision dated January 4, 2008, the Office denied appellant’s claim on the grounds
that she did not provide sufficient medical evidence establishing that her condition was related to
the claimed work events.
On January 7, 2008 Dr. Fox examined appellant for a follow-up appointment. He
reported that appellant had been off work since December 12, 2007 and that her light duty
continued to aggravate her shoulder injury. Physical examination revealed restricted active
range of motion and anterior glenohumeral pain in the bicipital groove region and subscapular
and subacromial areas. Dr. Fox diagnosed an acute impingement and secondary tendinitis
aggravating a preexisting partial tear of the rotator cuff.
On January 18, 2008 appellant, through her attorney, requested a telephonic hearing
before a hearing representative.
In an April 1, 2008 statement, appellant described her employment duties, contending
that the required continuous reaching and stretching caused the pain in her right shoulder. She
further submitted an attending physician’s report (CA-20) dated December 17, 2007, where
Dr. Fox diagnosed her with chronic tendinitis of the right shoulder due to overuse at work and
indicated by checking a box that he believed the condition was caused or aggravated by an
employment activity.

2

On June 16, 2008 a telephonic hearing was held before a hearing representative.
Appellant, who was represented by her attorney, testified that she previously had an accepted
right shoulder claim for tendinitis 10 years ago. She contended that her job duties were recently
changed to require that she case mail for over four hours in the morning, which is when her
shoulder began hurting. Appellant further testified that on February 14, 2008 she underwent
surgery to remove a bone spur and that she had recently returned to work only two weeks ago.
By decision dated September 5, 2008, the hearing representative affirmed the Office’s
January 4, 2008 decision, finding that appellant did not submit sufficient medical evidence to
establish that the claimed right shoulder condition was causally related to her federal
employment.
LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act1
has the burden of establishing the essential elements of her claim by the weight of the reliable,
probative and substantial evidence,2 including that she is an “employee” within the meaning of
the Act3 and that she filed her claim within the applicable time limitation.4 The employee must
also establish that she sustained an injury in the performance of duty as alleged and that her
disability for work, if any, was causally related to the employment injury.5
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. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
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).

6

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

3

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.7
ANALYSIS
The record reveals that appellant previously sustained tendinitis in her right shoulder
approximately 10 years ago. The issue is whether she established that her right shoulder
condition was aggravated by her increased mail casing duties at work. The Board finds that
appellant did not submit sufficient medical opinion evidence to establish that her employment
duties aggravated her right shoulder condition.
In support of her claim, appellant submitted October 29 and December 5, 2007 medical
reports signed by Dr. Fox. In the October 29, 2007 medical report, Dr. Fox described appellant’s
history of tendinitis in her right shoulder and her continuing discomfort due to her condition. He
discussed that appellant was recently required to sort and deliver an increased volume of mail,
resulting in right shoulder pain. Further, in the December 5, 2007 medical report, Dr. Fox
diagnosed appellant with chronic tendinitis of the right shoulder, attributing the condition to
overuse at work, which exacerbated a preexisting, unhealed shoulder strain. He stated that
appellant’s condition was related to her federal employment.
In order to establish that she sustained a work-related shoulder injury, appellant is
required to submit a rationalized medical opinion that her current condition is caused or
aggravated by her employment duties.8 Here, Dr. Fox attributes appellant’s right shoulder
condition to her increased sorting and delivering duties at work, however, he fails to explain how
her shoulder injury is specifically related to these work tasks. He does not describe how the
movements associated with sorting and delivering mail caused or aggravated appellant’s
shoulder injury, but merely stated that her current condition is work related. A physician’s
opinion on causation is not dispositive simply because it is rendered by a physician. To establish
a causal relationship, medical evidence must provide rationalized medical opinion.9 Thus,
Dr. Fox’s October 29 and December 5, 2007 medical reports are of little probative value.
Appellant further submitted a December 17, 2007 attending physician’s report by Dr. Fox
who diagnosed chronic tendinitis of the right shoulder due to overuse at work and checked a box
to indicate that he believed the condition was caused or aggravated by an employment activity.
The Board has held that when a physician’s opinion on causal relationship consists only of
checking “yes” to a form question without accompanying medical rationale, that opinion has
little probative value.10 Thus, this report fails to establish causation as it is lacking the requisite
medical rationale.

7

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

See supra note 6.

9

Jean Culliton, 47 ECAB 728 (1996); Lucrecia M. Nielsen, 42 ECAB 583 (1991).

10

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

4

The remainder of the medical evidence, including a January 7, 2008 medical report by
Dr. Fox and a November 21, 2007 MRI scan report, does not discuss the cause of appellant’s
right shoulder injury and is therefore insufficient to establish causation.11
The Board finds that appellant did not meet her burden of proof in establishing that her
employment caused or aggravated her right shoulder condition and thus has not sustained an
injury in the performance of duty.
CONCLUSION
The Board finds that appellant did not establish that she sustained a right shoulder injury
in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the January 4, 2008 merit decision of the Office of
Workers’ Compensation Programs and the September 5, 2008 decision of the hearing
representative are affirmed.
Issued: February 17, 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

11

See Robert Broome, 55 ECAB 339 (2004).

5


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

)
)
)
)
)
)
)
)
)

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

Docket No. 12-286
Issued: June 4, 2012

Case Submitted on the Record

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

JURISDICTION
On November 23, 2011 appellant filed a timely appeal of the November 1, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) which found that she did
not sustain an injury in the performance of duty on September 13, 2011. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
injury in the performance of duty on September 13, 2011.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the November 1, 2011 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

On appeal, appellant contends that she was in the course of her employment because the
employing establishment instructed her to walk on the street where she fell.
FACTUAL HISTORY
On September 13, 2011 appellant, then a 48-year-old tax examiner, filed a traumatic
injury claim (Form CA-1) alleging that at 5:40 a.m. that day, she sustained injuries to her right
knee, right thumb and wrist when she tripped and fell on a rock while walking across the street
from the train station to work. She stopped work that day. Appellant’s supervisor noted that
appellant’s fixed shift hours were 6:00 a.m. to 2:30 p.m. and reported that appellant fell in the
street outside the building as she was crossing the street to arrive at work when she tripped on a
rock.
Appellant submitted an emergency room report dated September 13, 2011.
In a September 15, 2011 attending physician’s report, Dr. Angeles Gonzalez-Prado, a
Board-certified internist, diagnosed contusion, abrasion and laceration based on his findings of
decreased range of motion of the right shoulder, swollen right knee, laceration of the right thumb
and abrasion of the right knee. He noted that it was unknown whether or not appellant’s
conditions were caused or aggravated by her fall. Dr. Gonzalez-Prado opined that appellant was
totally disabled and advised her not to return to work.
In an October 26, 2011 letter, OWCP notified appellant of the deficiencies of her claim
and requested additional evidence. It allotted 30 days for submission. Appellant did not
respond.
By decision dated November 1, 2011, OWCP denied appellant’s claim finding that the
evidence submitted did not establish that she was injured in the performance of duty.
LEGAL PRECEDENT
FECA provides for the payment of compensation for the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.3 The phrase
sustained while in the performance of duty in FECA is regarded as the equivalent of the
commonly found requisite in workers’ compensation law of arising out of and in the course of
employment.4
To arise in the course of employment, an injury must occur at a time when the employee
may reasonably be said to be engaged in the master’s business, at a place where he may
reasonably be expected to be in connection with the employment and while he was reasonably
fulfilling the duties of his employment or engaged in doing something incidental thereto.5 In

3

5 U.S.C. § 8102(a).

4

See Valerie C. Boward, 50 ECAB 126 (1998).

5

See R.A., 59 ECAB 581 (2008); Mary Keszler, 38 ECAB 735 (1987).

2

deciding whether an injury is covered by FECA,6 the test is whether, under all the circumstances,
a causal relationship exists between the employment itself, or the conditions under which it is
required to be performed and the resultant injury.7
The Board has recognized as a general rule that off-premises injuries sustained by
employees having fixed hours and places of work while going to or coming from work or during
a lunch period, are not compensable, as they do not arise out of and in the course of employment.
Rather, such injuries are merely the ordinary, nonemployment hazards of the journey itself,
which are shared by all travelers, subject to certain exceptions.8 Underlying some of these
exceptions is the principle that course of employment should extend to any injury that occurred
at a point where the employee was within the range of dangers associated with the employment.9
The most common ground of extension is that the off-premises point at which the injury
occurred lies on the only route, or at least on the normal route, which employees must traverse to
reach the premises, and that therefore the special hazards of that route become the hazards of the
employment.10 This exception contains two components. The first is the presence of a special
hazard at the particular off-premises point. The second is the close association of the access
route with the premises, so far as going and coming are concerned.11 The main consideration in
applying this rule is whether the conditions giving rise to the injury are causally connected to the
employment.12
ANALYSIS
Appellant alleged that she tripped and fell on a rock while walking across the street from
the train station to work on September 13, 2011. The Board finds that she has not established
that her injury occurred in the performance of duty.
With regard to time, based on appellant’s statement on the claim form, the incident
occurred at 5:40 a.m. shortly before her shift was to begin at 6:00 a.m. Appellant was still on her
way to the employing establishment and had not yet begun her work. The Board has held that
the mere fact that an injury occurs during the workday is not sufficient, in and of itself, to bring
an injury within the performance of duty. For compensability, the concomitant requirement of
an injury, arising out of the employment, must also be shown.13 On appeal, appellant contends
that she was in the course of her employment because she was instructed to walk on the street
6

5 U.S.C. §§ 8101-8193.

7

See Mark Love, 52 ECAB 490 (2001).

8

See T.M., Docket No. 11-528 (issued December 13, 2011); John M. Byrd, 53 ECAB 684 (2002); see also Gabe
Brooks, 51 ECAB 184 (1999); Thomas P. White, 37 ECAB 728 (1986); Robert F. Hart, 36 ECAB 186 (1984).
9

See R.O., Docket No. 08-2088 (issued May 18, 2009).

10

See Shirley Borgos, 31 ECAB 222, 223 (1979).

11

See Larson, The Law of Workers’ Compensation § 13.01(3) (2006).

12

See Jimmie Brooks, 22 ECAB 318, 321 (1971).

13

See William W. Knispel, 56 ECAB 639 (2005); Luis A. Velez, 56 ECAB 592 (2005).

3

where she fell. The fact that the employing establishment assented to the road of travel to work
where appellant tripped and fell, does not change the established criteria for an injury sustained
in the performance of duty under FECA.14
In Idalaine L. Hollins-Williamson,15 the employee fell and injured her left side while
walking from a parking lot to the employing establishment building on a snow-covered public
sidewalk. The Board found that the employee had not shown that the sidewalk on which she fell
was used exclusively or principally by employees of the employing establishment for the
convenience of the employer. The evidence of record supported that the sidewalk where the
incident occurred was not owned, operated or maintained by the employing establishment and
was open to the public. The employee’s injury was not in the performance of duty.
The Board has held that, even if a public sidewalk were the customary means of access to
the employing establishment for its employees, this did not alter the public nature of the sidewalk
or render it a part of the employing establishment’s premises.16 In this case, there is no evidence
to support that the use of the road was restricted to the employees of the employing
establishment or that the employing establishment owned, operated or maintained the road where
the incident occurred. The road was open to the general public. The Board finds that the hazard
that caused appellant’s injury, a rock on a public street, is a hazard commonly faced by all
pedestrians. Therefore, there was no special hazard at the off-premises point.17 The evidence of
record does not establish that appellant was engaged on any special errand when she left her
home to commute to her place of employment. There is no evidence which would establish that
appellant’s journey to work on the date of injury was an integral part of any errand or special
task either expressly or impliedly agreed to by the employing establishment. Rather, her travel
on that date appears to conform to her regular work schedule and her normal morning commute
in going to the office. The Board finds that appellant was not in the performance of duty on
September 13, 2011 as the injury occurred while she was exposed to an ordinary, off-premises
nonemployment hazard of the journey shared by all travelers.18
While appellant’s employment is the cause of her journey between home and the
employing establishment, workers’ compensation was not intended to protect her against all the
perils of such journey.19 The Board finds that the established exceptions mentioned above do not
apply in her case. Appellant was not reasonably fulfilling the duties of her employment or doing
something incidental to the fulfillment of her job duties. She had not begun her tour of duty and
was walking on a public road toward the employing establishment. As noted, an employee going
to work who had been injured off-premises is not in the course of employment.20 As appellant
14

See T.G., Docket No. 10-920 (issued February 18, 2011).

15

55 ECAB 655 (2004).

16

See R.O., supra note 9.

17

See id.; see also Robert F. Hart, supra note 8.

18

See Shirley Borgos, supra note 10; D.K., Docket No. 11-1029 (issued February 1, 2012).

19

See Asia Lynn Doster, 50 ECAB 351 (1999).

20

See C.P., Docket No. 11-1432 (issued January 23, 2012).

4

was not in the course of employment at the time of the September 13, 2011 incident, OWCP
properly denied the claim for compensation.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an injury in the performance of duty on September 13, 2011.
ORDER
IT IS HEREBY ORDERED THAT the November 1, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 4, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

5


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

)
)
)
)
)
)
)
)

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

Docket No. 14-1093
Issued: October 6, 2014

Case Submitted on the Record

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

JURISDICTION
On April 10, 2014 appellant, through her representative, filed a timely appeal from the
February 10, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a 10 percent impairment of her left arm.
FACTUAL HISTORY
On September 14, 2009 appellant, then a 38-year-old mail handler, sustained a traumatic
injury in the performance of duty while pushing a wire cage. OWCP accepted her claim for left
wrist sprain. It later expanded its acceptance to include a tear of the triangular fibrocartilage
complex (TFCC) and other joint derangement of the left wrist.
1

5 U.S.C. § 8101 et seq.

On January 19, 2010 appellant underwent a left wrist ulnar shortening osteopathy and
arthroscopy with partial synovectomy.
In 2013 she filed a schedule award claim. On March 11, 2013 Dr. Stuart J. Goodman, a
Board-certified neurologist, evaluated her impairment under the American Medical Association,
Guides to the Evaluation of Permanent Impairment (6th ed. 2009). He found a moderate
functional history under Table 15-7, page 406, a moderate physical examination under Table
15-8, page 408, and moderate clinical studies under Table 15-9, page 410. Referring to Table
15-10, page 412, “Methodology for Determining the Grade in an Impairment Class,”
Dr. Goodman found that appellant had a class 3 or severe impairment of 28 percent, or two
percent less than the default impairment value for that class.
Dr. Arnold T. Berman, an OWCP medical adviser, reviewed the impairment evaluation
on April 23, 2013 and noted that Dr. Goodman did not make a calculation based upon a
diagnosis. Instead, he immediately went to the adjustment grids, which cannot be used until an
initial diagnosis-based estimate is made. Using Table 15-3, page 396, Dr. Berman observed that
the default impairment value for a documented TFCC injury was eight percent of the upper
extremity, mild impairment. As to the adjustment grids, the medical adviser agreed with
Dr. Goodman that appellant had a moderate functional history (symptoms with normal
activities), a moderate physical examination (moderate decrease in range of motion), and
moderate clinical studies (confirming the diagnosis and moderate pathology). These adjustment
factors increased the default impairment value of eight percent to 10 percent under Table 15-3,
page 396.
On June 5, 2013 OWCP issued a schedule award for a 10 percent impairment of the left
upper extremity. The period of the award ran for 31.2 weeks.
On February 10, 2014 an OWCP hearing representative affirmed, finding that the weight
of the medical evidence rested with the rating performed by Dr. Berman.
LEGAL PRECEDENT
The schedule award provision of FECA2 and the implementing regulations3 set forth the
compensation payable to injured employees who sustain permanent impairment from the loss, or
loss of use, of scheduled members or functions of the body. FECA, however, does not specify
the manner in which the percentage of loss shall be determined. The method used in making
such a determination is a matter that rests within the sound discretion of OWCP.4
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. OWCP has adopted the A.M.A., Guides as the appropriate
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986).

2

standard for evaluating schedule losses.5 As of May 1, 2009, the sixth edition of the A.M.A.,
Guides is used to calculate schedule awards.6
ANALYSIS
Diagnosis-based impairment is the primary method of evaluation for the upper
extremities. The first step is to choose the diagnosis that is most applicable for the region being
assessed. Selection of the optimal diagnosis requires judgment and experience. If more than one
diagnosis can be used, the highest causally related impairment rating should be used; this will
generally be the more specific diagnosis. Typically, one diagnosis will adequately characterize
the impairment and its impact on activities of daily living.7
Specific criteria for that diagnosis determine which class of impairment is appropriate:
no objective problem, mild problem, moderate problem, severe problem, or very severe problem
approaching total function loss. The A.M.A., Guides assigns a default impairment rating for
each diagnosis by class. This default rating may be slightly adjusted using such factors as
functional history, physical examination and clinical studies.8
Dr. Berman, OWCP’s medical adviser, correctly noted that Dr. Goodman, the evaluating
neurologist, did not accomplish the first step in the process: he did not identify the applicable
diagnosis or locate its default impairment rating under Table 15-3, the Wrist Regional Grid.
OWCP accepted appellant’s claim for left wrist sprain, tear of the left TFCC, and other joint
derangement. Appellant’s impairment could be rated under the diagnosis of left wrist
sprain/strain, but the highest rating she could receive for that diagnosis is two percent of the
upper extremity.9 TFCC offers a higher default impairment rating of eight percent and is an
accurate diagnosis of the accepted condition. The Board finds that this is the most appropriate
diagnosis upon which to rate appellant’s impairment.
Dr. Berman agreed with Dr. Goodman that all of the adjustment factors -- functional
history, physical examination, and clinical studies -- were moderate and would adjust the default
impairment rating slightly higher. As a matter of procedure, however, the Board notes that, if a
particular adjustment factor has already been used to determine the impairment class under the
regional grid, it may not be used again to adjust the default impairment value.10 Here, clinical
studies documenting appellant’s TFCC injury were used to place her TFCC impairment in the
class 1 or mild category, which has a default impairment rating of eight percent. Clinical studies
cannot be used again, therefore, to adjust this default rating higher or lower. Nonetheless,
5

20 C.F.R. § 10.404; Ronald R. Kraynak, 53 ECAB 130 (2001).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010).
7

A.M.A., Guides 387, 389 (6th ed. 2009).

8

Id. at 497.

9

Id. at 395.

10

Id. at 411 (Method, 2.b).

3

moderate functional history and physical findings both move the default rating slightly higher to
10 percent under Table 15-3, page 396. A 10 percent impairment of the upper extremity is the
highest impairment rating for a TFCC tear.
Accordingly, the Board finds that appellant has no more than a 10 percent impairment of
her left arm. The Board will affirm OWCP’s February 10, 2014 decision.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no more than a 10 percent impairment of her left upper
extremity, for which she has received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the February 10, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 6, 2014
Washington, DC

Christopher J. Godfrey, Chief 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
__________________________________________
M.M., Appellant
and
DEPARTMENT OF THE ARMY,
Fort Bliss, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-1054
Issued: August 24, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 6, 2015 appellant filed a timely appeal from a March 23, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish an injury causally
related to a September 17, 2014 employment incident.

1
2

5 U.S.C. § 8101 et seq.

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

FACTUAL HISTORY
On October 6, 2014 appellant, then a 60-year-old security guard, filed a traumatic injury
claim alleging that on September 17, 2014 he sustained an injury at work. He stated that
combative training irritated his December 30, 2013 left inguinal hernia repair.
In a medical statement dated January 5, 2015, Dr. Eric T. Raschke, an employing
establishment osteopath specializing in general surgery, related that appellant sustained an acute
injury on January 5, 2015 and provided physical restrictions.
Presurgical instructions contained an illegible signature and indicated that appellant was
scheduled to undergo an umbilical hernia repair on January 16, 2015.
In a January 16, 2015 letter, Dr. Daniel J. Roubik, an employing establishment resident
physician in general surgery, stated that appellant had undergone abdominal surgery on that day.
He advised that appellant may require two weeks for recovery with limitations and four to six
weeks to return to his baseline. Dr. Roubik requested accommodation during appellant’s
recovery.
In discharge instructions dated January 16, 2015, Dr. Josiah D. Freemyer, a general
surgeon with the employing establishment, addressed appellant’s medications, wound care, and
physical restrictions.
On January 30, 2015 appellant filed a claim requesting compensation for leave without
pay from January 16 to February 13, 2015. He was separated from the employing establishment
on January 10, 2015 due to a reduction-in-force.
By letter dated February 9, 2015, OWCP indicated that, when appellant’s claim was
received, it appeared to be a minor injury that resulted in minimal or no lost time from work.
Because the employing establishment did not controvert continuation of pay or challenge the
case, payment of a limited amount of medical expenses was administratively approved. OWCP
reopened the claim for adjudication because it had received a claim for wage-loss compensation.
Thereafter, OWCP notified appellant of the deficiencies of his claim and afforded him 30
days to submit additional medical evidence. It also requested that the employing establishment
submit medical evidence, if appellant had been treated at its medical facility.
No response was received from appellant within the allotted time.
In a March 23, 2015 decision, OWCP accepted that the September 17, 2014 incident
occurred as alleged. However, it denied appellant’s claim as he had not submitted any medical
evidence containing a medical diagnosis in connection to the accepted employment incident.
OWCP noted that he did not respond to the request for additional necessary medical evidence to
support his claim.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence4 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.6
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged.7
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.8 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.9 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.10
ANALYSIS
The Board finds that appellant has not established a traumatic injury caused by the
accepted September 17, 2014 employment incident. Appellant failed to submit medical evidence
sufficient to establish any medical condition causally related to the accepted incident.
The January 5 and 16, 2015 reports from Dr. Raschke and Dr. Roubik, respectively, did
not provide a specific diagnosis or a medical opinion on whether the diagnosed condition was
caused or aggravated by the accepted September 17, 2014 employment incident. Further,
Dr. Raschke stated that appellant sustained an acute injury on January 5, 2015, but provided no

3

5 U.S.C. §§ 8101-8193.

4

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

5

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

6

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

7

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

8

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

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

10

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

3

details regarding this incident or injury.11 Similarly, Dr. Roubik did not provide any details
regarding appellant’s January 16, 2015 abdominal surgery. A physician must provide a narrative
description of the identified employment incident and a reasoned opinion on whether the
employment incident described caused or contributed to appellant’s diagnosed medical
condition.12 The Board therefore finds that the reports of Drs. Raschke and Roubik are
insufficient to establish appellant’s burden of proof.
Dr. Freemyer’s January 16, 2015 discharge instructions addressed only appellant’s
medications, wound care, and physical restrictions. He offered no opinion stating that
appellant’s umbilical hernia and surgery were caused by the accepted employment incident.
Medical evidence that does not offer any opinion regarding the cause of an employee’s condition
is of limited probative value.13
The January 16, 2015 disability report and presurgical instructions, which contained
illegible signatures, are insufficient to establish appellant’s claim. A report that is unsigned or
bears an illegible signature lacks proper identification and, therefore, cannot be considered
probative medical evidence.14
Therefore, the Board finds that there is insufficient medical evidence to establish that
appellant sustained an injury causally related to the accepted September 17, 2014 employment
incident.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to establish an injury causally related to a
September 17, 2014 employment incident.

11

There is no information on any employment-related injury sustained on January 5, 2015 in the record before the
Board on appeal.
12

B.T., Docket No. 13-138 (issued March 20, 2013); John W. Montoya, 54 ECAB 306 (2003).

13

See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004);
Michael E. Smith, 50 ECAB 313 (1999).
14

Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams, 55 ECAB 343 (2004).

4

ORDER
IT IS HEREBY ORDERED THAT the March 23, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 24, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5