United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, INDIAN HEALTH SERVICE,
Window Rock, AZ, Employer
__________________________________________

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

Docket No. 16-1252
Issued: December 1, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 25, 2016 appellant filed a timely appeal from February 3 and April 29, 2016
merit decisions 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 sustained an injury on July 16, 2015 in the performance of
duty.
FACTUAL HISTORY
On December 17, 2015 appellant, then a 54-year-old medical records technician, filed a
traumatic injury claim (Form CA-1) alleging that on July 16, 2015 she fractured her right radius
1

5 U.S.C. § 8101 et seq.

at 12:20 p.m. while on a walking trail. Her duty hours were from 8:30 a.m. until 4:30 p.m.
Appellant’s supervisor indicated on the claim form that she was on her lunch break and not on
the premises at the time the incident occurred.
OWCP on December 30, 2015 requested that appellant submit additional factual and
medical information, including whether she was on the premises of the employing establishment
and what she was doing at the time of her alleged injury.
In a January 21, 2016 response, appellant indicated that she was not on the premises of
the employing establishment but on “a property incidental to the work site.” She related, “I was
taking a short break from working behind the computer all morning to walk and clear my mind
to begin the second half of the day. I was injured while on the short walk outside the
workplace.” Appellant advised that she fractured her right wrist approximately .25 miles from
her work site.
The employing establishment, by letter dated January 25, 2016, asserted that appellant’s
injury did not occur on its premises or in an area that it owned or operated. It submitted a map
showing the hill where the incident occurred. The employing establishment further advised that
appellant was not performing any official duties or an activity reasonably incidental to her work.
By decision dated February 3, 2016, OWCP denied appellant’s claim as she was not in
the performance of duty at the time of the alleged July 16, 2015 employment incident. It noted
that her alleged injury occurred off the premises of the employing establishment at a time when
she was not performing her duties or an activity reasonably incident to her work.
On March 4, 2016 appellant requested reconsideration. She asserted that she was injured
during her work hours performing an activity that promoted the interest of the employing
establishment. Appellant related, “The activity I was engaged in was incidental to, and aimed to
promote the best performance of my assigned duty and cannot be divorced from my regularly
assigned duties and the best performance of it.” She maintained that the issue was not whether
the trail where her injury occurred was operated or controlled by the employing establishment
but whether there was a “direct correlation” between her employment and the injury. Appellant
asserted, “I wouldn’t be on that trail and at the hour of my injury, but for my job.”
In a decision dated April 29, 2016, OWCP denied modification of its February 3, 2016
decision. It found that appellant was not engaged in an activity incidental to her employment at
the time of the claimed incident.
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.2 The phrase
sustained while in the performance of duty in FECA is regarded as the equivalent of the

2

5 U.S.C. § 8102(a).

2

commonly found requisite in workers’ compensation law of arising out of and in the course of
employment.3
To arise in the course of employment, an injury must occur at a time when the employee
may reasonably be stated to be engaged in her master’s business, at a place where she may
reasonably be expected to be in connection with the employment, and while she was reasonably
fulfilling the duties of her employment or engaged in doing something incidental thereto.4 In
deciding whether an injury is covered by FECA, 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.5
The Board has recognized a general principle, called the premises doctrine, that offpremises 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.6
Exceptions to the premises doctrine have been made to protect activities that are so
closely related to the employment itself as to be incidental thereto,7 or which are in the nature of
necessary personal comfort or ministration.8 The Board has also found that the 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 This principle is called the proximity rule
and the most common ground of extending coverage 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
ANALYSIS
Appellant alleged that she fractured her right radius when she slipped on a walking trail
during a lunch break from work at 12:20 p.m. on July 16, 2015. OWCP denied her claim as her
injury was not sustained in the performance of duty.
3

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

4

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

5

See Mark Love, 52 ECAB 490 (2001).

6

V.P., Docket No. 13-74 (issued July 1, 2013); M.L., Docket No. 12-286 (issued June 4, 2012); John M. Byrd, 53
ECAB 684 (2002).
7

See Maryann Battista, 50 ECAB 343 (1999) (activities such as delivering a bad check list and checking on a
customer’s telephone were incidental to employee’s listed duties).
8

See J.L., Docket No. 14-368 (issued August 22, 2014).

9

R.O., Docket No. 08-2088 (issued February 18, 2011).

10

Shirley Borgos, 31 ECAB 222 (1979).

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In order to be covered under FECA, an injury must occur at a time when the employee
may reasonably be said to be engaged in her master’s business, at a place where she may
reasonably be expected to be in connection with her employment, and while she was reasonably
fulfilling the duties of her employment, or engaged in something incidental thereto.11
Appellant related that on July 16, 2015 she took a break from work in order to clear her
mind after working at the computer and to prepare for the second part of the day. Her duty hours
were from 8:30 a.m. until 4:30 p.m. and the incident occurred at 12:20 p.m. Appellant’s
supervisor advised, and appellant has not disputed that she was on her lunch break at the time of
the July 16, 2015 incident. The Board thus finds that the July 16, 2015 incident occurred during
appellant’s lunch break.
Appellant related that the walking trail on which she fell was not part of the premises of
the employing establishment. The employing establishment indicated that it did not own,
operate, or control the walking trail. The Board finds that appellant, consequently, was not on
the premises of the employing establishment at the time of the incident.
As noted above, off-premises injuries during a lunch break are generally not
compensable.12 The Board finds that the exceptions to this rule are not applicable in this case.
There is no evidence that appellant was injured while on an emergency call, that she was
traveling on the trail as part of her employment, or that she was subjected to a special hazard,
inconvenience, or urgency of travel that would bring the claimed injury within coverage of
FECA.13 Instead, her excursion was personal in nature.14
In J.K.15 a claimant was in a motor vehicle accident during his lunch break while on his
way to a park to take a walk to clear his head. The Board found that the claimant’s leaving his
duty station during his lunch break to go for a walk to clear his head was a personal activity that
occurred at a time and place when he was not engaged in employment activities. It determined
that he had experienced a nonemployment-related hazard shared by the general public.
Similarly, in this case appellant’s claimed injury occurred away from her place of employment,
at a time when she was engaged in an activity unrelated to her employment, and the incident
occurred as a result of a nonemployment-related hazard shared by the general public.
Consequently, she was not in the performance of duty on July 16, 2015 when she slipped on the
walking trail.
On appeal appellant argues, that but for her employment, she would not have been on the
walking trail. Workers’ compensation, however, does not cover ever injury, illness, or mishap
that might befall an employee contemporaneous or coincidental with her employment. While
11

B.P., Docket No. 14-0411 (issued July 17, 2014); David P. Sawchuck, 57 ECAB 316 (2006).

12

See J.K., Docket No. 15-0198 (issued March 10, 2015); J.E., Docket No. 59 ECAB 119 (2007).

13

See E.B., Docket No. 06-2178 (issued February 27, 2007).

14

See J.K., supra note 12.

15

Id.

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taking a lunch break may be considered incidental to one’s employment under the personal
comfort doctrine, the premises rule explicitly excludes off-premises lunches from the course of
employment.16
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that she sustained an injury on July 16,
2015 in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the April 29 and February 3, 2016 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: December 1, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

16

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.B., Appellant
and
DEPARTMENT OF THE ARMY, CHILDREN’S
& YOUTH SERVICE, Heidelberg, Germany,
Employer
__________________________________________

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

Docket No. 07-1784
Issued: January 23, 2008

Case Submitted on the Record

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

JURISDICTION
On June 25, 2007 appellant filed a timely appeal from a March 27, 2007 decision by a
hearing representative of the Office of Workers’ Compensation Programs that denied an
increased schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the schedule award issue.
ISSUE
The issue is whether appellant has more than four percent permanent impairment of the
right lower extremity and four percent permanent impairment of the left lower extremity, for
which she received a schedule award.
FACTUAL HISTORY
On March 19, 2001 appellant, then a 40-year-old office clerk, filed an occupational
disease claim alleging that she developed bilateral tarsal tunnel syndrome, bilateral carpal tunnel
syndrome, fibromyalgia and depression in the performance of duty. Her job required her to

perform numerous physical duties, including walking, answering telephones and handling
personnel matters. Appellant first became aware of her condition on December 1, 1997 and first
related it to her employment on March 26, 1998, the date she underwent surgical removal of a
ganglion cyst from her right ankle. She stopped work on March 17, 1998 and did not return. In
an October 27, 1998 report, Dr. Thomas M. Stanley, a Board-certified neurologist, diagnosed
tarsal tunnel syndrome, which he concluded was causing bilateral numbness in appellant’s feet.
The Office accepted appellant’s claim for bilateral tarsal tunnel syndrome.
On June 19, 2001 appellant claimed a schedule award and submitted various medical and
physical therapy reports.
In a February 27, 2002 memorandum, the Office requested that a medical adviser provide
an opinion concerning appellant’s permanent partial impairment. On March 15, 2002 the
medical adviser found that appellant had four percent right lower extremity impairment and four
percent left lower extremity impairment pursuant to the fifth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides). He rated
impairment due to pain involving the lateral plantar nerve which, at Table 17-37, is rated a
maximum of five percent.1 The medical adviser graded the sensory deficit under Table 16-10 on
page 4822 as Grade 2, decreased superficial cutaneous pain and allowed an 80 percent deficit.
This resulted in four percent permanent impairment of both the right and left legs. The medical
adviser indicated that appellant reached maximum medical improvement on March 15, 2002.
By decision dated August 5, 2002, the Office granted appellant a schedule award for four
percent permanent impairment of both the right and left legs.
Appellant requested a review of the written record. In a June 18, 2002 report, Dr. Stanley
noted appellant’s complaints of bilateral foot pain and numbness. He noted concern that
appellant might have continuing carpal tunnel and tarsal tunnel syndrome as well as neuropathy.
In a December 11, 2002 report, Dr. Erick Bournigal, a Board-certified internist, explained that
appellant had “significant hypermobility syndrome,” which caused subluxation of her shoulders,
causing paresthesias in her hands and increasing symptoms “even down into the legs.” On
March 28, 2003 Dr. Christoph C. Zencker, a podiatrist, diagnosed multiple chronic pain
syndromes, including fibromyalgia, carpal tunnel syndrome and possible tarsal tunnel syndrome.
He noted appellant’s history of ankle pain since 1997 and ganglion cyst excision in 1998.
By decision dated July 2, 2003, the hearing representative affirmed the August 5, 2002
schedule award decision.
In an October 28, 2003 report, Dr. Stanley diagnosed bilateral tarsal tunnel syndrome,
bilateral carpal tunnel syndrome and peripheral polyneuropathy with myofascial components and
noted that appellant’s numbness and paresthesias in the legs dated to 1998. On January 30, 2004
he provided an electromyogram (EMG) report noting normal medial and lateral plantar
conduction on the left but absent medial and lateral plantar conduction on the right, with no
1

A.M.A., Guides 552, Table 17-37.

2

Id. at 482, Table 16-10.

2

generalized neuropathy or myopathy noted. In a report dated the same day, Dr. Stanley
diagnosed bilateral dysthesias in the feet, possible right-sided tarsal tunnel syndrome, history of
bilateral carpal tunnel syndrome, related myofascial complaints, and no evidence of generalized
neuropathy. He opined that appellant’s ganglion cyst removal might have caused scarring and
thus contributed to appellant’s dysthesias. Appellant continued to submit progress reports from
Dr. Stanley and Dr. Bournigal, who noted her continuing course of treatment.
In a January 4, 2005 report, Dr. Stanley diagnosed tarsal tunnel syndrome and carpal
tunnel syndrome with peripheral neuropathy as well as weight challenge and restless legs. On
September 23, 2005 he noted appellant’s continuing complaints of numbness and pain in her legs
and feet. Dr. Stanley explained that her history of ankle pain began in 1997, when she was
required to do a great deal of walking on the job. He diagnosed suspected bilateral carpal tunnel
syndrome, history of right carpal tunnel syndrome, suspected right tarsal tunnel syndrome and
history of nocturnal restless legs.
Appellant inquired about an increased schedule award. On June 8, 2006 the Office
requested an updated medical opinion from Dr. Stanley. The Office noted that Dr. Stanley had
diagnosed paresthesia and idiopathic peripheral neuropathy. It inquired whether these conditions
were related to appellant’s accepted tarsal tunnel syndrome. The Office also requested that
Dr. Stanley clarify whether appellant’s condition had materially worsened, and if so, whether
that worsening was temporary or permanent. The Office inquired whether, in Dr. Stanley’s
opinion, appellant had any additional impairment warranting an increased schedule award.
On June 26, 2006 appellant filed a second schedule award claim.
By decision dated September 6, 2006, the Office denied appellant’s request for an
increased schedule award.
Appellant requested an oral hearing and a telephone hearing was held on
January 12, 2007.
Appellant provided an August 1, 2006 report from Dr. Stanley who noted that appellant
had a “history of tarsal tunnel on the right side and apparently was on permanent impairment for
both of her legs.” Dr. Stanley diagnosed suspected bilateral carpal tunnel syndrome, possibly
developing underlying polyneuropathy, right tarsal tunnel syndrome and suspected bilateral
involvement, possible underlying polyneuropathy, history of nocturnal restless legs, weight
challenge and history of hypertension. He had recommended that an EMG be performed, but it
was not obtained. Therefore it was “hard to answer questions in a letter” concerning appellant’s
current condition. In an August 4, 2006 EMG report, Dr. Stanley stated an impression of
bilateral tarsal tunnel syndrome and noted that there was “absent medial and lateral plantar
sensory conduction.”
Following the hearing, appellant submitted medical reports, which duplicated reports
previously submitted. She also provided a June 19, 1998 magnetic resonance imaging (MRI)
scan report from Dr. Edward C. Calloway, who found that appellant had undergone a synovial
cyst removal from her right ankle. Appellant also submitted an August 28, 2001 MRI scan
report from Dr. Ricanthony R. Ashley, a Board-certified diagnostic radiologist, who diagnosed

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“focal area of edema within the calcaneus suggestive of bone bruising otherwise unremarkable
MRI [scan] of the right ankle.”
By decision dated March 27, 2007, the hearing representative affirmed the Office’s
September 6, 2006 decision denying appellant’s request for an increased schedule award.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulations4 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of schedule members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.5
ANALYSIS
The Board finds that appellant has not established that she had greater than four percent
permanent impairment of the right and left lower extremities, for which she received a schedule
award. The Office accepted appellant’s claim for bilateral tarsal tunnel syndrome and paid
appropriate compensation, including the above noted schedule award. Appellant has not
submitted sufficient medical evidence to establish impairment greater than previously awarded.
Appellant’s treating physician, Dr. Stanley, did not provide a specific impairment rating
concerning her lower extremities. In an August 1, 2006 report, Dr. Stanley specifically declined
to offer an opinion on permanent impairment. The reports from Dr. Bournigal did not
specifically address whether appellant had additional permanent impairment of her legs due to
her accepted bilateral tarsal tunnel syndrome. The August 5, 2002 schedule award was based on
the review of the Office medical adviser who on March 15, 2002 utilized Table 16-106 and Table
17-377 to rate impairment for sensory loss of the lateral plantar nerve. As noted, this resulted in
an impairment of four percent to both lower extremities. Although appellant provided numerous
reports diagnosing tarsal tunnel syndrome and other conditions, she did not provide any medical
report providing an impairment rating in accordance with the A.M.A., Guides. In determining
whether an employment-related condition has caused a permanent impairment to a schedule
member of the body, the Office uses the A.M.A., Guides as the uniform standard for evaluating

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

5

See id.

6

A.M.A., Guides 482, Table 16-10.

7

Id. at 552, Table 17-37.

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schedule losses. None of the medical evidence submitted by appellant provides a basis for
finding greater impairment pursuant to the A.M.A., Guides.
At the oral hearing on January 12, 2007, appellant contended that she had additional
impairment due to neuropathy. However, this was not addressed in a rationalized medical
opinion by any of her attending physicians. The reports from Dr. Stanley and Dr. Bournigal also
diagnosed conditions not accepted by the Office.8 These reports do not support appellant’s claim
for an increased schedule award. As noted, neither of these physicians provided an opinion
consistent with the A.M.A., Guides, supporting a greater degree of permanent impairment
attributable to appellant’s accepted bilateral tarsal tunnel syndrome. The Board finds that
appellant has not established that she is entitled to an increased schedule award.
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
had more than four percent permanent impairment of both the right and left lower extremities,
for which she received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the March 27, 2007 and September 6, 2006
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: January 23, 2008
Washington, DC

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

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
8

To the extent that appellant alleges impairment due to a condition not accepted as employment related, the
Board notes that schedule awards are only payable where the claimant sustains a permanent impairment of a listed
member of the body due to an employment injury. See Denise L. Crouch, 57 ECAB ___ (Docket No. 04-1905,
issued October 21, 2005). See Jaja K. Asaramo, 55 ECAB 200 (2004) (where an employee claims that a condition
not accepted or approved by the Office was due to an employment injury, he or she bears the burden of proof to
establish that the condition is causally related to the employment injury).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Williamstown, NJ, Employer
__________________________________________

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Appearances:
Michael D. Overman, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0596
Issued: August 19, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 9, 2016 appellant, through counsel, filed a timely appeal of a September 3,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of the case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish an
exacerbation of his preexisting emotional condition due to his November 26, 2014 employment
1

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

5 U.S.C. § 8101 et seq.

incident; and (2) whether appellant sustained any physical condition as a result of his
November 26, 2014 employment incident.
FACTUAL HISTORY
On November 26, 2014 appellant, then a 50-year-old letter carrier, filed a traumatic
injury claim (Form CA-1) alleging that, on that date, the front left tire broke off his postal
vehicle. He asserted that his nerves were bad and his back, shoulder, hands, and body jolted
when the tire broke off.
Appellant sought treatment at the emergency room on November 26, 2014 and received a
diagnosis of neck pain and low back pain. He reported that he had a tire blowout in his mail
truck while he was driving, and he sustained back and left-sided neck pain. Appellant noted that
he was wearing his seat belt and denied headache, hitting his head, or loss of consciousness. He
also denied prior psychiatric history. Appellant did not sustain abrasions, contusions, or
neurological symptoms including paresthesias. The emergency room notes were signed by
Dr. Neelesh Parikh, an osteopath, who noted that appellant was anxious. On November 26, 2014
appellant also underwent x-rays of his lumbosacral spine, which were normal while cervical
x-rays demonstrated possible muscle spasm.
The employing establishment provided appellant with an authorization for examination
and/or treatment (Form CA-16) on November 26, 2014. Dr. Michael J. Attanasio, an osteopath,
completed this form and described appellant’s history of driving his postal vehicle when the front
left tire broke off. He indicated that appellant had a preexisting history of injury and listed his
finding of cervical and lumbosacral injury.
In support of his claim, appellant submitted notes from Dr. Attanasio dated December 4,
2014 diagnosing a sprain and right carpal tunnel syndrome. Dr. Attanasio found that appellant
was totally disabled and recommended a psychiatric evaluation.
In a letter dated December 12, 2014, OWCP requested additional factual and medical
evidence in support of appellant’s traumatic injury claim and allowed 30 days for a response.
On December 17, 2014 Dr. Attanasio referred appellant for chiropractic treatment three
times a week with Dr. Matthew Hershman, a chiropractor. Dr. Hershman examined appellant on
December 17, 2014 and relayed appellant’s description of the left front axle break in his postal
vehicle which caused it to stop immediately. Appellant noted that he was jostled around in the
vehicle, although he was wearing his seat belt and driving slowly. He reported neck pain, right
shoulder, arm, and elbow pain as well as mid-back and low back pain. Appellant noted a prior
motor vehicle accident on January 13, 2014. Dr. Hershman diagnosed cervical and lumbar
strains, but indicated that no diagnostic tests were performed.
Dr. Samuel A. Bobrow, a clinical psychologist, completed a report on January 5, 2015.
He noted appellant’s employment incident on November 26, 2014 when a tire on his postal
vehicle malfunctioned and his vehicle stopped abruptly. Dr. Bobrow noted that appellant
reported that a supervisor had told him that this was the third time in a year that a postal vehicle
had exhibited this problem. Appellant was quite shaken and very anxious. He felt that his

2

supervisors did not take his concerns seriously. Appellant described his symptoms of daily
headaches, cognitive difficulties, appetite disturbance, sleep disturbance, and fear of driving. He
reported recurrent thoughts of the accident and dwelled on the lack of caring of his supervisors.
Appellant reported that his supervisor yelled at him, ignored him for an hour, and minimized the
accident in his report. He alleged that the postmaster referred to him as “the number one sissy
boy.”
Dr. Bobrow noted that appellant had been involved in three previous nonwork-related
motor vehicle accidents in 2001, 2004, and January 2014. Appellant reported injuries to his
neck, back, and head in all previous accidents. He sought psychological treatment after the 2001
and 2004 accidents. Dr. Bobrow diagnosed post-traumatic stress disorder (PTSD) and
postconcussion syndrome exacerbated by the November 26, 2014 motor vehicle accident. He
opined that, as a result of appellant’s most recent motor vehicle accident, appellant’s emotional
difficulties had increased to the point that appellant was afraid to drive, that he had frequent
severe headaches, memory and concentration difficulties, appetite disturbance, sleep disturbance,
recurrent thoughts and worries about the accident and how his supervisors treated him, depressed
mood, increased irritability, and anxiety.
Dr. Attanasio completed an attending physician’s report (Form CA-20) on January 6,
2015 diagnosing cervical and lumbar sprain/strain. He checked a box marked “yes” that
appellant’s condition was due to his employment activity.
In a report dated January 12, 2015, Dr. Attanasio described appellant’s November 26,
2014 motor vehicle incident and noted appellant’s report of symptoms, including increased
lumbosacral and cervical pain, thoracic spine spasm, and numbness and paresthesias in the right
hand, daily headaches, and right hip pain. He noted that appellant had significant prior injuries
and had exacerbated chronic medical issues. Dr. Attanasio diagnosed severe exacerbation of
anxiety issues including tremulousness, nightmares, insomnia, difficulty concentrating, feelings
of nervousness, and fear of driving. He also diagnosed cervical sprain/strain with right upper
extremity radiculopathy, lumbosacral sprain/strain, carpal tunnel syndrome exacerbation, and
daily headaches. Dr. Attanasio opined that appellant was currently totally disabled due to his
uncontrolled anxiety symptoms.
On January 15, 2015 OWCP requested that appellant answer a factual questionnaire and
submit additional medical evidence regarding the conditions diagnosed by Dr. Bobrow.
Appellant responded on February 12, 2015. He described the events of November 26, 2014 as a
malfunction of the left tire of his vehicle. This caused appellant’s body to jolt and tense. He
described his conditions of nervousness, muscle spasms, and tension. Appellant listed his
previous medical conditions as cervical, thoracic, and lumbar sprain/strains, headaches, anxiety,
cognitive disorder, PTSD, and carpal tunnel syndrome. He noted having prior treatment for
PTSD, cognitive disorder, and anxiety issues sustained from past motor vehicle accidents.
Dr. Attanasio completed a report on February 8, 2015 diagnosing headaches, anxiety, and
PTSD. He noted that appellant was in a moving vehicle which had a tire malfunction, which led
to an unexpected hard stop causing a forward and backward whiplash motion of appellant’s body
and musculoskeletal injuries. Dr. Attanasio also opined that appellant’s headaches increased due
to a whiplash motion when appellant’s postal vehicle stopped. He described increased muscle

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tension in anticipation including an extreme grip on the wheel which had led to increased muscle
spasms and tension in the cervical and thoracic spines. Dr. Attanasio found that with bilateral
gripping of the wheel appellant exhibited right upper extremity pain characteristic of neuralgia
and an exacerbation of carpal tunnel syndrome.
By decision dated March 25, 2015, OWCP denied appellant’s traumatic injury claim
finding that he had not submitted rationalized medical evidence establishing that his claimed
medical conditions were due to his accepted employment incident.
Counsel requested an oral hearing from OWCP’s Branch of Hearings and Review on
April 7, 2015. He provided an April 24, 2015 report from Dr. Bobrow who repeated his earlier
history and description of symptoms. Dr. Bobrow opined that appellant’s PTSD was
exacerbated by the November 26, 2014 work incident and noted that appellant had a history of
three prior motor vehicle accidents followed by emotional difficulties as well as psychological
treatment. Before November 26, 2014, appellant was able to work and was not fearful when
driving. Dr. Bobrow found that, after November 26, 2014, appellant became so fearful of
driving his mail truck that he stopped work. After treatment from Dr. Bobrow, appellant was
able to return to driving his truck with work limitations of not delivering mail on major streets.
Dr. Bobrow noted that appellant’s fearfulness was increased by an incident when he lost braking
in his mail truck and when a coworker had the same type of accident in another mail truck.
Dr. Attanasio, in a June 29, 2015 report, noted the history of the November 26, 2014
motor vehicle accident and described the mechanism of whiplash. He opined that appellant
experienced this mechanism and that his symptoms after the incident were consistent.
Dr. Attanasio noted that, when the November 26, 2014 accident occurred without warning,
appellant gripped the wheel tightly and his body was thrown forward with his arms forced into
the steering wheel. He asserted that this caused inflammation in the transverse ligament of the
wrist and potential tendinosis of the flexor tendons which could compress the medial nerve.
Dr. Attanasio stated that appellant had preexisting carpal tunnel syndrome which was aggravated
by the accident with increased pain and numbness. He opined that the further inflammation
would cause carpal tunnel compression. Dr. Attanasio also addressed appellant’s anxiety. He
opined that appellant had PTSD, which he defined as a mental health condition triggered by a
terrifying event. Dr. Attanasio found that the broken wheel was a terrifying event and described
appellant’s symptoms of nightmares, constant thoughts of the event, elevated heart rate, sweaty
palms, and constant nervousness. He also opined that appellant’s chronic headaches were
exacerbated in frequency and intensity after the accident. Dr. Attanasio found that appellant’s
increased muscle tension in the neck as a result of the accident resulted in increased tension on
the posterior occiput leading to a lower threshold for headaches. He diagnosed cervical
sprain/strain, carpal tunnel syndrome, tension-type headache, and PTSD. Dr. Attanasio opined
that appellant’s November 26, 2014 accident caused or exacerbated these conditions.
On January 14, 2015 Dr. Leon I. Rosenberg, a Board-certified psychiatrist, described
appellant’s history noting that in 2001 his vehicle was rear-ended, which caused back, neck, and
head injuries with loss of consciousness. Appellant received psychiatric treatment for depression
after the 2001 accident. He believed that he had full remission or near full remission after the
2001 accident. Appellant had a very minor accident in 2004 at the same intersection.
Dr. Rosenberg also noted a January 24, 2014 motor vehicle accident when appellant was again

4

rear-ended on an icy road. Appellant indicated that he was driving a heavy truck which
sustained little damage. He further asserted that he took the brunt of that accident and that
rescuers had difficulty removing him from the truck. Appellant missed three to four weeks of
work due to the January 2014 accident and reported continuing depression through June 2014.
He also mentioned numbness of his hands, possible carpal tunnel syndrome, memory problems,
and visual field defect.
Dr. Rosenberg described the November 26, 2014 employment incident and indicated that
this caused appellant’s vehicle to suddenly stop which jolted appellant. Appellant asserted that
his nerves were shot with multiple motor vehicle accidents. He also reported headaches, sleep
disturbance, fear of driving, neck and shoulder pain, muscle spasm in his back, and carpal tunnel
syndrome. Appellant attributed his fear of driving to both the January and November 2014
accidents as well as another motor vehicle accident. Dr. Rosenberg applied the criteria of PTSD
and found that appellant had experienced events that involved threat of serious injury, that his
response involved intense fear in all three motor vehicle accidents in 2001, 2004, and 2014, that
he had recurrent and intrusive distressing recollections, that he experienced recurrent distressing
dreams, that he had intense psychological distress when he saw an accident or heard noises, and
that he made efforts to avoid thoughts, feelings, or conversations associated with the trauma as
well as activities, places, or people that would arouse recollections of the trauma.
Appellant also reported diminished interest in significant activities, feelings of
detachment, irritability, difficulty concentrating, hypervigilance, and exaggerated startle
response. Dr. Rosenberg noted that when he had previously examined appellant in June 2014
appellant had a major depressive episode. He noted that appellant had ongoing irritability and
depression on October 20, 2014. Dr. Rosenberg diagnosed residual anxiety and depression from
the 2001 and 2004 accidents, major depressive disorder and PTSD from January and
November 2014 motor vehicle accidents as well as generalized anxiety disorder from the
November 2014 motor vehicle accident. He opined that appellant’s present symptoms of
anxiety, irritability, and depression should be viewed as a result of both the January 2014 motor
vehicle accident and the November 2014 motor vehicle accident.
Appellant testified at the July 8, 2015 oral hearing. He described his postal vehicle and
noted that he was required to drive as a postal carrier. On November 26, 2014 appellant was
driving his vehicle down an incline when it abruptly stopped tossing him around within the
vehicle. He was thrown forward against the seat belt impacting his neck, head, arms, and hands.
Appellant returned to the employing establishment and later a friend drove him to an emergency
room due to pain in his neck, shoulders, back, and hip. He noted that his current symptoms were
tingling in the fingers of his right hand as well weakness in his right arm, shoulder, and neck.
Appellant also reported tingling in two fingers on the left. He testified that following the
November 24, 2014 work incident he became very anxious and nervous. Appellant also had
difficulty breathing. He reported continuing symptoms of anxiety while driving and near misses
while delivering mail. Appellant also noted flashbacks in his sleep and dreams about the
accident. He indicated that he had been rear-ended in 2001, 2004, and 2014, but that none of
these accidents were work related although two were on the way to work. Appellant sustained
head, back, and hand injuries from these accidents. Following the January 2014 accident he had
back spasms and nervousness. Appellant underwent psychiatric treatment for depression and
anxiety and missed four weeks of work.

5

After the November 24, 2014 work incident, appellant stopped work for eight weeks and
returned in January 2015 to light-duty letter carrier work avoiding heavy bags and heavy traffic.
After 30 days, he returned to full duty. Appellant was currently receiving medication for pain,
inflammation, anxiety, and muscle spasms. He testified that he was driving 20 miles per hour
when his November 24, 2014 accident occurred.
In a July 16, 2015 report, Dr. Scott M. Fried, an osteopath, described appellant’s job
duties and his November 26, 2014 motor vehicle accident. He noted that appellant was thrown
forward, backward, and sideways while seat belted. Dr. Fried mentioned appellant’s motor
vehicle accidents in 2001, 2004, and January 2014. He noted that appellant continued to work
his regular duties after these events prior and up to his November 26, 2014 work incident. After
the November 26, 2014 work incident appellant had severe pain in his neck, with numbness and
tingling in his hands, and pain radiating from the neck down his arm to his hands. Dr. Fried also
described appellant’s posterior occipital nerve pain and headaches since the November 26, 2014
accident described as consistent with brachial plexus headaches which were disabling. He also
noted appellant’s forgetfulness, decreased ability to concentrate, as well as anxiety, and PTSD
especially when driving. Dr. Fried reviewed appellant’s prior medical records including negative
bilateral wrist x-rays, a January 31, 2014 MRI scan of the cervical spine, which showed disc
bulging at C5-6 and C6-7, the November 26, 2014 MRI scan of the cervical spine, and a note
dated April 18, 2014 diagnosing bilateral carpal tunnel syndrome as well as a positive
electromyogram on April 1, 2014. He provided examination findings and diagnosed cervical
strain and sprain with brachial plexus injury due to the November 26, 2014 work accident.
Dr. Fried opined that appellant’s preexisting symptoms were severely aggravated, exacerbated,
and worsened by the work accident. He also diagnosed PTSD due to ongoing pain from the
employment incident. Dr. Fried recommended modified duty.
Appellant provided notes dated April 28, June 20, August 18, September 23, October 20,
December 3, and 30, 2014 and February 23 and May 5, 2015 from Dr. Lawrence P. Clinton, a
Board-certified psychiatrist, who noted treating appellant for the January 23, 2014 accident with
resulting PTSD, and adjustment disorder with anxiety and depression. Dr. Clinton indicated that
appellant’s conditions after the January 23, 2014 incident included anxiety, fear, and difficulty
driving as well as carpal tunnel syndrome and chronic neck pain. He noted appellant’s
November 26, 2014 work accident continued to add to his problems from the January 2014
accident. Dr. Clinton diagnosed major anxiety.
Dr. Elliot L. Ames, an osteopath, examined appellant on April 18, 2014 due to pain,
numbness, and tingling in his hands. He determined that appellant’s symptoms began after the
January 23, 2014 automobile accident. Dr. Ames diagnosed bilateral carpal tunnel syndrome.
Dr. Jack P. Dimarco, a Board-certified physiatrist, examined appellant on
November 3, 2014. He described appellant’s 2001 and 2004 motor vehicle accidents and
reviewed medical records from appellant’s January 2014 motor vehicle accident as well as his
statements. Appellant had reported that his vehicle was almost at a stop when he was hit from
behind. He believed that his head hit either the window or the partition, and indicated that he
had developed head pain, neck pain, upper, and lower back pain. Appellant received treatment
for carpal tunnel syndrome and reported a history of anxiety and depression. Dr. Dimarco
diagnosed cervical and lumbar strain as a result of the January 23, 2014 motor vehicle accident.

6

He opined that appellant’s carpal tunnel syndrome was not due to this motor vehicle accident,
but implicated the type of work that appellant performed. On examination, Dr. Dimarco found
no motor deficits, and no muscle spasm. He stated that appellant had reached maximum medical
improvement and could return to full-duty work. Dr. Dimarco opined that the objective findings
on examination did not correlate well with appellant’s subjective complaints.
By decision dated September 3, 2015, OWCP’s hearing representative denied appellant’s
emotional condition claim finding that he had not provided medical records regarding his prior
treatment for a preexisting emotional condition. She also noted that Drs. Bobrow and Clinton
failed to discuss the significance of nonwork-related factors in appellant’s current emotional
condition. The hearing representative noted that Drs. Attanasio and Fried were not psychiatrists,
and found that these reports had diminished probative value. She found that Dr. Rosenberg had
not provided medical reasoning in support of his opinion that appellant’s emotional condition
was attributable to both 2014 motor vehicle accidents. The hearing representative found that the
reports supporting these conditions were not based on a complete medical background, nor did
they describe in detail appellant’s 2001, 2004, or January 2014 automobile accidents. She also
noted that appellant did not provide the requested medical record detailing his treatment due to
his nonemployment-related automobile accidents.
LEGAL PRECEDENT -- ISSUE 1
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,3 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA. There are situations where an injury or
illness has some connection with the employment but nevertheless does not come within
coverage under FECA.4 When an employee experiences emotional stress in carrying out his or
her employment duties and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from his or her emotional reaction to a special assignment or other requirement imposed
by the employing establishment or by the nature of the work.5 In contrast, a disabling condition
resulting from an employee’s feelings of job insecurity per se is not sufficient to constitute a
personal injury sustained in the performance of duty within the meaning of FECA. Thus
disability is not covered when it results from an employee’s fear of a reduction-in-force. Nor is
disability covered when it results from such factors as an employee’s frustration in not being
permitted to work in a particular environment or to hold a particular position.6
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employing establishment rather than the regular
3

28 ECAB 125 (1976).

4

See Robert W. Johns, 51 ECAB 136 (1999).

5

Supra note 3.

6

Id.

7

or specially assigned work duties of the employee and are not covered under FECA.7 Where the
evidence demonstrates that the employing establishment either erred or acted abusively in
discharging its administrative or personnel responsibilities, such action will be considered a
compensable employment factor.8 A claimant must support his or her allegations with probative
and reliable evidence. Personal perceptions alone are insufficient to establish an employmentrelated emotional condition.9
A medical report is of limited probative value on a given medical question if it is
unsupported by medical rationale.10 Medical rationale includes a physician’s detailed opinion on
the issue of whether these is a causal relationship between the claimant’s diagnosed condition
and the implicated employment activity. The opinion of the physician must be based on a
complete factual and medical background of the claim, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and specific employment activity or factors identified by the
claimant.11
ANALYSIS -- ISSUE 1
The Board finds that appellant had not met his burden of proof to establish an
exacerbation of his preexisting emotional condition due to the November 26, 2014 employment
incident.
Appellant attributed an exacerbation of his emotional condition to his November 26,
2014 motor vehicle accident which occurred in the performance of duty. This accident occurred
as part of appellant’s regular assigned duties and is a compensable work factor under Cutler.
Appellant also mentioned other events which he felt contributed to his ongoing emotional
condition including the lack of caring by his supervisors. He also reported that his supervisor
yelled at him, ignored him for an hour and minimized the accident in his report. Appellant
alleged that the postmaster referred to him as “the number one sissy boy.” However, he has
submitted no evidence corroborating that these incidents occurred as alleged. Verbal altercations
and difficult relationships with supervisors may constitute factors of employment when
sufficiently detailed and supported by the record.
Since the case of Thomas D. McEuen,12 his burden includes the production of
corroborating evidence of managerial error or abuse in an administrative or personnel matter.
7

Charles D. Edwards, 55 ECAB 258 (2004).

8

Kim Nguyen, 53 ECAB 127 (2001).
42 ECAB 566 (1991).
9

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon.,

Roger Williams, 52 ECAB 468 (2001).

10

T.F., 58 ECAB 128 (2006).

11

A.D., 58 ECAB 149 (2006).

12

McEuen, supra note 8.

8

Perceived difficulties in the workplace are insufficient to give rise to compensability under
FECA. Appellant must submit supporting factual evidence verifying that the implicated work
situations or incidents occurred as alleged. Verbal altercations and difficult relationships with
supervisors may constitute factors of employment when sufficiently detailed and supported by
the record.13 Appellant has submitted no such evidence and has not substantiated these
allegations as compensable factors of employment.
As appellant has established a compensable factor of employment in regard to his
November 26, 2014 work-related automobile accident, the medical evidence must establish that
the event caused or contributed to his diagnosed conditions of PTSD, depression, and anxiety.
Drs. Bobrow, Rosenberg, and Clinton diagnosed PTSD as well as other emotional conditions and
opined that appellant’s emotional conditions were exacerbated by the November 26, 2014
employment incident. Dr. Bobrow indicated that prior to November 26, 2014 appellant was able
to work and was not fearful when driving his mail truck. He found that after November 26, 2014
appellant became so fearful of driving his mail truck that he stopped work. However, the Board
notes that Dr. Bobrow also indicated that other employment actions caused or contributed to
appellant’s condition. As Dr. Bobrow did not provide an opinion that the accepted factor was
sufficient to result in the exacerbation alone, his report does not establish appellant’s claim.
Dr. Rosenberg opined that appellant’s present symptoms of anxiety, irritability, and
depression should be viewed as a result of both the January 2014 motor vehicle accident and the
November 2014 work-related motor vehicle accident. He did not explain why and how the
November 2014 motor vehicle accident would aggravate appellant’s underlying condition and
did not indicate whether this aggravation was permanent or temporary.
Dr. Clinton noted appellant’s November 26, 2014 work-related motor vehicle accident
and indicated that this continued to add to his problems from the January 2014 accident
diagnosing major anxiety.
The Board finds that these reports are not sufficiently well reasoned to explain how and
why appellant’s preexisting emotional condition would be either temporarily or permanently
aggravated by his November 26, 2014 automobile accident. None of the physicians offered a
clear, detailed opinion of how this automobile accident would result in an aggravation of
appellant’s diagnosed emotional condition.
LEGAL PRECEDENT -- ISSUE 2
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative and substantial evidence,
including the fact that the individual is an “employee of the United States” within the meaning of
FECA and that the claim was timely filed within the applicable time limitation period of FECA,
that an injury was sustained in the performance of duty as alleged and that any disability or
specific condition for which compensation is claimed is causally related to the employment

13

See Joe M. Hagewood, 56 ECAB 479 (2005).

9

injury.14 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated upon a traumatic injury or an occupational disease.15
OWCP defines a traumatic injury as, “[A] condition of the body caused by a specific
event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time and place of occurrence and member or function of the body affected.”16 To determine
whether a federal employee has sustained a traumatic injury in the performance of duty, it must
first be determined whether a “fact of injury” has been established. First the employee must
submit sufficient evidence to establish that he and she actually experienced the employment
incident at the time, place, and in the manner alleged.17 Second, the employee must submit
sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.18
A medical report is of limited probative value on a given medical question if it is
unsupported by medical rationale.19 Medical rationale includes a physician’s detailed opinion on
the issue of whether these is a causal relationship between the claimant’s diagnosed condition
and the implicated employment activity. The opinion of the physician must be based on a
complete factual and medical background of the claim, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and specific employment activity or factors identified by the
claimant.20
ANALYSIS -- ISSUE 2
The Board finds that appellant has failed to submit the necessary rationalized medical
opinion evidence based on a complete factual background to establish a new condition or
aggravation of underlying conditions as a result of the accepted November 24, 2014 automobile
accident.
The record establishes that, prior to November 24, 2014, appellant had diagnosed
conditions including bilateral carpal tunnel syndrome, cervical, and lumbar strains. Dr. Clinton
opined that the objective findings on physical examination did not correlate well with appellant’s
subjective complaints prior to the November 24, 2014 automobile accident.

14

Kathryn Haggerty, 45 ECAB 383, 388 (1994); Elaine Pendleton, 41 ECAB 1143 (1989).

15

Victor J. Woodhams, 41 ECAB 345 (1989).

16

20 C.F.R. § 10.5(ee).

17

John J. Carlone, 41 ECAB 354 (1989).

18

J.Z., 58 ECAB 529 (2007).

19

T.F., 58 ECAB 128 (2006).

20

A.D., 58 ECAB 149 (2006).

10

Dr. Attanasio diagnosed cervical sprain/strain with right upper extremity radiculopathy,
lumbosacral sprain/strain, carpal tunnel syndrome exacerbation, and daily headaches and
attributed these conditions to the November 26, 2014 motor vehicle accident. He also opined
that appellant’s headaches increased due to a whiplash motion when his postal vehicle stopped.
Dr. Attanasio described increased muscle tension in anticipation including an extreme grip on the
wheel, which had led to increased muscle spasms and tension in the cervical and thoracic spines.
He found that with bilateral gripping of the wheel appellant exhibited right upper extremity pain
characteristic of neuralgia and an exacerbation of carpal tunnel syndrome. The Board finds that
as Dr. Attanasio did not provide a complete and detailed history of injury including appellant’s
prior diagnoses due to his three previous motor vehicle accidents, his reports are not of sufficient
probative value to establish appellant’s claim for an aggravation of his underlying condition due
to his accepted employment injury.
While Dr. Fried reviewed some of appellant’s prior medical records and opined that
appellant’s preexisting symptoms became severely aggravated, exacerbated, and worsened by the
work accident in November 2014, he did not clearly explain how or why this aggravation
occurred. A detailed and complete narrative is necessary given the complexity of appellant’s
claims, the number of preexisting conditions and that lack of objective findings regarding these
conditions both before and after the November 2014 employment incident.
On appeal, counsel asserts that appellant established a prima facie claim and that OWCP
was obligated to further develop the medical evidence. However, where a prima facie claim is
established, there is no requirement that OWCP make a medical referral.21 Here, the record
supports that OWCP in its letters and decisions advised appellant of the type of evidence needed
to establish the claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not submitted the necessary medical opinion evidence
based on a complete and accurate factual background supported by objective findings to
establish either a temporary or permanent aggravation of his emotional condition due to the
November 26, 2014 employment incident. The Board further finds that appellant has not
established a physical condition as a result of his November 26, 2014 employment-related motor
vehicle accident.

21

See Robert P. Bourgeois, 45 ECAB 745 (1994); C.S., Docket No. 06-2128 (issued February 6, 2007).

11

ORDER
IT IS HEREBY ORDERED THAT the September 3, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 19, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
U.S. COAST GUARD, ENVIRONMENTAL
LOGISTICS CENTER, Baltimore, MD,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 10-1736
Issued: May 2, 2011

Case Submitted on the Record

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

JURISDICTION
On June 17, 2010 appellant, through his attorney, filed a timely appeal of the April 27,
2010 merit decision of the Office of Workers’ Compensation Programs terminating his
compensation benefits. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation benefits
effective October 2, 2009 on the grounds that he no longer had any residuals or disability
causally related to his December 4, 1996 employment injury.
On appeal, counsel contends that the Office’s April 27, 2010 decision is contrary to fact
and law.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
The Office accepted that on December 4, 1996 appellant, then a 26-year-old supply
technician, sustained cervical and lumbar strains when he slipped on a floor that was being
stripped of wax and fell onto his back.2 He stopped work on the date of injury. The Office paid
appellant appropriate wage-loss compensation and medical benefits.
By letter dated November 15, 2007, the Office requested that appellant submit an updated
medical report from an attending physician regarding his employment-related injuries.
In a December 30, 2008 medical report, Dr. Deborah A. Dorvil, an attending Boardcertified family practitioner, advised that appellant had chronic back pain, muscle spasms and
paresthesias in his arm from a cerebrovascular accident (CVA). These conditions were
permanent and disabling. Dr. Dorvil advised that it was unlikely that appellant would be able to
perform any type of vocational duties in his current medical state.
On April 10, 2009 the Office referred appellant, together with a statement of accepted
facts and medical record, to Dr. James A. Maultsby, a Board-certified orthopedic surgeon, for a
second opinion medical examination to determine the nature and extent of his employmentrelated injuries. In an April 28, 2009 report, Dr. Maultsby found that appellant had resolved
postlumbosacral and cervical sprains. Appellant also had lumbar degenerative joint disease
based on previous x-ray examinations. Dr. Maultsby advised that appellant had no residuals or
disability related to his December 4, 1996 employment injuries. Appellant could return to
sedentary or moderate work that did not involve too much heavy activity as his health was very
poor due to weight loss of unexplained etiology or a lack of teeth. He also could not return to
work without restrictions due to his unfit condition resulting from inactivity, probable alcoholism
and chronic illness of a pulmonary nature and not due to his December 4, 1996 employment
injuries. Dr. Maultsby concluded that appellant did not require any further medical treatment.
In an addendum to his April 28, 2009 report, Dr. Maultsby reviewed the history of head
injuries sustained by appellant prior to the December 4, 1996 employment incident. He also
reviewed the results of an electromyogram which showed L5-S1 radiculopathies of an old nature.
Dr. Maultsby advised that appellant’s gait dysfunction suggested an old brain injury. He noted
that a previous magnetic resonance imaging (MRI) scan revealed a brain injury. A functional
capacity evaluation listed that appellant was capable of performing sedentary activity.
Dr. Maultsby advised that he had no residual problems of his December 4, 1996 employment
injuries. He concluded that there was no impairment to appellant’s lower or upper extremities as
a result of his accepted injuries.
On May 26, 2009 the Office found a conflict in the medical opinion evidence between
Dr. Dorvil and Dr. Maultsby as to whether appellant had any residuals and disability causally
2

Appellant filed a traumatic injury claim (Form CA-1) for his December 4, 1996 employment injuries which was
assigned File No. xxxxxx745. Prior to the instant claim, he filed a Form CA-1 assigned File No. xxxxxx768 for
lower back and upper chest contusions he sustained when he fell off a stack of boxes on May 20, 1996. The Office
accepted appellant’s claim for low back contusion. It combined the claim assigned File No. xxxxxx745 and the
claim assigned File No. xxxxxx768 into a master claim assigned File No. xxxxxx745.

2

related to his December 4, 1996 employment injuries. On July 8, 2009 it referred appellant,
together with a statement of accepted facts and medical record, to Dr. Robert W. Elkins, a Boardcertified orthopedic surgeon, for an impartial medical examination.
In a July 22, 2009 report, Dr. Elkins obtained a history of the April 30 and December 4,
1996 employment injuries and medical treatment. Appellant complained of bad migraine
headaches twice a week, being most severe once a week and dizziness when he walked. He
experienced low back and left leg pain radiating to his buttocks, worst on the left than right, after
walking one block. Dr. Elkins felt an electricity sensation down his leg which fell dead and
asleep. Appellant had a breathing problem and a possible heart problem. On physical
examination, Dr. Elkins listed normal range of motion findings regarding appellant’s shoulders,
elbows, wrists, hands and lower extremities. Appellant had limited range of motion regarding
his neck and lower back with pain. Dr. Elkins diagnosed a chronic neurologic problem with an
old frontal lobe contusion; chronic neck and back pain; multiple injuries prior to December 1996;
a significant injury in April 1996; mild symptom magnification and pain accentuation; and
memory loss by history. He concluded that the employment-related cervical and lumbar sprains
had resolved. Dr. Elkins stated that appellant’s problems went way beyond the accepted
conditions, with a prolonged history of neck and back pain, a frontal lobe contusion, neurologic
changes such as, athetoid movements and history of memory loss, disc bulges, spondylosis,
stenosis and brain injury. He advised that the resolved employment-related neck and back
conditions did not prevent appellant from returning to his usual job. However, due to prior
problems such as chronic neck and back pain and neurologic symptomatology, Dr. Elkins
recommended that appellant perform sedentary work eight hours a day with physical restrictions.
He concluded that appellant had reached maximum medical improvement and did not require
any further medical treatment for his accepted neck and back conditions.
On August 25, 2009 the Office issued a notice of proposed termination of appellant’s
wage-loss compensation and medical benefits based on the medical opinions of Dr. Maultsby
and Dr. Elkins.
In a September 3, 2009 letter, appellant disagreed with the proposed action.
In reports dated December 17, 2008 and September 24, 2009, Dr. Dorvil advised that
appellant sustained new conditions which included depression, CVA, hemorrhoids, back pain,
muscle spasms, lipoma, migraine headaches and left arm numbness.
In an October 2, 2009 decision, the Office terminated appellant’s compensation for wageloss and medical benefits with regards to his accepted employment-related injuries, effective that
date. It found that the medical evidence established that he had no employment-related residuals.
On October 11, 2009 appellant, requested a telephonic oral hearing with an Office
hearing representative.
In a report dated October 29, 2009, Dr. Dorvil advised that appellant had elevated blood
pressure, a new condition. Appellant’s cervical spondylosis without myelopathy, spinal stenosis
in the cervical region, radiculopathy, dizziness, muscular spasms, numbness of the left arm, left
muscular atrophy, migraine headaches, osteoarthritis, depression and disc herniation were

3

unchanged. Dr. Dorvil further advised that he was totally disabled for work due to his accepted
employment-related injuries and deficits from his past CVA.
In an April 27, 2010 decision, an Office hearing representative affirmed the October 2,
2009 termination decision, finding that Dr. Elkins’ medical opinion constituted the weight of the
medical evidence. He also found that it was unclear as to why the Office found a conflict in
medical opinion as there was no medical evidence of record contrary to Dr. Maultsby’s opinion
that appellant no longer had any residuals or disability due to his December 4, 1996 employment
injuries.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation. After it has been determined that an employee has disability
causally related to his employment, the Office may not terminate compensation without
establishing that the disability had ceased or that it was no longer related to the employment.3
The Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.4 Furthermore, the right to medical
benefits for an accepted condition is not limited to the period of entitlement for disability. To
terminate authorization for medical treatment, the Office must establish that a claimant no longer
has residuals of an employment-related condition that requires further medical treatment.5
ANALYSIS
The Board finds that the Office met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits as of October 2, 2009 on the grounds that he had no residuals
or disability of the accepted December 4, 1996 employment-related cervical and lumbar strains.
However, it does not appear that such a referral was appropriate and the opinions of
Dr. Dorvil and Dr. Maultsby were not in conflict regarding the accepted conditions. The Board
notes that the Office found a conflict in the medical opinion as to whether appellant had any
residuals or disability causally related to his accepted conditions under 5 U.S.C. § 8123(a) and
the referral was made as a referee examination.6 As Dr. Dorvil did not provide any that she did
not attribute appellant’s continuing conditions and disability to the December 4, 1996
employment injuries.
The Board finds that the referral to Dr. Elkins was as a second opinion physician. Even
though the report of Dr. Elkins is not entitled to the special weight afforded to the opinion of
3

Jason C. Armstrong, 40 ECAB 907 (1989).

4

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

5

Mary A. Lowe, 52 ECAB 223 (2001); Wiley Richey, 49 ECAB 166 (1997).

6

5 U.S.C. § 8123(a). This section provides if there is a disagreement between a physician making the
examination for the United States and a physician of the employee, a third physician shall be appointed to make an
examination.

4

referee specialist resolving a conflict of medical opinion, his report can still be considered for its
own intrinsic value and can still constitute the weight of the medical evidence.7 In this case,
Dr. Elkins provided a well-rationalized medical opinion as to whether appellant had any
employment-related residuals and disability. He provided an accurate history of injury and
detailed essentially normal findings on physical examination with the exception of limited range
of motion regarding appellant’s neck and lower back. Based on his examination findings,
Dr. Elkins concluded that the accepted December 4, 1996 employment conditions had resolved.
He attributed appellant’s current chronic neurologic problems and neck and back pain to a
history of injuries that occurred prior to December 4, 1996. Dr. Elkins concluded that appellant
was not totally disabled, that further medical treatment was not necessitated and that, although he
could not perform his regular work duties as a supply clerk, appellant could perform sedentary
work eight hours a day.
The weight of the medical opinion is determined by the opportunity for and thoroughness
of examination, the accuracy and completeness of the physician’s knowledge of the facts and,
medical history, the care of analysis manifested and the medical rationale expressed in support of
the physician’s opinion.8 The Board finds that Dr. Elkins’ report represents the weight of the
medical evidence and the Office properly relied on his report in terminating appellant’s
compensation benefits on October 2, 2009. Dr. Elkins fully discussed the history of injury and
related his comprehensive examination findings in support of his opinion that appellant had no
residuals or disability causally related to his accepted cervical and lumbar strains.
Dr. Dorvil’s October 29, 2009 report found that appellant was totally disabled for work
due to his accepted employment injuries and deficits from his past CVA. As the CVA was not
accepted by the Office as employment related, appellant had the burden of proof to establish
causal relationship,9 which was not done. Moreover, Dr. Dorvil did not provide any medical
rationale explaining how the accepted employment injuries caused or contributed to his total
disability. Therefore, her opinion on causal relationship is not sufficient to establish that
appellant’s continuing disability was due to his December 4, 1996 employment-related cervical
and lumbar conditions.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation benefits
effective October 2, 2009 on the grounds that he no longer had any residuals or disability
causally related to his accepted employment-related cervical and lumbar strains.

7

Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

8

See Ann C. Leanza, 48 ECAB 115 (1996).

9

See Jaja K. Asaramo, 55 ECAB 104 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the April 27, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: May 2, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
GENERAL SERVICES ADMINISTRATION,
FEDERAL SUPPLY DEPOT, Fort Worth, TX,
Employer
__________________________________________

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

Docket No. 09-568
Issued: September 17, 2009

Case Submitted on the Record

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

JURISDICTION
On December 23, 2008 appellant filed a timely appeal from the November 14, 2008
schedule award decision of the Office of Workers’ Compensation Programs for an additional
three percent left arm impairment. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a 13 percent permanent impairment to his
left arm.
FACTUAL HISTORY
The Office accepted that appellant sustained bilateral carpal tunnel syndrome and
bilateral ulnar nerve lesion as a result of his federal employment as a supply technician. On
April 17, 2003 it granted a schedule award for one percent impairment of the right arm. In a
report dated August 18, 2004, Dr. John Sklar, a physiatrist, provided results on examination and
found that appellant had bilateral wrist extension of 45 degrees. An Office medical adviser
reviewed the medical evidence and, in an October 26, 2004 report, found that appellant had a

three percent permanent impairment to each arm, based on loss of wrist extension. By decision
dated November 15, 2004, the Office issued a schedule award for an additional two percent right
arm permanent impairment.
In a report dated July 10, 2007, Dr. Patrick Donovan, a physiatrist, provided a history and
results on examination. He found appellant had residual weakness and sensory loss in the left
arm primarily in a median and ulnar nerve distribution. Dr. Donovan stated that appellant had
reached maximum medical improvement. As to the degree of permanent impairment, he
identified Table 16-15 of the American Medical Association, Guides to the Evaluation of
Permanent Impairment. For the median nerve, Dr. Donovan graded the motor impairment at 10
percent of the maximum 10 percent (for a 1 percent arm impairment), and for the sensory
impairment 10 percent of the maximum 39 percent (a 4 percent arm impairment). The ulnar
nerve impairment was also graded at 10 percent of the maximum 35 percent for motor deficit (4
percent arm impairment) and maximum 7 percent for sensory deficit (a 1 percent arm
impairment). Dr. Donovan concluded that appellant had a 10 percent left arm impairment based
on sensory and motor deficits.
An Office medical adviser reviewed the medical evidence and concurred with
Dr. Donovan that a 10 percent left arm impairment was established based on motor and sensory
deficit. The medical adviser also noted that earlier reports had found a 3 percent impairment for
loss of wrist extension motion to the left arm, which should be combined with the 10 percent for
a total 13 percent left arm permanent impairment. The medical adviser then deducted 3 percent
for a 10 percent arm impairment.1
By decision dated June 18, 2008, the Office issued a schedule award for a 10 percent
permanent impairment to the left arm. The period of the award was 31.20 weeks from
July 10, 2007.
Appellant requested a hearing before an Office hearing representative. By decision dated
November 6, 2008, the hearing representative stated that, based on a schedule award calculator
in the record, appellant had only been paid for a seven percent impairment pursuant to the
June 18, 2008 decision. Since appellant had a 13 percent permanent left arm impairment, the
Office should pay a schedule award for an additional 6 percent.
The record contains a November 7, 2008 Office memorandum indicating that the
schedule award calculator showing a 7 percent permanent impairment was incorrect, and
appellant had been paid a schedule award for a 10 percent left arm permanent impairment.
By decision dated November 14, 2008, the Office issued a schedule award for an
additional three percent left arm permanent impairment. The period of the award was 9.36
weeks from February 19, 2008.

1

The medical adviser appeared to believe appellant had already received a schedule award for a three percent left
arm impairment, but the record indicates that he had received schedule awards for a three percent right arm
impairment.

2

LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act provides that, if there is
permanent disability involving the loss or loss of use of a member or function of the body, the
claimant is entitled to a schedule award for the permanent impairment of the scheduled member
or function.2 Neither the Act nor the regulations specify the manner in which the percentage of
impairment for a schedule award shall be determined. For consistent results and to ensure equal
justice for all claimants the Office has adopted the A.M.A., Guides as the uniform standard
applicable to all claimants.3
ANALYSIS
The Office determined that appellant had a 13 percent left arm permanent impairment.
With respect to sensory and motor deficits, Table 16-15 provides the maximum impairment for
the identified nerves.4 Once the nerve and the maximum impairment is identified, the
impairment is then graded using Table 16-10 (sensory deficit) and Table 16-11 (motor deficit).5
Dr. Donovan, the attending physiatrist, identified the median and ulnar nerves and properly
graded the impairments in accord with the A.M.A., Guides. The maximum impairment for
median nerve sensory deficit is 39 percent, and 10 percent of 39 percent is 3.9 percent, rounded
to 4. For median nerve motor deficit, the maximum arm impairment is 10 percent, therefore 10
percent of 10 percent is a 1 percent impairment. The maximum for ulnar motor deficit is 35
percent, and grading the impairment at 10 percent results in 3.5 percent impairment, rounded to
4.6 As to ulnar sensory deficit, the maximum is 7 percent, and therefore a 10 percent grade
results in 1 percent arm impairment. Combining the 5 percent sensory deficit impairment with
the 5 percent motor deficit impairments results in a 10 percent arm impairment.
In addition, the record indicates that Dr. Sklar had reported 45 degrees of wrist extension.
Under Figure 16-28, this results in a three percent arm impairment.7 An Office medical adviser
had opined in an October 26, 2004 report that appellant had a three percent left arm impairment,
but the Office did not issue a schedule award for the left arm at that time. An Office medical
adviser advised in a March 3, 2008 report that the total left arm impairment was 13 percent,
based on 10 percent for motor and sensory deficit and 3 percent for loss of range of motion.
There is no probative evidence of a greater impairment.

2

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
3

A. George Lampo, 45 ECAB 441 (1994).

4

A.M.A., Guides 492, Table 16-15.

5

Id. at 482, Table 16-10, and 484, Table 16-11.

6

As the Office’s procedure manual explains with respect to hearing loss, the number is rounded up from .50 and
down from .49. Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4(b)(2)
(September 1994).
7

A.M.A., Guides 467, Figure 16-28.

3

On appeal, appellant does not argue that the evidence shows more than a 13 percent
permanent arm impairment. He contends that the Office failed to provide him a schedule award
for an additional six percent impairment, as directed by the hearing representative. The Board
notes, however, that the Office hearing representative had based her decision on a finding that
appellant had only received a schedule award for seven percent left arm permanent impairment.
The record does contain a February 19, 2008 “scheduled award calculator” that shows a seven
percent arm impairment, or 21.84 weeks of compensation.8 The record indicates, however, that
the Office issued a payment dated March 21, 2008 of $20,158.63 for a schedule award from
July 10, 2007 to February 13, 2008. This represented 31.20 weeks of compensation, or 10
percent of the maximum 312 weeks of compensation. In addition, there is a corrected schedule
award calculator dated March 14, 2008 showing a 10 percent permanent impairment. The
June 18, 2008 final decision also showed a 10 percent permanent impairment for 31.20 weeks of
compensation awarded from July 10, 2007 to February 13, 2008. The record supports that
appellant was paid for a 10 percent left arm permanent impairment totaling 31.20 weeks of
compensation. The November 14, 2008 decision properly awarded appellant an additional three
percent, or 9.36 weeks of compensation. Appellant was compensated for the impairment to his
left arm.
CONCLUSION
The Board finds that the medical evidence does not establish more than 13 percent left
arm permanent impairment.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 14 and June 18, 2008 are affirmed.
Issued: September 17, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board
8

The maximum number of weeks of compensation for an arm impairment is 312 weeks according to 5 U.S.C.
§ 8107. Seven percent of 312 is 21.84 weeks.

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

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

Docket No. 13-576
Issued: August 1, 2013

Case Submitted on the Record

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

JURISDICTION
On January 15, 2013 appellant filed a timely appeal from the November 28, 2012 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 sustained a recurrence of disability causally related to her
accepted employment injury.
FACTUAL HISTORY
On May 7, 2002 appellant, a 46-year-old mail handler, injured her right shoulder in the
performance of duty. OWCP accepted her claim for right shoulder impingement and adhesive
capsulitis. Appellant underwent surgery and received compensation for wage loss on the
periodic rolls.
1

5 U.S.C. § 8101 et seq.

Appellant returned to modified duty. She received a schedule award for an 11 percent
impairment of her right upper extremity. In 2007 appellant accepted a full-time permanent
modified job assignment performing a variety of services.
Appellant filed a claim alleging that she sustained a recurrence of total disability on
March 19 and 20, 2012. She explained that she was still having problems with her right shoulder
and had to have shots with physical therapy.
Dr. John C. Gordon, the attending Board-certified orthopedic surgeon, saw appellant on
March 19, 2012. This was more than two years after her last visit. Appellant complained of pain
in her right shoulder area and trouble sleeping at night. “It is waking her up and she can’t get
comfortable.” X-rays from October 2011 showed some acromioclavicular joint arthritis.
Dr. Gordon physically examined appellant and found that she had impingement and adhesive
capsulitis with significant restriction in motion. She had full extension to 90 degrees and -80
degrees of internal rotation. Abduction was 130 degrees and adduction was very tight at midline.
Dr. Gordon gave appellant an injection and put her on a course of physical therapy, which he
hoped would resolve her problem. He released her to return to limited duty on March 21, 2012.
Appellant received physical therapy that same day, March 19, 2012. She was to continue
with physical therapy three times a week for four to six weeks.
Appellant also filed a claim for wage loss on May 21 and 22, 2012. She indicated that
this was at her doctor’s request.
Dr. Gordon saw appellant again on May 21, 2012. Appellant was continuing to have
problems with her right shoulder. She had tenderness over the acromioclavicular joint and over
the shoulder. Appellant was also having increased restriction in motion. She was -10 degrees of
external rotation and -80 degrees of internal rotation. Appellant’s abduction was tight at 110
degrees and her adduction was tight before midline. “Unfortunately I think her range of motion
has worsened more over the last six weeks.” Dr. Gordon gave appellant an injection. If
appellant did not get better over the next couple of weeks, manipulation to break up the adhesion
might be indicated. Dr. Gordon advised that appellant could return to work on May 23, 2012.
On August 27, 2012 OWCP denied appellant’s recurrence claim. It found that the
evidence of record did not substantiate a material change or worsening of her accepted medical
conditions.
On November 28, 2012 an OWCP hearing representative reviewed the written record and
noted that the injections Dr. Gordon provided on March 19 and May 21, 2012 were not
authorized by OWCP. Further, Dr. Gordon did not provide an opinion that appellant was
disabled for work for the two-day periods due to the effects of the injections. Therefore, the
hearing representative affirmed the denial of compensation.
Appellant argues that she and her doctor have submitted all the paperwork multiple times.
She states that her doctor put her out of work on March 19 and 20 and May 21 and 22, 2012 due
to procedures needed on her right shoulder. Appellant explains that her four days of missed
work were due to the worsening of her condition.

2

LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.2 “Disability” means the incapacity, because
of an employment injury, to earn the wages the employee was receiving at the time of injury. It
may be partial or total.3
A “recurrence of disability” means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.4
When an employee, disabled from the job he or she held when injured on account of
employment-related residuals, returns to a light-duty position, or the medical evidence of record
establishes that he or she can perform the light-duty position, the employee has the burden of
establishing by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and show that he or she cannot perform such light duty. As part of his or her burden,
the employee must show a change in the nature and extent of the injury-related condition or a
change in the nature and extent of the light-duty job requirements.5
ANALYSIS
Appellant was working limited duty when she claimed wage loss for several days in
March and May 2012. She therefore has the burden to establish that her work stoppage was a
result of a change in the nature and extent of her injury-related condition.6
Appellant saw her orthopedic surgeon, Dr. Gordon, on March 19, 2012 because she was
experiencing pain in her right shoulder and trouble sleeping at night. Her shoulder condition was
waking her and she could not get comfortable. X-rays from October 2011 showed some
acromioclavicular joint arthritis.
OWCP did not accept appellant’s claim for arthritis and Dr. Gordon did not explain
whether it was the arthritis that was causing appellant’s complaints, or whether it was an
objective change in the nature and extent of the accepted right shoulder impingement and
adhesive capsulitis. The medical evidence does not establish appellant’s claim of recurrence.
Dr. Gordon did not state that he was taking appellant off work on March 19 and 20, 2012
because of an injection made necessary by a documented worsening of her accepted right
shoulder impingement and adhesive capsulitis.
2

5 U.S.C. § 8102(a).

3

20 C.F.R. § 10.5(f).

4

Id. at § 10.5(x).

5

Terry R. Hedman, 38 ECAB 222 (1986).

6

Appellant does not contend that her total disability on the dates claimed was a result of a change in the nature
and extent of her limited-duty job requirements.

3

Over the next six weeks, as Dr. Gordon reported, appellant’s range of motion worsened.
He did not say why. Again, Dr. Gordon did not attribute the need for an injection to a worsening
of the accepted right shoulder impingement and adhesive capsulitis. He did not explain why,
nearly three years after her last appointment, appellant was now having trouble with her right
shoulder such that she needed injections and physical therapy.
It is not enough that appellant’s discomfort in March and May 2012 was to the same
shoulder she injured in 2002. The medical opinion evidence must soundly explain how the four
days of disability for which appellant seeks compensation was a result of an objective change in
the nature and extent of her right shoulder impingement and adhesive capsulitis. As Dr. Gordon
did not directly address this issue, the Board finds that appellant has not met her burden of proof.
Accordingly, the Board will affirm OWCP’s November 28, 2012 decision.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained a recurrence of disability causally related to her accepted employment injury. The
medical evidence does not directly address the issue raised by her claim for compensation.
ORDER
IT IS HEREBY ORDERED THAT the November 28, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 1, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4