United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.E., 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. 17-0594
Issued: September 14, 2017

Case Submitted on the Record

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

JURISDICTION
On January 23, 2017 appellant filed a timely appeal from an August 4, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision of July 8, 2016 to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of this claim.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of his case pursuant to 5 U.S.C. § 8128(a).

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the August 4, 2016 decision. Since the
Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the Board
may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57 ECAB
126 (2005).

FACTUAL HISTORY
On January 7, 2014 appellant, then a 57-year-old medical director, filed a traumatic
injury claim (Form CA-1) alleging that on January 2, 2014 he slipped on ice and fell onto his
right side when leaving work. He stopped work on January 3, 2014. OWCP accepted
appellant’s claim for right distal radius and ulnar fracture.
On February 7, 2014 appellant underwent authorized right wrist open reduction internal
fixation surgery.
In a March 10, 2014 telephone call note (Form CA-110), OWCP confirmed with the
employing establishment that appellant elected continuation of pay from January 3 to
February 16, 2014 and currently wanted to stay on sick leave instead of receiving benefits
through OWCP.
Appellant continued to receive medical treatment and undergo physical therapy. In a
July 31, 2014 work capacity evaluation form, Dr. Edmund Rowland, a Board-certified
orthopedic hand surgeon, diagnosed right distal radius and ulnar fracture. He checked a box
marked “yes” that appellant was capable of performing his usual job and indicated that he would
need time off to continue physical therapy. Dr. Rowland noted that appellant had reached
maximum medical improvement (MMI).
By decision dated August 6, 2014, OWCP terminated appellant’s entitlement to wageloss compensation benefits. It found that because the medical evidence of record established that
he was capable of returning to full duty, appellant was no longer disabled from his date-of-injury
position.
On April 23, 2015 appellant filed a claim for schedule award (Form CA-7).
In support of appellant’s request for a schedule award, OWCP received a November 20,
2014 report from Dr. David L. Reinhard, Board-certified in physical medicine and rehabilitation.
Dr. Reinhard described that on January 2, 2014 appellant fractured his right distal radius as a
result of a work-related fall and underwent closed reduction surgery. He reviewed appellant’s
history and conducted an examination. Dr. Reinhard observed restricted range of motion (ROM)
of the right wrist with some pain with palpation over the distal radius. He also reported
decreased right hand grip strength and some atrophy in the right forearm. Dr. Reinhard
diagnosed comminuted distal right radius fracture, status post open reduction and internal
fixation, and status post slip-and-fall injury at work leading to the right distal radius and ulnar
styloid fractures. He determined that, according to the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (2009), Table
15-32, page 473, using the ROM method of impairment rating, appellant had zero percent
impairment for 60 degrees of flexion of the right wrist, three percent impairment for 40 degrees
of right wrist extension, two percent impairment for 13 degrees of right radial deviation, and two
percent impairment for the 23 degrees of ulnar deviation for a total of seven percent right upper
extremity permanent impairment. Dr. Reinhard noted that this impairment was also equivalent
to four percent whole person impairment.
Dr. Morley Slutsky, an OWCP medical adviser Board-certified in occupational medicine,
reviewed appellant’s claim including Dr. Reinhard’s impairment rating in a May 13, 2015 report.
2

He disagreed with Dr. Reinhard’s findings and explained that Dr. Reinhard used the ROM
method with invalid ROM measurements, but the preferred method was the diagnosis-based
impairment (DBI) method. Dr. Slutsky reported that appellant was a class one diagnosis for
right wrist fracture. He assigned net adjustment factors of one for functional history, one for
physical examination, and two for clinical studies, for a total net adjustment calculation of one.
Dr. Slutsky concluded that appellant had a total of four percent right upper extremity permanent
impairment. He indicated that appellant had a date of MMI of November 20, 2014.
By letter dated June 22, 2015, OWCP informed appellant that it was enclosing a copy of
Dr. Slutsky’s May 13, 2015 report and requested additional evidence to support his schedule
award claim. Appellant was afforded 30 days to submit the additional evidence.
In a letter dated July 15, 2015, appellant asserted that OWCP lowered his disability rating
from seven percent to four percent by dismissing parts of Dr. Reinhard’s report as “invalid.” He
noted that OWCP did not examine him in order to obtain the data that would be considered
“valid” and in order to make a valid and accurate rating. Appellant alleged that it was
inappropriate and indicated that he had been a medical doctor for 34 years, as well as a medical
director for 28 years. He also reported that Dr. Reinhard clearly stated that he used ROM
methodology because of his significant loss of ROM.
On July 23, 2015 OWCP granted appellant a schedule award for four percent permanent
impairment of the right upper extremity. The award ran for 12.48 weeks for the period
November 20, 2014 through February 15, 2015.
Appellant continued to submit various medical reports to OWCP. In a May 18, 2016
report, Dr. Rowland noted the January 2, 2014 employment injury and described the medical
treatment appellant received. He related that appellant complained of wrist pain with occasional
crepitation and loss of motion. Upon examination of appellant’s right shoulder, Dr. Rowland
observed full ROM with no crepitation and no acromioclavicular (AC) instability. Examination
of appellant’s elbow showed ulnohumeral crepitation, full flexion, and extension to within 5 or
10 degrees. Dr. Rowland indicated that examination of appellant’s right wrist revealed a loss of
10 or 20 degrees of flexion, extension, and tenosynovial crepitation over the flexors. He
diagnosed complication of internal fixation device, pain in the right elbow, right wrist, and right
shoulder, and primary osteoarthritis of the right elbow. Dr. Rowland provided x-ray examination
reports of appellant’s right upper extremity.
According to a May 24, 2016 telephone memorandum call (Form CA-110), OWCP
discussed appellant’s July 23, 2015 schedule award decision with appellant and advised that, if
he disagreed with the schedule award, he needed to exercise one of the afforded appeal rights.
On May 24, 2016 OWCP received information that appellant had retired from federal
service.
On July 7, 2016 OWCP received a June 24, 2016 report by Dr. David Schneider, a
Board-certified orthopedic surgeon, which noted appellant’s continued problems with his right
elbow. Dr. Schneider noted that appellant had a previous radial head fracture from 1978 and
described the continued treatment that appellant had received. He indicated that, following
appellant’s work injury, appellant suffered a wrist fracture, but his elbow also became
problematic. Dr. Schneider provided examination findings and diagnosed tear of the right rotator
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cuff, post-traumatic osteoarthritis of the right elbow, and symptomatic right elbow.
recommended a right total elbow arthroplasty.

He

On July 7, 2016 appellant requested authorization for elbow surgery. OWCP granted
authorization for appellant’s surgery.
On July 8, 2016 OWCP expanded acceptance of appellant’s claim to include aggravation
of right elbow osteoarthritis and ulnar humeral joint derangement and unspecified injury of the
right rotator cuff muscle or tendon.
On July 13, 2016 appellant requested reconsideration of the July 23, 2015 schedule award
decision. He asserted that OWCP’s medical adviser decided to downgrade his impairment and
had not adequately measured his ROM. Appellant also alleged that the medical adviser only
evaluated parts of his impairment. He described that his elbow had deteriorated to the extent that
it was useless and he had to undergo surgery. Appellant further asserted that his shoulder was
likely to continue to deteriorate because of lack of stability caused by the loss of musculature and
strength.
Appellant submitted a July 6, 2016 right shoulder magnetic resonance imaging scan
report by Dr. Paul Hsieh, a Board-certified diagnostic radiologist, who noted mild supraspinatus
tendinosis, with no rotator cuff tear, faint, ill-defined marrow edema in the mild humerus head,
and degenerative changes at the AC joint and glenohumeral joint.
OWCP also received a July 11, 2016 operative report, which indicated that appellant had
undergone elbow surgery by Dr. Rowland.
By decision dated August 4, 2016, OWCP denied further merit review of appellant’s
claim. It found that appellant’s reconsideration request failed to raise a substantive legal
question and he failed to submit relevant and pertinent new evidence sufficient to warrant merit
review pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.3
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.4 If OWCP chooses to grant reconsideration, it reopens and reviews the
case on its merits.5 If the request is timely but fails to meet at least one of the requirements for
3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
5

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

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reconsideration, OWCP will deny the request for reconsideration without reopening the case for
review on the merits.6
Even if the term reconsideration is used, when a claimant is not attempting to show error
in the prior schedule award decision and submits medical evidence regarding an increased
permanent impairment at a date subsequent to the prior schedule award decision, it should be
considered a claim for an increased schedule award.7
ANALYSIS
The Board has duly considered the matter and finds that this case is not in posture for
decision. On July 23, 2015 OWCP granted appellant a schedule award for four percent
permanent impairment of the right upper extremity based on the May 13, 2015 report of
OWCP’s medical adviser.
Following this decision, appellant submitted a May 18, 2016 report by Dr. Rowland and a
June 24, 2016 report by Dr. Schneider. These reports addressed appellant’s continued problems
with his right elbow and described the medical treatment that appellant had received. On July 8,
2016 OWCP accepted the additional conditions of aggravation of right elbow osteoarthritis and
ulnar humeral joint derangement and unspecified injury of the right rotator cuff muscle or
tendon.
By letter received by OWCP on July 13, 2016, appellant requested reconsideration of the
July 23, 2015 schedule award decision. He asserted that OWCP’s medical examiner had
improperly dismissed his treating physician’s impairment rating based on ROM findings and had
only considered portions of his impairment rating. Appellant also alleged that his right upper
extremity impairment had worsened.
By decision dated August 4, 2016, OWCP declined to reopen appellant’s claim for
consideration of the merits pursuant to 5 U.S.C. § 8128(a). The Board finds, however, that
appellant was not seeking reconsideration of the previous schedule award determination. Rather,
appellant submitted new evidence and argument showing increased impairment of the right
upper extremity.8
The Board has held that a claimant may request a schedule award or increased schedule
award at any time based on evidence of new exposure or medical evidence showing the
progression of an employment-related condition resulting in permanent impairment or increased
impairment.9 OWCP’s procedures further provide that if a claimant is seeking an increased
schedule award due to increased impairment and/or additional exposure, but not contesting the
decision or prior award, this should not be treated as a reconsideration request and OWCP should

6

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

7

See B.K., 59 ECAB 228 (2007).

8

J.F., Docket No. 13-112 (issued November 6, 2013).

9

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Matthews, 44 ECAB 765 (1993).

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develop the issue of entitlement to an additional award.10 As the evidence of record establishes
that OWCP had accepted additional right upper extremity conditions following the July 23, 2015
schedule award and the medical evidence reflects greater impairment, appellant’s July 13, 2016
request for reconsideration should have been treated as a request for an additional schedule
award. Accordingly, the Board finds that OWCP improperly denied appellant’s request for
reconsideration and failed to issue an appropriate decision regarding appellant’s claim for an
increased schedule award.11 On remand, OWCP should issue a de novo decision regarding
appellant’s claim for an increased schedule award.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the August 4, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: September 14, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10

The Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b)
(February 2016).
11

D.S., Docket No. 17-0407 (issued May 24, 2017); E.T., Docket No. 13-1691 (issued September 25, 2013).

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

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

Docket No. 07-613
Issued: July 23, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 29, 2006 appellant filed a timely appeal from a November 2, 2006 decision
of the Office of Workers’ Compensation Programs finding that she had not established an injury
on September 18, 2006. 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 met her burden of proof to establish that she sustained
an injury in the performance of duty on September 18, 2006.
FACTUAL HISTORY
On September 22, 2006 appellant, then a 46-year-old casual carrier, filed a traumatic
injury claim alleging that on September 18, 2006 she injured her back, right thigh and leg while
picking up and delivering a tub of mail at a school. The employing establishment controverted
the claim. Dalton J. Davis, appellant’s supervisor, noted that appellant did not inform him of the
injury until September 22, 2006. Mr. Davis also noted that she worked the next two days

following the alleged September 18, 2006 incident. The employing establishment noted that
appellant’s employment was terminated on September 20, 2006.
In a letter dated October 2, 2006, the Office informed appellant of the medical evidence
needed to develop her claim, including a physician’s opinion supported by a medical explanation
as to how the reported work incident caused or aggravated the claimed injury.
In a September 21, 2006 statement, Roy N. Taylor, Sr. related that appellant was being
trained by him on September 16, 18 and 19, 2006. He noted that on September 18, 2006
appellant “took a tub of mail into a school.” After returning to the truck they continued to
deliver mail. Mr. Taylor stated that appellant at no time mentioned “anything about her back or
any other part of her body.”
In a September 21, 2006 duty status report (Form CA-17), Dr. Charles K. Speller, a
treating physician, diagnosed thoracic lumbar pain with lower extremity radiculopathy. He noted
that the injury occurred on September 18, 2006 as a result of appellant “jumping down off [the]
postal truck [and] picking up [a] tub of mail.” Dr. Speller indicated that she was temporarily
totally disabled.
In a statement dated September 21, 2006, appellant related that she injured her back and
right leg while picking up mail while she was in training on September 18, 2006. While
delivering mail to a school, she asked Mr. Taylor why a dolly was not used for delivery. On
September 20, 2006 appellant informed Sheila M. Smith, manager, customer services, that she
needed to see a physician on September 20, 2006. Dr. Speller was unable to see appellant on the
morning of September 20, 2006 so an appointment was scheduled for that afternoon. Appellant
was informed by the employing establishment that she had to report to work at 3:30 p.m. so she
was unable to make the medical appointment. She noted that she ran into traffic while going to
work so she called the employing establishment to let them “know it was to[o] late for me to
keep going.” At this point, appellant related that Ms. Smith informed her that she would be
terminated if she took off September 21, 2006.
In a September 25, 2006 email, Ms. Smith related that appellant, who had been separated
from employment on September 20, 2006, came into the employing establishment on
September 21, 2006 requesting CA-1 and CA-16 forms and an OWCP form to file an injury
claim. In an attached September 20, 2006 email, Ms. Smith recorded that appellant stated that
she was a casual employee on September 18, 2006. She noted that appellant “was only able to
work four hours on” September 20, 2006 “and unable to work any hours” on
September 21, 2006. Ms. Smith informed appellant in a telephone conversation that she “was
terminat[ing] her employment due to attendance.”
On October 11, 2006 the Office received a September 21, 2006 Texas workers’
compensation work status report, a September 21, 2006 report and a September 27, 2006
attending physician’s report (Form CA-20) from Dr. Speller, who noted that appellant sustained
a job injury and was totally disabled for the period September 21 to October 21, 2006.
Dr. Speller diagnosed traumatic thoracic lumbar radiculopathy. He checked “yes” to the
question that he believed the condition had been caused or aggravated by an employment
activity. On September 21, 2006 Dr. Speller noted that appellant injured her right leg and lower

2

back on September 18, 2006 while “jumping in and out of the truck and hand carrying tubs of
mail.” Physical findings included pain radiating down into the thigh and knee and pain on
palpation of the lumbar spine.
On October 24, 2006 appellant submitted a September 21, 2006 work status report, a
September 21, 2006 narrative report and a September 28, 2006 physician’s statement by
Dr. Speller and her October 10, 2006 response to questions by the Office. Dr. Speller diagnosed
thoracic lumbar radiculopathy and noted that appellant was totally disabled from working. He
indicated that appellant was totally disabled for at least six months. Dr. Speller noted that
appellant was in training when she injured herself while dropping a large tub of mail at a school.
Appellant immediately felt pain in her right thigh/leg and a pulling sensation in her mid to lower
back when returning to the postal vehicle. Dr. Speller stated that appellant informed her
employer the next day that she was seeking medical care. Appellant sought treatment with him
on September 21, 2006 due to her increased symptoms. Dr. Speller related that she was
informed that she was terminated when she returned to work following her medical appointment
with him. He diagnosed traumatic thoraco-lumbar radiculopathy. A physical examination
revealed pain upon “[de]eep palpation of the thoraco-lumbar spine” and pain radiating down the
right leg below the knee. Lumbar rotation was noted as 20/20 with pain.
By decision dated November 2, 2006, the Office denied appellant’s claim on the grounds
that she had not submitted sufficient evidence to establish that she sustained an injury at the time,
place and in the manner alleged.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act1 provides for payment of compensation for
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 is regarded as the
equivalent of the coverage formula commonly found in workers’ compensation laws, namely,
arising out of and in the course of employment.3
An employee seeking benefits under the Act has the burden of proof to establish the
essential elements of his claim including the fact that the individual is an employee of the United
States within the meaning of the Act, that the claim was timely filed within the applicable time
limitation period of the Act, that an injury was sustained in the performance of duty as alleged
and that any disability or specific condition for which compensation is claimed is causally related
to the employment injury.4

1

5 U.S.C. §§ 8101 et seq.

2

5 U.S.C. § 8102(a).

3

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Charles E. McAndrews, 55 ECAB 711 (2004); see also Bernard D. Blum,
1 ECAB 1 (1947).
4

Robert Broome, 55 ECAB 339 (2004); see also Elaine Pendleton, 40 ECAB 1143 (1989).

3

In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established.5 Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.6 An injury
does not have to be confirmed by eyewitnesses in order to establish that an employee sustained
an injury in the performance of duty, but the employee’s statements must be consistent with the
surrounding facts and circumstances and his or her subsequent course of action.7 An employee
has not met her burden of proof in establishing the occurrence of an injury when there are such
inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.8 Such
circumstances as late notification of injury, lack of confirmation of injury, continuing to work
without apparent difficulty following the alleged injury and failure to obtain medical treatment
may, if otherwise unexplained, cast doubt on an employee’s statements in determining whether a
prima facie case has been established.9 However, an employee’s statement regarding the
occurrence of an employment incident is of great probative force and will stand unless refuted by
strong or persuasive evidence.10
ANALYSIS
Appellant alleged that she sustained a traumatic injury to her back and right leg on
September 18, 2006 while picking up and delivering a tub of mail at a school. The Office denied
her claim after finding that she did not establish that the specific incident occurred at the time,
place and in the manner alleged.
The Board finds that appellant has established the occurrence of the September 18, 2006
employment incident. Appellant alleged that she injured her lower back and leg on
September 18, 2006 picking up and delivering a tub of mail at a school. There is no dispute that
she picked up and delivered a tub of mail to a school on September 18, 2006. When the Office
requested additional information in its October 2, 2006 letter, appellant provided an explanation
in her September 21, 2006 response. Appellant stated that she was in training on September 18,
2006 while delivering mail to a school. She stated that she experienced pain in her leg and back
after returning to the truck. On September 20, 2006 appellant informed Ms. Smith that she
needed to see a physician. Although the employing establishment controverted the claim and
alleged that appellant seemed fine after delivering the tub of mail to the school, the Board finds
that there are no significant discrepancies in appellant’s account of how the claimed incident
occurred. The Board notes that an injury does not have to be confirmed by eyewitnesses in order
5

Barbara R. Middleton, 56 ECAB ___ (Docket No. 05-1026, issued July 22, 2005).

6

See Thomas L. Agee, 56 ECAB ___ (Docket No. 05-335, issued April 19, 2005); Louise F. Garnett, 47 ECAB
639 (1996).
7

See Betty J. Smith, 54 ECAB 174 (2002).

8

Deborah S. Stein, 56 ECAB ___ (Docket No. 04-750, issued April 26, 2005).

9

Linda S. Christian, 46 ECAB 598 (1995).

10

Gregory J. Reser, 57 ECAB ___ (Docket No. 05-1674, issued December 15, 2005).

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to establish that an employee sustained an injury in the performance of duty, but the employee’s
statement must be consistent with the surrounding facts and circumstances and her subsequent
course of action.11 In this case, there are not such inconsistencies in appellant’s statement as to
cast serious doubt upon the validity of the claim. The Board finds that the September 18, 2006
incident occurred at the time, place and in the manner as alleged.
However, the Board finds that appellant did not meet her burden of proof in establishing
a causal relationship between the September 18, 2006 employment incident and her diagnosed
thoracic lumbar radiculopathy. Appellant submitted reports from Dr. Speller providing support
for causal relationship. Dr. Speller’s September 21, 2006 Texas workers’ compensation work
status report noted that appellant sustained a job injury and was totally disabled, but provided no
diagnosis or elaboration on the job injury. In the attending physician’s report, Dr. Speller
diagnosed traumatic thoracic lumbar radiculopathy. He checked “yes” to the question that he
believed the condition had been caused or aggravated by an employment activity. However, the
checking of a box yes in a form report, without additional explanation or rationale, is not
sufficient to establish causal relationship.12 Dr. Speller, in a September 21, 2006 report, noted
that appellant injured her right leg and lower back on September 18, 2006 while “jumping in an
out of the truck and hand carrying tubs of mail.” In the September 21, 2006 narrative report,
Dr. Speller noted that appellant was in training when she injured herself while dropping a large
tub of mail at a school. He noted that she immediately felt pain in her right thigh/leg and a
pulling sensation in her mid to lower back when returning to the postal vehicle. Dr. Speller
diagnosed traumatic thoraco-lumbar radiculopathy. He concluded that appellant’s injury was
causally related to the September 18, 2006 employment incident, based on the history provided.
Dr. Speller’s reports are insufficient to meet appellant’s burden of proof in establishing causal
relationship, because they are not fortified by sufficient rationale or explanation. The Board has
held that a medical opinion not supported by explanation or rationale is of diminished probative
value. Dr. Speller did not explain precisely how appellant’s actions on September 18, 2006
physically caused her traumatic thoraco-lumbar radiculopathy. Accordingly, the Board finds that
Dr. Speller’s reports are insufficiently probative on the issue of causal relationship.
Accordingly, the Board finds that appellant failed to meet her burden of proof in
establishing that she sustained a traumatic injury in the performance of duty because the medical
opinion evidence of record does not establish that appellant’s diagnosed condition is causally
related to the September 18, 2006 employment incident.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof in establishing that she
sustained a traumatic injury in the performance of duty on September 18, 2006.

11

See Betty J. Smith, supra note 7.

12

D.D., 57 ECAB ___ (Docket No. 06-1315, issued September 14, 2006).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 2, 2006 is affirmed as modified.
Issued: July 23, 2007
Washington, DC

David S. Gerson, 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
__________________________________________
A.A., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
REGION VI, Dallas, TX, Employer
__________________________________________

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

Docket No. 08-1769
Issued: February 6, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On June 10, 2008 appellant timely filed an appeal from the Office of Workers’
Compensation Programs’ decision dated April 11, 2008. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has established that she sustained a left ankle injury in the
performance of duty on June 8, 2007.
FACTUAL HISTORY
On June 29, 2007 appellant, then a 48-year-old claims representative, filed a traumatic
injury claim (Form CA-1), alleging that on June 8, 2007 she sustained a left ankle injury after
falling off the stepping stones/curb on her way to the social security district offices. Appellant
submitted an unsigned statement of Mary Apodaca, operations supervisor, dated June 26, 2007,
stating that “[appellant’s] incident happened at the [d]istrict [o]ffice parking lot.”

In support of her claim, appellant submitted an unsigned Urgent Care Patient Encounter
form dated June 25, 2007 prepared by Angela Barney, a physician assistant, detailing treatment
appellant received at the Covent Clinic on June 8, 2007. This form noted that appellant was seen
for left ankle complaints after she twisted her left ankle stepping off a curb. Ms. Barney
identified “sprain/strain of the ankle, unspecified.” She also noted treating appellant’s ankle
condition with an air cast and indicated that appellant was excused from work from Friday,
June 8 to Friday, July 20, 2007.
By letter dated July 18, 2007, the employing establishment controverted appellant’s claim
alleging that the medical documentation received was not sufficient to establish appellant’s
claim. Additionally, the employing establishment submitted a statement from Cindy Blair, a
Department of Labor, assigned nurse, asserting that appellant requested to be excused from work
from June 8 until July 20, 2007 because she had a lot of time off built up and wanted to use it.
By letter dated August 7, 2007, the Office notified appellant that the evidence submitted
was insufficient to support her claim. It stated that the evidence did not provide a diagnosis of
any condition resulting from the alleged injury of June 8, 2007 and did not include a physician’s
opinion as to how her injury resulted in the condition diagnosed.
By decision dated September 25, 2007, the Office denied appellant’s claim as the
evidence submitted did not establish that she sustained an injury as defined by the Federal
Employees’ Compensation Act. Although it acknowledged that the evidence established that the
alleged events occurred, there was no medical evidence containing a diagnosis to establish an
injury.
By letter dated October 14, 2007, appellant requested an oral hearing. A telephonic
hearing was conducted February 20, 2008. Appellant testified that the substance of the decision
was incorrect as it mentioned chiropractors and spinal subluxation, yet she never saw a
chiropractor. The hearing representative held the record open for 30 days to allow appellant to
submit competent medical information from a physician.
Appellant submitted a copy of a letter dated February 24, 2008 from Ms. Barney. At the
bottom of this letter, is a hand-written note: “I concur with the above diagnosis/ankle sprain.”
Below this note is an illegible signature, allegedly from a Dr. Patterson.
By decision dated April 11, 2008, the Branch of Hearings and Review affirmed the
September 25, 2007 decision of the Office denying the claim because the evidence failed to
establish that she sustained an employment-related injury.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of their claim including: the individual is an
employee of the United States within the meaning of the Act; the claim was filed within the
applicable time limitation of the Act; an injury was sustained in the performance of duty as
alleged; and, that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury. These are the essential elements of each and every

2

compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.1
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.2 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence. To establish a causal relationship between the condition,
as well as any attendant disability, claimed and the employment event or incident, the employee
must submit rationalized medical opinion evidence, based on a complete factual and medical
background, supporting such a causal relationship.3
Rationalized medical opinion evidence is medical evidence which includes a physician(s)
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature
of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.4 The weight of medical evidence is determined by its reliability, its
probative value, its convincing quality, the care of analysis manifested and the medical rationale
expressed in support of the physician’s opinion.5
ANALYSIS
In the present case, the Office accepted that appellant stepped off an employing
establishment parking lot curb in the performance of duty on June 8, 2007. However, it
concluded the medical evidence of record was insufficient to establish that appellant sustained a
left ankle injury as a result of this incident. While appellant submitted reports from Ms. Barney,
a physician’s assistant, lay individuals such as physician’s assistants, nurses and physical
therapists are not physicians as defined under the Act.6 These reports do not constitute probative
medical evidence and are insufficient to establish a diagnosis of appellant’s condition and do not
support a finding of causal relationship between appellant’s left ankle condition and the accepted
incident.

1

Gary J. Watling, 52 ECAB 357 (2001).

2

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

3

Id.

4

Leslie C. Moore, 52 ECAB 132 (2000).

5

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).
6

David P. Sawchuk, 57 ECAB 316 (2006).

3

Moreover, while allegedly “Dr. Patterson” countersigned a February 24, 2008 note
prepared by Ms. Barney concurring with the diagnosis of ankle strain, there is no discussion
acknowledging that the accepted incident of June 8, 2007 caused or contributed to the diagnosed
condition. The record contains no medical opinion which identifies a history of injury, provides
a diagnosis of appellant’s condition, and explains that the June 8, 2007 incident was the cause of
appellant’s sprained ankle. The Office informed appellant of the deficiencies in the medical
evidence and what was needed to establish her claim. Appellant did not submit medical
evidence from a physician that explained how the accepted incident caused her diagnosed
condition.
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.7
Neither the fact that the condition became apparent during a period of employment nor the belief
that the condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.8 Causal relationship must be substantiated by reasoned medical
opinion evidence, which is appellant’s responsibility to submit.
Appellant has not met her burden of proof in establishing that she sustained a sprained
ankle causally related to factors of her employment.
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
sustained an injury in the performance of duty on June 8, 2007.

7

See Joe T. Williams, 44 ECAB 518, 521 (1993).

8

Id.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 11, 2008 is affirmed.
Issued: February 6, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
U.S. POSTAL SERVICE, ROCHESTER
PROCESSING & DISTRIBUTION CENTER,
Rochester, NY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0970 & Docket
No. 21-0972
Issued: March 3, 2022

Case Submitted on the Record

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

On January 3, 2021 appellant also filed a timely appeal from a November 24, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP) under OWCP File No.
xxxxxx550. The Clerk of the Appellate Boards docketed the appeal as No. 21-0972. On June 10,
2021 appellant filed a timely appeal from a December 29, 2020 merit decision of OWCP under
OWCP File No. xxxxxx896. The Clerk of the Appellate Boards docketed that appeal as No.
21-0970.
With regard to OWCP File No. xxxxxx550, on October 27, 2007 appellant, then a 45-yearold mail processor, filed an occupational disease claim (Form CA-2) alleging that she developed
neck, shoulder, and wrist conditions due to factors of her federal employment, including lifting
trays, pushing containers, and moving mail. She noted that she first became aware of her condition
and its relation to her federal employment on October 27, 2007. OWCP accepted the claim for
right biceps strain and sprain of the shoulder and upper arm. On November 12, 2008 OWCP
expanded the acceptance of appellant’s claim to include right lateral epicondylitis, lesion of the
left ulnar nerve, and bilateral carpal tunnel syndrome.
With regard to OWCP File No. xxxxxx896, on January 3, 2017 appellant, then a 54-yearold mail processor, filed an occupational disease claim (Form CA-2) alleging that she developed

a left wrist condition due to factors of her federal employment, including repetitive fixing and
bagging of the mail. On April 5, 2017 OWCP accepted the claim for left radial styloid
tenosynovitis (de Quervain’s) under OWCP File No. xxxxxx896.
On June 1, 2020 appellant filed claims for compensation (Form CA-7) for a schedule award
under both OWCP File Nos. xxxxxx896 and xxxxx550. By decision dated November 24, 2020,
under OWCP File No. xxxxxx550, OWCP granted appellant a schedule award for seven percent
permanent impairment of her right upper extremity and nine percent permanent impairment of her
left upper extremity. The award ran for 47.76 weeks during the period September 14, 2020 to
August 14, 2021. By decision dated December 29, 2020, under OWCP File No. xxxxx896, OWCP
denied appellant’s schedule award claim, finding that the evidence of record was insufficient to
establish permanent impairment of a scheduled member or function of the body.
The Board has duly considered the matter and finds that these cases are not in posture for
decision.
Under its procedures, OWCP has determined that cases should be administratively
combined where a new injury case is reported for an employee who previously filed an injury
claim for the same part of the body and where correct adjudication depends on frequent crossreferencing between files.1 This will allow OWCP to consider all relevant claim files in developing
these schedule award claims.2
Appellant has claimed schedule awards in two claims, both accepted for injuries to her left
upper extremity. Therefore, for full and fair adjudication, the cases must be remanded to OWCP
to administratively combine OWCP File Nos. xxxxxx896 and xxxxxx550.3 Following this and
other such further development as deemed necessary, OWCP shall issue a de novo decision on
appellant’s schedule award claims.

1

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
2

Id. at Chapter 2.400.8(c)(1); E.J., Docket No. 20-1556 (issued July 27, 2021); V.G., Docket No. 19-0670 (issued
April 30, 2020); L.P., Docket Nos. 18-1558, 18-1568 (issued June 21, 2019); L.S., Docket Nos. 17-1863, 17-1867,
17-1868 (issued April 18, 2018); W.S., Docket No. 15-0969 (issued October 5, 2015); C.C., Docket No. 14-1576
(issued March 9, 2015).
3

Id.

2

IT IS HEREBY ORDERED THAT the November 24 and December 29, 2020 decisions
of the Office of Workers’ Compensation Programs under OWCP File Nos. xxxxxx550 and
xxxxxx896 are set aside and the cases are remanded to OWCP for further proceedings consistent
with this order of the Board.
Issued: March 3, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Renton, WA, Employer
__________________________________________

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

Docket No. 09-580
Issued: September 21, 2009

Case Submitted on the Record

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

JURISDICTION
On November 28, 2008 appellant filed a timely appeal of the October 14, 2008 decision
of the Office of Workers’ Compensation Programs in which a hearing representative affirmed
the June 12, 2008 denial of his claim for compensation. 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 met his burden of proof in establishing that he sustained an
occupational disease in the performance of duty.
FACTUAL HISTORY
On April 29, 2008 appellant, then a 32-year-old federal air marshal, filed an occupational
disease claim alleging that he developed kidney stones and severe abdominal pain on April 24,
2008 on an assigned flight from Seattle, Washington, to Washington, D.C. He did not stop work.

On May 5, 2008 the Office advised appellant of the factual and medical evidence
necessary to establish his claim and allowed him 30 days to submit such evidence. It requested a
comprehensive medical report from a physician describing the cause of appellant’s condition and
whether his employment contributed to it.
Appellant submitted a May 20, 2008 statement, noting that on April 24, 2008 he felt
abdominal pain during his flight and experienced vomiting and urinated blood. Upon the flight’s
arrival in Washington, D.C., an ambulance took him to the hospital. Appellant asserted that he
developed kidney stones, blood in his urine and associated pain while on duty. He denied having
any previous symptoms. Appellant contended that his condition was caused by the pressurized
environment, recycled air and body dehydration from being on an aircraft. He had been exposed
to such conditions since 2002, flying at least 18 days per month. Appellant noted that his kidney
stone condition became symptomatic approximately two hours into the April 24, 2008 flight. He
further noted that his urologist informed him the stones had passed after a computerized
tomography (CT) scan was performed. Appellant also stated that he had no more symptoms and
no further treatment was required.
In an undated statement, Joseph Hirokanak, appellant’s coworker, indicated that he
worked with him on the April 24, 2008 flight. He noted that about two hours into the flight
appellant complained of stomach cramps and told him that he had vomited, and urinated blood.
Mr. Hirokanak stated that they informed the cabin crew and had an ambulance and paramedics
meet them upon arrival to take appellant to the hospital.
On April 24, 2008 Dr. Karan Lotfi, a Board-certified diagnostic radiologist, noted that a
CT scan of appellant’s abdomen and pelvis revealed mild right hydronephrosis with one
millimeter (mm) intrarenal stone and two mm distal ureter stone as well as fatty liver. An
April 25, 2008 hospital report from Dr. Jonathan Gorbach, Board-certified in emergency
medicine, diagnosed ureterolithiasis with severe renal colic. In a May 2, 2008 report, Dr. Robert
Weissman, a Board-certified urologist, diagnosed right urethral stone. He noted that the stone
had passed that day.
In a decision dated June 12, 2008, the Office denied appellant’s claim for compensation
finding that the medical evidence did not establish that the claimed medical condition was
causally related to his work-related exposure.
On June 24, 2008 appellant requested a review of the written record. In a statement of
the same date, he reiterated that on April 24, 2008 he was on temporary duty working as a law
enforcement officer on a flight from Seattle, Washington, to Washington, D.C. Appellant
indicated that his work environment demanded proper hydration. He noted that his job required
sitting for long periods of time without getting out of his seat to stretch. Appellant submitted
reports from the Federal Aviation Administration (FAA) as well as medical literature on the
causes of kidney stones and dehydration of pilots. Additionally, he submitted an excerpt from
the Department of Labor, Handbook for Employing Agency Personnel.1

1

In particular, appellant references Chapter 3-4(b)(3) indicating that “employees in travel status are covered 24
hours a day for all reasonable incidents of their TDY (temporary duty).”

2

In a decision dated October 14, 2008, an Office hearing representative affirmed the
June 12, 2008 decision finding that appellant failed to submit rationalized medical evidence that
established that a diagnosed condition was causally related to the accepted employment factors.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was filed within the applicable time limitation, that an injury was sustained while in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.2
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.3
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.4
ANALYSIS
The record establishes that appellant’s position as a federal air marshal requires frequent
air travel with sitting for long periods of time. He was performing his regular duties on
April 24, 2008 when he became aware of symptoms due to kidney stones. However, he has not
provided sufficient medical evidence to establish that his diagnosed condition is causally related
to his exposure to frequent air travel.
In a report dated May 2, 2008, Dr. Weissman diagnosed right urethral stone and noted
that it had passed that day. However, he did not address whether appellant’s condition was
2

J.E., 59 ECAB ___ (Docket No. 07-814, issued October 2, 2007); Elaine Pendleton, 40 ECAB 1143 (1989).

3

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Roy L. Humphrey, 57 ECAB 238 (2005).

4

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

3

caused or contributed to by his job or whether his employment duties caused or aggravated his
diagnosed condition. The Board has held that medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of
causal relationship.5 Similarly, Dr. Gorbach’s April 25, 2008 report diagnosed uterolithiasis with
severe renal colic. He merely provided a diagnosis and did not address the issue of causal
relationship. This report is also of diminished probative value.6 Dr. Lotfi’s April 24, 2008
radiological report revealed mild right hydronephrosis with intrarenal stone and distal ureter
stone; however, she did not address whether long and sedentary air travel contributed to
appellant’s diagnosed condition. As noted, medical evidence without an opinion on causal
relationship is of diminished probative value.
The record also contains FAA reports and medical literature on the causes of kidney
stones and dehydration of pilots. Although appellant asserted that this literature established a
clear link between air travel and kidney stones, none of the medical evidence of record supports
this assertion or explains the process by which long and sedentary air travel caused or aggravated
his kidney stone condition.7 Therefore, this literature does not meet appellant’s burden of proof.
Consequently, the Board finds that he has not submitted sufficient medical evidence to establish
that air travel caused or aggravated his kidney stone condition.
On appeal, appellant asserts that the employing establishment has not studied the effects
of constant flying, despite the availability of information that would support his claim. He also
asserts that his claim is supported by an FAA report concluding that kidney stones are the most
common abdominal finding among pilots and that the employing establishment does not restrict
the number of hours he must fly. As noted, the issue in this case is medical in nature, whether
the medical evidence establishes that appellant’s air travel caused or aggravated his claimed
kidney stone condition. Appellant has not submitted sufficient medical evidence from his
physician to establish causal relationship. There is no evidence that any physicians reviewed the
medical and scientific literature submitted by him and explained how any such literature would
apply to his claim. Appellant also asserts that he is entitled to compensation as the employing
establishment did not controvert his claim. He further advises that his medical reports were not
written for the purpose of filing this claim. However, appellant has the burden of proof to submit
responsive medical evidence in support of his claim.8

5

K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 13, 2007).

6

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
7

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005) (scientific studies, like medical literature,
have probative value only to the extent they are interpreted by a physician rendering an opinion on causal
relationship). See also D.I., supra note 3 (newspaper clippings, medical texts and excerpts from publications are of
no evidentiary value in establishing the necessary causal relationship as they are of general application and are not
determinative of whether the specific condition claimed was causally related to the particular employment injury
involved).
8

See A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006) (the mere fact that a condition
manifests itself during a period of employment does not raise an inference that there is a causal relationship between
the two).

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Appellant further asserts that he is entitled to compensation as the Department of Labor’s
Handbook for Employing Agency Personnel states that an employee on travel status and on
temporary duty is covered for all medical expenses incurred. However, the Board notes that the
fact that an employee was in travel status at the time a disabling condition manifested itself does
not raise an inference that the condition was causally related to incidents of the employment as
the medical evidence must establish a causal relationship between the condition and factors of
employment.9 As noted, appellant has not submitted such medical evidence.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained an occupational disease in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated October 14 and June 12, 2008 are affirmed.
Issued: September 21, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9

Susan A. Filkins, 57 ECAB 630 (2006).

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Michael E. Groom, Alternate Judge, concurring:
I concur in the holding of the majority that the medical evidence submitted by appellant
lacks sufficient rationale on the issue of causal relationship to establish his kidney stone
condition as causally related to his occupation as a federal air marshal. I write this concurring
opinion to address a matter left unresolved by the Office of Workers’ Compensation Programs.
Under normal circumstances, a CA-16 form is the proper form to be used by the
employing establishment to refer an employee for examination or treatment at the expense of the
Office. It is primarily used when the employee claims a traumatic injury arising from federal
employment.1 There are emergency circumstances; however, under which the Office may
approve payment of medical expenses incurred even if the CA-16 form has not been issued and
the claim is subsequently denied.2 I believe the factual circumstances of this case warrant further
review by the Office to determine if such emergency circumstances were present.
At the time appellant experienced nausea and urinary bleeding, he was not employed in
an office setting. No designated agency official was available to issue a Form CA-16. Rather,
appellant was in the course of his duties as a federal air marshal on a flight between,
Seattle, Washington, and Washington, D.C. After being notified of his complaints, his flight was
met by medical personnel and he was transported to the emergency room at Reston Hospital
outside Washington, D.C. It is apparent that the employer authorized appellant’s transport to the
hospital.
In denying the claim, the Office failed to consider whether emergency circumstances
were present.3 Payment in such claims is to be made on a case-by-case basis. The decision
denying appellant’s claim merely made reference to the diagnostic studies obtained at Reston
Hospital not the circumstances that took him there for treatment. The Office has broad
discretionary authority in the administration of the Federal Employees’ Compensation Act and
must exercise such discretion to achieve the objectives of section 8103.4 Upon return of the
record, the Office should proceed with the development of this issue.

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

1

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Authorizing Examination and Treatment, Chapter
3.300.3(a) (October 1990).
2

Id. at Chapter 3.300.3(a)(3).

3

See Michael L. Malone, 49 ECAB 194 (1997); Thomas W. Keene, 42 ECAB 623 (1991); Val D. Wynn, 40
ECAB 666 (1989).
4

Thomas W. Keene, supra note 3.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.G., Appellant
and
TENNESSEE VALLEY AUTHORITY,
BROWNS FERRY NUCLEAR PLANT,
Decatur, AL, Employer
__________________________________________

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

Docket No. 08-1634
Issued: January 9, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 20, 2008 appellant filed a timely appeal from March 28, 2008 and July 13, 2007
decisions of the Office of Workers’ Compensation Programs’ denying his hearing loss claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over merits of this case.
ISSUES
The issues are: (1) whether appellant filed a timely claim for hearing loss; and
(2) whether appellant’s hearing loss is causally related to his federal employment.
FACTUAL HISTORY
On February 14, 2007 appellant, then a 56-year-old machinist, filed an occupational
disease claim alleging that he sustained bilateral hearing loss due to exposure to hazardous noise
at his federal job. He worked for the employing establishment intermittently from April 2, 1979
to June 8, 1983. Noise surveys where he worked, for four to six hours a day, five days a week,
showed readings of 76 to 94 decibels. The employing establishment provided earplugs.

Between 1971 and 1977 appellant worked at a tool and die company as a machinist and wore
hearing protection. Between 1984 and 1986 he drove a truck. Between 1986 and 2000 appellant
was a wheel operator for a tile company and wore hearing protection. A February 6, 2007
audiogram revealed that appellant had bilateral hearing loss.
On May 9, 2007 the Office requested additional information, including an employment
and noise exposure history, the date appellant first noticed his hearing loss and the date he
realized his hearing loss might be related to his employment. It also requested copies of any
medical reports related to his hearing problem or audiograms.
The employing establishment provided copies of appellant’s first audiogram performed
on April 2, 1979 and his last audiogram on March 25, 1982. An Office medical adviser reviewed
the audiograms on June 6, 2007. He advised that the initial 1979 audiogram revealed a
preexisting moderate to severe high frequency hearing loss which did not show worsening as of
March 25, 1982.
By decision dated July 13, 2007, the Office denied appellant’s claim on the grounds that
it was not timely filed within three years of his last day at his federal employment, June 8, 1983.
Appellant requested reconsideration.
The Office referred appellant, together with a statement of accepted facts, to
Dr. Howard M. Goldberg, a Board-certified otolaryngologist, for an otologic examination and
audiometric testing and an opinion as to the cause of his hearing loss.
In a March 11, 2008 report, Dr. Goldberg provided the results of audiometric testing and
an otologic examination of appellant. He found that appellant had preexisting mid and high
frequency sensorineural hearing loss bilaterally when he began his federal employment and his
hearing loss did not worsen during that employment. Dr. Goldberg indicated that appellant’s
subsequent increased hearing loss occurred during his private employment after he left his
federal job in 1983.
By decision dated March 28, 2008, the Office denied appellant’s claim on the grounds
that the medical evidence established that his hearing loss was not causally related to his federal
employment. It made no specific findings regarding the timeliness of the claim.
LEGAL PRECEDENT -- ISSUE 1
Section 8122(a) of the Federal Employees’ Compensation Act states that an original
claim for compensation for disability or death must be filed within three years after the injury or
death. Section 8122(b) provides that, in latent disability cases, the time limitation does not begin
to run until the claimant is aware, or by the exercise of reasonable diligence should have been
aware, of the casual relationship between the employment and the compensable disability.1 The

1

5 U.S.C. § 8122(a)(1) and (2).

2

Board has held that, if an employee continues to be exposed to injurious working conditions after
such awareness, the time limitation begins to run on the last date of this exposure.2
The statute provides an exception of the three-year limit for filing, which states that a
claim may be regarded timely if an immediate superior had actual knowledge of the injury within
30 days, or if written notice of injury as specified in section 8119 was given within 30 days. The
knowledge must be such as to put the immediate superior reasonably on notice of an on-the-job
injury or death.3 The Board has held that a program of annual audiometric examinations
conducted by an employing establishment may constructively establish actual knowledge of a
hearing loss such as to put the immediate supervisor on notice of an on-the-job injury. 4
ANALYSIS -- ISSUE 1
The Office initially denied appellant’s claim on July 13, 2007 on the grounds that
appellant’s claim was not timely filed within three years of June 8, 1983, his last day of federal
employment. Appellant requested reconsideration and alleged that his hearing loss was a latent
disability and that he only became aware of a hearing loss, casually related to his federal
employment, following a February 6, 2007 audiogram.
The evidence of record establishes that appellant had a preexisting moderate to severe
high frequency hearing loss on the date he began his federal employment, April 2, 1979. During
his federal employment he underwent employing establishment audiogram evaluations dating
from April 2, 1979 until March 25, 1982. None of these audiogram evaluations however
established an employment-related progressive hearing loss. Neither appellant nor the
employing establishment were placed on notice that appellant had an employment-related
hearing loss prior to his retirement on June 8, 1983. However, appellant thereafter underwent an
audiometric examination of February 6, 2007, which revealed an increased hearing loss.
Appellant therefore knew or should have known of his alleged latent condition on
February 6, 2007. Appellant’s February 14, 2007 claim for latent hearing loss was therefore
timely filed.
LEGAL PRECEDENT -- ISSUE 2
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.5
2

Garyleane A. Williams, 44 ECAB 441 (1993).

3

5 U.S.C. § 8122(a)(1); Eddie L. Morgan, 45 ECAB 600 (1994).

4

Jose Salaz, 41 ECAB 743 (1990); Kathryn A. Bernal, 38 ECAB 470 (1987). Federal (FECA) Procedure
Manual, Part 2 -- Claims, Time, Chapter 2.801.6c (February 2000).
5

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

3

Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence. Rationalized medical opinion
evidence is medical evidence which includes a physician’s rationalized opinion on whether there
is a causal relationship between the employee’s diagnosed condition and the compensable
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the employee, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the employee.6
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that an employee’s claimed condition became apparent during a period of
employment nor his belief that his condition was aggravated by his employment is sufficient to
establish causal relationship.7
ANALYSIS -- ISSUE 2
Appellant alleged that he sustained bilateral hearing loss due to exposure to hazardous
noise at his federal job between April 2, 1979 and June 8, 1983.
An Office medical adviser reviewed copies of appellant’s first audiogram performed on
April 2, 1979 and his last audiogram on March 25, 1982. He advised that the initial 1979
audiogram revealed a preexisting moderate to severe high frequency hearing loss which did not
show worsening as of March 25, 1982.
Dr. Goldberg reviewed the factual background of appellant’s condition provided in the
statement of accepted facts, examined appellant and provided the results of audiometric testing
and an otologic examination. He found that appellant had preexisting bilateral mid and high
frequency sensorineural hearing loss when he began his federal employment. Dr. Goldberg
stated that appellant’s hearing loss did not worsen during his period of federal employment. He
opined that appellant’s hearing loss was not caused by his federal employment between 1979 and
1983. Dr. Goldberg indicated that appellant’s subsequent increased hearing loss occurred during
his private employment after he left his federal job in 1983.
The Board finds that the medical evidence from Dr. Goldberg and the Office medical
adviser establishes that appellant’s hearing loss was not caused or aggravated by his federal
employment between 1979 and 1983. The Office properly denied his hearing loss claim.
CONCLUSION
The Board finds that appellant failed to establish that his hearing loss is causally related
to his federal employment.

6

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
7

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 28, 2008 and July 13, 2007 are affirmed.
Issued: January 9, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


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

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)
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)
)
)
)
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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-790
Issued: November 29, 2010

Case Submitted on the Record

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

JURISDICTION
On January 29, 2010 appellant filed a timely appeal from the October 22, 2009 merit
decision of the Office of Workers’ Compensation Programs, which affirmed the denial of her
claim for a recurrence of disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
recurrence of disability commencing February 26, 2005 causally related to her accepted
employment condition.
FACTUAL HISTORY
This case was previously before the Board. In a June 13, 2008 decision, the Board
affirmed the Office decision dated May 24, 2007.1 The Board found that appellant did not meet
1

Docket No. 08-181 (issued June 13, 2008).

her burden of proof to establish that she sustained a recurrence of disability on February 26, 2005
causally related to her accepted bilateral plantar fasciitis and heel spurs. The facts of the case as
set forth in the Board’s prior decision are incorporated herein by reference. The evidence as
relevant to this appeal is set forth.
On May 17, 2005 the Office referred appellant for a second opinion to Dr. Iqbal Ahmad,
a Board-certified orthopedic surgeon. In a June 7, 2005 report, Dr. Ahmad noted that
examination showed no evidence of atrophy or inflammation, no edema and satisfactory
circulation and reflexes. He stated that appellant had bilateral flat feet, she had no difficulty in
squatting and standing on her toes and heels and there was no discoloration or changes in
temperature of her feet. Dr. Ahmad opined that her accepted conditions of sprain of both feet,
plantar fasciitis and heel spurs resolved and she did not currently have any acute orthopedic
condition. He noted that appellant reached maximum medical improvement and could return to
her regular job, full time without restrictions. Dr. Ahmad advised that there was no need for
further medical treatment or therapy.
In a December 20, 2005 report, Dr. Joseph DeMayo, a Board-certified family
practitioner, noted that appellant had been under his care for severe plantar fasciitis and heel
spurs and had severe pain while standing and walking at work. He advised that she returned to
work on December 26, 2004 but experienced worsening pain when standing and walking.
Appellant stopped on February 26, 2005 and was found permanently disabled. In a
December 20, 2006 report, Dr. DeMayo noted that she was diagnosed with bilateral plantar
fasciitis and returned to restricted duty in December 2004. He noted that, upon returning to
work, appellant reported that her job required her to case and carry mail of different shapes and
sizes to other areas in the mail facility and entailed walking and standing. Dr. DeMayo asserted
that her position did not conform to her medical documentation and her job duties caused her
condition to worsen and her work stoppage.
Appellant requested reconsideration and submitted reports from Dr. John Cozzarelli, a
podiatrist, from March 6 to May 24, 2008. Dr. Cozzarelli treated her for bilateral heel pain and
plantar fasciitis. He noted that appellant presented with bilateral heel pain which began two
months prior. Dr. Cozzarelli diagnosed bilateral heel spur syndrome, bilateral plantar fasciitis
and bilateral nerve entrapment. He noted treating appellant since November 10, 2004 for
bilateral heel pain and recommended physical therapy and a night splint. Dr. Cozzarelli
indicated that he did not treat her again until March 6, 2008 when she underwent fluoroscopic
examination and diagnostic ultrasound. He noted findings of positive Tinel’s sign along the
posterior tibial nerve and the lateral plantar nerve and massive interior and posterior spurs and
diagnosed bilateral plantar fasciitis, inferior and posterior calcaneal spurs bilaterally, nerve
entrapment, bilateral neuritis and tarsal tunnel syndrome bilaterally. Dr. Cozzarelli noted that
appellant worked as a mail processor gathering skids and trays of mail and was constantly
bending and moving mail. He indicated that she had residual heel spur syndrome, bilateral nerve
damage and bilateral plantar fasciitis. Dr. Cozzarelli opined that appellant’s condition was
directly related to her work and recommended surgery. He indicated that when a patient was
diagnosed with pes planus, heel spur syndrome, plantar fasciitis, tarsal tunnel syndrome and
nerve compression it was very hard to stand for any length of time. Dr. Cozzarelli characterized
Dr. Ahmad’s second opinion examination as superficial.
2

In a decision dated August 21, 2008, the Office denied modification of the May 24, 2007
decision.
On August 19, 2009 appellant requested reconsideration. She submitted a June 10, 2008
report from Dr. Cozzarelli, who noted initially treating her in April 2004. Dr. Cozzarelli
diagnosed plantar fasciitis and heel spur syndrome of both feet and recommended physical
therapy. He noted that appellant returned in March 2008 for treatment. Dr. Cozzarelli concurred
with Dr. DeMayo’s opinion that her condition would worsen if she was not on restricted duty
with limited ambulation because walking and standing would aggravate her condition.
In a decision dated October 22, 2009, the Office denied modification of the August 21,
2008 decision.
LEGAL PRECEDENT
When an employee, who is disabled from the job he held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that he can perform the light-duty position, the employee has the burden to establish
by the weight of the reliable, probative and substantial evidence a recurrence of total disability
and show that he cannot perform such light duty. As part of this 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 requirements.2
Causal relationship is a medical issue3 and the medical evidence required to establish a
causal relationship is rationalized medical evidence. Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.4
ANALYSIS
The Office accepted appellant’s claim for bilateral plantar fasciitis and heel spurs.
Appellant returned to a light-duty position on December 24, 2004, as a distribution clerk. She
stopped work on February 26, 2005 and filed a claim for a recurrence of disability alleging that
she experienced pain in both feet causally related to her accepted work injury. Appellant has not
submitted sufficient evidence to support a change in the nature and extent of the injury-related
condition or a change in the nature and extent of the light-duty requirements. The record
contains no evidence substantiating that there was a change in the nature and extent of the light2

Terry R. Hedman, 38 ECAB 222 (1986). See 20 C.F.R. § 10.5(x) for the definition of a recurrence of disability.

3

Mary J. Briggs, 37 ECAB 578 (1986).

4

Gary L. Fowler, 45 ECAB 365 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).

3

duty requirements or that she was required to perform duties which exceeded her medical
restrictions.
Appellant submitted treatment notes from Dr. Cozzarelli, who treated her for bilateral
heel pain and plantar fasciitis; however, he did not note a specific date of any recurrence of
disability or did he note a particular change in the nature of her physical condition, arising from
the employment injury, which prevented her from performing her light-duty position.5 On
May 24, 2008 Dr. Cozzarelli noted diagnoses and stated that her work involved gathering skids
and trays of mail with constant bending and moving mail. He noted that appellant had residual
heel spur syndrome, bilateral nerve damage and bilateral plantar fasciitis and required surgery
and opined that her condition was directly related to her employment. Dr. Cozzarelli further
opined that patients with appellant’s conditions found it very hard to stand for any length of time.
However, his report is conclusory and insufficient to establish her claim as he did not provide a
rationalized opinion explaining the reasons why her recurrent condition and disability was due to
the accepted work injury.6 Dr. Cozzarelli did list a specific date of a recurrence of disability or
did he note a particular change in the nature of appellant’s physical condition which prevented
her from performing her light-duty position on February 26, 2005.
In a June 10, 2008 report, Dr. Cozzarelli concurred with Dr. DeMayo that appellant’s
condition would worsen if she was not on restricted duty with limited ambulation as walking and
standing can aggravate and worsen her condition. As noted, he failed to note a specific date of a
recurrence of disability nor did he note a particular change in the nature of her physical
condition, arising from the employment injury, which prevented her from performing her lightduty position on February 26, 2005. Dr. Cozzarelli’s general caution against appellant’s return
to work is prophylactic in nature. The Board has held that fear of future injury is not
compensable under the Federal Employees’ Compensation Act.7 This evidence is insufficient to
establish that appellant sustained a recurrence of disability on February 26, 2005 causally related
to her accepted work injury.
The Board finds that Dr. Cozzarelli’s reports are insufficient to establish appellant’s
claim for a recurrence of disability as he did not provide a rationalized opinion explaining the
reasons why her disability beginning February 26, 2005 was due to the accepted work injury.

5

See S.E., 60 ECAB ___ (Docket No. 08-2214, issued May 6, 2009) (medical evidence that does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
6

See Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB 332 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
7

See Mary Geary, 43 ECAB 300, 309 (1991); Pat Lazzara, 31 ECAB 1169, 1174 (1980) (finding that appellant’s
fear of a recurrence of disability upon return to work is not a basis for compensation).

4

Appellant has not met her burden of proof in establishing that there was a change in the
nature or extent of the injury-related condition or a change in the nature and extent of the lightduty requirements, which would prohibit her from performing the light-duty position she
assumed after she returned to work.
On appeal, appellant asserts that the medical evidence submitted from Dr. DeMayo and
Dr. Cozzarelli establish her claim of a recurrence of disability on February 26, 2005. However,
the Board previously found that Dr. DeMayo’s reports did not provide a rationalized medical
opinion explaining why her recurrent condition was due to the accepted work injury. Similarly,
Dr. Cozzarelli’s reports failed to note a specific date of recurrence of disability nor did he note a
particular change in the nature of appellant’s physical condition, arising from the employment
injury, which prevented her from performing her light-duty position on February 26, 2005. With
regard to appellant’s assertion that Dr. DeMayo’s December 20, 2006 report supported that the
limited-duty position she held on December 2004 was not in conformance with her light-duty
restrictions, the Board finds that Dr. Cozzarelli appears merely to be repeating her assertions
regarding her work duties. There is no contemporaneous evidence of record establishing such
assertions. Appellant further asserted that there was a conflict of opinion between Drs. DeMayo
and Cozzarelli and Dr. Ahmed, the second opinion physician. However, as noted, Dr. DeMayo’s
and Dr. Cozzarelli’s reports are of diminished probative value and not sufficient to create a
medical conflict.8
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
sustained a recurrence of disability on February 26, 2005 causally related to her accepted
bilateral plantar fasciitis and heel spurs in both feet.

8

See John D. Jackson, 55 ECAB 465 (2004) (a simple disagreement between two physicians does not, of itself,
establish a conflict; to constitute a conflict of medical opinion, the opposing physicians’ reports must be of virtually
equal weight and rationale).

5

ORDER
IT IS HEREBY ORDERED THAT the October 22, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 29, 2010
Washington, DC

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

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

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

6