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

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

Docket No. 21-1185
Issued: March 4, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 29, 2021 appellant filed a timely appeal from an April 15, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a traumatic injury
in the performance of duty on February 18, 2021, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 15, 2021 decision, OWCP received additional evidence. The Board’s
Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was
before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for
the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

FACTUAL HISTORY
On March 9, 2021 appellant, then a 29-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that she suffered a “traumatic injury” on February 18, 2021 when she was
robbed at gun point by two male suspects while in the performance of duty. On the reverse side
of the claim form the employing establishment acknowledged that she was injured in the
performance of duty and that its knowledge of the facts of her injury was consistent with her
statements. Appellant stopped work on February 19, 2021.
A February 18, 2021 police report noted that appellant was robbed at gun point by two
male suspects who fled the scene.
In a development letter dated March 12, 2021, OWCP informed appellant that it had
received no medical evidence in support of her traumatic injury claim. It advised her of the type
of factual and medical evidence needed to establish her claim and provided a questionnaire for her
completion. OWCP also requested a narrative medical report from appellant’s treating physician,
which contains a detailed description of findings and a diagnosis, explaining how the claimed
employment incident caused, contributed to, or aggravated her medical conditions. It afforded her
30 days to submit the necessary evidence. Appellant did not submit a response.
By decision dated April 15, 2021, OWCP denied appellant’s traumatic injury claim,
finding that she had not established the factual component of her claim, as she had not provided
evidence or a statement explaining how she was injured as a result of the alleged employment
incident. It noted that she had not responded to the March 12, 2021 development letter. OWCP
concluded, therefore, that the requirements had not been met to establish an injury as defined by
FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 5 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. 6

3

Supra note 1.

4

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).

2

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established. 7
Generally, fact of injury consists of two components that must be considered in conjunction with
one another. First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time and place, and in the manner alleged. 8 Second,
the employee must submit sufficient evidence to establish that the employment inc ident caused a
personal injury. 9
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and his or her subsequent course of action. The employee has not met his or her
burden when there are such inconsistencies in the evidence as to cast serious doubt on the validity
of the claim. 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 sufficient doubt on the employee’s
statements in determining whether a prima facie case has been established. 10 An employee’s
statement alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a traumatic
injury in the performance of duty on February 18, 2021, as alleged.
In her Form CA-1, appellant indicated that she was robbed at gunpoint on February 18,
2021 by two male suspects, which was confirmed by a police report of even date. However, she
did not provide an explanation as to how she was injured or what body part was injured as a result
of the alleged employment incident. In a development letter dated March 12, 2021, OWCP
requested that appellant submit clarifying information describing how and when her claimed injury
occurred and provided a questionnaire for her completion. However, appellant did not complete
and return the March 12, 2021 development questionnaire. Therefore, she has failed to present a
clear factual statement in the record describing the specific alleged employment-related incident
alleged to have caused or contributed to her claimed medical condition.12 As she has not responded
to the request for factual information to describe the employment incident and circumstances

7

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

8

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

9

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

10

C.M., Docket No. 20-1519 (issued March 22, 2021); Betty J. Smith, 54 ECAB 174 (2002).

11

See M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67 (2007).

12

See D.C., Docket No. 18-0082 (issued July 12, 2018).

3

surrounding her alleged injury, the Board finds that appellant has not established that a traumatic
injury occurred in the performance of duty on February 18, 2021, as alleged.13
The Board further finds that, because appellant failed to establish the first component of
fact of injury, it is unnecessary to discuss whether she submitted medical evidence sufficient to
establish that a medical condition existed and whether the condition was causally related to the
employment factors as alleged. 14 Thus, the Board finds that appellant has not met her burden of
proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an injury in the
performance of duty, as alleged.

13

See H.B., Docket No. 18-0278 (issued June 20, 2018); John R. Black, 49 ECAB 624 (1998); Judy Bryant, 40
ECAB 207 (1988); Martha G. List, 26 ECAB 200 (1974).
14

See R.L., Docket No. 17-1670 (issued December 14, 2018); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997)
(as appellant failed to establish that the claimed event occurred as alleged, it is unnecessary to discuss the probative
value of medical evidence).

4

ORDER
IT IS HEREBY ORDERED THAT the April 15, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 4, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Santa Ana, CA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 19-0112
Issued: May 13, 2020

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On October 19, 2018 appellant filed a timely appeal from a September 4, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 The Clerk of the Appellate
Boards assigned Docket No. 19-0112.
The Board, having duly considered the matter, concludes that this case is not in posture for
decision.
On May 13, 2016 appellant, then a 61-year-old mail handler, filed a traumatic injury claim
(Form CA-1) alleging that on May 9, 2016 she sustained a right wrist injury when pulling and
pushing equipment into trailers while in the performance of duty. She stopped work and first
received medical care on May 12, 2016 and notified her supervisor on May 13, 2016.
The record reflects that appellant has a prior July 9, 2013 traumatic injury claim, which
was accepted for right hand and wrist contusion and tenosynovitis under OWCP File No.
1

The Board notes that, following the September 4, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

xxxxxx008. On June 27, 2014 appellant underwent right little finger tenosynovectomy.2 In
September 2014, she returned to full duty work without restrictions.
In support of her claim, appellant submitted medical and diagnostic reports documenting
treatment for her right wrist condition beginning May 12, 2016 through July 26, 2018.
By decisions dated June 30, 2016, April 3 and September 21, 2017, and September 4,
2018, OWCP denied the claim, finding that the evidence of record was insufficient to establish
that the diagnosed right wrist conditions were causally related to the accepted May 9, 2016
employment incident.
In its denial of appellant’s traumatic injury claim, OWCP noted that her prior case history
revealed a similar preexisting right wrist injury and that she also had several other cases involving
the right upper extremity. It reviewed her claim under File No. xxxxxx008 and discussed medical
documents, which pertained to that claim. OWCP specifically noted review of a 2013 magnetic
resonance imaging (MRI) scan of the right wrist and January 2014 x-ray of the right wrist in
OWCP File No. xxxxxx008, which is not in the current record before the Board. It found that
tenosynovitis of the right hand/wrist was already accepted under appellant’s previous claim and
the medical reports of record failed to establish a new traumatic injury on May 9, 2016.
The Board notes that appellant submitted medical reports from Dr. Edward Mittleman, a
Board-certified family practitioner, Dr. Basimah Khulusi, Board-certified in physical medicine
and rehabilitation, and Dr. Charles Herring, a Board-certified orthopedic surgeon. In its denial of
appellant’s claim, OWCP rejected these medical reports based on the physicians’ failure to review
prior diagnostic studies related to appellant’s right wrist under OWCP File No. xxxxxx008.
However, those diagnostic studies are not contained in the current file.
The Board’s review of the case is limited to the evidence, which was before OWCP at the
issuance of the final decision.3 Since the record as transmitted to the Board does not contain
evidence that OWCP relied upon in reaching its final decision, the Board is unable to properly
“consider and decide” appellant’s claim.4 Furthermore, OWCP’s procedures provide that cases
should be administratively combined where correct adjudication depends on cross-referencing

2
The record also reflects that appellant has additional prior workers’ compensation claims relating to the right
upper extremity. Under OWCP File No. xxxxxx658, appellant alleged that on October 5, 2012 she was poked by a
wooden splinter on her right mid volar forearm while picking up a wooden pallet at work and sustained a minor
puncture wound. Under OWCP File No. xxxxxx310, OWCP accepted that on October 18, 2012 appellant sustained
neck and back (thoracic) strains, as well as cervical intervertebral disc degeneration, when lifting a towing bar in the
performance of duty. Appellant underwent OWCP-approved neck surgeries on July 31, 2003, July 6, 2004, and
June 23, 2011. Under OWCP File No. xxxxxx954, OWCP accepted that on August 13, 2015 she sustained right elbow
and shoulder sprains after opening a jammed trailer door in the performance of duty.
3

See 20 C.F.R. § 501.2(c)(1).

4

L.K., Docket No. 19-0313 (issued September 4, 2019); K.P, Docket No. 17-1667 (issued March 8, 2018).

2

between files.5 For example, if a new injury case is reported for an employee who previously filed
an injury claim for a similar condition or the same part of the body, doubling is required.6
The Board will remand the case to OWCP to administratively combine File No. xxxxxx008
with the current claim, File No. xxxxxx973, and determine whether appellant sustained either a
May 9, 2016 work injury or progression of a previously accepted work injury.7 Following this and
other such further development as it deems necessary, OWCP shall issue a de novo decision.8
Accordingly,
IT IS HEREBY ORDERED THAT the September 4, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: May 13, 2020
Washington, DC

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

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

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

5
See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
6

Id.; D.L., Docket No. 17-1588 (issued January 28, 2019); K.T., Docket No. 17-0432 (issued August 17, 2018).

7

See L.H., Docket No. 17-1960 (issued August 16, 2018); K.P., Docket No. 15-1945 (issued February 10, 2016);
M.C., Docket No. 15-1706 (issued October 22, 2015).
8

M.B., Docket No. 18-1290 (issued August 13, 2019); A.V., Docket No. 16-1370 (issued April 14, 2017).

3


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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)
and
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U.S. POSTAL SERVICE, POST OFFICE,
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Omaha, NE, Employer
)
___________________________________________ )
H.D., Appellant

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

Docket No. 08-2465
Issued: July 15, 2009

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 September 15, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ schedule award decision dated June 24, 2008 and an August 26, 2008
decision which denied his request for a hearing. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over these issues.
ISSUES
The issues are: (1) whether appellant has more than eight percent permanent impairment
of the right lower extremity and four percent permanent impairment of his left lower extremity,
for which he received a schedule award; and (2) whether the Office properly denied appellant’s
request for a hearing.
FACTUAL HISTORY
On November 15, 2001 appellant, then a 47-year-old city carrier filed an occupational
disease claim alleging that he developed heel spurs and numbness in the right foot as a result of

walking and climbing steps in the performance of duty.1 He first became aware of his condition
on April 19, 2001. Appellant stopped work on November 15, 2001 and returned to fully duty on
November 29, 2001.2 The Office accepted the claim for aggravation of right heel spur and
bilateral plantar fasciitis. It authorized surgery on June 18, 2003 for an excision of the left heel
spur, resection of the plantar fascia and decompression of the heel on the left. Appellant
received appropriate compensation benefits.
On October 23, 2007 appellant filed a claim for a schedule award.
In a November 8, 2007 report, Dr. David E. Cornell, a podiatrist, determined that
appellant had a severe case of plantar fasciitis and large heel spurs which required surgery. The
relief that appellant was able to receive was compromised due to the delay in treatment. After
several surgeries and considerable time, appellant’s condition reached a point where he was now
unable to stand for longer than half an hour or take an evening stroll without his wheelchair.
Dr. Cornell advised that the pain in appellant’s feet, while improved, was constant whenever he
was ambulatory. He opined that appellant’s quality of life was not likely to improve in the
foreseeable future. Dr. Cornell provided work restrictions and indicated that appellant’s “lower
extremity, however, is at least 80 percent impaired permanently.”
In a report dated May 11, 2008, the Office medical adviser noted that Dr. Cornell’s report
did not provide sufficient findings from examination to rate impairment under the American
Medical Association, Guides to the Evaluation of Permanent Impairment, (5th ed. 2001)
(A.M.A., Guides). He recommended that appellant be seen by a physician who could provide an
impairment rating under the A.M.A., Guides.
On May 21, 2008 the Office referred appellant for a second opinion examination with
Dr. Anil Agarwal, a Board-certified orthopedic surgeon. In a June 6, 2008 report, Dr. Agarwal
noted appellant’s history of injury and treatment and utilized the A.M.A., Guides. He advised
that appellant reached maximum medical improvement on December 31, 2006. Dr. Agarwal
referred to Chapter 18 of the A.M.A., Guides and advised that for the right foot appellant
sustained an impairment of three percent to the body as a whole. He indicated that appellant did
not have any disability to the left foot with regard to the spurs. Dr. Agarwal indicated that
appellant had chronic pain from prolonged and repetitive work involving the right foot. He
noted that the left foot did not have much of a problem. Dr. Agarwal provided range of motion
findings for the right ankle of 15 degrees of dorsiflexion and 45 degrees of plantar flexion with 5
degrees of inversion and eversion. For the left ankle, he noted 20 degrees of dorsiflexion and 45
degrees of plantar flexion with 10 degrees of inversion and eversion. Dr. Agarwal noted that
appellant had loss of sensation of 50 percent to light touch in the right lower extremity in the
distribution of the superficial peroneal nerve and a decrease in strength of the right big toe and
weakness of the extensor hallucis longus.
1

The record reflects that appellant has preexisting conditions including obesity, diabetes and hypertension.
Appellant has a separate claim number xxxxxx816, which was accepted for right carpal tunnel syndrome, with
surgical release.
2

Appellant subsequently returned to light duty on February 3, 2002. On September 8, 2004 the Office found that
the position as a modified city letter carrier and general clerk with wages of $870.81 per week, effective June 17,
2004, fairly and reasonably represented his wage-earning capacity.

2

In a June 14, 2008 report, the Office medical adviser reviewed Dr. Agarwal’s report,
noting that a rating for pain utilizing Chapter 18 of the A.M.A., Guides was not permitted as the
Office did not use whole person ratings. He reviewed the range of motion findings for both
ankles and referred to Table 17-11 and 17-12.3 For the right lower extremity, appellant had
seven percent impairment and, for the left lower extremity, he had four percent impairment. The
Office medical adviser also noted that appellant had a loss of sensation of 50 percent to light
touch in the right lower extremity in the distribution of the superficial peroneal nerve. He
referred to Table 16-10 and section 17.21 pertaining to peripheral nerve injuries to find that
appellant had a sensory deficit of 20 percent or Grade 4.4 The Office medical adviser referred to
Table 17-37 to note that the maximum percentage of impairment allowed for a superficial
peroneal nerve was five percent for sensory change.5 He multiplied these values (20 percent
times 5 percent) to total 1 percent impairment. The Office medical adviser referred to the
Combined Values Chart6 and determined that for the right lower extremity the seven percent for
range of motion combined with the one percent for sensory deficit totaled eight percent
impairment. He also referred to Table 17-27 and noted that range of motion findings were
allowed to be combined with peripheral nerve conditions. The Office medical adviser noted that
appellant had four percent impairment of the left lower extremity.
On June 24, 2008 the Office granted appellant schedule awards for eight percent
permanent impairment of the right leg and four percent permanent impairment of the left leg.
The awards covered a period of 34.56 weeks from January 29 to September 27, 2007.
On July 25, 2008 appellant requested a hearing.
By decision dated August 26, 2008, the Office found that appellant was not entitled to a
hearing for the reason that his request was not made within 30 days of the issuance of its June 24,
2008 decision. It exercised its discretion and determined that it would not grant a hearing for the
reason that the issue in the case could equally well be addressed by requesting reconsideration
and submitting new evidence not previously considered pertaining to his claim for a schedule
award.
LEGAL PRECEDENT -- ISSUE 1
Section 8107 of the Federal Employees’ Compensation Act8 sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions,
and organs of the body.9 The Act, however, does not specify the manner by which the
3

A.M.A., Guides 537.

4

Id. at 483, 550.

5

Id. at 552.

6

Id. at 604.

7

Id. at 526.

8

5 U.S.C. §§ 8101-8193.

9

Id. at § 8107.

3

percentage loss of a member, function, or organ shall be determined. To ensure consistent
results and equal justice for all claimants under the law, good administrative practice requires the
use of uniform standards applicable to all claimants.10 The A.M.A., Guides has been adopted by
the implementing regulations as the appropriate standard for evaluating schedule losses.11
ANALYSIS -- ISSUE 1
In support of his claim for a schedule award, appellant submitted a November 8, 2007
report, from his treating physician, Dr. Cornell. Although Dr. Cornell advised that appellant had
80 percent lower extremity impairment, he did not provide an impairment rating that complies
with the A.M.A., Guides. Board precedent is well settled that, when an attending physician’s
report gives an estimate of impairment but does not address how the estimate is based upon the
A.M.A., Guides, the Office may follow the advice of its medical adviser or consultant where he
or she has properly applied the A.M.A., Guides.12
The Office referred appellant for a second opinion examination with Dr. Agarwal. In a
June 6, 2008 report, Dr. Agarwal provided findings on examination and advised that appellant
sustained an impairment of three percent to the body as a whole under Chapter 18. The Board
notes that the Act, however, does not provide a schedule award based on whole person
impairments.13 Dr. Agarwal noted that appellant did not have any disability to the left foot with
regard to the spurs. He referred to Chapter 18 of the A.M.A., Guides and noted that appellant
had chronic pain from prolonged and repetitive use of the right foot but that the left foot did not
have much of a problem. The Board notes that Chapter 18 of the A.M.A., Guides allows for an
impairment percentage to be increased by up to three percent for pain and provides a qualitative
method for evaluating impairment due to chronic pain. However, Chapter 18 should not be used
to rate pain-related impairments for any condition that can be adequately rated on the basis of the
body and organ impairment systems given in other chapters of the A.M.A., Guides. Office
procedures state that a separate pain calculation under Chapter 18 is not to be used in
combination with other methods to measure impairment due to sensory pain as outlined in
Chapter 13, 16 and 17 of the fifth edition of the A.M.A., Guides.14 Dr. Agarwal did not explain
how the three percent impairment awarded appellant due to pain conformed to the above-noted
protocols.
The Office medical adviser was able to utilize the findings of Dr. Agarwal to the A.M.A.,
Guides. In a June 14, 2008 report, he explained why a rating for pain utilizing Chapter 18 of the
10

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

11

20 C.F.R. § 10.404.

12

See Ronald J. Pavlik, 33 ECAB 1596 (1982); Robert R. Snow, 33 ECAB 656 (1982); Quincy E. Malone, 31
ECAB 846 (1980).
13

See Tania R. Keka, 55 ECAB 354 (2004); James E. Mills, 43 ECAB 215 (1991) (neither the Act, nor its
implementing regulations provide for a schedule award for impairment to the body as a whole).
14

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(June 2003); A.M.A., Guides at section 18.3(b); T.H., 58 ECAB ____ (Docket No. 06-1500, issued
January 31, 2007).

4

A.M.A., Guides was not permitted. The Office medical adviser also noted that whole person
ratings were not permitted.15 He utilized the range of motion findings for the ankles and referred
to Tables 17-11 and 17-12.16 For the right ankle, he noted 15 degrees of dorsiflexion and 45
degrees of plantar flexion with 5 degrees of inversion and eversion. These findings correlate to
zero percent impairment for 15 degrees of dorsiflexion and 45 degrees of plantar flexion. The
Board also notes that five degrees of inversion represents five percent impairment and five
degrees of inversion is two percent impairment. The Office medical adviser added the values for
range of motion to total seven percent impairment for the right leg. Regarding the left ankle, the
findings included 20 degrees of dorsiflexion and 45 degrees of plantar flexion with 10 degrees of
inversion and eversion. These findings correlate to zero percent impairment for 20 degrees of
dorsiflexion and 45 degrees of plantar flexion. Ten degrees of inversion represents two percent
impairment and 10 degrees of inversion is two percent impairment. When added, these values
total four percent impairment to the left leg. Additionally, the Office medical adviser rated
impairment for pain or sensory loss based on loss of sensation of 50 percent to light touch in the
distribution of the superficial peroneal nerve. He referred to Table 16-10 and section 17.21
pertaining to peripheral nerve injuries and selected a sensory deficit of 20 percent or Grade 4
under Table 16-10 based on his medical judgment.17 The Office medical adviser explained that
according to Table 17-3718 the maximum percentage of impairment for sensory loss of the
superficial peroneal nerve is five percent. He multiplied the value for the sensory deficit by the
value for the superficial peroneal nerve and arrived at an additional impairment of one percent
for the right leg. The Office medical adviser properly combined the seven percent impairment
for lost range of motion in the right leg with the one percent for sensory loss to equal eight
percent impairment. The Board finds that the Office medical adviser properly utilized the
A.M.A., Guides and his opinion establishes that appellant has eight percent impairment of the
right leg and four percent impairment of the left leg.
Appellant has not submitted any other medical evidence conforming with the A.M.A.,
Guides, supporting any greater impairment to either leg.
The Board finds that appellant has eight percent permanent impairment of the right leg
and four percent permanent impairment of his left leg, for which he received schedule awards.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Act provides that a claimant for compensation not satisfied
with a decision of the Secretary is entitled, on request made within 30 days after the date of the
issuance of the decision, to a hearing on her claim before a representative of the Secretary.19
Sections 10.617 and 10.618 of the federal regulations implementing this section of the Act
15

See supra note 13.

16

A.M.A., Guides 537.

17

Id. at 483, 550.

18

Id. at 552.

19

5 U.S.C. § 8124(b)(1).

5

provide that a claimant shall be afforded a choice of an oral hearing or a review of the written
record by a representative of the Secretary.20 The Office’s procedures, which require the Office
to exercise its discretion to grant or deny a hearing when the request is untimely or made after
reconsideration, are a proper interpretation of the Act and Board precedent.21
ANALYSIS -- ISSUE 2
On June 24, 2008 the Office granted appellant a schedule award for eight percent
permanent impairment of the right lower extremity and four percent permanent impairment of
the left lower extremity. Appellant’s letter requesting a hearing was dated and postmarked
July 25, 2009, more than 30 days after the June 24, 2008 decision. Thus, the Office properly
found that her request for a hearing was not timely filed under section 8124(b)(1) of the Act and
that appellant was not entitled to an oral hearing as a matter of right.
The Office then exercised its discretion and determined that the issue in the case could
equally well be addressed in a request for reconsideration. As the only limitation on its authority
is reasonableness, abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment or actions taken which are contrary to both logic and probable
deductions from known facts.22 The Board finds that there is no evidence that the Office abused
its discretion in denying appellant’s request. Thus, the Board finds that the Office’s denial of
appellant’s request for a hearing was proper under the law and the facts of this case.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he has
more than eight percent permanent impairment of the right lower extremity and more than four
percent permanent impairment of his left lower extremity, for which he received a schedule
award. The Board also finds that the Office properly denied appellant’s request for a hearing.

20

20 C.F.R. §§ 10.616, 10.617.

21

Claudio Vasquez, 52 ECAB 496 (2002).

22

Daniel J. Perea, 42 ECAB 214 (1990).

6

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 26 and June 24, 2008 are affirmed.
Issued: July 15, 2009
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
)
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and
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DEPARTMENT OF JUSTICE, U.S. MARSHALS )
SERVICE, Fargo, ND, Employer
)
__________________________________________ )
F.M., Appellant

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

Docket No. 16-1848
Issued: March 16, 2018

Case Submitted on the Record

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

JURISDICTION
On September 19, 2016 appellant filed a timely appeal from the August 26, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a right upper extremity
injury causally related to accepted factors of her federal employment.
FACTUAL HISTORY
On January 19, 2016 appellant, then a 58-year-old criminal program specialist, filed an
occupational disease claim (Form CA-2) alleging that she developed achiness and discomfort in
her right forearm and elbow while in in the performance of duty. She explained that she engaged
1

5 U.S.C. § 8101 et seq.

in daily computer keying and entering. Appellant indicated that she first became aware of the
injury and of its relation to her federal employment on October 1, 2015. She did not stop work.
By development letters dated January 25, 2016, OWCP informed appellant and the
employing establishment of the type of evidence needed to support her claim and afforded
appellant 30 days to submit such evidence. It particularly requested that she have her physician
provide an opinion, supported by a medical explanation, as to how work activities caused or
aggravated her claimed condition.
In a February 3, 2016 narrative statement, appellant noted that on or about October 1, 2015,
she started to notice unusual discomfort and achiness in her right forearm and elbow area. She
indicated that, over time, it seemed to become relevant in that she had achiness, discomfort; pain,
and “overall tiredness in [her] right arm.” Appellant explained that in late August 2015 to the
present, she was covering more work as her coworker left for advanced training. She noted that
the position could not be filled until she had successfully completed her training, and they were
finally able to fill it. Appellant also indicated that it would be another three to six months before
they had another person in the position to take back the additional duties that she had to undertake.
She described her employment-related duties which were repetitive and included extra data and
computer entries on a daily basis for at least six to eight hours a day, five days a week. Appellant
explained that it was not until she started using her hand more repetitively that she started noticing
the aggravation and achiness with pain and discomfort. She indicated that she believed the
excessive use of her right forearm and elbow with the daily data entries contributed to her condition
as well as overuse of the computer. Appellant denied having any other conditions. She noted that
her outside activities included: attending sporting events; school activities; family and church
functions; volunteering and charity work. Appellant denied engaging in any sports or physical
activity, with the exception of walking on the treadmill and exercise bike riding at her place of
employment. She also advised that she did not play any musical instruments or engage in any
hobbies that involved nonwork-related computer usage. Furthermore, appellant noted her outside
activities were sedentary.
In a February 11, 2106 statement, C.F., an administrative officer with the employing
establishment, concurred with appellant’s statement that her condition was “likely attributable to
repetitive motion related to the high volume of computer data entry she does on a daily basis.”
She explained that appellant’s coworker left at the end of August 2015 and left a temporary
vacancy with the administrative staff. Appellant explained that her duties were distributed
amongst the staff and appellant’s additional duties were related to data entry and encompassed the
majority of her workday. C.F. agreed that appellant was spending six to eight hours of her workday
on the computer. She also advised that she was not aware that appellant was involved in any other
outside activities that would have contributed to the orthopedic condition. C.F. noted that no
changes were made to appellant’s workstation, but she was encouraged to take breaks and use fit
time to step away from her desk during the day. She indicated that appellant’s first doctor visit
was on December 29, 2015 and she had 15.5 hours of doctor visits. C.F. indicated that new
computers were brought to the district in May 2015 and the change in the keyboard and mouse
could have played a role in aggravating her arm. She related that the employing establishment was
planning on purchasing a spit key board and a roller ball mouse. Additionally, the employing
establishment would consider workstation adjustments, if advised by a physician. C.F. noted that

2

the vacancy would be filled within the next few months and should alleviate some of the data entry
duties performed by appellant. A copy of the position description was also provided.
OWCP received records from a physician assistant dating from December 29, 2015 to
January 18, 2016.
By decision dated April 13, 2016, OWCP denied appellant’s claim. It found that appellant
did not submit any medical evidence containing a firm medical diagnosis in connection with the
claimed work factors or events. OWCP explained that the evidence from the physician assistant
could not be considered to be from a physician, unless counter-signed by a qualified physician.
On May 5, 2016 appellant requested reconsideration. She argued that her condition was
caused or worsened by her work activities. Appellant indicated that her daily activities were
always computer related and she had to take on extra work due to a staff shortage. She explained
that the repetitive work on her computer and data entry performed over the eight-hour day caused
her more aggravation and discomfort than normal. Appellant indicated that as time went on, it
became apparent that the discomfort and aggravation would not go away with over-the-counter
ibuprofen. She enclosed new medical evidence.
The new medical evidence was comprised of an April 22, 2016 report from Dr. Kevin
Dahl, a Board-certified orthopedic surgeon.2 Dr. Dahl noted that appellant presented with
complaints of right forearm pain which was present over the last several months and denied any
particular injuries. He advised that her pain was localized over the medial versus lateral aspect of
her right elbow joint and was worse with activity such as computer use and better with rest.
Dr. Dahl also related that she had night time discomfort as well and took occasional ibuprofen with
some relief in symptoms. He related that she had no numbness or tingling involving the right
upper extremity digits and her pain was “more dull at rest and sharp with activity.” Dr. Dahl
examined appellant and diagnosed right elbow pain, right medial epicondylitis, and right elbow
lateral epicondylitis. In the social history narrative, he indicated that appellant was a criminal
specialist working with prisoner data filing.
By decision dated August 26, 2016, OWCP modified the April 13, 2016 decision from a
denial based on one of the five basic elements for FECA coverage to a denial based on another
basic element. It explained that the claim remained denied based on causal relationship as she
presented no medical evidence outlining the connection between the diagnosed condition and the
accepted factors of her federal employment.

2

The report was originally from a physician assistant and was subsequently signed by Dr. Dahl on April 22, 2016.

3

LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (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 identified employment factors.4
Certain healthcare providers such as physician assistants, nurse practitioners, physical
therapists, and social workers are not considered “physician[s]” as defined under FECA.5
Consequently, their medical findings and/or opinions will not suffice for purposes of establishing
entitlement to FECA benefits.6
ANALYSIS
Appellant alleged that she developed a right arm and elbow condition due to daily repetitive
activities which included computer data entry as part of her work as a criminal program specialist.
The employing establishment concurred with her statement and explained that she incurred
additional repetitive duties while filling in for a coworker that left a position. OWCP properly
found that the evidence of record supports that appellant engaged in repetitive data entry activities
for six to eight hours per day as part of her criminal program specialist duties.
However, appellant submitted insufficient medical evidence to establish that her condition
was caused or aggravated by these activities or any other specific factors of her federal
employment.

3

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is a medical
question, which generally requires rationalized medical opinion evidence to resolve the issue. See Robert G. Morris,
48 ECAB 238 (1996). A physician’s opinion on whether there is a causal relationship between the diagnosed condition
and the implicated employment factors must be based on a complete factual and medical background. Victor J.
Woodhams, 41 ECAB 345, 352 (1989). Additionally, the physician’s opinion must be expressed in terms of a
reasonable degree of medical certainty and must be supported by medical rationale, explaining the nature of the
relationship between the diagnosed condition and appellant’s specific employment factors. Id.
4

Victor J. Woodhams, id.

5

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

6

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a physician
assistant or certified nurse practitioner will not be considered medical evidence. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a (1) (January 2013).

4

In his April 22, 2016 report, Dr. Dahl diagnosed right elbow pain, right medial
epicondylitis, and right elbow lateral epicondylitis. However, he did not indicate that appellant’s
work activities as a criminal program specialist either caused or aggravated these conditions.
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.7 A mere conclusory opinion
provided by a physician without the necessary rationale explaining how and why the incident or
work factors were sufficient to result in the diagnosed medical condition is insufficient to meet a
claimant’s burden of proof to establish a claim.8 Consequently, Dr. Dahl’s report is of limited
probative value.
The Board notes that the record contains reports from physician assistants. However, they
are not considered physicians as defined under FECA. Thus, the Board finds that their opinions
on causal relationship do not constitute rationalized medical opinions and have no weight or
probative value.9
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.10
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.11
As there is no reasoned medical evidence explaining how appellant’s employment duties
caused or aggravated a medical condition involving her right arm and elbow, appellant has not met
her burden of proof in establishing that she developed a medical condition causally related to
accepted factors of her federal employment.
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 met her burden of proof to establish a right upper
extremity injury causally related to accepted factors of her federal employment.

7

S.E., Docket No. 08-2214 (issued May 6, 2009).

8

J.D., Docket No. 14-2061 (issued February 27, 2015).

9

5 U.S.C. § 8102(2) of FECA provides that the term physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. 5 U.S.C. § 8101(2); 20 C.F.R. § 10.404; Roy L. Humphrey, 57 ECAB 238 (2005). See also D.B., Docket
No. 17-0448 (issued October 12, 2017) wherein the Board held that reports from physician assistants are not
considered medical evidence as these practitioners are not physicians under FECA.
10

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

11

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the August 26, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 16, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
SAMUEL S. STRATTON VETERANS
ADMINISTRATION MEDICAL CENTER,
Albany, NY, Employer
__________________________________________

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)
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)
)
)

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

Docket No. 17-0296
Issued: April 24, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On November 22, 2016 appellant filed a timely appeal from an October 21, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish an employmentrelated injury causally related to the accepted July 16, 2015 employment incident.
On appeal appellant asserts that his claim should be accepted.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 17, 2015 appellant, then a 56-year-old medical support assistant, filed a traumatic
injury claim (Form CA-1) alleging that he injured his lower back on July 16, 2015 when he sat in
his office chair and it gave way, went down, and suddenly stopped. He stopped work that day.
OWCP received employing establishment clinic notes. On July 16, 2015 Dr. Gene R.
Pellerin, an osteopath, noted a history that appellant had low back discomfort after jolting when
he sat in a chair. Examination was normal.
In an Albany Medical Center emergency department note dated July 17, 2015,
Dr. Thomas Dittrich, who specializes in emergency medicine, recorded a history that appellant
sat in a defective chair and landed on the floor, hitting his bottom, and this caused diffuse low
back pain. Cervical spine x-rays and a cervical spine computerized tomography (CT) scan
demonstrated degenerative changes at C3-4 through C6-7. Lumbar spine x-rays showed
degenerative changes. Dr. Dittrich diagnosed back muscle strain and low back pain. He advised
that appellant should be excused from work from July 17 to 20, 2015.
In a July 19, 2015 report, Dr. Pellerin noted a history that appellant hurt his back when
his chair broke and he fell. He described cervical spine CT scan findings of degenerative
changes at C3-4 through C6-7. Physical examination demonstrated tenderness in the sacral area.
Straight leg raising was negative. Dr. Pellerin diagnosed lumbosacral contusion. He and
Dr. Saeed Tarokh, an employing establishment physician, advised that appellant could return to
work on July 22, 2015 with no restrictions. Appellant did not return to work. A July 22, 2015
note from Dr. Pellerin indicated that appellant was angry that he was told he could return to duty
and would seek medical care elsewhere.
The employing establishment checked the chair and could not replicate the fall. In a
July 16, 2015 statement, S.G., a coworker, advised that when appellant sat next to her, the chair
slid to a lower position, and he stated that his back hurt. She told him to report it to a supervisor.
In August 5, 2015 correspondence, C.T., an employing establishment human resources
specialist, noted that appellant submitted a disability slip dated August 5, 2015 in which
Dr. Charles J. Buttaci, a Board-certified physiatrist, advised that appellant could not work until
after a magnetic resonance imaging (MRI) scan was completed. She then telephoned appellant
who insisted that he had not been cleared to return to full duty, and informed her that he planned
to see his counsel. C.T. attached a disability slip to a letter dated August 6, 2015, addressed to
him, in which she described the medical evidence submitted and forwarded a notice of
recurrence claim form (Form CA-2a). She advised appellant that he should submit a report in
which Dr. Buttaci explained the causal relationship between appellant’s current back condition
and the July 16, 2015 incident.
Appellant submitted a recurrence claim (Form CA-2a) on August 17, 2015. He indicated
that he had not returned to work since the July 16, 2015 injury due to continued pain. The
employing establishment noted that appellant received continuation of pay from July 17
through 21, 2015, and that he was cleared for full-time full duty on July 22, 2015, but had not
returned to work.

2

In an August 5, 2015 treatment note, Dr. Buttaci noted appellant’s complaint of back pain
and severe sciatica symptoms radiating down his right leg. He reported a history that on July 16,
2015, as appellant sat it a chair, it gave way and dropped one to two feet and then came to an
abrupt stop, after which appellant had severe left hip, leg, and back pain that became unbearable.
Back examination demonstrated tenderness across the lumbosacral junction with limited flexion
and extension. Toe walking was difficult on the left, normal on the right. Sensation was reduced
in the left lateral leg, intact on the right, and left Achilles reflex was reduced when compared to
the right. Hip range of motion did not produce groin or thigh discomfort. Dr. Buttaci reviewed
the x-rays and cervical CT scan. He advised that appellant most likely had a herniated disc.
Dr. Buttaci opined that the July 16, 2015 incident caused the condition, and that appellant was
totally disabled because he could not sit due to pain. He prescribed medication and requested
authorization for a lumbar MRI scan. In a disability slip dated August 11, 2015, Dr. Buttaci
advised that appellant could not work.
In correspondence dated September 3, 2015, C.T. notified OWCP that, after appellant
was cleared to return to work on July 22, 2015, he indicated that he did not feel well enough to
return to work and then submitted additional medical information taking him off work. She
related that on August 24, 2015 appellant turned in his identification card and government keys.
By letter dated September 8, 2015, OWCP notified appellant that when his claim was
received his injury appeared minor, resulting in minimal time off work, and that the merits of the
claim were not formally adjudicated. It informed him that because he had filed a recurrence
claim, his claim had been reopened for formal adjudication. OWCP advised appellant of the
evidence needed to support his claim.
Appellant thereafter forwarded a brief employing establishment emergency department
report dated August 18, 2015 in which Mary Lee, R.N., noted a discharge diagnosis of low back
pain and that he was discharged to employee health.
An August 20, 2015 letter from the employing establishment advised that appellant’s
supervisor had recommended that appellant be terminated effective August 21, 2015 for
unacceptable performance, conduct, and attendance. It informed him of his appeal rights.
Appellant also submitted evidence regarding an Equal Employment Opportunity (EEO) claim he
filed in August 2015 and a disability slip from Dr. Buttaci dated September 15, 2015 advising
that appellant could not work.
In an October 7, 2015 statement, appellant indicated that on July 16, 2015, when he sat in
his office chair, it went straight down and slammed his tail bone. He maintained that he could no
longer sit due to pain and thus could not work, because his job required that he sit all day.
In a December 24, 2015 form report, Dr. Buttaci noted that he last examined appellant on
August 5, 2015. He diagnosed sciatica and advised that appellant was totally disabled for the
period August 5 to September 14, 2015 and that he could return to work on September 15, 2015.
By decision dated January 12, 2016, OWCP denied appellant’s claim. It found that the
July 16, 2015 incident occurred as alleged, but that the medical evidence of record was
insufficient to establish a causal relationship between the incident and his diagnosed conditions.

3

Appellant timely requested a hearing with a representative of OWCP’s Branch of
Hearings and Review. He submitted evidence previously of record.
At the hearing, held on September 13, 2016, appellant described the July 16, 2015
incident, stating that when he sat, the chair slammed down, and he hit his lower back and
tailbone. He described his medical treatment, noted that he had filed an EEO claim, and
indicated that he had a 30 percent Veterans Administration disability for post-traumatic stress
disorder.
In an October 21, 2016 decision, an OWCP hearing representative found that the medical
evidence of record was insufficient to establish that appellant’s back condition was causally
related to the July 16, 2015 employment incident and affirmed the January 12, 2016 decision.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of reliable, probative, and substantial
evidence,2 including that he is an “employee” within the meaning of FECA and that he filed his
claim within the applicable time limitation.3 The employee must also establish that he sustained
an injury in the performance of duty as alleged and that his disability for work, if any, was
causally related to the employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.5
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.6 The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.7 Neither the mere fact that a disease or condition manifests itself during a period

2

J.P., 59 ECAB 178 (2007).

3

R.C., 59 ECAB 427 (2008).

4

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

T.H., 59 ECAB 388 (2008).

6

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

7

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

4

of employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.8
ANALYSIS
It is undisputed that the July 16, 2015 incident occurred as alleged. The Board finds,
however, that the medical evidence submitted by appellant is insufficient to establish that this
incident resulted in an employment injury.
Medical evidence submitted to support a claim for compensation should reflect a correct
history, and the physician should offer a medically sound explanation of how the claimed work
event caused or aggravated the claimed condition.9 No physician did so in this case.
In an August 5, 2015 treatment note, Dr. Buttaci reported a history that on July 16, 2015,
as appellant sat in a chair, it gave way and dropped one to two feet and then came to an abrupt
stop, after which appellant had severe left hip, leg, and back pain that became unbearable. He
provided findings, advised that appellant most likely had a herniated disc, and opined that the
July 16, 2015 incident caused the condition. However, Dr. Buttaci did not adequately explain or
describe physiologically how or why the July 16, 2015 employment incident caused appellant’s
back condition. Moreover, on December 24, 2015 he diagnosed sciatica and indicated that
appellant could return to work on September 15, 2016.
The opinion of a physician supporting causal relationship must be one of reasonable
medical certainty that the condition for which compensation is claimed is causally related to a
claimant’s federal employment and such relationship must be supported with affirmative
evidence, explained by medical rationale, and be based upon a complete and accurate medical
and factual background of the claimant.10 The Board finds Dr. Buttaci’s opinion of diminished
probative value and insufficient to meet appellant’s burden of proof.11
The July 17, 2015 lumbar and cervical spine x-rays and the cervical spine MRI scan of
the same day are of limited probative value as they did not provide an opinion on the causal
relationship of any diagnosed conditions. 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.12 Likewise, the reports of Dr. Pellerin and Dr. Tarokh, and Dr. Dittrich’s
emergency department report of July 17, 2015, also failed to include an opinion as to the cause
of a diagnosed condition.

8

Dennis M. Mascarenas, 49 ECAB 215 (1997).

9

D.D., Docket No. 13-1517 (issued April 14, 2014).

10

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

11

See M.L., Docket No. 14-1128 (issued September 17, 2014).

12

Willie M. Miller, 53 ECAB 697 (2002).

5

It is appellant’s burden of proof to establish that a diagnosed condition is causally related
to the July 16, 2015 incident. As none of the medical evidence of record provides the necessary
rationale explaining how and why a physician believes that the accepted July 16, 2015 incident
resulted in a diagnosed back condition, the evidence of record is insufficient to establish his
claim of injury.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish an
employment-related injury causally related to the accepted July 16, 2015 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the October 21, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 24, 2017
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Shreveport, LA, Employer
__________________________________________

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

Docket No. 20-0387
Issued: September 11, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On December 10, 2019 appellant filed a timely appeal from a November 22, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On September 12, 2019 appellant, then a 54-year-old mail processing clerk, filed an
occupational disease claim (Form CA-2) alleging that she developed a left shoulder rotator cuff
tear, superior labral tears from anterior to posterior (SLAP tears), and fluid in the left shoulder due
1

5 U.S.C. § 8101 et seq.

to factors of her federal employment. She indicated that she first became aware of her condition
on June 25, 2019 and first realized its relationship to factors of her federal employment on
August 22, 2019. Appellant stopped work on August 14, 2019.
In an accompanying narrative statement, appellant noted that on June 3, 2019 she
experienced pain in her neck radiating down her left arm when she turned her neck. She noted
visiting her primary physician on June 25, 2019, by which point she was also experiencing back
pain. Appellant reported that she received steroidal injections on June 25 and August 7, 2019, but
continued to experience pain in her shoulder and arm. She related that she worked intermittently
in August 2019 due to ongoing shoulder pain and numbness and that, when she returned to lightduty work on August 27, 2019, she was only able to work for 35 minutes before her arm went
numb again. Appellant noted that she had surgery scheduled for September 18, 2019 and expected
to miss work for six to eight weeks. She alleged that her conditions were caused by her repetitive
work activities.
In a development letter dated September 25, 2019, OWCP informed appellant that the
evidence of record was insufficient to establish her claim. It advised her of the type of factual and
medical evidence needed and provided a questionnaire for her completion. In a separate
development letter of even date, OWCP requested that the employing establishment provide
additional information regarding appellant’s occupational disease claim from a knowledgeable
supervisor. It afforded both parties 30 days to submit the necessary evidence.
OWCP subsequently received an x-ray report of appellant’s cervical spine, dated July 26,
2019, which revealed degenerative disc and facet disease in the lower cervical spine.
A magnetic resonance imaging (MRI) scan report of appellant’s left shoulder, dated
August 29, 2019, revealed partial-thickness articular surface infraspinatus tear, moderate
tendinosis of the supraspinatus and infraspinatus, moderate volume fluid in the subcoracoid bursa,
SLAP tear, mild acromioclavicular joint degenerative change, and mild glenohumeral joint
degenerative change.
In a September 5, 2019 work excuse note, Mary K. Green, a physician assistant, indicated
that appellant was excused from work from September 8 to October 8, 2019.
In a September 26, 2019 work excuse note, Dr. Carlton Houtz, a Board-certified orthopedic
surgeon, indicated that appellant could return to work in four weeks pending her approval.
In an October 4, 2019 letter, Dr. Houtz indicated that appellant “did not have any workrelated injury.” He opined, however, that her repetitive lifting and carrying most likely contributed
to her shoulder conditions, based upon her job description.
In letters dated October 1 and 7, 2019, appellant responded to OWCP’s development
questionnaire. She noted that the employment-related activities which she believed contributed to
her condition included lifting, bending, stooping, kneeling, pushing, pulling, reaching, loading,
sweeping mail, picking up, and walking. Appellant asserted that her mail processing duties were
supposed to require two people, but due to a decrease in mail volume, they were shifted to a oneperson operation. She alleged that she had been performing repetitive motion activities for over

2

three years, six days per week, 10 to 12 hours per day. Appellant revealed that she did not engage
in any hobbies or outside activities except for occasional computer use for 30 minutes per day.
In a letter dated October 7, 2019, appellant noted that she did not report her work activities
to Dr. Houtz at her initial visit and that may have been why he reported that she did “not” have a
work-related injury. She further explained that she did not want to file a claim until she knew what
was causing her symptoms.
By decision dated November 22, 2019, OWCP denied appellant’s occupational disease
claim, finding that the medical evidence of record was insufficient to establish a diagnosed medical
condition causally related to the accepted factors of her federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (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 identified employment factors.6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.7 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

2

Supra note 1.

3
S.S., Docket No. 19-1815 (issued June 26, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
4

M.H., Docket No. 19-0930 (issued June 17, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB
312 (1988).
5

S.A., Docket No. 19-1221 (issued June 9, 2020); L.M., Docket No. 13-1402 (issued February 7, 2014); Delores C.
Ellyett, 41 ECAB 992 (1990).
6

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Victor J.
Woodhams, 41 ECAB 345 (1989).
7

L.F., Docket No. 19-1905 (issued April 10, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

3

be supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted factors of her federal employment.
The record contains an x-ray report of appellant’s cervical spine, dated July 26, 2019,
which revealed degenerative disc and facet disease in the lower cervical spine. OWCP also
received an MRI scan report of appellant’s left shoulder, dated August 29, 2019, which
demonstrated partial-thickness articular surface infraspinatus tear, moderate tendinosis of the
supraspinatus and infraspinatus, moderate volume fluid in the subcoracoid bursa, SLAP tear, mild
acromioclavicular joint degenerative change, and mild glenohumeral joint degenerative change.
The Board has explained that diagnostic test reports, standing alone, lack probative value as they
do not provide an opinion on whether there is causal relationship between an employment incident
and a diagnosed condition.9 These diagnostic reports are therefore insufficient to establish that
appellant’s diagnosed cervical and left shoulder conditions were causally related to her accepted
employment factors.
OWCP also received September 26 and October 4, 2019 notes from Dr. Houtz. In his
September 26, 2019 note, Dr. Houtz excused appellant from work for four weeks pending his
approval. The Board has held that medical evidence that does not offer an opinion regarding the
cause of an employee’s condition is of no probative value on the issue of causal relationship.10 In
his October 4, 2019 note, Dr. Houtz opined that, based on her job description, her repetitive lifting
and carrying most likely contributed to her shoulder conditions. However, the Board has long held
that medical opinions that are speculative or equivocal in character are of diminished probative
value.11 Furthermore, Dr. Houtz failed to explain with rationale how appellant’s specific repetitive
lifting and carrying activities caused a diagnosed medical condition. The Board has held that a
medical report lacking a firm diagnosis and a rationalized medical opinion regarding causal
relationship is of no probative value.12 As such, Dr. Houtz’ notes are insufficient to meet
appellant’s burden of proof.
Appellant also submitted a September 5, 2019 work excuse note from a physician assistant.
The Board has held, however, that medical reports signed solely by a physician assistant are of no

8

A.S., Docket No. 19-1955 (issued April 9, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

9

J.P., Docket No. 20-0381 (issued July 28, 2020).

10

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

11

T.M., Docket No. 08-975, (issued February 6, 2009).

12

D.R., Docket No. 16-0528 (issued August 24, 2016).

4

probative value as physician assistants are not considered physicians as defined under FECA.13
As such, this evidence is of no probative value and is insufficient to establish appellant’s claim.
As there is no medical opinion evidence establishing a diagnosed medical condition
causally related to the accepted factors of her federal employment, the Board finds that appellant
has not met her burden of proof to establish her 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 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted factors of her federal employment.

Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2). See also David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician
assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA); M.W., Docket
No. 19-1667 (issued June 29, 2020) (physician assistants are not considered physicians under FECA).
13

5

ORDER
IT IS HEREBY ORDERED THAT the November 22, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 11, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


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

)
)
)
)
)
)
)
)

Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1617
Issued: January 24, 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 August 8, 2016 appellant, through counsel, filed a timely appeal from a July 15, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a back injury causally
related to the September 9, 2013 accepted employment incident.
1

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

5 U.S.C. § 8101 et seq.

On appeal, counsel contends that OWCP’s decision is contrary to fact and law.
FACTUAL HISTORY
On September 13, 2013 appellant, then a 52-year-old postmaster, filed a traumatic injury
claim (Form CA-1) alleging that on September 9, 2013 she strained her lower back as a result of
lifting heavy tubs and bundles at work. She stopped work on September 12, 2013.
An OWCP Form CA-16, authorization for examination, was issued by the employing
establishment on September 13, 2013. Dr. Michael J. Landolf, a Board-certified internist,
completed this form on September 16, 2013 and described appellant’s history of experiencing
low back pain on September 9, 2013. He diagnosed low back pain and indicated by checking a
box marked “yes” that this condition was possibly caused or aggravated by an employment
activity. Dr. Landolf released appellant to return to light work on September 16, 2013.
Appellant submitted additional reports from Dr. Landolf. In a September 16, 2013 duty
status report (Form CA-17), Dr. Landolf provided a clinical finding of decreased range of motion
(ROM) of the lower back. He noted that appellant’s condition was partially due to a
September 9, 2013 injury. Dr. Landolf indicated that she could resume work with restrictions as
of September 17, 2013. In reports dated September 16 to October 11, 2013, he noted a history
that on September 9, 2013 appellant felt a pull in her lower back while sorting tubs of magazines
at work. Dr. Landolf also noted her history of back pain and medical, family, and social
background. He reported findings on physical examination and diagnosed low back pain
beginning in 1999. Dr. Landolf advised that based on appellant’s history and symptoms she
appeared to have chronic low back pain of an uncertain direct cause, but noted her statement that
her symptoms worsened while at work and her history of significant back pathology that
predated her discomfort at work. He concluded that she could return to work with restrictions
following each of his examinations.
A September 26, 2013 Form CA-17 report bearing an unknown signature provided
clinical findings of decreased ROM of the lower back and pain. The report indicated that
appellant’s conditions were partially due to a September 9, 2013 injury and that she could
resume light work as of October 3, 2013.
In a report and treatment note dated October 9, 2013, Kristin Kawzeduk, a physical
therapist, noted the treatment of appellant’s lumbago condition.
By letter dated November 6, 2013, OWCP advised appellant of the deficiencies of her
claim and afforded her 30 days to submit additional evidence and respond to its inquiries.
Form CA-17 reports dated September 19 to November 25, 2013 and bearing the same
previous unknown signature reiterated the clinical findings of decreased ROM and low back
pain. The reports reiterated that appellant’s conditions were partially due to a September 9, 2013
injury and that she could return to light work with restrictions.
In an October 3, 2013 lumbar magnetic resonance imaging (MRI) scan report,
Dr. Joseph A. Ronsivalle, a Board-certified radiologist, noted a history that appellant
experienced low back pain and sustained a heavy lifting injury on September 9, 2013. He
2

provided an impression of L4-5 small left paracentral disc protrusion with left foraminal
encroachment and L3-4 left lateral disc bulge with mild left foraminal encroachment.
In an October 3, 2013 addendum to Dr. Ronsivalle’s report, Dr. Niksa Vlasic, a Boardcertified radiologist, reviewed the physician’s findings and the findings of lumbar MRI scans
performed in 2004.3 He related that, given the appearance of L4-5 disc disease on the current
examination, there was possibly interval encroachment which was clearly seen on this
examination.
In reports dated October 3 and 21 and November 4, 2013, Dr. Landolf noted that
appellant’s symptoms remained the same. Appellant was not working because no light-duty
work was available. Dr. Landolf reported examination findings and reiterated his diagnosis of
low back pain with a history of this condition beginning in 1999. He again related that the cause
of appellant’s condition was uncertain while noting her preexisting back pain.
In a November 26, 2013 report, Dr. David C.Y. Kung, a Board-certified neurosurgeon,
provided a history of appellant’s back condition, noting that she sustained a back injury at work
on September 12, 2013 while lifting boxes of mail that each weighed 30 to 40 pounds. He also
reported findings on physical and neurological examination. Dr. Kung listed an impression that
ruled out L4-5 discogenic pain. He advised that appellant had an abnormal disc that was bulging
out more on the left than the right. Dr. Kung did not detect any severe nerve compression. He
doubted that the weakness of dorsiflexion of the toes was due to this disc herniation pressing on
the nerve.
A September 12, 2013 after care instructions note completed by Andrew Friebel, a
physician assistant, documented treatment on that date for chronic pain exacerbation. In a note
of the same date, he excused appellant from work through September 15, 2013.
In a December 3, 2013 response to OWCP’s development letter, appellant described the
September 9, 2013 incident. Her back began to hurt while sorting and moving 14 full tubs of
mail and bundles approximately weighing 35 to 45 pounds. Appellant continued to perform her
work duties despite pain and discomfort in her left lower back. She believed that the pain would
go away after she went home and rested. Appellant worked from the date of injury until she
stopped work on September 12, 2013. At that time she informed the employing establishment
about her back injury and sought medical treatment on the following day. Appellant related that
she had not sustained any other injury on or off duty between the claimed date of injury and the
date she first reported the injury to her supervisor and physician. She had no similar disability or
symptoms before the claimed injury.
By decision dated December 11, 2013, OWCP accepted that the September 9, 2013
incident occurred as alleged. However, it denied appellant’s claim and determined that the
medical evidence was insufficient to establish a medical diagnosis in connection with the work
event. OWCP noted that a diagnosis of pain was a symptom and not a diagnosed medical
condition.

3

The Board notes the 2004 lumbar MRI scan reports are not contained in the case record.

3

In a prescription dated December 31, 2013, Jennifer Hubbell, a nurse practitioner,
ordered a sample of appellant’s urine and pain medication monitoring. She indicated a diagnosis
of lumbago. A January 6, 2014 drug monitoring report revealed positive test results for
prescribed medication.
On October 22, 2014 appellant requested reconsideration of the December 11, 2013
decision.
In a July 15, 2016 decision, OWCP denied modification of the December 11, 2013
decision. It found that the medical evidence failed to provide a diagnosis of a medical condition
in connection with the accepted September 9, 2013 employment incident or a well-reasoned
medical explanation on the issue of causal relationship.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence4 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.6
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place, and in the manner alleged.7
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.8 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.9 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.10

4

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

5

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

6

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

7

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

8

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

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

10

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

4

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a traumatic
injury caused by the accepted September 9, 2013 employment incident. Appellant failed to
submit sufficient medical evidence to establish that she sustained a back injury causally related
to the accepted employment incident.
Dr. Landolf’s reports dated September 16 to November 4, 2013 noted appellant’s history
of injury and diagnosed low back pain with a preexisting history of this condition beginning in
1999. However, his finding is of no probative value as he is describing a symptom rather than a
clear diagnosis of a medical condition.11 The Board has held that pain is a symptom, rather than
a compensable medical diagnosis.12 Further, Dr. Landolf’s opinion is speculative regarding
causal relationship. He related that the direct cause of appellant’s condition was “uncertain.”
The Board has held that speculative and equivocal medical opinions regarding causal
relationship have no probative value.13 Moreover, while Dr. Landolf noted appellant’s statement
that her back symptoms worsened at work and the knowledge of her preexisting history of back
symptoms, he did not provide his own rationalized medical opinion as to whether the accepted
September 9, 2013 employment incident caused or aggravated appellant’s back condition.14
Similarly, Dr. Landolf’s September 16, 2013 form report is of diminished probative
value. He diagnosed low back pain and indicated by checking a box marked “yes” that this
condition was “possibly” caused or aggravated by the accepted September 9, 2013 employment
incident. Dr. Landolf’s did not identify a compensable medical diagnosis or offer a medical
opinion expressed in terms of a reasonable degree of medical certainty. As noted, pain is not a
diagnosis, rather it is a symptom15 and speculative and equivocal medical opinions regarding
causal relationship have no probative value.16 Dr. Landolf did not explain how the diagnosed
condition was caused or aggravated by the accepted work incident. Medical reports without
adequate rationale on causal relationship are of diminished probative value and do not meet an
employee’s burden of proof.17
In a November 26, 2013 report, Dr. Kung examined appellant and ruled out L4-5
discogenic pain. Although he diagnosed a lumbar condition, he did not provide a firm diagnosis
11

K.B., Docket No. 16-0122 (issued April 19, 2016).

12

Id.

13

Ricky S. Storms, 52 ECAB 349 (2001) (while the opinion of a physician supporting causal relationship need not
be one of absolute medical certainty, the opinion must not be speculative or equivocal. The opinion should be
expressed in terms of a reasonable degree of medical certainty).
14

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship).
15

Supra note 11.

16

Supra note 13.

17

See R.C., Docket No. 15-315 (issued May 4, 2015); Ceferino L. Gonzales, 32 ECAB 1591 (1981).

5

of a particular medical condition.18 Further, Dr. Kung noted a history of a September 12, 2013
work incident,19 but did not offer a specific opinion as to whether this incident caused or
aggravated a diagnosed condition.20
Dr. Ronsivalle’s October 3, 2013 MRI scan results revealed L4-5 small left paracentral
disc protrusion with left foraminal encroachment and L3-4 left lateral disc bulge with mild left
foraminal encroachment. While he noted a history of the accepted September 9, 2013 work
incident, he did not provide an opinion on causal relationship between the accepted employment
incident and the diagnosed conditions.21 Likewise, Dr. Vlasic’s October 3, 2013 addendum to
Dr. Ronsivalle’s report is of limited probative value as he did not offer an opinion as to the cause
of the lumbar conditions.22
Evidence received from appellant’s physical therapist, a physician assistant, and a nurse
practitioner has no probative medical value. Healthcare providers such as, a physical therapist,
physician assistant, or nurse practitioner, are not considered physicians as defined under FECA.23
Likewise, the Form CA-17 reports dated September 19 to November 25, 2013, without legible
signatures, have no probative medical value, as it cannot be established that the author is a
physician.24
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.
The Board notes that the employing establishment executed a Form CA-16 on
September 13, 2013 authorizing medical treatment. The Board has held that where an employing
establishment properly executes a Form CA-16, which authorizes medical treatment as a result of
an employee’s claim for an employment-related injury, it creates a contractual obligation, which
does not involve the employee directly, to pay the cost of the examination or treatment regardless
of the action taken on the claim.25 Although OWCP denied appellant’s claim for an injury, the
18

See Deborah L. Beatty, 54 ECAB 340 (2003) (where the Board found that, in the absence of a medical report
providing a diagnosed condition and a reasoned opinion on causal relationship with the employment incident,
appellant did not meet her burden of proof).
19

The Board notes that while Dr. Kung provided an incorrect date of injury, his description of appellant’s
employment incident corresponds with the history provided on her claim form.
20

See cases cited, supra note 14.

21

Id.

22

Id.

23

The term physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors
and osteopathic practitioners within the scope of their practice as defined by State law. See 5 U.S.C. § 8102(2);
David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as nurses, physician assistants and physical therapists
are not competent to render a medical opinion under FECA).
24

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

25

See D.M., Docket No. 13-535 (issued June 6, 2013). See also 20 C.F.R. §§ 10.300 through 10.304.

6

record does not reflect whether OWCP addressed reimbursement of medical expenses pursuant
to the Form CA-16. Upon return of the case record, it should address that issue.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish a back
injury causally related to the accepted September 9, 2013 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the July 15, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 24, 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

7