United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
DEPARTMENT OF LABOR, MINE SAFETY &
HEALTH ADMINISTRATION, Hindman, KY,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 07-993
Issued: August 20, 2007

Case Submitted on the Record

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

JURISDICTION
On February 10, 20071 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ February 10, 2006 merit decision which affirmed the termination of his
compensation based upon his refusal of an offer of suitable work. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation benefits
effective May 19, 2005 on the grounds that he refused an offer of suitable work.

1

The date of the appeal was determined by the postmark on the envelope received by the Board. See 20 C.F.R.
§ 501.3(d)(2)(ii).

FACTUAL HISTORY
On October 21, 2004 appellant, then a 54-year-old coal mine inspection supervisor, filed
a traumatic injury claim alleging that on October 20, 2004 he injured his back, neck, right wrist,
hand arm and right leg when he slipped and fell on wet steps. He stopped work on October 20,
2004, returned to intermittent light-duty work on November 17, 2004 and then stopped work
again shortly afterwards. Appellant returned to work on January 13, 2005 on an intermittent
basis. The Office accepted the claim for fractured fourth and fifth right hand metacarpal and a
right anterior cruciate ligament tear.2
Dr. Mohammed Q. Islam, an examining physician, conducted a nerve conduction study
(NCS) of the lower extremities on February 24, 2005. He reported the electrodiagnositic studies
revealed a S1 right-sided radiculopathy, which could not be ruled out and normal
electromyography (EMG)/nerve conduction velocity of both lower extremities.
In a March 10, 2005 work capacity evaluation (Form OWCP-5c), Dr. Mukut Sharma, a
treating physician, indicated that appellant was capable of working eight hours with restrictions.
The work limitations included no pushing or pulling more than 10 pounds, no lifting more than
5 pounds, walking and standing up to one hour at a time, twisting up to two hours and no
bending or stooping.
On March 17, 2005 the employing establishment offered appellant a job as a mine safety
and health specialist based on the work restrictions outlined in the March 10, 2005 report of
Dr. Sharma. The employing establishment advised appellant that the job was located in Duluth
Minnesota, outside of his current commuting area. However, the employing establishment
informed him that he was entitled to compensation for relocation expenses.
By letter dated March 28, 2005, the Office advised appellant that a suitable position was
available and that, pursuant to section 8106(c)(2), he had 30 days to either accept the job or
provide an acceptable explanation for refusing the offer. The Office stated that, if appellant
refused the job or failed to report to work within 30 days without reasonable cause, it would
terminate his compensation pursuant to 5 U.S.C. § 8106(c)(2).
On April 14, 2005 the Office received a February 28, 2005 progress note from
Dr. David C. Dome, an examining physician, who noted appellant’s employment injury history
and reviewed medical records by Dr. Sharma. A physical examination revealed limited cervical
spine range of motion, full range of motion of his elbow, positive Tinel’s sign at the cubital
tunnel and excellent lower extremity range of motion. Dr. Dome recommended that appellant
continue with his physical therapy and that he perform only sedentary work. Restrictions
included no pulling, pushing or lifting more than five pounds.
In an April 12, 2005 progress note, Dr. James A. Chaney, a treating physician, noted a
torn right knee anterior cruciate ligament, a right wrist injury, cervical disc disease, lumbar disc
disease, chronic obstructive pulmonary disease and post-traumatic stress disorder.

2

The employing establishment noted that appellant filed for Social Security disability retirement.

2

By letter dated May 3, 2005, the Office advised appellant that he had 15 days in which to
accept the position or it would terminate his compensation.
In a letter dated May 5, 2005, appellant declined the offered position and offered medical
and factual evidence in support of his refusal. He related that he had informed the employing
establishment on April 18, 2005 that he was declining the offered position and was granted an
extension to respond to the job offer. Appellant stated that his injuries had not resolved and that
the nerve damage in his hand and knee was getting worse.
In a March 10, 2005 progress note, Dr. Sharma reported the NCS showed no lower
extremities radiculopathy. He opined that appellant’s back and neck pain were related to his
injury. A physical examination revealed tenderness in the neck and lumbar areas. Appellant
informed Dr. Sharma that the neck and back pain occurred only after the accident.
In a February 28, 2006 work capacity evaluation by Dr. Dome indicated that appellant
was capable of working eight hours. He found that appellant was only capable of performing
sedentary work and recommended that an upper extremity EMG be performed.
Appellant subsequently submitted a March 14, 2005 report from Dr. Muraleedhara P.B.
Menon, an examining Board-certified physiatrist, who diagnosed bitemporal and occipital
headaches, which were secondary to appellant’s neck problems; right knee partial anterior
cruciate ligament tear; healed right wrist fracture and fracture dislocation of the fourth
metacarpal with residual wrist stiffness and chronic pain; posttrauma lumbar and cervical strain
with chronic myofascial pain syndrome; right hand median and ulnar nerve distal neuropathy,
likely due to entrapment and related to the wrist injury; and lumbar and cervical disc
degenerative disease with no evidence of radicular nerve compression. In an attached medical
assessment of appellant’s ability to perform work-related activities, Dr. Menon noted restrictions
on his work capability. He listed that appellant was capable of occasional lifting up to 5 pounds
with his right hand and 15 pounds with his left hand; 1 to 2 hours of standing with a 15 minute
interruption; and sitting up to 4 hours per day with an hour interruption
By decision dated May 19, 2005, the Office terminated appellant’s compensation benefits
effective that date on the grounds that he refused an offer of suitable work.
On May 31, 2005 appellant requested an oral hearing before an Office hearing
representative and submitted additional medical and factual evidence. A hearing before an
Office hearing representative was held on November 29, 2005 at which appellant submitted his
April 18, 2005 letter and testified.
Subsequent to the hearing the Office received progress notes date December 9, 2005 and
January 9, 2006 by Dr. Cesar O. Agtarap, a treating physician and a February 28, 2005 x-ray
interpretation of the right hand. Dr. Agtarap diagnosed moderate-to-severe chronic pain,
lumbago, degenerative disc disease, lumbar radiculopathy, lumbar spine spondylosis, sacroiliac
pain, opioid dependence and status post right wrist fracture, right wrist pain, possible RSD.

3

By decision dated February 10, 2006, the Office hearing representative affirmed the
termination of appellant’s compensation based upon his refusal of an offer of suitable work.3
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides at section 8106(c)(2) that a partially
disabled employee who refuses or neglects to work after suitable work is offered is not entitled to
compensation.4 Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits under section 8106 for refusing to accept or neglecting to
perform suitable work.5 The Board has recognized that section 8106(c) serves as a penalty
provision as it may bar an employee’s entitlement to future compensation and, for this reason,
will be narrowly construed.6 To establish that a claimant has abandoned suitable work, the
Office must substantiate that the position offered was consistent with the employee’s physical
limitations and that the reasons offered for stopping work were unjustified.7 The issue of
whether an employee has the physical ability to perform a modified position offered by the
employing establishment is primarily a medical question that must be resolved by the medical
evidence of record.8
Before compensation can be terminated, however, the Office has the burden of
demonstrating that the employee can work; setting for the specific restrictions, if any, on the
employee’s ability to work and has the burden of establishing that a position has been offered
within the employee’s work restrictions, setting forth the specific job requirements of the
position.9 However, all of appellant’s medical conditions, whether work related or not, must be
considered in assessing the suitability of the position.10

3

The Board notes that, following the February 20, 2006 decision by the Office hearing representative, the Office
received additional evidence. However, the Board may not consider new evidence on appeal. See 20 C.F.R.
§ 501.2(c); Donald R. Gervasi, 57 ECAB ___ (Docket No. 05-1622, issued December 21, 2005); Rosemary A.
Kayes, 54 ECAB 373 (2003).
4

5 U.S.C. § 8106(c)(2).

5

See Bryant F. Blackmon, 56 ECAB ___ (Docket No. 04-564, issued September 23, 2005); Howard Y.
Miyashiro, 51 ECAB 253 (1999).
6

See Richard P. Cortes, 56 ECAB ___ (Docket No. 04-1561, issued December 21, 2004); H. Adrian Osborne,
48 ECAB 556 (1997).
7

See Wayne E. Boyd, 49 ECAB 202 (1997).

8

See John E. Lemker, 45 ECAB 258 (1993); Camillo R. DeArcangelis, 42 ECAB 941 (1991).

9

Linda Hilton, 52 ECAB 476 (2001).

10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment:
Capacity, Chapter 2.814.4(b)(4) (December 1993).

4

Determining Wage-Earning

If possible, the employer should offer suitable reemployment in the location where the
employee currently resides. If this is not practical, the employer may offer suitable
reemployment at the employee’s former duty station.11
To justify termination, the Office must show that the work offered was suitable and must
inform appellant of the consequences of refusal to accept such employment.12 This burden of
proof is applicable if the Office terminates compensation under 5 U.S.C. § 8106(c) for refusal to
accept suitable work.
ANALYSIS
The issue is whether the Office properly found that appellant refused an offer of suitable
work. Appellant was a resident of Kentucky at the time of his accepted injury and when he
began receiving wage-loss compensation. On March 17, 2005 the employing establishment
offered appellant the position of mine safety and health specialist in Duluth, Minnesota. By
decision dated February 10, 2006 an Office hearing representative affirmed the May 19, 2005
decision terminating appellant’s compensation based upon his refusal of an offer of suitable
work.
The Board finds that the Office did not develop the issue of whether work was available
near appellant’s home in Kentucky. As the Board has previously explained: the regulation now
states that the employer should offer suitable reemployment where the employee currently
resides, if possible.13 It was error for the Office to terminate appellant’s compensation benefits
without positive evidence showing such an offer was not possible or practical. The Board notes
that the evidence of record indicates that the offer of employment in Duluth, Minnesota would
have required relocation from appellant’s home in Kentucky, but that the Office did not develop
the facts to ascertain whether suitable reemployment as a mine safety and health specialist was
available near appellant’s home in Kentucky, before requiring the relocation to Minnesota. The
Office adopted the employer’s choice of location without questioning whether a position was
located near appellant’s home in Kentucky.
As it is the Office’s burden of proof to establish that appellant refused a suitable position,
the Office did not meet its burden of proof in this case to terminate appellant’s compensation
benefits pursuant to 5 U.S.C. § 8106.14 Accordingly, the Board reverses the Office’s
February 10, 2006 hearing representative’s decision affirming the May 19, 2005 decision
terminating appellant’s compensation on the grounds that he refused an offer of suitable work.

11

20 C.F.R. § 10.508.

12

See John E. Lemker, supra note 8.

13

Sharon L. Dean, 56 ECAB ___ (Docket No. 04-1707, issued December 9, 2004); see also 20 C.F.R. § 10.508.

14

Barbara R. Bryant, 47 ECAB 715 (1996).

5

CONCLUSION
The Board finds that the Office did not meet its burden to terminate appellant’s
compensation benefits pursuant to 5 U.S.C. § 8106.
ORDER
IT IS HEREBY ORDERED THAT the February 10, 2006 decision of the Office of
Workers Compensation Programs be reversed.
Issued: August 20, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Schaumburg, IL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 14-551
Issued: July 10, 2014

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Acting Chief Judge1
COLLEEN DUFFY KIKO, Judge

On January 13, 2014 appellant timely appealed the August 30, 2013 merit decision of the
Office of Workers’ Compensation Programs (OWCP), which granted a schedule award for right
upper extremity impairment.2 The Board docketed the appeal as No. 14-551.
Appellant, a 37-year-old former letter carrier, has an accepted traumatic injury claim for
right shoulder acromioclavicular (AC) sprain and right bicipital tenosynovitis which occurred on
March 15, 2010.3 She voluntarily resigned within six months of her March 2010 employment
injury. As noted, OWCP issued an August 30, 2013 schedule award for three percent right upper
extremity impairment.4 The decision indicated that appellant’s schedule award was based on the
1

Effective May 20, 2014, Patricia Howard Fitzgerald was appointed Acting Chief Judge.

2

Pursuant to the Federal Employees’ Compensation Act (FECA), 5 U.S.C. §§ 8101-8193 (2006) and 20 C.F.R.
§§ 501.2(c) and 501.3 (2012), the Board has jurisdiction over the merits of this case.
3

OWCP also authorized a November 5, 2010 right shoulder arthroscopy which included subacromial
decompression, distal clavicle excision and open proximal biceps tenodesis.
4

The award was based on the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (2008), which OWCP adopted effective May 1, 2009. See Federal (FECA) Procedure
Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010); Federal (FECA) Procedure
Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6a (February 2013).

May 13, 2013 report of Dr. David M. Zoellick, a Board-certified orthopedic surgeon, and the
June 22, 2013 report of the district medical adviser (DMA). OWCP explained that the
percentage of impairment was calculated by the DMA, who applied the A.M.A., Guides
(6th ed. 2008) to Dr. Zoellick’s examination findings. It further noted that, while Dr. Zoellick did
not submit an actual impairment rating, appellant’s physician stated that appellant’s impairment
rating should be based on the primary diagnosis of bicipital tendinitis.
More than a month prior to issuing its August 30, 2013 schedule award decision, OWCP
received a July 16, 2013 impairment rating from Dr. Zoellick, who found 12 percent right upper
extremity impairment under Table 15-5, Shoulder Regional Grid, A.M.A., Guides 401, 403
(6th ed. 2008). Dr. Zoellick’s July 16, 2013 impairment rating was based on a diagnosis of AC
joint injury, status post distal clavicle resection. OWCP received this evidence on July 26, 2013;
well in advance of the August 30, 2013 schedule award decision. Despite its timely submission,
there is no mention of Dr. Zoellick’s July 16, 2013 impairment rating in OWCP’s
August 30, 2013 decision. Also, because his July 16, 2013 report postdated the DMA’s
June 22, 2013 report, it is apparent the DMA was not privy to Dr. Zoellick’s latest findings.
As the Board’s decisions are final with regard to the subject matter appealed, it is crucial
that OWCP address all relevant evidence received prior to the issuance of its final decision.5 In
this instance, OWCP failed to consider relevant medical evidence it received prior to the
issuance of the August 30, 2013 schedule award. Whether it receives relevant evidence on the
date of the decision or several days prior, such evidence must be considered.6 As OWCP failed
to address all relevant evidenced before it at the time, the case is remanded for a proper review of
the evidence and issuance of an appropriate final decision.

5

20 C.F.R. § 501.6(d); see William A. Couch, 41 ECAB 548, 553 (1990).

6

Willard McKennon, 51 ECAB 145 (1999).

2

IT IS HEREBY ORDERED THAT the August 30, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this order of the Board.7
Issued: July 10, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7

Richard J. Daschbach, Chief Judge, who participated in the preparation of the order, was no longer a member of
the Board after May 16, 2014.

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 12-1581
Issued: February 1, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 17, 2012 appellant filed a timely appeal from a February 6, 2012 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying his claim for a schedule
award. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained
upper extremity impairment due to his accepted cervical condition.
On appeal, appellant contends that the evidence he submitted is sufficient to establish his
claim.

1
2

20 C.F.R. § 8101 et seq.

The Board notes that, following the issuance of the February 6, 2012 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On September 15, 2005 appellant, then a 57-year-old dock clerk, filed an occupational
disease claim (Form CA-2) alleging a cervical condition due to factors of his federal
employment. OWCP accepted the claim for aggravation of preexisting spinal stenosis in the
cervical region.
In a May 18, 2009 report, Dr. Dennis J. Bonner, Board-certified in physical medicine and
rehabilitation, diagnosed cervical radiculopathy and herniated cervical disc. He opined that,
under page 392 of the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (hereinafter, A.M.A., Guides), appellant had an 18 percent
impairment of the whole person.
Appellant submitted electromyography (EMG) and nerve conduction velocity (NCV)
studies dated April 7, 2006 which revealed changes consistent with chronic C5-6 radiculopathy.
An October 24, 2008 x-ray report showed multilevel degenerative disc disease within the
cervical spine and spinal canal stenosis.
On June 7, 2009 appellant filed a claim for a schedule award.
In a May 26, 2009 report, Dr. Bonner reiterated his 18 percent whole person impairment
rating for the cervical spine/radiculopathy diagnoses based on the fifth edition of the A.M.A.,
Guides.
By letter dated July 28, 2009, OWCP requested an impairment rating from Dr. Bonner
based on the sixth edition of the A.M.A., Guides. In an August 4, 2009 report, Dr. Bonner
assigned appellant to class 3 under Table 17-2 of the sixth edition of the A.M.A., Guides and
opined that his scores modified the class to a 19 percent whole person impairment. Appellant
also submitted progress reports from Dr. Bonner for the period May 26, 2009 through
October 14, 2011.
By letter dated September 11, 2009, OWCP notified Dr. Bonner that it did not approve of
schedule awards for whole body impairments and requested a rating of impairment to the left or
right upper extremities within 30 days.
In a December 16, 2009 report, Dr. Bonner opined that appellant had an 18 percent whole
person impairment rating for his cervical spine/radiculopathy diagnoses based on the sixth
edition of the A.M.A., Guides. He noted that appellant had pain and spasms in the cervical
spine, his reflexes were mildly decreased in the right biceps and there was mild decreased
sensitivity in the right arm. Appellant also had persistent neck pain that went up into his right
arm, which was made worse by bending, lifting and carrying.
OWCP referred appellant to Dr. Jeffrey C. Pollock, a Board-certified neurologist, for a
second opinion evaluation. In a July 13, 2010 report, Dr. Pollock reviewed a statement of
accepted facts and appellant’s medical record and conducted a physical examination. He found
that appellant had multiple subjective complaints clinically without any objective findings on
neurological examination. Dr. Pollock opined that appellant’s weakness of multiple muscles of
the upper extremities and patchy sensory dysfunction of the right upper extremity did not fit the
pattern of a cervical radiculopathy. Further, appellant’s restricted neck movement appeared to be

2

exaggerated in appearance. Dr. Pollock concluded that appellant had reached maximum medical
improvement as of July 6, 2010 and had no neurological impairment under the A.M.A., Guides.
On January 24, 2011 an OWCP medical adviser reviewed Dr. Pollock’s July 13, 2010
report and agreed that appellant had no ratable impairment to the right upper extremity based on
the sixth edition of the A.M.A., Guides.
By decision dated February 6, 2012, OWCP denied appellant’s schedule award claim
finding that the medical evidence did not establish a ratable impairment of a scheduled member.
It relied upon OWCP’s medical adviser’s January 24, 2011 report in reaching this determination.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.5 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.6 It is well established that in determining the amount of a
schedule award for a member of the body that sustained an employment-related permanent
impairment, preexisting impairments of the body are to be included.7 A schedule award is not
payable under section 8107 of FECA for an impairment of the whole person.8
A schedule award is not payable for a member, function or organ of the body not
specified in FECA or in the implementing regulations.9 As neither FECA nor the regulations
provide for the payment of a schedule award for the permanent loss of use of the back or spine,
no claimant is entitled to such an award.10 However, as FECA makes provision for the
extremities, a claimant may be entitled to a schedule award for permanent impairment to an

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id.

6

FECA Bulletin No. 09-03 (issued March 15, 2009).

7

See Dale B. Larson, 41 ECAB 481, 490 (1990); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.3(a)(3) (September 1995). This portion of OWCP procedures provide that the impairment
rating of a given scheduled member should include any preexisting permanent impairment of the same member or
function.
8

See Gordon G. McNeill, 42 ECAB 140, 145 (1990).

9

See Tania R. Keka, 55 ECAB 354 (2004).

10

See id. FECA itself specifically excludes the back from the definition of organ. 5 U.S.C. § 8101(19).

3

extremity even though the cause of the impairment originates in the spine, if the medical
evidence establishes impairment as a result of the employment injury.11
The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.12
ANALYSIS
The Board finds that the medical evidence of record fails to establish that appellant
sustained any permanent impairment to an arm based on his accepted cervical condition. OWCP
accepted his claim for aggravation of preexisting spinal stenosis in cervical region. Although
appellant may not receive a schedule award for permanent impairment to his back or spine,13 he
may be entitled to a schedule award for any permanent impairment to his upper extremities,
provided the medical evidence establishes such impairment.14 The medical evidence of record
does not establish that he sustained permanent impairment to his upper extremities due to the
accepted cervical condition.
The Board finds that OWCP properly relied on a January 24, 2011 report from an OWCP
medical adviser who concluded that appellant had no ratable impairment of a scheduled member
under the sixth edition of the A.M.A., Guides. OWCP’s medical adviser properly reviewed the
medical record and found no basis for rating impairment to a scheduled member of the body.15
He reviewed a July 13, 2010 examination by Dr. Pollock, a Board-certified neurologist, to whom
OWCP referred appellant for a second opinion, who found that appellant had multiple subjective
complaints without any objective findings on neurological examination. Dr. Pollock concluded
that appellant had no neurological impairment of the upper extremities under the A.M.A.,
Guides. Based on the clinical findings of Dr. Pollock, OWCP’s medical adviser properly
concluded that there was no medical evidence of impairment to the right upper extremity
resulting from the accepted condition and, therefore, there was no ratable impairment of a
scheduled member under the sixth edition of the A.M.A., Guides.

11

See George E. Williams, 44 ECAB 530 (1993). In 1966, amendments to FECA modified the schedule award
provision to provide for an award for permanent impairment to a member of the body covered by the schedule
regardless of whether the cause of the impairment originated in a scheduled or nonscheduled member.
12

See Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

13

5 U.S.C. § 8101(19); Patricia J. Horney, 56 ECAB 256 (2005).

14

See George E. Williams, supra note 11.

15

The Board notes that it is appropriate for an OWCP medical adviser to review the clinical findings of the
treating physician to determine the permanent impairment. See Federal (FECA) Procedure Manual, Part 3 -Medical, Medical Examinations, Chapter 3.500.5(c) (September 1995); Richard R. LeMay, 56 ECAB 341 (2006).

4

Although Dr. Bonner provided an impairment rating based on the sixth edition of the
A.M.A., Guides, his reports were based on whole person spinal impairment. As noted, FECA
does not authorize schedule awards for loss of use of the spine or the body as a whole.16
Appellant did not submit sufficient medical evidence to establish that he sustained a
permanent impairment to a specified member, organ or function of the body listed in FECA or its
implementing regulations. The medical evidence of record supports that he has no upper
extremity impairment. The Board finds that appellant is not entitled to a schedule award as a
result of his accepted employment-related cervical injury.
On appeal, appellant contends that the evidence he submitted is sufficient to establish his
claim. For the reasons stated above, the Board finds his argument is not substantiated.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he is
entitled to a schedule award for an employment-related upper extremity impairment.
ORDER
IT IS HEREBY ORDERED THAT the February 6, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 1, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board
16

D.A., Docket No. 10-2172 (issued August 3, 2011); J.Q., 59 ECAB 366 (2008).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.A., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION,
Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 13-229
Issued: April 23, 2013

Case Submitted on the Record

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

JURISDICTION
On November 9, 2012 appellant filed a timely appeal from a May 22, 2012 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
August 10, 2010.
On appeal appellant asserts that the opinion of his attending physician is sufficient to
establish that the claimed condition is employment related.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On July 26, 2011 appellant, then a criminal investigator, submitted a traumatic injury
claim alleging that he sustained a left shoulder injury on August 10, 2010 while performing pullups as part of physical training in preparation for a Special Weapons and Tactics (SWAT)
physical fitness test. On the claim form, a witness, Lucas Rothaar, attested that he was aware
that appellant sustained a left shoulder injury on or about the date noted.
By letter dated August 18, 2011, OWCP informed appellant of the type of evidence
needed to support his claim. In a September 6, 2011 statement, appellant repeated that he injured
his shoulder on or about August 10, 2010 while preparing for SWAT tryouts. He stated that after
the incident he experienced intense pain, limited mobility, and loss of function to his left
shoulder, arm and back and ceased training. Appellant indicated that he applied ice and heat and
took over-the-counter medication for two to three weeks but the shoulder did not get better and
that he first went to his primary care physician, Dr. Lawrence D. Barr, a Board-certified internist,
on September 14, 2010 and that Dr. Barr referred him to an orthopedic surgeon.
Appellant stated that on September 29, 2010 he began temporary duty in San Diego,
California, and on September 30, 2010 saw Dr. William Previte, a Board-certified orthopedist,
who diagnosed a possible superior labral tear from anterior to posterior (SLAP) of the left
shoulder, which was confirmed by an October 12, 2010 magnetic resonance imaging (MRI) scan.
He indicated that Dr. Previte recommended surgery but that he decided to wait until his
temporary-duty assignment ended and he returned home to Philadelphia, Pennsylvania, before
having the surgery. Appellant continued that, following his return to Philadelphia, on January 4,
2011, he saw Dr. Michael G. Ciccotti, Board-certified in orthopedic surgery, who reviewed the
MRI scan study and agreed that appellant needed surgery, which was performed by Dr. Ciccotti
on February 4, 2011. He then described his follow-up care.
Appellant submitted supportive medical evidence including a September 14, 2010 form
report in which Dr. Barr noted a history that appellant was doing weighted pull-ups, followed by
four weeks of left shoulder pain. Dr. Barr provided physical examination findings and diagnosed
a possible left rotator cuff tear. An October 12, 2010 MRI scan study of the left shoulder
demonstrated mild rotator cuff tendinosis; a SLAP 2 lesion, possibly chronic; and moderate
acromioclavicular joint arthrosis and hypertrophy. In reports dated January 4, 2011, Dr. Ciccotti
noted appellant’s report that in August 2010 he felt a sharp pain in his left shoulder while doing
pull-ups and had continued pain. He described physical examination findings and advised that
appellant’s examination and the MRI scan study were consistent with a SLAP tear and that
appellant was a candidate for left shoulder arthroscopic repair. In reports dated February 15,
March 22, and May 10, 2011, Dr. Ciccotti described appellant’s postoperative care. On July 26,
2011 he indicated that appellant was doing well and could begin full resistance training.2
By decision dated October 30, 2011, OWCP found that the medical evidence did not
establish that the claimed condition was related to an established work-related event.

2

Appellant also submitted a medical report that predated the claimed injury and a progress note by a therapist
regarding durable medical equipment.

2

On February 22, 2012 appellant requested reconsideration. He provided a copy of a
February 4, 2011 operative report in which Dr. Ciccotti stated that the indications for surgery
included a history of persistent left shoulder pain and weakness with difficulty with overhead
activity and that examination and MRI scan findings were consistent with a SLAP tear. The
postoperative diagnosis was left shoulder SLAP tear with anterior labral fraying. In a
February 17, 2012 report, Dr. Ciccotti indicated that appellant was under his care for a left
shoulder condition. He stated that a labrum tear was a detachment of the cartilage in the
shoulder that caused pain, instability and weakness, and that it could occur with repetitive stress,
like weight training or throwing, or from an acute injury, such as falling. Dr. Ciccotti noted that
appellant reported that he felt pain as he was performing weighted pull-ups on or around
August 10, 2010 and, according to medical evidence, it was possible that appellant’s labrum
injury could have been a direct result of performing weighted pull-ups on August 10, 2010.
In a merit decision dated May 22, 2012, OWCP denied modification of the prior decision.
It noted that Dr. Ciccotti’s February 17, 2012 was couched in speculative terms and was
insufficient to establish appellant’s claim.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury. Regardless of whether the asserted claim involves traumatic
injury or occupational disease, an employee must satisfy this burden of proof.3
OWCP regulations, at 20 C.F.R. § 10.5(ee) define a traumatic injury as a condition of the
body caused by a specific event or incident or series of events or incidents within a single
workday or shift.4 To determine whether an employee sustained a traumatic injury in the
performance of duty, OWCP must determine whether “fact of injury” is established. First, an
employee has the burden of demonstrating the occurrence of an injury at the time, place and in
the manner alleged, by a preponderance of the reliable, probative and substantial evidence.
Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish a causal relationship between the employment incident and the alleged
disability and/or condition for which compensation is claimed. An employee may establish that
the employment incident occurred as alleged, but fail to show that his or her disability and/or
condition relates to the employment incident.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
3

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

4

20 C.F.R. § 10.5(ee) (1999, 2011); Ellen L. Noble, 55 ECAB 530 (2004).

5

Gary J. Watling, supra note 3.

6

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

3

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
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
OWCP found, and the Board agrees, that the August 10, 2010 employment incident
occurred as alleged. The Board, however, finds that the medical evidence of record is
insufficient to establish that appellant sustained an injury or medical condition caused by this
incident.
The October 12, 2010 left shoulder MRI scan did not include an opinion as to the cause
of any diagnosed condition. 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.9
In a September 14, 2010 report, Dr. Barr merely noted appellant’s report that he had a
four-week history of left shoulder pain following weighted pull-ups. He diagnosed possible left
rotator cuff tear. As Dr. Barr did not provide a definitive diagnosis or any explanation of a
mechanism of injury, his opinion is not sufficient to establish that appellant sustained a left
shoulder injury on August 10, 2010.10
Dr. Ciccotti performed left shoulder arthroscopic repair on a February 4, 2011. His
postoperative diagnosis was left shoulder SLAP tear with anterior labral fraying. In a
February 17, 2012 report, Dr. Ciccotti described a labrum tear as a detachment of the cartilage in
the shoulder causing pain, instability and weakness which could occur with repetitive stress, such
as weight training or throwing, or from an acute injury, such as falling. He indicated that
appellant felt pain as he was performing weighted pull-ups on or around August 10, 2010 and,
according to medical evidence, it was possible that appellant’s labrum injury could have been a
direct result of performing weighted pull-ups on August 10, 2010.
The Board has long held that an 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 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.11 Furthermore, medical opinions that are

7

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

8

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

9

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

10

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

11

Patricia J. Glenn, 53 ECAB 159 (2001).

4

speculative or equivocal in character are of diminished probative value.12 The opinion should be
expressed in terms of a reasonable degree of medical certainty.13 Dr. Ciccotti merely indicated
that it was possible that appellant’s SLAP lesion could have been a result of the August 10, 2010
incident. His report is therefore speculative in nature and insufficient to meet appellant’s burden
of proof.
As appellant did not submit sufficient medical evidence to establish that he sustained a
diagnosed condition caused by the August 10, 2010 employment incident, he did not meet his
burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that he sustained an injury causally
related to the August 10, 2010 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the May 22, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 23, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

12

D.D., 57 ECAB 734 (2006).

13

Ricky S. Storms, 52 ECAB 349 (2001).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.K., Appellant
and
U.S. POSTAL SERVICE, RANSON POST
OFFICE, Ranson, WV, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 21-1155
Issued: March 23, 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 June 4, 2021 appellant, through counsel, filed a timely appeal from a May 21, 2021
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. 3

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
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the May 21, 2021 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.

ISSUE
The issue is whether appellant has met her burden of proof to establish her remaining
claims for intermittent disability from work for the period March 5 through April 9, 2021, causally
related to her accepted April 30, 2018 employment injury.
FACTUAL HISTORY
On May 8, 2018 appellant then a 41-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on April 30, 2018 she sustained a strained left hip/buttock when she
was startled by a snake and fell backwards when delivering mail while in the performance of duty.
She stopped work on the filing date of her claim. On June 8, 2018 OWCP initially accepted the
claim for strain of the muscle, fascia, and tendon of the left hip, and unspecified strain of the left
hip. It later expanded acceptance of the claim to include trochanteric tendinitis/bursitis of the left
hip and strain of the gluteus medius. OWCP paid appellant wage-loss compensation on the
supplemental rolls as of June 23, 2018 and on the periodic rolls commencing January 6, 2019. It
again paid her intermittent wage-loss compensation on the supplemental rolls as of September 15,
2019, following her return to part-time limited-duty work on September 23, 2019.
Appellant filed several claims for compensation (Form CA-7) for disability from work for
the period February 27 through April 9, 2021. On March 29, and April 2 and 13, 2021 she filed
an accompanying time analysis form (Form CA-7a) wherein she claimed that she used leave
without pay (LWOP) as follows: eight hours each on February 27, March 13, 16, 20, 23, and 30,
and April 2, and 3, 2021 due to her days off work; two hours on March 1, 2021; 1.34 hours on
March 3, 2021; 4.20 hours on March 4, 2021; eight hours each on March 5 and 6, 2021 to receive
an injection in her physician’s office; 3.48 hours on March 8, 2021; 2.35 hours on March 9, 2021;
eight hours on March 11, 2021 due to being placed off work by her physician; eight hours each on
March 12, 15, 19, 22, 29 and April 8 and 9, 2021 due to hip pain; 1.46 hours on March 24, 2021;
3.08 hours on March 25, 2021; 2.02 hours on March 31, 2021; 2.85 hours on April, 1, 2021; 2.59
hours on April 6, 2021; and 4.45 hours on April 7, 2021.
In support of her claim, appellant submitted medical reports dated March 4 and 24, 2021
from Juris Eyler, a physician assistant. Mr. Eyler diagnosed pain, unilateral primary osteoarthritis,
other articular cartilage disorders of the left hip; sacroiliitis, not elsewhere classified; difﬁculty in
walking, not elsewhere classiﬁed, and trochanteric bursitis of the left hip. He advised that appellant
could continue to perform sedentary work with restrictions and indicated that her absences from
work for a partial day on March 4, 2021 and a full day on March 5, 2021 should be excused due
to a hip injection she received on March 4, 2021. On March 24, 2021 Mr. Eyler restricted her to
work four-to-six hours per day, three- to four-hour days per week, due to flare-ups of pain and
other symptoms effective March 3, 2021.
OWCP, in a development letter dated March 29, 2021, informed appellant that the evidence
submitted was insufficient to establish her claim for wage-loss compensation. It advised her of
the type of medical evidence necessary to establish her disability claim and afforded her 30 days
to submit the requested evidence.

2

In a separate letter dated March 29, 2021, OWCP requested that the employing
establishment indicate whether work was available for appellant on February 27 and March 5, 6,
11, and 12, 2021.
OWCP subsequently paid appellant wage-loss compensation on the supplemental rolls for
intermittent disability from work for the period February 13 through 26 and March 8 and 9, 2021.
OWCP received an April 3, 2020 left hip arthrogram report by Dr. Taik-Kun Kim, a Boardcertified diagnostic radiologist. Dr. Kim noted that the arthrogram was performed prior to a
magnetic resonance imaging (MRI) scan. He provided an impression that the arthrogram was
successful and uncomplicated.
On April 6, 2021 the employing establishment responded to OWCP’s March 29, 2021
letter, noting that no work was available on February 27, 2021 and eight hours of work was
available on March 5, 6, 11, and 12, 2021.
In an April 16, 2021 letter, OWCP requested that the employing establishment provide
whether limited-duty work was available for appellant on intermittent dates during the period
March 13 through April 9, 2021.
In an initial response dated April 22, 2021, the employing establishment indicated that up
to six hours of limited-duty work per day was available on March 13, 15, 16, 19, 20, 22, 23, 29,
30, 31 and April 2, 3, 8, and 9, 2021. It indicated that medical evidence dated March 24, 2020
provided that appellant could work four-to-six hours per day, three-to-four days per week as
tolerated.
On April 28, 2021 the employing establishment further responded that appellant had days
off from work and was off work based on her physician’s order during the period March 13 through
April 9, 2021. It noted that her days off from work were March 13, 16, 20, 23, and 30 and
April 2, 2021. The employing establishment also noted that appellant was off from work on
March 15, 19, 22, and 29 and April 6 and 9, 2021 based on her physician’s order. Appellant
worked 5.98 hours on March 31, 2021.
OWCP subsequently paid appellant wage-loss compensation on the supplemental rolls for
intermittent disability from work for the periods March 13 through 26, 2021 and March 31 through
April 7, 2021.
OWCP continued to receive medical evidence. In an April 3, 2021 left hip MRI arthrogram
report, Dr. John M. Filigenzi, a Board-certified diagnostic radiologist, provided an impression of
mild left hip chondromalacia. Dr. Filigenzi related that appellant had a complex tear of the
acetabular labrum extending from the anterior-superior labrum through the posterior-superior
labrum, more severe anteriorly as detailed in his report. He also provided impressions of mild
degenerative changes of the sacroiliac joints and pubic symphysis, based on review of an April 1,
2020 pelvis MRI scan.
Dr. S. Shar Hashemi, a Board-certified surgeon, noted in reports dated May 10 and 14,
2021 that appellant’s history of a 2018 employment-related left hip injury. He discussed:
examination findings and diagnosed injury of cutaneous sensory nerve at hip and thigh level, left
3

leg, initial encounter; injury of other nerves at hip and thigh level, left leg, initial encounter; and
causalgia of the left lower limb. Dr. Hashemi placed appellant off work for one month
commencing April 29 and May 14, 2021, respectively.
A May 6, 2021 report by Dr. Raj Parekh, an anesthesiologist, noted appellant’s history of
injury, discussed examination findings, and provided impressions of high risk medication
monitoring narcotics, left hip chronic pain syndrome, unspecified and uncomplicated opioid use,
generalized anxiety disorder, and left hip labral tear. Dr. Parekh related that there was no doubt
that appellant’s left hip pain was causing significant disability and pain. He noted that she reported
that prior to her accepted employment injury, she was quite active, but now she was limited by her
pain and could not adequately perform her work duties.
In a May 21, 2021 decision, OWCP authorized payment of wage-loss compensation for
eight hours on February 27, 2021 and two hours each on March 13, 15, 16, 19, 20, 22, 23, 29, 30,
and 31 and April 2, 3, 8, and 9, 2021. It also noted that appellant had previously received
intermittent wage-loss compensation for March 1, 3, 4, 8, 9, 17, 24, 25, 31, and April 1, 6, and
9, 2021. The claim remained denied, however, as appellant had not provided medical evidence
establishing that she was disabled from work as a result of her accepted work -related medical
conditions for the remainder of the claimed period.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.5 For each period of
disability claimed, the employee has the burden of proof to establish that he or she was disabled
from work as a result of the accepted employment injury.6 Whether a particular injury causes an
employee to become disabled from work, and the duration of that disability, are medical issues
that must be proven by a preponderance of probative and reliable medical opinion evidence.7
Under FECA, the term disability means an incapacity because of an employment injury, to
earn the wages the employee was receiving at the time of the injury.8 When, however, the medical
evidence establishes that the residuals or sequelae of an employment injury are such that, from a

4

Supra note 2.

5

See D.S., Docket No. 20-0638 (issued November 17, 2020); F.H., Docket No. 18-0160 (issued August 23, 2019);
C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40
ECAB 1143 (1989).
6

See L.F., Docket No. 19-0324 (issued January 2, 2020); T.L., Docket No. 18-0934 (issued May 8, 2019);
Fereidoon Kharabi, 52 ECAB 291, 293 (2001).
7

See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).

8

Id. at § 10.5(f); see, e.g., G.T., 18-1369 (issued March 13, 2019); Cheryl L. Decavitch, 50 ECAB 397 (1999).

4

medical standpoint, prevent the employee from continuing in his or her employment, he or she is
entitled to compensation for any loss of wages.9
To establish causal relationship between the disability claimed and the employment injury,
an employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such causal relationship.10 The opinion of the physician 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.11
For a routine medical appointment, a maximum of four hours of compensation for time lost
to obtain medical treatment is usually allowed.12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish her remaining
claims for intermittent disability from work for the period March 5 through April 9, 2021, causally
related to her accepted April 30, 2018 employment injury. Appellant filed a series of CA-7 forms
for intermittent disability from work commencing February 27, 2021. The record reflects that
OWCP has paid intermittent wage-loss compensation commencing February 27, 2021 for the dates
on which eight hours of work was not made available by the employing establishment and for the
dates on which appellant received authorized medical treatment.
OWCP received reports from medical providers regarding appellant’s disability status
during the relevant period. Several reports were submitted by Mr. Eyler, a physician assistant. In
a report dated March 4, 2021, Mr. Eyler advised that appellant’s absences from work for a partial
day on March 4, 2021 and a full day on March 5, 2021 should be excused due to a hip injection
she received on March 4, 2021. OWCP paid appellant wage-loss compensation for the time she
lost from work to receive the hip injection on March 4, 2021; however, it denied her claim for
wage-loss compensation commencing March 5, 2021 as Mr. Eyler’s opinion regarding appellant’s
disability status was of no probative value. 13 On March 24, 2021 Mr. Eyler restricted her to work
four to six hours per day, three to four hour days per week, due to flare -ups of pain and other
symptoms effective March 3, 2021. The Board has held that the reports of a physician assistant
are of no probative value as a physician assistant is not considered a physician as defined under
FECA and, therefore, is not competent to provide a medical opinion. The reports from Mr. Eyler

9

G.T., id.; Merle J. Marceau, 53 ECAB 197 (2001).

10

See S.J., Docket No. 17-0828 (issued December 20, 2017); Kathryn E. DeMarsh, 56 ECAB 677 (2005).

11

C.B., Docket No. 18-0633 (issued November 16, 2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler,
45 ECAB 365 (1994).
12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Compensation Claims, Chapter 2.901.19(c)
(February 2013); see also K.A., Docket No. 19-0679 (issued April 6, 2020).
13

D.B., Docket No. 20-0192 (issued November 2, 2020); S.K., Docket No. 19-0272 (issued July 21, 2020).

5

are, therefore, insufficient to establish appellant’s claim, except to establish that appellant received
treatment on the dates he provided authorized medical treatment.14
OWCP also received reports from Dr. Hashemi. In a report dated May 10, 2021,
Dr. Hashemi placed appellant off work for one month commencing April 29, 2021. He noted her
history of injury and diagnosed injury of cutaneous sensory nerve at the hip and thigh level of left
leg and causalgia of the left lower limb. However, Dr. Hashemi did not explain, with rationale,
how or why appellant was unable to perform her regular work on the claimed dates of disability
due to the effects of her accepted conditions. His other May 14, 2021 report also did not address
the relevant period of claimed disability. The Board has held that a report is of limited probative
value regarding causal relationship if it does not contain medical rationale explaining how a given
medical condition/period of disability has an employment-related cause.15 For these reasons, the
Board finds that Dr. Hashemi’s reports are insufficient to establish appellant’s disability claim.
Appellant also submitted a May 6, 2021 report from Dr. Parekh. Dr. Parekh noted a history
of the April 30, 2018 employment injury. He diagnosed, inter alia, left hip chronic pain syndrome
and left hip labral tear. Dr. Parekh opined that appellant’s hip pain caused her disability from
work. However, he did not offer an opinion as to whether her disability on the claimed dates were
causally related to the accepted condition. The Board has held that medical evidence that does not
offer an opinion regarding the cause of an employee’s condition or disability is of no probative
value on the issue of causal relationship. 16 Therefore, this evidence is insufficient to establish
appellant’s disability claim.
Likewise, Dr. Kim’s April 3, 2020 procedure note is insufficient to establish appellant’s
disability claim. In his April 3, 2020 note, he advised that a left hip arthrogram was successful
and uncomplicated. However, Dr. Kim did not provide an opinion addressing whether appellant
had disability on the claimed dates causally related to an accepted condition and, as such, his note
is of no probative value.17
Appellant submitted left hip MRI arthrogram reports from Dr. Kim and Dr. Filigenzi. The
Board has held, however, that diagnostic studies, standing alone, lack probative value on the issue

14

Section 8101(2) of FECA provides that medical opinions can only be given by a qualified physician. This section
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by state law. 5 U.S.C. § 8101(2); 20 C.F.R.
§ 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1)
(January 2013); M.M., Docket No. 20-0019 (issued May 6, 2020); K.W., 59 ECAB 271, 279 (2007); David P.
Sawchuk, 57 ECAB 316, 320 n.11 (2006); see also D.B., id.; E.T., Docket No. 17-0265 (issued May 25, 2018)
(physician assistants are not considered physicians under FECA).
15

See T.S., Docket No. 20-1229 (issued August 6, 2021); S.K., Docket No. 19-0272 (issued July 21, 2020);
T.T., Docket No. 18-1054 (issued April 8, 2020); Y.D., Docket No. 16-1896 (issued February 10, 2017).
16

See T.S., id.; J.M., Docket No. 19-1169 (issued February 7, 2020); A.L., 19-0285 (issued September 24, 2019);
L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
17

Id.

6

of causal relationship as they do not address whether the accepted employment injuries resulted in
appellant’s period of disability on specific dates. 18
For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work during the claimed period as a result of the accepted
employment injury. 19 Because appellant has not submitted rationalized medical opinion evidence
sufficient to establish employment-related disability during the claimed period due to her accepted
conditions, the Board finds that she has not met her burden of proof to establish h er 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 her remaining
claims for intermittent disability from work for the period March 5 through April 9, 2021, causally
related to her accepted April 30, 2018 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the May 21, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 23, 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

18

See T.S., id.; D.M., Docket No. 20-0548 (issued November 25, 2020); O.C., Docket No. 20-0514 (issued
October 8, 2020); R.J., Docket No. 19-0179 (issued May 26, 2020).
19

Supra note 6.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.L., Appellant
and
U.S. POSTAL SERVICE, CASTLE SHANNON
POST OFFICE, Pittsburgh, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-1467
Issued: July 24, 2020

Case Submitted on the Record

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

JURISDICTION
On June 27, 2019 appellant, through counsel, filed a timely appeal from a June 3, 2019
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.

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.

ISSUE
The issue is whether appellant has met her burden of proof to establish a left lower
extremity condition causally related to the accepted March 30, 2018 employment incident.
FACTUAL HISTORY
On April 19, 2018 appellant, then a 37-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that on March 30, 2018 she sustained a stress fracture of the
neck of her left femur when she tripped on a cracked sidewalk and fell on her left knee while in
the performance of duty. On the reverse side of the claim form, her immediate supervisor asserted
that, although she claimed a March 30, 2018 injury, she did not report it to him until
April 19, 2018. Appellant stopped work on April 5, 2018.
In a narrative statement dated April 19, 2018, appellant provided further details of her
March 30, 2018 fall and indicated that her left hip pain increased over the period March 31 through
April 2, 2018. She advised that on April 3, 2018 her left leg felt weak and she tripped on a step
while delivering mail and fell on her left knee. Appellant noted that she was able to finish her
work shift on April 3, 2018. She indicated that she underwent open reduction internal fixation
(ORIF) surgery on April 9, 2018 in order to stabilize the stress fracture of her left femur neck.3
In a letter dated April 20, 2018, the employing establishment controverted appellant’s
claim, noting the lack of medical evidence needed to establish causal relationship between the
March 30, 2018 incident and her left lower extremity condition.
Brian Oswald, a physician assistant, indicated in an April 27, 2018 note that appellant was
under his care for a left hip fracture and was temporarily disabled until approximately
August 1, 2019.
In a development letter dated May 24, 2018, OWCP requested that appellant submit
additional evidence in support of her claim for a March 30, 2018 traumatic injury. It advised her
of the type of factual and medical evidence needed and provided a questionnaire for her
completion. OWCP afforded appellant 30 days to respond.
On June 18, 2018 OWCP received appellant’s completed questionnaire dated June 14,
2018 in which she discussed the March 30, 2018 fall and indicated that she sustained no further
injury after March 30, 2018. Appellant provided a timeline regarding the course of her increasing
left lower extremity symptoms from March 30 through April 5, 2018.
In an attending physician’s report (Form CA-20) dated May 29, 2018, Dr. Ivan Tarkin, a
Board-certified orthopedic surgeon, listed the date of injury as March 30, 2018 and the “history of
the employment injury” as left hip fracture. He diagnosed left hip fracture and checked a box
marked “Yes” indicating that the diagnosed condition was caused or aggravated by an employment
activity. Dr. Tarkin noted that he had performed ORIF surgery to treat the left hip fracture and

3

There is no indication in the case record that OWCP has authorized the referenced April 9, 2018 surgery.

2

that appellant was totally disabled from work from April 5, 2018 through approximately
August 1, 2018.
In a letter dated May 30, 2018, Dr. Tarkin noted that he had seen appellant in his office
that day due to her stress fracture, and that she would return in two months for further evaluation
of her prognosis.
By decision dated June 25, 2018, OWCP accepted that the March 30, 2018 fall occurred in
the performance of duty, as alleged. However, it denied appellant’s traumatic injury claim, finding
that she had not submitted sufficient evidence to meet her burden of proof to establish causal
relationship between a medical condition and the accepted March 30, 2018 employment incident.
On July 2, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
Appellant submitted an April 6, 2018 report from Dr. Jared Crasto, a Board-certified
orthopedic surgeon, who indicated that she reported multiple ground-level falls in the previous
week. She advised that she landed on her left knee and developed pain in her left hip. On physical
examination of the left lower extremity, Dr. Crasto observed pain with leg-rolling and straight leg
raising. He diagnosed left femoral neck stress fracture, noting that a magnetic resonance imaging
(MRI) scan demonstrated this condition. Dr. Crasto indicated that ORIF surgery would be
performed if appellant’s left hip was not infected.
In a discharge report dated April 12, 2018, Dr. Rebecca Mancoll, a Board-certified
internist, and Dr. Sameera Nadimpalli indicated in the history section of the report that appellant
reported suffering hip, thigh, and back pain “in the context of multiple recent falls” and was found
to have a stress injury to the left femoral neck, as well as left hip effusion. The physicians further
noted in the history section that the etiology of appellant’s condition was thought to be overuse.
Dr. Mancoll and Dr. Nadimpalli provided a discharge diagnosis of stress fracture and indicated
that an April 5, 2018 MRI scan of her left lower extremity demonstrated marrow edema about the
medial aspect of the left femoral neck, moderate-sized left-sided joint effusion, and marrow edema
about the left ischial tuberosity adjacent to the hamstring.
In an April 27, 2018 report, Dr. Tarkin recommended continued weight-bearing activity
and noted that appellant was unable to return to work until an estimated return date of
August 1, 2018. He noted that an x-ray of the left hip showed maintenance of alignment of her
left hip fracture.4
Dr. Karl J. Henrikson, a Board-certified orthopedic surgeon, noted in a May 30, 2018
report that appellant had remaining groin pain and mild lateral hip soreness as she ambulated with
a cane. He diagnosed status post sliding hip screw fixation of a left femoral neck stress fracture.
4

Appellant submitted an April 6, 2018 x-ray which contained an impression of no displaced fractures of the left
femur and no radiographic correlate of the suspected stress fracture involving the left femoral neck. An April 27,
2018 x-ray contained an impression of intact and unchanged left hip internal fixation hardware without progression
of the femoral neck stress fracture. The case record also contains a copy of Dr. Tarkin’s April 9, 2018 report of left
femur surgery.

3

Dr. Henrikson opined that appellant likely sustained her stress fracture due to increased ambulation
as a mail carrier and became symptomatic due to her fall.
During the hearing held on November 16, 2018 appellant testified regarding her March 30,
2018 fall and the treatment she received for her left lower extremity condition. She indicated that
she did not sustain a new injury when she fell again on April 3, 2018.
After the hearing, appellant submitted a copy of the previously submitted May 30, 2018
report of Dr. Henrikson in a version which was cosigned by Dr. Tarkin. She also submitted a
July 11, 2018 report in which Dr. Tarkin observed that her pain had improved compared to its
presurgery state, but that she still had lateral hip pain. In an October 10, 2018 report, Dr. Tarkin
noted that appellant, who remained off work, had been bearing weight as tolerated on the left leg,
but still experienced some left hip irritation and muscle aches.5
By decision dated January 31, 2019, OWCP’s hearing representative affirmed the June 25,
2018 decision, finding that the medical evidence of record did not establish causal relationship
between appellant’s left lower extremity condition and the accepted March 30, 2018 employment
incident.
On March 5, 2019 appellant, through counsel, requested reconsideration of the January 31,
2019 decision. Attached to the request was a narrative report from Dr. Tarkin dated
February 22, 2019. Dr. Tarkin noted that appellant had presented on April 5, 2018 with left hip
pain after multiple reported falls at work. He indicated that, consistent with overuse syndrome,
her MRI scan revealed tendinitis of ipsilateral hip flexors, abductors, and hamstrings, as well as
hip effusion. Dr. Tarkin noted that appellant underwent surgery on April 9, 2018 without
complication and noted that a computerized tomography scan demonstrated that her left femoral
fracture was healing without evidence of avascular necrosis. He advised that on November 28,
2018 she reporting having continuing pain and he informed her that hardware irritation was a
potential cause. Dr. Tarkin noted that he and appellant mutually agreed that a physical job such
as carrying mail would be unrealistic at that point, and sedentary work was suggested as the most
reasonable form of employment. On January 30, 2019 appellant reported continuing hip and groin
pain and also complained of new back pain with radicular symptoms. Dr. Tarkin indicated that
she sustained a femoral neck stress fracture “from presumed overuse.”
By decision dated June 3, 2019, OWCP denied modification of the January 31, 2019
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable

5

Appellant also submitted an October 10, 2018 x-ray of the left hip which contained an impression of status post
ORIF of a left femoral neck stress fracture without hardware complication or fracture malalignment.

4

time limitation period of FECA,6 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.7 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.8
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.9 The second component is whether the employment incident caused a personal injury.10
Rationalized medical opinion evidence is required to establish causal relationship. The
opinion of the physician must be based on a complete factual and medical background, 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 incident.11
Neither the mere fact that a disease or condition manifests itself during a period 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.12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a left lower
extremity condition causally related to the accepted March 30, 2018 employment incident.
In support of her claim for a March 30, 2018 traumatic injury, appellant submitted a
May 30, 2018 report from Dr. Tarkin and Dr. Henrikson who noted that she had remaining groin
pain and mild lateral hip soreness as she ambulated with a cane. The physicians diagnosed status
post sliding hip screw fixation of a left femoral neck stress fracture. Dr. Tarkin and Dr. Henrikson
opined that appellant likely sustained her stress fracture due to increased ambulation as a mail
carrier and “became symptomatic due to [appellant’s] fall.” Although Dr. Tarkin and
Dr. Henrikson generally mentioned a fall, they did not specifically identify the March 30, 2018
fall at work as a causative factor or otherwise provide a rationalized medical opinion explaining
6

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
7

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
8
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
9

B.P., Docket No. 16-1549 (issued January 18, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

10

M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989).

11

S.S., Docket No. 18-1488 (issued March 11, 2019).

12

J.L., Docket No. 18-1804 (issued April 12, 2019).

5

how that fall would have been competent to cause a diagnosed condition. The Board has held that
a report is of limited probative value regarding causal relationship if it does not contain medical
rationale explaining how an employment activity could have caused or aggravated a medical
condition.13 Therefore, this report is insufficient to establish appellant’s claim.
In a form report dated May 29, 2018, Dr. Tarkin listed the date of injury as March 30, 2018
and the “history of the employment injury” as left hip fracture. He diagnosed left hip fracture and
checked a box marked “Yes” to indicate that the diagnosed condition was caused or aggravated by
an employment activity. Appellant’s burden of proof includes the necessity of furnishing an
affirmative opinion from a physician who supports his or her conclusion with sound medical
reasoning.14 Dr. Tarkin provided no rationale for his opinion on causal relationship. The Board has
held that when a physician’s opinion on causal relationship consists only of checking a box marked
“Yes” to a form question, without more by the way of medical rationale, that opinion is of limited
probative value and is insufficient to establish causal relationship.15 As such, Dr. Tarkin’s May 29,
2018 report is insufficient to discharge appellant’s burden of proof.
In a February 22, 2019 report, Dr. Tarkin noted that appellant had presented on April 5,
2018 with left hip pain after multiple reported falls at work. He indicated that, consistent with
overuse syndrome, her MRI scan revealed tendinitis of ipsilateral hip flexors, abductors, and
hamstrings, as well as hip effusion. Dr. Tarkin noted that appellant sustained a femoral neck stress
fracture “from presumed overuse.” He referenced an overuse injury to the left lower extremity,
but he did not identify the source of this ostensible overuse and, therefore, this aspect of his report
fails to provide an opinion that there was an employment-related cause for her left lower extremity
condition.16 The Board notes that this report is of no probative value regarding appellant’s claimed
March 30, 2018 traumatic injury because Dr. Tarkin did not provide an opinion that her left lower
extremity condition was related to the accepted March 30, 2018 employment incident. The Board
has held that medical evidence that does not offer an opinion regarding the cause of an employee’s
condition or disability is of no probative value on the issue of causal relationship.17 Therefore,
Dr. Tarkin’s February 22, 2018 report is insufficient to establish appellant’s claim.
Appellant submitted other reports in support of her traumatic injury claim, but these reports
are of no probative value because they do not contain an opinion that a diagnosed left lower
extremity condition was causally related to the accepted March 30, 2018 employment incident. In
a letter dated May 30, 2018, Dr. Tarkin noted that he had seen her in his office that day due to her
stress fracture. On April 6, 2018 Dr. Crasto indicated that appellant reported multiple ground13

See Y.D., Docket No. 16-1896 (issued February 10, 2017).

14

J.A., Docket No. 18-1586 (issued April 9, 2019); Lillian M. Jones, 34 ECAB 379, 381 (1982).

15

Id.

16

Dr. Tarkin also indicated that on November 28, 2018 appellant reported continuing pain and he informed her that
hardware irritation from her April 9, 2018 left femur surgery was a potential cause. However, it is noted that this
mention of a potential cause for her symptoms would not support her claim for an employment injury as the April 9,
2018 surgery has not been accepted as necessitated by an employment condition.
17

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

6

level falls in the previous week, and he diagnosed left femoral neck stress fracture. In an April 12,
2018 report, Dr. Mancoll and Dr. Nadimpalli noted in the history section of the report that the
etiology of her left lower extremity condition was thought to be overuse, but they did not provide
their own opinion that there was an employment-related cause for the condition.18 In an April 27,
2018 report, Dr. Tarkin recommended continued weight-bearing activity and, in a July 11, 2018
report, he observed that appellant’s pain had improved compared to its presurgery state. On
October 10, 2018 he noted that she had been bearing weight as tolerated on the left leg, but still
experienced some left hip irritation and muscle aches. Because these reports do not contain an
opinion that, a diagnosed condition was causally related to the accepted March 30, 2018
employment incident, they are of no probative value regarding appellant’s claim for a March 30,
2018 traumatic injury to the left lower extremity.19
Appellant submitted several diagnostic reports, including an MRI scan dated April 5, 2018
and x-rays dated April 6 and 27 and October 10, 2018. The Board has held that diagnostic test
reports, standing alone, lack probative value as they do not provide an opinion on causal
relationship between a given employment incident and a diagnosed condition.20 As such, these
reports are insufficient to establish appellant’s claim.
Appellant also submitted an April 27, 2018 report of Mr. Oswald, a physician assistant.
This report, however, is of no probative value on the underlying issue of this case as physician
assistants are not considered physicians as defined under FECA.21
As appellant has not submitted rationalized medical evidence establishing that her left
lower extremity condition is causally related to the accepted March 30, 2018 employment incident,
the Board finds that she has not met her burden of proof.22
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.

18

Dr. Mancoll and Dr. Nadimpalli noted that appellant reported multiple recent falls and provided a discharge
diagnosis of stress fracture.
19

See supra note 17.

20

C.S., Docket No. 19-1279 (issued December 30, 2019).

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); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 2013); 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); A.M., Docket No. 20-0069 (issued June 25, 2020) (a physician assistant, however, is not considered a
“physician” as defined under FECA).
21

22

See S.K., Docket No. 19-0391 (issued December 13, 2019).

7

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a left lower
extremity condition causally related to the accepted March 30, 2018 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the June 3, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: July 24, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

8