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

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

Docket No. 14-741
Issued: October 14, 2014

Case Submitted on the Record

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

JURISDICTION
On February 19, 2014 appellant filed a timely appeal from a September 19, 2013 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 claim.
ISSUE
The issue is whether appellant established a recurrence of disability on January 29, 2013
due to her accepted September 4, 1986 occupational disease injury.
FACTUAL HISTORY
On September 15, 1986 appellant, then a 26-year-old distribution clerk, filed an
occupational disease claim (Form CA-2) alleging that she sustained a herniated nucleus pulposus
as a result of her federal employment duties. She first became aware of her condition on
1

5 U.S.C. § 8101 et seq.

September 4, 1986. OWCP accepted displacement of lumbar intervertebral disc without
myelopathy and appellant received wage-loss compensation and medical benefits until her return
to work in a light-duty full-time position on July 6, 1989.
In medical reports dated September 18 and October 6, 1986, Dr. Nai-Phon Wang, a
Board-certified orthopedic surgeon, reported that he first began treating appellant on
September 9, 1986 due to acute back pain and sudden weakness of the right foot with numbness
to the right leg. Diagnostic testing revealed a large herniated nucleus pulposus with a ruptured
and compressed disc and severely damaged nerve. Due to her ruptured disc, appellant underwent
emergency surgery for laminectomy with removal of ruptured disc on September 12, 1986.
Dr. Wang stated that her herniated lumbar disc caused sciatica and drop foot (paralysis of
muscle) which was a result of her employment-related duties of bending and lifting.
On December 7, 1993 appellant filed a recurrence claim (Form CA-2a) alleging a
return/increase of disability as of November 24, 1993.
In medical reports dated February 3 and April 7, 1994, Dr. Joseph M. Koziol, a Boardcertified neurological surgeon, reported a history of surgery in 1986 for a herniated disc at L4-5
at which time she had complete footdrop. He noted that a December 3, 1993 magnetic resonance
imaging scan of the lumbar spine revealed disc herniation at L5-S1 with obliteration of the right
S1 nerve root and postoperative changes on the right at L4-5. As a result, appellant underwent
microsurgical discectomy on December 13, 1993. Dr. Koziol diagnosed herniated disc at L5-S1
and opined that her condition and surgery were caused by the September 4, 1986 employment
injury. Appellant was released to work on April 11, 1994 with restrictions.
By decision dated February 7, 1995, OWCP accepted appellant’s recurrence claim for
herniated disc at L4-5 and L5-S1 and placed her on the daily rolls from November 27, 1993 to
April 14, 1994 after which she returned to a full-time limited-duty position.
On April 12, 2013 appellant filed a recurrence claim alleging increased disability as of
January 29, 2013. She stated that, because of her 1986 injury, she had a drop foot and would
sometimes experience spasms and numbness. On January 29, 2013 appellant was preparing for
work when her right foot went numb as a result of her drop foot, causing her to twist her foot and
fall, breaking her right ankle.
In medical reports dated January 29 to April 18, 2013, Dr. David Loya, a Board-certified
orthopedic surgeon, reported that on January 29, 2013 appellant twisted her right ankle at home
and fell. He further noted that she had a chronic footdrop and tripped over her foot. Upon
review of diagnostic testing, Dr. Loya diagnosed trimalleolar fracture of the right ankle and
chronic footdrop present on admission. Appellant underwent immediate surgery for open
reduction and internal fixation of the right ankle. In postoperative notes, Dr. Loya noted that her
chronic right footdrop contributed to her fall.
By letter dated May 13, 2013, OWCP informed appellant that the evidence of record was
insufficient to support her recurrence claim. Appellant was advised of the medical and factual
evidence needed and was directed to submit it within 30 days.

2

In a May 28, 2013 narrative statement, appellant reported that she was performing regular
duty, which involved pitching flats and letters, sorting mail and working at the window. She
noted that she had a herniated disc injury, which caused her drop foot, which she underwent
surgery for in 1987 and 1993. Appellant stated that her footdrop would worsen after standing for
long periods of time. She noted that she was preparing for work on January 29, 2013 when her
foot went numb, causing her to twist her ankle and fall.
By decision dated June 17, 2013, OWCP denied appellant’s recurrence claim finding that
the medical evidence did not establish that she sustained a recurrence of disability causally
related to the accepted September 4, 1986 employment injury.
It noted that her
September 4, 1986 injury was accepted for displacement of lumbar intervertebral disc without
myelopathy and other unspecified complications of medical care. OWCP further noted that the
evidence of record failed to establish causal relationship between her current diagnosis of right
ankle fracture and the work-related condition of displacement of lumbar intervertebral disc.
On June 20, 2013 appellant requested reconsideration of OWCP’s decision.
In support of her claim, appellant submitted a June 14, 2013 medical report from
Dr. Loya. In his report, Dr. Loya stated that she presented to the emergency room on January 29,
2013 with complaints of right ankle pain. Appellant stated that she had a chronic right footdrop
as a result of a work-related lower back injury from September 4, 1986, which caused her to
frequently trip over her foot. As a result, she caught her right foot and twisted her ankle at home,
sustaining a closed trimalleolar fracture dislocation. Appellant underwent surgical repair of the
fracture on that same date. Dr. Loya noted that her medical history was remarkable for lumbar
discectomy in connection with her September 4, 1986 work-related lower back injury. He
further noted a chronic right foot drop associated with appellant’s injury. Dr. Loya provided
findings on physical examination in postoperative treatment notes. He noted that three months
postsurgery, appellant’s wounds were healing well and that she had chronic footdrop. Dr. Loya
opined that her closed trimalleolar fracture dislocation of her right ankle occurred when she fell
at home on January 29, 2013. He stated that the mechanism of injury was such that appellant
caught her right foot while walking and tripped and fell. Dr. Loya further stated that her chronic
right footdrop was a consequence of her September 4, 1986 injury and caused her to fall and
break her ankle.
By decision dated September 19, 2013, OWCP affirmed the June 17, 2013 decision
finding that the medical evidence of record failed to establish a recurrence of disability causally
related to the accepted September 4, 1986 injury.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment.2
2

20 C.F.R. § 10.5(x); see S.F., 59 ECAB 525 (2008). See 20 C.F.R. § 10.5(y) (defines recurrence of a medical
condition as a documented need for medical treatment after release from treatment for the accepted condition).

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An employee who claims a recurrence of disability due to an accepted employmentrelated injury has the burden of establishing by the weight of the substantial, reliable and
probative evidence that the disability for which he or she claims compensation is causally related
to the accepted injury. This burden of proof requires that a claimant furnish medical evidence
from a physician who, on the basis of a complete and accurate factual and medical history,
concludes that, for each period of disability claimed, the disabling condition is causally related to
the employment injury and supports that conclusion with medical reasoning.3 Where no such
rationale is present, the medical evidence is of diminished probative value.4
ANALYSIS
OWCP accepted appellant’s September 4, 1986 claim for displacement of lumbar
intervertebral disc without myelopathy and other unspecified complications of medical care. On
February 7, 1995 it accepted her recurrence claim for herniated disc at L4-5 and L5-S1.
Appellant returned to full duty. The issue is whether she established a recurrence of disability on
January 23, 2013, when she fell at home, causally related to her accepted September 4, 1986
injury. The Board finds that appellant has not met her burden of proof.
Appellant twisted her ankle and fell at home on January 29, 2013, which she alleges was
a recurrence of her accepted September 4, 1986 back injury.
In medical reports dated January 29 to June 14, 2013, Dr. Loya diagnosed trimalleolar
fracture of the right ankle and chronic foot drop. He noted that appellant tripped over her foot as
a result of her chronic footdrop, which was caused by her work-related September 4, 1986 back
injury. Dr. Loya provided a medical history of work-related lumbar discectomy and chronic
right footdrop. He stated that appellant’s mechanism of injury was such that she caught her right
foot while walking and tripped and fell. Dr. Loya further noted that her chronic right footdrop
was a consequence of her September 4, 1986 injury, causing her to fall and break her ankle. The
medical reports submitted from Dr. Wang and Dr. Koziol indicate a right footdrop condition
related to appellant’s herniated disc injury in 1986, as well as her recurrence of disability in
1993.
The Board finds however that appellant has never filed a claim alleging that her drop foot
is causally related to her accepted September 4, 1986 injury or any other factors of her federal
employment.5 OWCP has, therefore, never accepted footdrop as a compensable condition.
Review of the medical evidence of record does not establish that appellant sustained a
spontaneous recurrence of disability causally related to her accepted lumbar disc condition.
There is no rationalized medical evidence of record which describes how the accepted lumbar
3

Ronald A. Eldridge, 53 ECAB 218 (2001).

4

Mary A. Ceglia, Docket No. 04-113 (issued July 22, 2004).

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When an injury arises in the course of employment, every natural consequence that flows from that injury
likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to the
employee’s own intentional misconduct. See S.S., 59 ECAB 315 (2008). Appellant may file a claim alleging that
her drop foot was consequential to her accepted September 4, 1986 injury.

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condition caused her injuries on January 29, 2013. Appellant has, therefore, not met her burden
of proof to establish a recurrence of disability on January 29, 2013.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a recurrence
of disability on January 29, 2013.
ORDER
IT IS HEREBY ORDERED THAT the September 19, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 14, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board

R.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
SHERIDAN VETERANS AFFAIRS MEDICAL
CENTER, Sheridan WY, Employer
__________________________________________

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

Docket No. 21-1382
Issued: March 7, 2022

Case Submitted on the Record

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

JURISDICTION
On May 15, 2020 1 appellant filed a timely appeal from a February 5, 2020 merit decision
and an April 29, 2020 nonmerit decision of the Office of Workers’ Compensation Programs

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from February 5, 2020, the date of OWCP’s last decision, was
August 3, 2020. Because using September 9, 2021, the date the appeal was received by the Clerk of the Appellate
Boards, would result in the loss of appeal rights, the date of the postmark is considered the date of filin g. The date of
the U.S. Postal Service postmark is May 15, 2020, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

(OWCP).2 Pursuant to the Federal Employee’s Compensation Act3 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a diagnosed
medical condition causally related to the accepted August 28, 2019 employment incident; and
(2) whether OWCP properly denied appellant’s request for reconsideration of the merits of his
claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On September 2, 2019 appellant, then a 54-year-old police officer, filed a traumatic injury
claim (Form CA-1) alleging on August 28, 2019 he injured his lower back and was exposed to
blood when escorting and controlling a patient while in the performance of duty. He stopped work
on August 30, 2019. On the reverse of the claim form, appellant’s supervisor acknowledged that
appellant was in the performance of duty.
On August 30, 2019 Melanie Kawalok, a family nurse practitioner, opined that appellant
was partially disabled from work and recommended light duty with lifting restrictions.
In a development letter dated September 18, 2019, OWCP informed appellant of the
deficiencies of his claim. It advised him of the type of additional factual and medical evidence
needed and provided a questionnaire for his completion. OWCP afforded appellant 30 days to
submit the necessary evidence. Appellant did not respond.
By decision dated October 21, 2019, OWCP accepted that the August 18, 2019 incident
occurred as alleged, but denied appellant’s traumatic injury claim, finding that he had not
submitted evidence containing a medical diagnosis in connection with the injury. Consequently,
it found that he had not met the requirements to establish an injury as defined by FECA.
On November 8, 2019 appellant requested reconsideration of the October 21, 2019
decision. He provided the completed September 18, 2019 development questionnaire and asserted
that he did not initially experience low back pain and was more concerned about the blood
exposure that had occurred on the date of injury. Appellant noted that he first sought medical
treatment on September 9, 2019.
Appellant resubmitted the August 30, 2019 note from Ms. Kawalok and provided an
additional September 7, 2019 note that she completed. On September 11, 2019 Sean Schoonover,

2
The Board notes that, following the April 29, 2020 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.
3

5 U.S.C. § 8101et seq.

2

a physician assistant, completed a form report and a work release note. He also complete d form
reports on November 7, 2019.
On February 5, 2020 OWCP denied modification of its October 21, 2019 decision.
OWCP continued to receive evidence. Appellant submitted September 25 and October 28,
2019 notes from Mr. Schoonover who noted that he presented with continued complaints of low
back pain. He also resubmitted copies of Mr. Schoonover’s September 11 and November 7, 2019
notes.
On April 3, 2020 appellant requested reconsideration of OWCP’s February 5, 2020
decision.
By decision dated April 29, 2020, OWCP denied reconsideration of the merits of
appellant’s claim.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 4 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 FECA, that the claim was timely filed within the applicable time
limitation period of FECA, 5 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. 6 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.7
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. There
are two components involved in establishing fact of injury. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged. The second component is
whether the employment incident caused a personal injury and can be established only by medical
evidence.8

4

Id.

5

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).
6

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).
7

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).
8

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).

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The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 9 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee. 10
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted August 28, 2019 employment incident.
In support of his claim, appellant submitted an August 30, 2019 note from Ms. Kawalok,
a family nurse practitioner, as well as September 11 and November 7, 2019 notes from
Mr. Schoonover, a physician assistant. The Board has long held that certain healthcare providers
such as physician assistants and nurse practitioners are not considered qualified physicians as
defined under FECA. 11 Their medical findings, reports and/or opinions, unless cosigned by a
qualified physician, will not suffice for purposes of establishing entitlement to FECA benefits.12
Consequently, the notes from Ms. Kawalok and Mr. Schoonover are insufficient to meet his burden
of proof.13
As the evidence of record is insufficient to establish a diagnosed medical condition causally
related to the accepted August 28, 2019 employment incident, the Board finds that appellant has
not met 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.

9

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
10

O.P., Docket No. 19-0445 (issued July 24, 2019); L.H., Docket No. 18-1217 (issued May 3, 2019); S.C., Docket
No. 16-0293 (issued May 10, 2016); A.C., Docket No. 08-1453 (issued November 18, 2008) (as there was no medical
evidence diagnosing an emotional condition, appellant failed to establish a prima facie claim).
Section 8102(2) of FECA provides as follows: “(2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as d efined
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); 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); see also E.W., Docket No. 20-0338 (issued October 9, 2020).
11

12

Id.; K.A., Docket No. 18-0999 (issued October 4, 2019); K.W., 59 ECAB 271, 279 (2007).

13

S.E., Docket No. 21-0666 (issued December 28, 2021).

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LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 14
To require OWCP to reopen a case for merit review, pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.15
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 16 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 17 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 18
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant’s timely request for reconsideration on November 8, 2019 neither alleged nor
demonstrated that OWCP erroneously applied or interpreted a specific point of law. Additionally,
the Board finds that he did not advance a relevant legal argument not previously considered by
OWCP. Consequently, appellant is not entitled to further review of the merits of his claim based
on either the first or second above-noted requirements under 20 C.F.R. § 10.606(b)(3).
The Board further finds that appellant did not submit relevant and pertinent new evidence
not previously considered by OWCP. OWCP previously denied his claim because there was no
medical evidence of record establishing a diagnosed medical condition causally related to the
accepted August 28, 2019 employment incident. In support of his reconsideration request,
14

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 171287 (issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
15

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
16

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of the merit decision for which review is sought. Supra note 11 at Chapter 2.1602.4 (February 2016).
Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received
date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
17

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

18

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

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appellant submitted September 25 and October 28, 2019 notes from Mr. Schoonover. The Board
finds that submission of these notes did not require reopening appellant’s case for merit review
because they have no probative value on the underlying issue on reconsideration. These reports
do not constitute competent medical evidence because physician assistants are not considered
physicians as defined under FECA. 19 Therefore, this evidence is not relevant and is insufficient to
require a merit review. 20
The Board, accordingly, finds that appellant did not meet any of the requireme nts of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. 21
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a diagnosed
medical condition causally related to the accepted August 28, 2019 employment incident. The
Board further finds that OWCP properly denied his request for reconsideration of the merits of his
claim pursuant to 5 U.S.C. § 8128(a).

19

Supra note 11.

20

Id.; see R.G., Docket No. 19-1889 (issued April 14, 2021).

21

R.G., id.; D.G., Docket No. 19-1348 (issued December 2, 2019).

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ORDER
IT IS HEREBY ORDERED THAT the February 5 and April 29, 2020 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 7, 2022
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.P., Appellant
and
DEPARTMENT OF AGRICULTURE,
INSPECTION OPERATIONS PROGRAM,
Broken Bow, OK, Employer
__________________________________________

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

Docket No. 18-0350
Issued: February 11, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On April 14, 2017 appellant filed a timely appeal from a March 14, 2017 merit decision of
the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case.
ISSUE
The issues is whether appellant has met her burden of proof to establish an injury in the
performance of duty as alleged.

1
The case record also contains a separate decision dated March 14, 2017 which denied wage-loss compensation as
there were no accepted conditions. The wage-loss compensation (Form CA-7) at issue, however, was filed by an
individual other than appellant. The Board finds that this decision should be set aside as to appellant. Upon return of
the case record, OWCP shall administratively remove all evidence relating to a different claimant’s claim.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 11, 2016 appellant, then a 55-year-old consumer safety inspector, filed a
traumatic injury claim (Form CA-1) alleging that on August 4, 2016, while driving to update a
work pass, she struck a deer and her airbag deployed causing injuries to both hands and her right
arm. She noted that her left hand was cut and bruised and required stitches. Appellant stopped
work on August 4, 2016. Her supervisor noted on the Form CA-1 that appellant was injured in the
performance of duty.
Appellant was treated in an emergency room on August 4, 2018 by a provider with an
illegible signature who examined her and indicated that she was able to return to work on
August 11, 2016.
In a development letter dated September 14, 2016, OWCP advised appellant that her claim
was originally received as an uncontroverted case which resulted in minimal or no time loss from
work. It indicated that her claim was administratively handled to allow limited medical payments,
but the merits of the claim had not been formally adjudicated. OWCP advised that, because
appellant had not returned to work in a full-time capacity, her claim would now be formally
adjudicated. It requested that she submit additional factual and medical information and provided
a questionnaire to substantiate the factual elements of her claim. Appellant was afforded 30 days
to respond.
On September 7, 2016 Dr. Jon T. Maxwell, an osteopath specializing in family medicine,
noted appellant’s history of a work-related injury and sustaining a bilateral wrist and right knee
injury. Appellant reported being involved in a work-related accident on August 4, 2016 and
sustained injuries to both wrists and her right knee which had impaired her ability to return to full
duties. Dr. Maxwell indicated that he was awaiting radiology studies and a specialty care
consultation and advised that she was totally disabled until further notice.
Appellant was treated by a Tabatha LeForce, a certified nurse practitioner, on August 30,
2016, who noted that appellant had been involved in a work-related accident on August 4, 2016
and had been off work since that time. Ms. LeForce noted that appellant was evaluated on
August 30, 2016 and released to work without restrictions on August 31, 2016. In a progress note
dated September 7, 2016, she reported treatment provided for appellant’s right leg pain, bilateral
wrists, and hand pain. Appellant reported being involved in a work-related motor vehicle accident
on August 4, 2016 and was unsure if she twisted her knee during the accident, but indicated that
her knee had contact with the airbag and dashboard of the car. Her history was significant for a
left knee replacement in 2008 and a right knee replacement in 2014, lumbosacral degenerative disc
disease, and degenerative joint disease of the knee. Ms. LeForce diagnosed right knee pain and
wrist pain. In a September 20, 2016 report, she released appellant to return to work without
restrictions.
In a September 20, 2016 report, Dr. Maxwell noted treating appellant on August 30 and
September 20, 2016. He noted clinical findings and diagnosed laceration of the left hand and right
knee pain. Dr. Maxwell returned appellant to work full time on September 20, 2016.

2

Appellant submitted a duty status report (Form CA-17) dated September 20, 2016 from a
physician with an illegible signature. The report described that appellant hit a deer while driving
her car and injured her bilateral hands, right arm, lower leg, and knee when the airbag was
deployed. Clinical findings included laceration of left hand and right knee pain.
By decision dated March 14, 2017, OWCP denied the claim finding that appellant failed
to submit medical evidence establishing that a medical condition was diagnosed in connection with
the accepted employment incident.
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
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 determine if an employee 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.6 The second component is whether the employment incident caused a personal injury.
An employee may establish that an injury occurred in the performance of duty as alleged, but fail
to establish that the disability or specific condition for which compensation is being claimed is
causally related to the injury.7
Pursuant to OWCP’s procedures, no development of a claim is necessary when there is a
visible injury, even when time has been lost from work due to disability, following a serious injury
(motor vehicle accidents, stabbings, shootings, etc.).8 The procedures provide that no development
is necessary when the employing establishment does not dispute the facts of the case and there are
no questionable circumstances surrounding the case. No medical report is required to establish a
3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5
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).
6

Elaine Pendleton, 40 ECAB 1143 (1989).

7

Shirley A. Temple, 48 ECAB 404, 407 (1997).

8
See Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.6(a)
(June 2011).

3

minor condition such as a laceration.9 Sound judgment should be employed in these cases to
provide appropriate and immediate medical care for the injured worker since expeditious treatment
for these injuries is critical.10 An employee’s statement 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
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence supporting such causal relationship.12 Causal relationship is a medical issue, and
the medical evidence required to establish causal relationship is rationalized medical evidence.13
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.14 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.15
In a case where a preexisting condition involving the same part of the body is present and
the issue of causal relationship therefore involves aggravation, acceleration, or precipitation, the
physician must provide a rationalized medical opinion that differentiates between the effects of the
work-related injury or disease and the preexisting condition.16
ANALYSIS
The Board finds that appellant has met her burden of proof to establish a left hand laceration
causally related to the accepted August 4, 2016 employment incident. The Board further finds that
she has not met her burden of proof to establish right hand or right knee conditions causally related
to her accepted employment incident.
OWCP found that the August 4, 2016 employment incident, in which appellant hit a deer
causing her air bag in her vehicle to deploy, occurred as alleged. Appellant noted that during the
9

Id.

10
See E.H., Docket No. 19-1282 (issued December 23, 2019); M.C., Docket No. 18-1278 (issued March 7, 2019);
R.T., Docket No. 08-0408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005).
11

Supra note 7.

12

J.L., Docket No. 18-0698 (issued November 5, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB
465 (2005).
13

L.D., Docket No. 17-1581 (issued January 23, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

14

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

15

T.H., Docket No. 18-1736 (issued March 13, 2019); Dennis M. Mascarenas, 49 ECAB 215 (1997).

16

Supra note 8 at Chapter 2.805.3e (January 2013).

4

incident her left hand was cut and bruised and required stitches. There were no questionable
circumstances as the employing establishment confirmed that the incident had occurred in the
performance of duty as alleged. The contemporaneous medical reports provide a consistent history
of injury and Dr. Maxwell’s September 20, 2016 report noted clinical findings and diagnosed a
laceration of the left hand and right knee pain. The Board finds that this evidence is sufficient to
establish that appellant sustained a left hand laceration on August 4, 2016.
The medical evidence of record does not, however, support a finding that appellant
sustained other hand or knee conditions due to the accepted employment incident.
In his September 7, 2016 report, Dr. Maxwell noted that appellant sustained injuries to both
wrists and her right knee. He did not, however, provide a specific diagnosis of a medical condition
of the wrists or right knee. 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.17 Therefore,
Dr. Maxwell’s September 7, 2016 report is insufficient to establish the claim for right hand and
knee conditions.
In his September 20, 2016 report, Dr. Maxwell diagnosed the now accepted laceration of
the left hand and right knee pain. As to the right knee condition, the diagnosis of pain is
insufficient. The Board has held that it is not possible to establish the cause of a medical condition
if the physician has not provided a diagnosis, but only notes pain.18 It has consistently been held
that pain is a symptom and not a compensable medical diagnosis.19 Therefore, Dr. Maxwell’s
September 20, 2016 report is also insufficient to establish the claim for right hand and knee
conditions.
The remaining medical evidence that appellant has submitted in support of her claim are
reports signed by a nurse practitioner or which contain an illegible signature or are unsigned. A
nurse practitioner is not, however, considered a physician as defined under FECA.20 Also, the
Board has previously held that unsigned reports or reports that bear illegible signatures cannot be
considered as probative medical evidence because they lack proper identification that the author
is a physician.21 Therefore, these reports are of no probative value and are insufficient to establish
appellant’s claim for right hand and right knee conditions.

17

P.C., Docket No. 18-0167 (issued May 7, 2019).

18

See A.C., Docket No. 16-1587 (issued December 27, 2016).

19

B.P., Docket No. 12-1345 (issued November 13, 2012); C.F., Docket No. 08-1102 (issued October 2008).

20

Section 8101(2) of FECA provides that medical opinion, in general, 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. H.K., Docket No. 19-0429
(issued September 18, 2019); 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 be considered medical evidence if countersigned
by a qualified physician. Supra note 8 at Chapter 2.805.3a(1) (January 2013).
21
G.N., Docket No. 19-0184 (issued May 29, 2019); Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams,
55 ECAB 343 (2004).

5

The Board therefore finds that appellant has submitted insufficient medical evidence to
establish a right hand or right knee condition causally related to the accepted employment incident.
Appellant may submit new evidence or argument with a written request for reconsideration to
OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
As appellant has established a left hand laceration as an accepted, employment-related
condition the Board will reverse, in part, the March 14, 2017 decision and remand the case for
payment of medical costs and wage-loss compensation, if any.
CONCLUSION
The Board finds that appellant has met her burden of proof to establish a left hand laceration
causally related to the accepted August 4, 2016 employment incident. The Board further finds that
she has not met her burden of proof to establish right hand or right knee conditions causally related
to her accepted employment incident.
ORDER
IT IS HEREBY ORDERED THAT the March 14, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed in part and reversed in part and the case is remanded
for further proceedings consistent with this decision of the Board.
Issued: February 11, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Grand Rapids, MI, Employer
)
___________________________________________ )
C.C., Appellant

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

Docket No. 07-1785
Issued: December 28, 2007

Case Submitted on the Record

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

JURISDICTION
On June 25, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decisions dated July 17, 2006 and April 10, 2007 which denied
her occupational disease claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof in establishing that she
developed a bilateral foot, ankle and knee condition while in the performance of duty.
FACTUAL HISTORY
On April 16, 2006 appellant, then a 49-year-old window clerk, filed an occupational
disease claim alleging that she developed a bilateral foot, ankle and knee condition while

performing her clerk duties. She became aware of her condition on June 10, 1997 and realized
that it was aggravated by her employment on March 16, 2006. Appellant did not stop work.1
Appellant submitted an undated statement noting that on June 10, 1997 she injured her
left foot at work and since that time experienced persistent foot pain. She advised that in
October 2005 she began working as a window clerk and was required to stand eight hours per
day which exacerbated her bilateral foot condition. Appellant submitted a March 16, 2006 report
from Dr. Patricia Kolodziej, a Board-certified orthopedic surgeon, who advised that appellant’s
history was significant for a left Lisfranc injury nine years prior for which she underwent surgery
and subsequent screw removal. Appellant reported increasing foot pain with her new job that
required her to stand all day. She advised that her foot pain worsened when she was on her feet
and the pain limited her activity. Dr. Kolodziej noted that appellant underwent surgery for a
severed flexor hallucis longus of the left foot in 1985 and two foot surgeries in 1997 for her left
Lisfranc injury. She noted findings of antalgic gait favoring the left foot, slightly decreased
sensation to light touch over the peroneal nerve, tingling in the saphenous nerve and sural nerve
area, normal range of motion for the ankles bilaterally, and normal inversion, eversion,
dorsiflexion and heel rises bilaterally. Dr. Kolodziej diagnosed left mid-foot post-traumatic
arthritis, onychomycosis bilateral big toes and nerve irritability likely due to cancer medicine.
In a letter dated April 26, 2006, the Office advised appellant of the factual and medical
evidence needed to establish her claim. It requested that she submit a physician’s reasoned
opinion addressing the relationship of her claimed condition and specific employment factors.
Appellant submitted a May 8, 2006 report from Dr. Kolodziej, who diagnosed left foot
post-traumatic arthritis. She advised that appellant’s left foot arthritis was directly related to the
prior Lisfranc fracture sustained at work and opined that post-traumatic arthritis after a Lisfranc
fracture dislocation was common.
In a July 17, 2006 decision, the Office denied appellant’s claim on the grounds that the
medical evidence was not sufficient to establish that her work caused her claimed condition.
In a letter dated January 7, 2007, appellant requested reconsideration. She submitted
reports from Dr. Allan C. Hoekzema, a Board-certified orthopedic surgeon, dated June 16 to
November 24, 1997. He originally treated her for a work-related left foot injury which occurred
on June 10, 1997. On June 20, 1997 he performed a reduction and internal fixation of the
Lisfranc fracture of the left foot and diagnosed status post open reduction/internal fixation with
k-wire fixation of the variant Lisfranc fracture of the left foot. On September 12, 1997
Dr. Hoekzema removed the hardware from appellant’s left foot. On January 5, 1998 she
returned to regular duty without restrictions. In reports dated March 25 to June 2, 1998, he noted
appellant’s complaints of left foot pain and diagnosed Lisfranc fracture with residual spur
formation and arthritic changes of the left foot, rule out Morton’s neuroma, status post Lisfranc
fracture with residual pain and discomfort of the left foot, status post open reduction/internal
fixation of the left foot, status post removal of hardware of the left foot secondary to open
reduction and fixation and onychomycosis of the right great toe. In a report dated August 9,
1

The record reveals that appellant filed a claim for a left foot injury which occurred on June 10, 1997 which the
Office accepted for a Lisfranc fracture of the left foot, File No. 09-0429742. This claim is not before the Board.

2

2006, Dr. Hoekzema treated appellant for left mid foot post-traumatic arthritis. He advised that a
bone scan and computerized tomography (CT) scan of the left foot revealed old post-traumatic
and degenerative traumatic changes to the left foot compatible with her injury. Dr. Hoekzema
opined that there was no question that appellant’s present symptoms related to the traumatic
changes from the Lisfranc fracture of the left forefoot. A CT scan of the ankles and feet dated
July 31, 2006, revealed an old post-traumatic and degenerative changes. A bone scan of the
ankles and feet dated July 31, 2006, revealed increased flow and activity in both tarsal areas,
more prominent in the left most likely related to degenerative changes and mild increased
activity in the right first metatarsophalangeal joint probably related to degenerative changes.
The employing establishment submitted an e-mail from Gayle L. Stora, manager, dated
February 22, 2007, She indicated that appellant was a retail clerk for two months and she did not
mention that she developed a foot condition at work.
By decision dated April 10, 2007, the Office denied modification of the July 17, 2006
decision, finding that the medical evidence was insufficient to establish causal relationship.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that the injury was
sustained in the performance of duty as alleged, and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury. These are the
essential elements of each and every compensation claim regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.2
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by claimant. The
medical evidence required to establish causal relationship is generally 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

2

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

3

nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.3
ANALYSIS
It is not disputed that appellant’s duties as a window clerk included standing for long
periods of time. However, she has not submitted sufficient medical evidence to support that a
condition has been diagnosed in connection with the employment factor and that any alleged
bilateral foot, ankle and knee condition is causally related to the employment factors or
conditions. On April 26, 2006 the Office advised appellant of the type of medical evidence
needed to establish her claim. Appellant did not submit a rationalized medical report from an
attending physician addressing how specific employment factors may have caused or aggravated
her claimed condition.
Appellant submitted a report from Dr. Kolodziej dated March 16, 2006, who treated
appellant for left foot and ankle pain and diagnosed left mid-foot post-traumatic arthritis,
onychomycosis bilateral big toes and nerve irritability likely due to cancer medicine. She
advised appellant’s history was significant for a left Lisfranc injury nine years ago which
required surgery. Appellant reported increasing foot pain with her new job as a clerk at the
employing establishment where she was required to stand all day. However, Dr. Kolodziej
appears merely to be repeating the history of injury as reported by appellant without providing
her own opinion regarding whether appellant’s condition was work related.4 To the extent that
she is providing her own opinion, she failed to provide a rationalized opinion regarding the
causal relationship between appellant’s condition and the factors of employment believed to have
caused or contributed to such condition.5 In another report dated May 8, 2006, Dr. Kolodziej
diagnosed left foot post-traumatic arthritis but did not attribute appellant’s condition to the
employment factors from her current position as a window clerk, rather she opined that her foot
arthritis was directly related to the June 10, 1997 work injury which required surgery with screw
replacement. Therefore, this report is insufficient to meet appellant’s burden of proof.
Appellant submitted reports from Dr. Hoekzema, dated June 16, 1997 to June 2, 1998,
who treated appellant for a work-related left foot injury which occurred on June 10, 1997.
Dr. Hoekzema diagnosed Lisfranc fracture with residual spur formation and arthritic changes of
the left foot, rule out Morton’s neuroma, status post Lisfranc fracture with residual pain and
discomfort of the left foot, status post open reduction/internal fixation of the left foot, status post
removal of hardware of the left foot secondary to open reduction and fixation and
onychomycosis of the right great toe. However, these reports are of no value in establishing the
claimed aggravation of appellant’s foot and other conditions since they predate the time of the
claimed condition of March 2006. In a report dated August 9, 2006, Dr. Hoekzema noted
3

Solomon Polen, 51 ECAB 341 (2000).

4

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value).
5

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

4

treating appellant in 1997 for a work-related Lisfranc fracture of the left forefoot and opined that
appellant’s present symptoms of left mid foot post-traumatic arthritis relate to the traumatic
changes from a Lisfranc fracture. However, he fails to provide a rationalized opinion regarding
the causal relationship between appellant’s left mid foot post-traumatic arthritis and the factors
of employment believed to have caused or contributed to such condition.6 Rather, he appears to
attribute appellant’s left foot post-traumatic arthritis to the June 10, 1997 work injury.7
Therefore, this report is insufficient to meet appellant’s burden of proof.
The remainder of the medical evidence, including a CT scan of the ankles and feet dated
July 31, 2006 and a bone scan of the ankles and feet dated July 31, 2006 fail to provide an
opinion on the causal relationship between appellant’s job and her diagnosed conditions of left
foot post-traumatic arthritis. For this reason, this evidence is not sufficient to meet appellant’s
burden of proof.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship.8 Causal relationships must be established by
rationalized medical opinion evidence. Appellant failed to submit such evidence and the Office
therefore properly denied appellant’s claim for compensation.
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
developed a bilateral foot, ankle and knee condition in the performance of duty.

6

Id.

7

This decision does not preclude appellant from further pursuing her previously accepted left foot condition. See
supra note 1.
8

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

5

ORDER
IT IS HEREBY ORDERED THAT the April 10, 2007 and July 17, 2006 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: December 28, 2007
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION AGENCY,
Atlantic City, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 06-1592
Issued: February 6, 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 July 5, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ February 14, 2006 merit decision concerning her entitlement to
schedule award compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she has more than
a 27 percent impairment of her left arm, a 14 percent impairment of her right arm and a 6 percent
impairment of her right leg.
FACTUAL HISTORY
On September 16, 1998 appellant, then a 63-year-old computer specialist and systems
engineer, filed a traumatic injury claim alleging that she sustained injury on September 15, 1998
when she fell on a cement floor and cut her hand on a coffee cup. She stopped work on

September 15, 1998 and returned to work on September 28, 1998. The Office accepted that
appellant sustained right arm and right buttock contusions, laceration of the right index finger,
C5 radiculopathy and C4-5 and C5-6 disc bulges. The Office paid appropriate compensation for
periods of disability.
The February 10, 1999 magnetic resonance imaging scan showed C4-5 and C5-6 bulges
without evidence of cord compression. The June 5, 2000 nerve conduction studies showed
bilateral sensory median neuropathy across the wrists and bilateral C5-6 radiculopathy.
In a report dated December 20, 2001, Dr. Jeffrey D. Petersohn, an attending Boardcertified orthopedic surgeon, stated that appellant reported worsening of her right arm pain and
that her low back pain was most prominent in the right sacroiliac region. He diagnosed cervical
facet syndrome, probable right C5-6 degenerative osteophytes disease with foraminal stenosis
and right sacroiliac arthropathy. Dr. Petersohn indicated that examination showed that the C4-5
and C5-6 facets were moderately tender and noted that sensory and motor testing of both arms
was normal. Dr. Petersohn stated that the Neer test of the right shoulder was equivocal, but that
there was no tenderness of the glenohumeral joint on palpation. He indicated that, appellant had
hypoesthesia to pinprick in both L5 nerve distributions of the legs.
In a report dated February 12, 2002, Dr. David Weiss, an attending osteopath and Boardcertified orthopedic surgeon, provided findings on his examination of appellant. He indicated
that she complained of numbness and tingling in both hands, greater on the right, pain and
burning sensation in her right elbow, pain in both anterior thighs and pain and swelling in her
right knee. Dr. Weiss detailed appellant’s complaints that her symptoms made it difficult for her
to complete her activities of daily living. He noted that range of motion and strength testing of
all extremities showed normal results, but that she had abnormal grip strength testing of 20
kilograms of force strength in the right hand and 15 kilograms of force strength in the left hand.
Dr. Weiss indicated that sensory examination revealed a perceived sensory deficit over the C6
nerve distribution on the right and a perceived sensory deficit over the C5-6 nerve distribution on
the left. He noted that appellant exhibited tenderness over the medial midline of the right knee
and that his right leg displayed a one centimeter atrophy. Dr. Weiss diagnosed chronic posttraumatic cervical and lumbosacral sprains and strains, C4-5 and C5-6 bulging discs, cervical
radiculopathy, radial tunnel syndrome and post-traumatic patellofemoral arthralgia of the right
knee.
Dr. Weiss provided impairment calculations for the right arm, left arm and right leg. For
the right arm, he found that appellant had a 10 percent impairment under Tables 16-31 and 16-34
on page 509 of the (fifth edition 2001) American Medical Association, Guides to the Evaluation
of Permanent Impairment for grip strength deficit; a 6 percent impairment under Tables 15-15
and 15-17 on page 424 for sensory loss associated with the C6 nerve distribution; and a 3 percent
impairment under Figure 18-1 on page 574 for pain. Dr. Weiss concluded that she had an 18
percent impairment of his right arm by using the Combined Values Chart on pages 604 to 606 to
combine the 10 and 6 percent values to equal 15 percent and then adding the 3 percent value.
For the left arm, he found that appellant had a 20 percent impairment under Tables 16-31 and
16-34 for grip strength deficit; a 4 percent impairment under Tables 15-15 and 15-17 for sensory
loss associated with the C5 nerve distribution; a 6 percent impairment under Tables 15-15 and
15-17 for sensory loss associated with the C6 nerve distribution and a 3 percent impairment

2

under Figure 18-1 for pain. Dr. Weiss concluded that appellant had a 31 percent impairment of
her left arm by using the Combined Values Chart to combine the 20, 4 and 6 percent values to
equal 28 percent and then adding the 3 percent value. For the right leg, he found that she had an
eight percent impairment under Table 17-6 on page 530 for her one centimeter leg atrophy and a
three percent impairment under Figure 18-1 for pain. Dr. Weiss indicated that appellant reached
maximum medical improvement on February 12, 2002.
By decision dated June 18, 2002, the Office granted appellant a schedule award for a six
percent impairment of his right leg. The award was calculated using the 66 2/3 percentage of
pay rate.
By decision dated July 28, 2003, the Office set aside its June 18, 2002 decision on the
grounds that it had not adequately identified the basis for the granting of the award.
In a report dated November 25, 2003, an Office medical adviser stated that he felt that
Dr. Weiss’ calculations for sensory loss associated with the C5 and C6 nerve distributions were
too generous. He indicated that appellant’s one centimeter atrophy of the right leg entitled her to
a three percent impairment rating rather than an eight percent impairment rating. The Office
medical adviser indicated that adding the three percent rating for atrophy to the three percent
rating for pain calculated under Figure 18-1 meant that appellant had a six percent impairment of
her right leg.
By decision dated December 3, 2003, the Office granted appellant a schedule award for a
six percent impairment of her right leg. The award was calculated using the 66 2/3 percentage of
pay rate.
By decision dated June 22, 2004, the Office hearing representative remanded the case to
the Office for evaluation of the impairment of appellant’s right and left arms to be followed by
an appropriate decision.
In a report dated December 6, 2004, the Office medical adviser calculated impairment
ratings for appellant’s right and left arms. For the right arm, he found that she had a 10 percent
impairment under Tables 16-31 and 16-34 for grip strength deficit and a 4 percent impairment
under Tables 15-15 and 15-17 for sensory loss associated with the C6 nerve distribution.1 The
Office medical adviser concluded that appellant had a 14 percent impairment of her right arm by
adding the 10 and 4 percent values. For the left arm, he found that she had a 20 percent
impairment under Tables 16-31 and 16-34 for grip strength deficit; a 3 percent impairment under
Tables 15-15 and 15-17 for sensory loss associated with the C5 nerve distribution; and a

1

For the right C6 nerve distribution, the Office medical adviser used a 50 percent grade under Table 15-5 rather
than the 75 percent grade used by Dr. Weiss. He indicated that appellant was not entitled to the three percent
impairment rating for pain because that deficit was included in the rating for sensory loss.

3

4 percent impairment under Tables 15-15 and 15-17 for sensory loss associated with the C6
nerve distribution.2 The Office medical adviser concluded that appellant had a 27 percent
impairment of her left arm by adding the 20, 3 and 4 percent values.
By decision dated February 10, 2005, the Office granted appellant a schedule award for a
27 percent impairment of her left arm and a 14 percent impairment of her right arm. The award
was calculated using the 66 2/3 percentage of pay rate.3
Appellant requested a hearing before an Office hearing representative. At the hearing
held on November 30, 2005, she claimed that there was a conflict in the medical evidence
regarding the extent of her impairment. She also argued that her daughter was a dependent and,
therefore, her schedule award should have been calculated at the 75 percentage of pay rate rather
than the 66 2/3 percentage of pay rate. The Office hearing representative stated that it appeared
that appellant’s daughter was at least 18 years old at the time of the September 15, 1998 injury
and that there was no evidence she was a student or incapable of self-support due to physical or
mental disability within the meaning of section 8110 of the Federal Employees’ Compensation
Act.
By decision dated and finalized February 14, 2006, the Office hearing representative
affirmed the Office’s February 10, 2005 decision with respect to appellant’s schedule award
entitlement. The Office hearing representative further found that appellant had not shown that
she had a dependent within the meaning of section 8110 of the Act and, therefore, was only
entitled to the 66 2/3 percentage of pay rate.
LEGAL PRECEDENT
The schedule award provision of the Act4 and its implementing regulation5 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, the Act does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulation as the
appropriate standard for evaluating schedule losses.6

2

For the left C5 nerve distribution, the Office medical adviser used a 60 percent grade under Table 15-5 rather
than the 80 percent grade used by Dr. Weiss. For the left C6 nerve distribution, he used a 50 percent grade under
Table 15-5 rather than the 80 percent grade used by Dr. Weiss. The Office medical adviser again indicated that
appellant was not entitled to the three percent impairment rating for pain because that deficit was included in the
rating for sensory loss.
3

The award was offset by the remainder from a third party damage claim.

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404 (1999).

6

Id.

4

Under section 8110 of the Act a claimant is entitled to augmented schedule award
compensation at 3/4 of her weekly pay if she has one or more dependents.7 A child is entitled to
be considered a dependent if he or she is under 18 years of age, is over 18 but is incapable of
self-support because of a physical or mental disability, or is an unmarried student under 23 years
of age who has not completed 4 years of education beyond the high school level and is currently
pursuing a full-time course of study at a qualifying college or university.8
Proceedings under the Act are not adversary in nature, nor is the Office a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, the Office
shares responsibility in the development of the evidence. It has the obligation to see that justice
is done.9 Accordingly, once the Office undertakes to develop the medical evidence further, it has
the responsibility to do so in the proper manner.10
ANALYSIS
The Office accepted that appellant sustained right arm and right buttock contusions,
laceration of the right index finger, C5 radiculopathy and C4-5 and C5-6 disc bulges. Appellant
received schedule awards for a 27 percent impairment of her left arm, a 14 percent impairment of
her right arm and a 6 percent impairment of her right leg.
The Office medical adviser calculated that appellant had a 27 percent impairment of her
left arm, a 14 percent impairment of her right arm and a 6 percent impairment of her right leg.
The Office awarded her a schedule award based on the impairment rating of the Office medical
adviser, but the Board finds that this rating is of diminished probative value because it was not
derived in accordance with the relevant standards of the A.M.A., Guides.11
The Office medical adviser determined that appellant was entitled to a 10 percent
impairment rating under Tables 16-31 and 16-34 of the A.M.A., Guides for right grip strength
deficit and a 20 percent impairment rating for left grip strength deficit.12 The A.M.A., Guides
provides that a strength evaluation under these tables should only be included in the calculation
of an upper extremity impairment if such a deficit has not been considered adequately by other

7

5 U.S.C. § 8110.

8

5 U.S.C. § 8101(17).

9

Russell F. Polhemus, 32 ECAB 1066 (1981).

10

See Robert F. Hart, 36 ECAB 186 (1984).

11

See James Kennedy, Jr., 40 ECAB 620, 626 (1989) (finding that an opinion which is not based upon the
standards adopted by the Office and approved by the Board as appropriate for evaluating schedule losses is of little
probative value in determining the extent of a claimant’s impairment).
12

See A.M.A., Guides 509, Tables 16-31 and 16-34.

5

impairment rating methods.13 The Office medical adviser provided no explanation of why the
identified strength impairment in this case could not be adequately considered by the other
impairment rating methods for the upper extremity. Therefore, he has not properly assessed
appellant’s strength deficits under the standards of the A.M.A., Guides.
The Office medical adviser determined that appellant had a four percent impairment of
her right arm under Tables 15-15 and 15-17 for sensory loss associated with the C6 nerve
distribution, a three percent impairment of her left arm for sensory loss associated with the C5
nerve distribution and a four percent impairment of her left arm for sensory loss associated with
the C6 nerve distribution. He also found that appellant was entitled to a three percent
impairment rating for right leg pain calculated under Figure 18-1 of Chapter 18.14 However, this
was an error as 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.15 The Office medical adviser did not explain why
appellant’s pain could not be adequately rated through other rating methods for pain. He also
indicated that her one centimeter atrophy of the right leg entitled her to a three percent
impairment rating,16 but Table 17-2 provides that an impairment rating for a limb atrophy may
not be combined with a rating for pain.17
For these reasons, it was not appropriate to base the granting of appellant’s schedule
award on the opinion of the Office medical adviser.
The record also contains a February 12, 2002 report in which Dr. Weiss, an attending
osteopath and Board-certified orthopedic surgeon, calculated that appellant had a 31 percent
impairment of her left arm, an 18 percent impairment of her right arm and an 8 percent
impairment of her right leg. However, his impairment rating is of diminished probative value
because it was not derived in accordance with the relevant standards of the A.M.A., Guides.
13

The A.M.A., Guides provides that an example of an impairment that would not be adequately considered by
other rating methods would be loss of strength caused by a severe muscle tear that healed leaving “a palpable muscle
defect.” If the rating physician determines that loss of strength should be rated separately in an extremity that
presents other impairments, “the impairment due to loss of strength could be combined with the other impairments,
only if based on unrelated etiologic or pathomechanical causes. Otherwise, the impairment ratings based on
objective anatomic findings take precedence.” (Emphasis in the original.) The A.M.A., Guides further provides that
decreased strength cannot be rated in the presence of decreased motion, painful conditions, deformities or absence of
parts that prevent effective application of maximum force. A.M.A., Guides 508, section 16.8a. See also FECA
Bulletin No. 01-05 (issued January 29, 2001) regarding the limited use of grip strength to measure weakness.
14

A.M.A., Guides 574, Figure 18-1.

15

See FECA Bulletin No. 01-05; Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards,
Chapter 3.700 Exhibit 4 (June 2003). See also Philip A. Norulak, 55 ECAB 690 (2004) (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 Chapters 13, 16 and 17 of the fifth edition of the A.M.A., Guides).
16

See A.M.A., Guides 424, Table 17-6.

17

Id. at 526, Table 17-2. Section 17.2d further provides that an atrophy rating should not be combined with any
of the other three ratings of diminished muscle function -- gait derangement, muscle weakness and peripheral nerve
injury. Id. at 530.

6

Dr. Weiss found that appellant was entitled to a 10 percent impairment rating under
Tables 16-31 and 16-34 of the A.M.A., Guides for right grip strength deficit and a 20 percent
impairment rating for left grip strength deficit. He also provided no explanation of why the
identified strength impairment could not be adequately considered by the other impairment rating
methods. Dr. Weiss found that appellant had right and left arm impairment under Tables 15-15
and 15-17 for sensory loss associated with the C5 and C6 nerve distributions and also awarded
an additional three percent pain rating under Chapter 18 for her left arm, right arm and right leg.
He did not provide any justification for his award of pain ratings under Chapter 18. Dr. Weiss
listed an impairment rating for appellant’s right leg atrophy, but such a rating could not be added
to a rating for pain.18
As noted above, once the Office undertakes to develop the medical evidence further, it
has the responsibility to do so in the proper manner.19 Appellant’s impairment has not been
adequately evaluated in accordance with the relevant standards of the A.M.A., Guides.20
Consequently, the case must be remanded to the Office for further development of this matter.
After such further development as the Office deems necessary, the Office should issue an
appropriate decision regarding appellant’s claim.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
met her burden of proof to establish that she has more than a 27 percent impairment of her left
arm, a 14 percent impairment of her right arm and a 6 percent impairment of her right leg.

18

See A.M.A., Guides 530, Table 17-6. Moreover, Dr. Weiss appears to have given appellant a rating for a two
centimeter atrophy rather than a one-centimeter atrophy. Appellant claimed that there was a conflict in the medical
evidence regarding the extent of her impairment between the Office medical adviser and Dr. Weiss. Section 8123(a)
of the Act provides in pertinent part: “If there is disagreement between the physician making the examination for
the United States and the physician of the employee, the Secretary shall appoint a third physician who shall make an
examination.” 5 U.S.C. § 8123(a). When there are opposing reports of virtually equal weight and rationale, the case
must be referred to an impartial medical specialist, pursuant to section 8123(a) of the Act, to resolve the conflict in
the medical evidence. William C. Bush, 40 ECAB 1064, 1975 (1989). Given the diminished probative value of the
reports of the Office medical adviser and Dr. Weiss regarding appellant’s impairment, there is no conflict in the
medical evidence on this matter.
19

See supra notes 9 and 10 and accompanying text.

20

The Board notes that the Office hearing representative properly found that appellant had not shown that she had
a dependent within the meaning of section 8110 of the Act and, therefore, she would only be entitled to the 66 2/3
percentage of pay rate. It appears from the record that her daughter was at least 18 years old at the time of the
September 15, 1998 injury and there is no evidence that she was a student or incapable of self-support due to a
physical or mental disability within the meaning of the Act. See supra notes 7 and 8 and accompanying text.

7

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
February 14, 2006 decision is set aside and the case remanded to the Office for further
proceedings consistent with this decision of the Board.
Issued: February 6, 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Francisco, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-544
Issued: May 8, 2014

Case Submitted on the Record

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

JURISDICTION
On January 13, 2014 appellant filed a timely appeal from an October 2, 2013 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 established that she sustained a right shoulder condition in
the performance of duty.
FACTUAL HISTORY
On July 30, 2013 appellant, a 55-year-old city carrier, filed a Form CA-2 occupational
disease claim, alleging that she developed a torn right rotator cuff condition causally related to
employment factors.
1

5 U.S.C. § 8101 et seq.

In a July 19, 2013 Form CA-20 report, Dr. Brian T. Feeley, an orthopedic surgeon,
diagnosed a rotator cuff tear as indicated by results of a magnetic resonance imaging (MRI) scan.
He indicated that appellant did not sustain a specific injury but began experiencing shoulder pain
in 2012. Dr. Feeley advised that it was possible that appellant’s work caused the tear or
increased her symptoms. He scheduled her for surgery on September 10, 2013, imposed a lifting
restriction of 15 pounds and placed her on disability for three months. Dr. Feeley checked a box
indicating that the diagnosed condition was caused or aggravated by employment activity.
On August 16, 2013 OWCP advised appellant that it required additional factual and
medical evidence to determine whether she was eligible for compensation benefits. It asked her
to submit a comprehensive report from her treating physician describing her symptoms and the
medical reasons as to whether her claimed condition was causally related to her federal
employment. OWCP requested that appellant submit this evidence within 30 days.
In a July 23, 2013 report, Dr. Michael L. Cheng, a specialist in internal medicine, noted
that appellant had complaint of chronic right shoulder pain and a right rotator cuff tear. He
advised that she was planning to undergo orthopedic surgery to repair her right rotator cuff on
September 10, 2013.
A September 7, 2012 right shoulder magnetic resonance imaging (MRI) scan revealed
supraspinatus tendinosis with a full-thickness tear of the anterior fibers; a high-grade
intrasubstance tear within the critical zone; mild atrophy of the supraspinatus muscle;
infraspinatus tendinosis with high-grade intra-substance tear with laminar extension proximally
into the muscle fibers where there was an associated small intramuscular cyst; marked thickening
and tendinosis of the subscapularis with at least partial tear of the superior fibers; severe
tendinosis with partial tear of the biceps tendon with subluxation of the biceps tendon;
degeneration and tear of the labrum and biceps tendon anchor; and a full thickness fissuring and
cartilage loss along the inferior glenoid, with moderate-sized effusion.
By decision dated October 2, 2013, OWCP denied appellant’s claim. It accepted that
appellant performed duties as a letter carrier but found that she failed to submit sufficient
medical evidence to establish that her claimed right shoulder condition was causally related to
her work.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing that 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.3 These are the essential elements of each and every

2

Id.

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

2

compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed, or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is usually rationalized medical
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.5
Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence, a causal relationship between her claimed right shoulder condition and her
federal employment. This burden includes providing medical evidence from a physician who
concludes that the disabling condition is causally related to employment factors and supports that
conclusion with sound medical reasoning.6
ANALYSIS
The Board finds that appellant failed to submit sufficient medical evidence to establish
that her claimed right shoulder condition was related to factors of her employment. For this
reason, she has not discharged her burden of proof.
In support of her claimed condition, appellant submitted reports from Drs. Feeley and
Cheng. The physicians advised that she had a right rotator cuff tear and was scheduled to have
surgery on September 30, 2013. In a July 19, 2013 form report, Dr. Feeley listed a history that
appellant began having shoulder pain in 2012 which was not attributable to a specific injury. He
diagnosed a rotator cuff tear as shown by MRI scan. Dr. Feeley noted generally that her work
could have caused the tear or increased her symptoms. He scheduled rotator cuff surgery for
September 10, 2013, placed her on disability for three months and imposed a 15-pound lifting
restriction. Dr. Feeley checked a box indicating that appellant’s diagnosed condition was caused
or aggravated by an employment activity. In a July 23, 2013 report, Dr. Cheng advised that she
4

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

5

Id.

6

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

3

had complaints of chronic right shoulder pain and diagnosed a right rotator cuff tear. He related
that appellant had scheduled right rotator cuff repair surgery for September 10, 2013.
Drs. Feeley and Cheng did not provide sufficient medical opinion addressing how
appellant’s right shoulder condition or disability was causally related to her employment duties
as a letter carrier. The weight of medical opinion is determined by the opportunity for and
thoroughness of examination, the accuracy and completeness of physician’s knowledge of the
facts of the case, the medical history provided, the care of analysis manifested and the medical
rationale expressed in support of stated conclusions.7 The physicians did not sufficiently
describe appellant’s job duties or explain the medical process by which such duties would cause
or contribute to a torn rotator cuff. The reports from Drs. Feeley and Cheng fail to explain how
appellant’s diagnosed condition resulted from factors of her employment. They did not address
the history of appellant’s shoulder conditions in any detail or how her work duties were
competent to cause the current condition.8 The reports note that appellant had a right rotator cuff
tear which required surgery; but do not attribute the diagnosed condition to appellant’s
employment duties. The July 19, 2013 form report from Dr. Feeley that supported causal
relationship with a checkmark is insufficient to establish the claim. The Board has held that
without further explanation or rationale, a checked box is not sufficient to establish causation.9
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s conditions became apparent during a period of employment nor
the belief that his conditions were caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.10 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
OWCP advised appellant of the evidence required to establish her claim; however, she
failed to submit such evidence. Consequently, appellant has not met her burden of proof in
establishing that her claimed right shoulder condition was causally related to her 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 10.607.11
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof in establish that her
claimed right shoulder condition was sustained in the performance of duty.
7

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

8

William C. Thomas, 45 ECAB 591 (1994).

9

Debra S. King, 44 ECAB 203 (1992); Salvatore Dante Roscello, 31 ECAB 247 (1979).

10

See Anna C. Leanza, supra note 7.

11

The Board notes that appellant submitted additional evidence to the record following OWCP’s October 2, 2013
decision. The Board’s jurisdiction is limited to a review of evidence which was before OWCP at the time of its final
review. 20 C.F.R. § 501(c).

4

ORDER
IT IS HEREBY ORDERED THAT the October 2, 2013 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: May 8, 2014
Washington, DC

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

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

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

5